520 South Michigan v. Devine, Richard A. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2479
520 SOUTH MICHIGAN AVENUE ASSOCIATES, LTD.,
doing business as The Congress Plaza Hotel
& Convention Center,
Plaintiff-Appellant,
v.
RICHARD A. DEVINE, State’s Attorney of Cook County,
Illinois; LISA MADIGAN, Attorney General of Illinois;
and ART LUDWIG, Director of the Illinois
Department of Labor,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 C 6400—Robert W. Gettleman, Judge.
____________
ARGUED DECEMBER 1, 2005—DECIDED JANUARY 10, 2006
____________
Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.
EASTERBROOK, Circuit Judge. For many years it has been
a crime in Illinois to employ a “professional strikebreaker.”
820 ILCS 30/2. (A “professional strikebreaker” is anyone
who repeatedly works during strikes. 820 ILCS 30/1(c). One
need not be a goon to fit the definition.) In 2003 the state
extended the prohibition to acquisition of strike-breaking
labor from any “day or professional labor service agency”.
2003 Ill. Laws 375. When that amendment to the Employ-
2 No. 05-2479
ment of Strikebreakers Act took effect on January 1, 2004,
workers of the Congress Hotel in Chicago were on strike,
and the Hotel was operating with replacement workers.
Soon the Illinois Department of Labor asked the Hotel for
information about the origins of its labor force. The civil
investigative demand invoked the Day and Temporary
Labor Services Act, 820 ILCS 175/1 et seq., which has its
own administrative apparatus. But as that Act also sup-
plies the definition of “day and temporary labor service
agency” for purposes of the Strikebreakers Act, see 820
ILCS 30/1(e), the Hotel concluded that it was in the
state’s cross-hairs and filed this suit under 42 U.S.C. §1983,
seeking a declaratory judgment that the Strikebreakers Act
is preempted. See Golden State Transit Corp. v. Los An-
geles, 493 U.S. 103 (1989); Machinists v. Wisconsin Employ-
ment Relations Comm’n, 427 U.S. 132 (1976). The district
court dismissed the complaint for want of jurisdiction,
holding that the Hotel’s inability to demonstrate that
criminal prosecution is “imminent” means that there is no
case or controversy under Article III of the Constitution.
520 South Michigan Avenue Associates, Ltd. v. Devine, 366
F. Supp. 2d 683 (N.D. Ill. 2005).
The district court did not explain the provenance of this
“imminence” requirement. Courts occasionally say that
one or another plaintiff has standing because a threat
of prosecution is imminent, but that is a far cry from
holding that only an imminent criminal prosecution
suffices. When the Supreme Court uses the word “immi-
nent” in describing the requisites of standing, it says that
the injury must be “actual or imminent, not ‘conjectural’ or
‘hypothetical.’ ” Whitmore v. Arkansas, 495 U.S. 149, 155
(1990), quoting from Los Angeles v. Lyons, 461 U.S. 95,
102 (1983). Standing depends on the probability of harm,
not its temporal proximity. When injury has occurred or
is likely in the future, the fact that state litigation may
be deferred does not prevent federal litigation now. The
No. 05-2479 3
Hotel’s use of replacement workers that may have been
referred by employment agencies is enough to show that
a genuine controversy exists, because it is caught be-
tween the need to comply with the state law and the
desire to reduce the cost of its operations. See Babbitt v.
United Farm Workers, 442 U.S. 289 (1979).
Courts frequently engage in pre-enforcement review
based on the potential cost that compliance (or bearing
a penalty) creates. Think of Pierce v. Society of Sisters, 268
U.S. 510 (1925), in which a private school obtained review
of a state law that required all youngsters to attend pub-
lic schools, even though the law would not take effect for
two years. Prosecution was hardly “imminent,” yet the
Court held that the school had standing to contest the
statute’s validity. Likewise the Court held in Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967), that drug
manufacturers could obtain judicial review of a regula-
tion whose effective date lay in the future. Costs that the
manufacturers would incur in preparing to comply (or the
legal risks they would incur in not doing so) supplied
standing, the Court held, and the case was ripe because the
regulation’s validity could be assessed without knowing the
precise means and expense of compliance. See also, e.g.,
Duke Power Co. v. Carolina Environmental Study Group,
Inc., 438 U.S. 59 (1978); American Booksellers Ass’n v.
Hudnut, 771 F.2d 323, 327 (7th Cir. 1985), aff’d mem., 475
U.S. 1001 (1986); Daniel A. Farber, Uncertainty as a Basis
for Standing, 33 Hofstra L. Rev. 1123 (2005). No one was at
imminent risk of prosecution in Buckley v. Valeo, 424 U.S.
1 (1976), or most of the later suits contesting campaign-
finance regulation. The catalog of decisions that conduct
review before a rule has gone into force, and hence long
before prosecution is “imminent,” is extensive.
If a criminal prosecution of the Hotel really were im-
minent, then a federal court might well abstain on comity
4 No. 05-2479
grounds—for the prosecution would offer the Hotel an
opportunity to present its legal arguments, and states
are entitled to insist that their criminal courts resolve
the entire dispute. See, e.g., Younger v. Harris, 401 U.S.
37 (1971). It is precisely because the State’s Attorney
does not promise to offer the Hotel a prompt opportunity to
resolve the dispute in state court that it is entitled to turn
to a federal tribunal. Otherwise the risk of prosecution, and
the costs of complying with or transacting around the
Strikebreakers Act, will continue. As the Supreme Court
observed in Babbitt, “[w]hen the plaintiff has alleged an
intention to engage in a course of conduct arguably [pro-
tected by federal law], but proscribed by a statute, and
there exists a credible threat of prosecution thereunder, he
should not be required to await a criminal prosecution as
the sole means of seeking relief.” 442 U.S. at 298.
Defendants offer an alternative ground of affirmance: that
the 2004 version of the Strikebreakers Act already has been
held to be preempted. See Caterpillar Inc. v. Lyons, 318 F.
Supp. 2d 703 (C.D. Ill. 2004). If defendants—the State’s
Attorney of Cook County, the Attorney General of Illinois,
and the Director of the Illinois Department of Labor, which
administers the Day and Temporary Labor Services
Act—had acquiesced in Caterpillar and represented that
they would not prosecute the Hotel under the Strikebreak-
ers Act, then there would indeed be no live controversy,
because there would not be a “credible threat of prosecu-
tion”. See Wisconsin Right to Life, Inc. v. Schober, 366 F.3d
485 (7th Cir. 2004). Cf. Kendall-Jackson Winery, Ltd. v.
Branson, 212 F.3d 995 (7th Cir. 2000). State officials made
exactly that promise in Wisconsin Right to Life, and we held
that it demonstrated the absence of any real dispute. But
our defendants did not make such a commitment in their
briefs, declined an opportunity to do so at oral argument,
and adhered to that position in a post-argument letter.
No. 05-2479 5
Decisions of district courts bind the litigants but have
no authoritative effect elsewhere in the circuit (or even
in the same district). See, e.g., Midlock v. Apple Vacations
West, Inc., 406 F.3d 453, 457-58 (7th Cir. 2005); Colby
v. J.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir. 1987). The
judgment in Caterpillar was not appealed, so it will not lead
to a decision with circuit-wide effect. None of the three
defendants in this litigation was a party to Caterpillar, and
none contends that as a matter of Illinois law a judgment
adverse to one State’s Attorney would bind any other.
States Attorneys operate within single counties; they are
state officials but are not “the” state, and each may operate
independently, which implies that none is bound by a
judgment against another. See People v. Gray, 214 Ill. 2d 1,
10, 823 N.E.2d 555, 560 (2005) (a defendant’s agreement
with one state’s attorney does not bind any other). Cf.
Staten v. Neal, 880 F.2d 962 (7th Cir. 1989). The Attorney
General does speak for the State of Illinois but cannot direct
the prosecution activities of the 102 States’ Attorneys. See
People v. Buffalo Confectionary Co., 78 Ill. 2d 531, 535-38,
401 N.E.2d 546, 549-51 (1980).
Federal officials are not bound by district judges’ (or even
circuits’) legal decisions; they must comply with the judg-
ment but need not apply the ruling more widely. As the
Court explained in United States v. Mendoza, 464 U.S. 154(1984), any other approach would prevent multiple circuits
from considering a question and thus impede
the development of federal law. Illinois appears to take
the same view for domestic purposes. Although People v.
Williams, 2005 Ill. App. LEXIS 1099 (2d Dist. Nov. 3, 2005),
could be understood as holding that a judgment against one
State’s Attorney binds others, it is hard to reconcile with
decisions such as Gray.
Perhaps more to the point, Caterpillar is a federal
judgment under federal substantive law, so its preclusive
effect is determined by federal rules. See Semtek Interna-
6 No. 05-2479
tional, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507
(2001); Stoll v. Gottlieb, 305 U.S. 165, 171-72 (1938). The
federal rule is that judgments do not block public officials
from seeking reconsideration of legal questions in future
suits. So Caterpillar lacks preclusive effect, and it has not
persuaded our defendants to surrender. If Caterpillar
had been a decision of the Supreme Court, then its authori-
tative force would obviate the need to worry about the scope
of preclusion. The Hotel would not require addi-
tional protection. See Lawson v. Hill, 368 F.3d 955 (7th Cir.
2004) (an injunction against prosecution under a state flag-
desecration statute that is obviously unconstitutional, given
United States v. Eichman, 496 U.S. 310 (1990), and Texas
v. Johnson, 491 U.S. 397 (1989), would be both unnecessary
and offensive to the state’s dignity). A decision of a single
district judge does not give the Hotel that kind of shelter,
and the defendants have declined to provide it voluntarily.
The Hotel therefore is entitled to decision on the merits.
Resolution should not be difficult. Machinists holds that
states are forbidden to regulate on any subject that fed-
eral labor law reserves for the play of economic forces. See
also Building & Construction Trades Council v. Associated
Builders & Contractors of Massachusetts, 507 U.S. 218, 227-
28 (1993); Wisconsin Department of Industry v. Gould Inc.,
475 U.S. 282 (1986). Under federal labor law, just
as workers are free to withhold their labor, so employers are
free to hire either temporary (see NLRB v. Mackay Radio &
Telegraph Co., 304 U.S. 333, 345 (1938)) or permanent
(NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967))
replacements—though employers can’t give them super-
seniority, compare NLRB v. Erie Resistor Corp., 373 U.S.
221 (1963), with Trans World Airlines, Inc. v. Flight
Attendants, 489 U.S. 426 (1989). The state’s effort to make
the hiring of replacement workers a crime is so starkly
incompatible with federal labor law, which prevails under
the Constitution’s Supremacy Clause, that we do not
No. 05-2479 7
understand how a responsible state legislature could pass,
a responsible Governor sign, or any responsible state official
contemplate enforcing, such legislation. States are entitled
to protect replacement workers against fraud, see Belknap,
Inc. v. Hale, 463 U.S. 491 (1983), but the Strikebreakers Act
does not do this; it is written as a substantive limit on the
employer’s use of a particular economic tactic. Unless there
is some way to support this law that state officials have yet
to suggest—either in Caterpillar or in this litigation—a de-
claratory judgment should be issued with dispatch.
The judgment is reversed, and the case is remanded
for decision on the merits.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-10-06