WIRTZ v. CITY OF SOUTH BEND (February 7, 2012)
A Catholic high school in South Bend, Indiana wanted to build an athletic complex on an adjacent parcel. The City bought the land and proposed to give the land to the School in return for the right to use the complex at certain times. A number of city residents brought suit alleging a First Amendment violation and sought to enjoin the transaction. Judge Miller (N.D. Ind.) granted the injunction. Instead of appealing, the City modified its proposal. It proposed to sell the property to the School at an average appraised value. The court refused to modify the injunction. Again, the City decided to modify its proposal rather than appeal. It proposed to sell the property to the highest bidder. The court was satisfied and dissolved the injunction, the plaintiffs were satisfied, and the School bought the property. But the City was not satisfied and appealed.
In their opinion, Seventh Circuit Judges Cudahy, Posner, and Manion dismissed the appeal. First, the Court concluded that the appeal was not timely. It actually does not seek review of the final order dissolving the injunction. Instead, it seeks review of the two earlier orders refusing to modify the injunction. However, the time for seeking review of those orders is long gone. The City could have sought review of those orders, along with the final order, had the district court refused to dissolve the injunction. But a party cannot seek review of a judgment on which it prevailed. Second, the Court concluded that the appeal was moot since the City was not seeking rescission or some kind of refund. The Court rejected the City's contention that the appeal fit within the "capable of repetition but evading review" exception. The fact that the School was in a hurry to begin construction is not a sufficient reason to invoke the exception. Furthermore, the exception only applies when the issue is likely to be faced again in the future -- and that is unlikely here. Finally, the Court noted that the City could have easily achieved its goals had it appealed the first district court order and sought expedited appellate review.