Appeal Not Moot, Though Disputed Policy Had Been Revised

06 February 2014 Wisconsin Appellate Law Blog

In a decision issued on February 4, 2014, the Seventh Circuit examined the mootness doctrine in an appeal of the denial of a preliminary injunction that challenged a facility use policy for a war memorial. Smith v. Exec. Dir. of Ind. War Mem’l Comm’n, No. 13-1939 (7th Cir. Feb. 4, 2014). The defendants, who revised the policy at issue during the appeal, maintained that the revision had mooted the appeal. 

In 2012, the plaintiff decided to protest a United Nations Arms Trade Treaty at an Indiana war memorial. He believed that the treaty would infringe on his Second Amendment right to bear arms. Despite having advertised the protest in a flier, only the plaintiff and his young son appeared at the scheduled time. Only minutes after the protest began, he was asked to leave the property because he did not have a permit to protest, and he reluctantly complied after being threatened with arrest. The plaintiff argued before the district court that the permit requirement was an unconstitutional limitation on free speech.

The district court denied the request for a preliminary injunction, but did not resolve a damages claim. The appeal involved solely the preliminary injunction, and the Seventh Circuit reversed on the merits. On appeal, the defendants did not argue that the denial of the injunction was correct, but instead argued that the appeal should be dismissed as moot. Between the initial protest and the appeal, the permit policy had been revised by the commission responsible for maintaining the war memorial. Defendants argued that the policy revisions made the appeal moot, even if the damages claim remaining in the district court was not.

The plaintiff set forth several arguments as to why the appeal was not moot, including that his conduct might still be prohibited under the revised policy. He also continued to press an overbreadth challenge to the revised policy. The Seventh Circuit agreed, deciding that the appeal was not moot. In arriving at this decision, the court examined whether the revised policy was “substantially similar” to the original policy and whether it was unwise for it to consider the revised policy. Based on the plaintiff’s arguments, the court determined that the case was not moot and proceeded to reverse on the merits.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights

Bad Holiday Season News! Estimates of an increase of Cyberattacks 20%!
13 December 2019
Internet, IT & e-Discovery Blog
Driving the Future of Automotive Technology
12 December 2019
Manufacturing Industry Advisor
Massachusetts Governor Proposes Facility Fee Ban
12 December 2019
Health Care Law Today
American Rule Prevails; PTO May Not Collect In-House Attorneys' Fees as "Expenses"
12 December 2019
IP Litigation Current
ACCC 46th Annual Meeting & Cancer Center Business Summit
04-05 March 2020
Washington, D.C.
Foley/Deloitte Compliance and Privacy Officer Roundtable
27 February 2020
Boston, MA
Let’s Talk Compliance
24 January 2020
Orlando, FL
New England Alliance Annual Meeting
15-17 January 2020
Woodstock, VT