Milwaukee Police Ass'n v. Jones

• Decision Date: 24 September 1999
• Docket Number: No. 98-2904,98-2904
• Parties: (7th Cir. 1999) MILWAUKEE POLICE ASSOCIATION and JULIE HORTER, Plaintiffs-Appellants, v. ARTHUR JONES, Chief of Police for the City of Milwaukee, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 742

192 F.3d 742 (7th Cir. 1999)

MILWAUKEE POLICE ASSOCIATION and JULIE HORTER, Plaintiffs-Appellants, v. ARTHUR JONES, Chief of Police for the City of Milwaukee, Defendant-Appellee.

No. 98-2904

United States Court of Appeals, Seventh Circuit

Argued January 14, 1999

Decided September 24, 1999

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 C 597--Charles N. Clevert, Judge. [Copyrighted Material Omitted]

Before BAUER, ROVNER, and EVANS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

This is one of those cases in which litigation seems to have replaced common sense. The parties appear to agree on the proper resolution, but inexplicably have not taken basic steps to reach that resolution.

In June 1998, Milwaukee Chief of Police Arthur Jones issued the following directive to officers of the Milwaukee Police Department ("Department"):

If a Department employee makes a verbal or written complaint against another member, they are to be immediately informed that the complaint is CONFIDENTIAL and considered an internal investigation. They are to be ordered not to discuss the matter with anyone (including their Labor Union). Their reports are NOT to be duplicated, and the only statements they can make are to duly authorized Department members (IAD). Any questions can be directed to Internal Affairs. This directive is consistent with Department policy and takes effect immediately. This matter is also to be discussed at next Tuesday's command staff meeting. Dep. Insp. REINKE clarified that in matters involving EEOC complaints, the proper governmental agency is to be contacted.

Union rights will always be respected, however, their involvement in Department investigations is limited.

(emphasis in original). Jones issued the directive to the supervisory personnel in the Department, and they communicated it to the officers. The directive was in full force and effect once uttered. After its issuance, questions arose regarding its scope. Chief Jones by that time had left town on vacation, and his subordinates issued further clarifications of the order. On June 9, Captain Lindstedt drafted a document entitled "Instructions to Members," which reiterated part of the above directive and also stated:

Complaining members are instructed that they cannot talk to anybody regarding the matter under investigation; this includes their lawyer and/or union representative. Matters involving EEOC complaints are the exception; complaining members can seek representation in these situations. . . .

That document was read at roll call, and became effective at that time. Finally, Deputy Chief William Gielow issued a document entitled "Instructions to Supervisors," which largely tracked Jones' earlier pronouncement, declaring:

When a department member makes a verbal or written complaint against another member, they are to be immediately informed that the complaint is confidential and is an internal investigation. They are to be instructed not to discuss the matter with anyone. The reports are not to be duplicated and the only statements they can make are to authorized departmental members such as the Internal Affairs Division. Any questions regarding the investigation are to be referred to the IAD. If the matter involves an EEOC issue (racial or sexual discrimination) the member has a right to contact the EEOC.

Gielow testified that his Instruction was in full force and effect "the moment it left his lips." Jones was on vacation when both of those Instructions were issued. For the purposes of this appeal, the original directive and the Lindstedt and Gielow instructions will be referred to generally as "the directives."¹ All apparently were binding on the officers when issued.

The Milwaukee Police Association ("MPA"), which is the union representing non-supervisory police officers of the Milwaukee Police Department, sued the Chief of Police under 42 U.S.C. sec. 1983 alleging inter alia that the directives infringed its members' rights of free speech and association. The Milwaukee County Circuit Court issued a temporary restraining order ("TRO") on June 22, 1998, prohibiting Jones and his agents from enforcing Lindstedt's and Gielow's versions of Jones' directive. That same day, Assistant Chief of Police James Koleas issued a memorandum stating, in relevant part, that based on the TRO, the two directives (Lindstedt's and Gielow's) "shall be temporarily disregarded." The memorandum further stated that "[t]hese directives shall be disregarded immediately, and until further notice."

Shortly thereafter, Jones removed the matter to the federal courts. The district court conducted a hearing on the MPA's motion for a preliminary injunction, at which Chief Jones testified. The court denied the preliminary injunction, and the MPA appealed. The day after the injunction was issued, Chief Jones issued yet another directive on July 10, in the form of a memorandum, which provided in part:

Department members are reminded of the provisions of Rule 2/130.00 which states in part that members of the Police Department shall treat as confidential the official business of the Department. This rule normally will prohibit union or other representation for any Department member when interviewed in connection with an internal investigation or complaint that does not involve potential criminal charges against the member or an objective, reasonable probability of disciplinary action against that member.

In the paragraph that followed, Jones set forth the results of the preliminary injunction request, quoting the two paragraphs in which the district court denied that request.

I.

The initial issue that we must address involves determining which of the above directives are properly before this court. Confusion over this issue permeates the briefs in this case, and resolution of the issue ordained the outcome in the district court. It is ultimately dispositive of this appeal as well.

Jones argues that his July 10 directive supplanted the earlier directives, essentially rendering the case moot as to those directives (although the City does not actually develop the mootness argument). The MPA, on the other hand, asserts that nothing in the July 10 directive directly disclaims the earlier directives, and therefore they are still in effect. The irony in this case is that the City largely does not defend the plain language of some of the earlier directives, and the MPA does not contend that the July 10 directive is unconstitutional. Therefore, the case theoretically could have been resolved by the parties at the start, had they simply met and agreed upon language that unambiguously repudiated the earlier directives and replaced them with the July 10 directive. They have not done that, however, so we must decide whether the prior directives are properly before this court.

There is no merit to the argument that the July 10 directive supplanted the earlier directives. The July 10 directive did not even refer to those directives, and does not state what effect, if any, it has on those directives. Moreover, the July 10 directive addresses only one issue that was raised in the earlier directive, that of union representation during internal investigations. The earlier directives, however, were broader in scope than that. In addition to addressing union representation, the earlier directives also prohibited any communication to others, including an officer's own lawyer, regarding a matter under internal investigation. Therefore, we cannot agree that the belated directive of July 10 affects the viability of the earlier directives.

II.

The City also asserts, however, that the earlier directives are not before the court because they were rescinded on June 22 by Assistant Chief Koleas. The "rescission" identified by the City is the memorandum issued on June 22, the day the state court granted a TRO enjoining enforcement of the Lindstedt and Gielow directives. The June 22 memorandum provided that based on the TRO, the Lindstedt and Gielow directives "shall be temporarily disregarded," "immediately and until further notice." Essentially, the City is asserting that the June 22 memorandum has rendered the challenge to those directives moot, because they are no longer in effect. In support of this argument, they point to testimony provided by Chief Jones at the hearing on the preliminary injunction, in which Jones testified that the earlier directives did not reflect his intentions, and that he would issue an order clarifying that it was not intended to preclude communication with one's attorney.

We cannot agree that the June 22 memorandum rendered the challenge to the Gielow and Lindstedt directives moot. The June 22 memorandum was nothing more than an effort to comply with the TRO, and was by its express terms temporary in nature. Voluntary cessation of allegedly illegal conduct does not render a case moot unless the defendant can demonstrate that "'there is no reasonable expectation that the wrong will be repeated.'" DiGiore v. Ryan, 172 F.3d 454, 466 (7th Cir. 1999), quoting United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953). See also Wright & Miller, 13A Federal Practice & Procedure Juris.2d sec. 3533.7 (1984) ("Temporary compliance with a decree pending appeal . . . clearly should not moot a case unless other circumstances show that official policies really have changed. . . . It is equally easy to deny mootness if officials who have changed their practices warn that former practices may be resumed at any time."). Jones has failed to demonstrate that there is no reasonable expectation that the conduct will recur. The June 22 memorandum explicitly provided that the former practice might resume in the future, declaring that the change was only temporary and "until further notice." Moreover, the June 22 memorandum was nothing more than an attempt to implement the TRO. At no time has Jones actually conceded...