American Freedom Defense Initiative et al v. Suburban Mobility Authority For Regional Transportation (SMART) et al

Filing 70

RESPONSE to 68 MOTION for Leave to File Supplemental Brief, 57 MOTION for Summary Judgment and Supplemental Brief of Defendants, Gibbons, Hertel and Suburban Mobility Authority for Regional Transportation filed by Beth Gibbons, John Hertel, Suburban Mobility Authority For Regional Transportation (SMART). (Hildebrandt, Christian)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN FREEDOM DEFENSE
INITIATIVE, PAMELA GELLER, and
ROBERT SPENCER,
Plaintiffs,
Case 2:10-cv-12134
HON. DENISE PAGE HOOD

v.
SUBURBAN MOBILITY AUTHORITY
FOR REGIONAL TRANSPORTATION
(“SMART”); GARY L. HENDRICKSON,
Individually and in his official capacity as
Chief Executive of SMART, JOHN HERTEL,
Individually and in his official capacity as
General Manager of SMART and BETH
GIBBONS, individually and in her official
Capacity as Marketing Program Manager
Of SMART,

RESPONSE TO PLAINTIFFS’
MOTION TO FILE SUPPLEMENTAL
BRIEF AND SUPPLEMENTAL
BRIEF OF DEFENDANTS, SMART,
HERTEL AND GIBBONS

Defendants.
Robert J. Muise (P62849)
David Yerushalmi, Esq. (Arz. 009616; DC
978179, Cal. 132011; NY 4632568)
Counsel for Plaintiffs
3000 Green Rd., #131098
Ann Arbor, MI 48113
[phone]
[e-mail]
[e-mail]

Avery E. Gordon (P41194)
Co-Counsel for Defendants SMART, Hertel
and Gibbons
535 Griswold Street, Suite 600
Detroit, MI 48226
[phone]
[e-mail]

Erin Elizabeth Mersino (P70886)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[phone] [e-mail]

John J. Lynch (P16887)
Christian E. Hildebrandt (P46989)
Co-Counsel for Defendants SMART, Hertel
and Gibbons
1450 W. Long Lake Road, Suite 100
Troy, MI 48098
[phone]
[e-mail]
[e-mail]

TABLE OF CONTENTS

Table of Authorities ............................................................................................... iii
Introduction ............................................................................................................. 1
Counter-Statement of Facts..................................................................................... 1
Argument................................................................................................................. 2

ii

TABLE OF AUTHORITIES
Cases
Aide v Taylor, 7 N.W.2d 757, 759 (1943) ................................................................. 4
Amer. Freedom Def. Init. v Suburban Mobility Authority for Regional
Transportation, 698 F.3d 885 (2012) ....................................................................5, 7
Barnes v Owens-Corning Fiberglas Corp., 201 F.3d 815 (6th Cir. 2000) ................. 7
Best Canvas Prod. & Supplies, Inc. v Ploof Truck Lines, Inc., 713 F.2d 618 (11th
Cir. 1983) ...............................................................................................................5, 8
Brown v. Tennessee Gas Pipeline Co., 623 F.2d 450 (6th Cir.1980) ........................ 7
Ferguson v Neighborhood Housing Services, 780 F.2d 549 (6th Cir. 1986) ............. 7
Glick v. White Motor Co., 458 F.2d 1287 (3d Cir.1972) ........................................... 7
Hill v Federal Trade Comm’n, 124 F.2d 104 (5th Cir. 1941) .................................... 5
Kurek v Pleasure Driveway & Park Dist., 557 F.2d 580 (7th Cir. 1977), vacated by,
435 U.S. 992 (1978) ...................................................................................................4
New Amsterdam Casualty Co. v. Waller, 323 F.2d 20 (4th Cir.1963), cert. denied,
376 U.S. 963, 84 S.Ct. 1124, 11 L.Ed.2d 981 (1964)................................................ 7
Pennsylvania R. Co. v Girard, 210 F.2d 437 (6th Cir. 1954) ..................................... 7
Seven-Up Bottling Co. v. Seven-Up Co., 420 F. Supp. 1246 (E.D.Mo.1976), aff'd,
561 F.2d 1275 (8th Cir.1977) ....................................................................................7
Court Rules
Fed. R. Evid. 801(d)(2)(D) ........................................................................................2

Other Authorities
2 MCCORMICK ON EVIDENCE § 254 ........................................................................... 4
9 JOHN H. WIGMORE, WIGMORE ON EVIDENCE § 2590 ..........................................4, 5
14 A.L.R. 65-72 .........................................................................................................6

iii

INTRODUCTION
As an initial consideration, Defendants vehemently deny that any
misrepresentations were made by SMART relating to Ms. Gibbons’ testimony or
any other evidence in this case. It would appear that Plaintiffs’ only motive in
raising the issue and ignoring the evidence presented is to insert a red herring
through the brief submitted and to keep the issue of whether their advertisement is
political alive. Plaintiffs’ brief fails to do so.
The Plaintiffs have petitioned this Court for leave to supplement briefing to
tell the Court what they have already presented, and with what Defendants
disagree: That Beth Gibbons was THE “decision-maker” with respect to the
advertisement presented by Plaintiffs and that statements she made in testimony in
this Court effect some type of admission against SMART that Plaintiff can rely
upon. The issue is not material to this Court’s decision.
COUNTER-STATEMENT OF FACTS
Beth Gibbons, at the time that this advertisement was submitted, was the
Marketing Program Manager for SMART. In her position, she answered directly
to Elizabeth Dryden, who was then the Director of Marketing for SMART.
Although, consistent with her testimony, Ms. Gibbons did “apply” the guidelines
on occasion, and “could” make a decision on certain types of advertisements, Ms.
Gibbons never assumed or had the authority to deny an advertisement on the basis
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of political content or content that held a person or group up to scorn or ridicule.
As a practical matter, Ms. Gibbons always consulted with her direct supervisor,
Ms. Dryden, and with legal counsel for these important decisions and allowed the
general manager to make the decisions.
Further, it has never been contested that Ms. Gibbons did not actually make
the decision with respect to this proposed advertisement. The decision was made
by the General Manager, John Hertel, after consulting with the Marketing
Department and the Office of the General Counsel.
Plaintiffs seek to make Ms. Gibbons THE “decision-maker” with respect to
the advertising policy. Plaintiffs have confused the facts to such an extent that the
Court appeared to focus, to some degree, on the issue at oral argument of the cross
motions for summary judgment. Whether she was the “decision-maker” or not is
immaterial to the issue for which Plaintiffs seek to establish the point, as shown
below.
ARGUMENT
Plaintiffs cite to but one rule (by reference) and no case law. Plaintiffs rely
upon Fed. R. Evid. 801(d)(2)(D)1 for their argument that a statement by Ms.
Gibbons:

1

Although Plaintiffs cite to their three separate briefs filed on the cross-motions for
summary judgment, the only reference or authority contained in the briefs on this
point is Fed. R. Evid. 801. Plaintiff’s supplemental brief, at p. 7, note 2.
2

(D) was made by the party’s agent or employee on a matter within the
scope of that relationship and while it existed. . . .
Fed. R. Evid. 801 is a rule of evidence concerning only the admissibility of
evidence that does not by itself direct the Court or the parties to a particular
decision. It does not direct the fact finder as to how the statement is to be weighed
or considered. The rule itself states only that “[t]he statement must be considered
but does not establish . . . the existence or scope of the relationship under (D).”
As an evidentiary admission, the statement does not establish any point in
contention, and, at best, is only to be admitted into evidence and considered with
the other evidence in the case.
Defendants have not challenged the admissibility of this statement made by
Ms. Gibbons in open court. Defendants have not taken the position that the
statement is inadmissible. As a result, applying the factors of Fed. R. Evid. 801 to
the statement accomplishes no purpose whatsoever. The “issue” raised in this
motion is irrelevant and immaterial to the determination of the cross-motions for
summary judgment.
Plaintiffs’ brief appears to criticize Defendants simply for taking a position
that disagrees with their interpretation of Ms. Gibbons’ statement. Defendants
believe that Plaintiffs are interpreting Ms. Gibbons’ testimony incorrectly and have
argued so in their prior briefing. See, Defendants’ Reply Brief in Support of
Motion for Summary Judgment [Docket # 66], at p. 4. However, even if Ms.
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Gibbons’ statements could be attributed to SMART as an admission, the statement
is not binding on the Defendants or the Court. Evidentiary admissions can be
appropriately contradicted by other evidence and statements in the case.
It is important to distinguish between evidentiary admissions and judicial
admissions. An evidentiary admission, such as a statement that is admitted under a
Rule of Evidence and sought to be attributed to another party, is merely considered
another item of evidence and is not binding or conclusive on the other party or the
trier of fact. 9 JOHN H. WIGMORE, WIGMORE ON EVIDENCE § 2590 at p. 823. Like
any other evidence, evidentiary admissions are subject to contradiction or
explanation. 2 MCCORMICK ON EVIDENCE § 254 at p. 142; Aide v Taylor, 7
N.W.2d 757, 759 (1943).
A judicial admission, on the other hand, is conclusive. A judicial admission
is “a formal act, done in the course of judicial proceedings, which waives or
dispenses with the production of evidence, by conceding for the purposes of
litigation that the proposition of fact alleged by the opponent is true.” MCCORMICK
§ 254 at p. 449. They are formal concessions in the pleadings in the case or
stipulations by a party that have the effect of withdrawing the fact from issue and
dispensing wholly with the need to prove the admitted fact. Kurek v Pleasure
Driveway & Park Dist., 557 F.2d 580, 595 n. 13 (7th Cir. 1977), vacated by, 435
U.S. 992 (1978). A fact that is judicially admitted is no longer a fact in the case
4

and has been conceded. 9 WIGMORE § 2590 at pp. 822-23. Not only are facts
judicially admitted established beyond the need to prove them, but are beyond the
power of evidence to controvert them. Best Canvas Prod. & Supplies, Inc. v Ploof
Truck Lines, Inc., 713 F.2d 618, 621 (11th Cir. 1983) (quoting Hill v Federal Trade
Comm’n, 124 F.2d 104, 106 (5th Cir. 1941)).
The Defendants have adequately and completely explained Ms. Gibbons’
testimony at the preliminary injunction hearing as her personal opinion, and not as
a statement binding on SMART. See, Defendants’ Reply Brief in Support of
Motion for Summary Judgment [Docket # 66], at p. 4; Amer. Freedom Def. Init. v
Suburban Mobility Authority for Regional Transportation (SMART), 698 F.3d 885,
896 (2012). Further, her testimony at deposition on behalf of SMART refutes her
statement that she did not see the ad as overtly political. Indeed, her testimony at
the very same preliminary injunction hearing set forth the Authority’s position and
refuted her personal opinion. See, Transcript of Preliminary Injunction Motion
hearing, [Docket #34], at p. 17. Because her statement represented, at best, an
evidentiary admission, the Court could normally consider this other evidence to
weigh against her statement accordingly.
However, the Court should not consider this testimony at all as it is
irrelevant and immaterial to the issues that remain before the Court. The purpose
for which Plaintiffs propose the statement is to address whether the proposed
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advertisement is political. Whether the advertisement is a political ad is already
determined by Plaintiffs’ own judicial admissions in their pleadings. As set forth
in the Defendants’ Motion for Summary Judgment, Plaintiffs’ Complaint contains
the following paragraphs:
1.
This case seeks to protect and vindicate fundamental
constitutional rights. It is a civil rights action brought under the First
and Fourteenth Amendments to the United States Constitution and 42
USC §1983 challenge Plaintiffs’ restriction on Plaintiffs’ right to
engage in political and religious speech in a public forum.
*****
8.
FDI promotes its political objectives by, inter alia, sponsoring
anti-Jihad bus and billboard campaigns, which includes seeking
advertising space on SMART vehicles.
9.
Plaintiff Pamela Geller is the Executive Director of FDI and
she engages in political and religious speech through FDI’s
activities, including FDI’s anti-Jihad bus and billboard campaigns.
*****
21. On or about May 24, 2010, Defendants denied Plaintiffs’
request and refused to display Plaintiffs’ advertisement. Defendant[s]
denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a
public forum to express their political and religious message, based
on the content and viewpoint expressed by Plaintiffs’ message.
*****
23. By reason of the aforementioned Free Speech Restriction
created, adopted, and enforced under color of state law, Plaintiffs have
deprived Plaintiffs of their right to engage in political and religious
speech in a public forum. . . .
(Docket #57, Exhibit I [57-10], Plaintiffs’ Complaint, filed May 27, 2010)
(emphasis added).

6

As the case law cited above establishes, factual assertions in pleadings and
pretrial orders are judicial admissions conclusively binding on the party who
made them. Barnes v Owens-Corning Fiberglas Corp., 201 F.3d 815 (6th Cir.
2000). See also, 14 A.L.R. 65-72 and cases cited therein; Pennsylvania R. Co. v
Girard, 210 F.2d 437, 440 (6th Cir. 1954). The Sixth Circuit, in Ferguson v
Neighborhood Housing Services, 780 F.2d 549 (6th Cir. 1986) recognized the
importance of judicial admissions:
Judicial admissions "eliminate the need for evidence on the
subject matter of the admission," as admitted facts are no longer
at issue. Seven-Up Bottling Co. v. Seven-Up Co., 420 F. Supp. 1246,
1251 (E.D.Mo.1976), aff'd, 561 F.2d 1275 (8th Cir.1977). Once
made, the subject matter of the admission should not be reopened in
the absence of a showing of exceptional circumstances. New
Amsterdam Casualty Co. v. Waller, 323 F.2d 20, 24 (4th Cir.1963),
cert. denied, 376 U.S. 963, 84 S.Ct. 1124, 11 L.Ed.2d 981 (1964).
This court has observed that "[u]nder federal law, stipulations and
admissions in the pleadings are generally binding on the parties and
the Court." Brown v. Tennessee Gas Pipeline Co., 623 F.2d 450, 454
(6th Cir.1980) (citations omitted). Not only are such admissions and
stipulations binding before the trial court, but they are binding on
appeal as well. See, e.g., Glick v. White Motor Co., 458 F.2d 1287,
1291 (3d Cir.1972).
Id., at 551 (emphasis added). The Sixth Circuit, in this very case, has held
Plaintiffs to their admissions:
The complaint explains that AFDI “promotes its political objectives
by, inter alia, sponsoring anti-jihad bus and billboard campaigns,
which includes seeking advertising space on SMART vehicles.”
[Plaintiffs’ Complaint], ¶ 8. By its own admission, therefore, AFDI
sought to place advertisements on the SMART vehicle to
“promote[ ] its political objectives.” Moreover, by denying the
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placement of the fatwa advertisement, AFDI alleges that SMART
“denied Plaintiffs’ advertisement, and thus denied Plaintiffs’
access to a public forum to express their political and religious
message. Id. ¶ 21. AFDI understood its own advertisement to contain
a political message; therefore, it would be reasonable for SMART to
read the same advertisement and reach the same conclusion.
Amer. Freedom Def. Init., at 895 (emphasis added).
The issue for which Plaintiffs seek to use Ms. Gibbon’s personal opinions
and statements is already conclusively established by Plaintiffs’ own judicial
admissions. Defendants are not required to bring forward evidence to support the
admissions, and the admissions are beyond the power of additional evidence to
controvert them. Best Canvas Prod. & Supplies, Inc., supra.
Plaintiffs have judicially admitted that their advertisement was political and
it is no longer a point at issue. Since SMART’s content policy bars political
advertisements, the Defendants are entitled to summary judgment of Plaintiffs’
claims.
By: /s/ Christian E. Hildebrandt_____
JOHN J. LYNCH P16887
CHRISTIAN E. HILDEBRANDT
P46989
Co-Counsel for Defendants
1450 W. Long Lake Rd., Ste. 100
Troy, MI 48098-6330
[phone]

By: ___/s/ Avery E. Gordon_____
SUBURBAN MOBILITY
AUTHORITY FOR REGIONAL
TRANSPORTATION
Avery E. Gordon (P41194)
Co-Counsel for Defendants
535 Griswold Street, Suite 600
Detroit, MI 48226

8

CERTIFICATE OF SERVICE
I hereby certify that on September 18, 2013, I electronically filed the
attached papers, Defendants’ Response to Plaintiffs’ Motion for Summary
Judgment, with the Clerk of the Court using the Court’s ECF system which will
send notification of such filing to the following:
Robert J. Muise (P62849)
David Yerushalmi, Esq.
Co-Counsel for Plaintiffs
3000 Green Rd., #131098
Ann Arbor, MI 48113
[phone]
[e-mail]

SUBURBAN MOBILITY
AUTHORITY FOR
REGIONAL TRANSPORTATION
Avery E. Gordon (P41194)
Co-Counsel for Plaintiffs
535 Griswold Street, Suite 600
Detroit, MI 48226
[e-mail]

[e-mail]

Erin Elizabeth Mersino (P70886)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[phone]
[e-mail]

I declare under penalty of perjury that the foregoing is true and correct.

9

VANDEVEER GARZIA
By: /s/ Christian E. Hildebrandt
JOHN J. LYNCH P16887
CHRISTIAN E. HILDEBRANDT P46989
Attorneys for Plaintiffs
1450 W. Long Lake Rd., Ste. 100
Troy, MI 48098-6330
[phone]
Dated: December 19, 2013

10