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.
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
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
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
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
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
[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.