By Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP
In Construction & General Laborers’Local Union No. 330 v. Town of Grand Chute, Wisconsin
, No. 15-1932, 2016 WL 4410073 (7th Cir. Aug. 19, 2016), the Seventh Circuit Court of Appeals confronted a labor union’s First Amendment challenge to a town ordinance in Grand Chute, Wisconsin, which, as construed and applied, prohibited the display of giant inflatable rats and cats used by unions during wage disputes to the extent they were “staked to the ground on the public way.” 2016 WL 4410073, at *1.
In the district court, the union had moved for a preliminary injunction, which the court denied, and then entered summary judgment for the defendant town. Id. The union appealed. Id. However, without resolving the merits of the appeal, the Seventh Circuit reversed and remanded for a determination as to whether the union’s claim was moot, since the union had not requested an award of damages. Id. at *1-2.
Whether the dispute was moot was an issue that neither the parties nor the district court had considered. Id. at *1. As the Seventh Circuit noted in its opinion, however, by the time the district court entered summary judgment, the construction project that led to the use of the demonstrative rats and cats had been completed and the union was no longer picketing. Id. Also complicating the mootness analysis was the fact that the language of the ordinance had changed between the district court’s denial of the union’s motion for preliminary injunction and the entry of summary judgment. Id. at *2.
As the Seventh Circuit put it, “[w]e cannot decide this suit on the merits without being confident that we have a justiciable controversy.” Id. at *2. A controversy is still considered “live” if it is capable of repetition. Id. at *1-2. For a case to remain live because it is capable of repetition, the Court clarified, “there must be ‘a reasonable expectation that the same complaining party would be subjected to the same action again.’ ” Id. at *1 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Despite counsel for the union’s statement at oral argument that a dispute “might crop up again” if the union decides to demonstrate against a future construction project, the Court found that the record failed to contain any information about this likelihood. 2016 WL 4410073, at *1.
The Court further noted that, even if such a construction project in Grand Chute is built and a labor dispute arises, this particular suit may still be moot “if the controversy about that future project would not evade review.” Id. The Court continued, “Labor disputes are often short-term affairs, but many are long-lived,” and only the possibility of damages – which the union did not seek in this case – keeps a case alive when the project and resulting dispute have ended. Id.
Remanding for the district court to “take another look at it,” the Seventh Circuit explained: “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.” Id. at *2. The Court also instructed the district court to address the validity of the town’s current ordinances, rather than the version that was changed before the entry of summary judgment. Id.
Justice Posner authored both a concurrence and a dissent, observing that “[a]ppellate courts should try to make the first appeal in a case the last and order a remand only when the need for further proceedings at the trial level is imperative.” Id. at *4 (Posner, J., concurring and dissenting). In Justice Posner’s opinion, the balance of the evidence was “clear enough” to justify a decision that the union’s constitutional right of free speech was violated. Id.