Be careful what you include in your county resolution

This is a land use case in only the loosest sense (it involves property), but it is always interesting to highlight the many ways local government officials can stumble into trouble.  It’s not just small counties, either.  Hennepin County is home to Minneapolis and its western suburbs.

Kevin Holler, et al., v. Hennepin County
(Minnesota Court of Appeals, February 3, 2014)

The facts alleged in the complaint (trial has not yet been held): Hennepin County adopted a plan in 2008 to build a new library.  The plan did not specify a location; rather the county sent letters to various land owners indicating that it might want ot purchase their property.  Kevin and Valerie Holler received one of those letters.  They had listed their property for sale in early 2007, but by August 2007 they had taken it off the market.  They did not respond to the county’s letter; nevertheless, the county began purchasing lots adjacent to the Hollers’ property.  In December 2008 the county went so far as to adopt a resolution declaring its intent to purchase their property.  When the Hollers learned this they contacted the county and asked to be removed from the resolution because they were not interested in selling.

The complaint alleges that two Hennepin County commissioners defamed them in three statements. First, in a newspaper article one commissioner was quoted as saying

Valerie Holler had a sign on her house, a ‘for sale’ sign, as big as the IDS building in 2007….[S]o all of a sudden we want to buy the house and she takes the property off the market.

Second in a later newspaper article another commissioner was quoted as saying

[W]ith the Holler rental property posted for sale in 2007, the County purchased the other sites necessary for an ideal, state-of-the-art library to be built on the Parkway. Only after those purchases did the Hollers actively oppose the sale of their rental property and commercial building. Pursuant to that property’s availability, the County purchased the four nearby properties and met several times with the Hollers, attempting to purchase their rental property. Our staff reported to us that they would only sell for one million or more, then insisted that the property was no longer for sale. But we will not agree to build in a sub-par location due to a single property owner—not after successfully acquiring four nearby parcels, and especially not after the remaining property was once listed for sale. We will not pay one million dollars for the rental property that’s needed. We will wait and hope that its owners, who once had the property for sale, will accept fair-market value and allow the community to move forward on this important project. Despite their manipulation of this process, the Hollers are long-time residents in our community and I hope they will one day be partners with us on building a new library.
Third, the county commission adopted a resolution that scrapped the construction of the new library altogether, and included the statement
WHEREAS, the portion of the proposed library site…[the Hollers’ property] was listed for sale in 2007; and
WHEREAS, when County staff sought to negotiate a sale of the [property] the owners stated that the property was no longer for sale and they were not interested in selling.
The district court dismissed the suit on summary judgment, concluding that the complaint failed to identify an particularized false and reputation-damaging statements.  The Hollers appealed.
Unless a statement is capable of being proven false, it cannot support a defamation suit.  This includes opinions, which sometimes imply provably false statements.  Moreover, a statement is defamatory if it harms a person’s reputation and lowers him or her in the estimation of the community. Using these standards, the Minnesota Court of Appeals determined that the Hollers sufficiently pleaded the elements of defamation to survive summary judgment.  In the context of the overall dispute and the commissioners’ statements, a juror could interpret the statements to mean that the Hollers took the property off the market only after the county made its other purchases, and only after county personnel met with the Hollers to buy their still-available property.  This interpretation would be contrary to the facts as stated in the Hollers’ complaint.  As to the question of defamatory statements, the Court determined that “ordinary members of the community could conclude, as it at least appears the [commissioners] wanted them to conclude, that the Hollers are not now partners with the community, but rather are opportunistic manipulators who acted to take unfair advantage of ‘us’ – the real community members. This seems to be precisely the sort of statement that could potentially harm the Holler’s reputations or subject them to ridicule or hate or diminished community esteem.”  The case must go forward to trial.

Federal 6th Circuit dismisses defamation, other claims

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.

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