In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3709

WILLIAM A. BRANDT, JR.,

Plaintiff-Appellant,

v.

VILLAGE OF WINNETKA, 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.

ARGUED MAY 21, 2010—DECIDED JULY 20, 2010

Before EASTERBROOK, Chief Judge, and BAUER and

TINDER, Circuit Judges.

EASTERBROOK, 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 candidate. 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 assistance 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 judgment 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. LEXIS 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 uncertain, 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). Although more of the district judge’s opinion is devoted

to discussing when and how discretion should be exercised 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 Environment, 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 municipal services. Brandt has every right to support any candidate he pleases and express his own political views, but

no right to have his neighbors underwrite the expense. 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 additional 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 asapplied 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 business regulation, where, as in Abbott Laboratories, enforcement 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.

7-20-10