A federal judge has again sent to the showers a lawsuit alleging the city of Chicago violated the rights of the publisher of a Cubs-related magazine when it barred the company from selling its publication outside Wrigley Field, noting changes to the city's ordinance effectively strike out the publishers' legal arguments to this point.
On April 5, 2015, Matthew Smerge, owner of Left Field Media and the publisher and editor of Chicago Baseball, was selling copies of his magazine for $2 on public property at the northeast corner of Clark and Addison streets. Chicago Police told Smerge and his vendors to move across the street or be ticketed under the city’s Adjacent-Sidewalks Ordinance, which bans peddling on streets adjacent to Wrigley Field.
Left Field, which sold the quarterly for more than 20 years, sought an injunction to stop the city from enforcing what it deemed an illegal ordinance. Judge Jorge L. Alonso issued a temporary restraining order, after which the city agreed not to enforce the ordinance while the court considered the motion for preliminary injunction. However, right before the 2015 playoffs, Alonso decided not to issue the inunction.
The dispute reached the U.S. Seventh Circuit Court of Appeals in 2016, at which time Seventh Circuit Judge Frank Easterbrook noted the issue of discriminatory enforcement, as Left Field argued the city unfairly allowed Cubs employees to sell products on the sidewalk outside the stadium. The city asserted that was acceptable because the team owns two of the four sidewalks outside Wrigley.
Adele D. Nicholas
As Left Field continued to press the matter, however, “the city amended the relevant ordinances, broadening the exemption to the Peddlers’ License Ordinance to include among other things peddlers of periodicals like Left Field, and making express that the Adjacent Sidewalks Ordinance applies only to public ways, not private property,” Judge Alonso noted in his Aug. 13 opinion.
In the wake of the ordinance change, Alonso granted Left Field leave to amend its complaint, which the company did, now asserting the court should still step in, because the city had improperly violated the publisher’s rights under the prior ordinance. However, he city still moved to dismiss, arguing Left Field can’t assert claims against the older version of the ordinance because it couldn't demonstrate a “concrete and particularized injury,” while the changes to the ordinance neutralize the publisher’s claims.
The city pointed out no Left Field vendor ever sought a peddling license, nor did it ever enforce those requirements against Left Field employees. As a result, Alonso wrote, “the city effectively treated Left Field like an exempt newspaper peddler.” While Left Field detailed the ways in which it “expended costs and took concrete and time-consuming action in efforts to comply,” Alonso wrote, it did so in the response brief to the city’s motion to dismiss, not in the amended complaint. Further, Left Field acknowledged the one citation issued by the city against Smerge didn’t result in actionable damages.
Further, Alonso agreed with the city that Cubs-employed vendors operate on private property, which is subject to different rules than Left Field vendors working on public streets.
“The problem for Left Field is that, like with its earlier claims, the allegations of its complaint do not match its argument,” Alonso wrote. “Noticeably absent from the complaint are any factual allegations supporting the theory that the ordinance impermissibly classifies Cubs vendors and non-Cubs vendors, that it burdens them differently, or that it has ever been enforced against other non-Cubs vendors. … Instead, the sole factual allegation is that Left Field received a single ticket under the ordinance on an opening game day in 2015.”
Alonso granted the city’s motion to dismiss Left Field’s complaint, and gave the publisher until Sept. 14 to file another amended complaint, if it can.
Left Field Media has been represented in the action by attorneys Neil S. Ament, of Highland Park, Adele D. Nicholas, of Chicago, and Mark G. Weinberg, of Chicago.
The city is represented by lawyers from the city’s Department of Law.