Constr. & General Laborers’ Union No. 330 v. Town of Grand Chute

• Decision Date: 14 February 2019
• Docket Number: No. 18-1739,18-1739
• Citation: 915 F.3d 1120
• Parties: CONSTRUCTION AND GENERAL LABORERS’ UNION NO. 330, et al., Plaintiffs-Appellants, v. TOWN OF GRAND CHUTE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

915 F.3d 1120

CONSTRUCTION AND GENERAL LABORERS’ UNION NO. 330, et al., Plaintiffs-Appellants,

v.TOWN OF GRAND CHUTE, Defendant-Appellee.

No. 18-1739

United States Court of Appeals, Seventh Circuit.

Argued September 24, 2018

Decided February 14, 2019

Frederick Perillo, Attorney, PREVIANT LAW FIRM, S.C., Milwaukee, WI, for Plaintiffs-Appellants.

David J. Hanus, Brett B. Larsen, Attorneys, HINSHAW & CULBERTSON LLP, Milwaukee, WI, for Defendant-Appellee.

Before Wood, Chief Judge, and Easterbrook and Brennan, Circuit Judges.

Wood, Chief Judge.

Scabby the Rat has returned. Insofar as this case is concerned, he first made his appearance in the Town of Grand Chute, Wisconsin, in connection with a labor dispute there. When the Union could not persuade the district court to enjoin a Town ordinance forbidding Scabby’s presence, it appealed to this court. We were concerned, however, that the case might be moot, because the construction project Scabby had adorned was long since completed. Construction and General Laborers’ Local Union No. 330 v. Town of Grand Chute, Wisconsin, 834 F.3d 745 (7th Cir. 2016) ( Scabby I ). We therefore returned the case to the district court for further exploration of the original controversy and the significance, if any, of a replacement ordinance the Town enacted in 2015.

The district court did as we asked. Construction and General Laborers’ Local Union No. 330 v. Town of Grand Chute , 297 F.Supp.3d 850 (E.D. Wis. 2018) ( Scabby II ). It concluded that the case was not moot, because the Union was seeking damages stemming from the 2014 events. On the merits, the court held that the Town did not discriminate against the Union in violation of the First Amendment when it banned Scabby under its 2014 Sign Ordinance, and that the 2015 Sign Ordinance also passed constitutional muster. The Union has appealed from those rulings. We conclude that the district court correctly concluded that the dispute over the 2014 Ordinance was not moot, and that the Ordinance did not discriminate on the basis of content in violation of the First Amendment. Whatever dispute may exist over the 2015 Ordinance is not ripe at this time, however, and so we dismiss that part of the case without prejudice.

I

Scabby the Rat is a familiar sight in certain parts of the country when a dispute breaks out between a union and an employer. He is notable both for his symbolic meaning and for his size—he is a giant, inflatable balloon, available in sizes from 6 to 25 feet tall. See Union Rats—Rat Pack—Union Balloons , BIG SKY BALLOONS , http://www.bigskyballoons.com/ratpack.html (last visited Feb. 13, 2019). Scabby made his appearance in this case after Local 330 of the Construction and General Laborers’ Union learned that a masonry company working at Kolosso Toyota, in the Town of Grand Chute, was not paying area standard wages and benefits. The Union decided to engage in informational picketing at the site and to set up Scabby in the median directly across from the dealer, along the frontage road for West College Avenue, a major local thoroughfare. (The Union also used a large inflatable "Fat Cat," but there is nothing unusual about the Cat that requires discussion.)

The Union protest began on Monday, March 31, 2014. Union members installed a 12-foot version of Scabby by tethering the huge inflatable rat to stakes that had been pounded into the ground; whenever Union members were not there to attend him, they deflated him (a 54-second procedure). The protest went smoothly on the first day, but trouble began to brew on April 1. Eric Thiel, the Code Enforcement Officer for the Town, went to the protest site and told the Local’s president, Kelly Buss, that the Union would have to deflate Scabby because the rat violated § 535-108 of the Town’s Sign Ordinance. Buss was surprised, because he had discussed the Union’s protest plans with the Grand Chute Police a few days before and they had voiced no objection.

When all was said and done, the Union lost this round. See generally Scabby II , 297 F.Supp.3d at 859–62. It was forced to remove Scabby from the scene and resort to other methods of protest. That was when the Union filed this action in the district court; it asserted that the Town’s 2014 Ordinance violated the First Amendment because it distinguished among signs on the basis of content. The district court denied its motion for a preliminary injunction and later entered summary judgment for the Town.

The Union appealed the summary judgment ruling to this court. We concluded that we needed more information before we could reach the merits of the case, because we were concerned that the completion of the construction project that prompted the protest may have mooted the controversy. Scabby I , 834 F.3d at 748. Neither of the two possible theories that would avoid mootness—a live dispute over damages, or a claim capable of repetition yet evading review, see Weinstein v. Bradford , 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) —had been explored enough for us to proceed. Moreover, we noted, the Town amended its Code in 2015 and replaced the 2014 version of the Sign Ordinance with a new one. Id.

On remand, the district court first issued an order finding that the case was not moot. The Union assured the court, and the Town did not dispute, that the Union was seeking damages based on the fact that it had been forced to pay members to assist in the area-standards picketing at Kolosso and to draw greater resources from its organizing affiliate to staff and maintain the protest. The court noted, however, that the likelihood of recurrence theory was not available to the Union because of the amendment to the Ordinance. Order, Construction and General Laborers’ Local Union No. 330 v. Town of Grand Chute , No. 14-CV-455 (E.D. Wis. Feb. 3, 2017), ECF No. 64.

The court then turned to the merits. In doing so, it assessed the Union’s claims under both the 2014 Ordinance, which was in effect during the Kolosso picketing, and the 2015 Ordinance. The Union argues that both the past enforcement of the 2014 Ordinance and any potential future enforcement of the 2015 Ordinance against Scabby violates its First Amendment Rights. As the posture of the case differs significantly under the two Ordinances, we address them separately.

II

The lion’s share of the district court’s opinion focused on the Union’s claim for damages based on the 2014 Ordinance, and so we begin with that. We may uphold a law that restricts even protected speech in a public forum if the restriction is content neutral, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative ways to communicate the desired message. See Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). As we acknowledged in our earlier opinion, there is no doubt that a union’s use of Scabby to protest employer practices is a form of expression protected by the First Amendment. Scabby I , 834 F.3d at 751. Rats, as the manufacturer attests, "Get Attention." Rats Brochure , BIG SKY BALLOONS , http://www.bigskyballoons.com/pdfs/RATS_pg.pdf (last visited Feb. 13, 2019).

Id. We also noted, however, that a municipality is entitled to implement a nondiscriminatory ban of all private signs from the public roads and rights-of-way. Scabby I , 834 F.3d at 748 (citing Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) ). Grand Chute said that it had done no more than that. We agreed with the Town that its 2014 Ordinance was "comprehensive and content-neutral." Id. at 749. But that is not the end of the story. We pointed out that even a neutral ordinance can violate the First Amendment if it is enforced selectively, "permitting messages of which [the Town] approves while enforcing the ordinance against unions and other unpopular speakers." Id.

The Union argued that just such selective enforcement was going on in connection with the Kolosso protest. It offered two paths toward that conclusion. First, it contended that the 2014 Ordinance placed no meaningful limits on the Code Enforcement Officer’s discretion, and so the Town’s enforcement was necessarily selective. It relied for that proposition on Smith v. Executive Director of Indiana War Memorials Commission, 742 F.3d 282 (7th Cir. 2014), which holds that "[t]o qualify as content-neutral, a permit policy cannot invest ‘unbridled discretion’ in the person who decides whether a permit will issue because excessive discretion can lead to discriminatory enforcement." Id. at 289. It also argued that Officer Thiel was allowing certain signs that were incompatible with the Town’s Ordinance to remain undisturbed, while at the same time he was insisting that Scabby had to go. The district court rejected both theories. Scabby II , 297 F.Supp.3d at 857–58.

We take up the complaint about Officer Thiel first, because his actions influence both of the arguments the Union is presenting. In short, the findings of fact that the district court made on remand do not indicate either actual favoritism on Thiel’s part or so much discretion that discriminatory enforcement was inevitable.

Shortly after the Union’s protest began, the Town’s chairman notified Thiel that someone had complained about the rat. Thiel assumed that Kolosso was the complainant, but he did nothing to verify that fact. The evidence showed that Thiel had the primary responsibility for enforcing the Sign Ordinance, although the police department occasionally helped out on weekends or after hours. (A one-person enforcement staff might seem rather small, but it is worth bearing in mind that in 2014 Grand Chute had a population of 21,583, covering approximately 23 square miles. See GRAND CHUTE FIRE DEPARTMENT , 2014 ANNUAL REPORT 5, http://www.grandchute.net/i/d/gcfd_2014_annual_report.pdf. The fact that Thiel worked alone is thus not too surprising.)

Thiel explained that his job as Code Enforcement...