Real Estate & Property Law

7th Circuit: Political Chutzpah Lawsuit Not Ripe

By Robert Thomas (inversecondemnation.com)

So let's say you want to hold fundraisers for political bigshots in your home. When the crowd you are hobnobbing with includes Bill Clinton, you might expect the Secret Service to come along, and you might expect that your local constabulary is asked to pitch in to help the T-Men with security, and traffic and crowd control.

You might also expect that despite residing in what is considered an "affluent village" where the median family income is reported to be $200,000, the local taxpayers might not appreciate shouldering the expense of the extra security that your soirees require. Thus, you should not be surprised when the village fathers and mothers adopt an ordinance requiring that people whose closed-to-the-public events spur the need for these extra services to bear the cost instead of the taxpayers. 

But even after the ordinance is adopted you never get sent a bill, despite hosting such luminaries as Senator Hillary Clinton and others including the Illinois Attorney General and Senator Al Franken. Oh, others get charged (and pay) -- for a single visit by George W. Bush and two visits by Laura Bush -- but you have "not been asked to pay one cent for special services" when you host pols from The Other Party.

But this is America, so you sue anyway. The mere existence of the ordinance, you claim, infringes upon your civil rights because it "chills" your ability to bring politicians to your home for private invitation-only fundraisers. After all, only the "little people" actually have to pay for the extra services they consume, right?

The federal district court unceremoniously tosses your case. You may have a lot of politician pals, but life tenure has its benefits. The ordinance has not injured you (yet) so you lack article III standing, and the fact that the village has never sent you a bill means that your claims are too premature to be properly evaluated. Not sensing the justice in this conclusion, you take it up with the Court of Appeals.

In Brandt v. Village of Winnetka, No. 09-3709 (July 20, 2010), the Seventh Circuit affirmed. Not quite agreeing with the district court that there was no case and controversy, the court of appeals concluded that because we can't be absolutely, positively sure the ordinance might not be applied to you in the future, you had standing. But no matter, the district court was still correct to throw you out because we just can't figure out how to evaluate the supposed effects of the ordinance on your civil rights because the ordinance has not been applied to you. Or, as the court put it, "[y]et it is hard to see how a court can 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." Slip op. at 5. Judgment affirmed.

No mention by the Seventh Circuit of who bears the cost of the appeal.

Full post as published by inversecondemnation on July 21, 2010 (boomark / email).