City demonstrates negative secondary effects of adult entertainment establishment sufficient to overcome preliminary injunction

by Hannah Dankbar

BBL, Inc. and Butler v. City of Angola
Federal 7th Circuit Court of Appeals, December 7, 2015

Alva and Sandra Butler own BBL, Inc. which bought a restaurant in Angola, Indiana with plans to convert it to an adult-entertainment venue. Immediately after the purchase the City of Angola amended its zoning ordinance to prohibit this use of the property. BBL, Inc. sued the City claiming a First Amendment violation and requesting a preliminary injunction be issued to prevent enforcement of the ordinance.

As part of the new ordinance Angola requires sexually oriented businesses to locate “at least 750 feet from every residence.” There is no debate that BBL does not meet this requirement.

In regards to the First Amendment claims BBL claimed; (1) the new licensing and zoning amendments violated its right to expressive conduct; and (2) the permit requirement was an impermissible prior restraint on speech.

Angola requested judgment on the applicable legal test (from City of Renton v. Playtime Theatres, Inc.) in two separate motions. The steps in this analysis require Angola to show: (1) the challenged  requirements are aimed at reducing the negative secondary effects of adult-entertainment establishments; (2) the requirements are narrowly tailored to serve to that purpose: and (3) the zoning scheme leaves open reasonable alternative sites for this form of expression.

At the preliminary injunction stage BBL reserved the right to later challenge the factual basis on which Angola adopted its ordinance (whether the city’s evidence of negative secondary effects was sufficient) but presented no such evidence at that time. Tactically this was a mistake because, the city provided an extensive (but boilerplate) catalog of secondary effects research.  By not challenging the city’s evidence at that time BBL “radically reduced its chances of obtaining a preliminary injunction.”  In fact BBL’s preliminary injunction was not granted by the trial court, and the 7th Circuit concurred.

Weeds are not protected speech or expression

by Hannah Dankbar

Discount Inn, Inc. v. City of Chicago
Federal 7th Circuit Court of Appeals, September 28, 2015

(Note that the Court included photos of native Illinois plants in its written opinion; a very unusual practice)

Chicago’s Department of Administrative Hearings decided that Discount Inn, Inc. violated the weed and fence ordinances.  The weed ordinance reads:

Any person who owns or controls property within the city must cut or other‐ wise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200. Each day that such violation continues shall be considered a separate offense to which a separate fine shall apply.

The fence ordinance reads:

It shall be the duty of the owner of any open lot located within the City of Chicago to cause the lot to be surrounded with a noncombustible screen fence …. Provided, however, that this section shall not apply to … sideyards. The owner shall maintain any such fence in a safe condition without tears, breaks, rust, splinters or dangerous protuberances and in a manner that does not endanger or threaten to endanger vehicular traffic by obstructing the view of drivers. Any fence which is not maintained in accordance with these provisions is hereby declared to be a public nuisance and shall be removed … . It shall be the duty of the owner of any lot whose fence has been so removed to replace such fence with a noncombustible screen fence meeting the requirements of this section and of this Code.” Municipal Code of Chicago § 7‐28‐750(a). Violators “shall be fined not less than $300 nor more than $600 for each offense,” and “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.

Discount Inn made two claims: (1) the ordinances violate the prohibition against “excessive fines” in the Eight Amendment; and (2) the weed ordinance is vague and forbids expressive activity protected by the First Amendment.

In regards to the first claim, the Supreme Court has not decided whether this clause applies to state action. This court assumes that it does apply, but found that the fines are not excessive. The fines for both ordinances enforce a legitimate government interest. Fencing vacant lots are important for identifying abandoned lots. The City has an interest in controlling weeds because uncontrolled weeds lead to problems such as obscuring debris, providing habitat to rodents and mosquitos, and contributing to breathing problems.

Regarding the second claim, Discount Inn argued that native plants are mistaken for weeds and their use is unnecessarily limited because of the ordinance. There is no clear definition of a weed in the city code. Discount Inn does not argue that they have native or other decorative plants, but simply rather that the ten-inch rule violates the free-speech clause of the First Amendment. It is true that the First Amendment protects some non-spoken work, such as paintings; however, the Court concluded that these weeds have no expressive value. The owner did nothing to cultivate or design the weeds.

Discount Inn also argues that the ordinances are unconstitutional because they do not specify a statute of limitations. There is no rule that there must be a statute of limitations. Prescribing a statute of limitations for a weed ordinance would require an insane use of city resources.

The decision was upheld.

Federal district court should not decide state law claims associated with nude dancing establishment suit

by Andrea Vaage

Green Valley Investments v Winnebago County
Federal 7th Circuit Court of Appeals, July 27, 2015

Stars Cabaret, a nude dancing establishment owned by Green Valley Investments, opened in Winnebago County, Wisconsin in 2006. At that time, Winnebago County regulated adult entertainment establishments under Ordinance 17.13, which required the establishment of an “adult entertainment overlay [AEO] district.” The AEO district was to be located within an at-the-time undefined “B-3 Highway Business District.” A conditional-use permit issued by the county to the operator of the business was also needed, which, among other things, required that no alcoholic beverages be sold in the AEO district.

The cabaret offered nude dancing and also served alcoholic beverages. The cabaret never sought a permit to operate the business under Ordinance 17.13; instead, Green Valley sued for declaratory and injunctive relief, arguing the ordinance was an unconstitutional First Amendment restriction on expression. The case was dismissed without prejudice when the County amended the ordinance during the suit. Another series of suits and subsequent modifications to the ordinance ensued. Finally, in 2012, Green Valley requested that Stars Cabaret be allowed to operate as a nonconforming use. The County did not agree to this request, leading to this suit.

Green Valley asserted that since the initial ordinance was unconstitutional, and Stars Cabaret was established and in operation before the invalid ordinance was amended, it was legal from the outset, “reasoning that anything is legal that is not forbidden.”  As a part of this position Green Valley filed a supplemental claim under state law seeking a declaration that the use was lawful in 2006 and should now be considered a nonconforming use. The district court found that parts of the 2006 ordinance were unconstitutional, but these could be severed from the rest of the ordinance, leaving the setback and alcohol provisions intact. The federal district court found that Stars Cabaret would not have been legal if these provisions were kept in place. Green Valley appealed.

Thus the 7th Circuit Court of Appeals was faced with two questions: the federal question of the constitutionality of the original ordinance, and the state law questions of nonconforming uses and severability. On the first issue, the Court found the 2006 ordinance was an impermissible prior restraint on speech because it left it up to the discretion of a local body, using ambiguous standards, to allow or deny the the speech.

The state law questions were more complex.  The district court had to determine if the remainder of the ordinance could be modified under the power of severance or if this remainder could function as a standalone law if additions or modifications were necessary to make it a valid freestanding zoning provision. These questions are considered by a federal court under supplemental jurisdiction since such claims are a matter of state law. The Court found no precedent set by Wisconsin which would answer either question. Although the district court had the ability to exercise supplemental jurisdiction, it need not have done so. In this case, the state law claims “substantially predominate over the claim or claims over which the [federal] district court has original jurisdiction.” The federal district court was not properly equipped to answer the state law questions brought up in this case, and should not have exercised supplement jurisdiction.

The Court found that, once the district court determined part of the 2006 ordinance was unconstitutional, they should have relinquished jurisdiction over the supplemental state claims and dismissed them without prejudice. The federal district court’s decision was reversed and remanded.

7th Circuit interprets Reed v. Gilbert to strike down local panhandling ordinance

by Gary Taylor

Don Norton, et al v. City of Springfield
Federal 7th Circuit Court of Appeals, August 7, 2015

Springfield, Illinois adopted an ordinance that prohibits panhandling in its downtown historic district, which encompasses less that two percent of the City’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state government buildings.  The ordinance defines panhandling as an oral request for an immediate donation of money.  Signs requesting money are allowed, as are oral pleas to send money later. The City views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some people may find threatening.

The Plaintiffs contended that barring oral requests for money now but not regulating requests for money later is a form of content discrimination.  The 7th Circuit initially sided with the City in 2014.  It observed that “the [Supreme] Court has classified two kinds of regulations as content-based: One is regulation that restricts speech because of the ideas it conveys, the other is regulation that restricts speech because the government disapproves of its message.”  The 7th Circuit concluded that the ordinance did not meet either test for content-based speech.  It observed that the ordinance did not interfere with the marketplace for ideas, that it did not practice viewpoint discrimination, and that the distinctions that plaintiffs called “content discrimination” appeared to be an effort to make the ordinance less restrictive.

Plaintiffs requested reconsideration. The 7th Circuit agreed to reconsider, and deferred its decision until the Supreme Court’s decision in Reed v. Gilbert.  In light of the Supreme Court’s interpretation of content-based regulation, the 7th Circuit reversed its previous decision.  “The majority opinion [in Reed] effectively abolishes any distinction between content regulation and subject-matter regulation.  Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification….[T]he parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination.  Reed requires a positive answer.”

Justice Manion authored a concurring opinion to underscore the significance of Reed, and its interplay with the Supreme Court’s opinion in Ward v. Rock Against Racism.  “Under [interpretations of Ward], if an ordinance was not viewpoint-based, then it was content-neutral.  For example, a local government’s decision to eliminate religious speech or abortion-related speech was considered content-neutral because it was not viewpoint-based – as, for instance a regulation prohibiting ‘Christian speech’ or ‘pro-life speech’ was and remains….Reed saw what Ward missed – that topical censorship is still censorship….Few regulations will survive this rigorous standard”

Illinois village must produce some evidence of negative secondary effects to adopt adult entertainment regulation

by Gary Taylor

Foxxxy Ladyz Adult World, Inc., v. Village of Dix
(Federal 7th Circuit Court of Appeals, March 10, 2015)

[I love the spelling of these places.  Apparently Xs and Zs are sexy!]

The Village of Dix is a “dry” municipality (it prohibits the sale of alcohol in village limits) of approximately 500 residents, located in Jefferson County, Illinois. In October 2010, Dirt Cheap, Inc. purchased commercial real estate in Dix and opened a nightclub offering erotic entertainment. Two years later, Foxxxy Ladyz Adult World, Inc. began to rent the property from Dirt Cheap. Now operated by Foxxxy Ladyz, the nightclub features nude dancing and is open to all members of the public age twenty-one and over. Although Foxxxy Ladyz does not sell alcohol, it allows its customers to bring their own alcoholic beverages (“BYOB”) onto the premises. Foxxxy Ladyz is one of the few commercial establishments in Dix, and is located across the interstate from the Village’s other businesses, residences, and grade school.
In December 2010, shortly after Dirt Cheap opened, Dix passed three ordinances: (1) an ordinance prohibiting open containers of alcohol in public, (2) a public nudity ban, an (3) a prohibition against the possession of alcohol in places of public accommodation, such as restaurants and retail establishments.  In adopting these ordinances, Dix conducted no studies of the possible negative secondary effects of erotic nightclubs or other adult entertainment establishments, nor did it reference studies done in other locales.  In 2013, the Village sent Foxxxy Ladyz a notice that it was in violation of all three ordinances.  Foxxxy Ladyz responded by filing suit.  Foxxxy Ladyz concededly operates in violation of all three ordinances; however, Foxxxy Ladyz argued that (1) the public nudity ban violates the Free Speech provisions of the First Amendment, and (2) Dix did not have the authority under Illinois law to pass the alcohol-related restrictions.  The district court sided with the Village, and Foxxxy Ladyz appealed.
Free Speech claim.  Foxxxy Ladyz contended that the Village must point to actual evidence of potential negative secondary effects – whether it be developed by the Village itself or cited from studies of other jurisdictions – for the necessary justification for the public nudity ban. Dix argued that because the language in its public nudity ordinance was intentionally modeled after bans in other jurisdictions  “that have been approved by the courts as being consistent with the Illinois and United States Constitutions” that the findings from those bans provide all the justification needed for its own ban.  The 7th Circuit found guidance in the following statement from the US Supreme Court in City of Los Angeles v. Alameda Books:

In Renton, we…held that a municipality may rely on any evidence that is “reasonably believed to be relevant” for demonstrating a connection between speech and a substantial, independent government interest. This is not to say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.

The 7th Circuit “has been consistent in requiring that a regulating body produce some specific, tangible evidence establishing a ling between the regulated activity and harmful secondary effects” (Citing Annex Books v. City of Indianapolis).  Based on the fact that Dix “has not offered an iota of evidence” on secondary effects, the 7th Circuit reversed he district court and remanded the case to district court.  The 7th Circuit noted that Dix may still have an opportunity to “demonstrate a reasonable belief in a causal relationship between public nudity and secondary effects” in litigation at the district court.

Alcohol restrictions.  The 7th Circuit interpreted Illinois law to confer on municipalities broad discretion to regulate alcohol consumption in order to promote public health and safety, including via the imposition of a prohibition on open containers of alcohol in public. The court also affirmed that the First Amendment “does not entitle a bar, its dancers or its patrons, to have alcohol available during a presentation of nude or semi-nude dancing.” Furthermore, the ordinances apply broadly to all public accommodations and do not, on their face, target establishments where protected expressive conduct is likely to occur. Under a rational basis test the Dix alcohol ordinances passed muster.

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

by Rachel Greifenkamp and Gary Taylor

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

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

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

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

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

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

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

 

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

by Rachel Greifenkamp

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

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

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

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

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

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

 

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

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.

Indianapolis ordinance requiring nightly closure of adult bookstores violates First Amendment

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.

African American residents of subdivision fail to prove they are similarly situated to unprotected class

by Victoria Heldt

Bishop Harvey, Jr., et al., v. Town of Merrillville
(Federal 7th Circuit Court of Appeals, July 11, 2011)

The residents of Innsbrook, a subdivision in Merrillville, Indiana had several complaints regarding a retention pond near their property as a source of mosquitoes, algae, and flooding.  They feared that a proposed expansion of the subdivision would only enhance the problem, so they attempted to voice their opinions to the Merrillville town council.  The homeowners, who were predominantly African-American, felt they were ignored by the council and claimed to have been victim to racial epithets from a council member (who was also African-American.)

They brought forth a claim under the Fourteenth Amendment, claiming that the council violated their equal protection rights when it was more responsive to another group of people filing similar complaints.  They listed the Town of Merrillville, 16 Merrillville employees (Town Defendants), and the Town’s engineer (Warmelink) in their filing.  They also made a total of 31 state claims against the defendants.  Three years later, the residents moved for summary judgment on twelve issues, one of them being the Fourteenth Amendment claim.  The Town responded with a similar request for summary judgment.  Warmelink made a separate request for summary judgment.  The district court eventually ruled in favor of the Town, finding that the residents “failed to identify a similarly situated class that the Town and Town Defendants treated more favorably.”  The court then remanded the case to the state court to rule on the remaining state claims.  Soon after, Warmelink sought a clarification in the ruling, since he was not listed within the opinion.  The court released an order (December 3 order) that granted summary judgment to Warmelink on the same grounds as the ruling for the Town.

The residents appealed, but failed to mention the December 3 order in their claim.  Subsequently, Warmelink contended that the Court did not have jurisdiction over him because the residents failed to “designate the judgment, order, or part thereof being appealed.”  The Court disagreed.  It noted that incomplete attempts to follow the rule will not be contested as long as the appellee is not harmed.  Since Warmelink gave no evidence that he was harmed or misled by the residents’ appeal (in which is he was specifically named), the Court denied Warmelink’s argument.

The residents’ primary substantive argument rested on the belief that they raised a “genuine issue of material fact” that they were treated differently than a group of Caucasian homeowners making similar complaints regarding a subdivision.  The Court noted that, in order to prevail with an equal protection claim, the party must show that:  1) they are a member of a protected class; 2) they were similarly situated to members of an unprotected class in all relevant respects; and 3) they were treated differently from members of the unprotected class.  The Court admitted that the residents were members of a protected class (all were non-white individuals.)  Yet, the residents failed to establish that they were similarly situated to the members of an unprotected class.

The Insbrook residents attempted to liken themselves to residents of Southmoor (another subdivision) where construction was proposed and opposed.  The Court first noted that the Insbrook residents failed to provide any concrete evidence that the Southmoor residents were white, they only made conclusory allegations.  In addition, the Insbrook expansion was to consist of only single-family homes and was to be zoned R-2, which was the current zoning classification of the development.  On the other hand, the Southmoor residents were opposing a plan that was to consist of duplexes zoned R2 and R3.  The developments being contested were not of the same type.  Additionally, the Merrillville town council granted the Insbrook residents a private meeting at which to object the expansion while it did not do the same for the Southmoor residents.  So it would appear that the Insbrook residents were treated more favorably than the group to which they were comparing themselves.  As a last note, the Court mentioned that the Southmoor subdivision does not even contain a retention pond, which was the catalyst of this case.  The Court found that the residents’ case did not stand since they failed to prove that they were similarly situated to an unprotected class.

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