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

Filing 80

RESPONSE to 79 MOTION for Leave to File Response to Plaintiffs' Supplemental Authority on Summary Judgment (Docket No. 77) filed by All Plaintiffs. (Muise, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
AMERICAN FREEDOM
DEFENSE INITIATIVE; et al.,

No. 2:10-cv-12134-DPH-MJH

Plaintiffs,
Hon. Denise Page Hood

v.
SUBURBAN MOBILITY
AUTHORITY for REGIONAL
TRANSPORTATION (“SMART”);
et al.,

Magistrate Judge Hluchaniuk

Defendants.
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO
FILE RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL AUTHORITY ON
SUMMARY JUDGMENT

ISSUE PRESENTED
I.

Whether the Court should strike Plaintiffs’ recently filed notice of

supplemental authority (Doc. No. 77), which brings to the Court’s attention a
relevant U.S. Supreme Court decision that was issued following the close of the
briefing on the parties’ cross-motions for summary judgment.
Plaintiffs’ Answer: No
Defendants’ Answer: Yes, or in the alternative, permit them to file a
response.

i

CONTROLLING AND MOST APPROPRIATE AUTHORITY
Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018)
Am. Freedom Def. Initiative v. Wash. Metro. Transit Auth., No. 17-7059, 2018
U.S. App. LEXIS 23203 (D.C. Cir. Aug. 17, 2018)

ii

ARGUMENT
In their filing, “Defendants request that this court strike Plaintiffs’ offending
brief, or in the alternative, allow Defendants to file a response to the supplemental
brief.” (Defs.’ Mot. at 4 [Doc. No. 79]).
Defendants’ request to strike Plaintiffs’ notice of supplemental authority
should be denied for at least two reasons. First, providing supplemental authority
to a court after the briefing has closed is a common and important practice.
Indeed, in the federal appellate courts there is a specific rule that sets forth the
procedure for doing so. Rule 28(j) of the Federal Rules of Appellate Procedure
states as follows:
(j) Citation of Supplemental Authorities. If pertinent and significant
authorities come to a party’s attention after the party’s brief has been
filed—or after oral argument but before decision—a party may
promptly advise the circuit clerk by letter, with a copy to all other
parties, setting forth the citations. The letter must state the reasons for
the supplemental citations, referring either to the page of the brief or
to a point argued orally. The body of the letter must not exceed 350
words. Any response must be made promptly and must be similarly
limited.
This rule makes sense. If there is subsequent authority, as in this case, that may
assist the court with rendering its decision, it is entirely appropriate to bring this
authority to the court’s attention and to briefly explain why the party believes this
authority is relevant, as Plaintiffs have done here.

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Indeed, in a recent decision by the D.C. Circuit involving a challenge to the
Washington Metropolitan Area Transit Authority’s (“WMATA”) advertising
guidelines, the court reversed the trial court’s grant of summary judgment in favor
of WMATA and remanded the case to determine whether WMATA’s ban on the
plaintiffs’ ad as being political was lawful in light of Mansky. Am. Freedom Def.
Initiative v. Wash. Metro. Area Transit Auth., No. 17-7059, 2018 U.S. App. LEXIS
23203, at *35 (D.C. Cir. Aug. 17, 2018) (“The parties’ briefs predate the decision
in Mansky. Yet Mansky invites arguments about whether Guideline 9 is capable of
reasoned application. Moreover, WMATA’s defense of the Guidelines against
AFDI’s unbridled discretion/vagueness challenge was that it banned AFDI’s
advertisements as ‘political’ speech, which is not unconstitutional. That argument
might be unavailing in light of Mansky.”) (emphasis added). Thus, Mansky is
plainly relevant here.
And second, what exactly is it that Defendants seek to accomplish with their
request to strike? Do they not want the Court to be informed of this subsequent
decision? Is this subsequent decision now off limits for the Court’s consideration?
Practically, Defendants’ request makes little sense. And more important, since the
role of the Court is to pursue justice, Defendants’ argument that the Court should
not be informed of subsequent authority plainly undermines that goal. Defendants’
request to strike should be denied. And if Defendants wish to briefly respond to
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Plaintiffs’ notice, which Plaintiffs purposefully kept brief with a simple
explanation as to why Mansky should be considered by the Court, then Plaintiffs
would have no objection.
CONCLUSION
Based on the foregoing, Plaintiffs respectfully request that the Court
consider Mansky and reject Defendants’ request to strike Plaintiffs’ notice of this
relevant authority.
Respectfully submitted,
/s/ Robert J. Muise
Robert J. Muise, Esq. (P62849)
David Yerushalmi, Esq.
Counsel for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on August 31, 2018, a copy of the foregoing was filed
electronically. Notice of this filing will be sent to all parties for whom counsel has
entered an appearance by operation of the court’s electronic filing system. Parties
may access this filing through the court’s system.
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq. (P62849)

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