City’s Appeal Of Nixed Land Deal With Religious School Untimely And Moot

A group of citizens sued the City of South Bend, Indiana to prevent the city from giving land to a Catholic high school. The citizens claimed that giving the high school land was a gift of property to a religious institution, and violated the U.S. Constitution’s First Amendment’s establishment clause. The federal trial court ordered a preliminary injunction against transferring the property.

Rather than appeal, the City asked the trial court to modify the injunction to allow the City to sell the property to the school at an appraised value. The trial court denied the City’s request, ruling that the property should be sold to the highest bidder.

The City did not appeal that ruling either. Instead, it asked for another modification to open up bidding on the property. The court allowed that request. The school ended up purchasing the property as high bidder, and the trial court dissolved the injunction.

Then the City appealed, but not from the final judgment that dissolved the injunction. The City appealed only from the interlocutory orders that disallowed the original gift and the sale at the appraised value.

The Seventh Circuit Appellate Court dismissed the appeal for two reasons: (1) it was untimely, and (2) it was moot.

The appeal was untimely because an appeal from the final judgment did not extend the time the City had to appeal from the injunction order or the denial of the request to modify. Here’s how the court explained it:

Although the City is thus challenging two appealable orders—the initial injunction and the denial of the first modification that it sought (the modification that if granted would have permitted sale to the high school at the appraised value of the land)—the challenge is untimely. Had the City challenged the district court’s final order, the order dissolving the injunction, it could also have challenged any interim rulings that had not become moot … But the final order—the dissolution of the injunction—was sought by the City. A party cannot appeal a judgment that it won, unless it seeks a modification of the judgment … which the City does not. The only orders the City could have appealed from it failed to appeal from in time.

The appellate court also ruled that the appeal was moot. The court rejected the City’s argument that the issue in the case was capable of repetition but evaded review. The City argued that the trial court’s ruling could affect other similar land deals. But the court ruled “to allow this as a ground for permitting moot cases to be appealed would bring an unmanageable host of such cases into the appellate courts. A court would have to wrestle in every
case with uncertain questions about whether an injunction that had not been appealed had had or would have a future impact that should justify allowing an appeal even though it had become moot.”

Read the whole case, Wirtz v. City of South Bend, No. 11-3811 (7th Cir. 2/7/12), by clicking here.