Club Misty, Inc v. Laski, James ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1597 and 99-1628
Club Misty, Inc., doing business as
Tequila Roadhouse, et al.,
Plaintiffs-Appellants,
v.
James Laski, Clerk of the City of Chicago, et al.,
Defendants-Appellees.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 98 C 7831 & 98 C 8054--Charles R. Norgle, Sr., Judge.
Argued February 18, 2000--Decided April 3, 2000
Before Posner, Chief Judge, and Bauer and Manion,
Circuit Judges.
Posner, Chief Judge. Two licensed taverns in
Chicago appeal from the district court’s
dismissal of their suit to enjoin an Illinois
state statute pursuant to which the plaintiffs
would have lost their licenses had they not been
granted preliminary relief that continues on
appeal. The statute, 235 ILCS 5/9-1 et seq., is
challenged both as depriving the plaintiffs of
their property without due process of law and as
a bill of attainder.
Illinois liquor licenses are revocable only for
good cause during the one-year term of the
license and renewable as a matter of right when
the term expires unless the licensee is
unqualified or his premises unsuitable. 235 ILCS
5/3-14, 5/5-2, 5/6-1, 5/7-5. (A tavern must have
a local license as well, see 235 ILCS 5/3-14,
5/7-6; Chi. Munic. Code sec.sec. 4-60-20(a),
60(a), but the parties make nothing of this, so
we won’t either.) There is no suggestion that
either plaintiff gave cause to have its license
revoked or not renewed. Each simply lost a vote
by the residents of the precinct in which its
tavern is located. The vote was authorized by 235
ILCS 5/9-2, which provides that if 40 percent of
the registered voters in a precinct petition the
board of elections for a vote on whether to
prohibit the sale of liquor at a particular
street address, the question shall be put to the
precinct electorate at the next election and if a
majority votes in favor of the prohibition the
license of the establishment located at that
address shall become void thirty days after the
election. 235 ILCS 5/9-3. The record is silent on
why these particular taverns incurred the voters’
wrath; neither the petitioners nor the voters are
required to give reasons. All we know, besides
that the plaintiffs’ taverns were duly licensed,
is that in each precinct there are other liquor
licensees who have not been voted out.
On the view we take of the case, we shall not
have to decide whether the statute is a bill of
attainder, U.S. Const., art. I, sec. 10, cl. 1;
but we shall not conceal our skepticism that it
is. A bill of attainder is a legislative
punishment, and we may assume without having to
decide both that a legislative delegation to the
electorate of a standardless authority to punish
would fall afoul of the prohibition of bills of
attainder by constituting the electorate a
surrogate legislature engaged in administering
punishment, see Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U.S. 123, 144 (1951)
(concurring opinion); Dehainaut v. Pena, 32 F.3d
1066, 1070-71 (7th Cir. 1994); Laurence H. Tribe,
American Constitutional Law sec. 10-6, pp. 660-61
(2d ed. 1988); cf. Citizens Against Rent
Control/Coalition for Fair Housing v. City of
Berkeley, 454 U.S. 290, 295 (1981), and that
corporations as well as individuals are protected
by the constitutional prohibition. See Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 239 n. 9
(1995); BellSouth Corporation v. FCC, 144 F.3d
58, 63 (D.C. Cir. 1998); BellSouth Corporation v.
FCC, 162 F.3d 678, 684 (D.C. Cir. 1998); SBC
Communications, Inc. v. FCC, 154 F.3d 226, 234
and n. 11 (5th Cir. 1998). Even so, it is
doubtful that what the voters have voted to do to
the plaintiffs can be regarded as punishment.
The requirement of punishment is most clearly
satisfied when a punitive purpose is conjoined
with a characteristically punitive sanction, such
as a fine. See generally Nixon v. Administrator
of General Services, 433 U.S. 425 (1977). (During
the impeachment of President Clinton, there was
much discussion of whether a congressional
resolution censuring him would have been a bill
of attainder.) We may assume, again without
having to decide still another unsettled issue,
that either a punitive purpose or a
characteristically punitive sanction would
suffice to make legislation directed against a
particular individual or firm (of which a given
street address is a transparent proxy) a bill of
attainder. Selective Service System v. Minnesota
Public Interest Research Group, 468 U.S. 841,
852-54 (1984); Nixon v. Administrator of General
Services, supra, 433 U.S. at 473-84; De Veau v.
Braisted, 363 U.S. 144, 160 (1960); Dehainaut v.
Pena, supra, 32 F.3d at 1071-73; Planned
Parenthood of Mid-Missouri and Eastern Kansas,
Inc. v. Dempsey, 167 F.3d 458, 465 (8th Cir.
1999); SBC Communications, Inc. v. FCC, supra,
154 F.3d at 241; Tribe, supra, sec. 10-5, p. 655.
The problem here is that we have no information
about the purpose that actuated the petitions and
the votes against these licensees; nor is the
revocation of a license a characteristically
punitive sanction, Brookpark Entertainment, Inc.
v. Taft, 951 F.2d 710, 717 (6th Cir. 1991); cf.
Rivera v. Pugh, 194 F.3d 1064, 1068 (9th Cir.
1999); United States v. Emerson, 107 F.3d 77, 81-
83 (1st Cir. 1997), though it can inflict great
hardship.
We need not pursue the issue further, as we
think the statute is unconstitutional as a denial
of due process of law even if it is not a bill of
attainder. We reach this conclusion on the basis
of two previous decisions of this court, Reed v.
Village of Shorewood, 704 F.2d 943 (7th Cir.
1983), and Philly’s v. Byrne, 732 F.2d 87 (7th
Cir. 1984). Neither side in the present
litigation challenges the soundness of either
decision. They differ as to the decisions’
correct interpretation but they do not ask us to
overrule either one in whole or in part. And so
those decisions provide the framework for our
analysis.
Reed holds that an Illinois liquor license is a
property right within the meaning of the due
process clause of the Fourteenth Amendment. 704
F.2d at 948-49. The license is revocable during
its term only for cause, just like a public
school teacher’s tenure contract--a familiar
example of "property" as the Supreme Court has
defined the term in the due process clauses of
the Fifth and Fourteenth Amendments. E.g., Perry
v. Sindermann, 408 U.S. 593, 601 (1972). Were
renewal a matter of administrative grace, the
challenged statute would be vulnerable only in
cases in which the license was voided before the
expiration of its current term. E.g., Movers
Warehouse, Inc. v. City of Little Canada, 71 F.3d
716, 718-19 (8th Cir. 1995); Kraft v. Jacka, 872
F.2d 862, 866-68 (9th Cir. 1989), overruled on
other grounds by Dennis v. Higgins, 498 U.S. 439
(1991). But we held in Reed, relying on the
Illinois Appellate Court’s decision in City of
Wyoming v. Liquor Control Comm’n, 362 N.E.2d
1080, 1084 (Ill. App. 1977), that Illinois law
treats a refusal to renew a liquor license as
equivalent to revocation, entitling the licensee
"to all the protections, procedural and
substantive, of the revocation process, [and]
thus making [the licensee’s] interest in renewal
a property right for purposes of the Fourteenth
Amendment." 704 F.2d at 949. We followed Reed in
Kelly v. City of Chicago, 4 F.3d 509, 511 (7th
Cir. 1993), as well as in Philly’s v. Byrne,
supra, 732 F.2d at 90, as did the Sixth Circuit
in Brookpark Entertainment, Inc. v. Taft, supra,
951 F.2d at 714-15; see also Easter House v.
Felder, 910 F.2d 1387, 1395 (7th Cir. 1990) (en
banc); compare Herz v. Degnan, 648 F.2d 201, 208
(3d Cir. 1981).
The City of Chicago (the principal defendant)
does not challenge any of these cases though it
tweaks us a bit by remarking in a footnote that
our holding that a liquor license is property has
been rejected by the Illinois Appellate Court in
decisions rendered after Reed. See Blue Cat
Lounge, Inc. v. License Appeal Comm’n, 667 N.E.2d
554, 557 (Ill. App. 1996); Ole, Ole, Inc. v.
Kozubowski, 543 N.E.2d 178, 181-82 (Ill. App.
1989); Ross v. Kozubowski, 538 N.E.2d 623, 626
(Ill. App. 1989); Black Knight Restaurant, Inc.
v. City of Oak Forest, 513 N.E.2d 109, 111 (Ill.
App. 1987). These cases rely on a provision of
the Illinois Liquor Control Act which states that
a liquor license is not property, 235 ILCS 5/6-1,
and on "the wooden distinction between ’rights’
and ’privileges’" that the Supreme Court has
"fully and finally rejected." Board of Regents v.
Roth, 408 U.S. 564, 571 (1972). As we explained
in Reed, such a declaration and such a
distinction cannot conclude the constitutional
issue of whether the license is property, and
indeed has very little relevance to it. Memphis
Light, Gas & Water Division v. Craft, 436 U.S. 1,
9 (1978); Brookpark Entertainment, Inc. v. Taft,
supra, 951 F.2d at 714; Sea Girt Restaurant &
Tavern Owners Ass’n, Inc. v. Borough of Sea Girt,
625 F. Supp. 1482, 1486-88 (D. N.J.), aff’d
without opinion, 802 F.2d 448 (3d Cir. 1986).
Think back to the classic case of constitutional
property--a teacher’s tenure contract. Obviously
such a contract would not be classified as
"property" or a "property right" under state law,
a classification that would weirdly imply that a
teacher could sue his employer for trespass if he
were fired in breach of the contract. For most
purposes, perhaps for all but one purpose, an
Illinois liquor license is not property; but
insofar as it is revocable (or nonrenewable) only
for cause, it is property for purposes of
determining whether the state can deprive the
licensee of it without according him due process
of law. Baer v. City of Wauwatosa, 716 F.2d 1117,
1122 (7th Cir. 1983); see also Perry v.
Sindermann, supra, 408 U.S. at 601.
The City denies that a liquor license is
property for a reason unrelated to Reed--that the
challenged statute so eviscerates the rights of
liquor licensees as to destroy their status as
owners of constitutional property. We left this
issue open in Philly’s. 732 F.2d at 90-91. That
case arose under the provision, codified in the
same section of the Illinois Liquor Control Act
as the provision challenged in this case, that
allows the voters in a precinct to vote the
entire precinct dry, as distinct from prohibiting
the sale of liquor at a particular address. We
held that there was no denial of due process (see
also Sam & Ali, Inc. v. Ohio Dept. of Liquor
Control, 158 F.3d 397, 398-99 (6th Cir. 1998);
37712, Inc. v. Ohio Dept. of Liquor Control, 113
F.3d 614, 619 (6th Cir. 1997)) and so we didn’t
have to decide whether there was a deprivation of
property. We did a little dance around the issue.
On the one hand we pointed out that the power to
vote a precinct dry could conceivably be thought
an implicit term of every liquor license, in
which event such a license could no longer be
thought revocable or nonrenewable for cause and
so it would lose the defining characteristic of
constitutional property. On the other hand we
pointed out that such an analysis, implying as it
does that by repealing procedural protections a
state could demote property to nonproperty, would
leave very little standing of the constitutional
protection of property, since the essential
protection is precisely the guarantee of the
procedural safeguards (basically notice and an
opportunity to be heard) that constitute the core
of the concept of due process of law as it is
understood in the modern decisions.
Today we have to bite the bullet. In conformity
with the case law that has accreted since
Philly’s was decided, see Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 541
(1985); Youakim v. McDonald, 71 F.3d 1274, 1289
(7th Cir. 1995); Listenbee v. City of Milwaukee,
976 F.2d 348, 352 (7th Cir. 1992); Campbell v.
Miller, 787 F.2d 217, 223 (7th Cir. 1986);
Furlong v. Shalala, 156 F.3d 384, 395 (2d Cir.
1998); Frazier v. Garrison I.S.D., 980 F.2d 1514,
1528-29 (5th Cir. 1993); Brookpark Entertainment,
Inc. v. Taft, supra, 951 F.2d at 716-17, we hold
that the two-step process for eliminating due
process rights that we have just described, of
which the first is to authorize a procedure for
extinguishing property rights that does not
conform to the requirements of due process and
the second is to invoke that process to
extinguish a particular person’s property right,
is ineffectual to destroy constitutional
property.
We are mindful that the Twenty-First Amendment
to the Constitution gives the states very broad
power over the sale of alcoholic beverages.
Illinois could if it wanted forbid such sale
altogether; it certainly is not required to give
liquor licensees the attributes of constitutional
property. But it has given them those attributes,
as we have seen, and the challenged statute does
not purport to remove them. It creates no new
substantive criteria for the grant or withdrawal
of Illinois liquor licenses. Nothing in it
purports to alter the "for cause" condition that
makes those licenses property within the meaning
of the due process clause. It does not refer to
the provisions of Illinois law that we have held
make liquor licenses "property" for purposes of
the clause, or to the Twenty-First Amendment. All
the referendum statute does is provide an
alternative procedure for revocation of liquor
licenses. This is apparent from the legislative
history, as we are about to see. The supporters
of the statute believed that it would provide a
swifter alternative to administrative procedures
for revoking the licenses of "bad apples," which
is to say licensees who had given cause for
revocation.
The plaintiffs thus have a property right of
which the voters in their precincts deprived
them, and the remaining question is whether the
deprivation was brought about by a method that
denied the plaintiffs due process of law. The
City argues "no," relying on Philly’s, where we
held that while an election is not an
adjudicative procedure that comports with due
process, the fact that the voters of a precinct
could get rid of a liquor licensee whom they
didn’t like (for whatever reason) only by voting
the entire precinct dry provided the disfavored
licensee with protection and marked the vote as a
legislative rather than an adjudicative act. It
is the same kind of protection that is provided
by the equal protection clause, see Railway
Express Agency v. New York, 336 U.S. 106, 112-13
(1949) (Jackson, J., concurring), and by the
principle, which is the very foundation of the
concept of the rule of law (as well as of the
prohibition of bills of attainder), that a
legislature can prohibit private conduct only
through general rules. Chicago precincts are
small (each is supposed to have 400 registered
voters, 10 ILCS 5/11-3, 11-5), which reduces the
protection conferred by requiring the precinct to
vote itself dry rather than picking on a
particular licensee--many precincts have only one
liquor licensee. But we emphasized that "the
Illinois act does not permit the precinct’s
voters to single out a particular liquor seller
to shut down. . . . This means not only that the
licensee who is disliked is protected to some
extent by the licensee who is liked [if there is
one] but also that the voters cannot impose costs
on liquor sellers without imposing costs on
themselves--the costs of not being able to buy
liquor in the precinct." 732 F.2d at 92.
Philly’s was decided in 1984. Five years later
the Illinois legislature added to the Liquor
Control Act the provision challenged in this
case. Why? The only reason that is suggested in
the legislative history, and anyway the only
reason that is remotely plausible, is that the
legislature wanted the residents of a precinct to
be able to get rid of a particular licensee of
whom they disapproved. See, e.g., Statement of
Rep. McGann, in Transcript of General Assembly,
June 27, 1989, at 138-39 ("But say you have one
[tavern] that is causing real problems, causing
problems for the neighbors around them and so
forth that they cannot affectively [sic] by the
law presently of the police administration deal
with these situations and the community neighbors
are having problems. This will not penalize the
good licensees in these areas, but will only
target that bad operator"). The reason for
targeting a particular licensee could be a good
one, as this quotation from the legislative
history suggests--that the licensee was selling
liquor to minors, or serving drunks, or
attracting a rowdy lot from other neighborhoods,
or disturbing the neighbors with loud music. Any
of these could be a solid ground for revocation;
and although if there is such a ground the
authorities presumably will revoke the license--
eventually--the procedures for revocation that
comport with due process often take a long time
to complete. Their length is a practical reason
for wanting to have a substitute mode of
revocation that is not encumbered by procedural
safeguards. See Statement of Sen. Marovitz, in
Transcript of General Assembly, July 1, 1989, at
3 ("you may have a particular bar, a particular
tavern that’s causing a tremendous problem. I
have a lot of them in my district, where you have
drug dealers, where you have prostitution, where
you have knifings and shootings. We have tried
and tried and tried before the Liquor Commission
of the City of Chicago to close those taverns.
We’ve been turned away every time"). But the
guarantee of due process would mean little if it
could be dispensed with upon a showing, which
could be made in every case, that a remedy that
provides no procedural safeguards at all will be
faster and cheaper than one that provides some.
The costs of procedural safeguards are only half
the formula that the Supreme Court set forth in
Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976),
for determining the minimum requirements of due
process. The other half is the benefits in
preventing error. The challenged statute contains
no safeguards against error.
A vote by neighbors to decide whether a
particular person or firm is a bad apple
exemplifies "popular justice," the mode by which
an Athenian jury, without deliberation, without
instruction or control by professional judges,
without possibility of correction on appeal, and
without the assistance of lawyers, condemned
Socrates. The revocation of the liquor license of
the Tequila Roadhouse is not to be compared with
the death sentence imposed on Socrates. Yet
Socrates received more due process than the
Tequila Roadhouse, since he had an opportunity to
argue his innocence to the jury and the jury
convicted him of a crime, albeit a vague one
(corrupting the morals of the young men of Athens
by questioning pious certitudes). There is no
standard to guide voters in deciding whether to
void a liquor license. We need not attribute
frivolous motives to them. Yet just as we do not
trust jurors to deliberate without instructions,
so we should be concerned that an electoral free-
for-all might result in serious errors that a due
process hearing would avert. The voters might be
stirred to action by an influential resident of
the precinct who was angry about being refused
service because he was inebriated. They might be
outraged because one of the taverns in the
precinct had topless waitresses--or refused to
have them. They might be victims of a campaign of
disinformation by a competing tavern--a
possibility that concerned Representative
Matijevich, who in Transcript of General
Assembly, June 27, 1989, at 137-38, observed:
"let’s say that in a precinct there are two
establishments, only two establishments. And one
establishment may have some political pull. . . .
[Y]ou may have that establishment lobbying in an
election to get the other competition out of
business for no other reason than he likes to get
all the business for himself"). They might be
induced to vote against a tavern by a precinct
captain who was on the outs with the tavern’s
owner. The possibilities are myriad and some of
them are unsavory, and against them the procedure
established by the challenged statute offers no
protection at all.
This will not bother anyone who believes that
the democratic process should be left completely
unhindered by law. But that is not the theory of
the Constitution. An individual’s life, liberty,
and property are not held or enjoyed at the
sufferance of the electorate. When the Illinois
legislature stepped from allowing a precinct’s
voters to vote the precinct dry to allowing the
voters to expel a particular disfavored licensee,
it crossed the line that protects property
holders from being deprived of their property
without due process of law. Although taverns are
not the most popular businesses in some quarters,
no principle is suggested that would limit the
power claimed by the City to the sale of
alcoholic beverages. Its position casts a long
shadow over all property rights. We pointed out
earlier that the state has not attempted to exert
its plenary powers under the Twenty-First
Amendment to curtail the abuses to which the sale
of alcoholic beverages may give rise.
Nothing that we have said is intended to suggest
that referenda are unconstitutional. The
Constitution does not forbid direct democracy.
City of Eastlake v. Forest City Enterprises,
Inc., 426 U.S. 668 (1976), holds that voters can
be empowered to act as legislators--but that is
provided that the action they are empowered to
take is legislative. City of Eastlake was a
zoning case, and zoning is on the legislative
side of the legislative/judicial divide. River
Park, Inc. v. City of Highland Park, 23 F.3d 164,
166-67 (7th Cir. 1994); Coniston Corp. v. Village
of Hoffman Estates, 844 F.2d 461, 468-69 (7th
Cir. 1988). This is not only because "the
decision whether and what kind of land uses to
permit does not have the form of a judicial
decision. The potential criteria and
considerations are too open-ended and ill-
defined." Id. at 468. It is also because zoning,
like ordinary legislation, operates
prospectively. The lawful destruction of existing
property is the domain of nuisance law, a branch
of tort law that is applied by courts to specific
offending properties. As Justice Holmes, writing
for the Court in Prentis v. Atlantic Coast Line
Co., 211 U.S. 210, 226-27 (1908) (citations
omitted), pointed out, "A judicial inquiry
investigates, declares, and enforces liabilities
as they stand on present or past facts and under
laws supposed already to exist. That is its
purpose and end. Legislation, on the other hand,
looks to the future and changes existing
conditions by making a new rule, to be applied
thereafter to all or some part of those subject
to its power. . . . Proceedings legislative in
nature are not proceedings in a court, . . . , no
matter what may be the general or dominant
character of the body in which they may take
place. That question depends not upon the
character of the body, but upon the character of
the proceedings." See also New Orleans Public
Service, Inc. v. Council of City of New Orleans,
491 U.S. 350, 370-71 (1989).
The statute that is challenged in this case does
not authorize the voters to determine, in the
manner of zoning, where liquor may be sold (a
possible interpretation of Philly’s); it
authorizes them to evict a particular seller, as
if they were the judges of a housing court or a
judge asked to abate a nuisance. Cf. Nasierowski
Bros. Investment Co. v. City of Sterling Heights,
949 F.2d 890, 895-96 (6th Cir. 1991); Harris v.
County of Riverside, 904 F.2d 497, 501-04 (9th
Cir. 1990). The vote is limited to a specific
street address currently occupied by a licensee,
235 ILCS 5/9-2; it does not prevent the sale of
liquor next door. In the typical zoning case
prospective uses of property are in issue, and
decision making is likely to be based on general,
legislative grounds. Voters are likely to
consider whether they want a building "like that"
in their neighborhood. The primary factor in a
targeted liquor referendum is bound to be, in
contrast, the past behavior of the tavern, for
the voters have already decided to permit
businesses "like that" in the neighborhood.
(Remember that they could vote the precinct dry
if they wanted.) Something has forced them to
change their minds about this tavern, and the
only plausible explanation is the tavern’s
behavior, but the evaluation of past behavior for
conformity to norms of proper conduct is the
domain of adjudication.
So the issue "is not too much delegation, but
delegation to the wrong body: delegation of
judicial decision-making, for example, to people
who are not judges." United Beverage Co. of South
Bend, Inc. v. Indiana Alcoholic Beverage Comm’n,
760 F.2d 155, 159 (7th Cir. 1985); see also City
of Eastlake v. Forest City Enterprises, Inc.,
supra, 426 U.S. at 678; Seattle Title Trust Co.
v. Roberge, 278 U.S. 116, 121-22 (1928); Eubank
v. City of Richmond, 226 U.S. 137 (1912); Jones
v. Bates, 127 F.3d 839, 858 n. 25 (9th Cir.
1997); General Elec. Co. v. New York State Dept.
of Labor, 936 F.2d 1448, 1454-55 (2d Cir. 1991);
Scott v. Greenville County, 716 F.2d 1409, 1420
n. 16 (4th Cir. 1983). That is what Illinois has
done and what the due process clause prohibits.
Reversed.
BAUER, Circuit Judge, dissenting. In order to
better understand the ramifications of the
majority opinion, a bit of urban reality is, I
believe, in order.
The residents of the City of Chicago, 2,700,000
or more, live in neighborhoods characterized by
their homogeneity. The residents share, in
general, the same socio-economic status, the
homes are strikingly similar in configuration and
costs, and the blue-collar/white-collar
employment of the workers are usually the same.
Racial and/or ethnic backgrounds tend to be
similar. Although neighborhoods have no
recognized political existence, they are there,
with or without political acknowledgment, and it
is there that Chicagoans live, marry, raise
families, socialize and die. Most of the
residents lack real mobility of choice;
affordable housing near or convenient to
employment or transportation is what they must
settle for. Stability of neighborhood and safety
are their primary objectives. Many have no choice
at all; public housing or subsidized housing
dictates where they live.
What businesses are in or around these
neighborhoods are there because the zoning laws
and licensing regulations, planned on a city-wide
basis, permit their existence. (Of course, the
business investors look for areas of opportunity
and that plays a major role in what businesses
exist side by side with the residential
buildings.)
Barber shops, grocery stores, convenience
markets, drugstores, restaurants, tailor shops,
all these exist in the neighborhoods and add to
the livability of the area. One business,
however, is acknowledged to have a greater impact
on the tone of a neighborhood than any other--the
liquor business.
For purposes of this case, we need not think in
terms of liquor stores but only those licensed
premises which purvey drinks by the glass. They
include most fine restaurants, many family or
ethnic restaurants, and neighborhood saloons;
those places that Chicago historians called the
working man’s social clubs. It is here that the
people meet, not just to drink, but to eat, to
celebrate birthdays, anniversaries and other
special occasions and to socialize with people of
the neighborhood.
When Illinois exercised its right to control (or
ban altogether) the sale of liquor, it opted to
create a system of local-option rules. The
decision as to whether to permit liquor sales, to
define how many and where such emporiums could
exist was left to cities and villages and even
counties for the unincorporated areas. Moreover,
the towns and villages, many with a smaller total
population than a Chicago precinct, can determine
the character of the liquor emporium. They can,
for instance, regulate the type of entertainment
a licensee can offer the public, the hours and
days of purveying, or even restrict the sale of
liquor to hotels or places that serve food.
Because of its size, however, Chicago
(technically, cities of a certain size that only
Chicago meets) is treated differently.
Recognizing that neighborhoods most closely
resemble small towns, the legislature sought to
give some local control.
There is, however, as we have said, no political
entity called a "neighborhood"; its closest
parallel is the precinct. A "precinct" is not a
definable graphic area; it is an entity that
exists only to facilitate voting. It is created
by the city in its establishment of places to
vote; ideally, each precinct will contain 400
registered voters. When the number of registered
voters goes much above or below that figure, the
precinct boundaries must, by law, be redrawn.
This to ensure a conveniently close place for
voters to exercise their franchise and to reduce
the possibility of long lines of voters waiting
for a vacant polling booth.
Of course, in addition to the 400 registered
voters, the precinct will contain many more
people: those ineligible to vote because of their
minority, non-citizens, those who have not
established sufficient length of residency and
(if voter registration proponents are to be
believed) a large number of people, otherwise
eligible, who have not bothered to register to
vote. In short, a "precinct" is close to being a
neighborhood or a small town and it has a
political existence. And local option of sort is
granted to these entities.
As I said, it is usually to the economic self-
interest of a license holder to maintain cordial
and friendly relations with the people of the
area where his establishment is located; they are
a source of business to him. There are some
establishments that attract patrons from areas
distant from the precinct, either because of a
particular form of entertainment, glowing
restaurant reviews, proximity to sports arenas,
etc. (The people living near sports arenas show
an extraordinary patience with absurd activities
of the fans, but it is also true that the sports
bars make extraordinary efforts to keep the
locals happy. Properly speaking, the two groups
establish a mutually advantageous economic truce.
The saloons and restaurants are sources of
employment--as in the area itself--and the locals
provide some patronage during off-season months).
As to the premises that cater to different
clientele, striptease fans, loud music fans,
youth groups, bikers--not to mention premises
that cater to the drug culture or other illegal
activities--these groups try to keep the
irritation level of the activity to a minimum
because they know about the local-option laws.
And if enough of their neighbors get pushed hard
enough, they can respond by eliminating the
problem through the ballot box.
To suggest, as the majority opinion does, that
a voter who is disgruntled by the refusal of a
bartender to serve him while inebriated can
eliminate a license, is to ridicule the
intelligence of the voters. To imagine that such
a malcontent could convince a majority of the
voters in a precinct (or even the smaller number
called for to place the issue on the ballot) to
take up the cudgel of the ballot on such a silly
crusade is, itself, ridiculous.
The fact is the motivation behind such a
difficult task as securing signatures on a
petition and votes in the ballot box is one the
majority should well understand: cost-benefit.
The term may not be used but, as we know, it is
the real motivation behind most human activity. I
should think that this constitutionally permitted
reason should be both understood and applauded.
As we have seen, most liquor license holders are
benign influences in the areas around them, even
serving to enhance the livability and property
values of the neighborhood. Nevertheless, under
the original rule of local option, the precinct
had only one choice: vote entirely dry or put up
with the one or more festering sores.
The right of the precincts to vote entirely dry
was endorsed by this court (indeed, by the author
of the majority opinion in the instant case). And
if there is only one such establishment in the
precinct and only one possible target of the
vote-to-go-dry, it still passes constitutional
muster. Apparently, the constitutional rights of
an individual liquor license holder increase with
the number of licenses in a precinct; they can
take shelter in the acceptance of their good
brothers-in-business and thumb their noses at the
legitimate wishes of the residents of the
neighborhood.
The legislature recognized the unfairness of
this all-or-nothing approach to the wet/dry
dilemma when they amended the local-option law to
permit a referendum on the issue of whether a
single (or, I assume, more than one) liquor
establishment shall continue to be licensed in
the precinct. This is so that the businesses
which have decent regard for the preservation of
the community standards can remain and their
property rights not scuttled by a bad apple in
the liquor dispensing barrel.
The majority opinion agrees with the Supreme
Court that the Constitution does not forbid
direct democracy. What seems to be the theme of
the opinion is that, under the local-option rule,
voters can exercise their franchise without
"standards to guide the voters in deciding
whether to void a liquor license." One assumes by
this, "judicial guides". And, of course, such is
the price of democracy; the voters may make a
choice that their betters may not approve.
The majority opinion points to the use of
judicial instructions in jury trials and
describes the referendum (or election) process as
an "electoral free-for-all" that might result "in
serious error". Just so. The process of
democratic government does not rely on stern
lectures from the highly educated. The least of
us has the right to express himself or herself in
the ballot box without deference to the ruling
classes. It is also of interest to note that a
precinct, if so inclined, can, as this court (and
the author of the instant majority opinion) has
ruled, snuff out the license rights of one, or
any number of, licensees in the precinct without
the splendid guidance of court or city fathers,
providing that all the licensees in the precinct
are eliminated. Why is the same use of the ballot
box constitutionally infirm if the licensees
affected are fewer than all of those in the
precinct? If "guidance" is required to make the
decision of the voters constitutionally kosher,
why not require that such guidance (whatever that
might be!) be required for all referenda that
affect a property right (bond issues, annexation,
establishment of school districts and mosquito
abatement districts, etc.)?
It is not accurate to say, as the majority
opinion does, that, before a referendum is
undertaken "the voters have already decided to
permit businesses" like that "in the
neighborhood" because they could vote the
precinct dry if they wanted to. What is more
accurate is that they made no decision at all;
the city makes it for them. It is probably also
safe to say that not one voter in fifty even
knows about the local-option rule and only a
crisis in the neighborhood eventually may serve
to enlighten them--and then after every other
avenue to correct a problem involving a liquor
licensee (petitioning the city liquor commission,
calling the police, calling the alderman, etc.)
has failed.
The deprivation of property, discussed by the
majority, occurs in exactly the same way whether
the voters wipe out all of the liquor vendors in
a precinct or a single vendor. I fail to see how
a total deprivation of "property rights" that
affects two or more owners is more constitutional
than the same action which affects only one
liquor emporium.
It is worthwhile considering how much trouble
such a referendum is to the people of the
precinct. First, to focus the residents on the
way to solve the problem (I’m willing to assume
the existence of the problem and knowledge of its
existence among the neighbors), then to secure
sufficient signatures to get the matter placed on
the ballot, and then to campaign successfully
enough to get a majority of the voters to vote
against an existing business. The effort involved
and the work entailed should at least indicate to
us the incredible problem the licensee must be
causing. And it is a fact that, like Socrates,
the liquor dispenser has an opportunity to
present his defense to the jury (i.e., the
voters); he can campaign as hard against the
referendum as his opponents argue for it; it
might even convince him to reform before the vote
and become a good neighbor.
I believe that the legislature of Illinois and
its court system can protect the rights of its
citizens in the field of liquor control and
neighborhood safety. If it is constitutionally
proper for the voters of a precinct to ban the
only bar in the area, or all the bars in the
neighborhood, I cannot believe that it is
constitutionally improper for the legislature to
authorize, and the voters to exercise, a right to
prohibit the operation of a particular liquor
license. There is no constitutional right to be
in the liquor business and I cannot believe that
the authorization of a referendum as to whether a
particular saloon shall be permitted in a
neighborhood is an invasion of a constitutional
right. I suspect it depends on whose
constitutional property rights should concern us.
I think the rights of the people who live in the
area should have our deepest concern.
I would affirm the dismissal of the case.