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.

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