New Legal Developments in Market Vendor's Suit Against City

Sunday, July 23, 2017, 5:58 pm
By: 
Ann Nichols

There are new developments in a lawsuit filed against The City of East Lansing by Country Mills Farms (CM) and its owner, Stephen Tennes. The suit was filed in federal district court in May, and last week the defendant (the City of East Lansing) filed both a Motion to Dismiss and a Response in Opposition to Plaintiff’s Motion for Preliminary Injunction. Today, we explain the key points in the lawsuit as well as where the matter stands in terms of petitions to the court.

The background

As we reported previously, the suit arises over the City’s refusal to allow CM to return as a vendor to the East Lansing Farmers’ Market (ELFM). Both parties agree that CM had participated as an ELFM vendor from 2010 through 2016, and that in 2016 Stephen Tennes posted on Facebook that because of their religious beliefs they could not perform same-sex marriages at their Eaton County orchard in Charlotte, Michigan. The City has had a Human Relations Ordinance since 1972, which prohibits discrimination against (among others) members of the LGBT community.

Both parties also agree that, for the first time in years, the City did not invite CM to return as a vendor for the 2017 season, and that when the business made an application to participate, the City denied their application on the basis that the City had recently adopted a policy for ELFM vendors that incorporated the anti-discrimination language of the Human Relations Ordinance. According to a letter sent from City staff to CM, their public statement of refusal to perform same-sex marriages at their farm in Charlotte violated the Market’s new policy.

CM’s federal lawsuit is based on several alleged unconstitutional actions on the part of the City, specifically alleged violations of Freedom of Speech, Freedom of Press, Unconstitutional Conditions, Free Exercise of Religion, the Establishment Clause, Equal Protection, and Due Process. CM also alleges that the City has violated the Michigan Home Rule City Act.

What Country Mill is asking for

In their Complaint, CM asks that the court grant “preliminary and injunctive relief to stop Defendant and any person acting in concert with them from enforcing the Policy to bar Plaintiffs from participating as a vendor at the East Lansing Farmer’s Market based on the Plaintiff’s public statements or the way Plaintiffs run Country Mills, which is located outside of East Lansing, Michigan.”

Injunctive relief means that instead of money to compensate for alleged damage, the defendant is ordered by the court to do or to stop doing something. A “preliminary injunction,” such as that requested in this case, is an order made by the court before the case is heard on its merits. In this case, CM is asking the court to order that they be allowed to sell at ELFM immediately, pending the outcome of the suit.

CM also asks in its initial pleadings that the court declare that the City’s Policy violates Michigan’s Home Rule City Act as well as CM’s federal constitutional rights under the First and Fourteenth Amendments. They have requested only nominal ($1.00) money damages but asked that their costs and attorney fees be paid by the City.

The City has asked for dismissal of the suit

The City, meanwhile, has filed a Motion to Dismiss. A Motion to Dismiss is just what it sounds like—in this case, the City asking the Court to simply make the lawsuit go away. The City has requested that the case be dismissed “with prejudice,” which means the matter may not be re-litigated.

The City’s Motion to Dismiss is based on a federal rule of civil procedure which requires that a case be dismissed “for failure to state a claim.” Dismissal would be legally unwarranted if the court finds that CM has alleged facts which, if they are true, could reveal evidence of illegal conduct. The standard for keeping the suit going is fairly low; the court need only find that it’s “possible” that the City has violated the law, not that it’s “probable.”

The legal arguments

In simplest terms, CM is arguing in its Complaint that the City has violated their rights, and in fact created a new regulation targeting their business, solely because Tennes expressed his religious views on Facebook and refuses to allow same-sex marriages to take place at his Charlotte orchard. The City, in their Motion to Dismiss, argues that the issue is not what Tennes says or believes, but his conduct. The City’s attorneys say that the City violates none of Tennes’s protected rights by refusing to enter into a contract with a business that violates a City Ordinance and Policy.

Freedom of Speech and Free Press

CM says that their right to Free Speech under the First Amendment was violated because it violates their right to speak and publish about their religious beliefs. They claim that the City’s vendor Policy is “content-based” and “viewpoint discriminatory,” that the City supports promotion of LGBT issues while punishing CM for their belief in “Biblical marriage,” that it is “overbroad” because of the City’s failure to adequately define the meaning of “business practices” in the policy, and that it is “retaliatory” because it punishes speech protected by the First Amendment.

They also assert that the City has violated their right to Free Press because, following the publication of their religious beliefs on Facebook, the City created a policy to ban them from expressing their religious beliefs.

The City answers these allegations on the basis that the Policy seeks to regulate not speech but conduct, and that the triggering event was not Tennes’s Facebook post but the fact that it stated the intent to engage in conduct prohibited by the Policy (refusing to marry same-sex couples at the orchard.)

Unconstitutional Conditions

In its “Unconstitutional Conditions Claims” argument, CM asserts that the City has unconstitutionally conditioned receipt of a benefit (participation in ELFM) on relinquishment of their constitutional rights.

The City’s Motion to Dismiss states that there is no basis for such a claim because being an ELFM vendor is not a “benefit” but a “commercial transaction.”

Free Exercise of Religion and The Establishment Clause

The Establishment Clause and Free Exercise Clause of the First Amendment state that a governmental body can’t legally require adherence to any religion or prohibit citizens from the free exercise of the religions of their choosing.

The Establishment Clause is violated by the City, according to CM, because there is “no compelling state interest” for the Policy banning discrimination against LGBT people, and says that it “lacks secular purpose.” (In other words, according to CM, the Policy was created only to target religious beliefs).

The City responds that under well-established precedent, government action will be upheld if it has a secular legislative purpose, and that since the City’s vendor Policy makes no reference to religion or religious beliefs, it has only a secular purpose which is to redress and prevent discrimination. The City says it doesn’t care what motivates the discriminatory action; it only cares that a vendor engages in discriminatory action prohibited by the City’s civil rights ordinance.

CM further argues that the City has violated the Free Exercise of Religion Clause because, under the Constitution, a business may express religious beliefs “through a closely-held, for-profit business,” and that the City’s vendor Policy is not neutrally applied.

The City responds that the Supreme Court has rejected claims that Free Exercise is violated if the law in question is “neutral and generally applicable without regard to religion” and maintains that the City’s Policy does not single out religion, but would apply to any vendor who discriminated for any reason, religious or secular. (The City says that atheists and agnostics would be treated the same way under the policy.)

The City also cites case law that draws a distinction between belief and conduct; the Supreme Court held that freedom of individual belief is “absolute” while freedom of individual conduct is “not absolute.” The City adds that CM hasn’t argued that selling produce at ELFM relates to the exercise of their religion, and that excluding them from the Market has “exactly zero effect” on that right.

Finally, the City supplies Supreme Court decisions, including the 1983 Bob Jones University case that held that “sincerely held religious beliefs” (in that case, religion-based racial discrimination) were not constitutionally protected against enforcement of anti-discrimination laws.

The Fourteenth Amendment

CM claims two violations of the Fourteenth Amendment by the City. The first is that the Due Process Clause requires similarly situated individuals to be treated the same. CM says that the City has allowed at least one other ELFM vendor to “promote LGBT issues” while punishing CM for expressing their views on same-sex marriage. It also alleges that the Due Process Clause is implicated because the Policy’s language is “vague,” which means that decisions of whether or not a vendor has broken the rules “turn on the whim” of City officials.

According to the City’s Motion, CM’s Due Process claim fails because is not “similarly situated” to other vendors because no other vendor has expressed similar beliefs or intentions, that CM has never been prohibited for expressing its views, and that none of their fundamental rights were threatened. The Due Process claim, the City says, fails, because there is an available claim under the First Amendment which is also invalid.

Home Rule City Act

Finally, CM argues that the City has violated Michigan’s Home Rule City Act because the Charlotte marriage-hosting business is located 22 miles outside of East Lansing. CM says the City has no right to regulate the plaintiff’s speech or activities in another municipality.

According to the City, even if CM is correct that the City is not legally permitted to enforce its ordinances outside City boundaries, their argument still fails because there is no law to support such a claim. The City says it has the right to place conditions on its “commercial endeavours” and the contract with an ELFM vendor is such an endeavor.

The Preliminary Injunction

As noted above, CM has requested that the court take immediate action to restore them to ELFM, and the City has filed a response requesting that the court refuse to take such action. The relevant standard in federal district court is that a preliminary injunction should be granted only if there is “a strong likelihood of [a lawsuit’s] success on the merits” if the case proceeds to a conclusion.

Because of the obvious issues with ordering a party to act (or cease to act) before a legal decision establishes their obligation to do so, the standard of proving the necessity for preliminary relief is very high. In other words, it’s unlikely the Court will grant this preliminary injunction and give CM a space in the farmers’ market this summer.

The City, in its Motion to Dismiss, reiterates their position that CM has failed to state a legitimate claim on any count of their Complaint. The City has requested oral argument before the judge in the case, The Honorable Paul L. Maloney, and the likely next development will be either that Judge Maloney grants the City’s request to deny a preliminary injunction, or that he sets a date for the parties to argue their cases before him.

 

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