By Dave Strausfeld, J.D.
Mootness may doom a union’s First Amendment challenge to a local sign ordinance that banned it from placing giant inflatable rats on a roadway median opposite a construction site it was picketing, held the Seventh Circuit on summary judgment, remanding the case to the district court for further factfinding as to whether the matter was moot now that the construction project in question had been completed. In particular, because the union did not seek damages, the case would be moot unless a similar dispute between the union and the town over the constitutionality of the sign ordinance was "capable of repetition yet evading review." Judge Posner dissented (Construction and General Laborers’ Local Union No. 330 v. Town of Grand Chute, Wisconsin
, August 19, 2016, Easterbrook, F.).
Union not allowed to place giant inflatable rat in roadway median.
"This case is about rats," the Seventh Circuit began by observing. "Giant, inflatable rats, which unions use to demonstrate their unhappiness with employers that do not pay union-scale wages." An inflatable rat (and also an inflatable "fat cat" wearing a business suit and pinkie ring, strangling workers) were used during a labor dispute in the Town of Grand Chute, Wisconsin, staked to the ground to prevent the wind from blowing them away. Because the union placed these rubber balloon figures in the median of a roadway, and because they were staked to the ground, the town treated them as "structures" under its ordinance forbidding private signs on "public rights-of-way."
The town suggested that the picketers mount the rat and cat on a flatbed truck, which would not be a structure, but the union declined. Staked to the ground on the public way, as they were, they were forbidden. The union removed them when directed to do so and filed this suit under 42 U.S.C. § 1983, contending the town’s sign ordinance violated the First Amendment.
The district court denied the union’s motion for a preliminary injunction, and about a year later entered summary judgment for the town. The union appealed from the summary judgment ruling only.
Live controversy now that picketing over?
"Unfortunately, neither the district court nor the parties considered the possibility that this case may be moot," the Seventh Circuit observed. By the time the district court entered summary judgment, the construction project that led to the use of the demonstrative rat and cat balloons had been completed, and the union was no longer picketing. Because the union had not asked for an award of damages, the appeals court wondered "whether we have a live controversy."
At oral argument counsel for the union said yes, because a dispute over the constitutionality of the town’s sign ordinance might crop up again if the union decided to demonstrate against a future construction project in Grand Chute. Unconvinced, the appeals court emphasized that for a case to remain live because it is capable of repetition, there must be "a reasonable expectation that the same complaining party would be subjected to the same action again," quoting the Supreme Court’s decision in Weinstein v. Bradford
. Here, the record was silent on the likelihood of repetition. "How many construction projects built with non-union labor have caused labor disputes in Grand Chute?" the appeals court asked, indicating that the answers were absent. "Are more such projects planned?" And even if such a project is built, and a dispute recurs, "this
suit may still be moot if the controversy about that future project would not evade review," the appeals court stressed.
Case remanded for more factfinding.
Because the appeals court was not confident that a justiciable controversy existed, "[t]he district court needs to take another look at it." If the union "persists in abjuring damages," the district court must make a mootness determination as to "whether the probability of a fresh dispute between this union and Grand Chute is high enough—and the risk that it would be over too quickly to allow judicial review also high enough—to satisfy the ‘capable of repetition yet evading review’ proviso to the mootness doctrine."
There also was an additional problem with resolving the case on the merits, the appeals court pointed out: Shortly before the district court’s summary judgment ruling, the town amended the relevant ordinance and altered its definition of a sign. Accordingly, in the event the controversy remained live, the district court "must address the validity of the Town’s current ordinances, rather than one that was changed before the entry of final judgment."
While not reaching the merits, the appeals court proceeded to summarize potentially applicable First Amendment precedent, should the case not be moot.
Judge Posner rejected the majority’s notion that the case might be moot. "During the litigation the construction project that inspired the union’s protest was completed, but that doesn’t end the parties’ dispute," he argued. Based on union counsel’s representation at oral argument, the union was very likely to use the rat again in a protest in Grand Chute, and, further, the town had not suggested that a future rat protest would be treated differently, even under its revised ordinance. Because the case had been extensively briefed and argued, and the parties did not "plainly lack" an interest in the outcome, "we may decide it now," he wrote, citing the Supreme Court’s decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.
On the merits, Judge Posner would have held that the union’s constitutional right of free speech was violated. He therefore would have reversed summary judgment for the town, directed the district court to enter judgment in favor of the union, and been "done with this case," rather than remanding for further factfinding on mootness.