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NATIONAL PEOPLE'S ACTION v. CITY OF BLUE ISLAND

April 11, 1984

NATIONAL PEOPLE'S ACTION, PLAINTIFF,
v.
CITY OF BLUE ISLAND, ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Getzendanner, District Judge:

MEMORANDUM OPINION AND ORDER

This action under the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983"), is before the court on the motion for partial summary judgment of plaintiff National People's Action ("NPA") against the City of Blue Island ("Blue Island"). NPA challenges the constitutional validity of one of Blue Island's ordinances, both on its face and as applied. The 1958 ordinance in controversy, entitled "An Ordinance Regulating Peddlers, Solicitors and Canvassers and Providing for Permits and Fees Therefor," No. 2005, as amended in 1966 by No. 2009, contains several provisions that allegedly violate NPA's rights under the first and fourteenth amendments to the United States Constitution. As relief, NPA seeks a declaratory judgment that the ordinance violates the first and fourteenth amendments of the United States Constitution, an injunction enjoining future enforcement of the ordinance, actual damages, costs, and reasonable attorneys' fees.

Briefly described, plaintiffs' allegations charge that on July 25, 1983, NPA agent Amy McGee requested information of Blue Island on how to engage in canvassing, leafletting, petitioning, and soliciting of funds in Blue Island. Several communications between Blue Island officials and agents of NPA ensued in which NPA requested permission to conduct these activities in Blue Island. These communications culminated in a letter from Stan Lukas, president of the Blue Island Chamber of Commerce, denying NPA's request because the city "had been inundated this year with not only our own tag days but also outside requests to canvass our community. . . ." NPA alleges that but for this enforcement of the ordinance, NPA would engage in leafletting, petitioning, and solicitation of funds in Blue Island.

Plaintiffs move for partial summary judgment "on the issue of liability — the constitutionality of the municipal ordinance in question . . ." (Plaintiff's Motion for Partial Summary Judgment p. 1.) The contents of the 1958 and 1966 documents are not in dispute. (See Memorandum in Opposition pp. 1, 2 nn. 1-2.) Neither is it disputed that Lukas sent the letter denying a permit to NPA on August 2, 1983. (Blue Island Answer ¶ 11.) The contents of that letter are not disputed. (Id.) Blue Island admits that it is an Illinois municipality and that its actions in denying NPA's request for a permit were taken under color of state law. (Id. at ¶¶ 5, 14.) Indeed, Blue Island admits that the ordinance was unconstitutionally applied to NPA's request, although it contends that the ordinance is facially constitutional. (Memorandum in Opposition p. 1.) Before the court may inquire into the constitutionality of the ordinance, however, it must address Blue Island's argument that the case is moot, as no case or controversy is alleged.

Mootness

Blue Island argues that the case is moot based upon two factual assertions that NPA never denies. First, Blue Island claims to have invited NPA to canvass two days after the present suit was filed. Second, at some time after the suit was filed, Blue Island informed NPA, and now informs the court, that NPA was in fact exempt from the application of the ordinance, and could therefore canvass without a permit. (The ordinance describes the sort of organizations that are exempt from its scope. Incidentally, NPA nowhere alleges or argues that it ever sought to determine whether it was exempt from the ordinance.) As there is no longer a case or controversy, Blue Island contends, the court must dismiss this action.

The Seventh Circuit has recently explained that

  A case or controversy may become moot because there is
  no reasonable expectation that the alleged act will
  recur, and interim relief or events have completely
  and irrevocably eradicated the effects of the alleged
  violation.

Johnson v. Board of Education of Chicago, 664 F.2d 1069, 1071 (7th Cir. 1981), rev'd on other grounds, 457 U.S. 52, 102 S.Ct. 2223, 72 L.Ed.2d 668 (1982).

Of course, a defendant's voluntary cessation of the actions complained of will not moot a controversy, in part because the defendant would otherwise be "free to return to his old ways." United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). It is the defendant's burden to prove that the offending activity has stopped and will not be repeated before a court may dismiss an action for mootness. Id. at 633, 73 S.Ct. at 897. Even when the defendant has abrogated the policy causing the injury, plaintiff's case may not be moot as "there can be no assurance that [the defendant] will not resurrect the old procedure in the future. The propriety of injunctive relief cannot be foreclosed by a promise to discontinue what has been an established pattern of wrongdoing." Boyd v. Adams, 513 F.2d 83, 89 (7th Cir. 1975).

In addition, the court must satisfy itself that plaintiff has been accorded full relief. In Black v. Brown, 513 F.2d 652, 654-655 (7th Cir. 1975), the Court held plaintiff's claim for an injunction moot, since the injury of which he complained, being held in a prison isolation cell, had ended. However, the § 1983 action was not dismissed in full, for the plaintiff still had claims for declaratory and monetary relief. Id. When the action under examination for mootness is not a class action, the inquiry centers on whether the particular plaintiff has been accorded a full remedy and assured that, with respect to that plaintiff, the injury will not be repeated. L. Tribe, American Constitutional Law § 3-14, at 64, 67 (1978); but see id. at 64 n. 9. For example, in DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), plaintiff DeFunis complained he was denied admission to law school on account of his race. As the case made its way through the state court system; DeFunis, who, by order of the trial court, had been admitted to the law school for the year to which he had applied, made his way through law school. At the time the United States Supreme Court heard the case, DeFunis, who had not requested damages or declaratory relief, was in his last year of law school. The law school assured the Court that he would be permitted to finish his studies, whatever the outcome of the case. The Court found DeFunis had been accorded full relief in the interim. The Court explained that the particular action, refusal to admit DeFunis to law school because of his race, could never again occur to DeFunis:

  [M]ootness in the present case depends not  at all
  upon a "voluntary cessation" of the admissions
  practices that were the subject of this litigation. It
  depends, instead, upon the simple fact that DeFunis is
  now in the final quarter of the final year of his
  course of study, and the settled and unchallenged
  policy of the Law School to permit him to complete the
  term for which he is now enrolled. It might be
  suggested that this case presents a question that is
  "capable of repetition, yet evading review,"
  [citations omitted] and is thus amenable to federal
  adjudication even though it might otherwise be
  considered moot. But DeFunis will never again be
  required to run the gantlet of the Law School's
  admission process, and so the question is certainly
  not "capable of repetition" so far as he is
  concerned.

Id. at 318-319, 94 S.Ct. at 1706-07. The Court noted that if the complained of admissions policies continue, "there is no reason to suppose that a subsequent case attacking those procedures will not come with relative speed to this Court, now that the Supreme Court of Washington has spoken." The Court concluded that the case did not present that exceptional situation warranting departure from the rule that a case or controversy exist through all stages of an action, and not simply at the time such action is commenced. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

The DeFunis decision that the case was moot relied strongly on the fact that DeFunis's admission could not be reversed. The Court noted that DeFunis complained of the school's admissions procedure. Had the question of mootness arisen by reason of the law school's unilateral change in admissions procedures, the Court continued, it may not have found the case moot.

  [A] voluntary cessation of the admissions practices
  complained of could make this case moot only if it
  could be said with assurance "that `there is no
  reasonable expectation that the wrong will be
  repeated.'" [Citation omitted.] Otherwise, "[t]he
  defendant is free to return to his old ways,"
  [citation omitted], and this fact would be enough to
  prevent mootness because of the "public interest in
  having the legality of the practice settled."
  [Citation omitted.] But mootness in the present case
  depends not at all upon a "voluntary cessation" of the
  admissions practices that were the subject of this
  litigation. It depends, instead, upon the simple fact
  that . . . the settled and unchallenged policy of the
  Law School [is] to permit him to complete the term for
  which he is now enrolled.

416 U.S. at 318, 94 S.Ct. at 1706.


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