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.

- 14 -

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

- 15 -

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);

- 16 -

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

- 17 -

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

- 18 -

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

- 29 -

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.

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