Construction and General Laborers' Union No. 330 v. Town of Grand Chute - Seventh Circuit Court of Appeals
Facts: The Construction and General Laborers' Union No. 330 ("Union") learned that a masonry company working at Kolosso Toyota in Town of Grand Chute, Wisconsin ("Grand Chute") was not paying area standard wages and benefits. The Union subsequently decided to engage in informational picketing at the dealer beginning March 31, 2014. In the course of this picketing, the Union used a 12 foot inflatable Scabby the Rat which was set up in the median directly across the dealer. (The below link to the Court's opinion includes pictures of Scabby the Rat on page 5 of the Court's opinion). Scabby was tethered to stakes that were pounded into the ground. Whenever Union members were not present, Scabby was deflated. On April 1, Eric Thiel ("Thiel"), the Code Enforcement Officer for Grand Chute, went to the picketing site and told the Union's President, Kelly Buss ("Buss"), that Scabby would have to be deflated as it violated Grand Chute's Sign Ordinance. Buss indicated her surprise as she had apparently discussed the Union's protest plans with the Grand Chute Police a few days before and they had not voiced an objection.
Scabby was eventually removed from the picketing site and the Union filed suit against Grand Chute on the grounds that the 2014 Sign Ordinance violated the First Amendment as it distinguished among signs on the basis of content. The district court denied a motion for preliminary injunction and later entered summary judgment for Grand Chute. The Union appealed and the Seventh Circuit Court of Appeals concluded it was concerned that because the construction project had been completed, the issue was moot. On remand, the district court found the issue was not moot as the Union was seeking damages based on the fact that it paid members to assist in the picketing at the dealership. Turning to the Union's claims under both the 2014 and 2015 Ordinance, the Union argued that the Ordinance against Scabby violated its First Amendment rights. The district court rejected the Union's claim as to the 2014 Ordinance and ruled in favor of Grand Chute. As for the Union's claim as to the 2015 Ordinance, the district court rejected the Union's claim and ruled in favor of Grand Chute. The Union proceeded to again appeal to the Seventh Circuit Court of Appeals.
Holding: At the outset of its opinion, the Court recognized it would consider both the 2014 and 2015 versions of the Grand Chute Ordinance, as the district court had done. As readers might be aware, a law or ordinance that restricts protected free speech in a public forum will be upheld 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. However, a municipality is entitled to implement a nondiscriminatory ban of all private signs from the public roads and rights of way. With that being said, 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."
2014 Ordinance
As for the 2014 Ordinance, the Union argued that Grand Chute engaged in unlawful, selective enforcement in connection with the picketing at the dealership. To start, the Union suggested that since the Ordinance placed no meaningful limits on the Code Enforcement Officer's discretion, Grand Chute's enforcement was necessarily selective. To prove its point, the Union claimed that Thiel was allowing certain signs that were incompatible with the Ordinance to remain undisturbed, while at the same time insisting Scabby be removed.
The facts in the record established that shortly after the Union began picketing, Grand Chute's chairman notified Thiel that there had been a complaint about Scabby. Although Thiel had primary responsibility for enforcing the Ordinance, the police department occasionally helped. As Code Enforcement Officer, Thiel ensured compliance with the Ordinance by driving around Grand Chute and investigating complaints about signs. Generally, when a complaint is made about a sign, Thiel does not know the reason for the complaint. Rather, once a complaint (or violation is noticed), Thiel would either remove the sign immediately or talk to the property owner and inform the owner that the singed needed to be removed.
On April 1, 2014, Thiel told Buss that Scabby violated Section 535-108 of the 2014 Ordinance and therefore needed to be deflated and removed. Buss got a second opinion from a police officer that told her Scabby could remain because the Ordinance addressed only commercial signs and the Union was using Scabby for a non-commercial purpose. The Union proceeded to use Scabby on April 2 without incident but on April 3, the Union's representatives were approached by a code enforcement officer from a neighboring county. That officer thought Scabby had strayed over the line between Grand Chute and the neighboring municipality (where this officer was from). The Union obeyed this order and moved Scabby over to the Grand Chute side of the boundary. Scabby remained inflated the rest of the day, April 2, but was not used April 4, 5, and 6.
Although Thiel was aware that Scabby was being used on April 2, he took no action until he could clarify that Scabby was a "sign" within the meaning of the Ordinance and whether the Union's use of Scabby amounted to a violation. On April 3, Thiel and other town officials agreed Scabby was a "sign" and the fact that he was tethered to the ground meant he was not permitted under the Ordinance. When the Union tried inflating Scabby on April 7, the police told them to deflate Scabby and remove him. The Union attempted to show that Grand Chute officials, namely Thiel, were discriminating against the message Scabby was conveying. To prove their point, Union officials photographed other signs in town that allegedly did not comply with the Ordinance. However Thiel testified that he had investigated every sign the Union identified and had taken action if a violation was found to exist. Of the 60 alleged violations, Thiel found only 5 on a public right of way; the remainder were either on private property or had been removed. For the other 30 alleged violations identified, Thiel found only 9 on a public right of way and those were either removed or the owners were instructed to remove them. As for the Grand Chute Fire Department's use of a sign on a public right of way for its "Fill the Boot" campaign, the Court recognized the sign was on a folding easel and did not violate the Ordinance (as it only covered signs affixed to the ground, which Scabby was).
2015 Ordinance
Turning to the 2015 Ordinance, the Union argued that had it not been for this law, Scabby would have been used again on a public right of way at several other locations, unrelated to the Kolosso protest. However, the Union claims it did not use Scabby as Grand Chute said the new Ordinance prohibited the use of inflatables on public right of ways. Notably, the 2015 Ordinance does not impose a blanket restriction against signs on a public right of way. Instead, the Ordinance says "No part of a sign may be located in public road right-of-way [sic] unless allowed by Town Board approval because of unique circumstances or unusual hardship." The Ordinance also included a reference to inflatables that included a restriction that inflatables "must be placed a minimum of 10 feet from any property line, and must be directly anchored to the ground with a tether having a maximum length of 5 feet. Inflatable signs require a permit and may be in sue for a maximum of 5 days in any consecutive 6-month period."
The Court did point out that there were several questions that could be raised in regard to Grand Chute's (uneven) enforcement of this version of the Ordinance. Based upon the facts in the record, it appeared that Grand Chute was blurring the lines between what it decided was acceptable signage/inflatables and what was not. However, the Court chose not pursue the matter further as it found the district court should not have considered the issue. The Union's allegations in regard to the 2015 Ordinance centered on what it might have done which was held to be too speculative to create a concrete dispute. As a result, the Court vacated this portion of the district court's judgment in favor of Grand Chute.
Judgment: The Court of Appeals affirmed the district court's ruling in favor of Grand Chute on the grounds that the 2014 Ordinance that prohibited signs on a public right of way was content neutral and the Ordinance was narrowly tailored to meet its stated purpose (banning signs on a public right of way that might obstruct or distract passing drivers.) As for the 2015 Ordinance, the Court of Appeals vacated the district court's ruling on the grounds that the issues raised in this portion of the Union's appeal were too speculative to have created an actual concrete dispute.
The Takeaway: I have gone years without much of a mention of Scabby and here we have yet another post about the topic in two months. This particular opinion was a call back to my days in Con Law and reviewing restrictions on protected speech for several different bar exams. Fond memories... With that being said, I think the Court of Appeals reached the correct conclusion here when considering the validity of the 2014 Ordinance. The facts in the record established that although Thiel may not have "ferreted out" every non-compliant sign on a public right of way in Grand Chute, he had apparently never seen a violation and failed to enforce the Ordinance. Notably, the Court dispensed with the argument that Thiel had not always been consistent with respect to signs on private property, as the part of the Ordinance relevant to the Union's complaint addressed only public property. Accordingly, the Court pointed out that the Union had neither sought nor been denied a permit to place Scabby on private property. Had either occurred, Thiel's apparent uneven enforcement of the Ordinance for signs on private property would have been applicable and relevant to the Union's case.
Turning to the 2015 Ordinance, this version of the Ordinance appears to be ripe for another case to address. As the Court inferred, there appears to be a question whether the 2015 Ordinance imposes a blanket restriction on Pumpkin, Santa Claus, Frosty, or Spiderman inflatables (that were permitted under the 2014 Ordinance) on private property. Thiel had acknowledged that he allowed inflatables that he considered holiday decorations to remain on private property (a sort of unwritten holiday decoration exception to the 2015 Ordinance) and even conceded Scabby could qualify for this exception if he wore a Santa hat. (Although Thiel has apparently considered whether he will adopt a more evenhanded prohibition on signs, regardless if they are festive or not.) The Court gave an indication of how it might rule on such an issue when it recognized that Grand Chute (or another municipality) would have a hard time explaining why it allowed a Santa inflatable to celebrate Christmas or a Spiderman inflatable to promote a movie, but not Scabby. I have a link to the current language of Grand Chute's Ordinance. It appears to contain the same language as the 2015 Ordinance...perhaps a Union or related group will test the lawfulness of Grand Chute's Ordinance in the near future? As I noted, this particular issue appears ripe for another case to address.
Majority Opinion Judge: Chief Judge Wood
Date: February 14, 2019
For a copy of the current text of Grand Chute Ordinance Section 535-106D(5): https://ecode360.com/12229068
Opinion: http://hr.cch.com/eld/LaborersGrandChute021419.pdf
Comments
Post a Comment