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Posts Tagged ‘Federal 6th Circuit’

Regulation of charitable donation bins was content-based, likely to be found unconstitutional

April 16th, 2015

by Hannah Dankbar

Planet Aid v. City of St. Johns, Michigan
Federal 6th Circuit Court of Appeals, April 6, 2015

Planet Aid is a non-profit community development organization.  Among its activities, the organization gathers donations of clothing and shoes using unattended, outdoor donation bins. Planet Aid takes these donations and gives them to other organizations around the world.

To establish the donation bins Planet Aid gets consent from property owners of private businesses to put the bin on their property. Planet Aid aims to have donation bins in convenient locations and have a representative of the organization collect the donations on a weekly basis. There is contact information for the representative on the bin to be used on an as-needed basis.

In December 2012 Planet Aid placed two donation bins in the City of St. Johns, Michigan. At the time, St. Johns had no regulation of charitable donation bins. In January 2013 the City sent Planet Aid a letter that read, “clothing donation containers have been found to create a nuisance as people leave boxes and other refuse around the containers.” Planet Aid was instructed to remove the bins by January 23. If they did not remove the bins, the City would. An attorney for Planet Aid asked the City Attorney if they had to be removed by the 23rd, or if they could wait until the City Council/planning commission enacted an ordinance against the bins. Planet Aid was told to remove the bins, and was also told it did not have standing to appeal the decision because it did not own property where the bins were located. The City moved the bins and moved them to a City facility where they were later picked up by Planet Aid.

In December 2013 City Council addressed the issue of charitable donation bins. The planning commission had made a recommendation of a “total prohibition” of such bins to the Council.  At the Council meeting, the Mayor said other communities “had people dropping off their trash” at donation bins, although the Public Works Director responded that trash drop offs at the two bins had “very seldom” occurred.

Ordinance #618 was put in place.  The substantive prohibition of the ordinance read:

No person, business or other entity shall place, use or allow the installation of a donation box within the City of St. Johns….A donation box that exists on the effective date of this ordinance shall not be subject to the prohibition contained herein.

The purpose statement of the ordinance read:

It is the intent of this section to prohibit donation boxes to protect the health, safety and welfare of the citizens of the city by preventing blight, protecting property values and neighborhood integrity, avoiding the creation and maintenance of nuisances and ensuring the safe and sanitary maintenance of properties. Unattended donation boxes in the city may become an attractive nuisance for minors and/or criminal activity. It is also the intent of this section to preserve the aesthetics and character of the community by prohibiting the placement of donation boxes.

In February 2014 Planet Aid filed a complaint in district court claiming that the ordinance violated their First Amendment right of charitable solicitation and giving. They claimed that the ordinance is a content-based restriction and deserved strict scrutiny. The City claimed that the bins were advertisements, and therefore the ordinance is content-neutral. The District granted Planet Aid’s motion for a preliminary injunction pending trial, and the City appealed.

The US Supreme Court has held that speech regarding charitable giving and solicitation is a protected First Amendment activity, and has applied strict scrutiny to local ordinances that presume to regulate charitable giving activities.  The Supreme Court has not addressed unattended donation bins, but the Fifth Circuit invalidated a Texas law that required such bins to make note of whether the donated items would be sold or not (National Federation of the Blind of Texas, Inc. v. Abbott). The Fifth Circuit stated that “public receptacles are not mere collection points for unwanted items, but are rather “silent solicitors and advocates for particular charitable causes.” The Sixth Circuit agreed with the reasoning of the Fifth, and noted that just because speech related to charitable giving may take the form of a bin does not mean it deserves less than strong constitutional protection.

Still, government regulations of protected speech only receive strict scrutiny if they are content-based.  Government actions that merely regulates the time, place, and manner of protected speech are subject to an intermediate level of scrutiny.  The US Supreme Court has analyzed the content-based versus content-neutral question in a number of ways: (1) whether the “government has adopted a regulation of speech because of a disagreement with the message it contains” (Hill v. Colorado); (2) whether the regulation hinders the “communicative impact of the [the speaker’s] expressive conduct.” (Texas v. Johnson); (3) whether the legislature’s predominant intent regarded the content of speech, rather than its’ secondary effects (Renton v. Playtime Theaters, Inc.); (4) whether the regulation is “based on the content of the speech” and not “applicable to all speech irrespective of content” (Consol. Edison Co., 447 U.S. at 536.). Under the guidance of these factors the Sixth Circuit determined that Ordinance #618 was content-based because it only banned outdoor bins that share a common topic – charitable giving – and not other outdoor bins or receptacles  such as dumpsters.  The concerns about overflowing items, trash dumping, and the risk of children climbing into such receptacles apply with equal force to dumpsters, receptacles at recycling centers, and public and private trash cans.

Because the ordinance was found to be content-based, it must stand up to strict scrutiny. The Sixth Circuit determined that there was sufficient evidence on this question to justify the district court’s determination that Planet Aid was likely to succeed on the merits (thereby justifying the preliminary injunction).  For these reasons the Court affirmed the ruling from district court.

Federal courts, First Amendment claims , ,

All states in designated non-attainment area must include Reasonably Attainable Control Measures and Technologies in State Implementation Plans (acronyms omitted!)

April 8th, 2015

by Hannah Dankbar

Sierra Club v Environmental Protection Agency
Federal 6th Circuit Court of Appeals, March 18, 2015

In 2011 the EPA reported that the Cincinnati-Hamilton metropolitan area attained national air quality standards for particulate matter. A regional cap-and-trade program helped the area reach this standard. The EPA gave the area “attainment” status, even though the three States that administer its pollution controls never implemented the provisions known as “reasonably available control measures” (RACM) that apply to nonattainment areas. Sierra Club filed a complaint against the EPA for acting illegally.

The Clean Air Act (CAA) allows the EPA to add different kinds of emissions that can damage public health to the National Ambient Air Quality Standards. When an emission is added to this list each state must submit a State Implementation Plan (SIP) for achieving the standard. After receiving the plan the EPA will designate areas in each state as “attainment areas” (areas that attain the standard), “nonattainment areas” (areas that do not) or “unclassifiable areas”. If a state has “nonattainment areas” the state, or states, must revise their plan to meet additional requirements. One requirement is “RACM”, or “RACT”, which requires that the SIP “provide for the implementation of all reasonable available control measures (RACM) as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, or reasonably available control technology (RACT) and shall provide for attainment of the national primary ambient air quality standards.” Id. 7502(c)(1). There are five conditions that must be met in order for the EPA to switch a “nonattainment area” to an “attainment area.”

To address areas of concern along state lines, the EPA created a cap-and-trade system. A “cap” is set on allowable emissions; anybody who has emissions above this limit can either invest in clean technology or “trade” emission credits with another entity.

Sierra Club argued that the improvement in area quality that could be attributed to the cap-and-trade program was not “permanent and enforceable reductions in emissions” required under the CAA, and that the nonattainment State Implementation Plan (SIP) had never been implemented. The State of Ohio and the local utility company joined the EPA in disagreement. The EPA claims that Sierra Club does not have standing in this matter and they challenge the interpretation of the CAA.  After addressing the standing questions (it was determined that the Sierra Club did have standing) the court addressed the CAA interpretation argument.

Sierra Club first questioned EPA’s interpretation of a provision of the CAA that bars redesignation to attainment unless “the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions[.]” Sierra Club claimed that the cap-and-trade system is not “permanent and enforceable” because a company could simply buy more credits from polluters outside the nonattainment area and increase their emissions. Sierra Club wanted “permanent and enforceable reductions in the nonattainment area”. The EPA acknowledged that the statute does not clarify from which area the reduction comes from. The court decided that the statute is “sufficiently ambiguous” to clear the first part of the test.

In the question of whether the EPA’s interpretation is a permissible construction of the statute, they found that this rested on the acknowledgement of regional problems. The EPA acknowledged that the pollution is a regional problem. The court did not see the word ‘permanent’ as being sufficient enough to close cap-and-trade programs. Neither Congress nor Sierra Club offered a definition of enforceable. From the statute it does not appear that Congress intended cap-and-trade programs to be excluded. This is enough to conclude that their focus is “sufficiently rational” and within the statutory limits and blocks the warrant for deference to their technical expertise.

Sierra Club challenged EPA’s approval of the state’s SIPs without RACM/RACT. Indiana and Ohio did not have these provisions in their plans. A state seeking redesignation “shall provide for the implementation” of RACM/RACT, even if those measures are not strictly necessary to demonstrate attainment. If the State has not done so, EPA cannot “fully approve” the area’s SIP, and redesignation to attainment status is improper.

Because the Ohio and Indiana SIPs for their respective portions of the Cincinnati-Hamilton area did not provide for RACM/RACT, the EPA acted in violation of the CAA when it approved those redesignation requests. The court ordered the EPA to reject the redesignation of Ohio and Indiana’s portions of the Cincinnati-Hamilton area, and leave the Kentucky area as was originally defined.

Clean Air Act, Federal courts, Uncategorized ,

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 , , ,

Spacing restrictions on digital billboards do not violate First Amendment

March 24th, 2014

by Rachel Greifenkamp

Hucul Advertising, LLC v. Charter Township of Gaines

(Federal 6th Circuit Court of Appeals, February 5, 2014)

Hucul Advertising, LLC applied for permission to construct a billboard in the Charter Township of Gaines, MI. The application was denied by the Township on the ground that the billboard would violate Chapter 17 of the Gaines Township Zoning Ordinance. At the time, the ordinance permitted billboards only on property that was adjacent to the M-6 highway, and Hucul’s property did not satisfy the adjacency requirement. Hucul Advertising then applied to build a digital billboard on the same property. That application was also denied, both because of the adjacency requirement, and because the proposed digital billboard would be located within 4,000 feet of another digital billboard, which would also be a violation of the ordinance. Hucul then applied to the Zoning Board of Appeals (“ZBA”) for relief seeking approval to install the digital billboard, which the ZBA denied. The Township later amended the ordinance to require that any proposed billboard be built within 100 feet of the M-6 and to clarify that, in order for a parcel to be “adjacent” to the M-6, it must “abut and have frontage on the M-6.”

Hucul challenged the ZBA decision claiming that the ordinance violated the First Amendment, claiming that the requirement of 4,000 feet between billboards is an impermissible restriction on commercial speech in violation of the First Amendment, that the Township treated land adjacent to public property differently from land adjacent to private property in violation of Equal Protection, and that Hucul’s civil rights by enforcing the ordinance. The Township removed the case from state court to federal district court. The district court held that the 4,000-foot spacing requirement constituted a valid “time place, and manner” restriction on speech and did not violate the First Amendment, and also dismissed the other claims.

The Sixth Circuit Court of Appeals agreed that the “time, place, and manner” test was appropriate in this situation.  Hucul argued that the Central Hudson test for the regulation of commercial speech was the appropriate test; however, the Court recognized that the Township’s regulation did not distinguish between commercial and non-commercial billboards.  in applying the “time, place and manner” test the Court affirmed that aesthetics and traffic safety are significant interests that warrant government regulation.  The Court refused to invalidate the 4,000 foot spacing requirement, stating that just because state law would permit a lesser spacing requirement, evidence presented in district court supported a greater spacing for digital billboards because their increased visibility and changing copy make them greater distractions to motorists.  Finally, the regulation leaves open ample alternative avenues of expression because the regulations do not prohibit handing out leaflets or public speech in this or other locations.  The Court of Appeals affirmed the district court decision in favor of the Township.

Federal courts, First Amendment claims, Signs and billboards , ,

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 , ,

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 , ,

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 ,

Regulation of inflatable devices at car dealership withstands First Amendment scrutiny

December 3rd, 2012

by Kaitlin Heinen

PHN Motors, LLC v. Medina Township
(Federal 6th Circuit Court of Appeals, September 4, 2012)

PHN Motors  et al. in northeastern Ohio filed a complaint that Medina Township violated their First Amendment right to free expression, their Fifth Amendment rights under the Due Process clause, and their Fourteenth Amendment rights under the Equal Protection Clause. The complaint arose from the interpretation and enforcement of Medina Township Zoning Resolution (MTZR) § 603E, which prohibited PHN Motors from displaying inflatable devices at their car dealership in a commercial district of Medina Township.

PHN Motors displayed 27 inflatables owned and rented by Scherba Industries, Inc. and has been cited several times by the Medina Township Zoning Inspector in violation of MTZR § 603E as a result. PHN Motors claimed that MTZR § 603E is unconstitutionally vague and infringes upon their First Amendment free speech rights. They also alleged that the regulation was “unevenly” enforced because it was only sometimes enforced against PHN Motors and because it was enforced unequally between commercial and residential districts.

The district court ruled in favor of Medina Township on all claims, so PHN Motors appealed  to the U.S. 6th Circuit Court. They challenged the district court’s dismissal of its First Amendment claims, its finding that MTZR § 603E is not unconstitutionally vague thus not violating any due process rights, and its conclusion that Medina Township’s enforcement of MTZR § 603E does not violate any equal protection rights.

In regards to their First Amendment claim, PHN Motors argued that MTZR § 603E consists of a content-based regulation of both commercial and non-commercial speech, which violates the protections for free speech under the First Amendment. To the contrary, Medina Township argues that the regulation is content-neutral, and that PHN Motors’ speech is only commercial in nature. The U.S. 6th Circuit Court found the MTZR § 603E is a content-neutral restriction upon speech. More specifically, MTZR § 603E prohibits certain elements the may be added to signs in Medina Township, such as “elements which revolve, rotate, whirl, spin, or otherwise make use of motion to attract attention” as well as signs that “contain or consist of flags, banners, posters, pennants, ribbons, streamers, spinners, balloons, and/or  any inflatable devices, search light, or other similar moving devices.” Medina Township’s purpose behind the regulation is for an improvement in the aesthetics of the township’s commercial areas and to minimize motorist distractions that can potentially be a safety hazard for passing traffic. The 6th circuit court found that the regulation does not, on its face, regulate speech based upon its content. Additionally, the free speech in question is commercial in nature, which is expressly for the furtherance of economic interests. Even though PHN Motors counter-argues that many of the inflatables displayed depict holiday characters, the court found that they are used nonetheless as a brand-recognition tool, with the intent of attracting business. Commercial speech is provided a lesser protection by the Constitution, for which intermediate scrutiny is the appropriate standard of review to be applied. Intermediate scrutiny requires that the government restriction on speech be narrowly tailored to further a substantial governmental interest. Aesthetics and safety both can be considered substantial governmental interests. In regards to aesthetics, Medina Township has expressed a substantial need to clean up the appearance of its commercial areas. As for safety, minimizing distractions for passing motorists is also substantial. The objectives of MTZR § 603E are “reasonable” and “not more extensive than necessary.” So the regulation is a reasonable means to achieve the ends of improved aesthetics and increases motorist safety. A ban on inflatables is not more extensive than necessary to advance these interests then. In conclusion, no First Amendment violations occurred.

Addressing whether MTZR § 603E is unconstitutionally vague, the 6th circuit court  began with the presumption that local zoning ordinances are valid and applied the standard of whether or not a person of ordinary intelligence would be able to determine what conduct is regulated or prohibited. PHN Motors argues that MTZR § 603E implies that movement is necessary to prohibit the use of inflatables, and that the enforcement of this regulation is inconsistent because it is left solely to the Zoning Inspector, who is unsupervised and enforcement is left to her discretion. The 6th circuit court ruled that the regulation was not vague, confusing, ambiguous, or inconsistent. Rather, the legislative intent behind the regulation was clear in regards to its ban on inflatables, the enforcement of the regulation does not violate PHN Motors’ due process rights, and a person of ordinary intelligence would know that inflatables are prohibited by the plain language used in the regulation. Considering the multiple references to a ban on devices that employ movement and “as inflatables of the type displayed by BDK are soft and often move in even the slightest breeze,” it can reasonably be concluded that all inflatables are banned. As for the Zoning Inspector, she and Medina Township have consistently upheld that inflatables are banned and her enforcement of this is overseen by the Board of Zoning Appeals. All in all, the court concluded that MTZR § 603E is not unconsitutionally vague.

Lastly, the court addressed PHN Motors’ Equal Protection claim in regards to the enforcement of the ban in commercial areas, but not residential. The court found that PHN Motors did not provide adequate evidence that property residing in residential districts is similarly situated to property residing in commercial districts. Medina Township, however, showed that property zoned for residential use is different than property zoned for commercial use in that residential districts draw significantly less traffic compared to commercial districts and that commercial districts are visitors’ first impression of the town. As a result, Medina Township has a greater interest in regulating the aesthetics and safety of these areas. PHN Motors also failed to show that the differential treatment lacks a rational connection to a legitimate government interest. The Zoning Inspector even testified that she does not enforce the inflatable ban in residential areas because MTZR § 603E does prohibit them there, since they are not for purposes of advertisement on residential property. The court concluded that no Equal Protection violations happened.

The ruling of the district court was affirmed.

Federal courts, First Amendment claims, Signs and billboards , , ,