John Holeton v. City of Livonia

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

JOHN HOLETON and PAULINE HOLETON, FOR PUBLICATION

May 7, 2019

Plaintiffs-Appellees, 9:15 a.m.

v No. 341624

Wayne Circuit Court

CITY OF LIVONIA, LAURA M. TOY, JOHN R. LC No. 14-000104-CZ

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,

and

MAUREEN MILLER BROSNAN,

Defendant-Appellant.

JOHN HOLETON and PAULINE HOLETON,

Plaintiffs-Appellees,

v No. 341847

Wayne Circuit Court

CITY OF LIVONIA, LAURA M. TOY, LC No. 14-000104-CZ

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

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LIVONIA POLICE OFFICER JOHN DOE,

Defendants-Appellants.

Before: MURRAY, C.J., and SAWYER and REDFORD, JJ.

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 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, unpublished per

curiam opinion of the Court of Appeals, issued August 2, 2016 (Docket No. 321501).

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 to the Constitution of the United States 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.

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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

NW2d 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 NW2d 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 Constitution of the United

States or the laws of the United States 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.

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 grounds that the Holetons failed to show that Brosnan unlawfully

deprived Pauline of her rights under the First Amendment or the Fourteenth Amendment. She

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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.

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 when someone disturbs the peace under the OMA. They similarly argued that the

requirements of the OMA were clear, and, as such, 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 US 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. 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 US 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 Assn v Perry Local Educators’ Assn, 460 US 37, 45; 103 S

Ct 948; 74 L Ed 2d 794 (1983); Reza v Pearce, 806 F3d 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 F3d 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 limited public fora, 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 basis of the speaker’s

view. Perry Ed Assn, 460 US at 45-46. The First Amendment also prohibits government

officials from punishing individuals for engaging in protected speech, see Lozman v Riviera

Beach, ___ US ___, ___; 138 S Ct 1945, 1949; 201 L Ed 2d 342 (2018), and secures the right to

petition the government for redress of grievances, see BE & K Constr v Nat’l Labor Relations

Bd, 536 US 516, 524; 122 S Ct 2390; 153 L Ed 2d 499 (2002). These protections apply to the

states through the Fourteenth Amendment. See Mills v Alabama, 384 US 214, 218; 86 S Ct

1434; 16 L Ed 2d 484 (1966).

In this case, the Holetons did not allege or present any evidence that Brosnan

implemented an address-the-chair rule in order to curtail anyone’s speech on the basis of the

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content or viewpoint expressed. They also did not allege or present evidence that the rule was

unreasonable for the forum. See Perry Ed Assn, 460 US at 45. They did not allege or present

any evidence that they had actually been prevented from speaking at a previous meeting or that

the implementation of the rule denied them the right to petition the committee at the meeting in

March 2012.

It is undisputed that the Holetons had been able to speak at previous meetings. Similarly,

the evidence showed that Pauline was invited to express her views at the committee’s meeting in

March 2012 and was given the opportunity to express her views at that meeting. The Holetons

failed to allege or present evidence that Brosnan or the council members engaged in a pattern or

plan of harassment and intimidation that prevented them from exercising their First Amendment

rights premised on the content of their speech or their viewpoint. See Lozman, ___ US at ___;

138 S Ct at 1954-1955. Instead, the Holetons premised their claim under 42 USC 1983 on the

fact that Brosnan took steps to end Pauline’s speech and petition activities for failing to comply

with an address-the-chair rule; they suggest that Brosnan could not do so absent a breach of the

peace by Pauline. Stated another way, the Holetons did not allege or argue that Brosnan or the

council had formulated a plan to retaliate against the Holetons on the basis of their previously

expressed viewpoints. See id. They relied solely on Brosnan’s decision to implement an

address-the-chair rule and enforce that rule.

The evidence showed that the City Council scheduled the meeting to address citizen

concerns about smart meters, which previous meetings of the City Council had shown to be a

contentious issue. By requiring commentary to be directed to the chair, Brosnan ensured that

commentators would not be inciting other attendees to heckle or debate the commentator, or

otherwise disrupt the orderly progress of the commentary. The City Council had a significant

governmental interest in conducting orderly and efficient meetings. See Rowe, 358 F3d at 802-

803. The rule was on its face reasonably calculated to ensure the orderly participation of the

community members who wished to express their views without targeting the content or their

viewpoint. Accordingly, the rule was reasonable and consistent with the requirements of the

First Amendment for limited public fora. See Perry Ed Assn, 460 US at 45-46.

As noted, the address-the-chair rule did not by itself target the speaker’s viewpoint and

did not prevent anyone from petitioning the Infrastructure Committee. Brosnan also provided

reasonable notice of the rule by explaining the nature of the rule before the meeting of the

Infrastructure Committee. The mere existence of the rule—without regard to the propriety of its

promulgation—did not violate the Holetons’ First Amendment rights or their right to due process

under the Fourteenth Amendment. Additionally, although removing Pauline for a violation of

the rule might have amounted to a violation of Michigan’s OMA, see MCL 15.263(6), a

violation of the OMA does not itself establish that Brosnan’s actions also deprived Pauline of her

rights under the First and Fourteenth Amendments. See, e.g., Davis v Scherer, 468 US 183, 194-

196; 104 S Ct 3012; 82 L Ed 2d 139 (1984) (rejecting the contention that a violation of a related

state statute or regulation necessarily renders the state actor’s actions unreasonable for purposes

of determining qualified immunity). Indeed, because a council meeting is a limited public

forum, the council can promulgate rules limiting the content and extent of the commentary and

can provide for the expulsion of persons who disrupt the orderly progress of the meeting. See

Eichenlaub v Indiana Twp, 385 F3d 274, 281 (CA 3, 2004) (upholding removal of a member of

the public where the evidence showed that the speaker was repetitive and truculent and

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explaining that restricting such behavior prevented the speaker from hijacking the proceedings,

which would infringe the First Amendment rights of other would-be participants); see also White

v Norwalk, 900 F2d 1421, 1425-1426 (CA 9, 1990) (holding that an ordinance was not facially

invalid under the First Amendment because it allowed the moderator of a city council’s meeting

to eject an audience member for disruptions short of a breach of the peace). It is also not a

violation of the Equal Protection Clause of the Fourteenth Amendment for a municipality to

favor commentary by its own citizens over noncitizens, as long as the rule does not discriminate

on the basis of speaker’s view. See Rowe, 358 F3d at 803 (“It is reasonable for a city to restrict

the individuals who may speak at meetings to those individuals who have a direct stake in the

business of the city—e.g., citizens of the city or those who receive a utility service from the

city—so long as that restriction is not based on the speaker’s viewpoint.”).

In this case, the evidence showed that Brosnan gave Pauline a reasonable opportunity to

address the committee at the meeting. It is true that Brosnan immediately admonished Pauline to

address the chair and referred to previous encounters, but the video evidence showed that

Brosnan’s remarks were occasioned by the fact that Pauline immediately began to address the

audience rather than the chair. And Pauline did so after another commentator had resorted to

personal attacks on the DTE representatives and a general increase in the tensions at the meeting.

Nevertheless, there was no evidence that Brosnan selectively applied the address-the-chair rule

on the basis of the speaker’s viewpoint, or enforced it without warning or in a capricious or

arbitrary manner. Indeed, the evidence showed that she applied the rule to several previous

speakers from both Livonia and outside communities. The evidence also demonstrated that

Brosnan twice admonished Pauline to comply with the rule but still provided her with an

opportunity to start over. The evidence showed that Brosnan allowed John Holeton to speak

without interruption for several minutes after Pauline left the meeting, which belies the notion

that Brosnan used the rule as a pretext to discriminate against the Holetons on the basis of their

previously expressed views. The video also showed that Pauline was dismissive and demeaning

toward Brosnan and the representative from DTE Energy. Brosnan’s efforts to moderate the

meeting were reasonable given the limited forum. See Perry Ed Assn, 460 US at 45-46. The

Holetons failed to establish that Brosnan violated Pauline’s constitutional rights by admonishing

her to follow the rule and then asking her to leave when she was unwilling to comply with the

rule. On this record, no reasonable jury could find that Brosnan implemented the address-the-

chair rule to retaliate against the Holetons or that she otherwise deprived them of their rights by

enforcing the rule. See MCR 2.116(C)(10); Quinto v Cross & Peters Co, 451 Mich 358, 367,

547 NW2d 314 (1996) (recognizing that the nonmoving party must present evidence sufficient

“to permit a reasonable jury” to find in favor of the nonmoving party).

The trial court also erred when it refused to grant Brosnan’s motion on the basis of

qualified immunity. An official has qualified immunity from suits under 42 USC 1983 when the

official’s conduct “does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.” Kisela v Hughes, ___ US ___, ___; 138 S Ct 1148,

1152; 200 L Ed 2d 449 (2018) (quotation marks and citation omitted). “The doctrine of qualified

immunity protects government officials from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” Pearson v Callahan, 555 US 223, 231; 129 S Ct 808; 172 L Ed 2d 565

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(2009) (quotation marks and citation omitted). Before allowing a claim to proceed, courts must

determine that the plaintiff has established two elements that defeat qualified immunity:

First, a court must decide whether the facts that a plaintiff has alleged or shown

make out a violation of a constitutional right. Second, if the plaintiff has satisfied

this first step, the court must decide whether the right at issue was ‘clearly

established’ at the time of defendant’s alleged misconduct. [Id. at 232 (quotation

marks and citations omitted).]

The focus of the inquiry is on whether the official had “fair notice that her conduct was

unlawful;” and, for that reason, the reasonableness of the act must be judged against the

backdrop of the law at the time of the conduct. Kisela, ___ US at ___; 138 S Ct at 1152

(quotation marks and citations omitted). The allegations and facts must show that it would have

been clear to a reasonable official in the defendant’s position that his or her conduct was

unlawful under the situation that he or she confronted. Wood, 572 US at 758. The Supreme

Court of the United States has also repeatedly admonished lower courts “not to define clearly

established law at a high level of generality.” Kisela, ___ US at ___; 138 S Ct at 1152 (quotation

marks and citation omitted). Although there need not be a case directly on point for a right to be

clearly established, existing precedent must have placed the constitutional question beyond

debate. Id. It was, therefore, not sufficient for the Holetons to assert that it was clearly

established that the First Amendment protects speech and the right to petition government, or

that the Fourteenth Amendment ensures the right to due process. In order to survive summary

disposition of the claim alleged in this case, the Holetons had to show that it was clearly

established that the First Amendment or Fourteenth Amendment prevented a committee chair

from enforcing an otherwise reasonable and viewpoint-neutral procedural rule—the address-the-

chair rule—by expelling a person who does not comply with the rule under similar facts. This,

they did not do.

The Holetons relied solely on the fact that the OMA prohibited expulsion absent a breach

of the peace at the meeting. The requirements of the OMA do not establish the parameters of the

rights protected under the First and Fourteenth Amendments. See Davis, 468 US at 194-196.

And it has been held that an ordinance that allows expulsion short of a breach of the peace is

constitutional. See White, 900 F2d at 1425-1426. Under the state of the law applicable to

limited public fora, a reasonable chairperson might conclude that, consistent with the First and

Fourteenth Amendments, he or she could properly enforce an otherwise reasonable and

viewpoint-neutral rule by expelling a member of the audience who repeatedly violated the rule

and was thereby disrupting the orderly progress of the meeting. This is especially true when—as

in this case—the chairperson warned the speaker and gave her the opportunity to comply with

the rule. No reasonable jury could find that a reasonable chairperson in Brosnan’s shoes would

have understood that she was violating Pauline’s First Amendment rights by implementing and

enforcing the address-the-chair rule under those circumstances. See Kisela, ___ US at ___; 138

S Ct at 1153. The Holetons failed to establish that Brosnan was not entitled to qualified

immunity for resorting to expulsion rather than some other less drastic remedy for the rule

violation.

As Brosnan correctly notes on appeal, it was unclear from the amended complaint and

arguments made before the trial court how Brosnan purportedly violated the Holetons’ rights

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under the Fourteenth Amendment. The First Amendment applies to state actors through the

Fourteenth Amendment. As such, the Holetons’ claim under 42 USC 1983 could be viewed as a

First Amendment claim. However, the Holetons failed to establish a violation of their First

Amendment rights. They also asserted that Brosnan and the unnamed officer deprived Pauline

of liberty without due process of law. But they did not clarify the nature of the claim in response

to Brosnan’s motion for summary disposition. They did not identify the specific right violated

and did not show that a reasonable chairperson in Brosnan’s position would have known that her

acts or omissions violated a clearly established right under the Fourteenth Amendment. See

Kisela, ___ US at ___; 138 S Ct at 1153.

Once Brosnan made a properly supported motion for summary disposition of the

Holetons’ claim under the Fourteenth Amendment, the Holetons were obligated to demonstrate

the nature of the right at issue and that qualified immunity did not apply. It was not enough that

a state actor’s actions might have had some conceivable effect on life, liberty, or property. See

Moore v Detroit, 128 Mich App 491, 501-502; 340 NW2d 640 (1983). It was undisputed that

Pauline had notice of the rule, was admonished to follow the rule, and failed to do so. She had

notice and an opportunity to comply before being expelled. That process may have been

sufficient under the circumstances. See Hinky Dinky Supermarket, Inc v Dep’t of Community

Health, 261 Mich App 604, 606; 683 NW2d 759 (2004). There was also no evidence that

anyone physically handled Pauline or otherwise inhibited her freedom of movement. On this

record, the Holetons failed to identify an independent violation of a right guaranteed under the

Fourteenth Amendment, which could support a claim under 42 USC 1983. Accordingly, the trial

court should also have dismissed the Holetons’ claim under 42 USC 1983 to the extent that they

relied on a deprivation of a right other than the rights guaranteed under the First Amendment.

III. THE CITY COUNCIL’S APPEAL IN DOCKET NO. 341847

The City Council also argues on appeal that the trial court erred when it denied its motion

for summary disposition of the Holetons’ claim under 42 USC 1983. The City Council argues

that the trial court erred to the extent that it denied its motion because the City Council could be

held liable for Brosnan’s acts under a theory of respondeat superior and erred because the City

Council is not an entity that is capable of being sued.

It is well settled that a municipality is a person that can be sued under 42 USC 1983 for a

deprivation of rights protected by the Constitution of the United States or a federal statute. See

Johnson, 502 Mich at 762. However, it is equally clear that a plaintiff cannot predicate liability

on a respondeat superior theory. Id. at 763. Rather, the plaintiff must plead and be able to prove

that the municipality’s policy or custom directly led to the deprivation of the federal

constitutional or statutory right at issue. Id. at 762. “A constitutional violation is attributable to

a municipality if ‘the action that is alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s

officers.’ ” Id. at 762, quoting Monell v Dep’t of Social Servs of the City of New York, 436 US

658, 690; 98 S Ct 2018; 56 L Ed 2d 611 (1978).

As discussed in Brosnan’s appeal, the Holetons failed to show that Brosnan’s actions

deprived them of a right protected under the First or Fourteenth Amendment. Brosnan’s address-

the-chair rule was reasonable and viewpoint neutral, as permitted for limited public fora. See

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Perry Ed Assn, 460 US at 45-46. Moreover, Brosnan could ensure the orderly progress of the

meeting by enforcing the rule, see Rowe, 358 F3d at 803, and expulsion was not a

constitutionally suspect remedy, see White, 900 F2d at 1425-1426. The Holetons further could

not rely on a violation of the OMA to establish a violation of right protected by the First or

Fourteenth Amendments. See Davis, 468 US at 194-196. On the record before the trial court,

Brosnan’s actions were permissible under the First and Fourteenth Amendments. The Holetons

failed to establish a question of fact for the jury as to whether Brosnan’s implementation and

enforcement of the address-the-chair rule violated their constitutional rights. As such, even if

Brosnan acted pursuant to a policy or procedure implemented by Livonia, a reasonable jury

could not find that the policy caused a deprivation of rights. See Johnson, 502 Mich at 762. For

these reasons, the trial court should have dismissed the Holetons’ claim under 42 USC 1983 as to

all defendants. See Barnard Mfg, 285 Mich App at 374-375.

IV. CONCLUSION

Because the Holetons failed to identify a deprivation of their rights under the First and

Fourteenth Amendments to the Constitution of the United States, the trial court should have

dismissed their claims under 42 USC 1983 as to all defendants. For that reason, we reverse the

trial court’s decision to deny the motions for summary disposition of the Holetons’ claims under

42 USC 1983 in both dockets, and remand this case for entry of an order dismissing the claims.

Reversed and remanded for further proceedings consistent with this opinion. We do not

retain jurisdiction. Because this appeal involved issues of importance to the general public, we

order that none of the parties may tax their costs. See MCR 7.219(A).

/s/ Christopher M. Murray

/s/ David H. Sawyer

/s/ James Robert Redford

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