In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3709
W ILLIAM A. B RANDT, JR.,
Plaintiff-Appellant,
v.
V ILLAGE OF W INNETKA, ILLINOIS,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 588—Robert M. Dow, Jr., Judge.
A RGUED M AY 21, 2010—D ECIDED JULY 20, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
T INDER, Circuit Judges.
E ASTERBROOK , Chief Judge. In 1996 William A. Brandt,
Jr., held a fundraising event for President Clinton at
his house in Winnetka, Illinois. The Secret Service
asked Winnetka to provide assistance to enhance the
President’s security. The expense of complying with
that request led the Village to enact in 2000 an ordinance
requiring people whose events occasion the need for
2 No. 09-3709
such services to bear their costs. Chapter 5.66 of the
Winnetka Code imposes on the events’ sponsors the cost of
all “special services,” such as extra police, closing streets,
and rerouting traffic. The ordinance has exceptions—
official presidential visits, some gatherings open to the
public without charge, and events sponsored by the
Village—but private invitation-only receptions such as
most political fundraisers are subject to this fee.
Since 2000 many political officials and candidates for
office have been to Brandt’s home. Senator Hillary
Clinton was there in 2005 and was to come again in
2008, though the latter event was cancelled after the
Democratic Party chose a different presidential candi-
date. Brandt hosted fundraising events for Lisa Madigan,
the Attorney General of Illinois, and Senator Al Franken
of Minnesota. Many other political officials and candidates
for office have enjoyed Brandt’s hospitality, and his
money-raising prowess, since the Village enacted its
ordinance. He has not been asked to pay one cent for
special services. The Village has sent only three bills on
account of political events, all to residents other than
Brandt: one for a visit by President Bush in 2004, and two
for visits by First Lady Laura Bush. The bill for President
Bush’s event was some $75,000, after requests by the
Secret Service led the Village to put most of its police
force in the field (at overtime rates) and ask for assist-
ance from neighboring municipalities. The Republican
National Committee picked up the tab. The visits by
Laura Bush led to bills of $6,500 and $2,500; a political
committee paid one of these and perhaps both (the
record is unclear).
No. 09-3709 3
Although he has never been billed for any special
services, Brandt filed this suit under 42 U.S.C. §1983 and
asked the district court to issue a declaratory judg-
ment that the ordinance violates the first amendment by
“chilling” his willingness to invite political officials and
candidates to the Village. Brandt contends that he uses
his home not only to raise money but also to inform
guests that he supports the candidates’ political positions.
He has not identified any person whom he would have
invited but for the risk that he would be hit with a bill
that the candidate’s committee wouldn’t pay (recall that
he invited Hillary Clinton while she was running for
President, when the Secret Service was likely to ask the
Village to provide special services), but he insists that
there is bound to be someone in that category eventually.
He also contends that the ordinance discriminates on the
basis of viewpoint, because the more controversial the
candidate’s political speech the higher the costs of crowd
control are likely to be. That creates a form of hecklers’
veto, Brandt maintains. See Forsyth County v. Nationalist
Movement, 505 U.S. 123 (1992). The district court doubted
that Brandt suffers any injury, however, and dismissed
the suit for want of standing. 2009 U.S. Dist. L EXIS 91263
(N.D. Ill. Sept. 30, 2009).
The district court’s opinion has three themes: that
Brandt will not be injured; that how the ordinance will
work for Brandt and the candidates he favors is uncer-
tain, making the dispute unripe; and that it is unwise to
exercise discretion to issue a declaratory judgment that
may occasion premature constitutional adjudication. The
first of these themes concerns the existence of a case
4 No. 09-3709
or controversy under Article III; the second and third do
not, and concern the appropriate exercise of discretion
rather than the limits of judicial power. See National Park
Hospitality Ass’n v. Department of Interior, 538 U.S. 803
(2003); Wilton v. Seven Falls Co., 515 U.S. 277 (1995). Al-
though more of the district judge’s opinion is devoted
to discussing when and how discretion should be exer-
cised than to discussing the existence of standing, the
judgment states that the suit is dismissed for lack of
jurisdiction. That was a misstep.
Standing exists when the plaintiff suffers an actual or
impending injury, no matter how small; when that
injury is caused by the defendant’s acts; and when a
judicial decision in the plaintiff’s favor would redress
that injury. See, e.g., Summers v. Earth Island Institute, 129
S. Ct. 1142 (2009); Steel Co. v. Citizens for a Better Environ-
ment, 523 U.S. 83, 102–04 (1998). Brandt is a political
promoter; his home in Winnetka has hosted guests
whose protection led to “special services” within the
scope of the ordinance. Had it been in force when
President Clinton was there in 1996, Brandt would have
received a demand for payment. Senator Clinton would
have come in 2008 had she been nominated for President.
Although a court cannot be sure that Brandt will again
have a guest whose protection detail will ask the Village
for “special services,” the probability is materially
greater than zero.
Injury need not be certain. Any pre-enforcement suit
entails some element of chance: perhaps the plaintiff will
desist before the law is applied, perhaps the law will be
No. 09-3709 5
repealed, or perhaps the law won’t be enforced as written.
But pre-enforcement challenges nonetheless are within
Article III. See Abbott Laboratories v. Gardner, 387 U.S. 136
(1967); Pierce v. Society of Sisters, 268 U.S. 510 (1925); 520
South Michigan Avenue Associates, Ltd. v. Devine, 433 F.3d
961 (7th Cir. 2006). See also Alliant Energy Corp. v. Bie, 277
F.3d 916 (7th Cir. 2002); Daniel A. Farber, Uncertainty as a
Basis for Standing, 33 Hofstra L. Rev. 1123 (2005). And
because the ordinance imposes the fee on the event’s
sponsor, the fact that a candidate’s political committee
may pay does not eliminate the injury. The committee
has no legal obligation; and, if it does pay, this reduces
the net proceeds of the fundraiser and thus diminishes
the candidate’s willingness to visit Winnetka and curtails
the number of occasions on which Brandt can voice
his political opinions to visitors in his home. Causation
and redressability also are established, so Brandt has
standing to sue.
But the district judge did not abuse his discretion when
concluding that adjudication would be premature. (Abuse
of discretion is the standard of appellate review when a
district court decides that a dispute’s resolution should
be postponed and on that ground declines to issue a
declaratory judgment. See Envision Healthcare, Inc. v.
PreferredOne Insurance Co., 604 F.3d 983 (7th Cir. 2010).)
Courts should not issue declaratory judgments until the
dispute is ripe, see MedImmune, Inc. v. Genentech, Inc.,
549 U.S. 118, 127 (2007), and must avoid unnecessary
constitutional adjudication.
Brandt describes his challenge as one to the ordinance as
applied—for as written the ordinance does not discrimi-
6 No. 09-3709
nate on account of any speaker’s viewpoint. There is no
reason why a municipality can’t bill householders and
others whose activities make extra demands on munic-
ipal services. Brandt has every right to support any candi-
date he pleases and express his own political views, but
no right to have his neighbors underwrite the ex-
pense. The ordinance is not limited to political speech;
it also applies to movie-makers who want to use the
Village as a set, sponsors of sporting events, and addi-
tional persons whose activities require the police to close
streets or provide other “special services.” So Brandt
was prudent to concede that this ordinance cannot be
declared invalid “on its face” (which is to say, in all
possible applications).
Yet 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. Cf. Lear Corp. v. Johnson Electric
Holdings, Ltd., 353 F.3d 580, 583 (7th Cir. 2003) (court
should not issue a declaratory judgment resolving a
dispute about indemnity under an insurance contract
until it has been established how much the insured must
pay, and for what acts). Predictions, such as Brandt’s
proposition that bills are bound to be higher when the
candidate’s views are more contentious, need to be
proved. We cannot take judicial notice that the Secret
Service requires more local law-enforcement assistance
as a President’s popularity falls or a candidate for
President struggles in the polls. Indeed, this record does
not contain any evidence that public opposition to a
President’s (or presidential candidate’s) political views
No. 09-3709 7
has the slightest effect on the cost of the work that the
Secret Service asks a municipality to perform. Nor
does the record show that any candidate has declined
Brandt’s invitation because Winnetka’s ordinance
reduces the net proceeds of political fundraisers. The
Republican National Committee paid the bill for President
Bush’s fundraiser in 2004 but has not joined this suit,
nor has any other political organization intervened as a
plaintiff. The district court did not abuse its discretion
in thinking that this challenge is too abstract to warrant
constitutional adjudication. (Commodity Trend Service,
Inc. v. CFTC, 149 F.3d 679 (7th Cir. 1998), on which Brandt
relies, dealt with a pre-enforcement challenge to a busi-
ness regulation, where, as in Abbott Laboratories, enforce-
ment was highly probable and the effects much easier
to anticipate than those of Winnetka’s ordinance.)
The judgment of the district court is modified to provide
that the suit is dismissed in an exercise of the court’s
discretion not to issue a declaratory judgment, and as
modified the judgment is affirmed.
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