Not For Publication in West's Federal Reporter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
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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
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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
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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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