Village attorney Richard N. Williams interrupted preparations for oral argument at the U.S. Supreme Court to complain that courts have "emasculated" local government.
"We've lost all our police powers," he said. "We can't tell our boards to take a chance or risk on any type of ordinance any more. We may violate constitutional rights that no one knows are constitutional rights and we'll be nailed on it."
Virginia W. Hayter, president of this suburban Chicago community, thinks there ought to be some kind of Miranda warning for officials of cities and towns because, nowadays, anything they say is used against them in court.
What has stirred Williams' and Hayter's frustration is about to come to a head in the Supreme Court, which is considering a law enacted by Hoffman Estates to control sale of drug paraphernalia at "head shops." A lower federal court, doing what courts have done to hundreds of ordinances in cities across the country, struck it down as unconstitutional.
The whole thing, Williams said--the suits, the court rulings--has "a real chilling effect."
In recent years, in a variety of ways, officials of towns and cities across the country believe courts have brought about a role reversal that they consider crippling to local authority.
There is some exaggeration. Cities enact ordinances every day that never encounter serious trouble in court. But the number of challenges, by everyone's estimate, and the number of successful challenges are unquestionably on the increase.
Last year, the Supreme Court declared unconstitutional an ordinance to prohibit nude dancing enacted by Mount Ephraim, N.J., and a law regulating billboards in San Diego. The year before, the justices struck down a charitable solicitations ordinance in the village of Schaumburg, next door to Hoffman Estates.
On the court's docket this term are the Hoffman Estates' drug paraphernalia case and a Mesquite, Tex., ordinance, struck down by lower courts, that prohibits youths under 17 from frequenting video arcades.
In the nearby town of Bellwood, Ill., a federal judge recently invalidated a law attempting to regulate solicitations of real estate listings. The year before, Southington, Conn., lost its ordinance restricting door-to-door canvassing, and Robinson Township, Mich., its ordinance excluding mobile homes from residential areas.
The list is almost endless.
While the Supreme Court seems increasingly deferential to states, Congress and the executive branch, it has not been so kind to cities or counties. After all, they are not mentioned in the Constitution.
In an opinion Jan. 13, Justice William J. Brennan Jr. penned a passage that particularly offended local officials. Writing for the court's majority, he said there is "no accommodation for sovereign subdivisions of states," that is, cities. They have been left out of the court's "New Federalism."
On that day, the court subjected cities to another form of lawsuit--antitrust actions from businesses objecting to the way cities, towns and counties regulate them.
In 1978 the court made cities, but not states, liable for damages for constitutional violations.
Beyond that, they say the court's rulings in fields important to municipalities have become increasingly incoherent. They say they cannot draft constitutionally valid laws when the court is so confused about what is and what is not constitutional.
It is not coincidental that so many of the towns on the municipal casualty list are relatively small.
The advantage of home rule, indeed the excitement of it for those elected to office, is the ability to respond quickly to the immediate demands of a community. Elaborate studies seem to be unnecessary when the problem is next door.
The disadvantage is that quick responses can produce bad law. These communities do not have armies of lawyers (in Hoffman Estates there is just Williams) and staff researchers to help them out.
Like other communities, Hoffman Estates has had a drug problem. Police Chief James Taylor said his officers make two or three arrests every six weeks for distribution of drugs and numerous "stops," though not necessarily arrests, for possession of marijuana and hashish among teen-agers.
In 1978 citizens complained about a "head shop" in The Flipside, a record shop at the Barrington Square Mall in Hoffman Estates. Head shops sell "roach clips" that teen-agers use to hold marijuana cigarettes, cigarette rolling paper with brand names like "Cannabis Indica," "bongs" or water pipes and often literature, like High Times, devoted to the drug culture.
Fighting head shops has become a major preoccupation of communities all over the country.
Williams, the village attorney who must draft the bills, said he "didn't see any big deal about it" when a trustee asked him to draw up an ordinance.
"I sat down just like I always do and probably wrote it in half an hour," after a brief study of what other jurisdictions had done.
The ordinance licensed head shops. Anyone selling "any item, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs" had to sign affadavits declaring whether they had a drug-related conviction.
Sale of drug paraphernalia to anyone under 18 was made illegal. Dealers were required to keep a list of all purchasers, to be made available to local police. Violation was punishable by fine between $10 and $500.
When the U.S. government enforces a law, hearings, notices and the Federal Register all come into play. When it came time for Hoffman Estates to draft guidelines and definitions to enforce its law, the process was different.
"I got a call from the owner of the store Flipside ," Williams recalled. "He wanted some guidelines so I gave him some. It took 10 minutes."
Those guidelines would ultimately prove crucial to the law's undoing in court.
Under his guidelines, rolling paper, for example, was not paraphernalia if it was "white paper or tobacco-oriented paper," but rolling papers with "colorful design, names oriented for use with illegal cannabis or drugs" were covered by the law. Pipes were okay if "displayed away from the proximity of non-white paper" and not okay if displayed "within proximity of roach clips, or literature encouraging illegal use of cannabis or illegal drugs . . . ."
Flipside discontinued its head shop displays and then sued.
Hoffman Estates won the case at the District Court but on Jan. 12, 1981, the law was voided for vagueness by a panel of the U.S. Court of Appeals for the 7th Circuit.
"Void for vagueness" is a time-honored judicial stamp of disapproval. A law voided for vagueness is a law that cannot be understood. If it cannot be understood, its targets may not know how to obey it and enforcers may abuse it.
The panel said it was impossible to determine from Hoffman Estates' law and guidelines what was legal and what was illegal. A paper clip could be subject to licensing if displayed in proximity to Rolling Stone magazine, the court said, and perfectly legal if sold in a hardware store.
"We find that there does exist a genuine danger that enforcement of this ordinance will be used to harass individuals choosing lifestyles and views different from those of the majority culture," the court said.
"Void for vagueness" is also a term some lawyers are using to describe some Supreme Court opinions. Lawyers for cities, as well as lawyers in many other fields, have complained increasingly in recent years that many Supreme Court decisions are incomprehensible. They are convinced the court is an important part of their problem with losing lawsuits.
Consider, for example, San Diego. Last year, the justices struck down as unconstitutional a San Diego ban on certain kinds of billboards. That appeared to concern San Diego's city attorney less than the way the court did it.
Four justices joined in one statement. Two joined in a concurring opinion. One justice said he agreed with part of the first statement but wrote a separate statement dissenting from other parts of it. Two justices wrote separate dissents.
One of the dissenters, Justice William H. Rehnquist, described the enterprise a "Tower of Babel." San Diego City Attorney John W. Witt, still trying to figure out what happened six months later, called it a "tower of jelly."