Lafortune v. City of Biddeford, (1st Cir. 2004)

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Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 03-1181

DOROTHY LAFORTUNE,

Plaintiff, Appellant,

v.

CITY OF BIDDEFORD, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Dorothy Lafortune on brief pro se.

Harry B. Center II, Aaron P. Burns and Smith, Elliott, Smith

& Garmey, on brief for appellees.

May 26, 2004



Per Curiam. Dorothy Lafortune challenges the district court's

dismissal of her claims brought under 42 U.S.C. § 1983 against the

City of Biddeford, Maine, ("Biddeford") and its Mayor, as moot. We

conclude that the district court erred in finding that defendants

had met its burden of demonstrating that the challenged conduct

would not recur.

Lafortune's claims centered on two Biddeford City Council

orders which removed her public access cable television program

from the air and suspended her right to use Biddeford's public

access television facilities for "a minimum period of one year."

Lafortune also argued that Biddeford's requirement that she obtain

written releases from any private citizen to be mentioned in her

program before the program aired violated the Cable Communications

Policy Act of 1984, 47 U.S.C. § 544(f), as well as the First and

Fourteenth Amendments to the United States Constitution.

After a magistrate judge issued a Recommended Decision

concluding that Biddeford's release requirement violated §

544(f)(1) and imposed an unconstitutional prior restraint on

LaFortune's freedom of speech, Biddeford adopted an emergency

ordinance suspending operation of all community access broadcasting

pending revision of the terms governing use of the public access

channel. The ordinance further stated Biddeford's intention to

promptly resume public access programming. The district court

subsequently stayed the litigation to allow Biddeford to determine

its future public access policy, and the parties were ordered to

submit status reports to the court every sixty days.

Two months later, Biddeford resumed, on an interim basis,

broadcasting public meetings, but continued its "suspension" of

programming produced by members of the public. Despite repeated

assurances by Biddeford that it was actively reviewing and

rewriting its entire public access policy, in December 2002,

Biddeford filed a status report and request for dismissal. The

City said inter alia: "Granting any of this requested relief

[sought by the plaintiff] will be meaningless, unless the City of

Biddeford chooses to provide a public access channel." At most,

the relief sought would lead to "a possible order to allow the

Plaintiff to broadcast programming on a channel that may not

exist."

It is unclear whether further representations were made by

Biddeford in further submissions or in any oral hearing that may

have been held but no such representations are set forth in its

brief on this appeal. Pertinently, that brief says the following:

In the fall of 2002, Biddeford reopened its public access

channel only for school-sponsored programming, as well as

city council and planning and zoning board meetings. . .

. In December 2002, the court concluded that Biddeford's

public access channel no longer provided a forum for any

public access, including LaFortune, and dismissed the

complaint as moot.

What led the court to so conclude is not stated in the brief.

Although the brief goes on to describe the elimination of public

access as "permanent," there is no reference to any fact to support

such a label.

The district court's order also describes no specific

representation by Biddeford. It says in relevant part:

After repeated assurances to this court that its whole

public access program was being rewritten, and after the

interim reinstatement of public meeting broadcasting,

Biddeford now seemingly takes the position that no

further change is any longer in the offing. The most

recently announced position leads me to the conclusion

that this lawsuit is now moot.

Missing from this is any express representation by Biddeford that

it has determined permanently to discontinue public access.

Possibly, based on repeated delays in producing the promised new

regime for reopening public access, the district court made a

practical judgment that resumption of full-scale public access was

unlikely. In any event, it dismissed the case as moot (albeit with

some expressed misgivings).

We are not persuaded on this record that Biddeford carried its

"heavy burden" to show that this case is moot, a burden that has a

special bite when the mootness claim is based on voluntary action--or in this case inaction--by the party who is attempting to invoke

the doctrine. See Conservation Law Foundation v. Evans, 360 F.3d

21, 24-27 (1st Cir. 2004). In the absence of a well-supported and

credible express representation by Biddeford that full-scale public

access is permanently off the table, we see no way to sustain a

finding of mootness. Possibly on remand the district court can

point to prior statements, or new ones may be forthcoming, to show

that Biddeford has permanently eliminated full-scale public access.

Whether such a representation, if adequately supported and

found credible, would render the case moot is not entirely clear.

Although Lafortune's various complaints and brief on appeal are not

crystal clear, there is a suggestion in her brief on appeal that

she regards Biddeford as having reinstated public access while

selectively limiting who may use it; and, on this ground, or as

redress for past abuse, she may be charging that Biddeford is now

forced to provide access to her. Whether she chooses to develop

such a nascent argument on remand, or whether it has any merit, are

issues to be settled in the district court. We mention these

possibilities only to make clear that we have not foreclosed them

by referring to the inadequacy of Biddeford's current

representation.

The order of the district court dismissing the case is vacated

and the matter remanded for further proceedings. This is without

prejudice to a further order finding mootness on a more developed

record.

It is so ordered.

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