Lewis v. Hotel and Rest. Employees Union

• Decision Date: 11 March 1999
• Docket Number: No. 92-CV-1318.,92-CV-1318.
• Parties: Theresa D. LEWIS, Administrator, District of Columbia Housing Regulation Administration, Appellant, v. HOTEL AND RESTAURANT EMPLOYEES UNION, LOCAL 25, AFL— CIO, Appellee.
• Court: D.C. Court of Appeals

727 A.2d 297

Theresa D. LEWIS, Administrator, District of Columbia Housing Regulation Administration, Appellant, v. HOTEL AND RESTAURANT EMPLOYEES UNION, LOCAL 25, AFL— CIO, Appellee.

No. 92-CV-1318.

District of Columbia Court of Appeals.

Argued May 13, 1998.

Decided March 11, 1999.

Lutz Alexander Prager, Assistant Deputy Corporation Counsel, with whom Jo Anne Robinson, Principal Deputy Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellant.

Daniel M. Katz, Washington, DC, with whom Nicolas M. Manicone, Riverdale, MD, was on the brief, for appellee.

Before TERRY and STEADMAN, Associate Judges, and KERN, Senior Judge.

TERRY, Associate Judge:

Local 25 of the Hotel and Restaurant Employees Union ("the union") brought suit to challenge the constitutionality of certain provisions of the District of Columbia Noise Control Act of 1977, D.C.Law 2-53, codified at 20 DCMR §§ 3000 et seq. (1984). The trial court enjoined the noise limits and enforcement provisions of 20 DCMR §§ 3001.1 and 3011.1 as unconstitutional, and the District of Columbia appealed. While the appeal was pending, the Council of the District of Columbia enacted legislation that materially amended the Noise Control Act in favor of non-commercial speech. The parties agree that enactment of this legislation mooted this appeal. The only issue remaining before us is whether the original opinion of the trial court should be vacated. The District argues that it should be; the union argues that it should not. We agree with the District.

I

The District of Columbia Noise Control Act of 1977 ("the Act"), passed by the Council and signed by the Mayor, took effect on March 16, 1978. Section 5 of the Act provided in part:

No person shall cause, suffer, or permit any sound which emanates from an operation, activity, or noise source under his or her control to exceed the maximum permissible sound level established in the following table as applicable for the time of day or night and the zoning location where the noise originates.

D.C.Law 2-53, § 5(a), as codified at 20 DCMR § 3001.1 (1984). The appended table established the maximum daytime noise level in a residential or special purpose zone at sixty decibels. The Act also provided:

Notwithstanding any other provision of the Act, if the Mayor finds that any person is acting in a manner that causes or contributes to a sound level of a characteristic and duration which is likely to be injurious to the public welfare, the health of human or animal life, or to property, or which interferes with the reasonable enjoyment of life or property, the Mayor may order the person immediately to reduce or discontinue the act.

D.C.Law 2-53, § 11(a), as codified at 20 DCMR § 3011.1 (1984).

In September 1991 the union became embroiled in a labor dispute with the Jefferson Hotel. For almost four months beginning in October 1991, members of the union, using bullhorns and loudspeakers, engaged in picketing and "related communications efforts" in front of the hotel, at the corner of 16th and M Streets, N.W., in downtown Washington. On February 3, 1992, the Department of Consumer and Regulatory Affairs—the agency charged with enforcement of the Act¹— issued a cease and desist order to the union, coupled with a notice of infraction for using a bullhorn to amplify speech in excess of the limits prescribed by 20 DCMR § 3001.1.² On February 11 the union filed suit seeking to have the Act declared unconstitutional as it applied to union members' use of loudspeakers and bullhorns at picketing sites, and requesting an order permanently enjoining District of Columbia officials from enforcing provisions of the Act against union members.³ See COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON CONSUMER AND REGULATORY AFFAIRS, REPORT ON BILL 11-114, NOISE CONTROL AMENDMENT ACT OF 1996, at 2-3 (March 12, 1996) (hereafter "COMMITTEE REPORT") (summarizing the dispute between the union and the District).

On February 12 the court issued a temporary restraining order barring enforcement of the Act against the union. Thereafter the labor dispute between the union and the hotel was settled, and the District withdrew both the notice of infraction and the cease and desist order.

On October 1, 1992, the court entered summary judgment in favor of the union and permanently enjoined enforcement of the Act against the union. In its order the court:

DECLARED that the enforcement ... of the [Act], specifically 20 DCMR §§ 3001.1 and 3011.1 as applied to a labor union's use of amplified sound in conjunction with its public speaking activities on public streets, alleys, and thoroughfares, violates the First Amendment of the United States Constitution, and ...

FURTHER ORDERED, that ... all persons acting on behalf of the District of Columbia are permanently barred from any further acts to enforce said noise regulations against [the union's] use of bullhorns, loudspeakers, or other amplification devices in conjunction with its public speaking activities on public streets, alleys, or thoroughfares in the District of Columbia.

The District noted an appeal from the order granting summary judgment. Several months later the District filed a motion in this court stating that the issues presented by the appeal would be resolved by the enactment of pending legislation to amend the Act. We therefore entered an order staying the appeal.

Eventually, on June 26, 1996, the Council significantly amended the Act in several respects pertinent to this case. Noise Control Amendment Act of 1996, D.C.Act 11-297, 43 D.C. Register 3727, renumbered as D.C.Law 11-161, 43 D.C. Register 5614 (1996), codified at 20 DCMR §§ 2700 et seq. (1997) ("the Amended Act"). First, the Amended Act specifically exempts loudspeakers and amplifiers from the decibel level restrictions set forth in the accompanying table and limits their use only to the extent that their use becomes a "noise disturbance." D.C.Act 11-297, §§ 2(d) and 2(e), codified at 20 DCMR §§ 2701.1 and 2800.2 (1997). A noise disturbance is defined as "any sound which is loud and raucous or loud and unseemly and unreasonably disturbs the peace and quiet of a reasonable person of ordinary sensibilities in the vicinity thereof...." Id. § 2(b), codified at 20 DCMR § 2799 (1997). Non-commercial speech below eighty decibels in the central business district, however, is not deemed a noise disturbance. Id. Second, the Amended Act retained to some extent the grant of discretion to the Mayor under the prior Act, id. § 2(m), codified at 20 DCMR § 2711.1 (1997) ("If the Mayor finds that any person is acting in a manner that constitutes a violation of the [Amended] Act, the Mayor may order the person to cease and desist"), but also empowered the Mayor to grant a variance from the maximum noise limitations "when strict compliance with these provisions would impose an undue hardship on the applicant, on the community, or on other persons." Id. § 2(h), codified at 20 DCMR § 2705.1 (1997).

Following the effective date of the Amended Act, we lifted the stay of the appeal. The case proceeded to briefing and argument, which focused only on the issues of mootness and vacatur.

II

The parties do not dispute that passage of the Amended Act mooted the District's appeal from the trial court's order granting summary judgment in favor of the union. Bowen v. Kizer, 485 U.S. 386, 387, 108 S.Ct. 1200, 1201, 99 L.Ed.2d 402 (1988); Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 736, 93 L.Ed.2d 732 (1987); see SEC v. Medical Committee for Human Rights, 404 U.S. 403, 405-406, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972). The only issue left for us to decide is whether that order should be vacated.

In United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), the Supreme Court ruled that when a claim becomes moot while awaiting review in a federal appellate court, the judgment below should be vacated and the case remanded with directions to dismiss. Id. at 39, 71 S.Ct. 104; see Deakins v. Monaghan, 484 U.S. 193, 200, 108 S.Ct. 523, 528-29, 98 L.Ed.2d 529 (1988). The Court explained in Munsingwear that this procedure "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance," thereby preserving "the rights of all parties." 340 U.S. at 40, 71 S.Ct. 104; see also Deakins, 484 U.S. at 200, 108 S.Ct. 523.

In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994), the Supreme Court revisited Munsingwear and clarified that vacatur is not an automatic right, but rather an equitable remedy. Id. at 23-25, 115 S.Ct. 386; accord, Columbian Rope Co. v. West, 330 U.S.App.D.C. 86, 91 n. 5, 142 F.3d 1313, 1318 n. 5 (1998); National Black Police Ass'n v. District of Columbia, 323 U.S.App. D.C. 292, 297, 108 F.3d 346, 351 (1997). The Court reiterated that moot cases must be "disposed of ... in the manner most consonant to justice ... in view of the nature and character of the conditions which have caused the case to become moot." U.S. Bancorp, 513 U.S. at 24,115 S.Ct. 386 (internal quotation marks and citations omitted). The principal factor to be considered is "whether the party seeking relief from the judgment below caused the mootness by voluntary action." Id.; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 74-75, 117 S.Ct. 1055, 1072-73, 137 L.Ed.2d 170 (1997). A party seeking to avoid the legal consequences of a trial court decision cannot be allowed to circumvent appellate review by employing "the secondary remedy of vacatur as a refined form of collateral attack on the judgment." U.S. Bancorp, 513 U.S. at 27,115 S.Ct. 386; see United States v. Garde, 270 U.S.App.D.C. 275, 279, 848 F.2d 1307, 1311 (1988). "[T]o grant vacatur automatically in such instances would be to treat judicial precedents as `the property of private litigants' ...