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Tuesday, February 07, 2012

Ind. Decisions - 7th Circuit decides one Indiana case today

This entry could also be headed "More on: 'South Bend appealing judge decision on Family Dollar property'", referencing this Dec. 22, 2011 ILB entry and those that preceded it.

In Roy Wirtz v. City of South Bend (ND Ind., Miller), an 8-page opinion, Judge Posner writes, beginning at p. 5:

The appeal is moot as well as untimely. The City does not want to unwind the sale to the high school at the price bid by the school—it does not ask to be allowed to give the money back in exchange for the use right that the City originally sought, or to give back so much of the money that it received in the sale as exceeds the appraised value.

Against dismissing the appeal on the ground of mootness the City invokes the principle that decisions of cases capable of repetition but evading review are reviewable even though moot. * * *

However, 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. * * *

The City overlooked a simple alternative to the convoluted maneuvering by which it sought to present its constitutional contentions to us. That was to file a timely appeal from the grant of the original injunction and ask us to stay the injunction and, more important (since a mere temporary stay would be unlikely to induce the high school to start construction on the land), to accelerate our decision of the appeal. Appellate courts can act quickly when there is a compelling reason for them to do so. Requests for stay pending appeal are common and are acted on with dispatch [cites omitted].

Posted by Marcia Oddi on February 7, 2012 12:18 PM
Posted to Ind. (7th Cir.) Decisions