Case Results for Appellate Advocacy

717 Fed. Appx. 555 (6th Cir 2017): Sheriff’s deputies used a confidential informant to conduct drug buys and identify the participants, one of whom was bound over for trial at a preliminary exam. The charges were subsequently dismissed based on contradictory testimony from another participant and the fact that the plaintiff passed a polygraph test. He then sued Huron County and several deputies, claiming that his Fourth Amendment rights were violated in the drug buys. The trial court granted summary judgement to dismiss the case against the county and deputies, because the bind-over conclusively established that there was probable cause to arrest plaintiff on the charges. The Sixth Circuit Court of Appeals upheld the lower court’s dismissal of all claims against Defendants.

655 Fed Appx 383 (6th Cir. 2016): In general, police cannot allow civilians to participate in the execution of a warrant but, in this case, the Sixth Circuit agreed that law enforcement officers acted properly when they let a health insurer’s employees accompany them in raids of the home and office of a physician who was suspected of defrauding the insurer. The civilians were present only to help execute the search warrant and not to access the premises.

791 F3d 638 (6th Cir. 2015): We have successfully handled many cases in which an arrestee claims excessive force by police. In this case, police used one Taser shot and a knee strike to subdue a defendant who tried to prevent the officer from handcuffing him, swung his arms in the officer’s direction, balled up and refused to comply with verbal commands. The United States Court of Appeals reversed a denial of qualified immunity and summary judgment against the officer.

2016 WL 1533562 (Mich App 2016 unpublished). Plaintiff operated a bar, restaurant, banquet center, and nightclub out of a structure that it had illegally expanded over a period of 20 years. Fire and construction code inspections led to an occupancy reduction from 2000 to 175 and multiple violation notices by the township and a lawsuit by the owner. The township won in circuit court, but the court denied the township’s request for sanctions based on a frivolous filing. Both sides appealed and the court confirmed the finding of a dangerous building. RSJA also appealed the denial of its request for sanctions and was eventually awarded $103,000 for the township in sanctions in addition to almost $30,000 in costs.

452 Mich 568 (1996). Plaintiff owned vacant property in the city of Novi that was zoned for large-lot, single-family residential use. The planning commission recommended against their request to rezone the property to a mobile home district. The plaintiff did not seek a use variance from the ZBA, but immediately sued the city claiming that the denial was an unconstitutional taking of property. The case was appealed to the Michigan Supreme Court which ruled that plaintiff’s claims were not ripe because plaintiff had not obtained a final decision from the city on the use of the land due to the failure to seek a use variance before filing suit. The case was significant as, for the first time, the Michigan Supreme Court adopted the ripeness doctrine established by the federal courts. RSJA filed an amicus curiae brief on behalf of the Michigan Municipal League in this case.

486 Mich 514; 786 NW2d 543 (2010). The plaintiff sought to rezone property to mine sand and gravel. The case involved the important issue of whether the “no very serious consequences” rule established in prior mining cases had any continued viability after the Michigan Supreme Court decisions invalidating the concept of preferred uses and confirming the presumption of validity to municipal regulations. RSJA filed an amicus curiae brief in support of the township’s application for leave to appeal to the Michigan Supreme Court, and on the accepted case in the Michigan Supreme Court. The court issued a favorable ruling to municipalities on July 15, 2010, invalidated the “no very serious consequences” rule, and found that the rule had also been superseded by the exclusionary zoning statute. Unfortunately, the state legislature amended the Michigan Zoning Enabling Act after the decision to codify the “no very serious consequences” rule.

486 Mich 556; 786 NW2d 521 (2010). The owner of agricultural land in Putnam Township failed in his attempts to rezone the land residential, establish a planned unit development or obtain a use variance. He then sued the township, trying to rezone the property for a manufactured housing community, raising constitutional and exclusionary zoning claims. The fact that the owner requested rezoning for one use but sued for an entirely different use without first going through the zoning application process made the lawsuit unripe for court because plaintiff had not obtained a final decision -or any decision for that matter – regarding a potential manufactured housing community RSJA lent its expertise by filing an amicus curiae brief in the Michigan Court of Appeals, and later supporting the township’s application for leave to appeal to the Michigan Supreme Court. That supreme court agreed that the case was not ripe, supporting the application of the ripeness doctrine to exclusionary zoning claims, a decision with meaningful protection for Michigan municipalities.

676 Fed Appx 466 (6th Cir, 2017). The United States Court of Appeals for the Sixth Circuit reversed the district court’s denial of qualified immunity and held that the defendant paramedic did not violate the plaintiff’s clearly-established Fourth Amendment rights by grabbing the plaintiff, who was being aggressive, and forcing her to the floor and, thus, was entitled to qualified immunity in her federal use of force action. The paramedic acted reasonably by intervening because reasonable an officer in her position would have found intervention necessary, various factors could have led paramedic to believe that her use of force was necessary, citizen was second-degree black belt in Tae Kwon Do and knew how to fight, citizen acted aggressively in front of paramedic by yelling obscenities, throwing her phone, and walking angrily toward another paramedic, and police officer told citizen immediately before paramedic intervened that citizen needed to stop fighting him.

881 F3d 432 (6th Cir 2018) (briefed and argued on appeal). When the City of Riverview denied a radio broadcaster’s request to modify its equipment on a city-owned telecommunications tower, the broadcaster filed suit. The broadcaster’s proposed equipment modifications would have increased the number of antenna on the tower and occupied ten times more tower space in order to increase the broadcast power from 700 watts to 50,000 watts. The complaint alleged due process and equal protection violations, breach of a license agreement, and violation of the Telecommunications Act. RSJA attorneys obtained an order from the federal district court granting summary judgment and dismissal of all claims. In a published opinion on a matter of first impression, the Sixth Circuit Court of Appeals affirmed the grant of summary judgment for the City, finding that no private cause of action was available under §253(a) of the Telecommunications Act and holding that the City’s denial of the equipment modification under the License Agreement was not a regulatory action that had the effect of prohibiting telecommunications services within the meaning of the Telecommunications Act.

2017 WL 5615821 (Mich Ct App, Nov. 21, 2107). Governmental immunity protects communities from being sued for their day-to-day work. But what if they receive money for a function that looks like a business? In this case, plaintiff sought damages alleging that she fractured her ankle exiting a waterslide at a Family Aquatic Center located in a Metropolitan park operated by the Huron Clinton Metropolitan Authority (HCMA). To avoid the HCMA’s governmental immunity from tort claims, plaintiff alleged that the HCMA operated the Aquatic Center as a self-contained and self-functioning, for-profit waterpark under the proprietary function exception to governmental immunity. The circuit court denied the HCMA’s motion for summary disposition. RSJA filed an appeal with the Michigan Court of Appeals and obtained a decision reversing the circuit court judgment and securing the dismissal of all claims against the HCMA.

2017 WL 2348719 (Mich Ct App, May 30, 2017). An elected official, even one who receives compensation, does not have access to the same remedies as a municipal employee, as demonstrated in this case, where an elected treasurer sued the township, alleging violation of the Michigan Whistleblower’s Protection Act. RSJA strategically chose to file an early motion for summary disposition instead of an answer to the complaint, which the court granted. RSJA also successfully defended the appeal from the circuit court judgment and secured a favorable appellate court ruling affirming the dismissal of all claims against our clients.

2019 WL 5092617 (Mich Ct App, October 10, 2019). We have successfully handled many cases brought by property owners and others challenging the decisions of zoning administrators, zoning boards, and planning commissions. In this case, two neighboring associations were locked in a dispute over whether one association could use its lakefront property to provide docking and overnight boating privileges to its non-lakefront association members. During the litigation, RSJA successfully defended the township’s interpretation and application of several ordinances. RSJA obtained a circuit court judgment affirming a decision of the township zoning board of appeals, which recognized certain nonconforming rights of the association seeking to dock the boats. We also successfully defended the decision of the township planning commission to approve a special land use permit to allow certain docking activities. Additionally, RSJA won an appeal filed in the Michigan Court of Appeals challenging the planning commission’s approval of the special land use permit.

2018 WL 4478821 (E.D. Mich., Sept. 19, 2018). After the township issued building permits, it discovered that the plaintiff intended to build a nightclub-like swingers club, complete with a sports bar and state-of-the-art dance club, which were not the uses represented to the township in the permit applications and were not permitted uses in the C-2 general commercial zoning district. Plaintiff sued after the township issued a stop work order and revoked its building permits. RSJA successfully defended the township and township officials against claims brought under 42 U.S.C. §1983 for alleged due process, equal protection, and First Amendment violations, conspiracy, and state law claims, securing dismissal of all claims against all defendants with prejudice.

2020 WL 1487708 (Mich Ct App, March 24, 2020). This case involved allegations of trespass and negligent construction of a bike path in the public right-of-way. RSJA filed an early motion for summary disposition based on governmental immunity and secured a circuit court judgment dismissing the allegations with prejudice. Plaintiff moved for reconsideration and filed an appeal, raising new and different claims with each filing, including due process and First Amendment violations, takings, gross negligence, and challenges to the highway by user statute. We secured a favorable judgment from the Michigan Court of Appeals affirming the dismissal of all claims against the township with prejudice.

2018 WL 3039884 (Mich Ct App, June 19, 2018). Plaintiff filed suit after she tripped and fell on a sidewalk, arguing that her claim fell within the highway exception to governmental immunity because of the alleged existence of a vertical discontinuity in the sidewalk at the time of her fall of two or more inches. RSJA won dismissal of the complaint in circuit court and successfully defended the circuit court judgment on appeal.

697 Fed. Appx. 445 (6th Cir 2017). Plaintiff brought a purported class action, raising constitutional and statutory challenges to defendants’ authority to collect delinquent property taxes through tax foreclosure sales under the Michigan General Property Tax Act. RSJA succeeded in securing favorable district court and appellate court judgments on behalf of two municipal clients and their officials.

Officers conducted a Terry stop of a speeding vehicle registered to an unlicensed driver. The driver lacked a driver’s license but was not the registered owner. Because allowing an unlicensed person to drive a vehicle violates Michigan law, officers sought to discover whether the owner was among the three remaining passengers. The plaintiff refused to identify himself and was taken into custody. Illegal drugs were subsequently found on him. The state court of appeals reversed his drug conviction, and the plaintiff sued claiming he was unlawfully arrested. The federal Court of Appeals observed that an officer may request a detained person to identify himself, so long as the request amounts to one “reasonably related in scope to the circumstances which justified the stop.” Officers were entitled to qualified immunity under both prongs where it was reasonable to believe that the plaintiff’s refusal to identify himself violated Michigan’s obstruction statute and that such an interpretation of state law did not violate the Fourth Amendment.

Plaintiffs sued the City of Walled Lake and its City Manager alleging defamation. The circuit court granted summary disposition but denied absolute immunity to the City Manager, finding his role to be administrative rather than executive in nature. The Court of Appeals affirmed summary disposition to the City and, on the City Manager’s cross-appeal, held that he was entitled to absolute statutory immunity as the City’s highest appointed executive official. Absolute immunity was not reserved solely for the Mayor as the elected executive official.

The plaintiff, father of a middle school student, sued a police officer alleging that she violated his and his daughter’s constitutional rights by, over his objection, taking her to the hospital for a mental health evaluation and authorizing a blood draw for harmful substances after the principal told the officer that the student advised she had been contemplating suicide. The federal district court denied summary judgment, but the United States Court of Appeals for the Sixth Circuit reversed finding that the officer had probable cause to believe that the student was dangerous to herself, for purposes of a Fourth Amendment seizure and detention for a mental health evaluation and blood draw, and that the officer had qualified immunity from father and student’s substantive due process claims.

Plaintiff-Appellant was incarcerated when he was assaulted by a fellow inmate, whom he had verbally accused of cheating during a card game. Claims were brought against the inmate who assaulted him, the two deputies involved in classifying/maintaining the classification of the inmate who assaulted him, and the County. RSJA was initially successful in obtaining a full dismissal of this case by way of a motion in lieu of an answer. Following briefing, the Sixth Circuit upheld the district court’s opinion. Notably, despite Plaintiff-Appellant’s argument that qualified immunity is not properly decided in a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Sixth Circuit agreed with Defendants’ position that questions of qualified immunity should be resolved at the earliest possible stage of litigation.

Plaintiff was a developer who owned property in the Township that was subject to a state court consent judgment controlling the property’s development as a result of a prior lawsuit between Plaintiff’s predecessor and the Township. When Plaintiff did not persuade the Township to accept amendments to the consent judgment, it filed a new federal lawsuit asserting due process, equal protection, and takings claims, and breach of contract. The District Court granted a pre-discovery motion to dismiss for lack of jurisdiction on the grounds that the lawsuit was a collateral attack on the prior consent judgment. The Sixth Circuit affirmed on alternative grounds in a published opinion clarifying that collateral attacks are subject to the rules of res judicata. It held that the Plaintiff’s new federal lawsuit was a collateral attack on the state court consent judgment that was barred by res judicata, as adjudicating the constitutional claims would require the federal court to interpret and enforce the consent judgment, which was within the jurisdiction of the state court.

Plaintiff was a frequent public commenter at County Board meetings, which feature two public comment periods at which speakers could provide comment for up to 5 minutes per public comment period. Though both comment periods traditionally were open to comment on any matters, the Board Chair announced at one meeting that the first comment period would be limited to comment on agenda items only. Plaintiff sued for an alleged violation of the OMA, claiming that the agenda-items-only rule violated the Open Meeting Act’s requirement that public comment be provided for pursuant to rules established and recorded by the public body. The Board’s rules were silent on the number of public comment periods or the scope of a particular comment period, but provided for public comment up to 5 minutes, with additional time available at the discretion of the Chair. Affirming the trial court’s grant of summary disposition to the County, the Court of Appeals found that the Board’s rules and their implementation comported with the purpose of the OMA, and that the Complaint failed to state a claim under the OMA upon which relief could be granted.

Plaintiffs were a group of property owners who sought to use their properties as short-term rentals (“STRs”). However, they did not register their properties as STRs rentals under the City’s STR permitting ordinance before the City adopted a moratorium on STR approvals pending development of new zoning regulations for STRs. Nor did most of them apply (or qualify for) an exception to the moratorium, but rather merely submitted their permit applications during the moratorium. The new zoning regulations ultimately capped STRs in residential districts at the number that existed at the time of the moratorium, with the result that the Plaintiffs whose properties were in residential districts were barred from lawfully establishing their properties as STRs. The Plaintiffs challenged the moratorium and new zoning regulations, seeking damages and equitable relief under theories including a taking, due process and equal protection violations, and a claim of a vested lawful nonconforming use of their properties as STRs. Affirming a published opinion of the Western District of Michigan granting summary judgment to the City regarding the substantive majority of Plaintiffs’ claims, the Sixth Circuit Court of Appeals held that Plaintiffs lacked a protected property interest in STRs for their due process claims, and lacked a vested property interest for their takings and Zoning Enabling Act claims. Because the Zoning Ordinance did not expressly permit STRs and provided that uses not expressly permitted are prohibited, and Plaintiffs waited to apply until the moratorium was in place, they had no legitimate claim of entitlement to STRs permits, and therefore no protected or vested property right in the use of their properties as STRs.

Plaintiffs owned a group of parcels in the Township that they claimed were incapable of being developed under the Township’s special land use regulations, and because the Township and co-defendant construction company allegedly prevented them from connecting their properties to a water main and sewer line during construction of an adjacent road. They sued under theories including due process and equal protection violations, a taking, and tortious interference with contracts. However, the record showed that Plaintiffs had either obtained every land use approval that they had ever applied for, never appealed those that were denied, and/or never actually applied for uses that they claimed individual Township employees suggested would be difficult at the site. The District Court granted a motion to dismiss the takings claims and several other claims prior to discovery, and granted the Township summary judgment on all other claims after discovery. The Sixth Circuit affirmed, holding that Plaintiffs had no protected property right in special land use approvals as required for their due process claims, failed to identify any similarly situated property owners who received approvals despite failing to apply, and that Plaintiffs received no adverse final decisions to ripen a takings claim.