Michael Horvath v. City of Chicago
510 F.2d 594
7th Cir.
1975
Check Treatment

*1 Before PELL and STE- VENS, Judges. Circuit STEVENS, Judge. operators Plaintiffs are nude, parlors nude, partially or employees female pa- masturbate male trons. Defendants have threatened to proceedings commence civil in the Illi- enjoin nois courts to prac- these business tices as a prohibited by nuisance 192.1 Municipal Chicago.1 Plaintiffs commenced this seeking action a declaratory judgment that is unconstitution- ally “vague overbroad,” and an in- junction against its enforcement against them. This appeal is from the district court’s denial injunc- We affirm. This is the second of two federal cases 192.1 to massage parlors. was Relief denied the first case because state criminal ceedings previously had been commenced case; rely- plaintiffs in ing Younger 746, 27 L.Ed.2d judge held that federal issues should * fornication, Ap- pose prostitution, Editor’s Note: The Court of or lewdness is Circuit, peals, Sherwin, pub- hereby Ninth in U. S. v. declared be a nuisance. frequent, in the advance person patronize, lished sheets this citation be found shall No in, (510 request was withdrawn at place F.2d inmate of such house or an Court, grant hearing. en an banc set forth in this used section.” “Every assigna- house of ill-fame or house of pur- tion where men and women resort for the *2 therefore, This, be decided in the pending state cases.2 ty of case, In the second judge also not a case in which we need to consider refused to address the merits even the asserted the ordi- though no litigation was pending nance because of its possible application against most of when their persons or conduct not before the federal action was commenced.3 Plain- court. See Broadrick v. Oklahoma, 413 correctly tiffs point out that neither U.S. 2908, supra, nor Huffman Younger L.Ed.2d United States v. Ramsey, - Pursue, Ltd., -, U.S. 95 S.Ct. 524, 526-527 1200, (1975), 43 L.Ed.2d 482 is direct au- Plaintiffs only challenge the consti- thority refusal, for that and that Steffel tutionality applying § to their v. Thompson, 452, 1209, 94 S.Ct. conduct, own this have not 505, indicates that at least done.4 with to the prayer for declarato- Their attack ry relief on behalf of the plaintiffs who fairly be characterized had not yet been parties made to the litigation, rather than in character. the district court might pow- have do the state’s entertained claim. Nevertheless, er to their conduct. we are satisfied that he Their claim that 192.1 is refused unconstitu- grant plaintiffs any tionally vague on the process rests relief. that a citizen must be they are do Plaintiffs fair notice that his conduct constitutionally protect- engaged punish- a basis for they assert do Nor activity. ed ment.5 validi- objection First 2222, appeal has 37 L.Ed.2d 109. No been Opinion 2. See Memorandum and Order filed taken this dismissal. 17, by Judge January 1975, McGarr on Rochford, critically important pending Adam v. in It is Case No. 75 C to note that in Par- ker the United States District Court for the U.S. 94 S.Ct. Illinois, Rehnquist, Northern L.Ed.2d District Eastern Division. both Mr. Justice majority Stewart, and Mr. Justice in dis- response plaintiffs’ request to the for an sent, rejected appeals’ the court of conclusion ruling, opportunity immediate rather than an that even if the defendant’s own conduct was briefs, to submit the matter on written clearly prohibited, the void for doc- judge tempo- denied the motion for a standing upon trine conferred him to rary restraining preliminary order and a imprecision language of Articles 133 junction “for the same reasons that refused Military and 134 of the Uniform Code of Jus- it in the other case. ... I take they may applied tice as cognizance of the evidence I heard in the com- situations outside the area in which their case, panion that in and assume accordance was clear. 417 U.S. at with injunction dissent, noting facially 2547. In his vague after me, up which has been handed may, course, statutes be saved from 65 in the C Circuit Court Cook unconstitutionality by narrowing judicial con- approximately that the factual situation will be struction, Mr. the same as it was in the other case and on that basis I reach the same conclusion reached that, Justice Stewart concluded even as con- strued, the relevant articles were so case, appropriate in the other that it was Levy reasonably could not have been aware therefore, the Federal to abstain and “that his conduct was violative of Art. 134 preliminary injunction motion for a is denied.” Thus, . .” Id. at p. proceeding App. A civil the state for both the the case .dissent against plaintiff court had been commenced adequacy turned on the of the notice with re- of his Geraci parlors, another spect particular to the conduct of the defend- no state had been com- ant disclosed Douglas’ the record. Since Mr. Justice plaintiffs. menced the other seven predicated dissent was on the view Compare son, Thomp- the facts stated in Steffel v. Levy’s protected by utterances were Amendment, did not reach L.Ed.2d 505. precise question. as a was dismissed de- has on more than one 5. “This Court occasion Pape, on the basis of Monroe v. fendant under the Due invalidated statutes Clause of the Fifth or Fourteenth Amend- Process 81 Bruno, of Kenosha v. Therefore, even assuming vagueness objection is available to these state civil interference for federal plaintiffs, language 192.1 surely to run it is allowed gave them fair notice that the ordinance course, will eliminate presumably apply well to their conduct. We do now exists with re- not believe utterly so the ordinance devoid of spect meaning as to contain no standard what- activities. *3 plaintiffs’ by ever which a court may determine whether their businesses constitute a the Historically, vagueness” “void public may nuisance.9 We assume with developed litiga- doctrine was in criminal plaintiffs legitimate may applicable tion.6 It also be in cases arguing that male customers who penalties, such as dis- pay a fee to have female em- charge discipline government or other of ployees engage in the conduct described employees, at least when the vagueness pleadings before us have not re- claim is by buttressed a First Amend- sorted to a house of assignation for the ment attack.7 Whether purpose of lewdness within meaning vagueness by itself a suffi- 192.1.10 surely But the contrary cient basis for a federal to a argument is not so frivolous that a fed- regulation state’s of commercial activi- eral court should interfere orderly clear; by ties is no means if such a procedures which will clarify available, surely it would the matter.11 only succeed the most extreme case.8 inevitably regulation such includes Our resolution of this appeal is not areas of requiring dependent clarification on our views about the proba- by judicial construction which must ble outcome of the threatened state liti- the outcome litigation. of test gation. For however may regulating 8. Even ment because contained standard criminal statutes economic by criminality satisfy could be as affairs need not as strict a test of certained, prohibitions. doctrine of these cases as other criminal See subsequently acquired Levy, the shorthand de Parker v. 417 U.S. at scription vagueness.’ of ‘void for Lanzetta 2547. Jersey, v. New 306 U.S. 83 9. See Parker v. 417 U.S. at (1939); . . ." L.Ed. 888 10. For the plaintiffs of our decision Speaking for the in United States v. acknowledge that we should assume the truth Harriss, explained: Chief Justice Warren paragraphs contained in 8 “The constitutional of defi- complaint injunction and 11 of in the by violated criminal niteness is statute that Cecola, entitled No. 75 ordinary give person intelligence fails to 1055, pending CH in the Circuit Court of Cook contemplated fair notice that his conduct is County. That was attached to 612, 617, by forbidden statute.” 347 U.S. 74 plaintiffs’ emergency injunction motion for 808, 812, S.Ct. 98 L.Ed. 989. pending appeal in this court. See, g., the statement 451, 453, in Lanzetta e. classic Studios, 11. Miami Health Inc. v. of Miami Jersey, v. New Beach, F.Supp. 353 (S.D.Fla.1973), rev’d 619, 83 L.Ed. 888: grounds, (5th other 491 F.2d 98 Cir. life, required peril “No one be plaintiffs rely, on which involved a criminal liberty speculate as to the statute. specifically opinion The district court’s (Emphasis meaning penal add- statutes.” precise describe the character of ed.) plaintiffs the conduct for which the being were also, g., references to “criminal re- prosecuted. See e. opinion Since that was written sponsibility” National in United States v. Supreme before the Court’s decision in Parker Dairy Corp., Products Levy, supra, unlikely it is not that the dis- in Parker v. 9 L.Ed.2d S.Ct. Levy, trict court then shared the of the Third supra. n. Circuit that “the doctrine that an individual Kennedy, not assert See Arnett v. statute un- 15; less it is as to him long- is no Broadrick v. Okla- homa, vogue.” Levy Parker, er in 478 F.2d (3rd 1973). supra. Cir. Herzbrun v. See n. Milwaukee believe, decided, justification we find no be disputes. cannot be involvement in these question hand, one if Illinois On the plaintiffs on by raised conduct is not decides can be asserted basis. The business opera- conduct; “lewd” to their own lawful, entirely are therefore tions claiming are not that score will, completely adequate then come within that their conduct Any in the courts. tem- remedy Illinois (regardless lewdness the definition porary interference with their business have in the term what merely will conse- operations contexts). seems to me It other factual quence of mistaken war- holdings are sufficient that these Illinois by law an inferior court. Illinois an affirmance. rant major- company with the an error is corrected part Until such Where I following with the state- appellate process, primarily ity opinion: would have no business substitut- court ment in *4 ing its law for attack on the ordinance [Plaintiffs’] that of the lower state court. For it is may fairly proce- be characterized as office, judges, pre- not our to dural rather than in char- misconstruing vent state courts from acter. For not laws. their own power to hand, the state courts the other On claim that conduct. Their that con- hold unconstitutionally vague lewd, pro- therefore is indeed duct process requirement rests on the due holding would scribed. Since must be fair given a citizen notice plain- of which eliminate proscribed his conduct complain, it would also remove tiffs now a basis punishment. for only arguable basis opinion, chal- in this state matter. volvement lenge not provide proper the federal clearly Constitution civ- federal interference with state a state to allow citizens require il it is allowed constitutionally unprotected engage course, presumably run its will elimi- while activities nate whatever now exists le- statutory to determine the progress gitimacy of such conduct. ac- The district court correctly denied tivities. plaintiffs’ motion for a preliminary in- opinion, my claim junction. ques- statutory provision Affirmed. to decide in a tion for a federal court Judge (concur- plain- the fact that ease ring). (using broad- standing tiff that term ly) agree I assert Although attempt- injunction to his own conduct. If one in court’s denial affirmed, ing protect interest from regretfully cannot should be can arguably state interference assert reasoning with some of the ad- agree included Judge support his conduct within vanced Stevens statute, prohibitory terms of a the affirmance. are in ought finality he have to As problems. him before proceeding against no col- that is right constitutional asserting constitutional process, due him process. require cedural To embraces orable of the Munici- of absten- impermissible section do so is an form namely, Indeed, para- drawn that as I read the last imprecisely is so pal I dis- measuring graphs standards I, the lan- abstention which cern theme of activity are discernible Moreover, as disavow. myself, wish to guage