Holeton v. City of Livonia

328 Mich.App. 88

935 N.W.2d 601

John HOLETON and Pauline Holeton, Plaintiffs-Appellees,

v.CITY OF LIVONIA, Laura M. Toy, John R. Pastor, Brandon M. Kritzman, James C. McCann, Joe Laura, Thomas A. Robinson, City of Livonia City Council, City of Livonia City Council's Infrastructure Community Transit Committee, and Livonia Police Officer John Doe, Defendants,andMaureen Miller Brosnan, Defendant-Appellant.

John Holeton and Pauline Holeton, Plaintiffs-Appellees,

v.City of Livonia, Laura M. Toy, Maureen Miller Brosnan, John R. Pastor, Brandon M. Kritzman, James C. McCann, Joe Laura, Thomas A. Robinson, City of Livonia City Council, City of Livonia City Council's Infrastructure Community Transit Committee, and Livonia Police Officer John Doe, Defendants-Appellants.

No. 341624

No. 341847

Court of Appeals of Michigan.

Submitted April 9, 2019, at Detroit.

Decided May 7, 2019, 9:15 a.m.

John Holeton and Pauline Holeton in propriis personis.

Paul A. Bernier and Eric S. Goldstein for defendants.

Per Curiam.

These consolidated appeals originated in a claim that defendants violated the Open Meetings Act (OMA), MCL 15.261 et seq ., or otherwise wrongfully interfered with the rights of plaintiffs, John and Pauline Holeton, to participate in meetings held by Livonia's city council. In Docket No. 341624, defendant Maureen Miller Brosnan appeals by right the trial court's order denying her motion for summary disposition of the Holetons' claim under 42 USC 1983, premised in part on her assertion of governmental immunity. In Docket No. 341847, defendants—City of Livonia, City of Livonia City Council, City of Livonia City Council's Infrastructure Community Transit Committee (the Infrastructure Committee), Laura M. Toy, Maureen Miller Brosnan, John R. Pastor, Brandon M. Kritzman, James C. McCann, Joe Laura, Thomas A. Robinson, and an unknown police officer—appeal by leave granted the trial court's order denying in part their motion for summary disposition of the same claim. For the reasons more fully explained below, we reverse the trial court's decision to deny defendants' motions to dismiss the Holetons' claim under 42 USC 1983.

I. BASIC FACTS

The individual defendants, other than the unknown police officer, were, or are, members of Livonia City Council. The Holetons are self-styled "community activists" who want to raise public awareness about the harms they believe are associated with DTE Energy's advanced metering infrastructure—otherwise known as "smart meters"—and do so in part by attending local governmental meetings, such as those held by the City Council. The Holetons sued defendants in January 2014 for violating the OMA. The case reached this Court, then our Supreme Court, and was eventually remanded for further proceedings. See Holeton v. Livonia (On Remand), unpublished per curiam opinion of the Court of Appeals, issued August 2, 2016 (Docket No. 321501, 2016 WL 4127472).

In August 2017, the Holetons filed an amended complaint that stated additional claims, including a claim that Brosnan violated their rights guaranteed by the First and Fourteenth Amendments of the United States Constitution when she expelled Pauline from a meeting of the Infrastructure Committee held in March 2012. Brosnan ostensibly ordered Pauline to leave for violating an address-the-chair rule. Defendants each moved for summary disposition of the Holetons' claims in September 2017. Although the trial court dismissed many of the Holetons' claims, it allowed the Holetons' claims under 42 USC 1983 to proceed against Brosnan and the City Council.

These appeals followed.

II. BROSNAN'S APPEAL IN DOCKET NO. 341624

In her appeal, Brosnan argues that the trial court erred when it denied her motion to dismiss the Holetons' claims under 42 USC 1983. Specifically, she argues that the trial court should have granted her motion because the Holetons failed to identify a federal constitutional or statutory right that she violated. In the alternative, she maintains that the Holetons failed to overcome her qualified immunity.

This Court reviews de novo a trial court's decision on a motion for summary disposition. Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc. , 285 Mich. App. 362, 369, 775 N.W.2d 618 (2009). This Court also reviews de novo whether Brosnan had qualified immunity for her actions. See Morden v. Grand Traverse Co. , 275 Mich. App. 325, 340, 738 N.W.2d 278 (2007).

Congress provided a cause of action for persons who have been deprived of their rights by persons acting under color of state law:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... [ 42 USC 1983.]

In order to establish a claim under 42 USC 1983, the plaintiff must plead and be able to prove that the defendant deprived him or her of a right secured by the United States or the laws of the United States Constitution and that the defendant was acting under color of state law when he or she deprived the plaintiff of the right. See Morden , 275 Mich. App. at 332, 738 N.W.2d 278.

In this case, the Holetons alleged that their participation in the public meetings implicated their rights under the First Amendment—their right to petition the government and their right to freely speak their views. They further alleged that Brosnan intentionally or with callous disregard for their rights caused Pauline to be removed from a meeting, which violated their rights to free speech and to petition the government. They claimed that Brosnan's actions deprived Pauline of her rights under the Fourteenth Amendment as well, and they suggested that she was deprived of liberty. They indicated that there was no probable cause to remove Pauline from the meeting held on March 19, 2012.

It is apparent that the Holetons' claim under 42 USC 1983 —as alleged—arose solely from Brosnan's conduct at the meeting of the Infrastructure Committee held in March 2012. More specifically, they alleged that Brosnan's decision to order Pauline to leave the meeting amounted to a deprivation her federal constitutional rights.

In her motion for summary disposition, Brosnan properly noted that she was entitled to summary disposition on the ground that the Holetons failed to show that Brosnan unlawfully deprived Pauline of her rights under the First Amendment or the Fourteenth Amendment. She also identified grounds for concluding that she had qualified immunity and that the Holetons could not establish grounds for avoiding her qualified immunity. Because she filed a properly supported motion for summary disposition on those grounds, the Holetons had to respond and establish that there was, at the very least, a question of fact as to whether Brosnan violated an identifiable right and that the right was so clearly established that no reasonable chairperson would have acted in the way that Brosnan did. See Barnard Mfg. , 285 Mich. App. at 374-375, 775 N.W.2d 618.

In response, the Holetons argued that the address-the-chair rule was selectively applied and favored Livonia's citizens. They then argued that Pauline's expulsion violated her right to petition the committee. However, they did not discuss the relevant law, whether the evidence showed that Pauline actually violated the address-the-chair rule, the reasonableness of the rule, or the reasonableness of Brosnan's decision to ask Pauline to leave in response to Pauline's purported failure to comply with the rule and her behavior at the podium. Rather, the Holetons appeared to argue that expelling a member of the public for violating a rule was per se a violation of that person's First Amendment rights to speak and petition because expulsion can only be done under the OMA when someone disturbs the peace. They similarly argued that the requirements of the OMA were clear and, therefore, Brosnan did not have qualified immunity. They also suggested that acts by the committee members at past meetings, such as interrupting the Holetons and making dismissive remarks, showed that Brosnan and the other council members were motivated by a desire to violate Pauline's speech and petition rights.

It is well settled that the First Amendment prevents government from interfering with the speech of private individuals on the basis of the message expressed. See Turner Broadcasting Sys., Inc. v. Fed. Communications Comm. , 512 U.S. 622, 641, 114 S. Ct. 2445, 129 L.Ed. 2d 497 (1994). The amendment does not, however, prevent governments from enacting content-neutral restrictions that impose incidental limitations on speech. Id. at 662, 114 S. Ct. 2445. That is so because the First Amendment does not protect the right to publicize one's views whenever, however, and wherever one pleases. See Wood v. Moss , 572 U.S. 744, 757, 134 S. Ct. 2056, 188 L.Ed. 2d 1039 (2014). Additionally, as Brosnan correctly notes on appeal, the committee meeting at issue was a limited public forum. See Perry Ed. Ass'n. v. Perry Local Educators' Ass'n. , 460 U.S. 37, 45-47, 103 S. Ct. 948, 74 L.Ed. 2d 794 (1983) ; Reza v. Pearce , 806 F.3d 497, 502-503 (CA 9, 2015) (stating that city council meetings are dedicated solely to the discussion of certain topics and, therefore, are a limited public forum); Rowe v. City of Cocoa , 358 F.3d 800, 803 (CA 11, 2004) ("As a limited public forum, a city council meeting is not open for endless public commentary speech but instead is simply a limited platform to discuss the topic at hand."). For a limited public forum, the state may impose reasonable regulations on speech so as to reserve the forum for its intended purposes, as long as the regulation does not suppress expression on the...