Petition for Writ of Certiorari — Rubicon Real Estate Holdings, LLC, et al., Petitioners v. City of Pontiac, Michigan, et al.
Supreme Court briefSep 14, 2026
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No. 26-____
_________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
_________________________________________________
RUBICON REAL ESTATE HOLDINGS, LLC, et al.,
Petitioners,
v.
CITY OF PONTIAC, MICHIGAN, et al.,
Respondents.
_________________________________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth
Circuit
_________________________________________________
PETITION FOR A WRIT OF CERTIORARI
_________________________________________________
CINDY RHODES VICTOR
The Victor Firm, PLLC
29777 Telegraph Road, Suite 2410
Southfield, Michigan 48034
(248) 905-3990
cvictor@victorfirm.com
Attorneys for Petitioners
QUESTIONS PRESENTED
Whether a grant of a writ of certiorari is warranted
where decision of the United States Court of Appeals
for the Sixth Circuit denies significant constitutional
property rights.
Whether a grant of a writ of certiorari is warranted
where the decision of the United States Court of
Appeals for the Sixth Circuit conflicts with wellestablished principles regarding claims for denial of
rights to procedural due process.
Whether a grant of a writ of certiorari is warranted
where the decision of the United States Court of
Appeals for the Sixth Circuit conflicts with wellestablished principles regarding claims for denial of
rights to substantive due process.
Whether a grant of a writ of certiorari is warranted
where the decision of the United States Court of
Appeals for the Sixth Circuit conflicts with wellestablished principles regarding takings claims.
Whether a grant of a writ of certiorari is warranted
where the decision of the United States Court of
Appeals for the Sixth Circuit conflicts with wellestablished principles regarding First Amendment
retaliation claims.
i
PARTIES TO THE PROCEEDING
Petitioners Rubicon Real Estate Holdings, LLC,
Browne Design Consultants, LLC, and Joseph Brown
were the plaintiffs/appellants below.
Respondents the City of Pontiac, Michigan and
Garland S. Doyle were the defendants/appellees
below.
CORPORATE DISCLOSURE
Pursuant to Supreme Court Rule 29.6, Rubicon Real
Estate Holdings, L.L.C. and Browne Design
Consultants, L.L.C. are privately held Michigan
Limited Liability Companies. No publicly held entity
owns ten percent or more of either Rubicon Real
Estate Holdings, L.L.C. or Browne Design
Consultants, L.L.C.
ii
TABLE OF CONTENTS
Page(s)
QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . .
i
PARTIES TO THE PROCEEDINGS. . . . . . . . . . .
ii
CORPORATE DISCLOSURE STATEMENT . . . .
ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . .
iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . .
v
DECISIONS BELOW. . . . . . . . . . . . . . . . . . . . . . .
1
STATEMENT OF JURISDICTION. . . . . . . . . . . .
1
CONSTITUTIONAL PROVISIONS INVOLVED .
2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . .
2
A.
Facts of The Case . . . . . . . . . . . . . . .
2
I.
THIS COURT SHOULD GRANT
CERTIORARI BECAUSE THE DECISION
BELOW DENIES SIGNIFICANT
CONSTITUTIONAL PROPERTY RIGHTS . 8
II.
THE SIXTH CIRCUIT'S DECISION
CONFLICTS WITH WELL-ESTABLISHED
PRINCIPLES REGARDING CLAIMS FOR
DENIAL OF RIGHTS TO PROCEDURAL
DUE PROCESS . . . . . . . . . . . . . . . . . . . .
10
iii
III.
THE SIXTH CIRCUIT'S DECISION
CONFLICTS WITH WELL-ESTABLISHED
PRINCIPLES REGARDING CLAIMS FOR
DENIAL OF RIGHTS TO SUBSTANTIVE
DUE PROCESS . . . . . . . . . . . . . . . . . . . . . 15
IV.
THE SIXTH CIRCUIT'S DECISION
CONFLICTS WITH WELL-ESTABLISHED
PRINCIPLES REGARDING TAKINGS
CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
V.
THE SIXTH CIRCUIT'S DECISION
CONFLICTS WITH WELL-ESTABLISHED
PRINCIPLES REGARDING FIRST
AMENDMENT RETALIATION CLAIMS . . 24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
APPENDICES
A.
Opinion of United States Court
of Appeals for the Sixth Circuit . . . . A1
B.
Opinion and Order Granting
Defendants’ Motion for
Summary Judgment and
Dismissing Complaint. . . . . . . . . . . A43
iv
TABLE OF AUTHORITIES
CASES
Page(s)
Agins v. City of Tiburon, 447 U.S. 255 (1980). . .
19
Am. Soc. of Mech. Eng'rs, Inc. v. Hydrolevel
Corp., 456 U.S. 556 (1982). . . . . . . . . . . . . . . . . .
26
Americans United for Separation of Church
& State v. City of Grand Rapids, 922 F.2d 303
(6th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
Armstrong v. Manzo, 380 U.S. 545 (1965). . . . .
11
Austin v. Town of Farmington, 826 F.3d 622
(2d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
Bhogaita v. Altamonte Heights Condo. Ass'n,
Inc., 765 F.3d 1277 (11th Cir. 2014) . . . . . . . . . .
13
Buckeye Comm. Hope Found. v. City of
Cuyahoga Falls, 263 F.3d 627 (6th Cir. 2001). .
15
Byrd v. Haas, 17 F.4th 692 (6th Cir. 2021) . . . .
12
City of St. Louis v. Praprotnik, 485 U.S. 112
(1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26-27
County of Sacramento v. Lewis, 523 U.S. 833
(1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
Daniels v. Williams, 474 U.S. 327 (1986). . . . . 15, 17
v
Env't Def. Fund, Inc. v. Hardin, 428 F.2d 1093
(D.C. Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
Friedman v. Fed. Aviation Admin., 841 F.3d 537
(D.C. Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . .
13
Goldberg v. Kelly, 397 U.S. 254 (1970). . . . . . . .
10
Groome Res. Ltd., L.L.C. v. Par. of Jefferson,
234 F.3d 192 (5th Cir. 2000) . . . . . . . . . . . . . . . .
13
Hahn v. Star Bank, 190 F.3d 708 (6th Cir. 1999). 11
Kawaoka v. City of Arroyo Grande, 17 F.3d
1227 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . .
21
Khan v. Gallitano, 180 F.3d 829 (7th Cir.1999). .
16
Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th
Cir.), amended, 830 F.2d 968 (9th Cir. 1987). . 21, 22
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992). . . . . . . . . . . . . . . . . . . . . .
19
Ludwig v. Board of Trustees of Ferris State Univ.,
123 F.3d 404 (6th Cir. 1997). . . . . . . . . . . . . . . . . 15
Mathews v. Eldridge, 424 U.S. 319 (1976). . . .
11
McKay v. United States, 199 F.3d 1376
(Fed. Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . .
19
Med Corp. v. City of Lima, 296 F.3d 404
(6th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . .
11
vi
Moreland v. Las Vegas Metro. Police Dep't,
159 F.3d 365 (9th Cir.1998). . . . . . . . . . . . . . . . . 16-17
Morrissey v. Brewer, 408 U.S. 471(1972) . . . . . . .
11
Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306 (1950). . . . . . . . . . . . . . . . . . . . . . . .
10
Overlook Mutual Homes, Inc. v. Spencer,
415 F. App’x 617 (6th Cir. 2011) . . . . . . . . . . . . .
12
Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989). . .
15
Pearson v. City of Grand Blanc, 961 F.2d 1211
(6th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
Pembaur v. City of Cincinnati, 475 U.S. 469
(1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24
Penn Cent. Transp. Co. v. City of New York,
438 U.S. 104 (1978) . . . . . . . . . . . . . . . . . . . . . . . .
19
S. Life Ins. Co. v. McCain, 96 U.S. 84 (1877). . . .
26
Silver v. Franklin Twp. Bd. of Zoning Appeals,
966 F.2d 1031 (6th Cir. 1992) . . . . . . . . . . . . . . .
8
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l
Plan Agency, 535 U.S. 302 (2002). . . . . . . . . . . . 20-21
Thompson v. Ashe, 250 F.3d 399 (6th Cir. 2001).
vii
11
Warren v. City of Athens, Ohio, 411 F.3d 697
(6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
Williamson County Reg'l Planning Comm'n v.
Hamilton Bank of Johnson City, 473 U.S. 172
(1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22
Wyatt v. United States, 271 F.3d 1090 (Fed. Cir.
2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Zinermon v. Birch, 494 U.S. 113 (1990). . . . . . . .
15
CONSTITUTION AND STATUTES
U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . i, 24, 25
U.S. Const. amend. XIV . . . . . . . . . . . . . . . . 2, 15, 18
M.C.L. 333.26421 et seq. . . . . . . . . . . . . . . . .
2
M.C.L. 333.27101, et seq. . . . . . . . . . . . . . . .
2
RULES
28 U.S.C. §1257(a). . . . . . . . . . . . . . . . . . . . . . .
viii
1
DECISIONS BELOW
The decision of the United States Court of Appeals
for the Sixth Circuit affirming the district court’s
decision granting respondents' motion for summary
judgment is reported and is reproduced in the
Appendix, App. A1-A42. The decision of the United
States District Court for the Eastern District of
Michigan granting respondents' motion for summary
judgment is unreported and is reproduced in the
Appendix, App. A43-A88.
STATEMENT OF JURISDICTION
The Opinion of the United States Court of Appeals
for the Sixth Circuit affirming the district court’s
decision was filed on June 18, 2026. This Court has
jurisdiction to review this decision under 28 U.S.C.
§1257(a).
-1-
CONSTITUTIONAL PROVISIONS INVOLVED
The First Amendment to the United States
Constitution provides as follows: “Congress shall
make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the
Government for a redress of grievances.”
Section 1 of the Fourteenth Amendment to the
United States Constitution provides as follows, in
pertinent part: “nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
STATEMENT OF THE CASE
This petition seeks review of the decision of the
United States Court of Appeals for the Sixth Circuit
affirming certain the decision of the United States
District Court for the Eastern District of Michigan
regarding respondents’ motion for summary
judgment.
A.
Facts Of The Case
In 2008, Michigan voters approved the medical use of
marijuana, which is now known as the Michigan
Medical Marihuana Act (“MMMA”), M.C.L. 333.26421 et
seq. The MMMA prompted the Michigan Legislature in
-2-
2016 to enact the Michigan Medical Marihuana
Facilities Licensing Act (“MMFLA”), M.C.L. 333.27101,
et seq., which established procedures for regulating and
licensing medical marijuana facilities, so that patients
who were qualified under the MMMA could obtain safe
medical marijuana for their treatments.
This case involves property in the City of Pontiac,
Michigan that petitioner Rubicon Real Estate Holdings,
L.L.C. (“Rubicon”)intended to develop and lease out for
medical marijuana facilities. On March 29, 2019,
Rubicon entered into a purchase agreement for 7 and 9
Glenwood Avenue, Pontiac, Michigan 48326 (“Glenwood
Property”). Under the purchase agreement, Rubicon
was to “undertake in good faith to take all such steps
necessary to submit all required plans and applications
to the City of Pontiac necessary for a marijuana license
as soon as reasonably practicable.”
Rubicon submitted an application for a zoning map
amendment on July 3, 2019. The Planning Commission
of respondent the City of Pontiac, Michigan (“the City”)
voted at a public hearing on December 18, 2019 to
approve the zoning map amendment. The City Council
adopted the Planning Commission’s recommendations
on January 21, 2020, passing Resolution 20-29.
Resolution 20-29 amended the City’s zoning map so that
the Glenwood Property was now zoned C-3 Corridor
Commercial and M-1 Light Manufacturing with CR
Conditional Rezoning, which now allowed Rubicon to
have medical marijuana facilities on the Glenwood
Property.
-3-
On January 23, 2020, Vern Gustafsson, the City
Planning Manager, sent correspondence to Rubicon
stating that the Pontiac City Council had approved the
rezoning request at the January 21, 2020 meeting and
that the City Attorney will obtain the City signatures on
the Conditional Rezoning Agreement. The January 23,
2020 correspondence from Planning Manager
Gustafsson stated that approved medical marihuana
permits were required for each medical marihuana
facility from the City. The parties later executed the
Conditional Rezoning Agreement (“CRA”), which was
effective as of January 21, 2020. Rubicon then closed on
the Glenwood Property on February 27, 2020.
Upon approval of and in reliance on Resolution 20-29,
and once its purchase of the Glenwood Property was
completed, Rubicon entered into agreements to finance
the development of the parcels and leases and letters of
intent with tenants for portions of the Glenwood
Property, including the planned anchor tenants of the
Glenwood Property, Family Rootz, LLC (“Family
Rootz”), Pharmaco, Inc. (“Pharmaco”) and HW Glenwood
(“Hollywood Market”).
Pharmaco applied for its permit on August 8, 2019.
Pharmaco had prequalified for a medical marijuana
license from the State of Michigan. The first notice
Pharmaco received that its grower and processor
applications were allegedly deficient was not sent until
July 15, 2020, almost a year after the applications were
submitted. It took the City another five months, until
January 29, 2021, before it issued second deficiency
letters.
-4-
Family Rootz applied for its permit on July 20, 2020.
The City did not send its first notice that the application
was deficient until more than six months later, on
January 29, 2021.
From 2020 forward, respondent City Clerk Garland S.
Doyle made it clear that he would not issue permits for
applicants on Rubicon’s property because he claimed
they were not permitted under the City’s Zoning
Ordinance.
On January 7, 2021, Rubicon’s then-counsel sent
correspondence to the City Council demanding that the
City take action, citing the potential financial losses
being caused by Doyle’s position that there could not be
any medical marijuana businesses on the Glenwood
Property.
On February 16, 2021, the City Council held a meeting
which included a discussion on the Glenwood Property.
As part of Rubicon’s presentation, conceptual drawings
were shown that depicted what the project would look
like once the development was completed. Doyle
submitted a PowerPoint Presentation that confirmed
that he refused to recognize that medical marijuana
businesses were allowed on the Glenwood Property.
The minutes of the City Council meeting state:
Interim City Clerk Garland Doyle
informed the City Council that it would
be illegal for him to issue a license to
any medical marihuana grower or
processor applicant at the Glenwood
site. Ordinance 2363 does not permit
-5-
growers or processors to be licensed
outside of the Cesar Chavez or Walton
Blvd Overlay Districts.
The City Council took no action on the matter at the
February 16, 2021 meeting.
On March 15, 2021, Thomas Welch, President of HW
Glenwood, LLC, wrote to Rubicon expressing concerns
about the delays being caused by the City, and that if
the City continued to delay the project, then he would
have to withdraw Hollywood Market from being part of
the development.
On March 26, 2021, Rubicon and Family Rootz filed a
lawsuit in the Oakland County (MI) Circuit Court,
seeking mandamus and declaratory relief, as well as
other relief. On May 21, 2021, the state court granted
Rubicon’s and Family Rootz’ motion for declaratory
judgment, and ordered that the City and its officials
“shall forthwith implement the terms of the Conditional
Rezoning Agreement,” “issue preliminary approval of
all pending Pharmaco, Inc and Family Rootz
applications for grower and processor licenses and
permits,” and declared the that Glenwood Property
“complies with the zoning ordinance…”.
However, the City did not “forthwith” comply with the
May 21, 2021 order. Instead, on the very same day this
order was issued, respondents sent correspondence to
Family Rootz and Pharmaco that their applications
were deficient and did not issue the approvals as
required by the May 21, 2021 order.
-6-
Later, Doyle sent “Conditional Approval” letters to
Family Rootz on May 27, 2021, and to Pharmaco on
June 3, 2021. The conditional approvals were
contingent upon approval by the regional Fire
Department and the City’s Building & Safety
Department, which could not be obtained until Rubicon
could secure the financing to construct the buildings
and actually construct the buildings.
Unwilling to wait any longer, on June 18, 2021,
Pharmaco terminated its lease with Rubicon. Family
Rootz terminated its lease with Rubicon on September
11, 2021. Hollywood Market refused to proceed further
with its lease, and the remaining tenants terminated
their leases or refused to proceed further under their
letters of intent.
After Rubicon had filed the state court lawsuit, SK
Properties retained petitioner Browne Design
Consultants, L.L.C. (“Browne Design”) to provide
design and other services for a project it was developing
in the City. SK Properties’ principal, Tzvi Koslowe,
met with then-Mayor Tim Greimel, Councilwoman
Melanie Rutherford and then-City Planning Manager
Vern Gustafsson to discuss the project. Mayor Greimel
told Koslowe that if SK Properties wanted to obtain
approval for its development, Shores at Crystal Lake,
then it needed to terminate its relationship with
Browne Design, because petitioner Joseph Brown, a
principal of Rubicon, had sued the City. Councilwoman
Rutherford did not contradict or oppose this statement.
Koslowe then advised Brown that he had to terminate
his agreement to retain Brown and Browne Design
because of the mayor’s statement.
-7-
I.
THIS COURT SHOULD GRANT
CERTIORARI BECAUSE THE DECISION
BELOW DENIES SIGNIFICANT
CONSTITUTIONAL PROPERTY RIGHTS
The United States Court of Appeals for the Sixth
Circuit (hereafter, “Sixth Circuit”) ruled that
Rubicon did not have a property right to have
medical marijuana facilities on its property, despite
the fact that Rubicon owned the property and had
the property re-zoned for such uses, because the City
retained discretion whether to approve medical
marijuana licenses to Rubicon’s tenants, Pharmaco
and Family Rootz.
The Sixth Circuit relied on its own decision in Silver
v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d
1031 (6th Cir. 1992), to conclude that a plaintiff was
not entitled to a zoning change when such a change
was made contingent on subjective findings about
the desirability of the proposed use. As the Sixth
Circuit stated,
neither Rubicon nor its potential
tenants possessed a “legitimate claim of
entitlement” in using the Glenwood site
for medical marijuana cultivation or
processing prior to when its injuries
were inflicted in May 2021.
Contrary to the Sixth Circuit’s conclusion, Rubicon
already had the zoning change approved by the City
which allowed using the Glenwood site for medical
-8-
marijuana cultivation and processing prior to May,
2021. Having ownership in the property and
possessing the CRA gave Rubicon its property rights
which the City could not deny or revoke without due
process. The rezoning was completed before any
tenant applied for a license, and was not made
contingent on any factor, as the City’s documents
reflected.
In its decision, the Sixth Circuit focused on Rubicon’s
tenants’ license applications to assert that Rubicon
did not have a property right. However, as the
record reflected, Rubicon’s tenants were able to
obtain approval of their license applications. While
the Sixth Circuit asserted that neither Rubicon nor
its tenants had a legitimate claim of entitlement to
the licenses because the City’s code did not provide
an “explicit guarantee” to the benefit, the Sixth
Circuit ignored its earlier statement of fact that
noted that “the city clerk is tasked with assessing
any permit application and ‘shall award a permit to
any applicant’ who provides a completed application,
receives the necessary approvals, and otherwise
satisfies the City’s many rules for medical marijuana
growing and processing facilities.”
The use of the word “shall” means that the award of
a permit is mandatory. Both Family Rootz and
Pharmaco had satisfied all the necessary
requirements to obtain a license, and could have
done so much earlier had Doyle processed the
applications when they were first submitted, instead
of insisting that he could not issue licenses because
Rubicon’s property was not zoned for such uses. The
-9-
Michigan state court recognized this when it issued
its decision.
II.
THE SIXTH CIRCUIT'S DECISION
CONFLICTS WITH WELL-ESTABLISHED
PRINCIPLES REGARDING CLAIMS FOR
DENIAL OF RIGHTS TO PROCEDURAL
DUE PROCESS
The Due Process Clause provides that a holder of a
property right or liberty interest may not be deprived
of that interest without the government affording the
interest holder adequate and proper procedural
rights - notice and an opportunity to be heard by an
impartial decision-maker. Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 313 (1950). This
Supreme Court has held that as a component of the
“impartial decision-maker” element of a procedural
due process claim, “the decision maker should state
the reasons for his determination and indicate the
evidence he relied on, though his statement need not
amount to a full opinion or even formal findings of
fact and conclusions of law.” Goldberg v. Kelly, 397
U.S. 254, 271 (1970) (internal citation omitted).
To prevail on a claim of procedural due process, a
plaintiff must establish three elements: (1) the
plaintiff has a life, liberty, or property interest
protected by the Due Process Clause of the
Fourteenth Amendment; (2) the plaintiff was
deprived of this protected interest within the
meaning of the Due Process Clause; and (3) the state
did not afford the plaintiff adequate procedural
rights prior to depriving the plaintiff of their
- 10 -
protected interest. Med Corp. v. City of Lima, 296
F.3d 404, 409 (6th Cir. 2002) (quoting Hahn v. Star
Bank, 190 F.3d 708, 716 (6th Cir. 1999), cert. denied,
529 U.S. 1020 (2000)).
"Due process is flexible and calls for such procedural
protection as the particular situation demands."
Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
Factors balanced to determine what process is due
are: 1) the private interest affected by the action; 2)
the risk of an erroneous deprivation of such interest
through the procedures used and the value of
additional procedural safeguards; and (3) the
government's interest involved, including fiscal and
administrative burdens. Mathews v. Eldridge, 424
U.S. 319 (1976).
Furthermore, procedural due process requires a state
actor to "provide a person with notice and an
opportunity to be heard before depriving that person
of a property or liberty interest." Warren v. City of
Athens, Ohio, 411 F.3d 697, 708 (6th Cir. 2005)
(citing Thompson v. Ashe, 250 F.3d 399, 407 (6th Cir.
2001)). "The fundamental requirement of due process
is the opportunity to be heard 'at a meaningful time
and in a meaningful manner.'" Armstrong v. Manzo,
380 U.S. 545, 552 (1965).
It is undisputed that Rubicon owned the Glenwood
Property. Upon the City Council’s approval of the
resolution and execution of the CRA, the Glenwood
Property was zoned C-3 Corridor Commercial and M1 Light Manufacturing with CR Conditional
Rezoning, which now allowed Rubicon to have
- 11 -
medical marijuana facilities on the Glenwood
Property. Thus, the first factor of a procedural due
process claim was easily met.
The record demonstrated that Doyle refused to
process the applications of Rubicon’s tenants because
he believed they were “illegal.” Despite Rubicon’s
property and liberty interests in using its land for
the purpose for which it had been re-zoned, Doyle’s
refusal to recognize that re-zoning and his actions
and statements to Rubicon’s tenants and developers
and investors deprived Rubicon of that property
interest. While the District Court found that Doyle’s
interpretation of the zoning ordinances was
“reasonable,” this was a question of fact which a jury
should have decided, not a determination to be made
on a motion for summary judgment. Further, the
District Court held that there was no deprivation
because the City never formally denied the
applications of Rubicon’s tenants.
This Supreme Court has not decided whether an
unreasonable delay in processing a license
application can constitute a denial for purposes of
due process. However, the Sixth Circuit has held
that unreasonable delays can constitute a denial.
See e.g., Byrd v. Haas, 17 F.4th 692, 698 (6th Cir.
2021); Overlook Mutual Homes, Inc. v. Spencer, 415
F. App’x 617, 622 (6th Cir. 2011); Americans United
for Separation of Church & State v. City of Grand
Rapids, 922 F.2d 303 (6th Cir. 1990). Other circuits
have come to the same conclusion. Env't Def. Fund,
Inc. v. Hardin, 428 F.2d 1093, 1099 (D.C. Cir. 1970)
(“[W]hen administrative inaction has precisely the
- 12 -
same impact on the rights of the parties as denial of
relief, an agency cannot preclude judicial review by
casting its decision in the form of inaction rather
than in the form of an order denying relief.”); Groome
Res. Ltd., L.L.C. v. Par. of Jefferson, 234 F.3d 192,
199 (5th Cir. 2000) (concluding that defendant's
failure to act for over three months on an application
for an accommodation constituted a constructive
denial of the accommodation request, and that the
issue therefore was ripe for review); Bhogaita v.
Altamonte Heights Condo. Ass'n, Inc., 765 F.3d 1277,
1286–87 (11th Cir. 2014) (finding six-month delay in
responding to request may amount to a constructive
denial); Austin v. Town of Farmington, 826 F.3d 622,
629 (2d Cir. 2016) (a constructive denial may occur
where a “request for accommodation is met with
indeterminate delay instead of outright denial”);
Friedman v. Fed. Aviation Admin., 841 F.3d 537, 541
(D.C. Cir. 2016)
In the case at bar, Rubicon’s tenants decided to
terminate their leases due to the delay and
uncertainty caused by respondents, as Doyle would
not process and approve the license applications of
Family Rootz and Pharmaco. Thus, while not a
formal denial, Doyle’s inaction and the City’s failure
to take action constituted a constructive denial of the
applications, which caused harm to Rubicon, as it
could not proceed with its development until the
license applications of its tenants had been acted
upon. Rubicon thus has met the second element of
the claim.
- 13 -
As to the third element of Rubicon’s claim, the facts
show that Rubicon was afforded no procedural rights
before being deprived of its property interests. The
City took no action to rein in Doyle or force him to
recognize the rezoning which it had approved. There
was no hearing at which Rubicon’s re-zoning was
revoked. There was no impartial decision maker.
Yet when the City Council on February 16, 2021
faced Rubicon’s assertion that it had been deprived of
its property interest in the Glenwood Property being
zoned for medical marijuana facilities, a deprivation
to which Doyle freely admitted at that same meeting,
the City Council and its administration took no
action to stop the deprivation. Rubicon was
compelled to file suit to obtain a declaratory
judgment on May 21, 2021 that the City must comply
with the CRA and that Rubicon’s property complied
with the zoning ordinance as to medical marijuana
facilities, an order with which respondents still did
not immediately comply. But by that time, almost a
year and a half after the execution of the CRA, the
irreversible damage to Rubicon had already been
done.
Rubicon thus had met the three elements of a
procedural due process claim – it had a property
interest of which it was deprived without being
afforded procedural rights. Since this Supreme
Court has not decided whether constructive delay in
a license application constitutes a denial, Rubicon
respectfully requests that this Supreme Court grant
its petition for writ of certiorari.
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III.
THE SIXTH CIRCUIT'S DECISION
CONFLICTS WITH WELL ESTABLISHED
PRINCIPLES REGARDING CLAIMS FOR
DENIAL OF RIGHTS TO SUBSTANTIVE
DUE PROCESS
The Fourteenth Amendment's Due Process Clause
guarantees that property and liberty interests may
not be taken away by a governmental entity without
due process. Ludwig v. Board of Trustees of Ferris
State Univ., 123 F.3d 404, 409 (6th Cir. 1997); Parate
v. Isibor, 868 F.2d 821 (6th Cir. 1989). Substantive
due process involves “the right not to be subject to
arbitrary or capricious action.” Buckeye Comm. Hope
Found. v. City of Cuyahoga Falls, 263 F.3d 627, 641
(6th Cir. 2001). The Due Process Clause bars
arbitrary, wrongful government actions “regardless
of the fairness of the procedures used to implement
them.” Zinermon v. Birch, 494 U.S. 113, 125 (1990)
(citing Daniels v. Williams, 474 U.S. 327, 331 (1986)).
The District Court ruled that Rubicon had a
protected property interest in the rents which its
tenants would pay under their leases. Respondents
deprived Rubicon of its property interests when they
refused to allow medical marijuana businesses on
that property because Doyle decided,
notwithstanding the evidence to the contrary, that
having medical marijuana businesses on the
Glenwood Property would be illegal. Respondents’
actions in refusing to recognize that medical
marijuana businesses could be located on the
Glenwood Property were arbitrary and capricious,
considering the City Council approved the CRA
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allowing such businesses to be located on that
property. Rubicon requested that the City take
action, but the City did nothing in the months
following the February 16, 2021 presentation.
Instead of taking action to rectify the situation, the
City sat on its hands, thereby evidencing that it too
was taking the position that medical marijuana
businesses could not be located on Rubicon’s
property.
The District Court held that the respondents’
conduct did not “shock the conscience.” First,
Rubicon submits that an elected official that
deliberately defied a rezoning agreement and a City
Council resolution, as well as a state court
declaratory judgment, should, in fact, shock the
conscience. Respondents’ wrongful actions were not
in pointing out deficiencies in the applications of
Rubicon’s tenants; it was everything that Doyle
himself set forth in his presentation to the City –
that there could not be any medical marijuana
businesses on Rubicon’s property. This flagrant
flouting of the CRA by the City should shock the
conscience.
Second, the Sixth Circuit in Pearson v. City of Grand
Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992),
recognized that “applying the ‘shock the conscience’
test in an area other than excessive force is
problematic.” Other circuits have questioned
applying the “shock the conscience” test outside of
law enforcement matters. See, e.g., Khan v.
Gallitano, 180 F.3d 829, 836 (7th Cir.1999);
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Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d
365, 372 (9th Cir.1998).
In County of Sacramento v. Lewis, 523 U.S. 833
(1998), this Supreme Court noted the need for
flexibility in what is considered “conscience shocking”
regarding substantive due process claims, defining
such behavior as “conduct intended to injure in some
way unjustifiable by any government interest is the
sort of official action most likely to rise to the
conscience-shocking level. See Daniels v. Williams,
474 U.S., at 331, 106 S.Ct., at 665 (‘Historically, this
guarantee of due process has been applied to
deliberate decisions of government officials to deprive
a person of life, liberty, or property’ (emphasis in
original)).”
That analysis should be applied to this case. While
the City claimed that the delays were caused by the
deficiencies in the applications of Pharmaco and
Family Rootz, the evidence demonstrated that Doyle
sat on those applications for almost a year before
issuing any notice that the applications were
allegedly deficient. The City offered no explanation
why it took so long between the time Rubicon’s
tenants submitted their applications and the time
Doyle sent a letter asserting deficiencies in those
applications. However, Doyle himself explained why
there was a delay, claiming that he could not issue
licenses because the property was not properly
zoned, when in fact he knew it was properly zoned.
Doyle’s persistent refusal to issue permits despite the
clear language in the CRA, followed by continued
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delays even after the state court ordered him to issue
the permits, demonstrates arbitrary action that goes
beyond mere error. The City had no interest in
denying Rubicon from having medical marijuana
facilities on its property, since the City approved
such uses for the Glenwood property. The deliberate
obstruction of a development project that had
received formal approval through a CRA with the
City, causing its ultimate collapse, is precisely the
type of arbitrary government action against which
substantive due process protects.
Rubicon submits that the District Court and the
Sixth Circuit applied the “shock the conscience”
standard too rigidly, since zoning, land use and
licensing issues rarely, if ever, involve the sort of
egregious conduct that is seen in cases involving law
enforcement matters. In some respects, the actions
of Doyle and the City are similar to the death of Eric
Garner in New York City in 2014, who was slowly
strangled by a police officer applying a chokehold, a
neck restraint banned by the New York Police
Department, while others stood by and did nothing to
stop it. It is the deliberate indifference of the City
that caused Rubicon to lose its property. Therefore,
Rubicon respectfully requests that this Supreme
Court grant its petition for writ of certiorari.
IV.
THE SIXTH CIRCUIT'S DECISION
CONFLICTS WITH WELL-ESTABLISHED
PRINCIPLES REGARDING TAKINGS
CLAIMS
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The Takings Clause, which applies to the individual
states via the Fourteenth Amendment, provides that
the government may not take citizens’ private
property without just compensation. A regulatory
taking, such as the one implicated here, “occurs
when the Government prevents a [property owner]
from making a particular use of the property that
otherwise would be permissible.” McKay v. United
States, 199 F.3d 1376, 1382 (Fed. Cir. 1999) (citing
Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1014 (1992)).
This Supreme Court has developed two tests to
determine whether a regulatory taking has occurred.
The first requires courts to assess whether a
regulation “denies all economically beneficial or
productive use” of the plaintiff's land. Lucas, 505
U.S. at 1015 (emphasis added) (citations omitted).
The second requires courts to examine: (1) the
“economic impact of the regulation on the
[plaintiff][;]” (2) “the extent to which the regulation
has interfered with [the plaintiff's] distinct
investment-backed expectations[;]” and (3) “the
character of the governmental action”—for example,
“[a] ‘taking’ may more readily be found when the
interference with property can be characterized as a
physical invasion by government than when
interference arises from some public program
adjusting the benefits and burdens of economic life to
promote the common good.” Penn Cent. Transp. Co.
v. City of New York, 438 U.S. 104, 124 (1978)
(internal citation omitted).
- 19 -
The Sixth Circuit purportedly relied on this Supreme
Court’s decision in Agins v. City of Tiburon, 447 U.S.
255 (1980) to state that governmental decisionmaking takes time, so that delays in governmental
decision-making need to be extraordinary. However,
the footnote relied on by the Sixth Circuit says
nothing of the kind. Footnote 9 states:
“Appellants also claim that the city's
precondemnation activities constitute a
taking. The State Supreme Court
correctly rejected the contention that
the municipality's good-faith planning
activities, which did not result in
successful prosecution of an eminent
domain claim, so burdened the
appellants' enjoyment of their property
as to constitute a taking. Even if the
appellants' ability to sell their property
was limited during the pendency of the
condemnation proceeding, the
appellants were free to sell or develop
their property when the proceedings
ended. Mere fluctuations in value
during the process of governmental
decisionmaking, absent extraordinary
delay, are ‘incidents of ownership. They
cannot be considered as a ‘taking’ in
the constitutional sense.’” [citations
omitted]
There is nothing in Footnote 9 that states a delay
must be extraordinary in order to constitute a
taking. The Sixth Circuit then cited Tahoe-Sierra
Pres. Council, Inc. v. Tahoe Reg’l Plan Agency, 535
- 20 -
U.S. 302 (2002) as further support that delays in
governmental decision-making need to be
extraordinary in order to be compensable. That was
not the holding in Tahoe. Tahoe recognized that
“’normal delays in obtaining building permits,
changes in zoning ordinances, variances, and the
like,’ as well as to orders temporarily prohibiting
access to crime scenes, businesses that violate health
codes, fire-damaged buildings, or other areas that we
cannot now foresee” are not considered a taking. Id.
at 335.
There is no decision from this Supreme Court that
held that a delay in governmental decision-making
must be extraordinary in order to constitute a
taking. The Sixth Circuit cited Wyatt v. United
States, 271 F.3d 1090, 1098 (Fed. Cir. 2001), which
stated that this Supreme Court has condoned delays
up to “approximately eight years.” However, review
of the history behind this purported legal conclusion
demonstrates that the Sixth Circuit distorted what
this Supreme Court’s ruling truly way. The Wyatt
Court cited Kawaoka v. City of Arroyo Grande, 17
F.3d 1227, 1233 (9th Cir. 1994), which in turn cited
Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 n.5
(9th Cir.), amended, 830 F.2d 968 (9th Cir. 1987),
which in turn cited Williamson County Reg'l
Planning Comm'n v. Hamilton Bank of Johnson City,
473 U.S. 172 (1985). But the delay by the City in the
case at bar is not the type of “delay” to which was
before this Supreme Court in Williamson County.
The Kinzli Court at footnote 5 states as follows:
In this case, an application by the
Kinzlis would not be futile under the
- 21 -
Norco “delay” analysis, since there is no
showing that an application would take
an “excessive” amount of time. An
excessive amount of time would have to
be considerable, since the Supreme
Court has held a claim to be unripe even
where the application process covering a
development project required
approximately eight years. See
Hamilton Bank, 105 S.Ct. at 3112–14.
In Williamson County, a landowner wanted to
develop a tract of land as a residential subdivision.
Its predecessor submitted a preliminary plat in 1973,
which was approved. The developer then constructed
a golf course, roads and utility lines, and some
sections had been given final plat approval.
However, the county changed its ordinance in 1977,
but continued to apply the ordinance in effect in 1973
to the project. In January, 1980, the county
requested the developer submit a revised plat before
obtaining final approval for the remainder of the
development. The county disapproved the plat, but
on appeal to the Zoning Board of Appeals (“ZBA”),
the ZBA decided that the zoning ordinance in effect
in 1973 should apply. However, by November, 1980,
Hamilton Bank acquired the remaining undeveloped
property through foreclosure, and in June, 1981, the
county denied the final plat based on the amended
zoning ordinance.
This Supreme Court held that the landowner’s claim
was not ripe, as it never sought a variance from the
ZBA, 473 U.S. at 188-94, and because the landowner
did not seek compensation through the procedures
- 22 -
that the state provided, Id. at 194-97. Thus, this
Supreme Court’s holding in Williamson County was
not that a delay in governmental decision-making
must be extraordinary in order to constitute a
taking, or that eight years was not extraordinary,
but that the landowner’s Takings claim was not ripe
for judicial review even after eight years from the
initial submittal of the preliminary plat.
In this case, Pharmaco submitted its application on
August 8, 2019, and Doyle did not issue his
conditional approval letter until June 3, 2021. The
delay in this case was 20 months, 26 days, simply to
process an application. The District Court excused
the delay as “sloppy administration,” while the Sixth
Circuit considered it reasonable. Neither description
is accurate, as the record reflects that Doyle
intentionally did not process the applications. The
City never stated any reason why Doyle took almost
a year to send his first deficiency letter to Pharmaco,
or why it took another five months before he sent a
second deficiency letter to Pharmaco. Thus, even if
this Supreme Court requires a delay in governmental
decision-making to be extraordinary in order to state
a takings claim, Rubicon submits that it was a
question of fact whether a delay of almost 21 months
to have “conditional” approval of a license application
is an extraordinary delay, which was for a jury to
decide, not the District Court on a summary
judgment motion.
Accordingly, Rubicon respectfully requests that this
Supreme Court grant its petition for writ of certiorari
- 23 -
so that these important questions of law can be ruled
upon.
V.
THE SIXTH CIRCUIT'S DECISION
CONFLICTS WITH WELL-ESTABLISHED
PRINCIPLES REGARDING FIRST
AMENDMENT RETALIATION CLAIMS
As noted in the Statement of Facts, after Rubicon
had filed the state court lawsuit, SK Properties
retained Browne Design, a company owned by
Joseph Brown, who is also Rubicon’s principal, to
provide design and other services for a project it was
developing in the City. SK Properties’ principal, Tzvi
Koslowe, met with Pontiac’s then-Mayor Tim
Greimel, Councilwoman Melanie Rutherford and
then-City Planning Manager Vern Gustafsson to
discuss the project. Mayor Greimel told Koslowe
that if SK Properties wanted to obtain approval for
its development, then it needed to terminate its
relationship with Browne Design, because Brown
had sued the City. Koslowe then told Brown that he
had to terminate his agreement with Browne Design
because of the mayor’s statement.
The Sixth Circuit ruled that Brown and Browne
Design could not establish a First Amendment
retaliation claim because the Mayor was not a final
decision-maker, citing this Supreme Court’s decision
in Pembaur v. City of Cincinnati, 475 U.S. 469, 481
(1986). Yet, according to the City’s ordinances, the
Mayor “shall have the primary responsibility for
overseeing the day-to-day administrative and
- 24 -
executive functions of the City.” Pontiac (MI)
Municipal Ordinance §2-71.
Further complicating matters is that the Mayor
caused a third-party to take the retaliatory action
against Brown and Browne Design. The facts in this
case make clear that Koslowe believed that the
Mayor, as the head of the City, had the apparent
authority to follow through on his threat to deny
approval of SK’s development in the City unless
Koslowe terminated his business relationship with
Brown. Thus, the question is whether the City can
escape liability where its head officer, along with
other City officials, induces a third-party to take a
retaliatory action against a party who exercised his
First Amendment right to seek redress of grievances
by suing the City?
Agency law provides some guidance to answer this
question. Almost 150 years ago, this Supreme Court
stated with respect to an agent:
The law is equally plain, that special
instructions limiting the authority of a
general agent, whose powers would
otherwise be coextensive with the
business intrusted to him, must be
communicated to the party with whom
he deals, or the principal will be bound
to the same extent as though such
special instructions were not given.
Were the law otherwise, the door would
be open to the commission of gross
- 25 -
frauds. Good faith requires that the
principal should be held by the acts of
one whom he has publicly clothed with
apparent authority to bind him.
S. Life Ins. Co. v. McCain, 96 U.S. 84, 86 (1877).
Over 100 years later, this Supreme Court restated
the doctrine that a principal is liable for the acts of
its agent, even when the agent commits fraud, as
long as the agent had apparent authority:
[A] principal is liable for an agent's
fraud though the agent acts solely to
benefit himself, if the agent acts with
apparent authority. Similarly, a
principal is liable for an agent's
misrepresentations that cause
pecuniary loss to a third party, when
the agent acts within the scope of his
apparent authority. Also, if an agent is
guilty of defamation, the principal is
liable so long as the agent was
apparently authorized to make the
defamatory statement. Finally, a
principal is responsible if an agent
acting with apparent authority
tortiously injures the business relations
of a third person.
Am. Soc. of Mech. Eng'rs, Inc. v. Hydrolevel Corp.,
456 U.S. 556, 565–66 (1982) (citations omitted).
Since Pembaur, this Supreme Court has grappled
with the question of when municipal liability exists
for the acts of high officials. For example, Justice
- 26 -
Stevens in his dissent in City of St. Louis v.
Praprotnik, 485 U.S. 112 (1988), noted the difference
between a high official as opposed to a lower level
official:
But when one remembers that the real
question in cases such as this is not
“what constitutes city policy?” but
rather “when should a city be liable for
the acts of its agents?”, the inclusion of
single acts by high officials makes
sense, for those acts bind a municipality
in a way that the misdeeds of low
officials do not.
Every act of a high official constitutes a
kind of “statement” about how similar
decisions will be carried out; the
assumption is that the same decision
would have been made, and would again
be made, across a class of cases. Lower
officials do not control others in the
same way. Since their actions do not
dictate the responses of various
subordinates, those actions lack the
potential of controlling governmental
decisionmaking; they are not perceived
as the actions of the city itself.
Id. at 171.
In the case at bar, while the Mayor did not have
actual final decision-making authority whether SK’s
development would be approved, the fact that he
brought with him to the meeting with Koslowe a
- 27 -
member of the City Council and the then-City
Planning Manager was meant to give Koslowe the
appearance that the Mayor was indeed acting on
behalf of the City. Neither the Mayor, the City
Council member nor the Planning Manager
expressed to Koslowe that the Mayor had no
authority to make the statements he was making.
Instead, their silence gave credence to the deception
that the Mayor was the person vested with the
authority to deny SK’s development if Koslowe did
not give in to the Mayor’s demands that he end his
business relationship with Brown and Browne
Design.
The decision of the Sixth Circuit gave the City a free
pass where three of its high officials engaged in a
deliberate ruse to cause a third-party to terminate a
business relationship with Brown and Browne
Design, all because Brown’s other business entity,
Rubicon, sued the City in an effort to have its
tenants’ license applications approved. Such a ruling
gives other municipalities a roadmap on how to avoid
liability when they want to violate someone’s
constitutional rights, by cloaking a high official with
apparent authority to act on behalf of the City when
in fact the high official had no such authority.
Therefore, appellants submit that this Supreme
Court should grant their petition for writ of
certiorari, and hold the City liable for the deceptive
acts of its high officials.
- 28 -
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
CINDY RHODES VICTOR
The Victor Firm, PLLC
29777 Telegraph Road, Suite 2410
Southfield, Michigan 48034
(248) 905-3990
cvictor@victorfirm.com
Attorneys for Petitioners
Rubicon Real Estate Holdings, LLC
Browne Design Consultants, LLC
Joseph Brown
September 11, 2026
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.