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7th Circuit dismisses South Bend's appeal

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The 7th Circuit Court of Appeals was presented a novel jurisdictional issue Tuesday: whether a municipal land use case can come within the exception to the doctrine of mootness for cases that are capable of repetition yet elude review.

The city of South Bend bought land next to a Catholic high school with the intention of transferring it to the school in exchange for use of the athletic complex. Some residents challenged the transfer, arguing it violated the establishment clause since no value had been attached to the use right that was the only compensation the city sought. The District Court granted a preliminary injunction, and instead of appealing, the city filed two subsequent motions to modify the injunction, eventually opening up the process to the highest bidder. The high school purchased the land.

After the sale, the city appealed the two interlocutory orders denying motions it made in the course of the litigation. At no time after the motions were denied did the city appeal. The city claimed that it didn’t appeal those orders because the high school needed to begin construction of the complex immediately in order to complete it by the 2012 school year. South Bend claimed that the District Court’s rulings establish precedents that will prevent the city from transferring land to religious institutions in the future.

“… the fact that a dissolved injunction may have consequences even though the case in which it was issued is now moot is not a permissible ground for invoking the doctrine that allows the appeal of moot cases that are capable of repetition but evade review,” wrote Judge Richard Posner. To allow the timing of a project as a ground for permitting moot cases to be appealed would bring “an unmanageable host of such cases into the appellate courts,” he continued in Roy Wirtz, et al. v. City of South Bend, No. 11-3811.

The city’s appeal is moot and untimely.

 

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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

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  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

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