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

Filing 79

MOTION for Leave to File Response to Plaintiffs' Supplemental Authority on Summary Judgment (Docket No. 77) by 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

VANDEVEER GARZIA, P.C.

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,
Defendants.
Christian E. Hildebrandt (P46989)
Co-Counsel for Defendants SMART,
Hertel and Gibbons
840 W. Long Lake Road, Suite 600
Troy, MI 48098
[phone]
[e-mail]

Avery E. Gordon (P41194)
Kirsten J. Silwanowicz (P79844)
Ronald E. Beier, II (P45365)
Co-Counsel for Defendants SMART,
Hertel and Gibbons
535 Griswold Street, Suite 600
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
[e-mail]

MOTION FOR LEAVE TO FILE RESPONSE TO PLAINTIFFS’
SUPPLEMENTAL AUTHORITY ON SUMMARY JUDGMENT
(DOCKET NO. 77)

MOTION FOR LEAVE TO FILE RESPONSE TO PLAINTIFFS’
SUPPLEMENTAL AUTHORITY ON SUMMARY JUDGMENT
(DOCKET NO. 77)
Defendants, Suburban Mobility Authority for Regional Transportation, John
Hertel and Beth Gibbons, by and through their attorneys, Vandeveer Garzia, P.C.
and Avery Gordon, pursuant to Federal Rule of Civil Procedure Rule 56 and
Eastern District of Michigan Local Rule 7.1(c)(3), move this court for entry of an
order granting leave to Defendants to respond to Plaintiff’s Supplemental

VANDEVEER GARZIA, P.C.

Brief/Authority on Summary Judgment (Docket No. 77).
Defendants object to Plaintiff’s Supplemental Brief/Authority because, in
contravention to E.D.Mich. LR 7.1(d)(1), Plaintiff did not seek leave of court to
file the supplemental brief. There is no authority in the Federal Rules of Civil
Procedure or the Eastern District of Michigan Local Rules for Plaintiff’s filing
without leave of court.
This Motion is supported by an accompanying brief.

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VANDEVEER GARZIA

VANDEVEER GARZIA, P.C.

By: /s/ Christian E. Hildebrandt_________
CHRISTIAN E. HILDEBRANDT (P46989)
Attorney for Defendants
840 W. Long Lake Rd., Ste. 600
Troy, MI 48098-6340
[phone]
By: /s/ Avery E. Gordon_______________
SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION
Avery E. Gordon (P41194)
Kirsten J. Silwanowicz (P79844)
Ronald E. Beier, II (P45365)
Co-Counsel for Defendants
535 Griswold Street, Suite 600
Detroit, MI 48226
Dated: August 28, 2018

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BRIEF IN SUPPORT OF MOTION FOR LEAVE TO FILE RESPONSE TO
PLAINTIFFS’ SUPPLEMENTAL AUTHORITY ON SUMMARY
JUDGMENT
(DOCKET NO. 77)
On August 17, 2018, at the end of business, Plaintiffs filed what they purport
to be “Plaintiffs’ Notice of Supplemental Authority.” Plaintiff filed its
supplemental brief on its motion for summary judgment without leave of court and
without any legal authority to do so. Eastern District of Michigan Local Rule 7.1,
regarding motion practice, permits only one brief without seeking leave of court.

VANDEVEER GARZIA, P.C.

Similarly, it permits only one response without leave. For this reason, Defendants
request that this court strike Plaintiffs' offending brief, or in the alternative, allow
Defendants to file a response to the supplemental brief.
The necessity of a response to Plaintiffs' filing arises because Plaintiffs
misstate the holding of the Court in Minnesota Voters Alliance v. Mansky, 138 S.
Ct. 1876 (2018). Contrary to Plaintiffs’ improper argument, the Supreme Court
did not hold that any definition of the term “political” was too broad. Instead, the
Supreme Court held that the manner in which Minnesota defined the term
“political” when coupled with haphazard interpretations was objectionable. In
this regard, the Court stated:
But the State must draw a reasonable line. Although there is no
requirement of narrow tailoring in a nonpublic forum, the State must
be able to articulate some sensible basis for distinguishing what may
come in from what must stay out. See Cornelius, 473 U.S., at 808809, 105 S.Ct. 3439. Here, the unmoored use of the term "political" in
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the Minnesota law, combined with haphazard interpretations the State
has provided in official guidance and representations to this Court,
cause Minnesota's restriction to fail even this forgiving test.

VANDEVEER GARZIA, P.C.

Again, the statute prohibits wearing a "political badge, political
button, or other political insignia." It does not define the term
"political." And the word can be expansive. It can encompass
anything "of or relating to government, a government, or the conduct
of governmental affairs," Webster's Third New International
Dictionary 1755 (2002), or anything "[o]f, relating to, or dealing with
the structure or affairs of government, politics, or the state,"
AMERICAN HERITAGE DICTIONARY 1401 (3d ed. 1996). Under a literal
reading of those definitions, a button or T-shirt merely imploring
others to "Vote!" could qualify.
The State argues that the apparel ban should not be read so broadly.
According to the State, the statute does not prohibit "any conceivably
`political' message" or cover "all `political' speech, broadly
construed." Instead, the State interprets the ban to proscribe "only
words and symbols that an objectively reasonable observer would
perceive as conveying a message about the electoral choices at issue
in [the] polling place." Id., at 13; see id., at 19 (the ban "applies not to
any message regarding government or its affairs, but to messages
relating to questions of governmental affairs facing voters on a given
election day").
At the same time, the State argues that the category of "political"
apparel is not limited to campaign apparel. After all, the reference to
"campaign material" in the first sentence of the statute — describing
what one may not "display" in the buffer zone as well as inside the
polling place — implies that the distinct term "political" should be
understood to cover a broader class of items. As the State's counsel
explained to the Court, Minnesota's law "expand[s] the scope of what
is prohibited from campaign speech to additional political speech."
We consider a State's "authoritative constructions" in interpreting a
state law. Forsyth County v. Nationalist Movement, 505 U.S. 123,
131, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). But far from clarifying
the indeterminate scope of the political apparel provision, the State's
"electoral choices" construction introduces confusing line-drawing
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problems. Cf. Jews for Jesus, 482 U.S., at 575-576, 107 S.Ct. 2568 (a
resolution banning all "First Amendment activities" in an airport could
not be saved by a "murky" construction excluding "airport-related"
activity).

VANDEVEER GARZIA, P.C.

For specific examples of what is banned under its standard, the State
points to the 2010 Election Day Policy — which it continues to hold
out as authoritative guidance regarding implementation of the statute.
See Brief for Respondents 22-23. The first three examples in the
Policy are clear enough: items displaying the name of a political party,
items displaying the name of a candidate, and items demonstrating
"support of or opposition to a ballot question."
But the next example — "[i]ssue oriented material designed to
influence or impact voting," — raises more questions than it answers.
What qualifies as an "issue"? The answer, as far as we can tell from
the State's briefing and argument, is any subject on which a political
candidate or party has taken a stance. See Tr. of Oral Arg. 37
(explaining that the "electoral choices" test looks at the "issues that
have been raised" in a campaign "that are relevant to the election").
For instance, the Election Day Policy specifically notes that the
"Please I.D. Me" buttons are prohibited. But a voter identification
requirement was not on the ballot in 2010, so a Minnesotan would
have had no explicit "electoral choice" to make in that respect. The
buttons were nonetheless covered, the State tells us, because the
Republican candidates for Governor and Secretary of State had staked
out positions on whether photo identification should be required.
A rule whose fair enforcement requires an election judge to maintain a
mental index of the platforms and positions of every candidate and
party on the ballot is not reasonable. Candidates for statewide and
federal office and major political parties can be expected to take
positions on a wide array of subjects of local and national import. See,
e.g., Democratic Platform Committee, 2016 Democratic Party
Platform (approved July 2016) (stating positions on over 90 issues);
Republican Platform Committee, Republican Platform 2016
(approved July 2016) (similar). Would a "Support Our Troops" shirt
be banned, if one of the candidates or parties had expressed a view on
military funding or aid for veterans? What about a "#MeToo" shirt,
referencing the movement to increase awareness of sexual harassment
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and assault? At oral argument, the State indicated that the ban would
cover such an item if a candidate had "brought up" the topic.
Id., at 1888-1890. The Court felt that it was the limited manner in which
Minnesota was applying the definition of “political” that was not reasonable. As
defined, it failed to give notice to the electorate and to the election judges tasked
with enforcing the statute of the speech limited by the statute.
Had the State used the dictionary definition of “political,” without limitation,
it is likely that the Supreme Court would have upheld the provision as “reasonable

VANDEVEER GARZIA, P.C.

in light of the purpose served by the forum.” Cornelius v. NAACP Legal Defense &
Ed. Fund, Inc., 473 U.S. 788, 806-811, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). In
fact, the Supreme Court has repeatedly held the term “political” is not too vague or
overbroad for First Amendment purposes. “Civil Service Comm'n v. Letter
Carriers, 413 U.S. 548, 550-551, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) (rejecting
First Amendment overbreadth and vagueness challenge to § 9(a) of the Hatch Act,
then codified at 5 U.S.C. § 7324(a)(2), which prohibited federal employees from
taking "an active part in political management or in political campaigns");
Broadrick v. Oklahoma, 413 U.S. 601, 602, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)
(rejecting First Amendment overbreadth and vagueness challenge to a similar
Oklahoma law that "restricts the political activities of the State's classified civil
servants").” Minn. Voters All. v. Mansky, at p. 1896. More applicable to the case at

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bar is Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), where the Supreme
Court upheld a limitation on “political” advertising on bus car cards.
There is also no evidence in the case at bar that SMART “haphazardly”
interpreted or applied its content policy. In this regard, the Minn. Voters All. case
is inapplicable to the motions before this court.
Further, as pointed out in Defendants’ Brief in Support of their Motion for
Summary Judgment, at pages 23 – 26, the parties to this action agree that AFDI’s

VANDEVEER GARZIA, P.C.

message is political speech. Plaintiffs cannot come forward, after having admitted
in their pleadings that their speech is political, to complain that SMART’s
restriction on political speech does not apply to the proffered advertisement.
Finally, leave to respond to Plaintiffs' Supplemental Brief/Authority is
necessary because Plaintiffs' representation to this court of subsequent and
applicable authority is misleadingly selective. Plaintiffs bring but one questionably
applicable case to this court’s attention, seemingly arguing that it is the only
subsequent authority that could assist the court in its decision-making role. What
Plaintiffs ignore by this filing is that the Sixth Circuit opinion in this case, Amer.
Freedom Def. Init. v. Suburban Mobility Auth. for Reg’l Trans., 698 F. 3d 885
(2102), has been cited approvingly by at least nine federal courts in the First,
Third, Sixth, Seventh and Ninth Circuits. In each of these cases, it was recognized
that applying the definition of “political” as contained in SMART’s content policy

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was a “reasonably objective exercise” and that “there is no question that a person
of ordinary intelligence can identify what is or is not political.” Amer. Freedom
Def. Init. v. Suburban Mobility Auth. for Reg’l Trans., 698 F. 3d at 893-894.
For the reasons set forth above, Defendants respectfully request that this
Court either strike Plaintiffs’ Notice of Supplementary Authority (Docket No. 77),
or in the alternative, grant Defendants leave of court to file a response to Plaintiffs'
Supplemental Brief/Authority.
VANDEVEER GARZIA
VANDEVEER GARZIA, P.C.

By: /s/ Christian E. Hildebrandt_________
CHRISTIAN E. HILDEBRANDT (P46989)
Attorney for Defendants
840 W. Long Lake Rd., Ste. 600
Troy, MI 48098-6330
[phone]
By: /s/ Avery E. Gordon_______________
SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION
Avery E. Gordon (P41194)
Kirsten J. Silwanowicz (P79844)
Ronald E. Beier, II (P45365)
Co-Counsel for Defendants
535 Griswold Street, Suite 600
Detroit, MI 48226
Dated: August 28, 2018

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CERTIFICATE OF SERVICE

The undersigned certifies that on August 28, 2018, a copy of the following:
1.

Motion for Leave to File Response to Plaintiffs’ Supplemental
Authority on Summary Judgment (Docket No. 77);

2.

Brief in Support of Motion for Leave to File Response to Plaintiffs’
Supplemental Authority on Summary Judgment (Docket No. 77); and

3.

Certificate of Service

were served upon the attorneys of record of all parties to the above by electronic

VANDEVEER GARZIA, P.C.

filing with the Clerk of the Court using the E-Filing System. I declare under the
penalty of perjury that the statement above is true to the best of my information
knowledge and belief.
VANDEVEER GARZIA
By: /s/ Christian E. Hildebrandt_________
CHRISTIAN E. HILDEBRANDT (P46989)
Attorney for Defendants
840 W. Long Lake Rd., Ste. 600
Troy, MI 48098-6340
[phone]

Dated: August 28, 2018

By: /s/ Avery E. Gordon_______________
SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION
Avery E. Gordon (P41194)
Kirsten J. Silwanowicz (P79844)
Ronald E. Beier, II (P45365)
Co-Counsel for Defendants
535 Griswold Street, Suite 600
Detroit, MI 48226

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