Opinion
No. 99 C 8426
February 22, 2001
MEMORANDUM OPINION AND ORDER
Pending is Plaintiff Brent Christensen's motion for summary judgment pursuant to Fed.R.Civ.Proc. 56 and request for attorneys' fees. For the reasons set forth below the motion for summary judge is denied on the basis of mootness. Furthermore, Plaintiff's request for attorney's fees is denied.
BACKGROUND FACTS
Plaintiff, a candidate in the March 21, 2000, Illinois primary for the Democratic nomination for Congress from the 6th Congressional District, brought an action for declaratory and injunctive relief alleging that his First Amendment rights were violated by Bensenville's sign ordinance. Plaintiff did not seek monetary damages. In his complaint, Plaintiff alleged that Bensenville's sign ordinance unconstitutionally placed durational limits on the display of political signs by private citizens. This Court granted Plaintiffs motion for a preliminary injunction, prohibiting the Village from enforcing its sign ordinance which categorized political signs as "temporary" signs and restricted their display to maximum 30-day time period. Plaintiff has now moved for summary judgment, standing on his previously filed motion for temporary restraining order.
Defendant Bensenville opposes the entry of summary judgment because the ordinance which was the subject of the TRO has been repealed and the Village has enacted a new definition of political signs without regard to durational limits. "Political signs" have been deleted from the category of "temporary signs" which were defined by the length of time their display is permitted. Under the now amended statutory scheme, a "political sign" is defined as "a sign, not permanently attached to the ground or structure, identifying a political candidate, party or issue." Size is the only limitation placed upon this newly defined class of "political signs."
Our Supreme Court established the standard test for mootness in Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982). "In general a case become moot when the issue(s) presented are no longer live or the parties lack a legally cognizable interest in the outcome. United States Parole Commission v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980), Powell v. McCormick, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969)." The repeal of an ordinance could render a claim for declaratory relief based on the old ordinance moot. Allee v. Medrano, 416 U.S. 802, 818-819, 94 S.Ct. 2191, 2192, 40 L.Ed.2d 566 (1974), Penny Saver Publications, Inc. v. Village of Hazel Crest, 905 F.2d 150 (7th Cir. 1990), Benkendorf v. Village of Hazel Crest, 804 F.2d 99 (7th Cir. 1986) and National Advertising Co. v. City of Chicago, 788 F. Supp. 994 (N.D. Ill. 1991). However, the mootness question remains controlled by City of Mesquite v. Aladdin's Casile, Inc. 455 U.S. 283, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982), where our Supreme Court applies the "well settled" rule that "a defendant's voluntary cessation of a challenged practice does not necessarily deprive a federal court of its power to determine the legality of the practice. Id. at 289, 102 S.Ct. at 1074. Although the challenged statutory language at issue in City of Mesquite had been eliminated while the case was pending in the Court of Appeals, the Supreme Court held that the case was not moot, because the defendant's "repeal of the objectionable language would not have precluded City of Mesquite from reenacting precisely the same provision if the District Court's judgment were vacated." Id.
We decline to disturb our earlier ruling that the political sign provision in ordinance 4-89 was content based and the 30 day durational limitation in the ordinance clearly restricted Christensen's political speech in violation of his First Amendment rights. However, it is now undisputed that the language in the amended Bensenville ordinance specifically repealed any reference to the previous durational limit applied to the display of political signs. Plaintiff fails to raise any arguments in opposition to Defendant's mootness arguments nor does he raise any facts contesting such as required by Local Rule 56.1. Because the challenged portion of the sign ordinance has been repealed since the institution of Plaintiff's action, and because Plaintiff has failed to raise any arguments in opposition to Bensenville's argument that his claims are now moot, we conclude that Plaintiffs claims have been rendered moot. Moreover, Plaintiff appears to no longer have standing in light of the undisputed fact that he has no actual or threatened injuries. Finally, it is undisputed that the primary election that Plaintiff referenced in his complaint has come and gone and Plaintiff has not set forth any facts regarding any injury he suffered or continues to suffer. Therefore, Plaintiffs motion for summary judgment is denied on the basis of mootness. This finding, however, is in no way to be construed as a ruling on the constitutionality of Bensenville's amended ordinance.
Finally, Plaintiff has requested that this Court award him costs and attorney's fees in this matter. However, it is undisputed that Plaintiff is a pro se litigant/attorney thus he is not entitled to attorney's fees. See Kay v.Ehrler 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991).
CONCLUSION
For the reasons stated above Plaintiffs motion for summary judgment and attorney fees is hereby denied (#19-1). This case is terminated and this is a final and appealable order.