The Life Center, Inc. v. City of Elgin, Illinois

Filing 36

MEMORANDUM Opinion and Order signed by the Honorable Samuel Der-Yeghiayan on 8/8/2013: Defendants motion to dismiss 22 is denied and Plaintiffs motion for summary judgment as to Count I 19 is granted. The Defendant is permanently enjoined from enforcing the Temporary Use Provision. Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THE LIFE CENTER, INC.,

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Plaintiff,
v.
CITY OF ELGIN, ILLINOIS,
Defendant.

No. 13 C 1759

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant City of Elgin’s (City) motion to
dismiss, and Plaintiff The Life Center, Inc.’s (Life Center) motion for summary
judgment on Count I. For the reasons stated below, the City’s motion to dismiss is
denied and Life Center’s motion for summary judgment is granted.

BACKGROUND
Life Center contends that it operates TLC Pregnancy Services (TLC), a
religious-based organization that provides pregnant women with spiritual support,
free reproductive healthcare information, and limited ultrasound services. In
September 2010, TLC allegedly began providing services from a mobile facility in a
recreational vehicle (Mobile Facility) that TLC parked in a couple of commercial lots

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located in the City with the permission of the owners of such parking lots. Life
Center contends that “TLC’s volunteers aboard the [M]obile [F]acility provide a
message of hope by sharing the truth of God’s love for them and the life they can
find in and through Jesus Christ.” (Compl. Par. 13). Life Center contends that the
Mobile Facility provides religious literature to pregnant women and certain prenatal
services, such as ultrasound services. According to Life Center, TLC’s patients
consist mainly of young women without financial and emotional support. Life
Center contends that unlike the services at a permanent facility, the Mobile Facility’s
services are particularly visible and accessible to women, and that the Mobile
Facility provides a level of anonymity to women who may be unable or unwilling to
go to a permanent facility. Life Center explains that the ultrasound services provide
pregnant women with information that could identify health issues and potentially
save the lives of their unborn children.
According to Life Center, the City consistently approved temporary use
permits for TLC to operate in parking lots in the City until August 7, 2012, when a
City employee allegedly approached the Mobile Facility and told TLC to cease
operations. The City allegedly informed TLC that, based on a recent amendment to
the Elgin Municipal Code (Code) relating to temporary uses (Temporary Use
Provision), TLC could obtain permits for the Mobile Facility under the Temporary
Use Provision only for a limited number of days each year. There are also some
allegations in the complaint that the enforcement against Life Center was triggered at
the “behest” of a City councilperson. (Compl. Par. 25-26). The City also allegedly
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informed TLC that it had already used its permitted time for 2012.
Life Center includes in the complaint a facial challenge to the Temporary Use
Provision contending that it is unconstitutionally vague and overbroad (Count I); an
as-applied challenge to the Temporary Use Provision contending that it violates a
woman’s right to acquire useful knowledge and care for her unborn child (Count II);
an as-applied challenge to the Temporary Use Provision contending that it violates
an unborn child’s fundamental right to begin life with a sound mind and body (Count
III); an as-applied challenge to the Temporary Use Provision contending that it
interferes with Life Center’s rights under the Free Access to Clinic Entrances Act, 18
U.S.C. § 248 (Count IV); a facial and as-applied challenge to the Temporary Use
Provision contending that it violates Life Center’s federal constitutional rights to free
speech (Count V); an as-applied challenge to the Temporary Use Provision
contending that it violates Life Center’s state constitutional rights to free speech
(Count VI); an as-applied challenge to the Temporary Use Provision contending that
it violates Life Center’s federal constitutional rights to the free exercise of religion
(Count VII); an as-applied challenge to the Temporary Use Provision contending that
it violates Life Center’s state constitutional rights to the free exercise of religion
(Count VIII); an as-allied challenge to the Temporary Use Provision contending that
it violates the unreasonable limitation provision of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. (Count IX); an
as-applied challenge to the Temporary Use Provision contending that it violates the
substantial burden provision of RLUIPA (Count X); an as-applied challenge to the
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Temporary Use Provision contending that it violates the Illinois Religious Freedom
Restoration Act, 775 ILCS 35/1 et seq. (Count XI); and an as-applied challenge to
the Temporary Use Provision contending that it violates the Equal Protection Clause
of the Fourteenth Amendment (Count XII). On March 13, 2013, the court entered a
temporary restraining order (TRO) against the City and since the expiration of the
TRO, the parties have agreed to maintain the status quo. Life Center now moves for
partial summary judgment on Count I. The City moves to dismiss all claims.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) (Rule 12(b)(1)) requires a court to
dismiss an action when it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1);
see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that when
reviewing a motion to dismiss brought under Rule 12(b)(1), the court “must accept as
true all well-pleaded factual allegations, and draw reasonable inferences in favor of
the plaintiff”). When subject matter jurisdiction is not apparent on the face of the
complaint and is contested, “‘the district court may properly look beyond the
jurisdictional allegations of the complaint . . . to determine whether in fact subject
matter jurisdiction exists.” Sapperstein v. Hager, 188 F.3d 852, 855-56 (7th Cir.
1999)(internal quotations omitted)(quoting United Transportation Union v. Gateway
Western Railway Co., 78 F.3d 1208, 1210 (7th Cir. 1996)). The burden of proof in
regards to a Rule 12(b)(1) motion is on the party asserting that the court has subject
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matter jurisdiction. Id.
Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A
“genuine issue” of material fact in the context of a motion for summary judgment is
not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue
of material fact exists when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In
ruling on a motion for summary judgment, the court must consider the record as a
whole, in the light most favorable to the non-moving party, and draw all reasonable
inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v.
Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION
I. Individual Standing
The City argues that Life Center lacks individual standing to bring the claims
in Counts IV through XII. In order to have a “case or controversy” under Article III
of the Constitution, a plaintiff must have: (1) “an injury in fact,” (2) “an injury that is
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fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party not before the court,” and (3)
“an injury that is likely . . . [to] be redressed by a favorable decision.” Johnson v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 2013 WL 2149971 (7th Cir.
2013))(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992))(internal
quotations omitted); see also Freedom From Religion Foundation, Inc. v. Obama,
641 F.3d 803, 805 (7th Cir. 2011)(stating that “[s]tanding has three components:
injury, causation, and redressability”).
The City argues that TLC indicates that it will only suffer an indirect harm
from the Temporary Use Provision, and that TLC fails to allege any specific,
concrete, and direct harm to TLC from the Temporary Use Provision. The City
contends that Life Center is seeking redress for an indirect harm similar to that in
Warth v. Seldin, 422 U.S. 490 (1975). In Warth, the plaintiffs brought a declaratory
judgment action to challenge a zoning ordinance that the plaintiffs contended
excluded persons of low and moderate income from the town at issue (Town). Id. at
493. The Court held that the plaintiffs lacked standing because none of the plaintiffs
alleged that they ever resided in the Town or alleged facts that indicated that they
were excluded from the Town due to the zoning ordinance in the Town. Id. at 50304. The Court also pointed out that the record indicated that the lack of low income
housing in the Town was due to “economics in the housing market,” rather than the
zoning ordinance in the Town. Id. The Court concluded that the plaintiffs “rel[ied]

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on little more than the remote possibility, unsubstantiated by allegations of fact, that
their situation might have been better had respondents acted otherwise, and might
improve were the court to afford relief.” Id. at 507.
Unlike in Warth, Life Center does not allege a vague remote possibility of
harm from the Temporary Use Provision. Life Center alleges that TLC is directly
affected by the Temporary Use Provision. Life Center has alleged that the
Temporary Use Provision includes significant restrictions on the Mobile Facility’s
operations, limiting when and where TLC can operate the Mobile Facility. Life
Center also alleges that TLC is obligated to pay $190 for each use permit, and that
the Temporary Use Provision makes it effectively impossible for TLC to have the
visibility and continuity of its services that are necessary to effectively treat the
young pregnant women whose only hope for ultrasound is the Mobile Facility. Life
Center has alleged a concrete harm resulting from the Temporary Use Provision and
a harm that likely can be redressed by a ruling in its favor in this case. Therefore, in
regard to the claims in Counts IV-XII, Life Center has shown that it has standing in
the instant action.
II. Joinder
The City argues that the instant action should be dismissed because Life
Center has not joined as plaintiffs the owners of the properties (Property Owners)
where Life Center seeks to operate the Mobile Facility. Rule 19(a) provides the
following:

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(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process and whose
joinder will not deprive the court of subject-matter jurisdiction must be joined
as a party if: (A) in that person’s absence, the court cannot accord complete
relief among existing parties; or (B) that person claims an interest relating to
the subject of the action and is so situated that disposing of the action in the
person’s absence may: (I) as a practical matter impair or impede the person’s
ability to protect the interest; or (ii) leave an existing party subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent
obligations because of the interest.
Fed. R. Civ. P. 19(a). The City argues that only the Property Owners’ interest in the
properties is subject to regulation by the Code and that absent joinder of the Property
Owners, the ability of the Property Owners to protect their interest in the properties
could be impaired. The City also argues that the failure to join the Property Owners
could expose the City to multiple lawsuits arising from the same dispute.
Life Center correctly points out that they are entitled to have their day in court
regarding the alleged violations of their independent constitutional rights, regardless
of whether the Property Owners choose to join the action to vindicate their
constitutional rights as well. In regard to the impact that this case may have on the
Property Owners’ rights to host temporary uses, regardless of the ultimate
determination in this case, the Property Owners will remain free to permit or exclude
temporary uses on their properties. The relief sought in this case will not limit the
Property Owners’ ability to consent to temporary uses on their property in the City.
Life Center acknowledges in the complaint that they are only able to operate the
Mobile Facility on the properties with the permission of the Property Owners.
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(Compl. Par. 15, 21). The true interest at issue in this case is the operation of the
Temporary Use Provision, which does not affect the ability of the Property Owners
to host or exclude such uses on their properties. As to engaging in temporary uses in
the City, that opportunity is available to all members of the public and is not in any
way unique to the Property Owners. Thus, the City has not shown that the Property
Owners are necessary parties that must be joined in the instant action.

III. Overbreadth and Vagueness Challenge (Count I)
Life Center contends that the Temporary Use Provision is unconstitutionally
overbroad and vague. The Temporary Use Provision amended Section 19.90.015 of
the Code on June 27, 2012, and reads in pertinent part as follows:
USE, TEMPORARY: A ‘land use’ which is established for a fixed period of
time with the intent to discontinue such use on the expiration of the time
period. . . .
Number And Duration: No more than four (4) temporary uses shall be
conducted on the same ‘zoning lot’ within a calendar year. No single
temporary use shall be established or operate for more than thirty (30) days,
and the total number of days for all temporary uses established or operating on
the same ‘zoning lot’ within a calendar year shall not exceed sixty (60) days. .
. . Except as provided for an ‘intermittent temporary use’, the days a
temporary use operates or is otherwise open or available to the general public
shall be consecutive, and each such time period shall constitute one of the four
(4) allowable temporary uses within a calendar year. . . .
(R SF Par. 32). The Code defines the term “land use” as “[t]he purpose or type of
activity for which land, or the structure or building thereon, is designed and intended,

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or for which it is occupied or maintained.” (R SF Par. 40). The Code also defines
the term “structure” as “[a]nything manufactured, constructed, or composed of parts
joined in some definite manner that requires a location on the ground or that is
attached to something that has a location on the ground,” and “[s]tructures shall
include, but shall not be limited to buildings, antennas, signs, fences, and off street
parking facilities.” (R SF Par. 41).
Under Supreme Court precedent, “[f]acial invalidation for technical
overbreadth is strong medicine, . . . and is inappropriately employed unless the
statute substantially criminalizes or suppresses otherwise protected speech vis-à-vis
its plainly legitimate sweep.” Bell v. Keating, 697 F.3d 445, 455-56 (7th Cir.
2012)(stating that “there must be a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of parties not
before the Court for it to be facially challenged on overbreadth grounds”)(internal
quotations omitted)(quoting City Council v. Taxpayers for Vincent, 466 U.S. 789,
800-01 (1984)); see also Grayned v. City of Rockford, 408 U.S. 104, 114-15
(1972)(indicating that a court must consider whether “the ordinance sweeps within
its prohibitions what may not be punished under the First and Fourteenth
Amendments”). In the context of First Amendment protected speech, the Supreme
Court has “recognize[d] a second type of facial challenge, whereby a law may be
invalidated as overbroad if a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United

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States v. Stevens, 130 S.Ct. 1577, 1587 (2010)(quoting Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 449, n.6 (2008))(internal
quotations omitted); New York v. Ferber, 458 U.S. 747, 767-69 (1982)(recognizing
that an exception to rare application of the overbreadth doctrine may be present in
the First Amendment context).
In the instant action, Life Center has pointed to several ways in which the
Temporary Use Provision could prevent people from exercising protected First
Amendment rights. The definitions under the Code for the terms “land use” and
“structure” are so broad, they would encompass virtually all types of activity,
including a substantial amount of activity protected under the First Amendment. For
example, a property owner in the City might hang a flag from a flagpole attached to a
building and the flag might contain graphics or lettering to indicate the property
owner’s support for a country, political position, or philosophical position, which
could be speech protected under the First Amendment. See, e.g, Clark v. Community
for Creative Non-Violence, 468 U.S. 288, 305 (1984)(explaining that in Spence v.
Washington, 418 U.S. 405 (1974), the Court “held that displaying a United States
flag with a peace symbol attached to it was conduct protected by the First
Amendment”).
Under the broad definitions of “structure” and “land use” in the Code and the
Temporary Use Provision, the flag joined to the pole that is attached to a building
might technically fall under the definition of a structure that is governed by the

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Temporary Use Provision. The property owner would thus be required to pay a $190
fee to hang the flag and would be limited as to the number of days per year that the
owner can hang the flag. The City has provided no justification for restricting such
activity in such a broad and sweeping manner. Life Center has shown that protected
speech could be substantially limited and chilled due to the time limitations included
in the Temporary Use Provision. The Seventh Circuit has explained that “[t]he
overbreadth doctrine prevents the government from casting a net so wide that its
regulation impermissibly burdens speech.” Schultz v. City of Cumberland, 228 F.3d
831, 848 (7th Cir. 2000). The Temporary Use Provision does exactly that by
needlessly hindering protected speech. The attorney representing the City argued in
open court during the temporary restraining order hearing that TLC is not limited in
operating the Mobile Facility since it could obtain four permits a year at dozens of
different locations around the City by paying the required fee for each permit. Such
an argument is without merit and such a policy regarding the operation of mobile
facilities would be unduly burdensome on Life Center or similar applicants.
In addition to being overly broad and unduly burdensome, the Temporary Use
Provision is also unconstitutionally vague because it fails to clearly indicate to the
public how it may comply with the provision. See Gresham v. Peterson, 225 F.3d
899, 907 (7th Cir. 2000)(stating that “[t]he void-for-vagueness doctrine forbids the
enforcement of a law that contains ‘terms so vague that [persons] of common
intelligence must necessarily guess at its meaning and differ as to its

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application.’”)(quoting Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984)).
As indicated above, the application of the Temporary Use Provision could be
construed to apply to innocuous activities such as putting up a flag. A member of the
public is thus left to speculate whether he or she is going to face prosecution by the
City if he or she does not first obtain a $190 permit for the flag. This in turn makes it
possible for the City to arbitrarily and selectively target members of the public by
acting within the vague parameters of the Temporary Use Provision. See id. (stating
that “[l]egislative enactments must articulate terms with a reasonable degree of
clarity to reduce the risk of arbitrary enforcement and allow individuals to conform
their behavior to the requirements of the law”)(internal quotations omitted).
It is also important to note in this case that the City is seeking to limit much
more than, for example, temporary commercial sidewalk or tent sales. Although the
City claims that it is merely applying the Temporary Use Provision with a blind eye
toward the activities that it impacts, it must be recognized that the City is preventing
Life Center from being able to effectively provide pregnant women in the City with
needed medical care that could identify medical issues and save the lives of unborn
children. Life Center has in fact provided evidence that it has helped a multitude of
young women who have used the services at the Mobile Facility.
The facts relating to the motion for summary judgment are not in dispute. Life
Center has been operating the Mobile Facility since 2010 on certain strategically
placed private commercial parking lots that were easily accessible to young women.

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The Mobile Facility operates periodically such as on certain Tuesdays for a few
hours. Life Center has and is providing free and valuable services to young women
by offering them pregnancy tests, prenatal vitamins, certain ultrasound services,
medical referrals, and counseling, potentially saving the lives of mothers and their
unborn children. In the summer of 2012, the City amended the Code, making it
unduly burdensome for Life Center to provide the above-mentioned valuable, free
services to young women. Immediately after the amendment of the Code, a City
Councilwoman drove by the Mobile Facility and complained to the police, calling
the mobile facility “an eyesore.” The evidence provided by Life Center reflects that
the Mobile Facility is modest in appearance, was parked in a large parking lot, and
was nothing of the nature described by the Councilwoman. Based on the above facts
and the uncontested evidence provided by Life Center, the motives in amending the
Code in 2012 are highly suspect and the City appears to have been targeting Life
Center. The City’s Code is unduly burdensome to the right of a woman to choose
life. The City’s effort to curtail private entities from providing free and valuable
services to its young women is ill-advised. It is puzzling why the City would be so
unreasonable in implementing ordinances and policies that curtail not only the
constitutional rights of its citizens, but also the availability of needed medical care
and emotional support for its vulnerable young women. Based on the above, the
court grants Life Center’s motion for summary judgment on Count I and finds that
the Temporary Use Provision is unconstitutional as being overbroad, vague, and
unduly burdensome. In addition, the court notes that Life Center’s alternative
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argument is that the Temporary Use Provision acts as an impermissible prior restraint
on and prohibition of TLC’s freedom of speech and expressive association on private
property. Since the court has found the Temporary Use Provision unconstitutional
on other grounds, the court need not address Life Center’s alternative argument.

IV. Remaining Claims
Life Center has presented various other facially legitimate claims, such as
those relating to a woman’s right to knowledge and care regarding her pregnancy and
the rights of an unborn child, but has not filed a motion for summary judgment
relating to the additional claims. Therefore, the case will proceed on the remaining
claims in Counts II-XII.
In regard to the City’s motion to dismiss the remaining claims for failure to
state a valid claim, as indicated earlier, all the allegations in the complaint must be
accepted as true and all reasonable inferences must be made in favor of Life Center.
There are factual issues that are premature to resolve at this juncture without
discovery. Therefore, the City’s motion to dismiss is denied in its entirety.

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CONCLUSION
Based on the foregoing analysis, the City’s motion to dismiss is denied and
Life Center’s motion for summary judgment as to Count I is granted. The City is
permanently enjoined from enforcing the Temporary Use Provision.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: August 8, 2013

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