United States District Court, N.D. Illinois, Eastern Division
KATHERINE ALBRECHT and QUENTIN YOUNG, on behalf of themselves and all others similarly situated, Plaintiffs,
METROPOLITAN PIER AND EXPOSITION AUTHORITY, Defendant.
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This case comes before this Court on Defendant Metropolitan
Pier and Exposition Authority's Motion to Dismiss Plaintiffs'
Second Amended Class Action Complaint. Plaintiffs Katherine
Albrecht and Quentin Young ("Plaintiffs") assert a constitutional
challenge against the Metropolitan Pier and Exposition
Authority's policies regarding First Amendment activity at
McCormick Place, a large convention center located near downtown
Chicago. The issue to be decided is whether Plaintiffs have
failed to state a claim upon which relief can be granted. For the
reasons stated herein, Defendant's motion to dismiss is denied. I. BACKGROUND FACTS*fn1
On July 8, 2004, Plaintiffs Katherine Albrecht ("Albrecht") and
Quentin Young ("Young") filed a Second Amended and Supplemental
Class Action Complaint ("Compl.") against the Metropolitan Pier
and Exposition Authority ("MPEA"), the state unit that owns,
operates, and controls McCormick Place. Compl. ¶¶ 1, 6-8.
Plaintiffs allege that the MPEA has violated the First Amendment
of the United States Constitution pursuant to 42 U.S.C. §§ 1983
and 1988 and 28 U.S.C. § 2201 et seq., by adopting and
enforcing two policies that restrict expressive activity inside
and outside of McCormick Place by non-licensees. Compl. ¶¶ 1-2.
Albrecht and Young seek declaratory and injunctive relief as well
as damages. Compl, ¶ 1.
A. McCORMICK PLACE
McCormick Place is a large convention center located near
downtown Chicago that is visited by over four million people per
year. Compl. ¶¶ 13, 15. McCormick Place is comprised of the
Lakeside Center east of Lake Shore Drive, the Grand Concourse,
North Building, and South Building west of Lake Shore Drive.
Compl. ¶ 14. These buildings contain approximately 2.2 million
square feet of exhibition space, 112 meeting rooms, three
theaters, and seating for 10,000 people. Id. The Grand
Concourse is open to the public, contains a Metra train stop, restaurants, stores, and works of
The MPEA licenses McCormick Place's exhibition and meeting
rooms to a wide array of customers, who gather to communicate
about a wide variety of subjects. Compl. ¶ 15. Some of McCormick
Place's customers use the facility to discuss a myriad of
important public issues. Id. The MPEA has promulgated two
written policies regarding expressive activities by
"non-licensees" at McCormick Place. Compl. ¶¶ 17, 34. The first,
created in 2001, prohibited all forms of expressive activity in
the interior spaces of McCormick Place, but allowed two areas for
non-licensees outside of the buildings. Compl. ¶ 17, 19. The
second policy, adopted in 2004, replaced the 2001 policy and
allowed non-licensees to engage in expressive activity in the
same two outdoor areas but added five indoor locations. Compl. ¶
B. THE MPEA'S 2001 POLICY
On October 1, 2001, the MPEA promulgated a written policy
regarding expressive activities by non-licensees at McCormick
Place (the "2001 policy"). Compl. ¶ 17. This policy limited
"First Amendment expression" by non-licensees to two outdoor
designated areas ("Designated Areas 1 and 2"). Id. "First
Amendment expression" was defined as including but not limited
to: "literature distributions, signature solicitation and
picketing." Id. Designated Area 1 was outside and 103 feet from
Gate 30 of the Lakeside Center. Compl. ¶ 22. Designated Area 2
was on the western edge of McCormick Square and 279 feet away
from Gate 4 (the main entrance into the facility). Compl. ¶ 23. C. THE MPEA'S APPLICATION OF ITS 2001 POLICY AGAINST PLAINTIFF
Albrecht, the founder and director of Consumers Against
Supermarket Privacy Invasion and Numbering ("CASPIAN"), requests
relief regarding an incident that occurred under the MPEA's 2001
policy. Compl. ¶¶ 24-33. In September of 2003, Albrecht and
CASPIAN decided to protest the Electronic Product Code Symposium
which took place in McCormick Place's North Building meeting
rooms and exhibition halls on September 15 through 17, 2003.
Compl. ¶ 25-26. The subject of the conference was the development
of Radio Frequency Identification ("RFID") technology, which is
used to tag and to track individual consumer products. Compl. ¶
24. Albrecht and CASPIAN members oppose business practices such
as RFID usage, which they believe invade consumer privacy. Id.
On September 9, 2003, Albrecht requested permission from the
MPEA to allow Albrecht and CASPIAN members to distribute
leaflets, wear expressive clothing, and engage in public
education within the Grand Concourse. Compl. ¶ 29. Albrecht's
request was denied by the MPEA and she was informed that other
than for private trade shows, expositions and similar events,
"the facility's interior is not otherwise open to the public for
free expression." Compl. ¶ 30. Albrecht filed a lawsuit on
September 12, 2003, requesting equitable relief declaring the
2001 policy unconstitutional and enjoining the MPEA from
restricting her and like-minded persons to the Designated Areas.
On September 15, 2003, Albrecht requested this Court to enter a
temporary restraining order against the MPEA, enjoining it from
enforcing its policy against Albrecht and other CASPIAN members.
This Court denied Albrecht's request for a temporary restraining order
against the MPEA, however, the MPEA did permit Albrecht to wear
expressive clothing inside McCormick Place. Compl. ¶ 32. In
addition, the Court allowed Albrecht to pass out business cards
inside McCormick Place. Albrecht and 20 to 25 others went ahead
with the protest on September 16, 2003, but claimed that during
the two hours they were at Designated Area 2, very few visitors
walked near them. Compl. ¶ 33.
On April 22, 2004, Albrecht moved for leave to file an amended
complaint. The amended complaint alleged that Designated Areas 1
and 2 were inadequate venues for expressive activities. The
amended complaint sought class relief on behalf of all others
seeking to engage in expressive activity at McCormick Place. In
connection with the amended complaint, Albrecht filed a motion
for class certification. This motion has been stayed, pending the
outcome of Defendant's current motion to dismiss. The claims
articulated in Plaintiffs' first amended complaint have been
incorporated into Plaintiffs' most recent second amended
complaint. Compl. ¶¶ 17-33. However, Plaintiffs' now seek damages
in addition to the declaratory and injunctive relief sought in
the earlier complaints. Compl. ¶ 1, 21.
D. THE MPEA'S 2004 POLICY
Effective June 30, 2004, the MPEA adopted a new written policy
regarding expressive activity by non-licensees at McCormick Place
(the "2004 policy"). Compl. ¶ 34. The 2004 policy retains the
2001 policy's Designated Areas 1 and 2 but also includes 5 indoor
locations. Id. These five indoor areas are 3' × 6' or 3' × 9'
and are scattered throughout the McCormick Place buildings. Compl. ¶¶ 37-41. Plaintiffs now allege
that the two outdoor areas and five indoor areas are "wholly
inadequate venues for expressive activities by non-licensees."
Compl. ¶ 42.
Upon implementation of its 2004 policy, the MPEA moved to
dismiss the Plaintiffs' First Amended Complaint as moot because
the old 2001 policy was no longer in effect. On June 23, 2004,
Defendant agreed to withdraw its motion to dismiss upon
Plaintiffs' representation that they would file a second amended
On July 8, 2004, this Court granted Plaintiffs' motion for
leave to file their second amended and supplemental class action
complaint. In their second amended complaint, a second plaintiff,
Quentin Young, was added. Compl. ¶ 7. Plaintiffs also included
claims for equitable relief and damages arising out of the MPEA's
implementation of the 2004 policy. Comp. ¶¶ 34-53.
E. THE MPEA'S APPLICATION OF ITS 2004 POLICY AGAINST PLAINTIFF
Plaintiff Young requests relief regarding an incident in July,
2004 relating to the MPEA's 2004 policy. Young and his associates
requested permission of the MPEA to stand in non-designated areas
and pass out leaflets about universal health care to persons
attending the American Physical Therapy Association conference on
July 3, 2004. Compl. ¶¶ 43-46. The MPEA denied Young's request
and, as a result of the MPEA's refusal, Young was restricted to
passing out leaflets in the designated areas under the 2004
policy. Compl. ¶¶ 47-49. Young claims the designated areas in the
2004 policy limited his access to only a small percentage of those individuals attending the conference. Compl.
¶¶ 50-52. Young asserts that as a result of the MPEA's
application of the 2004 policy he and his associates were "unable
to effectively communicate with the vast majority of their
intended audience." Compl. ¶ 53. Young and the other Plaintiffs
seek injunctive and declaratory relief, as well as damages.
Compl. ¶ 1.
Defendant MPEA makes two principle arguments as to why
Plaintiffs' Complaint should be dismissed. First, the MPEA argues
that Plaintiffs' Complaint should be dismissed because the MPEA's
2004 policy is constitutional on its face and there is no
"colorable basis" for attacking the MPEA's 2004 policy. The MPEA
argues that prior case law has firmly established that the MPEA's
new policy is constitutional on its face and, therefore, it
should not be subjected to further litigation. Mot. to Dismiss at
10-15. Second, the MPEA attacks the portion of the Plaintiffs'
Complaint which challenges the 2001 policy. The MPEA argues that
because the 2001 policy no longer exists, the Plaintiffs' claims
with regard to that policy should be dismissed as moot. Mot. to
Dismiss at 15-17.
A. MOTION TO DISMISS
A motion to dismiss under Fed.R. Civ. P. 12(b)(6) tests the
sufficiency of the complaint, not the merits of the suit. Autry
v. Northwest Premium Svs., Inc., 144 F.3d 1037, 1039 (7th Cir.
1998). In deciding a motion to dismiss, all well-pleaded
allegations in the complaint are accepted as true. Hishon v.
King & Spaulding, 467 U.S. 69, 73 (1984). Ambiguities in the complaint are construed in favor of the
plaintiff. Thompson v. Ill. Dep't of Prof'l Regulation,
300 F.3d 750, 753 (7th Cir. 2002). Therefore, dismissal of the claims
is proper only when it appears beyond doubt that the plaintiff
can prove no set of facts to support his claim. Conley v.
Gibson, 335 U.S. 41, 45-46 (1957).
B. STANDARD OF REVIEW FOR FIRST AMENDMENT POLICIES
The First Amendment to the United States Constitution forbids
Congress from making laws "abridging the freedom of speech." U.S.
CONST. amend. I. The Due Process Clause of the Fourteenth
Amendment similarly forbids the States from enacting and
enforcing such laws. U.S. CONST. amend. XIV, § 1. The
constitutionality of a government policy restricting speech is
reviewed by applying the appropriate standard of review. See
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,
There are three steps a court must take when determining what
standard of review applies to a government regulation of
expressive activity on public property. First, a court must
determine whether the relevant areas of the property constitute
"traditional public," "designated public" or "non-public" fora.
Perry Educ. Ass'n, 460 U.S. at 44-46. Second, the court must
determine whether the government's policy is a content based or a
content neutral restriction on free expression. See Ayres v.
City of Chicago, 125 F.3d 1010, 1014 (7th Cir. 1997). Third, a
court will follow Supreme Court precedent and determine, based on
the type of forum and the type of government regulation, the
standard of review that will apply. Perry Educ. Ass'n,
460 U.S. at 45-46. For example, in order for the government to enforce a content
based restriction in a public forum, it must show that its
regulation is "necessary to serve a compelling state interest and
that it is narrowly drawn to achieve that end." Id. at 45. On
the other hand, for the government to enforce a content based or
a content neutral restriction in a non-public forum, the
regulation on expressive activity must merely be "reasonable in
light of the purpose of the forum and all the surrounding
circumstances." Cornelius v. NAACP Legal Defense and Educ. Fund,
Inc., 473 U.S. 788, 809 (1985); Perry Educ. Ass'n,
460 U.S. at 46.
C. THE MPEA'S 2004 POLICY REQUIRES ADJUDICATION OF
The first issue is whether the MPEA's 2004 policy is
constitutional on its face or whether it requires site specific
adjudication. The Defendant relies heavily upon a Seventh Circuit
case, Graff v. City of Chicago, where a constitutional
challenge to a city ordinance was dismissed at the pleadings
stage for failure to state a claim. 9 F.3d 1309, 1323 (7th Cir.
1993) (en banc).*fn2 In Graff the plaintiff was
challenging the constitutionality of a city ordinance that
required permits for erecting newsstands on public sidewalks.
Id. at 1311. The court held: "[w]here the courts have already
upheld a similar ordinance because of the governmental interests
at stake, a future litigant should not be able to challenge
similar governmental interests without showing some distinction at the
pleading stage." Id. Although the court stated that the "norm"
is to wait until the summary judgment stage to discover whether
an ordinance should stand, it found no error in dismissing the
case when there was no distinction between the present action and
previous cases challenging similar ordinances. Id. at 1322-33.
Defendant also relies upon another Seventh Circuit decision,
International Caucus of Labor Committees v. City of Chicago,
816 F.2d 337 (7th Cir. 1987), for the proposition that a
constitutional attack on an ordinance may be dismissed at the
pleadings stage if similar ordinances have already been found to
be constitutional. Id. at 340. In International Caucus, the
plaintiffs challenged the constitutionality of regulations at
O'Hare International Airport that prohibited the erection of
structures, carrying of large signs, and storing of literature in
public areas. Id. at 338-39. The court affirmed the district
court's decision to grant the defendant City's motion to dismiss
for several reasons. Id. at 339-40. First, one of the
regulations was almost identical to a regulation previously found
to be constitutional in International Society for Krishna
Consciousness, Inc. v. Rochford, 585 F.2d 263, 270 (7th Cir.
1978). Int'l Caucus, 816 F.2d at 339. Second, the other
regulations were not plainly based upon the content or subject
matter of speech. Id. Last, the court found that all of the
regulations clearly served a significant government interest.
Id. at 340.*fn3 The MPEA poses the issue of whether the 2004 policy is
constitutional on its face or whether it requires adjudication of
site specific facts in two separate arguments. First, the MPEA
argues that the complaint can be dismissed based purely on the
precedent of Chicago Acorn v. Metro. Pier and Exposition
Authority, 150 F.3d 695 (7th Cir. 1998). Alternatively, the MPEA
suggests that the complaint should be dismissed based upon a
comparison with several other first amendment cases. This Court
addresses these two arguments separately.
1. Chicago Acorn v. Metropolitan Pier and Exposition Authority
Does Not Require Dismissal of Plaintiffs' Complaint.
Applying the reasoning in Graff and International Caucus,
the MPEA first argues that Plaintiffs' challenge to the MPEA's
2004 policy can be rejected as a matter of law under the Seventh
Circuit's holding in Chicago Acorn v. Metropolitan Pier and
Exposition Authority, 150 F.3d 695 (7th Cir. 1998). Chicago
Acorn involved the same defendant, the MPEA, and a similar
constitutional challenge to the MPEA's First Amendment policies
regarding Navy Pier, another Chicago attraction run by the MPEA.
Navy Pier is an old navy facility that has been transformed into
a recreational and commercial center. Chicago Acorn,
150 F.3d at 698. The Pier is now "part park, part meeting and exhibition
facility, part shopping emporium, and amusement park." Id. The
Seventh Circuit found that Navy Pier was a non-public forum but
that the MPEA's then-existing policy regarding First Amendment
speech was unreasonable. Id. at 700, 704. Upon remand, the
district court issued a permanent injunction order instructing
the MPEA to allow leafleting in six different zones. Chicago
Acorn v. Metro, Pier and Exposition, No. 96 C 4997, 1999 WL
413480 (N.D. Ill. 1999) (instructing the parties to submit maps and proposals for the
The MPEA first reasons that because McCormick Place is a "more
austere, business-oriented" place than Navy Pier, McCormick Place
is certainly a non-public forum. Mot. to Dismiss at 11.
Therefore, the MPEA reasons, a court considering the
constitutionality of the MPEA's First Amendment policy at
McCormick Place will only need to determine if the policy is
"reasonable," Id. (citing Perry Education Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 46 (1983)). Because the MPEA has
recently changed its policy at McCormick Place to allow six zones
for leafleting, identical to the policy at Navy Pier, it argues
that the judicial resolution of the Chicago Acorn litigation
makes the McCormick Place policy reasonable.
Plaintiffs dispute that dismissal is required under Acorn.
First, Plaintiffs disagree with the MPEA's conclusion that
McCormick Place is a non-public forum. Second, Plaintiffs dispute
that the policy adopted for Navy Pier under Chicago Acorn is
substantially the same as the new policy at McCormick Place.
Plaintiffs note that the policy at Navy Pier allows demonstrators
to communicate with every single person who enters the Pier
because one of the leafleting zones is located at "Gateway Park"
the only entrance to the Pier. Plaintiffs maintain that the
Seventh Circuit heavily relied upon this fact when approving the
Navy Pier policy. See Chicago Acorn, 150 F.3d at 703. In
contrast, the McCormick Place policy does not grant demonstrators
access to everyone who enters McCormick Place. Plaintiffs reason
that the MPEA's policies regarding Navy Pier and McCormick Place
are not "virtually identical" as required under Graff, and therefore Chicago
Acorn does not mandate a dismissal of this case as a matter of
a. There Exists a Distinction Between This Case and Chicago
Acorn Based Upon the Forum Analysis
Applying the Graff and International Caucus standard, this
Court finds that there exists at least "some distinction" at the
pleadings stage between the policy at issue in this suit and the
policy at issue in the Chicago Acorn case. The Chicago Acorn
case will likely be relevant to the eventual outcome of this
suit. However, at this time, this Court is not in possession of
sufficient facts to determine whether, as a matter of law,
McCormick Place is a public or a non-public forum. The mere
assertion that McCormick Place is more "business oriented" than
Navy Pier is not a sufficient basis for this Court to determine
that the entirety of McCormick Place is non-public. Even if parts
of McCormick Place are deemed to be non-public, other parts may
be public, as in the case of Navy Pier. See Chicago Acorn,
150 F.3d at 703 (noting that although the pier itself was not a
public forum, the park at the entrance was).
Navy Pier and McCormick Place have different physical
characteristics, different purposes and uses, and are of vastly
different sizes. These factors alone create a distinction between
Chicago Acorn and this case. Unlike in Graff and
International Caucuses, the forum at issue (McCormick Place)
has not already been determined to be public or non-public. The
fact that Navy Pier is a non-public forum does not establish as a
matter of law that McCormick Place is a non-public forum. Furthermore, the
conclusion reached with respect to Navy Pier was made on the
basis of a comprehensive factual record, not at the motion to
b. Even if McCormick Place is a Non-Public Forum, the
Reasonableness Inquiry Prevents Dismissal.
Even if this Court were to conclude that McCormick Place is a
non-public forum, the inquiry would not end there. Merely because
a venue has been categorized as a non-public forum "does not mean
that the government can restrict speech in whatever way it
likes." Int'l Soc'y for Krishna Consciousness, Inc
("ISKCON"), 505 U.S. 672, 687 (1992). Indeed, the standard of
review for a non-public forum is that the government's regulation
on expressive activity must be "reasonable in light of the
purpose of the forum and all the surrounding circumstances."
Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,
473 U.S. 788, 809 (1985). Thus, as the Supreme Court stated in ISKCON,
the determination that a venue is a non-public fora only begins
the inquiry. ISKCON, 505 U.S. at 687.
If a court determines that a facility is a non-public forum, it
must determine the reasonableness of a policy based on several
factors (i.e., it cannot rely on single factors such as whether
a non-public forum is a multi-purpose facility). ISKCON,
505 U.S. at 690 (O'Connor, J., concurring). Thus, the court must
weigh all of the factors that point in favor of allowing speech
against those that support the need for restrictions. Id. In
Chicago Acorn, the Seventh Circuit described the reasonableness
inquiry as a "sliding scale," where a court must weigh the benefits and costs of free speech while
taking into account the particular features of the forum at
issue. Chicago Acorn, 150 F.3d at 703.
Based upon the intricacies of this analysis, at this time this
Court is not able to determine whether the 2004 policy is
"reasonable" as applied to McCormick Place. Plaintiffs claim that
the 2004 McCormick Place policy does not allow nearly as much
public contact as the Navy Pier policy. For instance, Plaintiffs
assert that the policy at Navy Pier allows them to come into
contact with every visitor of the Pier; in contrast, they assert
that the 2004 policy at McCormick Place only allows them to come
into contact with a small percentage of visitors.
In the present case, this Court must eventually weigh the
benefits to Plaintiffs of being able to access areas of McCormick
Place they cannot currently access under the 2004 policy against
the interests of the MPEA. During this analysis, the specific
attributes of McCormick Place will be taken into account. Because
McCormick Place is a large and unique facility, used for many
different purposes (parts of McCormick Place are used as meeting
facilities while other parts allow visitors to shop and catch
public transportation), this Court anticipates that a detailed
factual inquiry will be necessary.
The question of whether McCormick Place is a non-public forum
and the comparison between the McCormick Place and Navy Pier
policies are two issues that are not properly decided based only
upon the pleadings.*fn4 When taking all of the well pleaded
allegations in the complaint in the light most favorable to the Plaintiffs, this
Court cannot dismiss this case based upon the similarities of the
2004 policy with the policy at issue in Chicago Acorn.
2. Other First Amendment Cases Cited by Defendant Do Not
Support a Dismissal at the Motion to Dismiss Stage.
The MPEA next argues that even if the Chicago Acorn case
alone is not a sufficient basis to dismiss the Plaintiffs'
complaint, all other case law in the first amendment area support
a finding that the MPEA's McCormick Place policy is
constitutional on its face. Defendant MPEA cites numerous cases
from many different federal circuits to support its conclusion
that there is "no reported decision suggesting that [MPEA] can be
compelled to do more than offer a handful of leafleting zones
inside its facility." Mot. to Dismiss at 13-15. For example, the
MPEA cites a Tenth Circuit decision, Hawkins v. City and County
of Denver, 170 F.3d 1281 (10th Cir. 1999), which held that the
Denver Galleria, a facility designed to link performing arts
complexes, was a non-public forum where leafleting could be
Plaintiffs first argue that the cases cited by the Defendant
are not clearly dispositive of the current case. Because there
are several factual uncertainties which could distinguish the
current case from those cited by the Defendant, Plaintiffs argue
that under Graff, the case requires adjudication of specific
facts. The site-specific facts that Plaintiffs point to include:
"whether the additional fixed leafleting zones sought by
Plaintiffs would congest pedestrian flow; whether such zones
would so offend licensees that they would stop doing business at McCormick Place; and whether many facility visitors benefit from
information offered by non-licensees." Resp. to Def.'s Mot. to
Dismiss at 12-13. Furthermore, the Plaintiff points out that of
the nineteen public forum cases cited by the Defendant, only two
of those were disposed of via a 12(b)(6) motion, making it clear
that dismissal is the exception, not the rule.*fn5
This Court agrees with Plaintiffs that this case cannot be
decided on the basis of a motion to dismiss. There still exist
disputed issues of material fact. Construing the complaint in the
light most favorable to the Plaintiffs, this Court cannot
determine at this time that all of McCormick Place is a
non-public forum and that the 2001 or 2004 policies are reasonable as a matter of law. Therefore, Defendant's Motion
to Dismiss Plaintiffs' Complaint based upon the 2004 policy is
D. THE PLAINTIFFS' CLAIMS REGARDING THE 2001 POLICY ARE NOT
The Defendant's final argument is that a portion of the
Plaintiffs' Second Amended Complaint (Paras. 17-33, 68 and Prayer
for Relief) should be dismissed as moot because it refers only to
the MPEA's original 2001 policy. Mot. to Dismiss at 15-17. Under
Article III of the U.S. Constitution, cases that do not involve
"actual, ongoing controversies" are considered "moot" and should
be dismissed for lack of jurisdiction. U.S. CONST. art. III;
Federation of Adver. Indus. and Representatives, Inc. v. City of
Chicago, 326 F.3d 924, 929 (7th Cir. 2003).
1. The Damages Action and the Declaratory Judgment are
In a recent Seventh Circuit decision, Crue v. Aiken, the
court held that even if a claim for injunctive relief is barred,
a claim for declaratory judgment may remain as a predicate to a
related damages award. 370 F.3d 668, 677-78 (7th Cir. 2004).
Thus, the Seventh Circuit recognized that an award of damages is
often dependant upon a court's declaratory finding that the
defendant is culpable.
In this case, Plaintiff Albrecht has alleged that she suffered
damages as a result of the 2001 policy. Reading the complaint in
the light most favorable to the Plaintiffs, this Court concludes
that there is a viable case or controversy as to whether the
MPEA's application of the 2001 policy caused Plaintiffs' damages. However, in order to
determine whether damages should be awarded, this Court will need
to determine whether the 2001 policy was unconstitutional.
Therefore, Plaintiffs' claims for damages and declaratory relief
regarding the 2001 policy will not be dismissed.
Defendant raises an interesting issue in its reply brief
regarding the Plaintiffs' failure to assert a damages claim until
their second amended complaint. The MPEA notes that the
Plaintiffs did not include a request for damages until after the
MPEA had adopted the 2004 policy and until after it had moved to
dismiss the case as moot. The MPEA asserts that the Plaintiffs'
late addition of the damages claim was an attempt to "keep their
claim alive." Def.'s Reply at 12. The MPEA relies upon Boucher
v. Syracuse University, where the Second Circuit held: "[a]
request for damages . . . will not avoid mootness if it was
inserted after the complaint was filed in an attempt to breathe
new life into a moribund dispute." 164 F.3d 113, 118 (2nd Cir.
Nonetheless, Fed.R. Civ. P. 15(a) provides that parties may
amend their complaints by leave of court and that "leave shall be
freely given when justice so requires." Plaintiffs were granted
leave to amend their complaint after Defendant adopted its 2004
policy and moved to dismiss Plaintiffs' first amended complaint.
The Court has no reason to believe that the claim for damages is
not being raised in good faith consistent with Fed.R. Civ. P. 11
and 15(a). 2. Plaintiffs' Claim for Injunctive Relief Regarding the 2001
Policy Will Not be Dismissed at this Time.
In a recent Seventh Circuit decision, Federation of
Advertising Industry and Representatives, Inc. v. City of
Chicago, where a plaintiff was challenging a city ordinance that
was repealed during the course of the litigation, the court
noted: "a repeal, expiration, or significant amendment to
challenged legislation ends the ongoing controversy and renders
moot a plaintiff's request for injunctive relief."
326 F.3d at 930. The court further held that a complete repeal of a
challenged law renders injunctive relief moot, unless there is
"reasonable evidence creating a reasonable expectation that the
[defendant] will reenact the ordinance or one substantially
similar." Id. at 930. Courts have recognized that greater stock
should be given to a governmental official's repeal so long as
their actions appear genuine. Id. at 929. This standard of
justiciability applies to government enacted statutes and
ordinances as well as less formal governmental policies. See
e.g., Ragsdale v. Turnock, 841 F.2d 1358, 1365-66 (7th Cir.
1988) (applying this standard of justiciability to regulations
In this case, the MPEA argues that the adoption of the 2004
policy at McCormick Place constitutes the "significant amendment"
contemplated by the court in Federation, such that Plaintiffs'
continued arguments regarding the first McCormick Place policy
should be dismissed as moot. Plaintiffs argue that the injunctive
relief should not be dismissed because there is a danger that the
MPEA will reenact the 2001 policy. Plaintiffs cite to Defendant's
Motion to Dismiss as evidence that Defendant may decide to
reinstate the 2001 policy. Particularly, Plaintiffs point to the MPEA's statements that the
MPEA believes that its 2001 policy was reasonable and lawful;
that the new policy will burden the MPEA's interest; and that the
MPEA decided to create a new policy only to "avoid the expense of
further litigation and potential liability for attorney fees."
See Mot. to Dismiss at 4, 9, 13, 17.
Although this Court does not expect that injunctive relief
regarding the 2001 policy will be necessary in this case, it is
unwilling to dismiss the possibility entirely at this stage. As
previously discussed, at this early stage of the lawsuit this
Court cannot decide many of the issues that will prove critical
to the outcome of this litigation. However, this Court urges
Plaintiffs to seriously consider the established case law in
order to consider whether they intend to pursue injunctive relief
regarding the MPEA's 2001 policy. For the reasons stated above,
the Plaintiffs' claim for injunctive relief regarding the 2001
policy will not be dismissed at this time. IV. CONCLUSION
There are many issues raised by this litigation, including: 1)
whether McCormick Place is a public or non-public forum; 2)
whether portions of McCormick Place should be categorized as
public while other portions should be categorized as non-public;
and 3) whether the 2001 and 2004 policies are unconstitutional. A
motion to dismiss is not the proper stage to decide these issues.
These issues are better determined on the basis of a factual
record and a trial on the merits. For the reasons set forth in
this opinion, the Defendant's Motion to Dismiss Plaintiffs'
Second Amended Class Action Complaint is denied.