Constr. & General Laborers' Union No. 330 v. Town of Grand Chute

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1739
CONSTRUCTION AND GENERAL LABORERS’ UNION NO. 330, et al.,
Plaintiffs-Appellants,
v.
TOWN OF GRAND CHUTE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 14-C-455 — William C. Griesbach, Chief Judge.
____________________
ARGUED SEPTEMBER 24, 2018 — DECIDED FEBRUARY 14, 2019
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
BRENNAN, Circuit Judges.
WOOD, Chief Judge. Scabby the Rat has returned. Insofar as
this case is concerned, he first made his appearance in the
Town of Grand Chute, Wisconsin, in connection with a labor
dispute there. When the Union could not persuade the district
court to enjoin a Town ordinance forbidding Scabby’s pres-
ence, it appealed to this court. We were concerned, however,
that the case might be moot, because the construction project
2 No. 18-1739
Scabby had adorned was long since completed. Construction
and General Laborers’ Local Union No. 330 v. Town of Grand
Chute, Wisconsin, 834 F.3d 745 (7th Cir. 2016) (Scabby I). We
therefore returned the case to the district court for further ex-
ploration of the original controversy and the significance, if
any, of a replacement ordinance the Town enacted in 2015.
The district court did as we asked. Construction and General
Laborers’ Local Union No. 330 v. Town of Grand Chute, 297 F.
Supp. 3d 850 (E.D. Wis. 2018) (Scabby II). It concluded that the
case was not moot, because the Union was seeking damages
stemming from the 2014 events. On the merits, the court held
that the Town did not discriminate against the Union in vio-
lation of the First Amendment when it banned Scabby under
its 2014 Sign Ordinance, and that the 2015 Sign Ordinance also
passed constitutional muster. The Union has appealed from
those rulings. We conclude that the district court correctly
concluded that the dispute over the 2014 Ordinance was not
moot, and that the Ordinance did not discriminate on the ba-
sis of content in violation of the First Amendment. Whatever
dispute may exist over the 2015 Ordinance is not ripe at this
time, however, and so we dismiss that part of the case without
prejudice.
I
Scabby the Rat is a familiar sight in certain parts of the
country when a dispute breaks out between a union and an
employer. He is notable both for his symbolic meaning and
for his size—he is a giant, inflatable balloon, available in sizes
from 6 to 25 feet tall. See Union Rats—Rat Pack—Union Bal-
loons, BIG SKY BALLOONS, http://www.bigskybal-
loons.com/ratpack.html (last visited Feb. 13, 2019). Scabby
made his appearance in this case after Local 330 of the
No. 18-1739 3
Construction and General Laborers’ Union learned that a ma-
sonry company working at Kolosso Toyota, in the Town of
Grand Chute, was not paying area standard wages and bene-
fits. The Union decided to engage in informational picketing
at the site and to set up Scabby in the median directly across
from the dealer, along the frontage road for West College Av-
enue, a major local thoroughfare. (The Union also used a large
inflatable “Fat Cat,” but there is nothing unusual about the
Cat that requires discussion.)
The Union protest began on Monday, March 31, 2014. Un-
ion members installed a 12-foot version of Scabby by tethering
the huge inflatable rat to stakes that had been pounded into
the ground; whenever Union members were not there to at-
tend him, they deflated him (a 54-second procedure). The pro-
test went smoothly on the first day, but trouble began to brew
on April 1. Eric Thiel, the Code Enforcement Officer for the
Town, went to the protest site and told the Local’s president,
Kelly Buss, that the Union would have to deflate Scabby be-
cause the rat violated § 535-108 of the Town’s Sign Ordinance.
Buss was surprised, because he had discussed the Union’s
protest plans with the Grand Chute Police a few days before
and they had voiced no objection.
When all was said and done, the Union lost this round. See
generally Scabby II, 297 F. Supp. 3d at 859–62. It was forced to
remove Scabby from the scene and resort to other methods of
protest. That was when the Union filed this action in the dis-
trict court; it asserted that the Town’s 2014 Ordinance violated
the First Amendment because it distinguished among signs
on the basis of content. The district court denied its motion for
a preliminary injunction and later entered summary judg-
ment for the Town.
4 No. 18-1739
The Union appealed the summary judgment ruling to this
court. We concluded that we needed more information before
we could reach the merits of the case, because we were con-
cerned that the completion of the construction project that
prompted the protest may have mooted the controversy.
Scabby I, 834 F.3d at 748. Neither of the two possible theories
that would avoid mootness—a live dispute over damages, or
a claim capable of repetition yet evading review, see Weinstein
v. Bradford, 423 U.S. 147, 149 (1975)—had been explored
enough for us to proceed. Moreover, we noted, the Town
amended its Code in 2015 and replaced the 2014 version of the
Sign Ordinance with a new one. Id.On remand, the district court first issued an order finding
that the case was not moot. The Union assured the court, and
the Town did not dispute, that the Union was seeking dam-
ages based on the fact that it had been forced to pay members
to assist in the area-standards picketing at Kolosso and to
draw greater resources from its organizing affiliate to staff
and maintain the protest. The court noted, however, that the
likelihood of recurrence theory was not available to the Union
because of the amendment to the Ordinance. Order, Construc-
tion and General Laborers’ Local Union No. 330 v. Town of Grand
Chute, No. 14-CV-455 (E.D. Wis. Feb. 3, 2017), ECF No. 64.
The court then turned to the merits. In doing so, it assessed
the Union’s claims under both the 2014 Ordinance, which was
in effect during the Kolosso picketing, and the 2015 Ordi-
nance. The Union argues that both the past enforcement of the
2014 Ordinance and any potential future enforcement of the
2015 Ordinance against Scabby violates its First Amendment
Rights. As the posture of the case differs significantly under
the two Ordinances, we address them separately.
No. 18-1739 5
II
The lion’s share of the district court’s opinion focused on
the Union’s claim for damages based on the 2014 Ordinance,
and so we begin with that. We may uphold a law that restricts
even protected speech in a public forum 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. See Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). As we acknowledged
in our earlier opinion, there is no doubt that a union’s use of
Scabby to protest employer practices is a form of expression
protected by the First Amendment. Scabby I, 834 F.3d at 751.
Rats, as the manufacturer attests, “Get Attention.” Rats Bro-
chure, BIG SKY BALLOONS, http://www.bigskyballoons.com/p
dfs/RATS_pg.pdf (last visited Feb. 13, 2019).
6 No. 18-1739
Id. We also noted, however, that a municipality is entitled to
implement a nondiscriminatory ban of all private signs from
the public roads and rights-of-way. Scabby I, 834 F.3d at 748
(citing Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789 (1984)). Grand Chute said that it had
done no more than that. We agreed with the Town that its
2014 Ordinance was “comprehensive and content-neutral.”
Id. at 749. But that is not the end of the story. We pointed out
that 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.” Id.
The Union argued that just such selective enforcement
was going on in connection with the Kolosso protest. It
offered two paths toward that conclusion. First, it contended
that the 2014 Ordinance placed no meaningful limits on the
Code Enforcement Officer’s discretion, and so the Town’s
enforcement was necessarily selective. It relied for that
proposition on Smith v. Executive Director of Indiana War
Memorials Commission, 742 F.3d 282 (7th Cir. 2014), which
holds that “[t]o qualify as content-neutral, a permit policy
cannot invest ‘unbridled discretion’ in the person who
decides whether a permit will issue because excessive
discretion can lead to discriminatory enforcement.” Id. at 289.
It also argued that Officer Thiel was allowing certain signs
that were incompatible with the Town’s Ordinance to remain
undisturbed, while at the same time he was insisting that
Scabby had to go. The district court rejected both theories.
Scabby II, 297 F. Supp. 3d at 857–58.
We take up the complaint about Officer Thiel first, because
his actions influence both of the arguments the Union is
No. 18-1739 7
presenting. In short, the findings of fact that the district court
made on remand do not indicate either actual favoritism on
Thiel’s part or so much discretion that discriminatory
enforcement was inevitable.
Shortly after the Union’s protest began, the Town’s
chairman notified Thiel that someone had complained about
the rat. Thiel assumed that Kolosso was the complainant, but
he did nothing to verify that fact. The evidence showed that
Thiel had the primary responsibility for enforcing the Sign
Ordinance, although the police department occasionally
helped out on weekends or after hours. (A one-person
enforcement staff might seem rather small, but it is worth
bearing in mind that in 2014 Grand Chute had a population
of 21,583, covering approximately 23 square miles. See
GRAND CHUTE FIRE DEPARTMENT, 2014 ANNUAL REPORT 5, ht
tp://www.grandchute.net/i/d/gcfd_2014_annual_report.pdf.
The fact that Thiel worked alone is thus not too surprising.)
Thiel explained that his job as Code Enforcement Officer
included ensuring compliance with the Town’s zoning
ordinances, of which the Sign Ordinance was one. Zoning in
general accounted for about 25% of his workload. The district
court described Thiel’s testimony about the Sign Ordinance
as follows:
[Thiel] testified that he finds the majority of his sign
ordinance violations while driving around the Town;
however, he does occasionally investigate a complaint
about a sign that he receives from either a citizen or a
member of his staff. Thiel testified that when he
receives a citizen complaint about a sign, the
complainant normally does not indicate why he or she
is complaining about a given sign and Thiel does not
8 No. 18-1739
ask. Furthermore, he testified that his standard
practice to enforce the Town’s sign ordinance after a
complaint was to go to the site and investigate in
person. If he deemed a sign in violation of an
ordinance, he would either remove the sign
immediately or talk to the property owner and inform
the owner that he or she needs to remove the sign.
Scabby II, 297 F. Supp. 3d at 861.
Initially, there was some confusion about which Town
official had the final word about Scabby’s presence on West
College Avenue. On April 1, Thiel told Local president Buss
that the rat violated section 535-108 of the 2014 Ordinance and
that it thus had to be deflated and removed. Buss then sought
a second opinion from Police Officer Reifsteck, who told him
to the contrary that Scabby could stay because the Ordinance
addressed only commercial signs, and the Union was using
him for a non-commercial purpose. Confusing matters
further, Thiel admitted at trial that he had cited the wrong
section of the Ordinance in support of his order to remove the
rat. He should have pointed to section 535-106C, which covers
the public right-of-way.
In any event, based on Reifsteck’s advice, the Union used
Scabby all day on April 2 without incident. On April 3, the
Union’s representatives were approached by a different code
enforcement officer from neighboring Appleton, Wisconsin.
The Appleton officer thought that Scabby had strayed over
the line between Grand Chute and Appleton and that he
violated Appleton’s laws. The Union obeyed that order and
moved Scabby over to the Grand Chute side of the boundary.
Scabby remained inflated for the rest of the day on April 2.
The Union did not use him on April 4, 5, and 6.
No. 18-1739 9
Thiel was aware of Scabby’s re-inflation on April 2, but he
took no action until he could clarify whether Scabby was a
“sign” within the meaning of Grand Chute’s ordinance, and
whether the way the Union was using him amounted to a
violation. During a meeting on April 3, Thiel and other town
officials agreed that Scabby was indeed a “sign,” and that the
fact that he was tethered to the ground by means of the stakes
meant that he was not permitted under the Ordinance. The
Union tried inflating Scabby again on April 7, but Officer
Reifsteck ordered immediate removal and made a comment
about the publicity Scabby was attracting. The district court
credited Reifsteck’s testimony that the reason he instructed
the Union to stop using the rat was because it violated section
535-106C, not because of the newspaper coverage.
The Union tried to show that the Grand Chute officials—
especially Thiel—were discriminating against the message
Scabby was conveying so effectively. Union officials
photographed other signs within the Town that allegedly did
not comply with the Ordinance. But Thiel testified that he had
investigated every one of the signs identified by the Union
and had taken action where he found a violation. Of the 60
alleged violations Union official Linsmeier presented, Thiel
found only five on the public right-of-way. The remainder
were either no longer present or were located on private
property. Local president Buss photographed another 30
alleged violations, but Thiel reviewed all of them and found
that only nine were on the public right-of-way. For those nine,
he either removed them or instructed the owner to remove
them.
The Union also complained that the Grand Chute Fire
Department had been allowed to use a sign on the public
10 No. 18-1739
right-of-way in connection with its “Fill the Boot” campaign
for the Muscular Dystrophy Association. But, as Thiel
explained, the Fire Department’s sign rested on a folding
easel and so did not violate the ordinance, which covered only
signs that were affixed to the ground.
Thiel frankly admitted that he may not have ferreted out
every non-compliant sign on a public right-of-way in the
Town. But he testified that he has never seen a violation and
failed to enforce the Ordinance against it. He estimated that
he had removed approximately 150 signs a year from 2013 to
2015, and that he has never given a sign owner more than 24
to 48 hours to remove a non-compliant sign.
As we noted earlier, in Scabby II the district court credited
Thiel’s testimony in all these respects. It accordingly found
that the Town did not discriminate on the basis of content
when it ordered Scabby and the Fat Cat removed. It also
concluded that the fact that Thiel took the time to investigate
the scope of the Ordinance was not proof of content-based
action. Nor, it said, did Thiel’s handling of the 90 cases
represented in the Union’s photographs show anything but
even-handed enforcement on Thiel’s part. The court found
irrelevant the fact that Thiel had not always been consistent
with respect to signs on private property. (Thiel did not regard
holiday inflatables such as Santa Claus and Frosty the
Snowman as “signs” covered by the Ordinance.) The part of
the Ordinance relevant to the Union addressed only public
property, and as far as this record shows, the Union had
neither sought nor been denied a permit to place Scabby on
private property.
Based on this evidence, the district court held that the 2014
Ordinance was content neutral and that the Town’s rule was
No. 18-1739 11
narrowly tailored to meet its stated purpose—the banning of
anything on the public right-of-way that might obstruct
vision or distract passing drivers—noting that the Town did
not have any obligation to find the least restrictive means
possible. Scabby II, 297 F. Supp. 3d at 865 (citing Ward, 491 U.S.
at 798). Finally, consistent with what this court had observed
in Scabby I, the district court underscored that the Union had
enough alternate means of communicating its message. Id. at
866.
The Union gives us no reason to doubt the district court’s
findings of fact, which we can disturb only if we find them to
be clearly erroneous. FED. R. CIV. P. 52(a). Thiel’s testimony
also suffices to show that the Town’s Ordinance was not so
open-ended and vague as to leave Thiel with no guidance
whatsoever. It defined the term “sign” well enough to
distinguish between something on an easel and something
held by posts in the ground. Thiel also testified that he
understood there to be a difference between a holiday
inflatable decoration and a sign. Whether he was correct on
that point does not matter for present purposes. He was
observing a testable line, not using unbridled discretion.
Indeed, no evidence indicated that Thiel was anything but
systematic in his enforcement of the 2014 Ordinance.
We therefore affirm the district court’s judgment insofar
as it rejects the Union’s claims based on the 2014 Ordinance.
III
As we noted earlier, the district court also issued a deci-
sion on the merits with respect to the 2015 Ordinance. The
Union alleged that, had it not been for that law, it would have
used Scabby again on a public right-of-way in several
12 No. 18-1739
additional instances unrelated to the Kolosso protest. But it
refrained from doing so, it asserted, because the Town told it
that the new Ordinance prohibited the use of inflatables in
those settings.
There are some important differences between the 2014
§and the 2015 Ordinances. For example, the 2015 Ordinance
does not impose a blanket prohibition against signs on the
public right-of-way. Instead, it says that “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 un-
usual hardship.” 2015 Ordinance, § 535-106D(5) (emphasis
added). The 2015 Ordinance also has a section dedicated to
inflatables, which reads as follows:
Inflatable signs. Inflatable signs are permitted only on
lots in the Community Center sign district. All inflata-
ble signs 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 use
for a maximum of 5 days in any consecutive 6-month
period.
Id., § 535-106F(5).
Nothing in this section limits its application to the public
right-of-way, and so it squarely raises the question whether
Pumpkin, Santa Claus, Frosty, or Spiderman inflatables that
were permitted on private property under the 2014 Ordinance
are now subject to the new blanket restrictions. Thiel’s testi-
mony at trial revealed that he was enforcing an unwritten hol-
iday decoration exception to the 2015 Ordinance. He admitted
to allowing inflatables he considered holiday decorations on
No. 18-1739 13
private property, and he suggested that Scabby might qualify
for this exception if he donned a Santa hat. The litigation over
Scabby, however, had prompted Thiel to re-evaluate this pol-
icy and consider whether he needed to adopt a more even-
handed prohibition of all signs—festive or no. Indeed, if Santa
is sending a message about celebrating the Christmas holiday,
or Spiderman is some form of commercial speech touting a
new movie release, the Town might have a hard time explain-
ing why they are permissible and Scabby is not.
Interesting as those questions are, we conclude that they
are for another day and that the district court should not have
addressed the 2015 Ordinance at all. The Union’s allegations
about protests it might have conducted are too speculative to
create a concrete dispute. See Susan B. Anthony List v. Driehaus,
573 U.S. 149, 167 (2014). Should such a dispute arise, it would
provide necessary context: Would Scabby (or any other inflat-
able) be on private or public property? How (if at all) would
the Code Enforcement Officer distinguish among different in-
flatables? What would the record show about the consistency
of the Town’s policies? The answers to these and similar ques-
tions are potentially important, but as the record now stands
they elude us entirely. This part of the case should have been
dismissed for failure to present a ripe Article III case or con-
troversy.
***
We therefore AFFIRM the district court’s judgment with
respect to the 2014 Ordinance, and we VACATE its judgment
and REMAND for dismissal without prejudice of the Union’s
case with respect to the 2015 Ordinance. Each side is to bear
its own costs on appeal.