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Construction and General Laborers' Local Union No. 330 v. Town of Grand Chute

United States District Court, E.D. Wisconsin

March 14, 2018

CONSTRUCTION AND GENERAL LABORERS' LOCAL UNION NO. 330 and KELLY BUSS, Plaintiffs,
v.
TOWN OF GRAND CHUTE, Defendant.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge United States District Court

         In late March 2014, the Code Enforcement Officer for the Town of Grand Chute ordered a labor union to remove a giant inflatable rat it had staked to the ground in the public right-of-way of a main thoroughfare. The rat, along with a giant inflatable “fat cat” grasping a worker around the neck, were being used as part of a labor protest against a local business that was using a non-union contractor for an expansion project. The Officer explained that staking the rat to the ground in the public right-of-way violated the Town's sign ordinance, which in general prohibited all signs, except traffic-related signs, on public rights-of-way. The Union, Construction and General Laborers' Local Union No. 330, complied with the Officer's instructions and then commenced this lawsuit under 42 U.S.C. § 1983, claiming that the Town's sign ordinance, on its face and as applied, violated the Union's rights to free speech and assembly under the First and Fourteenth Amendments of the United States Constitution and Sections 3 and 4 of Article I of the Wisconsin Constitution. The Union's complaint asserted demands for declaratory and injunctive relief, as well as damages for the expenses for the additional manpower needed to conduct the protest without the inflatables.

         The case first came before me on the Union's motion for a preliminary injunction to enjoin the Town from enforcing its ordinance so as to prohibit the Union's use of the giant inflatable rat and cat as part of its protest. The Union claimed that the ordinance was unconstitutional on its face, and alternatively, that the Town discriminated on the basis of content in its enforcement of the ordinance. Following a hearing, I issued a decision denying the Union's motion on April 29, 2014. ECF No. 12. In so ruling, I held that the Town's ban on non-traffic-related signs in the public right-of-way was content neutral and that the Union had failed to establish a likelihood of success on its claim that the ordinance was enforced in a discriminatory manner. Id. The Union did not appeal at that time.

         The parties then conducted discovery and, upon completion, filed cross motions for summary judgment. On April 13, 2015, I granted the Town's motion and denied the Union's. ECF No. 42. In so ruling, I reaffirmed my preliminary conclusion that the ordinance was content neutral and constituted a reasonable exercise of the Town's authority to enact time, place and manner restrictions on signs on a public right-of-way. I further concluded that the Union had failed to offer any evidence that would place in dispute the Town's claim that its ordinance was enforced without regard to the content of the signs affected. Acknowledging that the evidence might show that enforcement of the ordinance was not perfectly uniform, I concluded that the Union had failed to show discriminatory enforcement. I also rejected the Union's argument that the fact that enforcement was sometimes triggered by citizen complaints transformed it into content-based discrimination. Id. at 14-15. Judgment in favor of the Town and dismissing the complaint was entered on April 13, 2015. ECF No. 43.

         The Union appealed, and on August 19, 2016, the Court of Appeals in a divided opinion vacated the judgment and remanded the case for a determination of (1) whether the case was moot since the project the Union was picketing was completed and a new ordinance had been enacted and, if not, (2) whether the Town was selectively enforcing its ordinance based on the content of the sign at issue. Const. & Gen. Laborers' Local Union No. 330 v. Town of Grand Chute, 834 F.3d 745, 748-50 (7th Cir. 2016). A majority of the three-judge panel appears to have affirmed this court's holding that the ordinance was content neutral and thus constitutional on its face. Judge Posner, on the other hand, in his partial dissent, seemed to conclude that it was not enough if the ban was content neutral: “For an ordinance to be allowed to curtail a constitutional right, it must be grounded in a legitimate public concern.” Id. at 754, (Posner, J., concurring in part and dissenting in part). He found the concerns offered by the Town, aesthetics and safety, “spurious as applied to the union rat” and perhaps even more so as to the cat. Id. The majority expressed the hope that “if this suit still presents a live controversy, the district judge will proceed with dispatch appropriate to the nature of the constitutional claim.” Id. at 750.

         The Court of Appeals mandate issued on September 12, 2016. On October 19, 2016, the court held a status conference and set a briefing schedule on the issue of mootness. The briefing was completed on January 31, 2017, and on February 3, 2017, the court issued its decision finding that the case was not moot since (1) the Union continued to seek damages for extra expenses it incurred in staffing its protest as a result of the Town's enforcement of its ordinance, and (2) the issue was likely to recur and the Town indicated the result would be the same under its new ordinance. ECF No. 64. The Union then filed an amended complaint adding a claim that under the new ordinance (“the 2015 Ordinance”) it would likewise be prevented from using its inflatable rat and cat at another labor demonstration in violation of its First Amendment rights. Following additional discovery, a trial to the court was held on August 7, 2017. Post trial briefing is now complete and the case is ready for decision. For the reasons that follow, I now conclude that the Town did not discriminate against the Union based on the content of its speech in its enforcement of the sign ordinance in effect at the time the case arose (“the 2014 Ordinance”) and reaffirm my conclusion that the Town's ban on signs on the public right-of-way is constitutional. I also conclude that the 2015 Ordinance is not unconstitutional as applied to affixing the Union's inflatables on the public right-of-way. Before setting forth my findings of fact and conclusion of law on the issues remaining, however, it will be helpful to review once again the law governing local sign ordinances and the First Amendment.

         A. The Town's Local Sign Ordinance and the First Amendment

         Like many municipalities, the Town of Grand Chute regulates the display of outdoor signs by ordinance. Grand Chute Code, Ch. 535, Art. XV. The Town enacted its sign ordinance “to establish standards to safeguard life and property and promote public welfare and community aesthetics by regulating the appearance, construction, location and maintenance of all signs and billboards.” § 535-104. The ordinance prohibits the posting of private signs on the public rights-of-way. § 535-106C. It defines “sign” broadly to include “any structure, part thereof, or device attached thereto or painted or represented thereon which displays or includes any numeral, letter, word, model, banner, emblem, device, trademark or other representation used as, or in the nature of, an announcement, advertisement, direction or designation of any person or thing in such a manner as to attract attention from outside of the building.” § 535-105. It is the ordinance's ban on placement of signs on the public right-of-way that the Union challenges here.

         It is not unusual for sign ordinances, such as the Town's, to give rise to First Amendment challenges. This is because signs “pose distinctive problems that are subject to municipalities' police powers, ” yet they are also “a form of expression protected by the Free Speech Clause.” City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994). Regulations limiting speech are generally valid if they: (1) are content neutral; (2) are narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels for communicating the information. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). In Gilleo, the Supreme Court identified “two analytically distinct grounds for challenging the constitutionality of a municipal ordinance regulating the display of signs.” 512 U.S. at 50.

         The first ground upon which sign ordinances are frequently challenged is that the ordinance “in effect restricts too little speech because its exemptions discriminate on the basis of the signs' messages.” Id. at 51. Thus, in Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), the Court struck down a sign ordinance that imposed different restrictions on signs based on the type of information conveyed. Under the First Amendment, the Court held, “[c]ontent-based laws-those that target speech based on its communicative content-are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve a compelling state interest.” Id. at 2226.

         The second ground for challenging the constitutionality of sign ordinances is that “they simply prohibit too much speech.” Gilleo, 512 U.S. at 51. Gilleo held that a sign ordinance that prohibited homeowners from displaying any signs on their property except “residence identification” signs, “for sale” signs, and signs warning of safety hazards was unconstitutional because it completely closed off a cheap and convenient medium homeowners used to communicate with neighbors and the public, and violated that “special respect for individual liberty in the home [that] has long been part of our culture and law.” Id. at 57-58.

         Neither ground identified by Gilleo is available here for challenging the 2014 Ordinance's ban on signs in the public right-of-way. The second ground of attack-that the ban prohibits too much speech-is foreclosed by Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). As the Seventh Circuit noted in this very case, Taxpayers for Vincent “holds that a city may ban all private signs (including political ones) from the public way.” Const. & Gen. Laborers' Local Union No. 330, 834 F.3d at 748. The justification for such an ordinance includes public safety, but it is not limited to safety considerations. “It is well settled that the state may legitimately exercise its police powers to advance esthetic values.” Taxpayers for Vincent, 466 U.S. at 805. Indeed, in Taxpayers for Vincent, the Court reaffirmed its previous holding that the problem addressed by such ordinances-“the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property-constitutes a significant substantive evil within the City's power to prohibit.” Id. at 807 (citing Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981)). “The city's interest in attempting to preserve or improve the quality of urban life, ” the Court held, “is one that must be accorded high respect.” Id. (quoting Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 71 (1976) (plurality opinion)). The Town of Grand Chute has the same interest, and as in Taxpayers for Vincent, its ordinance is directed at the very evil it seeks to eliminate and leaves ample alternative methods of communication.

         Of course, even though the purpose behind such an ordinance includes the advancement of aesthetic values, the attractiveness or unattractiveness of any particular sign, just as one's agreement or disagreement with the message it conveys, is irrelevant. Indeed, were a municipality to construe its ordinance so as to allow some signs on the public right-of-way because the enforcement officer liked the color, or the fact that they depicted cute animals such as cats, or because it advanced a pro- union or pro-life cause with which he agreed, a First Amendment violation would be established by that fact alone. Allowing cats but not rats, or pro-union message signs but not pro-life signs, would render the ordinance a content-based regulation. See Taxpayers for Vincent, 466 U.S. at 816 (“To create an exception for appellees' political speech and not these other types of speech might create a risk of engaging in constitutionally forbidden content discrimination.”). The Court of Appeals made that very point in this case:

The ordinances in Grand Chute are comprehensive and content-neutral, and decisions such as [Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), ] and Taxpayers for Vincent hold that a governmental body need not make ad hoc exceptions to such rules. To the contrary, limiting official discretion about who is entitled to speak is a vital goal of the Supreme Court's jurisprudence under the First Amendment. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-31, (1992); Niemotko v. Maryland, 340 U.S. 268 (1951). The sort of ad hoc exception that the Union wanted Grand Chute to make (on the ground that the rat and cat did not jeopardize traffic safety and were only temporary) not only would have transgressed the rule against open-ended discretion but also would have created a form of content discrimination. See United States v. Stevens, 559 U.S. 460, 470-71 (2010); Houston v. Hill, 482 U.S. 451, 465-67 (1987). That in turn would have called into question the Town's entitlement to enforce its ordinance against anyone. See, e.g., Reed v. Gilbert, 135 S.Ct. 2218 (2015).

Const. & Gen. Laborers' Local Union No. 330, 834 F.3d at 749. This unequivocal holding by the Seventh Circuit majority-that the Grand Chute ordinance is “comprehensive and content-neutral”-forecloses the first ground of facial attack recognized by the Court in Gilleo.

         In addition to the two grounds identified in Gilleo, however, the Union has pointed to a third ground for a facial challenge to a local ordinance restricting the exercise of First Amendment rights that has been recognized by the Court. Where the ordinance requires a person to obtain a permit in order to engage in protected activity and then vests unbridled discretion in a government official to grant or deny the permit, the ordinance is facially unconstitutional. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 759 (1988). In City of Lakewood, the challenged ordinance gave the mayor authority to grant or deny applications for permits to place coin-operated newsracks on city sidewalks. Id. at 753. Plain Dealer Publishing Company, a newspaper publisher, elected not to seek a permit but instead challenged the facial constitutionality of the ordinance. Id. at 754. The Supreme Court upheld the newspaper publisher's challenge, noting that “our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license.” Id. at 755-56; see also Smith v. Exec. Dir. of Ind. War Mem'ls Comm'n, 742 F.3d 282, 289 (7th Cir. 2014) (“To 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.” (citing Thomas v. Chi. Park Dist., 534 U.S. 316, 323 (2002))).

         Pointing to Section 535-108B(11) of the 2014 Ordinance, the Union argues that the fact that the 2014 sign ordinance grants unbridled discretion to the Code Enforcement Officer to grant permits for temporary signs renders the ban on the placement of signs in the public right-of-way facially unconstitutional. Section 535-108B(11), entitled “Temporary signs, banners and balloons for special events, ” reads:

A temporary sign(s) for the purpose of designating a new building or development, for the promotion of a subdivision, for announcement of a special (sales) event or for similar special informational purposes may be permitted for a limited period of time in any district with the approval of the Zoning Administrator and subject to the following:
(a) The permitted size and location of any such sign shall be at the discretion of the Zoning Administrator based on the character of the area, the type and purpose of the sign(s) and the length of the time permitted.
(b) Where the sign(s) is to be located on the premises involved, such may be permitted for a period of up to 10 days. Off-premises temporary signs shall be permitted for 30 days maixmum.
(c) Drawings showing the specific design, appearance and location of the sign(s) shall be submitted to the Zoning Administrator for approval.

         But as the Code Enforcement Officer explained, this provision applies to signs that are located on private property. ECF No. 93 at 111-12. Given the discretion allowed for issuance of a permit for placement of temporary signs on private property, this provision may well be unconstitutional. But it has no bearing on this case because the only place the Union ever attempted to place its inflatable rat and cat was on the public right-of-way. Even if the temporary sign provision did apply, it would not have helped the Union here. Section 535-108B(16) states: “No part of an inflatable temporary sign shall encroach into or over the public right-of-way or be situated so as to obstruct or impair vision or traffic or in any manner create a nuisance, hazard or disturbance to the health or welfare of the public.” The Union is not entitled to relief simply because a provision of the ordinance unrelated to its own activities might be unconstitutional. The specific provision of the 2014 Ordinance at issue reads: “Signs shall not be permitted on public rights-of-way except for traffic control, parking and directional signs and as otherwise specified in this article.” § 535-106C. As the Court acknowledged in Reed, “on public property, ...


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