Greater Chicago Combine & Center Inc. v. City of Chicago , 431 F.3d 1065 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1271
GREATER CHICAGO COMBINE AND CENTER, INC.,
an Illinois not-for-profit corporation,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 5429—Harry D. Leinenweber, Judge.
____________
ARGUED OCTOBER 28, 2005—DECIDED DECEMBER 22, 2005
____________
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. The City of Chicago enacted an
ordinance that prohibited the keeping of pigeons in most
residential areas of the city. An organization of homing
pigeon keepers, known as the Greater Chicago Combine and
Center, Inc., sued the city claiming that the ordin-
ance violated the Fourteenth Amendment of the United
States Constitution. The district court granted the city
summary judgment. We affirm.
2 No. 05-1271
I.
In September 2003, Chicago’s city council passed the
“Restrictions on Pigeons” ordinance in response to citi-
zen complaints about feathers, droppings, odor, and
noise (cooing) generated by pigeons housed in residential
areas (i.e., coops in homes, backyards, and garages). The
council also enacted the ordinance due to public health
concerns (e.g., disease).
Specifically, the ordinance, Chicago Municipal Code § 7-
12-387, prohibits the keeping of pigeons within residen-
tial districts. Pursuant to § 387(b), it is “unlawful for any
person to import, own, keep or otherwise possess any
live pigeon within any area designated as a residence under
the Chicago Zoning Ordinance” except for “transporting a
live pigeon through a residential district, if the pigeon is
caged during transport and not released in a residential
district.” In addition, § 387(c) makes it “unlawful for any
person to construct or maintain any coop or cote that is, or
may be used for the storage, maintenance or sheltering of
any live pigeon within” the aforementioned residential
areas. By its terms, the ordinance does not apply to non-
residential areas, such as those zoned commercial or
industrial.
Under § 387(e), violations of the ordinance are treated as
a public nuisance. As such, violations are abated in accor-
dance with the notice and other procedures set forth in
Chicago Municipal Code § 7-28-010. Section 387(f) sub-
jects violators to fines ranging from $100 to $1,000 or jail
time up to six months per offense. Each day a violation
continues is deemed a separate offense.
Prior to this ordinance, the city did not restrict the keeping
of pigeons, and a number of city residents housed pigeons
No. 05-1271 3
on their property. Among those keeping pigeons were
members of a non-profit organization called the Greater
Chicago Combine and Center, Inc. (“GCCC”). According to
GCCC, its members raise, train, and breed homing pigeons
for educational purposes.
The anti-pigeon ordinance went into effect on January 1,
2004. At that time, the ordinance contained an exemption
for educational, medical, scientific, and zoological purposes.
Thus, under this exemption in § 387(d), a pigeon could be
kept in a residential area if it were kept for one of the four
enumerated purposes and if its owner obtained a license.
GCCC members in the city’s residential areas seized on
the educational exemption to continue their homing pi-
geon pursuits. Viewing this development as an unin-
tended “loophole,” the city council amended the exemption
in May 2004. It replaced § 387(d)’s broad language exempt-
ing the four aforementioned purposes with narrower
language exempting two specific sites: the Lincoln Park Zoo
and the zoo at Indian Boundary Park. Other than those two
zoos, pigeons could no longer be kept in residential areas
for any purpose.
Later in that same month, the city council amended the
ordinance a second time. This amendment exempted two of
the city’s fifty wards (the 32d and 47th wards) from the
residential pigeon ban. The aldermen representing these two
wards initiated this amendment. The record does not reveal
the precise reason that these two particular wards were
exempted, but presumably the aldermen were responding
to pigeon-keeping constituents.
With the educational exemption repealed, GCCC mem-
bers in residential areas of the other forty-eight wards no
longer had a plausible means of keeping their pigeons and
4 No. 05-1271
simultaneously complying with the ordinance. Conse-
quently, in August 2004, GCCC sued the city on behalf of its
affected members. GCCC claimed that the ordinance
violated its affected members’ equal protection rights under
the Fourteenth Amendment. The complaint specifically
claimed that the ordinance “violates the equal protection
clause because the classifications are disparate in that they
allow certain residents to continue to harbor hom-
ing pigeons within the city of Chicago.” The complaint
also included a substantive due process claim under the
Fourteenth Amendment as well as a supplemental state law
claim.1
With the complaint, GCCC filed a motion for a prelimi-
nary injunction. Resting primarily on the two-ward exemp-
tion, the district court granted the motion in late August.
The district court vacated the injunction in September on a
procedural ground, but, at the district court’s request, the
city agreed to voluntarily refrain from enforcing the ordi-
nance until the matter was resolved.
In apparent response to GCCC’s equal protection
claims, the city council passed another amendment in
November, which repealed the two-ward exemption.
Therefore, as of this most recent amendment to the ordi-
nance,2 all residential areas of the city (save for the two
1
GCCC’s only claim under state law was that the city, in passing
the ordinance, exceeded its “home rule” power under the Illinois
Constitution. See City of Burbank v. Czaja, 769 N.E.2d 1045, 1051
(Ill. App. Ct. 2002). As indicated below, GCCC does not pursue
this claim on appeal.
2
In its current form, the ordinance reads as follows:
Restrictions on pigeons. (a) For purposes of this section only
(continued...)
No. 05-1271 5
zoos) are equally subject to the pigeon-keeping ban. Non-
residential areas remain ban-free.
(...continued)
the following definition applies: “Pigeon” means any live
bird of the Family Columbidae.
(b) It shall be unlawful for any person to import, sell, own,
keep or otherwise possess any live pigeon within any area
designated as a residence district under the Chicago Zoning
Ordinance. Nothing in this subsection prohibits any person
from transporting a live pigeon through a residential district,
if the pigeon is caged during transport and not released in a
residential district.
(c) It shall be unlawful for any person to construct or main-
tain any coop or cote that is, or may be used for the storage,
maintenance or sheltering of any live pigeon within any area
designated as a residence district under the Chicago Zoning
Ordinance.
(d) The provisions of subsections (b) and (c) of this section
shall not apply to the keeping of pigeons as part of an exhibit
at either Lincoln Park Zoo or the zoo at Indian Boundary
Park.
(e) Violation of any portion of this section shall constitute a
public nuisance, which may be abated pursuant to the
procedures described in section 7-28-010. In addition to any
fine or penalty, an amount equal to three times the cost or
expense incurred by the city in abating a nuisance may be
recovered in an appropriate action instituted by the corpora-
tion counsel.
(f) Any person who violates any provision of this section
shall be fined not less than $100.00 nor more than $1,000.00
or may be incarcerated for a period not to exceed six months,
or both. Each day that a violation continues shall constitute
a separate and distinct offense.
Chicago Municipal Code § 7-12-387 (amend. Nov. 3, 2004).
6 No. 05-1271
Ultimately, the city moved for summary judgment. In
December, the district court granted that motion, reject-
ing GCCC’s federal and state claims. GCCC appeals, raising
only its federal equal protection and substantive due
process claims.
II.
Before addressing GCCC’s arguments on appeal, we
turn to a jurisdictional matter raised at oral argument.
GCCC brought this suit as a federal question case. One
component of federal question jurisdiction is “substantial-
ity.” Gammon v. GC Servs. Ltd. P’ship, 27 F.3d 1254, 1256
(7th Cir. 1994); Ricketts v. Midw. Nat’l Bank, 874 F.2d 1177,
1180-81 (7th Cir. 1989). That is, for subject matter jurisdic-
tion to exist in such a case, the face of the complaint must
demonstrate that a claim under the Constitution or other
laws of the United States is “sufficiently substantial.”
Gammon, 27 F.3d at 1256. As a result, if a federal claim is
“immaterial to the true thrust of the complaint and thus
made solely for the purpose of obtaining jurisdiction” or
if the federal claim is “ ’wholly insubstantial and frivo-
lous, ’ ” Ricketts, 874 F.2d at 1182 (quoting Bell v. Hood, 327
U.S. 678, 682-83 (1946)), then “the court does not have the
power to decide the case” and must dismiss the complaint
for lack of subject matter jurisdiction, Gammon, 27 F.3d
at 1256.
Since substantiality is a jurisdictional matter, the assess-
ment of whether a claim is insubstantial or frivolous is made
as of the time the lawsuit was initiated. See Hagans v. Lavin,
415 U.S. 528, 538-39 (1974) (“[J]urisdiction, a matter for
threshold determination, turned on whether the question
was too insubstantial for consideration.”); Mid-Am. Waste
No. 05-1271 7
Sys. v. City of Gary, 49 F.3d 286, 292 (7th Cir. 1995) (“Juris-
diction is established (or not) at the outset of a case.”);
Gammon, 27 F.3d at 1256; Ricketts, 874 F.2d at 1180-82. At the
outset of the present case, the city treated residents keeping
pigeons in two wards of the city differently than residents
keeping pigeons in the other wards of the city. GCCC based
its equal protection claim in part on this two-ward exemp-
tion, and the district court issued a preliminary injunction
primarily because of this two-ward exemption. Again, the
complaint specifically averred that the ordinance “violates
the equal protection clause because the classifications are
disparate in that they allow certain residents to continue to
harbor homing pigeons within the city of Chicago.” This
equal protection claim is sufficiently plausible to secure
subject matter jurisdiction for GCCC’s entire complaint; we
need not discuss the other constitutional allegations here.
See Rickets, 874 F.2d at 1182 (“If there is any foundation of
plausibility to the federal claim federal jurisdiction exists.”
(internal quotation omitted)); cf. Mid-Am., 49 F.3d at 292(district court’s grant of a TRO was one reason supporting
this court’s determination that a claim was not frivolous for
jurisdictional purposes). The fact that the city repealed
the two-ward exemption does not change this jurisdic-
tional inquiry. While the repeal diminished the strength
of GCCC’s equal protection claim, the repeal did not
“retroactively divest the court of jurisdiction.” Mid-Am., 49
F.3d at 292. Satisfied that GCCC secured federal question
jurisdiction at the outset and that we have the authority
to adjudicate this case, we turn to the merits.
III.
Our review of a district court’s summary judgment
decision is de novo. See Civil Liberties for Urban Believers
8 No. 05-1271
v. City of Chicago, 342 F.3d 752, 759 (7th Cir. 2003). Summary
judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c).
We begin with the standard by which the ordinance
should be reviewed, which is a matter the parties sharply
dispute. The city maintains that GCCC’s constitu-
tional claims should be subject to rational basis review,
which the district court applied. GCCC argues for a
higher standard, which it refers to as the substantial re-
lationship test.
GCCC’s argument for something greater than rational
basis review draws heavily from Illinois law. In other
words, GCCC wants us to look to Illinois law to deter-
mine the proper standard of review for GCCC’s federal
constitutional claims. To justify this state law approach,
GCCC declares in its appellate brief: “Judges in federal
court cases involving land use issues are compelled to
look to the law of the state of the property’s situs for
guidance.” GCCC supports this proposition with a single
case, Board of Regents of State Colleges v. Roth, 408 U.S. 564(1972). Unlike the present case, Roth was a procedural
due process case, which dealt with the issue of whether a
non-tenured professor had a property interest in con-
tinued employment with a state university (he did not).
Id. at 569, 576-78. GCCC hangs its hat on the following
passage from Roth: “Property interests, of course, are not
created by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or under-
standings that stem from an independent source such as
No. 05-1271 9
state law—rules or understandings that secure certain
benefits and that support claims of entitlement to those
benefits.” Id. at 577. Here, however, we are not dealing with
some abstract property rights claim. We do not have to
decide, for instance, if GCCC’s members have a property
interest in their residences or their pigeons (they obviously
do). Roth is therefore inapposite. While in a case like Roth it
is practical to look to state law to see if a property interest
exists, that principle does not extend, as GCCC would have
it, to a state standard of review dictating a federal standard
of review in federal court on a federal constitutional ques-
tion.
GCCC also bases its argument for a substantial rela-
tionship test upon Village of Euclid v. Ambler Realty Company,
272 U.S. 365 (1926), and its progeny. Euclid ruled that for an
ordinance to be held unconstitutional, the ordinance must
be “clearly arbitrary and unreasonable, having no substan-
tial relation to the public health, safety, morals, or general
welfare.” 272 U.S. at 395. While Euclid employed the words
“substantial relation,” it also used the words “clearly
arbitrary and unreasonable.” Moreover, prior to this
summarization passage, Euclid had already said that the
ordinance did not go beyond “the bounds of reason and
assume[ ] the character of a merely arbitrary fiat.” Id. at 389(internal quotation omitted). Also, Euclid had already
explained that the ordinance passed constitutional muster
because it “[bore] a rational relation to the health and safety
of the community” and, at that point, Euclid listed several
conceivable grounds for this rational relation. Id. at 391.
Keying off the words “clearly arbitrary and unreasonable”
as well as the other rational basis language in Euclid, our
precedent has routinely applied Euclid as a rational basis
rule for substantive due process and equal protection
challenges to municipal ordinances. See Pro-Eco, Inc. v. Bd.
10 No. 05-1271
of Comm’rs of Jay County, 57 F.3d 505, 514 (7th Cir. 1995)
(“We have interpreted ‘arbitrary and unreasonable’ to mean
invidious or irrational.” (citing Coniston Corp. v. Village of
Hoffman Estates, 844 F.2d 461, 467 (7th Cir. 1988); Burrell v.
City of Kankakee, 815 F.2d 1127, 1129 (7th Cir. 1987))); see also
Urban Believers, 342 F.3d at 766; Hager v. City of W. Peoria, 84
F.3d 865, 872 (7th Cir. 1996); Clark v. County of Winnebago,
817 F.2d 407, 408-09 (7th Cir. 1987). Accordingly, GCCC is
not entitled to a heightened, “substantial relationship”
review.
With that, we turn to GCCC’s substantive due process
claim. To be successful, GCCC must “demonstrate either
that the ordinance infringes a fundamental liberty interest
or that the ordinance is ‘arbitrary and unreasonable, hav-
ing no substantial relation to the public health, safety,
morals, or general welfare.’ ” Pro-Eco, 57 F.3d at 514 (quot-
ing Euclid, 272 U.S. at 395; citation omitted). (As indicated
above, the second alternative is a rational basis test.) The
adjective “fundamental” in this setting is reserved for
deeply-rooted, sacrosanct rights such as “the right of a
man and woman to marry, and to bear and raise their
children.” Brokaw v. Mercer County, 235 F.3d 1000, 1018 (7th
Cir. 2000). Raising homing pigeons is an entirely different
matter. It is not a fundamental right, as GCCC’s acknowl-
edges by its silence on this issue.
Thus reaching the second alternative of the inquiry,
“governmental action passes the rational basis test if a
sound reason may be hypothesized.” Pro-Eco, 57 F.3d at
514 (internal quotation omitted); see also Euclid, 272 U.S. at
388 (“If the validity of the legislative classification for
zoning purposes be fairly debatable, the legislative judg-
ment must be allowed to control.”); Clark, 817 F.2d at 409.
The city advances two reasons for its pigeon prohibition:
No. 05-1271 11
limiting interference with neighbors’ enjoyment of their
property and public health concerns. As the city’s rea-
sons are at least hypothetically rational justifications for
banning pigeons in residential areas, they are enough for the
city to survive this low level standard of review. While
housing pigeons in rural areas, for example, may be a
perfectly unobtrusive endeavor, it is at least conceivable that
the feathers, droppings, odor, and noise generated by kept
pigeons in tight, urban lots would be an untenable nuisance
to residential neighbors. See Euclid, 272 U.S. at 387-88 (“A
nuisance may be merely a right thing in the wrong
place,—like a pig in the parlor instead of the barnyard.”). It
is also, at a minimum, plausible that feeding and maintain-
ing pigeons in backyard coops would increase the public
health risks posed by rodents and disease. See Pro-Eco, 57
F.3d at 514 (“Concern for public health is a sufficient reason
on its face to pass the Euclid test.”). Consequently, the city
has a rational basis for its decision to ban the keeping of
pigeons in residential areas, and GCCC’s substantive due
process claim is at an end.
GCCC’s equal protection claim follows in much the
same manner. See, e.g., Pro-Eco, 57 F.3d at 514. GCCC
does not claim that its members are part of a particularly
“vulnerable group, racial or otherwise,” Hager, 84 F.3d at
872, also known as a “suspect class[,] whose different
treatment at the hands of the [city] would be subject to strict
or intermediate scrutiny.” Pro-Eco, 57 F.3d at 514. Therefore,
“the same test of rationality we used for analysis of [the]
substantive rights claim applies to its equal protection
claim.” Id. That is, “unless a statute classifies by race,
alienage, or national origin or impinges on fundamental
constitutional rights, the general rule is that legislation is
presumed to be valid and will be sustained if the classifica-
tion drawn by the statute is rationally related to a legitimate
12 No. 05-1271
state interest.” Urban Believers, 342 F.3d at 766 (internal
quotation omitted).
With the two-ward exemption repealed, the remain-
ing disparate classifications resulting from the ordinance are
residential versus non-residential and pigeons versus pets
that can cause unpleasant or unhealthy conditions
in a residential neighborhood. It is true that other ani-
mals make noise, leave droppings, and can be otherwise
unsavory. Nonetheless, without delving into the distinctions
between pigeons and dogs, for instance, we can put this
issue to rest by simply acknowledging that a city’s decision
to address a problem gradually is rational. See Vaden v.
Village of Maywood, 809 F.2d 361, 365 (7th Cir. 1987) (“A local
ordinance aimed at remedying a problem need not entirely
eliminate the problem. Instead, reform may take one step at
a time, addressing itself to the phase of the problem which
seems most acute to the legislative mind.” (internal quota-
tion omitted)). Similarly, a satisfactory reason for the
residential-only ban, as the district court pointed out, is the
reasonable belief that the need to protect the public against
the nuisance and adverse health concerns generated by
pigeons is attenuated in predominately commercial areas
(even though some people may live in such areas) but
warrants greater or immediate attention in residential areas
(where people predominately live). For these reasons,
GCCC cannot show that it is “wholly impossible” to relate
this governmental action to legitimate governmental
objectives, and, as a result, we cannot disturb the ordinance
under the equal protection clause. Urban Believers, 342 F.3d
at 766 (internal quotation omitted); see also Hager, 84 F.3d at
872; Pro-Eco, 57 F.3d at 514.
No. 05-1271 13
IV.
We are not unsympathetic to the GCCC members affected
by this restriction on how they use their property. At the
same time, we understand the concerns of their neighbors.
Balancing these competing interests, however, is not our
role. Under the governing rational basis standard of review,
federal courts do not review the wisdom or desirability of
fairly debatable legislative choices. See Heller v. Doe, 509 U.S.
312, 319 (1993); Euclid, 272 U.S. at 388. Accordingly, GCCC
is not entitled to relief on its substantive due process or
equal protection claim. The judgment of the district court is
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-22-05