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

Filing 91

MOTION for Entry of Judgment by All Plaintiffs. (Attachments: # 1 Exhibit 1 - Proposed Judgment) (Muise, Robert)

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

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

Hon. Denise Page Hood

v.
SUBURBAN MOBILITY AUTHORITY
for REGIONAL TRANSPORTATION
(“SMART”), et al.,
Defendants.
PLAINTIFFS’ MOTION FOR ENTRY OF JUDGMENT
__________________________________________________________________
AMERICAN FREEDOM LAW CENTER
Robert J. Muise, Esq. (P62849)
P.O. Box 131098
Ann Arbor, MI 48113
[e-mail]
[phone]

SMART
Avery E. Gordon, Esq. (P41194)
535 Griswold Street, Suite 600
Detroit, MI 48226
[e-mail]
[phone]

David Yerushalmi, Esq.
2020 Pennsylvania Avenue NW
Suite 189
Washington, D.C. 20006
[e-mail]
[phone]

VANDEVEER GARZIA, P.C.
Christian E. Hildebrandt (P46989)
1450 W. Long Lake Road,
Suite 100
Troy, MI 48098
[e-mail]
[phone]

Counsel for Plaintiffs
Counsel for Defendants
__________________________________________________________________

Pursuant to this Court’s Order of December 11, 2020 (Doc. No. 90), the
Sixth Circuit’s unanimous decision in American Freedom Defense Initiative v.
Suburban Mobility Authority, 978 F.3d 481 (6th Cir. 2020), Rule 58(d) of the
Federal Rules of Civil Procedure, and E.D. Mich. LR 58.1, Plaintiffs American
Freedom Defense Initiative, Pamela Geller, and Robert Spencer (collectively
referred to as “Plaintiffs”), by and through their undersigned counsel, hereby move
the Court to enter judgment in their favor granting Plaintiffs declaratory and
injunctive relief, nominal damages, and their reasonable costs, including attorneys’
fees, as the prevailing plaintiff pursuant to 42 U.S.C. § 1988.
More specifically, Plaintiffs seek the entry of a judgment in their favor as
follows: (1) Declaratory Relief: a declaration that Defendants violated Plaintiffs’
right to freedom of speech protected by the First Amendment; a declaration that
SMART’s restriction on “political” advertising as set forth in its Advertising
Guidelines is unreasonable in violation of the First Amendment; and a declaration
that SMART’s scorn-or-ridicule restriction as set forth in its Advertising
Guidelines is viewpoint based in violation of the First Amendment; (2) Injunctive
Relief: an injunction enjoining the challenged restrictions and their enforcement
against Plaintiffs’ “Leaving Islam” advertisement; (3) Nominal Damages: an award
of nominal damages in the amount of $3 ($1 per Plaintiff) for the loss of Plaintiffs’

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constitutional rights; and (4) Attorneys’ Fees and Costs: an award of attorneys’
fees and costs in the amount of $207,500.
In support of this motion, Plaintiffs rely upon the Sixth Circuit’s Opinion in
American Freedom Defense Initiative v. Suburban Mobility Authority, 978 F.3d
481 (6th Cir. 2020), the pleadings and papers of record, as well as their brief
accompanying this motion.
Pursuant to E.D. Mich. LR 7.1, on December 23, 2020, a meet-and-confer
was held in which Defendants’ counsel stated that Defendants approve the form
and content of the proposed Judgment. 1
For the reasons set forth more fully in the accompanying brief, Plaintiffs
hereby request that the Court grant this motion and enter the proposed Judgment.
WHEREFORE, Plaintiffs hereby request that the Court grant this motion.
Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq.
/s/ David Yerushalmi
David Yerushalmi, Esq.
Counsel for Plaintiffs

1

A copy of the proposed Judgment is attached as Exhibit 1 to this motion, and it
will be submitted in Word via ECF (utilities) pursuant to Local Rule.
3

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

AMERICAN FREEDOM
DEFENSE INITIATIVE; et al.,
Plaintiffs,

No. 2:10-cv-12134-DPH-EAS
Hon. Denise Page Hood

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

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION
FOR ENTRY OF JUDGMENT

ISSUE PRESENTED
Whether the Court should enter the proposed Judgment in light of the Sixth
Circuit’s unanimous opinion in American Freedom Defense Initiative v. Suburban
Mobility Authority, 978 F.3d 481 (6th Cir. 2020).

i

CONTROLLING OR MOST APPROPRIATE AUTHORITY

American Freedom Defense Initiative v. Suburban Mobility Authority, 978 F.3d
481 (6th Cir. 2020)
Carey v. Piphus, 435 U.S. 247 (1978)
Hensley v. Eckerhart, 461 U.S. 424 (1983)
Saieg v. City of Dearborn, 641 F.3d 727 (6th Cir. 2011)
Fed. R. Civ. P. 58(d)
E.D. Mich. LR 58.1

ii

ARGUMENT
By way of summary, at issue in this case was the constitutionality of
Defendants’ rejection of Plaintiffs’ “Leaving Islam” ad based on SMART’s
Advertising Guidelines. Defendants rejected Plaintiffs’ ad on two grounds. First,
Defendants claimed that the ad was “political” in violation of SMART’s
Advertising Guideline prohibiting “[p]olitical or political campaign advertising.”
And second, Defendants claimed that the ad was “likely to hold up to scorn or
ridicule any person or group of persons” in violation of SMART’s guidelines. The
parties filed cross-motions for summary judgment. On March 22, 2019, the Court
entered an order granting Defendants’ motion for summary judgment and denying
Plaintiffs’ motion for summary judgment. (Order [Doc. No. R.83]). Plaintiffs
appealed that ruling.
On October 23, 2020, the U.S. Court of Appeals for the Sixth Circuit
reversed this Court’s grant of summary judgment in Defendants’ favor and
“remand[ed] for proceedings consistent with [its] opinion.” Am. Freedom Def.
Initiative v. Suburban Mobility Auth., 978 F.3d 481, 502 (6th Cir. 2020).
The Sixth Circuit held that SMART’s Advertising Guidelines banning
“political” ads “contain the same basic problems that [Minnesota Voters Alliance v.
Mansky, 138 S. Ct. 1876 (2018)] identified: They adopt an amorphous ban on
‘political’ speech that cannot be objectively applied” in violation of the First
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Amendment. Am. Freedom Def. Initiative, 978 F.3d at 498.
With regard to the scorn-or-ridicule restriction, the Sixth Circuit held that
“[o]n its face and as applied, . . . SMART's restriction engages in impermissible
viewpoint discrimination” in violation of the First Amendment. Id. at 500.
Accordingly, as set forth in the Sixth Circuit’s Opinion, Defendants violated
Plaintiffs’ First Amendment right to freedom of speech by rejecting their ad based
on the challenged restrictions. See id. (remanding to determine the “proper remedy
for these First Amendment violations”); id. at 493 (concluding that “SMART’s
Advertising Guidelines violate the Free Speech Clause”).
“Pursuant to the law of the case doctrine, and the complementary ‘mandate
rule,’ upon remand the trial court is bound to proceed in accordance with the
mandate and law of the case as established by the appellate court.” Westside
Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006) (internal quotations and
citations omitted). This requires the trial court to “implement both the letter and
the spirit of the appellate court’s mandate, taking into account the appellate court’s
opinion and the circumstances it embraces.” Id. (internal quotations and citations
omitted).
In its Opinion, the Sixth Circuit declared that Defendants violated Plaintiffs’
rights protected by the First Amendment, concluding that the challenged
restrictions are unconstitutional and thus unenforceable, thereby entitling Plaintiffs
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to declaratory and injunctive relief. See, e.g., Saieg v. City of Dearborn, 641 F.3d
727, 741 (6th Cir. 2011) (concluding that the plaintiff was entitled to declaratory
and injunctive relief for the violation of his First Amendment right to freedom of
speech). In addition to declaratory and injunctive relief, Plaintiffs are entitled to
nominal damages as a matter of law. See Carey v. Piphus, 435 U.S. 247, 266-67
(1978); Saieg, 641 F.3d at 741 (“In addition to declarative and injunctive relief,
Saieg is entitled to nominal damages for the violation of his constitutional rights.”)
(citing Carey, 435 U.S. at 266).
Accordingly, Plaintiffs are the prevailing party because the Sixth Circuit
Opinion has resulted in “an enforceable ‘alteration of the legal relationship of the
parties.’” Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human
Res., 532 U.S. 598, 622 (2001). Therefore, Plaintiffs are also entitled to their
“fully compensatory” attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. See
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“[P]laintiffs may be considered
‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant
issue in litigation which achieves some of the benefit the parties sought in bringing
suit.”) (internal quotations and citation omitted); see also id. at 435 (“Where a
plaintiff has obtained excellent results, his attorney should recover a fully
compensatory fee.”) (emphasis added); see also Buckhannon Bd. & Care Home,
Inc., 532 U.S. at 604 (“[E]nforceable judgments on the merits . . . create the
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‘material alteration of the legal relationship of the parties’ necessary to permit an
award of attorney’s fees.”). As set forth in the approved, proposed Judgment,
Plaintiffs are entitled to their reasonable attorneys’ fees and costs in the amount of
$207,500.2
Thus, pursuant to the Sixth Circuit’s Opinion, the “mandate rule,” and
controlling law regarding nominal damages and attorneys’ fees, Plaintiffs propose
(and Defendants approve) the entry of the following Judgment:
This action comes before the Court on remand from the U.S. Court of
Appeals for the Sixth Circuit, which rendered its opinion in American
Freedom Defense Initiative v. Suburban Mobility Authority, 978 F.3d
481 (6th Cir. 2020).
Based on the opinion of the Sixth Circuit,
IT IS ORDERED AND ADJUDGED that this Court’s order granting
summary judgment to Defendants and denying summary judgment to
Plaintiffs (Doc No. 83) is REVERSED and judgment is hereby
entered in Plaintiffs’ favor on their First Amendment claims.
Accordingly, the Court hereby declares that, pursuant to the opinion
of the Sixth Circuit, Defendants violated Plaintiffs’ right to freedom
of speech protected by the First Amendment. The Court further
declares, consistent with the Sixth Circuit opinion, that SMART’s
Advertising Guidelines restricting “political” advertisements and
advertisements “likely to hold up to scorn or ridicule any person or
group of persons” violate the Free Speech Clause of the First
Amendment and are hereby enjoined.
IT IS FURTHER ORDERED AND ADJUDGED that in addition to
declaratory and injunctive relief, Plaintiffs are entitled to nominal

2

This is a discount of Plaintiffs’ actual costs and fees, which exceed this amount.
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damages in the amount of $3.00 and an award of reasonable attorneys’
fees and costs in the amount of $207,500.00.
So Ordered.
As set forth above, Plaintiffs’ proposed Judgment “implement[s] both the
letter and the spirit of the appellate court’s mandate,” as required.
CONCLUSION
WHEREFORE, Plaintiffs respectfully request that this Court enter the
proposed Judgment.
Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq.
/s/ David Yerushalmi
David Yerushalmi, Esq.
Counsel for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on January 22, 2021, 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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