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Requiring conditional use permit for residential substance abuse service facilities does not violate ADA

March 30th, 2015

by Gary Taylor

Get Back Up, Inc. v. City of Detroit
Federal 6th Circuit Court of Appeals, March 13, 2015

Get Back Up operates a 160-bed all male residential facility in downtown Detroit, providing substance abuse treatment and counseling, education, and job training opportunities.  In August 2007 it purchases an unused school building from Detroit Public Schools for approximately $500,000.  The building is located in B4-H, General Business/Residential Historic zoning district.  The B4-H District allows boarding schools, child care institutions, nursing homes, religious residential facilities, adult day care centers, hospitals, libraries and religious institutions (among other uses) by right.  It lists “residential substance abuse service facilities” as one of several conditional uses requiring the satisfaction of 15 stated criteria before being allowed.  Get Back Up originally received approval of its conditional use application for the building in the B4-H District from the Building Safety and Engineering Department, but the Russell Woods-Sullivan Area Homeowners Association appealed the approval to the Board of Zoning Appeals (BZA).  The BZA voted to reverse the decision.  Get Back Up appealed the BZA decision to Wayne County Circuit Court, and after bouncing around between circuit court and the BZA several times the circuit court affirmed the BZA’s denial.  Appeals to the Michigan Court of Appeals and Supreme Court were unsuccessful.  After this, Get Back Up filed a complaint in federal court, claiming that the denial violated the American’s with Disabilities Act, the Rehabilitation Act, and the Fair Housing Act.  The federal district court also ruled in favor of the city, and Get Back Up appealed.

Get Back Up argued that requiring residential substance abuse service facilities to obtain a conditional use permit when other similar uses are allowed by right is discriminatory.  The 6th Circuit disagreed, finding that the ordinance does not allow any materially similar use to operate by right in any B4 zoning district.  Residential substance abuse service facilities are treated the same as many other residential uses such as multi-family dwellings, emergency shelters, rooming houses, and fraternities and sororities.  Furthermore, the court found that the other uses cited by Get Back Up in support of their case (nursing homes and hospitals) are not materially similar to residential substance abuse service facilities.  Hospitals are not residential uses, and they tend to have substantial impact on their immediate surroundings and are particularly well suited for busy commercial districts like B4 districts.  While nursing homes are residential uses, their residents are “often physically disabled and they rarely leave the premises….[They are a] uniquely sedate and unburdensome use, having relatively little impact on traditional zoning concerns like noise and traffic.”

The court also found no merit in Get Back Up’s argument that the 15 criteria for approving a conditional use permit are unconstitutionally vague.  The phrases “detrimental to or endanger the social, physical, environmental or economic well being of surrounding neighborhoods,” “use and enjoyment of other property in the immediate vicinity,” and “compatible with adjacent land uses” are terms with “common-sense meanings” and are not so vague as to fail to provide fair notice to applicants of what is prohibited.”

The 6th Circuit Court of Appeals affirmed the ruling in favor of the City of Detroit.

Americans with Disabilities Act, Conditional Uses/Special Uses, Due Process, Fair Housing Act, Federal courts , , ,

Ban on “profane discourse, rude or indecent behavior” near churches is impermissibly content based

March 26th, 2015

by Gary Taylor

SNAP, Inc. v. Jennifer Joyce, Circuit Attorney for the City of St. Louis, et al
Federal 8th Circuit Court of Appeals, March 9, 2015

In 2012 the Missouri legislature enacted the House of Worship Protection Act.  It provides that a person commits the crime of disrupting a house of worship if he or she “intentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services.”  The Survivors Network of Those Abused by Priests (SNAP) is a non-profit organization that advocates for victims of sexual abuse by clergy.  Call to Action, Inc. is a non-profit organization that advocates for various changes in the Catholic Church, including the ordination of women, acceptance of gay, lesbian, and transgender people, and women’s participation as altar servers.  The members of both of these organizations (Plaintiffs) regularly meet near Catholic Churches to pray, hold signs and pictures, distribute literature, and attempt to communicate their messages to church personnel and parishioners.  Since the adoption of the Worship Protection Act members have been asked to move on, and have been threatened with jail by church ushers and parishioners; however, no plaintiff to the litigation has been arrested by Missouri officials, nor was evidence presented that plaintiff protesters have interfered in any way with churchgoers’ entry or exit from a house of worship.

Plaintiffs argued that their First and Fourteenth Amendment rights were violated by the Worship Protection Act.  They claimed that the Act chilled their expression and interfered with their ability to speak in public locations where their intended audience may be reached – church leaders, workers, and parishioners.  Defendants were granted summary judgment by the district court, and plaintiffs appealed to the 8th Circuit Court of Appeals.

The constitutionality of a restriction on speech depends in large part upon whether it is content based and thus “subject to the most exacting scrutiny,” or a content neutral time, place, or manner regulation subject to intermediate scrutiny.  The 8th Circuit focused on the Act’s ban on “profane discourse, rude or indecent behavior” in or near a house of worship and found that the ban is content based.  It noted that the US Supreme Court has stated that governments might “seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” It also noted that the “unreasonably disturbs, interrupts, or disquiets any house of worship” language is the type of language disapproved of by the Supreme Court, which has stated that “audience disapproval or general concern about disturbance of the peace does not justify regulation of expression….The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  The 8th Circuit contrasted a US Supreme Court case that upheld a Colorado ban on people within 100 feet of a healthcare facility from approaching within 8 feet of another person for the purpose of “passing a leaflet or handbill, displaying a sign or engaging in protest….” It noted that the Colorado statute was content neutral because it regulated “only the places where some speech my occur” in contrast to the Missouri statute which requires an inquiry into whether speech is “profane” or “rude.”

The Worship Protection Act could not survive the exacting scrutiny required of content based regulation.  “The existence of content neutral alternatives to protect houses of worship from disruption, such as noise regulations…casts considerable doubt” on the government’s assertion that such regulations are necessary to achieve the state’s asserted interest in protecting the free exercise of religion.  The district court’s summary judgment in favor of the government was reversed.

Federal courts, First Amendment claims ,

News from around Kansas: Garden City sued under RLUIPA

November 11th, 2014

It’s the classic love story: Church fills vacant space downtown; church and city (appear to be) happy for 10 years; city gets restless, wants to start seeing other businesses, and tells church it doesn’t comply with zoning; church feels spurned and sues city in federal court under RLUIPA.

The KSN.COM article is here.  I can’t wait to read how it ends.

current news, Federal courts, RLUIPA ,

Vermont neighbor can bring nuisance claim for wind farm, despite losing fight against permit

October 16th, 2014

Note:  This case is from the Federal District Court for Vermont, but it is interesting and in keeping with our “wind week” theme.   It was originally posted by Patricia Salkin on her blog, The Law of the Land http://lawoftheland.wordpress.com.

Brouha v Vermont Wind, LLC
(Federal District Court for Vermont, September 23, 2014)

Plaintiff alleges that the Sheffield Wind Project that the Defendants owned and operated created an unreasonable noise impact, that the noise prevented the Plaintiff from gardening, eating outside, walking and other activities similar, and the Plaintiff therefore suffered stress, pain and suffering and loss of the use of his property.

The District Court of Vermont found that the Plaintiff submitted sufficient information for a private nuisance claim, due to interference with the use and enjoyment of another’s property that is both unreasonable and understanding. Defendants contended that the Plaintiff’s complaint should be collaterally estopped because the claims litigated were already decided when the Plaintiff unsuccessfully contended and appealed against the granting of the permit, but Plaintiff in return claims that the standard applied for the permit were different from the standard applied for private nuisance.

The court found that the enjoyment of the Plaintiff’s property has never been litigated, and the restrictions imposed by the permit did not cover a private nuisance issue. Collateral estoppel does not apply here as the private nuisance claim was not raised in the first action, and the general nuisance claim that focused on the impact to the community was not identical to the private nuisance issue. Defendants’ motion was to dismiss Plaintiff’s private nuisance claim was therefore denied.

 

Federal courts, Nuisance, Wind and solar energy , ,

Delay that doomed wind farm project did not give rise to substantive due process claim

October 15th, 2014

by Rachel Greifenkamp and Gary Taylor

CEnergy-Glenmore Wind Farm #1, LLC v. Town of Glenmore
(Federal 7th Circuit Court of Appeals, August 7, 2014)

In Glenmore, Wisconsin, CEnergy planned to develop a wind farm. CEnergy obtained a conditional use permit from the town but did not obtain the required building permits for the wind turbines. CEnergy had entered into a power purchase agreement with the Wisconsin Public Service Corporation to sell wind energy for 20 years; however, the agreement was contingent upon CEnergy satisfying a variety of requirements, including obtaining all necessary permits, by March 1, 2011.

In September of 2010 the applications for the building permits to build the turbines were submitted to the Town Board.  In December 2010, CEnergy had provided all necessary information for the permits and informed the Chair of the Board that the permits would need to be approved by March 1 for CEnergy to satisfy the power purchase agreement. Over the course of the next three months, public sentiment had turned decidedly against the project, with the Board Chair receiving threats to his physical safety.  The Board did not take up the the issue of the building permits at the January or February meetings, ostensibly because the town’s attorney needed more time to review the documentation submitted by CEnergy.   The applications for building permits were finally considered and granted at a meeting on March 7, but citizens at that meeting became “accusatory and threatening” toward Board members and other town officials.  The Chair reopened the meeting and, after further discussion, the Board voted to rescind the granted permits.  One week later, however, the Board held a special meeting and nullified the rescission, thereby reinstating the granted permits.

When the Wisconsin Public Service Corporation backed out of the power purchase agreement due to CEnergy’s failure to obtain the necessary permits in time, CEnergy filed suit against the Town of Glenmore claiming a denial of its right to substantive due process and a violation of the town’s state law obligation to deal in good faith. The federal district court dismissed the due process claim for failure to state a claim upon which relief can be granted, the district court also declined to retain jurisdiction over the supplemental state law claim. CEnergy appealed the decision to the Seventh Circuit Court of Appeals.

On the issue of the denial to substantive due process, the Court of Appeals noted that while both the Supreme Court and the 7th Circuit Court of Appeals have acknowledged the possibility that a land-use decision could constitute a deprivation of property without substantive due process of the law, neither have definitively concluded such. However, like the district court, the Court of Appeals concluded that the substantive due process claim fails because the Board’s actions were not arbitrary.  “As far as the Constitution is concerned, popular opposition to a proposed land development plan is a rational and legitimate reason for a legislature to delay making a decision….The idea in zoning cases is that the due process clause permits municipalities to use political methods to decide.”  While the courts have stated the substantive due process standard in many ways – decisions must “shock the conscience,” be “egregious,” “arbitrary and capricious,” or “random and irrational” – the Board’s decision making process did not meet any of the tests.

The Court of Appeals further held that CEnergy’s claim must fail because it did not seek recourse under state law. The court has held in the past that a plaintiff who ignores potential state law remedies cannot state a substantive due process claim in federal court.  The standard process for obtaining a building permit in Glenmore involves submitting the request to the Town Zoning Administrator and then, if denied, bringing the request to the Board of Appeals. This typical process does not involve the Town Board at all. Because CEnergy went along with the political process and did not seek another administrative course of action to get their building permits approved, there is no opportunity for them to regain the lost profits from the wind farm.

The 7th Circuit Court of Appeals affirmed the judgment in favor of the Town of Glenmore.

 

Due Process, Federal courts, Wind and solar energy , ,

Ten Commandments monument in Fargo ND does not violate First Amendment Establishment Clause

August 29th, 2014

by Gary Taylor

Red River Freethinkers v. City of Fargo
(Federal 8th Circuit Court of Appeals, August 25, 2014)

A stone monument depicting the Ten Commandments, which was given to the City of Fargo by the Fraternal Order of Eagles in 1958, has been the subject of over a decade of litigation.  In addition to the Ten Commandments, the monument includes other symbols such as the American flag and the “all-seeing eye” atop a pyramid. In 1961, the monument was installed in its current location on the City Plaza, “a grassy, open area mall” on City property, where it sat without legal challenge for over forty years.  In 2002, the Red River Freethinkers sued the city seeking a declaration that the display of the Ten Commandments violated the Establishment Clause of the First Amendment to the US Constitution.  The federal district court found in favor of the city on the grounds that because of the purpose of the gift and the other secular symbols and messages on the monument “a reasonable observer could not perceive the city as adopting or endorsing the religious message of the display.” The court went further to state that “to exclude the request of a private organization, such as the Fraternal Order of Eagles, to engage in religious speech in a recognized forum on the sole grounds that their speech has religious content could arguably be a violation of their constitutional rights.”

Seizing on this language, the Freethinkers offered their own monument to the city with a request that it be placed near the Ten Commandments monument.  It was to be inscribed:

THE GOVERNMENT OF THE UNITED STATES OF AMERICA IS NOT, IN ANY SENSE FOUNDED ON THE CHRISTIAN RELIGION
From the Treaty of Tripoli, Approved Unanimously by the United States Senate, June 7, 1797. Signed by President John Adams
Presented to the City of Fargo by the Red River Freethinkers in recognition of the First Amendment right of every American to believe, or not believe, in any god

The city commission voted to reject the Freethinkers offer, and in order to avoid litigation further decided to donate the Ten Commandments monument to a private entity, who would then move it to a location off of city property.

This caused a stir. many opposed this decision, and a petition garnering more than 5,000 signatures required the commission to either adopt, or submit to a vote of the people, an ordinance that simply stated:

A marker or monument on City of Fargo property for 40 or more years may not be removed from its location on City of Fargo property.

The city adopted the ordinance and left the monument in place.  A month later, the city adopted a policy of not accepting any additional monuments for display on the City Plaza.  The Freethinkers sued again, claiming that the petition, and the city’s reaction to it, had made the monument impermissible under the Establishment Clause.  After jurisdictional issues were addressed, the district court granted summary judgment for the city.  The Freethinkers appealed to the 8th Circuit Court of Appeals.

The Court of Appeals applied the standard announced by the US Supreme Court (USSC) for evaluating “passive monuments.”  In that USSC case, a Ten Commandments monument stood for over 40 years on the Texas Capitol grounds alongside other (“17 monuments and 21 historical markers”) secular symbols.  The USSC found that the monuments represented the several strands in the State’s political and legal history,” and that “the monument had a dual significance, partaking of both religion and government.” The 8th Circuit found the Fargo monument to be identical to the Texas situation in every legally relevant way.  The Freethinkers argued that the Christian overtones to the petition movement changed public perception of the monument to one with a single religious message; however the Court of Appeals disagreed, noting that petitioners expressed both religious and secular reasons to retain the monument, and that the city commission cited the costs of a legal challenge and the importance of “embracing and tolerating all people” as the basis for its decision.  By adopting the petition, the city did not “necessarily endorse the specific meaning that any particular petitioner sees in the document.”  The Court of Appeals affirmed the district court and dismissed the Freethinker’s petition.

Judge Bye dissented.  After reciting other details of the history of the monument (including the then-mayor’s statement at the 1961 dedication ceremony that the monument “would be a constant reminder to one and all that Fargo shall go forward only as it respects and lives according to the principles of the Ten Commandments”), Justice Bye noted several distinctions between the Fargo monument and the Texas monument, including: (a) unlike the Texas monument, no other monuments share the Civic Plaza in Fargo, (b) the city now has adopted a policy that no other monuments may stand in Civic Plaza, (c) Civic Plaza is flanked on three sides by public buildings, and sidewalks from the entrances to those buildings directly intersect at the monument.  Judge Bye concludes from these facts that the city has rendered the Ten Commandments monument an “active monument” subject to a more stringent test, and that summary judgment in favor of the city was not appropriate.

Federal courts, First Amendment claims ,

8th Circuit finally addresses “in writing” requirement of Federal Telecommunications Act

August 25th, 2014

by Gary Taylor

NE Colorado Cellular v. City of North Platte
(Federal 8th Circuit Court of Appeals, August 22, 2014)

NE Colorado Cellular, dba Viaero Wireless (Viaero) filed an application to construct a cell tower in North Platte, Nebraska (City).  The application first went to the City’s planning commission.  the commission conducted a public hearing and received both live testimony and letters from property owners near the proposed tower site.  After the hearing,the commission issued a summary report recommending denial of the application because the tower would not be in harmony with the character of the area as required by the North Platte zoning code provisions concerning cell towers.  The commission provided this report to the city council.  The city council then conducted its own public hearing, where two people spoke in favor of the tower and twelve spoke in opposition.  The council voted 6-2 to deny the application.  The minutes of the council meeting included the finding that the proposed tower “does not meet the minimum standards stated in the [zoning ordinance]…based on the [finding] that the use is not in harmony with the character of the area and it is not the most appropriate use of the land as it is a historic neighborhood and the tower could decrease property values in the area.”

Viaero filed suit against the City, alleging that the decision was neither “in writing,” nor “supported by substantial evidence” as required by the Federal Telecommunications Act of 1996 (TCA).  The district court upheld the City’s decision, and Viaero appealed to the Federal 8th Circuit Court of Appeals.

In writing.  The interpretation of the TCA’s “in writing” requirement up until this time has been an open question in the 8th Circuit.  The 1st, 2nd and 9th Circuits require that a decision (1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.  The 6th Circuit does not require that the decision and record be separate writings as long as the record permits the reviewing court to “focus with precision on the action that was taken and the reasons supporting such action.”  The 4th and 11th Circuits consider the burden on local governments to be even lighter than that imposed by the other interpretations.  The 4th Circuit has noted that “Congress knows how to demand findings and explanations” and has not done so in the TCA.  Similarly, the 11th Circuit has stated that the decision and the bases thereof can be found in the transcript of the hearing and the minutes of the meeting in which the hearing was held; neither a separate written document, nor specific findings of fact are required.**

The 8th Circuit was persuaded that the 4th and 11th Circuits articulated the better rule.  The Court did not find anywhere in the text of the TCA where the denial and the written record be separate documents.  Likewise, the language of the TCA does not require that the written denial state findings of fact or the reasons for the denial.  “Congress may require an agency or board to state its findings.  Congress did not do so here.”

Supported by substantial evidence.  The Court began by noting that “the TCA’s ‘substantial evidence’ requirement does not impose substantive standards on local governments. Rather, it requires a reviewing court to determine whether the local authority’s decision comports with applicable local law….It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  The city’s ordinance requires that a tower “shall be in harmony with the character of the area and the most appropriate use of the land” in order to be approved.  The Court found that the city council had before it the testimony of a dozen residents that the proposed tower would be an “eyesore,” would be inappropriate for the neighborhood, and would not be harmonious with the neighborhood.  This, the Court concluded, was enough for a reasonable mind to accept as adequate to support a conclusion that the proposed tower would would not be in harmony with the neighborhood.


**Note:  The US Supreme Court has accepted the case of T-Mobile South, LLC. v. City of Roswell, 731 F.3d 1213 (11th Cir. 2013), cert. granted, 134 S.Ct. 2136 (2014) to resolve these differing interpretations.

 

cell towers, Federal courts ,

Church did not have standing to appeal rejection of city’s approval of cross display

July 31st, 2014

by Rachel Greifenkamp

Chris Cabral and Nancy Tarsitano v. City of Evansville, Indiana
(Federal 7th Circuit Court of Appeals, June 25, 2014)

In April of 2013 the West Side Christian Church in Evansville, Indiana submitted an application to the City’s Engineer’s Office seeking permission to erect thirty-one six-foot plastic crosses on a 1.5-mile-long public riverfront for two weeks in August of 2013. The city denied the permit originally because the display was intended to be decorated with phrases like “Jesus saves,” which was against the City municipal code regarding “First Amendment signs.” When the permit was resubmitted without the religious phrases, the Board of Public Works approved the display contingent on a disclaimer being placed on either end of the display saying that it was not endorsed by the City of Evansville.

In June 2013 Cabral and Tarsitano (plaintiffs) filed a complaint against Evansville challenging the display as violating the Establishment Clause, and requested a preliminary injunction preventing the installation of the crosses. The church then filed a motion to intervene in July. The district court entered an injunction holding that, “the City’s approval of this display of crosses constitutes an impermissible endorsement of religion that violates the Establishment Clause of the First Amendment.” The city did not appeal the decision.  The church, however, filed a timely appeal arguing that the display did not violate the Establishment Clause and that instead the injunction violates the church’s First Amendment rights.

Rather than address the First Amendment issues, the Seventh Circuit Court of Appeals found that the church lacked standing to pursue its appeal.  There are three requirements that must be met in order for a litigant to have standing: (1) they must have suffered an actual or imminent injury in fact, (2) the injury must be traceable to the challenged action, and (3) it must be likely, not just speculative,  that the injury will be redressed by the court returning a favorable decision. Standing does not exist in this appeal primarily due to the fact that even if the court were to overturn the district court’s decision, it is only speculative as to whether the “injury” suffered by the church would be redressed because the City of Evansville might deny the permit for a number of reasons.  Such speculation as to future events is not enough to support a claim of standing “[S]tanding requires that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

In addition, the only party expressly bound by the injunction – the city of Evansville – did not appeal the lower court decision and was not a party to the church’s appeal.  A judgment will not be altered on appeal in favor of a party who did not appeal, even if the interests of the party not appealing are aligned with those of the appellant.

For these reasons, the church’s appeal was dismissed for lack of standing.

 

Federal courts, First Amendment claims, Standing to sue , ,

US Supreme Court strikes down buffer zones around MA abortion clinics

July 1st, 2014

by Gary Taylor

McCullen v. Coakley
(US Supreme Court, June 26, 2014)

In 2007, Massachusetts amended its Reproductive Health Care Facilities Act to make it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” the Act exempted four classes of individuals, including “employees or agents of such facility acting within the scope of their employment.”  Another provision of the Act makes it a crime for the knowing obstruction of access to a reproductive health care facility. McCullen and others who attempt to engage women approaching Massachusetts abortion clinics in “sidewalk counseling” – offering information about alternatives to abortion and help in pursuing those options – raised First Amendment claims, arguing that the buffer zone displaced them from their positions outside clinics which considerably hampered their counseling efforts.  Their attempts to communicate with patients are further hampered by clinic escorts who accompany arriving patients through the buffer zones to the clinic entrances.

The US Supreme Court held that the Act violates the First Amendment.  First the Court noted that “public ways” and “sidewalks” are traditional public fora which have traditionally been open for speech activities.  The government’s ability to regulated speech in traditional public fora is very limited, where traditional time, place and manner restrictions on speech are allowed only if the restrictions (1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant governmental interest, and  leave open ample alternative channels for communication of the information.

Content based.  The Court determined that the restrictions were neither content nor viewpoint based.  Just because the buffer zones were drawn specifically around abortion clinics does not mean the restriction was directed, on its face, at a specific message.  It was adopted in response to a record of crowding, obstruction and even violence outside abortion clinics that was not present in other locations.  Violation of the Act does not depend on what individuals say, but rather where they say it.  The Act’s purposes include protecting public health, safety and welfare, and unobstructed public use of streets and sidewalks.  Furthermore, the exemption for clinic employees was not an attempt to favor one viewpoint over another, but rather was necessary to allow them to enter and exit the clinics in the performance of their duties.

Narrowly tailored.  The Court determined that the buffer zone restriction was not narrowly tailored, in that it burdened substantially more speech than is necessary to further the government’s legitimate interests.  While it served the interest in public safety on sidewalks, it deprived the petitioners of their two primary methods of communicating their message: close personal conversations with arriving patients and distribution of literature.  Those forms of expression have historically been closely associated with the transmission of ideas.  Petitioners are not merely protesters; they seek not only to express their opposition to abortion but also to engage in personal conversations with women about various alternatives to abortion.  “It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones.  If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.  The Court suggested that Massachusetts could adopt legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, which prohibits obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services.  The Court also noted that the problems the legislation sought to address were principally limited to one Boston clinic on Saturday mornings.  The police are capable of singling out those who harass or intimidate patients, and so the restrictions in the Act burden substantially more speech than necessary to achieve the government’s public safety interests.  The government must demonstrate that such alternative measures that would burden substantially less speech would fail, not simply that the chosen route (buffer zones) is easier to enforce.

 

Federal courts, First Amendment claims, United States Supreme Court , ,

Attorneys cannot represent city, then property owners, in suit concerning quarry truck traffic

June 9th, 2014

by Gary Taylor

Zerger & Mauer, LLP v. City of Greenwood
(Federal 8th Circuit Court of Appeals, May 30, 2014)

From 2006 to 2010 the city of Greenwood, Missouri and Martin Marietta Minerals were in a dispute over a rock quarry south of the city.  The dispute concerned truck traffic traveling in interstate commerce through Greenwood.  eventually, the parties entered into an agreement in which Martin paid Greenwood $7 million, and Greenwood agreed to designate Second Avenue for the truck traffic.  In the agreement, Greenwood declared that the truck traffic did not constitute a nuisance.  Greenwood had obtained a prior judgement in the case against Martin for $12 million; therefore, Greenwood was essentially making a $5 million concession so that it could designate the truck traffic route it deemed most beneficial.  Zerger and Mauer represented Greenwood throughout the dispute, receiving over $4 million in legal fees.

Subsequently in 2011, eighteen individuals who owned property along Second Avenue filed sued against Martin and others, seeking damages for a private nuisance among other claims.  Zerger and Mauer served as counsel for these plaintiffs.  Prior to the trial court’s resolution of the merits of the case, Greenwood – a non-party to the proceedings – moved to disqualify Zerger and Mauer from representing the property owners, arguing that the firm’s current representation constituted a conflict of interest.  In Greenwood’s view, Zerger and Mauer were advancing arguments that directly conflicted with Greenwood’s interests from the prior litigation.  The district court agreed and disqualified the law firm, which appealed to the Eighth Circuit Court of Appeals.  After settling a jurisdictional claim, the Court of Appeals examined the conflict of interest claim.

Missouri Rules of Professional Conduct for the legal profession outline the duties an attorney owes former clients:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

On the question of whether the city’s prior litigation with Martin was “substantially related” to the property owner’s suit, the court looked first to the commentary accompanying the above-cited rule of conduct. The commentary explains that matters are substantially related “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”  The court found it clear that the factual underpinnings of the two representations were nearly identical.  “Similarly, the legal issues central to both are substantially related, largely centering on the reasonableness of Martin’s conduct.  Although a private nuisance claim and a public nuisance claim may protect distinct rights, the legal theories are exceedingly intertwined.”  Given these conditions, the court found a “substantial probability – or at the very least a substantial appearance – that Greenwood disclosed confidential information related to the negotiations that the plaintiffs could use to their advantage.

Zerger and Mauer next asserted that their representation of the property owners was not “materially adverse” to Greenwood’s interests.  The firm argued that the declaration in the first settlement that the truck traffic is reasonable and not a nuisance involved a public nuisance and has no bearing on the property owners’ private nuisance claim.  The court rejected this, being “unpersuaded by Zerger and Mauer’s continued attempt to make public and private nuisances unrelated concepts….”  The court stated that the firm is advocating a position that contradicts a term in Greenwood’s settlement.  It is seeking to collect damages on behalf of the property owners “for Martin’s allegedly tortious use of Second Avenue – a path that Greenwood desires to reserve as the exclusive route for truck traffic.  Not only do [the property owners] have an interest in collecting substantial damages, they also naturally have an interest in otherwise disrupting Martin’s use of Second Avenue.”  The property owners’ overall interests are materially adverse to Greenwood’s interests, and as such Greenwood may demand that its former law firm not advocate for the property owners’ interests.  The Court of Appeals thus affirmed the district court’s disqualification of Zerger and Mauer from the second litigation.

 

Conflict of interests and/or bias, Federal courts ,