Construction and General Laborers' Local Union No. 330 et al v. Town of Grand Chute
Filing
102
DECISION AND ORDER signed by Chief Judge William C Griesbach on 3/14/18. The Court concludes the Union's claims against the Town must be dismissed. The Clerk is directed to enter judgment in favor of the Town and against the Union with costs as allowed by statute. (cc: all counsel)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CONSTRUCTION AND GENERAL
LABORERS’ LOCAL UNION NO. 330
and KELLY BUSS,
Plaintiffs,
v.
Case No. 14-C-455
TOWN OF GRAND CHUTE,
Defendant.
DECISION AND ORDER
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
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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
3
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-ofway. § 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
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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.
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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 pro6
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 contentneutral”—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
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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.
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(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, the Town may go a long way toward
entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral
manner.” 135 S. Ct. at 2232 (citing Taxpayers for Vincent, 466 U.S. at 817). That leaves only the
Union’s claim that the Town’s enforcement of its sign ordinance was content based.
In Reed, the Court held that the sign ordinance there at issue was content based on its face.
135 S. Ct. at 2227. This is because different restrictions applied depending upon the category into
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which the sign fell, and the category into which any particular sign fell was dependent on its content.
Id. The fact that the defendant town was not motivated by discriminatory intent—that its
justifications for enacting the ordinance were unrelated to the content of the sign—was irrelevant.
“A law that is content based on its face is subject to strict scrutiny regardless of the government's
benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the
regulated speech.” Id. at 2228 (citing Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429
(1993)).
The same is not true, however, for “as applied” challenges to enactments that are facially
neutral. Where the challenge is to the manner in which a content-neutral ordinance has been, or can
be applied, the intent of the enforcement officer is crucial. Id. at 2228–29. For a content-neutral
ordinance, “[t]he government's purpose is the controlling consideration.” Ward, 491 U.S. at 791.
This is because an “as applied” challenge in this context is, in essence, a claim that the contentneutral ordinance which is constitutional on its face is being enforced in such a way as to discriminate
against the speaker or message. To prevail on such a claim, a plaintiff must show that the ordinance
was designed to suppress certain ideas that the Town finds distasteful or that it has been applied to
the plaintiff because of the views that he expresses. Taxpayers for Vincent, 466 U.S. at 804.
B. Issues on Remand
It is this last issue that the Seventh Circuit directed this court to address on remand in the
event the case was found not to be moot. The Court of Appeals explained that “the Union
maintains . . . that the Town has undercut its own ordinance by selective enforcement, permitting
messages of which it approves while enforcing the ordinance against unions and other unpopular
speakers. If the ordinance in operation discriminates according to the content of speech, then only
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a compelling justification could save it, and the Town has not argued that it has the sort of
justification that would authorize content discrimination.” Const. & Gen. Laborers’ Local Union
No. 330, 834 F.3d at 749. Although in granting the Town’s motion for summary judgment, I had
concluded that the Union produced no evidence that the Town invidiously discriminated in its
enforcement of the ordinance on the basis of the content or source of the signs, the Court of Appeals
read Reed as saying the Enforcement Officer’s intent was not required: “Reed tells us that content
discrimination is almost always forbidden. If this suit is live, the Union's claim of content
discrimination cannot be dismissed on the ground that the Town lacks an ‘invidious reason’ for
preferring some speech over other speech.” Id.
The Court of Appeals then pointed to the Union’s contention that a number of signs posted
by firefighters were allowed to remain undisturbed even though they violated the Town’s ordinance.
The Union had characterized the Town’s failure to remove these signs as “constitutionally
problematic” because the signs at issue belonged to the Town’s own employees and because, when
shown a picture of the signs at deposition, the Town’s Code Enforcement Officer testified that the
signs might in fact be legal, assuming the owners were attending them since they were not affixed
to the ground. ECF No. 42 at 15–16. It was significant whether the signs the firefighters used were
affixed to the ground because the Town had construed the ordinance so as to allow signs that people
carried with them or leaned against their lawn chair or car as they engaged in picketing or protesting
on public sidewalks. The requirement that such signs be attended and not affixed to the ground was
apparently intended to prevent groups from circumventing the ordinance by installing large signs on
the public right-of-way and then arranging for individual members to takes shifts around the clock
to attend them. In any event, because the Union offered no evidence that the Town’s construction
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or enforcement of the ordinance was motivated by the content of the sign, I concluded that the
evidence concerning the fire department signs was not material. The Court of Appeals concluded
that this was error:
As for “it could be legal”: the district judge needs to determine whether the signs
were (or are) legal under the ordinance. If the Town is distinguishing among
speakers covered by the ordinance, it must meet the Supreme Court's standards for
content discrimination. That the Town's police did not tell the Union to remove the
rat and cat until the target of the Union's campaign complained offers further support
for the Union's contention that enforcement depends on speakers' messages. (The rat
and cat were easily visible to the police, who ignored them for two days until the
complaint was made.)
834 F.3d at 750.
Finally, the Court of Appeals noted the Union’s contention that “the Town has allowed other
speakers 30 days to remove structures that violate the ordinance, while it insisted that the Union
remove the rat and cat immediately.” Id. I had noted in rejecting this argument in my decision
granting the Town’s motion for summary judgment that although the form on which the Union relied
included language that allowed a property owner 30 days in which to correct a violation on his
property, the handwritten note of the Code Enforcement Officer “plainly states that the sign (which
was a billboard on private property that violated a different ordinance) must be removed within 48
hours.” ECF No. 42 at 19 (citing ECF No. 24-2 at 12). The Court of Appeals noted, however, that
other forms cited by the Union did not modify the form language, leaving open the question whether
other violators of the sign ordinance were treated differently. The Court of Appeals concluded: “The
district court needs to make findings about the Town’s actual enforcement practices—unless this
controversy is moot.” 846 F.3d at 750.
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Having now heard the evidence presented by the parties at trial, it is to those issues that I
now turn and make the following findings of fact as to the Union’s original claim under the sign
ordinance as it existed in 2014.
C. Findings of Fact and Conclusions of Law as to the Claim Under the 2014 Ordinance
On March 28, 2014, the Union’s president Kelly Buss learned that Pahlow Masonry, which
allegedly paid its workers substandard wages and benefits, was being used on a job involving the
expansion of a Kolosso car dealership on West College Avenue in the Town of Grand Chute. The
Union decided to engage in an area standards protest at the dealership and called the Grand Chute
Police Department (“GCPD”) to inform it of its plans and determine a location where it could safely
protest. Buss and Lt. Randy Reifsteck of the GCPD met on May 29th in front of Kolosso. The two
discussed safety concerns, such as where to park and where the picketing could take place without
obstructing traffic or placing picketers in harm’s way. Reifsteck testified that although Buss
mentioned the Union would use handheld signs, there was never any mention of plans to use any
inflatable signs. Buss testified that he did not mention the possible use of inflatable signs with
Reifsteck because the Union was still uncertain at that time if it would use one.
The Union began its informational picket on March 31, 2014 at approximately 7:30 a.m. The
site of the picket was across from Kolosso on the median between West College Avenue and a
frontage road that ran parallel to it. In addition to displaying handheld signs which identified the
Union as the party engaging in the protest and Pahlow as the subject of the dispute, the Union
displayed a large inflatable rat, as shown below:
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The inflatable rat was approximately 12 feet tall and secured to the ground with four straps
connected to stakes that had been driven into the ground. A second inflatable depicting a “fat cat”
wearing a business suit and strangling a construction worker was also was eventually used, but only
for two days. Buss testified that the Union kept the rat inflated only when Pahlow was on site and
that it took only about one minute to inflate or deflate the rat. He claimed that without the inflatable
signs, the Union’s protest would be ineffective because there was no foot traffic to pass out handbills
and that the rate of traffic was too busy to effectively use a banner.
On one of the first two days of the Union’s protest, Eric Thiel, the Grand Chute Code
Enforcement Officer, was notified by the Town’s chairman that there had been a complaint about
the inflatable rat. Thiel was the primary person responsible for enforcing the Town’s sign ordinance.
The police department might help out on weekends or after hours, but generally Thiel alone was
responsible for enforcement. Thiel testified that he assumed Kolosso was the complainant because
the rat was in front of its building, but that the Town’s chairman did not tell him the source
specifically and he did not inquire further about it.
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Thiel explained that his job responsibilities included the enforcement of various zoning
ordinances (such as the sign ordinance), which accounted for approximately a quarter of his total
work. He 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 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.
Buss testified that Thiel arrived at the protest site at approximately 8:30 a.m. on April 1st.
Thiel informed Buss that the rat was in violation of Section 535-108 of the Town’s sign ordinance
and instructed the Union to deflate the rat and to stop using it as a sign. Buss then contacted
Reifsteck to get a second opinion about whether the rat was legal under the sign ordinance.
Reifsteck testified that the ordinance which Buss was given appeared to involve commercial signs
only and told Buss that the Union could continue to use the rat because it was for a non-commercial
purpose. The rat was deflated for only approximately one hour from the time Thiel requested that
the Union deflate it and Reifsteck instructed the Union it could re-inflate it. At trial, Thiel testified
that he cited the wrong statute (§ 535-108) when he initially told the Union to take the rat down, but
the reason he asked it to deflate the rat was because it was in the public right-of-way, which is a
violation of Section 535-106C.
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Buss testified that the Union used the rat for the entirety of April 2nd with no enforcement
action by the Town. On April 3rd, the Union was approached by the Code Enforcement Officer for
the City of Appleton. The officer informed the Union that its rat was actually located in the City of
Appleton—not the Town of Grand Chute, and that it would either need to be moved or deflated.
The Union then moved the rat onto the other side of the frontage road and off the median so it
would be in the Town of Grand Chute. The rat was inflated for the rest of the day. The Union did
not use the rat on April 4th, 5th, or 6th.
Thiel testified that he was aware that the Union had re-inflated the rat but did not take
immediate action because there was confusion as to whether or not the rat was a sign and whether
or not it violated the Town’s ordinances. On April 3rd, Thiel, Reifsteck, Grand Chute Police Chief
Greg Peterson, and Community Development Director Robert Buckingham met to discuss whether
the rat was in violation of the Town’s sign ordinances. Thiel testified that it was not standard
practice to have a meeting involving these four individuals but it was necessary in light of the
conflicting messages being sent by Thiel and Reifsteck. Eventually, all parties at the meeting agreed
that the inflatable rat was a “sign” within the meaning of the Town’s original ordinance and that the
prohibition on structural signs within public rights-of-way, Section 535-106C, applied.
The Union inflated the rat again on April 7th. That afternoon, Reifsteck appeared on site to
inform Buss that the rat was in violation of the Town’s sign ordinance and needed to come down
immediately. Buss testified that Reifsteck also noted that the Union’s protest had made the front
page of the Appleton Post Crescent, a local paper. Another picketer on site, Mark Linsmeier,
testified that he asked Reifsteck what had changed between the time Reifsteck said the rat was
allowed and April 7th, and that Reifsteck replied “you’ve made the front page of the Post Crescent.”
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Neither Buss nor Linsmeier testified that Reifsteck instructed them to remove the rat because of the
picture in the paper.
Rather, Reifsteck testified that he gave Buss a copy of the relevant ordinance and that the
only reason he instructed the Union to stop using the rat was because it violated Section 535-106C.
Linsmeier also testified that Reifsteck did not order the Union to deflate the rat because of the
newspaper. Reifsteck informed the Union that it could place the rat in the bed of a truck or mount
it in the back of a trailer attached to a truck, so long as the vehicle was mobile. Buss testified that
he understood Reifsteck’s alternative to mean that the vehicle with the rat would have to be in
motion. Buss testified that this method of picketing would be ineffective as it would be in front of
other businesses, which were not the subject of the picket, and because it would be dangerous to
drive with the 12 foot inflatable rat attached to a vehicle . The Union temporarily used the rat on
April 8th and 9th while the Town and Union discussed possible legal action, but ultimately halted
its use and commenced this action.
After these events, Buss and Linsmeier photographed several signs throughout the Town
which they asserted were signs placed on public rights-of-way. The Union offered the photographs
as evidence that the ordinance was not consistently enforced and in support of its claim that the
Town’s enforcement of the ordinance against the Union was content based. Thiel testified, however,
that he investigated each of the photographed signs and recorded his findings. He noted that many
of the signs photographed by the Union were located on private property, which are allowed under
the ordinance for up to 120 days so long as the owners receive a permit. Thiel’s affidavit indicates
that of the sixty alleged violations Linsmeier photographed Thiel found only five were placed in the
public right-of-way. Thiel Aff., ECF No. 33 at 3–4. The remainder of the photographed signs were
17
either no longer present at that location, and therefore Thiel could not determine if they were in the
public right-of-way, or if they were placed on private property and not in the public right-of-way.
Id. Likewise, Thiel reviewed the thirty alleged violations Buss photographed and found that nine
of the signs were placed in the public right-of-way. Id. at 4. The remainder were either on private
property or no longer at that location. Id. Additionally, Thiel affirmed that he either removed or
instructed the owner to remove every sign that was confirmed to be within the public right-of-way.
Id. at 3–5.
Thiel also discussed the sign used as part of the Grand Chute Fire Department’s “Fill the
Boot” campaign for the Muscular Dystrophy Association. He explained that because the sign was
leaning on an easel, it would be allowed under the sign ordinance so long as it was attended, which
it was. In fact, nearby firefighters were collecting donations from passers by. As noted above, the
Town had construed the ordinance so as to allow signs that people carried with them or leaned
against their lawn chair or car as they engaged in picketing or protesting on public sidewalks. The
requirement that such signs be attended and not affixed to the ground was apparently intended to
prevent groups from circumventing the ordinance by installing large signs on the public right-of-way
and then arranging for individual members to takes shifts around the clock to attend them. Because
the “Fill the Boot” signs were not affixed to the ground and were attended, they were not in violation
of the ordinance.
Thiel acknowledged that he is not perfect in identifying every time a sign is located in a public
right-of-way. He testified, however, that he has never seen a violation and failed to enforce the
ordinance against it. From 2013 through 2015, Thiel removed approximately 150 offending signs
each year from the public right-of-way. Thiel also testified that all signs in public rights-of-way are
18
deemed safety hazards because of the potential to block or interfere with traffic. He testified he has
never given a sign owner more than 24–48 hours to remove a sign in the public right-of-way.
Based upon the above described testimony and other evidence received at the trial, I
find that the the Town did not discriminate in its enforcement of its sign ordinance against
the Union on the basis of the content or source of the message conveyed. I base this finding
primarily on the testimony of Eric Thiel, the Town’s Code Enforcement Officer. I found Thiel, who
was primarily responsible for enforcement of the sign ordinance, to be a credible witness. Thiel
testified unequivocally that he did not consider the message or source of the message conveyed by
a sign in enforcing the Town’s ban on signs in the public right-of-way. The fact that police did not
initially take any action against the Union is not evidence of discriminatory enforcement. Violations
of the sign ordinance were not considered crimes or quasi-crimes that police dealt with unless they
created a safety hazard. They were more in the nature of a zoning violation and were addressed by
Thiel in his capacity as the Code Enforcement Officer either on his own initiative when he saw a
violation or in response to a citizen complaint. ECF No. 93 at 95, 139–41, 156–57.
With respect to the inflatable rat and cat used by the Union in its demonstration, I find that
a complaint from the Kolosso car dealership precipitated the Town’s enforcement activities, or at
least that was Thiel’s understanding. But even though the motivation of the representative of
Kolosso who made the complaint was likely content based, I do not attribute that motivation to
Thiel. He would not have ordered the rat removed from the public right-of-way unless he was
convinced its placement at that location violated the Town’s ordinance. The fact that enforcement
of the ban on signs in the public right-of-way was precipitated by a person who disagreed with the
content of the sign does not mean the Code Enforcement Officer shared that motivation. We do not
19
attribute the motivation of citizens who complain of crimes to the local police department to the law
enforcement officer who conducts his own investigation and makes an arrest. If we did, it would
render many prosecutions suspect for that reason alone. This is not acceding to a “heckler’s veto.”
It was not the source or volume of the complaint, but the conclusion of the Town officials that the
Union’s inflatable rat constituted a sign on the public right-of-way in violation of the Town ordinance
that led to the removal order. Cf. Ovadal v. City of Madison, 416 F.3d 531, 536–37 (7th Cir. 2005)
(holding that speech in public forum cannot be banned simply because of the reaction of those who
disagree with the message).
Nor is it evidence of discrimination that Thiel did not immediately take action. Realizing the
importance of the issue to the Union, and perhaps the likelihood of a lawsuit, Thiel consulted with
Lieutenant Reifsteck, GCPD Chief Peterson, and Community Development Director Robert
Buckingham before concluding the rat should be removed. ECF No. 93 at 106–07. The issue raised
by the Union’s actions, as this lawsuit shows, was not a routine violation. Nevertheless, after
discussing the matter, all four agreed that the rat was a sign in the public right-of-way within the
meaning of the ordinance and had to come down. Id. at 109, 201–02. The fact that Thiel consulted
with his supervisor and law enforcement demonstrates a desire to avoid unlawful infringement on
the Union’s rights.
The Union failed to show that the Town’s enforcement of its ban on signs in the public rightof-way was not content neutral. With respect to the fire department’s “Fill the Boot” campaign, the
signs used by firefighters while collecting donations for the Muscular Dystrophy Association were
neither affixed to the ground nor left unattended. The fact that Lieutenant Reifsteck did not cite the
firefighters is irrelevant in any event since the police typically did not enforce the ordinance. But
20
regardless, this activity fits well within the exception to the overall ban that the Town had carved out
so as to avoid a complete ban on picketing and thereby avoid the very kind of First Amendment
violation the Union has charged. See Taxpayers for Vincent, 466 U.S. at 810 (“One who is rightfully
on a street open to the public ‘carries with him there as elsewhere the constitutional right to express
his views in an orderly fashion. This right extends to the communication of ideas by handbills and
literature as well as by the spoken word.’” (quoting Jamison v. Texas, 318 U.S. 413, 416 (1943)).
Furthermore, this exception is not applied based on the content of the sign but rather the physical
attributes of the sign in relation to the public right-of-way. Therefore, the exception is content
neutral, and there is no evidence of it being applied based on content.
The Union’s other evidence that the Town selectively enforced the ban on signs in the public
right-of-way is similarly unconvincing. The Union produced ninety photographs of signs that the
Union believes were in the public right-of-way based off of the signs’ locations compared to various
physical and geographical markers. Thiel investigated all ninety alleged violations, but he could
confirm that only fourteen of them were actual violations. For all fourteen violations identified, he
enforced the ordinance and either removed the sign or ordered the owner to remove the sign.
Additionally, Thiel testified that he logs roughly 150 violations of signs in the public right-of-way
each year. The fact that Thiel may have missed fourteen signs shows evidence of imperfect
enforcement but not of discriminatory enforcement. Imperfect enforcement does not render a statute
or ordinance invalid. See Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985) (“The
Constitution does not require states enforce their laws (or cities their ordinances) with Prussian
thoroughness as the price of being allowed to enforce them at all. Otherwise few speeders would
21
have to pay traffic tickets. Selective, incomplete enforcement of the law is the norm in this
country.”) (citations omitted). If it did, no sign ordinance could survive.
To be sure, the Town did present evidence of uneven enforcement of the provisions
governing temporary signs on private property. Notwithstanding the broad language of the
ordinance, Thiel testified that he did not regard holiday inflatables (e.g., Santa Claus, Frosty the
Snowman) as signs within the meaning of the provisions governing temporary signs on private
property. But for the reasons noted above, this evidence has no bearing on the Union’s claim in this
case. The Union was not denied a permit to place its rat on private property. It wanted to place the
rat in the public right-of-way. Thiel was clear that he had never ignored an inflatable, holiday
decoration or not, that was located in the public right-of-way. Rules that distinguish between the
placement of signs on private and public property are not content based. Reed, 135 S. Ct. at 2233
(Alito, J., concurring).
I also find that the Town did not treat violations of Section 535-106C differently based on
either the content or source of the message conveyed in ordering immediate removal. Thiel stated
in his affidavit that he always immediately confiscated a sign illegally placed in the public right-ofway or ordered the owner to remove it if he could tell who the owner was. ECF No. 33 ¶ 7. When
he ordered the sign removed, he generally followed up within 24 or 48 hours to make sure the sign
was gone. Id. His testimony essentially confirmed his affidavit and was undisputed. He could not
recall ever allowing anyone more time to remove a sign from the public right-of-way. ECF No. 93
at 153–54. As I noted in my previous decision, allowing a 30-day grace period to remove such a
sign would defeat the purpose of the ban on such signs on the public right-of-way.
22
In sum, I find that the Town did not engage in discriminatory enforcement of its ban on signs
in the public right-of-way. As in Taxpayers for Vincent, the ban on signs in the public right-of-way
was applied in an evenhanded manner and without regard to content of the message or the identity
of the speaker. I also reaffirm my conclusions that the ban is narrowly tailored to serve a significant
government interest and it leaves open ample alternative channels for communicating the Union’s
message.
In determining whether the Town’s ban is narrowly tailored to serve a significant government
interest, it is important to note that this does not mean that it must be “the least restrictive or least
intrusive means of doing so.” Ward, 491 U.S. at 798. “Rather, the requirement of narrow tailoring
is satisfied ‘so long as the . . . regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation.’” Id. at 799 (quoting United States v. Albertini, 472
U.S. 675, 689 (1985)). “In other words, the Constitution tolerates some over-inclusiveness if it
furthers the state's ability to administer the regulation and combat an evil.” Doe v. Prosecutor,
Marion Cty., 705 F.3d 694, 700 (7th Cir. 2013).
If the goal of eliminating the visual clutter that occurs when people are allowed to place signs
on the public right-of-way is lawful, as Taxpayers for Vincent clearly holds, then the most direct way
and perhaps the only way to lawfully achieve that goal is to ban all signs. 466 U.S. at 808 (“The
District Court found that the signs prohibited by the ordinance do constitute visual clutter and blight.
By banning these signs, the City did no more than eliminate the exact source of the evil it sought to
remedy.”). The Union’s insistence that an exception be allowed for the placement of its giant
inflatable rat and cat on the public right-of-way for labor demonstrations ignores the Town’s
obligation to draft and apply its ordinance without regard to the message or the messenger. The
23
limited use of the rat or cat may not by itself undermine the Town’s goal of avoiding visual assault
on its citizens that the ban is intended to prevent, but anything less than a total ban renders the Town
susceptible to the very claim that Union has made here—that it is discriminating against speakers on
the basis of the content of their message.
The Union’s argument that an exception should be created for its temporary placement of
the giant inflatables on the public right-of-way also ignores the line-drawing problems that drafting
such an exception entails:
Why does a structure whose nature only requires it to be present for a limited time
not undermine the City's objective of keeping the right-of-way clear when a more
permanent structure does so? The district court indicates that if the Union wished to
leave the inflatable rat in the right-of-way constantly, it would reach a different result.
Apx. 46. What exactly constitutes “an extended period of time” that would require
resolving this dispute in the City's favor? Id. Four hours? Ten? Twenty-four?
Alternatively, what public employee is to be given the discretion to determine that
amount of time, and how is that discretion to be limited so that time, place, and
manner neutrality is maintained?
Tucker v. City of Fairfield, 398 F.3d 457, 467 (6th Cir. 2005) (Kennedy, J., dissenting).
As for the third requirement, that there are alternative means of communicating the Union’s
message, the Union argues that placing the balloon on a moving flatbed truck or trailer would pose
safety problems and introduce confusion as to the target of the protest. But as I noted in my
previous decision, this still leaves other effective avenues for the Union to communicate its message,
including the use of its chosen image. The Union is free to depict the rat in handheld signs, by using
smaller rat balloons that are not staked to the ground, by having a member wear a rat or a cat
costume. Union members can also carry large banners as part of their demonstration. In short, while
the use of its giant inflatable rat and cat may be part of the Union’s preferred method of
communicating its message, neither are required for it to do so.
24
For all of these reasons, I conclude that the Union’s claim against the Town based on its
enforcement of its ban on signs in the public right-of-way in April of 2014 fails. That claim will be
dismissed and I now turn to its challenge to the Town’s current ordinance.
D. Additional Findings of Fact and Conclusions of Law as to the Claim Under the 2015
Ordinance
The Union also challenges the constitutionality of the 2015 Ordinance as applied to the
placement of its giant rat and cat inflatables on the public right-of-way as part of its labor protests.
The Union alleges that there are several recently completed projects where it would have used its
inflatables on the public right-of-way, but did not because the Town informed it that its new
ordinance, like the old, prohibited such placement. The Union also alleges that there are future
projects planned in Grand Chute where it wishes to use its inflatables on the public right-of-way as
part of a demonstration. These allegations, which the Town does not dispute, are sufficient to create
a case or controversy over which the court has jurisdiction. Brandt v. Vill. of Winnetka, 612 F.3d
647, 649–50 (7th Cir. 2010).
The Union offers several challenges to the 2015 Ordinance. First, it argues that the amended
ordinance is unconstitutional because it grants “unbridled discretion” to the Town Board to
determine whether to allow a permit for a sign encroaching on the public right-of-way under
Section535-106D(5).
Additionally, the Union argues that the ordinance is content-based
discrimination because it bans inflatables in the public rights-of-way but allows them on private
property. Lastly, the Union argues that the Town’s amended ordinance was passed with an
impermissible, content-based motivation to prohibit the Union from using the inflatable rat.
25
Section 535-106D(5) of the 2015 Ordinance states: “No part of a sign may be located in
public road right-of-way unless allowed by the Town Board approval because of unique
circumstances or unusual hardship.” The Union argues that this provision grants “unbridled
discretion” to the Town Board and therefore cannot be content neutral. As noted above, if an
ordinance vests unbridled discretion in a government official to grant or deny the permit, the
ordinance is facially unconstitutional. City of Lakewood, 486 U.S. at 759; see also Forsyth Cty. v.
Nationalist Movement, 505 U.S. 123, 130–31 (1992) (“A government regulation that allows
arbitrary application is ‘inherently inconsistent with a valid time, place, and manner regulation
because such discretion has the potential for becoming a means of suppressing a particular point of
view.’” (quoting Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981))).
To be sure, the exception to the ban on signs in the public right-of-way for those signs
approved by the Town Board “because of unique circumstances or unusual hardship” complicates
the analysis. The Town argues that the Union’s argument fails because Section 535-106D is not
applicable to the inflatables it seeks to use in its demonstration. Under the 2015 Ordinance,
inflatables such as the Union’s rat and cat are governed by Section 535-106F(5), which states:
Inflatable signs. Inflatable signs are permitted only on lots in the Community Center
sign district. All inflatable signs must be placed a minimum of 10 feet away 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.
Ex 22 at 9. The Community Center sign district is composed of lands zoned as office commercial,
local commercial, regional commercial, planned commercial, and industrial districts. § 535-105.
Although the testimony on this issue was not entirely clear, I find that the Town has interpreted the
exception in Section 535-106D, which allows a part of a sign to protrude into the public right-of-way
26
when approved by the Town Board “because of unique circumstances and unusual hardship,” to
apply only to permanent signs erected by property owners. ECF No. 93 at 131–32. It has no
application to inflatable signs, which are separately defined in the 2015 Ordinance to mean “[a]ny
sign constructed of fabric or other flexible material that takes on a three-dimensional shape when
filled with air.” § 535-105, Ex. 22 at 4. Under the 2015 Ordinance, an inflatable sign would never
be allowed to be affixed to the ground in the public right-of-way. ECF No. 93 at 131–32. Thus, use
of the Union’s inflatables on the public right-of-way is not subject to or conditioned upon the
unbridled discretion of the Town Board or any Town official.
Nor is the prohibition of the placement of giant inflatables on the public right-of-way content
based. It applies to the Michelin Tire Man, the Stay Puft Marshmallow Man, Santa Claus, Frosty
the Snowman, or any other cartoon figure inflatable, no less than the Union’s rat or cat. The Town
prohibits any and all persons from affixing any and all giant inflatables to the public right-of-way,
regardless of what the message is or who the messenger might be. This prohibition falls well within
the kind of content-neutral restrictions that Reed held remain available:
The Town has ample content-neutral options available to resolve problems with
safety and aesthetics. For example, its current Code regulates many aspects of signs
that have nothing to do with a sign's message: size, building materials, lighting,
moving parts, and portability. . . . And on public property, the Town may go a long
way toward entirely forbidding the posting of signs, so long as it does so in an
evenhanded, content-neutral manner.
135 S. Ct. at 2232.
Finally, the Union claims that the 2015 Ordinance’s ban on affixing inflatables to the public
right-of-way is unconstitutional because the Town officials responsible for revising its sign ordinance
had the Union’s lawsuit in mind when they did so. The Union contends that the 2015 Ordinance was
27
“specifically motivated by animus against the Union” and that the “avowed purpose” of the revisions
was to prohibit the Union from using its inflatable rat. ECF No. 96 at 19–21.
I do not find this to be the case. It is true that the individuals involved in revising the Town’s
sign ordinance, Thiel and Buckingham, were aware of the litigation that had been pending with the
Union and drafted the revisions with that lawsuit in mind. ECF No. 93 at 130. But that doesn’t
mean they were motivated by animus toward the Union or its message. It only means that they did
not want giant inflatables affixed to the Town’s public rights-of-way. It is only natural when revising
a law or ordinance to try to clarify issues that were less clear than intended in the earlier version of
the law. That’s why revisions are done. And that’s why, according to Thiel’s testimony, the
revisions that were intended to make clear inflatables could not be affixed to the public rights-of-way
were made. Id. at 135. Again, I find no evidence that either were motivated by anti-union animus;
they were motivated by a desire to clear up any confusion that might have existed. True, the Union
was the only entity seeking to affix giant inflatables to the public right-of-way, but that only means
that the issue never arose before the Union undertook to conduct its demonstration. There is no
reason to believe that the Town would not have taken the same action, both in enforcing the 2014
Ordinance or in drafting and enacting the 2015 Ordinance, if instead of the Union affixing its rat to
the public right-of-way, a local theater had affixed a giant Mickie Mouse inflatable there.
CONCLUSION
The Town of Grand Chute, like many communities, places greater aesthetic value on
uncluttered public rights-of-way more than the messy cacophony of signs that would otherwise arise
at those locations. As long as it has acted in an evenhanded manner and the Union has other ways
to get its message across, the Supreme Court has said it is free to do so without running afoul of the
28
First Amendment to the United States Constitution. In its amended complaint, the Union also
asserted identical claims under the Equal Protection Clause of the Fourteenth Amendment and the
corresponding provisions of the Wisconsin Constitution. Having offered neither argument nor
authority supporting those claims, I conclude that the Union has abandoned them. I therefore
conclude that the Union’s claims against the Town must be dismissed. The Clerk is directed to enter
judgment in favor of the Town and against the Union with costs as allowed by statute.
SO ORDERED this
14th
day of March, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
29
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