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Construction and General Laborers' Local Union No. 330 v. Town of Grand Chute, Wisconsin

United States Court of Appeals, Seventh Circuit

August 19, 2016

Construction and General Laborers' Local Union No. 330 and Kelly Buss, Plaintiffs-Appellants,
Town of Grand Chute, Wisconsin, Defendant-Appellee.

          Argued November 6, 2015

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-C-455-William C. Griesbach, Chief Judge.

          Before WOOD, Chief Judge, and POSNER and Easterbrook, Circuit Judges.

          Easterbrook, Circuit Judge.

         Rats. This case is about rats. Giant, inflatable rats, which unions use to demonstrate their unhappiness with employers that do not pay union-scale wages. Cats too-inflatable fat cats, wearing business suits and pinkie rings, strangling workers. Here is what they look like, as deployed during a labor dispute in the Town of Grand Chute, Wisconsin:


         As the pictures show, the rat and the cat are staked to the ground, to prevent the wind from blowing them away. Those stakes led to this litigation.

         Grand Chute forbids private signs on the public way. Municipal Code §535-106C. Another section defines signs to mean "[a]ny structure, part thereof, or device attached there-to" that conveys a message. Municipal Code §535-105. Picket signs and sandwich boards are lawful under this definition, and the Town did not interfere with the Union's use of them. But the Union inflated its rat and cat in the median of a highway, and because they were staked to the ground the Town treated them as structures.

         If picketers had held them down by ropes, there would not have been a problem under the Town's rules. Likewise if they had been inflated with helium and floated six inches above the ground. The Town suggested that the protesters mount the cat and rat on a flatbed truck, which would not be a structure; 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 that the local ordinance violates the Constitution's First Amendment, applied to the states through the Fourteenth.

         The district court denied the Union's motion for a preliminary injunction, 2014 U.S. Dist. Lexis 59340 (E.D. Wis. Apr. 29, 2014), and about a year later entered summary judgment for the Town. The Union has appealed from the second order only.

         Unfortunately, neither the district court nor the parties considered the possibility that this case may be moot. By the time the court entered summary judgment, the construction project that led to the use of demonstrative rats and cats had been completed, and the Union was no longer picketing. It has not asked for an award of damages, which led us to wonder whether we have a live controversy. At oral argument counsel for the Union said yes, because a dispute might crop up again if the Union decides to demonstrate against a future construction project in Grand Chute. Yet 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." Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The record does not contain any information about this likelihood. How many construction projects built with non-union labor have caused labor disputes in Grand Chute? 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. Labor disputes often are short-term affairs, but many are long lived. Even for short-term disputes, the possibility of damages keeps a case alive.

         And there is one more problem: between the district court's order denying interlocutory relief and its order granting summary judgment, the Town amended its code (see Ordinance 2015-01) and changed the definition of a sign. The citations in this opinion are to pre-amendment language and numbering. None of the parties alerted us (or the district court) to this fact, which potentially affects the proper disposition if the controversy remains live.

         We cannot decide this suit on the merits without being confident that we have a justiciable controversy. The district court needs to take another look at it. If the Union persists in abjuring damages, the district court must determine 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. Then it must address the validity of the Town's current ordinances, rather than one that was changed before the entry of final judgment.

         Although we cannot resolve the merits while the presence of a justiciable controversy is in doubt, we can say a few words about other issues that the district court needs to consider if the controversy remains live.

         Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984), holds that a city may ban all private signs (including political ones) from the public way. Grand Chute has done just that-on paper. That the city allows its own signs (e.g., "No Left Turn") does not require it to allow private structures on public property, whether or not the private structure is designed to convey a message. See, e.g., Pleasant Grove v. Summum, 555 U.S. 460 (2009).

         The Union cannot avoid Taxpayers for Vincent by observing that the rat and cat are symbolic speech, because Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), holds that a public body may forbid the "action" component of symbolic speech, provided that it does not discriminate against disfavored viewpoints. In Community for Creative Non-Violence the National Park Service forbade all tents on the Mall in Washington, D.C., and the Court held that this was valid even though a group wanted to camp out to make a political point.

         The ordinances in Grand Chute are comprehensive and content-neutral, and decisions such as Community for Creative Non-Violence and Taxpayers for Vincent hold that a governmental body need not make ad hoc exceptions to such rules. To the contrary, limiting official discretion about who is entitled to speak is a vital goal of the Supreme Court's jurisprudence under the First Amendment. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-31 (1992); Niemotko v. Maryland, 340 U.S. 268 (1951). The sort of ad hoc exception that the Union wanted Grand Chute to make (on the ground that the rat and cat did not jeopardize traffic safety and were only temporary) not only would have transgressed the rule against open-ended discretion but also would have created a form of content discrimination. See United States v. Stevens,559 U.S. 460, ...

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