FIRST AMENDMENT

Federal Circuit Courts of Appeals

Brandt v. Village of Winnetka, No. 09-3709 (7th Cir. July 20, 2010).

OVERVIEW: A political promoter had standing to challenge a village ordinance under the First Amendment that required people whose events occasion the need for "special services" from the village to bear the cost of the services because of his potential for injury. His claim, however, was not ripe for adjudication because the ordinance had not yet applied to him.

SUMMARY: The plaintiff successfully holds a number of fund-raising events at his home for high-ranking elected officials and candidates, such as candidates for the U.S. Senate, Congress, and President. Because if the village provides security assistance for such events, such as providing police officers, closing streets, and rerouting traffic, the village enacted an ordinance requiring people whose events occasion the need for these services to bear the cost. Although the ordinance was never enforced upon the plaintiff, he filed suit against the village under § 1983 claiming a violation of his First Amendment rights. The plaintiff specifically claimed that the ordinance chilled his willingness to invite political officials and candidates to his home in the village. The district court dismissed the case for lack of jurisdiction finding that: the plaintiff lacked standing; the controversy was not ripe for adjudication; and the matter called upon the court to commence a premature constitutional adjudication.

The appeals court determined that the plaintiff had standing, but his complaint was not ripe for adjudication. Although the ordinance was never enforced upon the plaintiff, the plaintiff had standing to bring his First Amendment claim because of the potential for injury. Following Supreme Court precedent, the appeals court determined that standing exists: (i) if the plaintiff suffers an actual or impending injury, no matter how small; (ii) if that injury is caused by the defendant's acts; and (iii) if a judicial decision in the plaintiff's favor would redress that injury. In the present case, the plaintiff is a political promoter, and his home in the village has hosted guests whose protection led to "special services" within the scope of the ordinance. Although a court cannot be sure that the plaintiff will again have a guest whose protection detail will ask the village for "special services," the probability is materially greater than zero. Therefore, the plaintiff had standing.

The plaintiff's complaint, however, was not ripe for adjudication. The plaintiff describes his challenge to the ordinance as an "as-applied" challenge. A court cannot evaluate an as-applied challenge sensibly until a law is applied, or application is soon to occur and the way in which it works can be determined. Thus, the challenge is currently too abstract to warrant constitutional adjudication.