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City of Chicago v. Alexander

Supreme Court of Illinois

June 15, 2017

THE CITY OF CHICAGO, Appellee,
v.
TIEG E. ALEXANDER et al., Appellants.

          JUSTICE GARMAN delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Freeman, Thomas, Burke, and Theis concurred in the judgment and opinion.

          OPINION

          GARMAN JUSTICE.

         ¶ 1 Plaintiff, the City of Chicago, charged defendants, members of the "Occupy Chicago" movement, with violating chapter VII, section B(2), of the Chicago Park District Code (Chicago Park District Code, ch. VII, § B(2) (amended July 28, 1992)). The circuit court of Cook County dismissed the charges, finding that the ordinance was unconstitutional on its face and as applied to the defendants. The appellate court reversed, holding that the ordinance did not violate the defendants' right to assembly under the first amendment of the United States Constitution. On remand from this court's supervisory order directing it to review defendants' claim under article I, section 5, of the Illinois Constitution of 1970, the appellate court again reversed and remanded for further proceedings. 2015 IL App (1st) 122858-B, ¶ 67.

         ¶ 2 We allowed defendants' petition for leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. Jan. 1, 2015) to determine whether the ordinance, which closes all Chicago public parks between 11 p.m. and 6 a.m. and prohibits people from being inside any park during these hours, is unconstitutional as applied to defendants under article I, section 5, of the Illinois Constitution (Ill. Const. 1970, art. I, § 5).

         ¶ 3 For the reasons that follow, we affirm the judgment of the appellate court.

         ¶ 4 BACKGROUND

         ¶ 5 Beginning on September 22, 2011, participants in the "Occupy Chicago" movement demonstrated in the financial district of Chicago, generally near the intersection of Jackson and LaSalle Streets. Initially, plaintiff, the City of Chicago (City), allowed the protestors to remain on sidewalks in the financial district with no time limitations. The City, however, prohibited the protestors from storing provisions, erecting structures, or blocking traffic. The Chicago Police Department (CPD) enforced those restrictions.

         ¶ 6 For approximately three weeks, protestors engaged in rallies, marches, protests, and assemblies in Chicago's financial district and adjacent downtown areas. CPD was present to maintain order and assist with traffic control but otherwise engaged in minimal policing of protestors' activities. CPD did, however, repeatedly require the protestors to remove or relocate supplies stored on the sidewalks. In at least one instance, CPD issued a "move it or throw it away" ultimatum, an order some protestors believed conflicted with prior CPD instructions.

         ¶ 7 On October 15, 2011, Occupy Chicago demonstrators conducted a rally near the intersection of Jackson and LaSalle Streets and then marched through the city for about an hour. CPD directed them to move into Grant Park near the intersection of Michigan Avenue and Congress Parkway, an area commonly known as Congress Plaza. After their arrival there, protestors made speeches on a public address system. Some protestors erected tents and announced their intention to "occupy" the area.

         ¶ 8 During that evening, CPD personnel communicated with protestors and attorneys from the National Lawyers Guild (NLG) and informed them that protestors would not be permitted to remain in Grant Park after its posted 11 p.m. closing time. Specifically, the police informed the protestors and their lawyers that chapter VII, section B(2), of the Chicago Park District Code (Code) prohibited persons from remaining in Chicago parks from 11 p.m. to 6 a.m. See Chicago Park District Code, ch. VII, § B(2) (amended July 28, 1992).

         ¶ 9 CPD estimated that approximately 3000 protestors were in Grant Park at around 7:15 p.m. on October 15, 2011. After repeated warnings about potential arrests for violation of the Code, the number of protestors in the park decreased to between 200 and 300 people by about 10:45 p.m. Many protestors who left the park went to adjacent sidewalks on Michigan Avenue and continued to protest.

         ¶ 10 At approximately 1 a.m. on October 16, 2011, CPD again used the public address system to warn protestors about Grant Park's closure at 11 p.m. Chicago police officers then asked each protestor individually whether he or she wanted to leave the park or be arrested. Ultimately, police officers arrested 173 protestors who refused to leave the park for violating chapter VII, section B(2), of the Code.[1]

         ¶ 11 A few days later, on October 22, 2011, Occupy Chicago protestors staged another rally in the vicinity of Jackson and LaSalle Streets and again moved their rally to Grant Park. As before, protestors indicated their intention to remain in Grant Park after its 11 p.m. closure. CPD personnel followed a similar procedure, warning protestors about potential arrests and affording them the opportunity to leave. After 12:45 a.m. on October 23, 2011, Chicago police officers asked the remaining protestors if they wanted to leave the park or be arrested. After these warnings, 130 protestors were arrested for refusing to leave the park.

         ¶ 12 All of the protestors arrested on both dates were given court dates. Ninety-two protestors, the defendants in this appeal, filed motions to dismiss the charges.[2]Eighty of the defendants were represented by NLG, and the remaining twelve defendants were represented by the law firm of Durkin & Roberts. Both groups of defendants argued that they were engaged in constitutionally protected expressive conduct or symbolic speech and that the City selectively enforced the ordinance against them in violation of their constitutional rights to equal protection. Defendants noted that the City and CPD let people remain in Grant Park after its 11 p.m. closure for President Obama's presidential election rally in 2008.

         ¶ 13 Relevant to this appeal, the NLG defendants also argued that the ordinance violated their "rights under the First Amendment to the United States Constitution to freedom of speech, to assemble, and to petition the government for redress of grievances." The Durkin & Roberts defendants argued that the charge for violating the ordinance "fails to constitute an offense under the circumstances of this very unique case and violates Defendants' rights to freedom of speech, peaceable assembly, and to petition the Government for redress of grievances, " as guaranteed by the first amendment to the United States Constitution and related provisions in the Illinois Constitution of 1970. On the motion of defendants, the circuit court consolidated their cases.

         ¶ 14 The City filed a response, arguing that defendants' motions to dismiss should be denied because the ordinance constituted a reasonable time, place, and manner restriction on the use of Grant Park and the City's enforcement of the ordinance was appropriate. The City also argued that the ordinance was applied in a content-neutral manner and left open ample alternative channels of communication. The City attached three supporting affidavits, two of them from law enforcement officials involved in supervising the Occupy Chicago protests and the subsequent arrests.

         ¶ 15 The third City affidavit was from Deputy Director of Park Services Alonzo Williams. His affidavit described his duties, outlined the development of the ordinance that effectively closes Chicago parks during overnight hours, and defended the ordinance as being necessary to "keep the parks safe, clean, attractive, and in good condition." Williams's affidavit noted that groups could apply for exceptions if "both the group and its proposed activity comply with our permitting process." The fourth and final paragraph of Williams's affidavit provided additional justification for the park-closure ordinance:

"4. We believe the Code's standard hours of closure is [sic] necessary to properly protect and maintain our parks. The park hours of closure allow park employees to collect trash, make repairs to park facilities, and maintain the landscaping. Park employees are therefore able to make sure the parks remain sanitary and pleasing the [sic] eye with limited disruption and maximum safety to park patrons. Park closures also ensure that certain park facilities do not become over-fatigued. Further, limited access by pedestrians during park closure hours reduces crime against park patrons and park property. As we are charged with keeping Chicago's parks beautiful and vibrant for current and future generations, we have made certain rules to that effect. Round-the-clock use of the parks by the general public would not further our mandate and would instead make it impossible to uphold."

         ¶ 16 The City also attached decisions from trial courts in Sacramento, Boston, and San Diego that addressed Occupy movements in those cities. Lastly, the City attached "Chicago Police Department Special Order 4-22-01, " detailing CPD's procedure for issuing administrative notice of ordinance violation citations.

         ¶ 17 Defendants filed a reply and included supporting affidavits from various participants in the Occupy Chicago movement.

         ¶ 18 After oral arguments on the motions, the City filed motions to strike defendants' affidavits, and defendants filed a motion for discovery. The court denied in part and granted in part the City's motion to strike the affidavits and denied defendants' motion seeking discovery.

         ¶ 19 On September 27, 2012, the circuit court issued a 38-page "memorandum opinion and order, " finding chapter VII, section B(2), of the Code unconstitutional on its face and as applied to defendants. The court held that the ordinance violated defendants' right to assembly under both the United States and Illinois Constitutions. The court explained that "the City's claim that citizen safety, park maintenance, and park preservation constitute the substantial government interest that justifies closing the park seven hours nightly fails because the City routinely closes the park for fewer than seven hours nightly, making ad hoc exceptions to the curfew for permitted groups." The court further explained that the ordinance "violates the Illinois Constitution which provides a more vigorous right to free assembly, embracing even non-expressive assemblies." Lastly, the court concluded that the ordinance violates defendants' right to equal protection because it treats similarly situated citizens differently, noting that the City did not arrest anyone during President Obama's rally in 2008, despite their presence in Grant Park after its 11 p.m. closure.

         ¶ 20 On appeal, the appellate court reversed the circuit court's decision but did not expressly address the trial court's findings under the Illinois Constitution. This court denied defendants' petition for leave to appeal but entered a supervisory order directing the appellate court to vacate its opinion and review the circuit court's judgment that the chapter VII, section B(2), of the Chicago Park District Code violates the right to free assembly under both the first amendment to the United States Constitution and article I, section 5, of the Illinois Constitution.

         ¶ 21 The appellate court vacated its original opinion and issued a new opinion, again reversing the circuit court's judgment. Rejecting defendants' facial challenge under the first amendment to the United States Constitution, the court reasoned that the ordinance was not unconstitutional in every circumstance and was not overbroad. Addressing defendants' as-applied challenge under the first amendment, the court applied intermediate scrutiny, traditionally applicable to content-neutral regulations, and determined that defendants' first amendment rights were not violated. 2015 IL App (1st) 122858-B, ¶¶ 28-48.

         ¶ 22 Turning to defendants' claims under the Illinois Constitution, the appellate court explained that its "review of the 1970 Illinois Constitution debates and convention supports the conclusion that the framers intended for article I, section 5 to extend a broader right of assembly than that afforded under the United States Constitution." Id. ¶ 61. Nevertheless, the appellate court found "nothing to indicate that the time, place and manner analysis, " which would be applicable to first amendment claims, "should be abandoned" for defendants' state claims and, after applying that analysis, concluded that the ordinance did not violate article I, section 5, of the Illinois Constitution. Id. ¶¶ 61-65.

         ¶ 23 This court allowed defendants' petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Jan. 1, 2015). We also granted the Illinois Municipal League leave to file an amicus curiae brief in support of the City. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

         ¶ 24 ANALYSIS

         ¶ 25 The ordinance at issue in this case prohibits any person from being or remaining in any city park "between the hours of 11:00 p.m. and 6:00 a.m. on the following day." Chicago Park District Code, ch. VII, § B(2) (amended July 28, 1992). The penalty for violating the ordinance is a fine not to exceed $500 and restitution in the event of property damage. Chicago Municipal Code § 10-36-185 (added Apr. 21, 1999).

         ¶ 26 Defendants' petition for leave to appeal sought review of two issues. First, defendants asked whether the protections afforded by article I, section 5, of the Illinois Constitution of 1970 are subject to the same "time, place, or manner" analysis that applies to the first amendment right of assembly. Defendants' position is that the Illinois Constitution grants broader protection than the first amendment and, thus, strict scrutiny applies to an ordinance that restricts the right to conduct demonstrations in public forums such as parks, at least when the gathering is political in nature. This question requires this court to decide whether article I, section 5, of the Illinois Constitution provides broader protection than the assembly clause of the first amendment to the United States Constitution under this court's limited lockstep doctrine. Second, if this court determines that the ordinance is not subject to strict scrutiny and that the intermediate standard of time, place, or manner analysis applies, defendants ask us to apply the analysis "more robustly" than the appellate court did here.

         ¶ 27 The Chicago Park District Code has the same force as a municipal ordinance. Chicago Park District v. Canfield, 382 Ill. 218, 223-24 (1943). Thus, when considering the validity of a provision of a park district code, we treat it as a municipal ordinance, applying the same standards that govern a challenge to the constitutionality of a statute. City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill.2d 390, 406 (2006). A municipal ordinance is presumed constitutional, and the challenging party has the burden of rebutting that presumption. Id. Unlike a facial challenge, which requires a showing that the ordinance is unconstitutional under any set of facts, an as-applied challenge requires a showing that the ordinance violates the constitution as it applies to the facts and circumstances of the challenging party. See People v. Rizzo, 2016 IL 118599, ¶ 24.

         ¶ 28 We review de novo the grant of a motion to dismiss. Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 18. We also review de novo a determination that a legislative enactment is unconstitutional. Kanerva v. Weems, 2014 IL 115811, ¶ 33.

         ¶ 29 The Right of Assembly Under the State Constitution

         ¶ 30 The question of whether article I, section 5, of the Illinois Constitution provides greater protection for the right of assembly than the first amendment ...


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