Clarkson v. Town of Florence

Decision Date02 May 2002
Docket NumberNo. 01-C-0587.,01-C-0587.
Citation198 F.Supp.2d 997
PartiesRaissa CLARKSON, Plaintiff, v. TOWN OF FLORENCE, Defendant.
CourtU.S. District Court — Eastern District of Wisconsin

Jeff Scott Olson, Madison, WI, for Plaintiff.

Barbara J. Janaszek, Milwaukee, WI, for Defendant.


ADELMAN, District Judge.


Plaintiff Raissa Clarkson owns the Gold Nugget Tavern in the Town of Florence, Wisconsin. As part of its entertainment the Gold Nugget features dancers who perform while partially nude. In October 2000 the Town enacted an ordinance prohibiting nude dancing in taverns. In this action, brought under 42 U.S.C. § 1983, plaintiff challenges the constitutionality of the ordinance under the First Amendment.

Section I of the ordinance provided as follows:

It is unlawful for any person to perform or engage in, or for any licensee or manager or agent of the licensee, or the owner of the licensed premises, to permit any person, employee, entertainer, or patron to perform or engage in any live act, demonstration, dance or exhibition on the premises of the licensed establishment or to appear in such manner or attire as to expose to view any portion of his or her genitals, pubic area, vulva, anus, anal clef [sic] or cleavage, nor shall suffer nor permit any female to appear on the licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola; or any simulation thereof.

Florence, Wis., Ordinance 10-9-00 (Oct. 9, 2000). For convenience I will refer to the ordinance's specification of body parts required to be covered as the "clothing requirement."

Plaintiff claims that the ordinance was facially unconstitutional. She further claims that enactment of the ordinance harmed her by discouraging prospective purchasers from buying the tavern, causing the business to lose revenue and her to suffer emotional distress. She seeks damages and declaratory and injunctive relief.

Defendant passed the ordinance on October 9, 2000. On June 1, 2001 plaintiff filed the present action, and on June 25, 2001, defendant agreed not to enforce the ordinance while the lawsuit was pending. On August 13, 2001, defendant passed a resolution stating that it would not enforce the ordinance, and on November 26, 2001, defendant repealed it.

Before me now are plaintiff's motion for summary judgment on the issue of liability and defendant's motion for summary judgment on liability and damages. Defendant argues that the court does not have subject matter jurisdiction because (1) plaintiff lacks standing to challenge the ordinance and (2) her claim is moot due to the repeal of the ordinance. Defendant also contends that the ordinance was constitutional and that plaintiff suffered no damage as the result of its enactment.

Additional facts will be stated in the course of the decision.1


Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; there must be a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a dispute to be genuine, the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Id. For the fact to be material, it must relate to a disputed matter that "might affect the outcome of the suit." Id. In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When both parties have moved for summary judgment, both are required to show that no genuine issues of fact exist, taking the facts in the light most favorable to the party opposing each motion. If issues of fact exist, neither party is entitled to summary judgment. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.1983).

The fact that both parties have moved for summary judgment, and thus both parties simultaneously contend that there is no genuine issue of fact, does not establish that a trial is unnecessary or empower me to enter judgment as I see fit. See 10A Charles Alan Wright et al., Federal Practice and Procedure § 2720, at 327-28 (3d ed.1998). I may grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law on the basis of the material facts not in dispute. See Mitchell v. McCarty, 239 F.2d 721, 723 (7th Cir.1957). Cross motions for summary judgment do not constitute a waiver of a trial. See Miller v. LeSea Broad., Inc., 87 F.3d 224, 230 (7th Cir.1996). The proper procedure is to assess the merits of each summary judgment motion independently. See Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir.1997). Each party, as a movant for summary judgment, bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. Moreover, the fact that one party fails to satisfy that burden on its own motion does not automatically indicate that the opposing party has satisfied its burden and must be granted summary judgment on the other motion. See Grow v. City of Milwaukee, 84 F.Supp.2d 990, 996 (E.D.Wis.2000); 10A Wright, supra, at 335.

I will consider; first, defendant's motion for summary judgment based on standing and mootness, second, the constitutionality of the ordinance as raised in the parties' cross motions for summary judgment on liability, and, third, the issue of plaintiff's alleged damages.


Under Article III of the Constitution, the federal judicial power extends only to "cases" or "controversies." U.S. Const. art. III. The "case or controversy" requirement ensures that federal courts will hear only justiciable or live cases. Crosetto v. State Bar, 12 F.3d 1396, 1403 (7th Cir.1993). The doctrine of standing focuses on justiciability at the time the action is commenced. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The mootness doctrine requires that the case remain live throughout the pendency of the action. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990).

A. Standing

The standing analysis focuses not on the claim itself but on the party bringing the challenge. Freedom from Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir.1988). To establish standing, a plaintiff must show (1) injury in fact, meaning an invasion of a legally protected interest that is concrete and particularized, actual or imminent, and not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of, such that the injury is fairly traceable to the defendant's actions; and (3) that a favorable decision is likely to redress the injury. Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 527 (7th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1300, 152 L.Ed.2d 212 (2002).

The requirement that a plaintiff have an injury in fact means that she must have an actual stake in the outcome that goes beyond "intellectual or academic curiosity." S.E. Lake View Neighbors v. Dep't of Housing & Urban Dev., 685 F.2d 1027, 1033 (7th Cir.1982). The requirement is an "`undemanding'" one. Family & Children's dren's Ctr., Inc. v. School City of Mishawaka, 13 F.3d 1052, 1058 (7th Cir.1994) (quoting North Shore Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir.1991)). Provided that a litigant can establish the existence of a distinct and palpable injury, even a minor injury can satisfy the case or controversy requirement. See ACLU v. City of St. Charles, 794 F.2d 265, 268 (7th Cir. 1986) (holding that plaintiffs' averment that they altered their normal routes of travel to avoid viewing a lighted cross displayed on public property satisfied Article III standing requirements). Standing can be predicated on a non-economic injury. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Although psychological harm such as that resulting from witnessing conduct with which one disagrees is, in itself, insufficient to confer standing, if the observation actually causes a litigant to alter her behavior, standing will be found. Freedom from Religion Found., Inc., 845 F.2d at 1467-68.

Considering the evidence in the light most favorable to her, plaintiff has submitted sufficient evidence to meet the standing requirement. Plaintiff has shown that as the result of the ordinance she suffered injury in fact. First, she testified in her deposition that a Town official advised her that if she continued to present erotic dancing she would suffer sanctions including the loss of her liquor license. (Janaszek Aff. in Opp. to Pl.'s Mot. for Summ. J., Ex. A at 79.) The threat of invasion of a legally protected interest is sufficient to confer standing. See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).

Second, plaintiff has shown that enactment of the ordinance adversely affected her attempt to sell her business. At a minimum, it delayed the contemplated sale of the tavern to Tami Goyen, one of her employees. Both plaintiff and Goyen confirmed this in their depositions. Plaintiff testified that "the short of it was that we agreed upon this price, her knowing what the business brought in after she's been working there for so many years .... And, of...

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