Archive

Archive for the ‘Federal courts’ Category

Denial of license to mobile food vendor not a violation of Equal Protection or Dormant Commerce Clauses

March 17th, 2014

by Rachel Greifenkamp

The Dog Pound, LLC v. City of Monroe, Michigan

(Federal 6th Circuit Court of Appeals, March 10, 2014)

In Monroe, Michigan The Dog Pound, an aspiring hot dog vendor, applied for and was denied a license under Monroe’s Hawker, Peddler, and Transient Merchant ordinance. The ordinance, in 2009 when the license was applied for, regulated street-vendors’ operations and required additional permission (not just a license) if the vendor wanted to run their vending business in a specific Restricted Area (an area that covered most of downtown Monroe). It also established a 10 minute limit on any activity by a vendor at any one location within the city. The Dog Pound alleged that the ordinance was unconstitutional because it violated the Equal Protection Clause, the Due Process Clause, and the dormant Commerce clause (all appear in both the United States Constitution as well as the Constitution of Michigan). A district court granted the City of Monroe’s motion for summary judgment and dismissed the case.

The Dog Pound claimed that the ordinance violated the Equal Protection Clauses of both the United States and the Michigan Constitutions because it created an illegal classification, itinerant merchants, and treated them differently from permanent business owners. Originally, The Dog Pound sought a declaratory judgment that the ordinance was invalid or a writ of mandamus. In 2011 the City of Monroe and The Dog Pound began settlement negotiations, meanwhile, the city amended the ordinance, eliminating the restricted area. When the negotiations failed, the court took up the question of preliminary injunction, and ended up denying The Dog Pound’s motion stating that the amendment to the ordinance “essentially moots the plaintiff’s arguments.” The Dog Pound then filed two amended complaints. (1) A violation of the Due Process clauses of the United States and Michigan Constitutions, alleging that the sole purpose of the act was to protect local static businesses against competition, (2) A violation of the dormant Commerce Clause, alleging that the disparate treatment of itinerant merchants discriminates against and burdens out-of-state businesses in favor of local businesses. The federal district court granted the City’s motion for summary judgment.

The Sixth Circuit Court of Appeals heard the case on appeal and tackled each of the three claims separately. (1) Equal Protection. The Dog Pound applied for a license under the amended ordinance, in 2001, but the application was incomplete. The city pointed out the deficiencies in the application and how each could be fixed, but The Dog Pound failed to complete the application. Therefore, The Dog Pound couldn’t possibly prove that it had been treated differently from other businesses that had applied for the license. The court stated that “There is therefore no issue of material fact and the district court was correct to grant summary judgment.” (2) Dormant Commerce Clause. The Dormant Commerce Clause is designed to ensure that a state cannot place oppressive and unnecessary burdens on out-of-state businesses. Both in-state and out-of-state businesses had to apply for a license as well as were subject to the 10-minute rule. Because the ordinance did not treat out-of-state businesses any different from in-state businesses, this claim was considered irrelevant. (3) Due Process and Equal Protection, Michigan Constitution. Finally, The Dog Pound argued that the district court did not properly address its claims for relief arising under the Due Process and Equal Protection clauses of the Michigan Constitution. However, because The Dog Pound raised no argument for this on appeal, the issue was waived. The Court of Appeals for the Sixth Circuit ultimately affirmed the district court’s grant of summary judgment in favor of the City of Monroe.

Dormant Commerce Clause, Equal Protection claims, Federal courts , ,

US Supreme Court deals blow to rails-to-trails efforts

March 10th, 2014

by Gary Taylor

The US Supreme Court has issued its opinion in the rails-to-trails case discussed previously in this blog.  In an 8-1 decision, the Court sided with the landowner that claimed the railroad corridor reverted to the landowners when it was abandoned by the railroad.  This decision has the potential to block plans for the completion of several currently planned rail trails, and would also threaten existing rail trails and public highways across America that utilize federally granted rights-of-way.  According to the Rails-to-Trails Conservancy, there are hundreds of abandoned railroad corridors across the country that have been converted into publicly accessible trails. Some of the better-known rail-trails that occupy federally-granted rights-of-way include the George S. Mickelson Trail in South Dakota, the Foothills Trail and the John Wayne Pioneer trails in Washington, the Weiser River Trail in Idaho and the Rio Grande Trail in Colorado.

Marvin M. Brandt Revocable Trust v. United States
(United States Supreme Court, March 10, 2014)

(Adapted from the syllabus of the Court)

Congress passed the General Railroad Right-of-Way Act of 1875 to provide railroad companies “right[s] of way through the public lands of the United States.” One such right of way, obtained by a railroad in 1908, crosses land that the United States conveyed to the Brandt family in a 1976 land patent. That patent stated, as relevant here, that the land was granted subject to the railroad’s rights in the 1875 Act right of way, but it did not specify what would occur if the railroad later relinquished those rights. Years later, a successor railroad abandoned the right of way with federal approval. The Government then sought a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right of way, including the stretch that crossed the land conveyed in the Brandt patent. Petitioners contested the claim, asserting that the right of way was a mere easement that was extinguished when the railroad abandoned it, so that Brandt now enjoys full title to his land without the burden of the easement. The Government countered that the 1875 Act granted the railroad something more than a mere easement, and that the United States retained a reversionary interest in that land once the railroad abandoned it. The District Court granted summary judgment to the Government and quieted title in the United States to the right of way. The Tenth Circuit affirmed.

The United States Supreme Court held that the right of way was an easement that was terminated by the railroad’s abandonment, leaving Brandt’s land unburdened. According to the Court, the Government loses this case in large part because it won when it argued the opposite in Great Northern R. Co. v. United States. There, the Government contended that the 1875 Act (unlike pre-1871 statutes granting rights of way) granted nothing more than an easement, and that the railroad in that case therefore had no interest in the resources beneath the surface of its right of way. This Court adopted the Government’s position in full. It found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest, agreed with the Government that cases describing the nature of rights of way granted prior to 1871 were “not controlling” because of a major shift in congressional policy concerning land grants to railroads after that year,  and held that the 1875 Act “clearly grants only an easement.” Under well-established common law property principles, an easement disappears when abandoned by its beneficiary, leaving the owner of the underlying land to resume a full and unencumbered interest in the land.

The Government asked the Court to limit Great Northern’s characterization of 1875 Act rights of way as easements to the question of who owns the oil and minerals beneath a right of way. But nothing in the 1875 Act’s text supports that reading, and the Government’s reliance on the similarity of the language in the 1875 Act and pre-1871 statutes directly contravenes the very premise of Great Northern: that the 1875 Act granted a fundamentally different interest than did its predecessor statutes.

Finally, later enacted statutes, do not define or shed light on the nature of the interest Congress granted to railroads in their rights of way in 1875. They instead purport only to dispose of interests (if any) the United States already possesses.

Writing in a lone dissent, Justice Sotomayor argued that the majority opinion placed on the Great Northern precedent “more weight than that case will bear.” The Court has long considered railway rights apart from the usual common-law regime, she said.  “By changing course today, the Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”

Federal courts, United States Supreme Court ,

NE Federal District Court finds donation box regulation not sufficiently narrowly tailored to prevent fraud

March 6th, 2014

by Rachel Greifenkamp and Gary Taylor

Linc-Drop Inc, v. City of Lincoln

(Federal District Court for the District of Nebraska, February 18, 2014)

In Lincoln, Nebraska the company Linc-Drop (a for-profit corporation) is contracted by the Nebraska chapter of the March of Dimes (a non-profit charity) to maintain donation drop boxes for secondhand clothing that is donated to them. The March of Dimes contracts with landowners for locations to place the donation boxes. The clothing that is donated is technically owned by the March of Dimes but Linc-Drop owns the donation drop boxes. The contract between March of Dimes and Linc-Drop provides that Linc-Drop can be directed to deliver the donated clothing to a location chosen by the March of Dimes; however, this has never happened. Instead, Linc-Drop sells the donated clothing for 20¢ per pound and pays the March of Dimes 2¢ per pound (totaling about $25,000-30,000 per year).

In response to this situation, the City of Lincoln enacted an Ordinance that contained two critical provisions. First, the Ordinance provides that no person may “place or hold out to the public any donation box for people to drop off articles of unwanted household items, clothing or other items of personal property, unless at least 80% of the gross proceeds from the sale of such items shall be utilized for charitable purposes.” (Charitable purposes is not defined in the Ordinance.) Second, the Ordinance requires a permit from the city to legally place a donation box. Only organizations that are tax exempt under Section 501(c)(3) or a school may obtain a permit. The Ordinance also requires that a donation box must clearly identify the charitable organization responsible for maintaining it. Violation of the Ordinance is punishable by a fine of up to $500 or up to 6 months imprisonment, and each day is considered to be a separate offense.

Linc-Drop challenged the constitutionality of the Ordinance on First Amendment grounds, and sought a preliminary injunction preventing the City from enforcing it pending the outcome of the challenge.

According to the Federal District Court for the District of Nebraska, when evaluating the regulation of professional charitable solicitation, the Court considers whether (1) the City had a sufficient or legitimate interest in enacting the Ordinance, (2) the interest identified is significantly furthered by a narrowly-tailored regulation, and (3) the regulation substantially limits charitable solicitations. The City resisted the application of this standard of review, arguing that Linc-Drop is not engaged in charitable solicitation but is rather “using the March of Dimes name to hoodwink the city’s unwitting residents into placing items in the donation boxes instead of donating them to legitimate charitable organizations.”  The Court rejected this position, however, stating that that fact that Linc-Drop is being paid to engage in charitable solicitation does not make it less so.  The court further clarified for the city that the constitutionality of the Ordinance, and not Linc-Drop’s conduct, was the issue of the case. “Whether Linc-Drop is violating the Ordinance, or even whether Linc-Drop is defrauding people, does not change the provisions of the Ordinance or the reasons for its enactment.”

Likewise the Court rejected the city’s position that the boxes are more akin to billboards and should be considered commercial speech.  The Court stated that “the public receptacles are not mere collection points for unwanted items, but are rather silent solicitors and advocates for particular charitable causes….They represent far more than an ‘upturned palm’ or a mere ‘proposal of a commercial transaction that says donate goods here.’”  The solicitation found on the boxes “is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political or social issues.”

In defending the constitutionality of 80 percent requirement of the Ordinance, the City argued that the Ordinance serves two governmental purposes, “preventing deception and ensuring funds go to benefit charitable organizations,” and “protecting charities and the public from fraud.”  The interest in protecting charities and the public from fraud is sufficiently substantial to justify a narrowly-tailored regulation, but the Court pointed out that federal courts have repeatedly decided that using percentages to decide the legality of a fundraiser’s fee is not narrowly tailored to the government’s interest in preventing fraud.  Citing Supreme Court precedence, the Court noted “several legitimate reasons why a charity might reject the State’s overarching measure of a fundraising drive’s legitimacy…even if the government had a valid interest in protecting charities from their won naivete or economic weakness, a percentage requirement was not narrowly tailored to achieve it.”

The Court also struck down the provision barring professional fundraisers from obtaining permits.  Federal courts have prevented local governments from restraining solicitation by professional fundraisers, even if a high percentage of the funds raised would be used to cover administrative costs.  It is therefore axiomatic that the government cannot categorically restrain all solicitation by professional fundraisers, as the permit prohibition would do.  It is not narrowly tailored to the government’s interest in preventing fraud.

The Federal District Court of Nebraska determined that the Ordinance is so plainly at odds with precedent of Supreme Court rulings the the preliminary injunction desired by Linc-Drop was granted, and the City was barred from enforcing any aspect of the Ordinance until a final decision is made by the United States Magistrate Judge.

Federal courts, First Amendment claims ,

Indiana War Memorials Commission demonstration permit policy found to violate First Amendment

February 13th, 2014

by Rachel Greifenkamp

Eric Smith v. Executive Director of the Indiana War Memorials Commission

(Federal 7th Circuit Court of Appeals, February 4, 2014)

At Soldiers and Sailors Monument Circle in Indianapolis, a war veteran and his son were protesting a proposed United Nations arms treaty. The Monument Circle is an outdoor state‐run public property at the center of downtown. The protest was publicized by distributing a flier, but not a single person other than Smith and his son attended the protest. When the pair began the protest, a Commission employee asked them whether they had a permit (required for any demonstration where fourteen or more individuals are likely to be demonstrating). When they said that they did not, he suggested they move to municipal rather than state property immediately. Then two Indiana State Police officers threatened to arrest Smith if they did not leave. Smith believes that the First Amendment protects his right to demonstrate without a permit. He filed for a permanent injunction against the Commission on the grounds that its permit policy violates the Free Speech Clause of the First Amendment to the U.S. Constitution.

The government can in fact restrict the time, place, and manner of expression in a traditional public forum, which the Monument Circle obviously is. However, the restrictions only pass Constitutional muster if they are (1) content-neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels of communication. The U.S. Court of Appeals for the Seventh Circuit ruled in favor of Smith stating that the current permit policy is neither content-neutral nor narrowly tailored to serve a significant government interest.

Content neutral. A permit policy cannot invest “unbridled discretion” in the person who decides whether a permit will issue because excessive discretion can lead to discriminatory enforcement.  The fact that the Commission had never denied a permit application in the past was considered by the court to be immaterial.  The evidence indicated that Commission employees use unguided discretion to choose whether a group that did not obtain a permit in advance will be allowed to obtain one on the spot.  Such a system invites abuse.

Narrowly tailored. A regulation “‘need not be the least restrictive or least intrusive means’” of furthering the government’s interest…but at the same time the government ‘may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.’”  Whether a numerical limit on gathering without a permit is constitutional depends on the specifics of the space at issue because different spaces can accommodate groups of different sizes without interfering with orderly, fair use of the space; however, the court determined that “considering the size and layout of the space and the fact that groups of twenty-five may gather without a permit at Monument Circle to eat lunch, at least, Smith seems likely to succeed in showing that the fourteen-person limit on demonstrations without a permit is not narrowly tailored.”  The court also found fault with the provision of the permit policy that requires a permit anytime the demonstration has been advertised or the public has been invited, even if the group ultimately is made up of fewer than fifteen people.  To disallow a protest attended by fewer than fifteen people simply because the public was invited and no permit was obtained likely goes too far in restricting speech.  Similarly, the five-hour time limit on being on Commission property without a permit may be too restrictive as it applies to lone individuals or small groups.

Federal courts, First Amendment claims ,

Indianapolis ordinance requiring nightly closure of adult bookstores violates First Amendment

January 27th, 2014

by Gary Taylor

Annex Books, Inc. v. City of Indianapolis
(Federal 7th Circuit Court of Appeals, January 24, 2014)

The city of Indianapolis requires all adult bookstores to close between midnight and 10am daily, and to remain closed all day on Sundays.  In previous (2010) litigation before the 7th Circuit on the same ordinance, the Court found the city’s evidence for the need for a statute requiring closure “weak.”  The evidence the city offered addressed different types of adult materials, and pertained to cities with different types of ordinances, including ordinances that do not require closure.  When the 7th Circuit remanded the case to the district court the city offered one lone justification for the ordinance: that closure resulted in fewer armed robberies near adult bookstores.

The 7th Circuit pointed out that the statistical evidenced offered on this point was not the result of multivariate regression.  When regression analysis was utilized the data no longer supported the proposition that robberies were more likely at late-night adult bookstores versus other late-night establishments such as taverns, liquor stores, pharmacies or convenience stores (which the city did not require to be closed as part of the ordinance).  Moreover, the robberies that did take place more often happened to the bookstore itself and its patrons, rather than to other businesses or passers-by.  “The Supreme Court has not endorsed an approach under which governments can close bookstores in order to reduce crime directed at businesses that knowingly accept the risk of being robbed, or persons who voluntary frequent their premises.”  Citing the Supreme Court in Alameda Books, the court affirmed that “a city cannot regulate the secondary effects of speech by suppressing the speech itself….[The benefits of the Indianapolis ordinance] come from closure: the shuttered shops can’t be robbed at gunpoint, and they lack customers who could be mugged.  If that sort of benefit were enough to justify closure then a city could forbid adult bookstores altogether.”  The case was remanded with an order to issue an injunction preventing the enforcement of the closure ordinance.

Adult Entertainment Regulations, Federal courts, First Amendment claims , ,

6th Circuit boomerangs RLUIPA and related claims back to district court

November 4th, 2013

by Kaitlin Heinen

Tree of Life Christian Schools v. City of Upper Arlington
(Federal 6th Circuit Court of Appeals, September 6, 2013)

Tree of Life Christian Schools purchased property in Upper Arlington, intending to open a private school that would consolidate its campuses. However, the property is located in the City’s Office and Research (ORC) zoning district, in which neither churches nor schools are allowed. Tree of Life unsuccessfully applied for a conditional use permit and unsuccessfully appealed to the Board of Zoning and Planning (BZAP) and the City Council. Upper Arlington uses what is known as ‘non-cumulative’ zoning, in which only building use categories that are designated as permissive uses are allowed as of right, and all other uses are either expressly listed as “conditional uses,” requiring a special permit, or are prohibited entirely.

Tree of Life filed a complaint in district court, alleging religious-based discrimination under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Tree of Life filed four claims, which included “facial and as-applied ‘equal terms’ claims alleging that the City’s land use ordinance violates 42 U.S.C. § 2000cc(b)(1) by treating the School on less than equal terms with nonreligious assemblies or institutions, and facial and as-applied ‘substantial burden’ claims alleging that the ordinance violates 42 U.S.C. § 2000cc(a)(1) by imposing substantial burden on its religious exercise without a compelling government interest.” In addition, “Tree of Life…brought six constitutional claims alleging violations of the rights to free exercise, due process, equal protection, free speech, peaceable assembly; and a violation of the establishment Clause; as well as a claim under the Ohio Constitution.”

The district court ruled in favor of the City because the claims raised were not ripe as a result of Tree of Life not seeking a zoning amendment. Tree of Life appealed, “arguing that the claims are all ripe because the zoning ordinance was finally applied to it when BZAP and the City Council made a final determination that a private Christian School is a non-permitted use under the ordinance.” Tree of Life also argued because their equal terms claims are facial claims, they are not subject to the ripeness doctrine. The City countered that the claims are not ripe because an attempted zoning amendment is uncertain as it is a legislative process.

The court held that “[i]nsofar as Tree of Life alleges a facial claim, however, we have doubts as to its validity because the face of the statute appears to be neutral as to non-Church religious uses. We leave this issue to the district court.” The court also held that in Miles Christi Religious Order v. Township of Northville, the plaintiff’s claim challenging a zoning ordinance was not ripe “because the plaintiff did not seek a variance from the zoning board, and thus the zoning board had not reached a final decision regarding the property. However, the court declined to rule on “whether the holding in Miles Christi covers situations where the plaintiff did not seek a zoning amendment because new information has come to light.” Tree of Life filed a motion to supplement the record because “[w]hile this case was pending, Tree of Life indeed sought a zoning amendment, which the City Council voted to deny. Based on this change of circumstances, the present arguments before this panel are no longer sufficient.” The court remanded this issue to the district court.

Tree of Life also argued that the district court ruled on the merits of the RLUIPA equal terms claim.  However, the court determined “[t]his language [as] dicta, and it does not include an analysis…of any other claim on the merits.” So it is not construed as a separate holding. If the district court determines that this case is ripe on remand, the court left the district court “to rule on the merits of each claim in the first instance.” Finally, the City cross-appealed, asking for a reversal of the district court’s denial of the City’s summary judgment motion on the merits, even though it argued that the court did not have jurisdiction under the final judgment rule to consider its cross-appeal. “The [final judgment] rule is that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated.” Even so, the court dismissed the cross-appeal because it does not issue advisory opinions. The court held “[t]hese issues are best left to the district court.”

The Federal 6th Circuit Court granted Tree of Life’s motion to supplement the record, reversed and remanded this case to the district court on the issue of ripeness in light of new information, and dismissed the City’s cross-appeal.

Federal courts, First Amendment claims, RLUIPA , ,

Content-neutral zoning ordinance that resulted in total ban on adult entertainment businesses deemed valid; alternative avenues of communication existed in other jurisdictions

August 29th, 2013

by Gary Taylor

David Peterson and The Juice Bar, LLC v. City of Florence (MN)
(Federal 8th Circuit Court of Appeals, August 16, 2013)

Florence, Minnesota – a municipality in Lyon County – has a population of 39, and covers approximately 0.2 square miles.  It is home to sixteen single-family residences, a shop where Florence’s road equipment is stored, an unheated office that serves as the city office, and a park.

In 2008 the city adopted an ordinance prohibiting the operation of a sexually-oriented business within 250 feet of day cares, schools, parks, libraries, and any property zoned for residential use.  At the same time the city adopted a zoning ordinance that established three zoning districts (residential, commercial, and business) and zoned the entire city residential.  Sexually-oriented businesses were only permitted in the commercial district.

Peterson opened The Juice Bar in December 2010, which featured live, nude dancers.  The next day Peterson was charged with three misdemeanor counts for violating the sexually-oriented business ordinance, for operating The Juice Bar within 250-feed of a park.  Peterson filed suit against the city to enjoin the enforcement of the ordinance, for a declaratory ruling that the ordinance violated his First Amendment freedom of speech rights, and sought damages and attorney fees.  Shortly thereafter in 2011, the city repealed its sexually-oriented business ordinance in its entirety, and amended its zoning ordinance to eliminate the business and commercial districts, citing the city’s “limited infrastructure, staff, and resources” which could not support business or commercial uses.  The criminal case against Peterson was dismissed, but Peterson’s First Amendment suit continued; that is, until the district court dismissed the suit.  Peterson appealed the dismissal.

Peterson first argued that the 2011 zoning ordinance constitutes an invalid total ban on the operation of adult entertainment businesses in the city.  The 8th Circuit agreed that the zoning ordinance resulted in a total ban; however, this was not fatal to the ordinance because the ordinance prohibited an entire class of conduct – all commercial and business uses – not just adult entertainment establishments. “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” A content-neutral time, place, or manner regulation will be upheld if it is narrowly tailored to serve a substantial governmental interest and leaves open ample alternative channels for communicating the speech.  The Court found that the city articulated substantial governmental interests with its zoning ordinance; mainly the preservation of the quality of life of its residents, and its limited ability to accommodate commercial or business establishments.  Further, the Court found that ample alternative channels of communicating the speech existed because over 200 acres of Lyon County were zoned in a manner that would accommodate adult entertainment businesses.  “The Supreme Court has left open the question of whether, at least in the case of small municipalities, opportunities to engage in the restricted speech in neighboring communities may be relevant to determining the existence of adequate alternative channels.”  The 8th Circuit thus walked through that opening to close the door on Peterson’s claim.

 

 

 

Adult Entertainment Regulations, Federal courts, First Amendment claims , , , ,

Federal 6th Circuit dismisses defamation, other claims

May 13th, 2013

by Kaitlin Heinen

Rondigo, LLC, Dolores Michaels v. Township of Richmond, Michigan
(Federal 6th Circuit Court of Appeals, March 28, 2013)

Rondigo, LLC is a Michigan limited liability company in Macomb County owned by Dolores Michaels. Rondigo and Michaels (the plaintiffs) have operated a farm in Richmond Township since 2004. In February 2006, the plaintiffs began composting on the farm and started constructing a driveway to assist with the composting. The Supervisor of Richmond Township, Gordon Furstenau, issued a stop-work order. The Township filed suit in state court in regards to the  driveway’s construction, which they claimed violated several zoning ordinances.

The Michigan Department of Agriculture also received complaints from neighbors about the farm’s odor. So the Department inspected the farm in October 2006 and ordered the plaintiffs to submit a compost operations plan by December 2006. The Department inspected the farm again in January 2007 and found that the plaintiffs had been stockpiling leaves. The Department advised them to remove the piles because runoff from the leaves could negatively impact groundwater in the area. The plaintiffs did not remove the piles, allegedly because they could not do so without the driveway. The Department sent a letter in April 2007, saying it would refer the matter to the Michigan Department of Environmental Quality (MDEQ) if the leaves were not removed. So the plaintiffs filed an emergency motion with the state court to remove the bar on the driveway’s construction. The court granted the motion, but the plaintiffs did not remove the leaves. So the matter was referred to the MDEQ.

In January 2008, the plaintiffs filed this suit against Richmond Township, Furstenau, Four Township Citizens’ Coalition, more than 20 Macomb County residents, 2 Department employees, and 3 MDEQ employees. “The plaintiffs asserted five claims: (1) a 42 U.S.C. § 1983 claim that the defendants violated the plaintiffs’ constitutional rights; (2) a 42 U.S.C. § 1985(3) claim that the defendants conspired to deprive the plaintiffs of their constitutional rights; (3) a 42 U.S.C. § 1986 claim that the defendants knowingly failed to prevent the violation of the plaintiffs’ constitutional rights; (4) a civil-conspiracy claim under Michigan state law; and (5) a defamation claim under Michigan state law.” The plaintiffs also asserted that the Township’s zoning ordinances were unconstitutionally vague. The district court dismissed all these claims, so the plaintiffs appealed to the 6th Circuit.

First, the plaintiffs argued that the district court erred in holding that “res judicata” bars their claims against the Township and Furstenau. Under Michigan law, “res judicata” bars an action if it involves the same parties as a prior action and if the matter could have been resolved in that prior action. The plaintiffs could have asserted their claim against the Township and Furstenau in state court. The plaintiffs did not pursue many of the claims they used as defenses against the Township’s complaint. The claims previously brought before the state court and the claims presented in this case arose from the same events. So “res judicata” precludes the plaintiffs from asserting their claims against the Township and Furstenau because these claims could have raised in a prior state action.

Next, the plaintiffs argued that the district court erred in dismissing their § 1983 claims against the Four Township’s Citizens’ Coalition and the Macomb County residents. The plaintiffs cannot maintain these claims against these defendants, however, because they are not state actors. Also, the plaintiffs did not appeal the dismissal of their § 1985(3) or § 1986 claims against these defendants. Therefore they waived these claims. The plaintiffs do appeal the dismissal of their state-law claims, but they failed to develop their argument against the dismissal. So the plaintiffs waived these claims as well.

Finally, the plaintiffs argued that the district court erred in dismissing their defamation and civil-conspiracy claims against the Department and MDEQ employees. In regards to the defamation claim, “the plaintiff must allege that the defendant made a false and defamatory statement about the plaintiff. But a qualified privilege protects the defendant from the defamation claim if the defendant had an interest or duty to make the statement to someone having a corresponding interest or duty.”  The plaintiffs alleged that the defendants made defamatory statements to state employees and to the plaintiffs’ neighbors. But these statements were made while investigating complaints about the farm. The defendants had an interest in communicating with their co-workers and the plaintiffs’ neighbors to facilitate the investigation. And the employees and neighbors had a shared interest in the investigation. So the plaintiffs did not overcome the qualified privilege, which protects the defendants from the plaintiffs’ defamation claims. Additionally, a civil-conspiracy claim cannot “exist in the air.” So the plaintiffs cannot maintain civil-conspiracy claims because there were no other claims left in this case.

The 6th Circuit Court affirmed the dismissal of the plaintiffs’ claims by the district court.

Federal courts, Procedural Issues , ,

“Auto graveyard” fails to exhaust state administrative remedies

April 25th, 2013

by Kaitlin Heinen

Joseph P. Stanislaw v. Thetford Township
(Federal 6th Circuit Court of Appeals, February 20, 2013)

In July 1983, Joseph and Lorraine Stanislaw submitted a “vehicle dealer supplemental location license application” to sell used cars in Thetford Township, Michigan.  The township’s zoning ordinance required that automobile sales be conducted inside an enclosure, so the planning commission ordered the Stanislaws to construct such an enclosure in 30 days. In April 1984, a neighbor, Daniel Case, complained about the Stanislaws’ property. So Joseph Stanislaw appeared before the Planning Commission in May 1984 and August 1984 and received approval of a a plan that included an enclosing fence.  Thetford Township approved a new zoning ordinance in 1989, and the Stanislaws’ business was grandfathered in as a previously approved non-conforming use.

In September 2005, Case complained to the Township that the Stanislaws’ property was a junk yard. In 2004, Michigan passed an act that required car dealers to obtain “written verification from the appropriate governing or zoning authority that the established place of business meets all applicable municipal and zoning requirements” prior to any license renewal. So in December 2005, Lorraine Stanislaw submitted the necessary form to  renew the car dealership’s license. The Thetford Township Building Inspector, Mark Angus, inspected the property before signing. He refused to sign the Stanislaws’ forms concluding that the fence was in poor condition and that the property was “an auto graveyard.”

The Stanislaws submitted the license-renewal form to Michigan anyway. The state ordered the Stanislaws to fix their incomplete application by January 31, 2006. On January 24, 2006, the Stanislaws met with Angus, the Township Supervisor (Luther Hatchett) and the Police Chief (Thomas Kulcher). Lorraine Stanislaw testified that the Township said that they would revisit their application if the fence was restored and the cars were moved out of view. So Angus wrote a letter to the state asking for an extension to allow the Stanislaws more time to comply with the zoning ordinances. Joseph Stanislaw made the repairs to the fence. Hatchett sent Chief Kulcher to inspect the property.  Kulcher refused to sign the form because he found that vehicles were still sitting out front on the property.

In February 2006, the Planning Commission passed a motion, requiring the Stanislaws to construct a 6-foot-tall fence on the property.  The Stanislaws wanted to appeal this motion to the Zoning Board of Appeals, but Chief Kulcher supposedly told them that they could not. Kulcher denied saying this, testifying that he did not know anything about zoning appeals procedures. The Stanislaws instead filed this action in federal district court; however, the district court determined that it lacked subject-matter jurisdiction to consider the Stanislaws’ claim that the Thetford Township’s decision constituted a taking. This is because the Stanislaws did not give the state court the opportunity to adjudicate the issue of whether or not the State failed to provide just compensation.

The Stanislaws never appealed in state court Angus’ denial or the ZBA’s acceptance of Angus’ denial and order to construct a fence. The Stanislaws partly claim that they failed to the December 2005 ZBA vote because Chief Kulcher had told them that they could not. According to the federal district court, the Stanislaws provided no legal support that this would have excused them from their failure to appeal the ZBA’s decision. “Chief Kulcher is not familiar with appellate zoning procedures; however, the Stanislaws are quite familiar having dealt with the local zoning regulations on their property over the past two decades.”

The 6th Circuit Court agreed with the district court that the Stanislaws’ failed to exhaust their state administrative remedies.   “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” The Stanislaws argued that their claim was to be left alone to continue to do what they have been doing to earn a living for decades – not a taking of real estate, but rather their business interests.  The court held that the Stanislaws’ claim encompassed “some sort of ill-defined Fifth Amendment takings claim.” The Court disagreed with the assertion that the Stanislaws did not raise a takings claim; and agreed with the district court that the  claim was not ripe for federal review.

The Stanislaws’ other claims, according to the Court, were “somewhat jumbled and poorly explained” and “abstractly involved” procedural due process, substantive due process, and equal protection. They did not cite any case law that suggested a hearing would have been required for a decision to sign or not sign the license-approval form. Rather, the Stanislaws “had numerous hearings and opportunities over the course of two decades to remedy their non-conforming use of the property.” If a decision had been made without appropriate process, the correct recourse still would have been first to the state courts, not the federal courts. As for the equal protection claim,  The Stanislaws “failed to identify any similarly situated businesses who were actually treated differently,”  Thus the 6th Circuit Court affirmed the district court’s judgment.

Federal courts, Junkyards, Takings , , ,

Warren (MI) holiday display does not violate First/Fourteenth Amendments

April 15th, 2013

by Kaitlin Heinen

Freedom from Religion Foundation, Inc. v. City of Warren, Michigan
(Federal 6th Circuit Court of Appeals, February 25, 2013)

For the past several years between Thanksgiving and New Year’s, the City of Warren, Michigan has put up a holiday display in its civic center, which includes both secular and religious symbols, such as a lighted tree, reindeer, wreaths, snowmen, a mailbox for Santa, a “Winter Welcome” sign, and a nativity scene. In 2010, the Freedom from Religion Foundation and one of its members, Douglas Marshall, wrote letters asking Mayor James Fouts to remove the nativity scene, which the City refused.  So in 2011, the Foundation instead asked the City to add the Foundation’s sign with the following words: “At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, [n]o heaven or hell. There is only our natural world, [r]eligion is but [m]yth and superstition [t]hat hardens hearts [a]nd enslaves minds…State/Church KEEP THEM SEPARATE.” The City refused again via a letter from Mayor Fouts, so the Foundation filed a lawsuit based on the freedom-from-establishment and free-speech guarantees of the First and Fourteenth Amendments. The district court rejected these claims, so the Foundation appealed to the U.S. 6th Circuit Court.

In the letter, Mayor Fouts wrote:

When I allowed a display in city hall celebrating Ramadan, the Moslem holy season, I received many calls objecting but I would never have allowed a sign next to the Ramadan display mocking or ridiculing the Moslem religion. In my opinion, Freedom of Religion does not mean “Freedom Against or From Religion.” [...] Your non-religion is not a recognized religion. Please don’t hide behind the cloak of non-religion as an excuse to abuse other recognized religions. You can’t make a negative into a positive. Clearly, your proposed display in effect would create considerable ill will among many people of all recognized faiths. During this holiday season, why don’t we try to accomplish the old adage of ‘Good will toward all’?”

To address this, the court turned to the First Amendment: “Congress shall make no law respecting an establishment of religion,” which prohibits government from favoring one religion over another or from favoring religion over irreligion. Two safe harbors have been identified in the past: “(1) a government may provide benefits to faith-based entities if the benefits are available to secular and religious entities alike; and (2) a government may invoke the divine through words and symbols if they have religious and historical meanings or faith-based and solemnizing effects, and in the process offer at most incidental benefits to any one faith or to faith in general.” A similar suit to this one from Pawtucket, Rhode Island (Lynch) had been brought before the courts previously, which held that “in the context of all components of the display…the display was ‘no more an advancement or endorsement of religion’ than the recognition of Christmas as a national holiday.” Five years later, County of Allegheny upheld a holiday display in front of a city hall that included a Christmas tree, a menorah, and a “salute to liberty” sign, but invalidated a nativity scene displayed by itself in the county courthouse. So this court concluded that “if the multi-purpose, multi-symbol Pawtucket and Allegheny County displays did not offend the Establishment Clause, then neither does the Warren display.”

Even so, the Foundation claimed that Warren’s rejection of its sign betrayed the City’s lack of religious neutrality. But the court reasoned that only one of the objects in the holiday display was religious. Some of the other objects were pagan symbols (i.e. the tree); some were connected to the winter season; and some embodied the holidays’ commercialism. So none of the secular symbols had roots in one faith or in faith in general. The variety of symbols in the Warren display reflected not just the demands of the First Amendment’s “Establishment Clause but also the demands of democracy in an increasingly pluralistic country.” This is “why some cities no longer have such displays, [and] why others have made a point of featuring symbols connected to other faiths.” After all, Warren did feature a Ramadan sign one year. “The key lesson of Lynch and Allegheny County is that a city does not run afoul of the Establishment Clause by including a [nativity scene] in a holiday display that contains secular and religious symbols.”

The Foundation also argued that the Mayor’s letter showed that the City’s purpose in putting up a holiday display was to advance religion. The Foundation focused their argument on the Mayor’s objection that the sign would “counter the religious tone of the Nativity Scene.” However, “[j]ust as a court may not isolate a creche in deciding whether a holiday display amounts to an impermissible establishment of religion…it also may not isolate two sentences in a letter to show what the City meant by a particular action.” The point of the letter was to illustrate that the sign would be offensive to religious and nonreligious alike. The Religion Clauses protect both the religious and nonreligious, and the Supreme Court has long permitted exhibits like the Warren holiday display. The Foundation pointed out as well that Warren located its display in the City’s principal government building, “[b]ut that does not doom the display.” The permitted Allegheny County display appeared on public property and was more faith-centered than this one.
The Foundation separately argued that the City violated its free-speech rights by its refusal to add the sign to the display. The First Amendment prohibits governments from making any law “abridging the freedom of speech” of individuals. The court held that this “guarantee prevents governments from restricting the speech of individuals; it does not empower individuals to abridge the speech of government.” Warren’s holiday display is government speech. “The City erected, maintained, took down and stored the display each year and covered the costs in doing so. The City reserved final approval of all components of the display to itself.” The City held full authority over what to include. “And it could choose to deny a message disparaging any one religion or religion in general.” Governments must still comply with the Establishment Clause, which is why Warren could not put up a holiday display that contained only a nativity scene.

Neither does the Warren display violate the Equal Protection Clause of the Fourteenth Amendment, which prohibits States and cities from denying individuals equal protection of the law. “To the extent the Foundation means to claim that the City’s government speech commemorating the holiday disparately treats its preferred message, the answer is: welcome to the crowd. Not everyone, we suspect, is happy with the City’s holiday display from one year to the next. And the Foundation, like everyone else, is free to urge the City to add or remove symbols from the display each year or to try to elect new officials to run the City.” After rejecting the above First Amendment and Fourteenth Amendment claims raised by the Foundation, the district court’s ruling was affirmed by the U.S. 6th Circuit Court.

Federal courts, First Amendment claims, Fourteenth Amendment ,