National Paint & Coatings Association v. City of Chicago

ILANA DIAMOND ROVNER, Circuit Judge,

concurring.

No one can doubt that graffiti vandalism poses a serious and vexing problem for the *1133 City of Chicago and its residents. Yet, without minimizing the gravity of the problem, I must confess that I find the City’s response — an outright ban on the sale of spray paint and large markers within the city limits — a bit dramatic. Under Chicago’s ordinance, not only will graffiti vandals be deprived of lawful access to the tools of their trade, but so will law-abiding citizens who otherwise would have used the banned products for legitimate purposes.

Spray paint manufacturers and retailers were understandably upset by their exclusion from such a large market, and a consortium of out-of-state interests challenged the ordinance in federal court. In the course of a six-day bench trial, the parties explored at length the many vagaries of Chicago’s graffiti problem and the anticipated effectiveness of the City’s response. The able and experienced district judge found on the basis of the trial evidence that Chicago’s ban violates the Commerce Clause because if enforced, the ordinance would substantially burden the flow of interstate commerce while furthering Chicago’s purposes only marginally. From that conclusion, the court divined that the ordinance also violates principles of substantive due process and exceeds the City’s home-rule powers under state law. The majority today disagrees with each of those conclusions, and in the process, chastises the lower court for conducting a trial designed to look behind Chicago’s ordinance, rather than deferring to the judgment of its elected officials. I ultimately agree with my colleagues that Chicago’s ban is not constitutionally infirm, but I write separately to clarify one point about the Commerce Clause and then to make two additional points about the majority’s analysis.

I have no quarrel with the majority’s treatment of the City’s home-rule powers, as I agree that home-rule units have broad powers under the Illinois Constitution and that courts should second-guess the exercise of those powers by elected officials only in the most extreme cases. Although this may seem to some to be an extreme case, the problem of graffiti vandalism is a difficult one, and I agree that Chicago had the power to respond as it did.

I also commend the majority for its thorough and helpful treatment of what I see as the primary issue in this appeal — whether the resale ban violates the dormant Commerce Clause. See ante at 1130-32. I agree that this case falls into the last of the majority’s three categories (ante at 1132) and that it resembles the legislation at issue in such cases as Exxon Corp. v. Governor of Maryland, 437 U.S. 117 , 98 S.Ct. 2207 , 57 L.Ed.2d 91 (1978), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 , 107 S.Ct. 1637 , 95 L.Ed.2d 67 (1987). Although Chicago’s ban on the sale of spray paint and large markers may impact the free flow of commerce amongst the states, it does so in a nondiscriminatory fashion, both by its terms and in its effects. Plaintiffs never alleged, for instance, that in the face of this ban, Chicago consumers would turn to alternate products produced primarily in Chicago or the State of Illinois. Had they done so, their allegations in all likelihood would have activated the balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137, 142 , 90 S.Ct. 844, 847 , 25 L.Ed.2d 174 (1970):

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.

(Citations omitted.) And once that test has been activated, it seems to me that the questions it poses may only be answered by some form of evidentiary hearing.

My colleagues decree that the district court should have refrained from conducting a trial because reasonable minds could differ about the potential effects of the resale ban. Ante at 1127. That may be true solely as a matter of substantive due process, but it is not necessarily the case under the dormant Commerce Clause. If a plaintiffs allegations *1134 are sufficient to establish that a facially neutral ordinance may have a discriminatory impact — that is, that it may have an incidental effect on interstate commerce — then Pike’s balancing test applies, and the district court may conduct evidentiary proceedings and even a trial to test the actual benefits and burdens of the legislation, regardless of what a reasonable legislator may have believed. It may consider as well whether the legislature’s purpose might be achieved by some means having a lesser impact on interstate commerce. Indeed, that is how the Supreme Court has consistently understood Pike. See, e.g., Kassel v. Consolidated Freightways Corp., 450 U.S. 662 , 101 S.Ct. 1309 , 67 L.Ed.2d 580 (1981) (reviewing evidence adduced in fourteen-day trial addressed to the benefits and burdens of state legislation); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470-74 , 101 S.Ct. 715, 727-29 , 66 L.Ed.2d 659 (1981) (reviewing evidence adduced in extensive evi-dentiary hearings under Pike); Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 444 , 98 S.Ct. 787, 795-96 , 54 L.Ed.2d 664 (1978) (invalidating state regulation under Pike based upon the plaintiffs “massive array of evidence” which disproved the regulation’s alleged benefit). A district court would not, in such a ease, overstep its bounds by second-guessing the policy judgments of elected officials. It instead would act in the limited fashion envisioned by Pike to preserve the integrity of our interstate system of commerce.

Here, then, the district court erred not so much in deciding to conduct a trial, as the majority implies, but in deciding that Pike applies to Chicago’s ordinance in the first place. 1 Had that decision been correct, the trial below would have been entirely appropriate. Yet, because plaintiffs never alleged that Chicago’s ordinance discriminates against interstate commerce in any way, Pike was never activated, and a trial was therefore unnecessary.

The district court also found that Chicago’s resale ban violates principles of substantive due process. I can agree that this doctrine has only a limited role to play in the constitutional analysis of state and local regulation and that it certainly is not violated by Chicago’s ban on the retail sale of spray paint and large markers. See ante at 1129. Yet even so, I do not believe that as an intermediate appellate court we are at liberty to continue to question the very existence of the doctrine. See id. at 1129; see also Saukstelis v. City of Chicago, 932 F.2d 1171 , 1173 & n.* (7th Cir.1991). The Supreme Court has adhered to its substantive due process jurisprudence in a number of recent decisions, and that, to my mind, is the end of the matter. See, e.g., Reno v. Flores, — U.S. -, -, 113 S.Ct. 1439, 1447 , 123 L.Ed.2d 1 (1993); Planned Parenthood v. Casey, — U.S. -, -, 112 S.Ct. 2791, 2804-07 , 120 L.Ed.2d 674 (1992); Collins v. City of Hanker Heights, Texas, 503 U.S. 115 , -, 112 S.Ct. 1061, 1068 , 117 L.Ed.2d 261 (1992).

Finally, I find it curious that the majority thinks it necessary to assess Chicago’s ordinance under the Equal Protection Clause, as my colleagues apparently recognize that no equal protection claim has been advanced in this appeal. See ante at 1129. The district court did not invalidate Chicago’s ordinance under the Equal Protection Clause, and such a claim thus was not briefed to this court. I would therefore refrain from any comment on the viability of an equal protection claim in this context.

With these qualifications, I concur in the reversal of the district court’s judgment.

. Perhaps the court was influenced by the City’s apparent concession for purposes of its motion to dismiss that the Pike balancing test applied. See National Paint & Coatings Ass'n v. City of Chicago, 803 F.Supp. 135 , 142 & n. 4 (N.D.Ill.1992).