Metropolitan Milwaukee Commerce v. Milwaukee Cty.
| Decision Date | 25 April 2002 |
| Docket Number | No. 01-C-0149.,01-C-0149. |
| Citation | 201 F.Supp.2d 942 |
| Parties | METROPOLITAN MILWAUKEE ASSOCIATION OF COMMERCE, Plaintiff, v. MILWAUKEE COUNTY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Scott C. Beightol, Jonathan O. Levine, Gordon P. Giampietro, Michael Best & Friedrich, Milwaukee, for Metropolitan Milwaukee Association of Commerce, plaintiffs.
Frederick Perillo, Marianne Goldstein Robbins, Andrea F. Hoeschen, Previant Goldberg Uelmen Gratz, Miller & Brueggeman, Milwaukee, for Milwaukee County, F. Thomas Ament, Milwaukee County Department of Human Services, Ralph Hollmon, Milwaukee County Department of Public Works, Milwaukee County Department on Aging, Stephanie S. Stein, David Novak, defendants.
DECISION AND ORDER
Plaintiff Metropolitan Milwaukee Association of Commerce, an association of area businesses, challenges Milwaukee County's labor peace ordinance ("Chapter 31"). Chapter 31 requires certain Milwaukee County contractors to sign "labor peace agreements" with unions who seek to organize the contractors' County-funded employees. Plaintiff asserts that Chapter 31 is preempted by the National Labor Relations Act, 29 U.S.C. §§ 151, et seq., and violates the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment. Defendants dispute these assertions and also contend that I lack subject matter jurisdiction because plaintiff lacks standing and because its claims are not ripe. Before me now are the parties' cross motions for summary judgment.
Enacted in September 2000, Chapter 31 applies to entities with contracts of $250,000 or more with the County Department of Human Services, Department on Aging to provide "care or treatment services," and Department of Public Works to provide "transportation services for the elderly or persons with disabilities." Milwaukee County, Wis., Gen. Ordinances § 31.02(a) (2001). The ordinance potentially covers $53,000,000 of the County's more than $300,000,000 annual budget for purchasing services.
The purpose of Chapter 31 is to protect the County's interest in ensuring the uninterrupted delivery of County-funded services to vulnerable residents by preventing delays and disruptions caused by labor disputes during labor organizing drives. Id. § 310.01. Thus, in the event a union seeks to organize a contractor's County-funded employees, the contractor must take certain steps to try to avoid disruptions during the organizing campaign. Id. §§ 31.01, 31.03(b). Specifically, Chapter 31 requires the union and the contractor to agree to forgo certain types of disruptive activity, such as union economic action at the work-site, employer dissemination of false information intended to influence employee decision-making, and union or employer coercion or intimidation of employees. Id. § 31.01(f). If the union will agree to abide by Chapter 31's terms, then the contractor must likewise agree. Id. § 31.04. Chapter 31 gives the County discretion to terminate contracts with contractors who refuse to sign labor peace agreements with willing unions or who have been found by a neutral arbitrator to have violated labor peace agreements entered into pursuant to the ordinance. Id. § 31.05. Chapter 31 requires nothing of a contractor until a union seeks to organize its employees who perform work under the County contract. See id. § 31.01.
In late 2000 and early 2001, the County began sending out renewal contracts and soliciting bids for the 2001 year. The new contracts included a provision requiring compliance with Chapter 31 for those contractors covered by the ordinance. The provision stated,
Labor Peace Agreement to Reduce the Likelihood of Labor Disputes — Where applicable, Contractors shall comply with the provisions of Chapter 31 of the General Ordinances of Milwaukee County which is incorporated herein by reference and made a part of this Contract as if physically attached hereto.
(E.g., R. 41 Ex. C at 14.) Some contractors objected and crossed-out the provision before signing. However, County administrators refused to accept the altered documents, and so contractors signed contracts including the provision. In 2002, the process repeated itself.
Plaintiff submits affidavits from six of its members who are currently operating under County contracts but state that they object to the inclusion of the Chapter 31 provision. Four state that the inclusion of Chapter 31 "discourage[s]" them from bidding on County projects and that they do not intend to comply with Chapter 31 in the future. (R. 36 ¶ 9; R. 37 ¶ 9; R. 40 ¶ 8; R. 42 ¶ 16). No member states that it has been contacted by a union, thus, no member has signed or refused to sign a labor peace agreement, or been penalized by the County for noncompliance.
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; "the requirement is that there be no 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) (emphasis deleted). 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.
The moving party bears the initial burden of demonstrating that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party seeks summary judgment on the ground that there is an absence of evidence to support the non-moving party's case, the moving party may satisfy its initial burden simply by pointing out the absence of evidence. Id. at 325, 106 S.Ct. 2548. Once the moving party's initial burden is met, the nonmoving party must "go beyond the pleadings" and designate specific facts to support each element of the cause of action, showing a genuine issue for trial. Id. at 322-23, 106 S.Ct. 2548. Neither party may rest on mere allegations or denials in the pleadings, Anderson, 477 U.S. at 248, 106 S.Ct. 2505, or upon conclusory statements in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989).
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). However, it is "not required to draw every conceivable inference from the record — only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).
When reviewing cross motions for summary judgment, I assess the merits of each summary judgment motion independently. See 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2720 at 335 (3d ed.1998). 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. Id. 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 its motion. Id. 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).
It is a basic principle of federal jurisdiction that federal courts cannot give advisory opinions or resolve abstract legal questions. Wis. Right to Life, Inc. v. Paradise, 138 F.3d 1183, 1185 (7th Cir.1998); Wis.'s Envtl. Decade, Inc. v. State Bar, 747 F.2d 407, 410 (1984). Article III limits the federal courts to deciding actual cases or controversies. Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 527 (7th Cir.2001). The party seeking to invoke the jurisdiction of the federal court has the burden to affirmatively show that it raises a case or controversy, id. (citing City of L.A. v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)), and overcome the court's presumption that jurisdiction is lacking, Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (citing Bender v. Williamsport Area Sch. Dist. 475 U.S. 534, 546, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). When a party seeks a determination on the constitutionality of a statute, the case or controversy rule requires the party to present the constitutional question in the context of "a specific live grievance" or the court has no jurisdiction to hear it. J.N.S. Inc. v. State, 712 F.2d 303, 305 (7th Cir.1983); see Renne, 501 U.S. at 320, 111 S.Ct. 2331 ().
Particular rules apply when the party seeking jurisdiction is an association. Although generally a party can only assert its own rights, an association can assert the rights of its members if (1) its members on their own could otherwise raise a justiciable case or controversy; (2) the interests the association seeks to protect are germane to its purpose; and (3) "`neither the claim asserted nor the relief requested requires the participation of individual members.'" Retired Chi. Police Ass'n v. City of Chi., 7 F.3d 584, 600 (7th Cir.1993) (quoting Hunt v. Wash. Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). The first element of the test requires the court to treat the...
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