Philly's v. Byrne

HARLINGTON WOOD, Jr., Circuit Judge,

concurring.

I join the result reached by the majority, but I believe there is a little more direct route to that result. I consider it unnecessary to reach and decide the question of whether in this situation the process that is due under the fourteenth amendment may consist of a popular election.

Appellants argue that the local option provision is an unconstitutional delegation of legislative authority to the voters, violating due process by depriving appellants of liquor licenses without notice or a hearing. District Judge Kocoras’ analysis delivered from the bench provided an adequate and appropriate ground upon which to uphold the local option provision against due process challenge.

Appellants concede, as they must, that the Illinois General Assembly is empowered to prohibit or regulate the sale of alcoholic beverages in the state. The Liquor Control Act clearly reflects a legislative determination to discourage the use of alcohol through close regulation. The General Assembly, by enacting the local option provision, acted upon this determination to pass a valid prohibition on the sale of alcoholic beverages. The legislature, however, chose to suspend imposition of this prohibition pending the choice of local voters to make it operative in their village or precinct.

The legislature could have enacted a prohibition of alcoholic beverages effective without further action, and thus was within its authority to enact a prohibition effective only upon a local referendum. See Rippey v. Texas, 193 U.S. 504, 509-10, 24 S.Ct. 516, 517, 48 L.Ed. 767 (1904). While Justice Holmes’ assertion in Rippey, that the power to prohibit includes the power to prohibit conditionally, has proven overbroad in other contexts, the holding of the case remains in force in the context of a local option provision of an otherwise constitutional legislative enactment such as a prohibition on the sale of liquor under the unique aegis of the twenty-first amendment.

The local option referendum gives local voters no discretion other than the choice to put the legislative enactment and its underlying policy determination into effect in their community. Cf. Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 511, 74 L.Ed.2d 297 (1982) (standard-less discretion given nearby churches to disapprove liquor licenses reflected entanglement in violation of Establishment Clause); Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121-22, 49 S.Ct. 50, 51-52, 73 L.Ed. 210 (1928) (due process violation where legislature suggested approval of land use but left zoning decision to neighboring landowners). Illinois courts upholding the local option law against due process challenge have held that the legislative power indeed remained in the legislature. See, e.g., Malito v. Martin, 14 Ill.App.3d 658, 660, 303 N.E.2d 262, 264 (1973), appeal denied, 55 Ill.2d 602, appeal dismissed for lack of a substantial federal question, 417 U.S. 963, 94 S.Ct. 3165, 41 L.Ed.2d 1135 (1974) (while the legislature may not delegate its function to private persons, it may enact a law which will become operative upon the affirmative vote of the people affected, provided the law contains an “entire and perfect declaration of the legislative will”); see also Hoogasian v. Regional Transportation Authority, 58 Ill.2d 117, 128-29, 317 N.E.2d 534, 540-41, appeal dismissed for lack of a substantial federal question, 419 U.S. 988, 95 S.Ct. 298, 42 L.Ed.2d 261 (1974) (upholding against due process challenge the statutory creation of regional transportation authority upon voter approval by referendum).

*95 We thus are left with a due process challenge to the legislative action itself. Legislative actions which are of general applicability are not subject to a due process requirement that affected persons be given notice and an opportunity to be heard; the process due is found in the electorate’s power over its chosen representatives. See Bi-Metallic Investment Co. v. State Board of Equalization of Colorado, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915); see also Association of National Advertisers, Inc. v. FTC, 627 F.2d 1151, 1166 (D.C.Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980).

The venerable local option law is not an unconstitutional delegation of legislative authority in violation of the due process clause, but a complete legislative enactment which goes into effect contingent upon a future event. Appellants may seek relief from the local option law through legislative revision, a challenge of the procedures used in a particular referendum, or by launching a local campaign to pass a new referendum.