Thiede v. Burcoff et al

Filing 47

ORDER Directing Supplemental Briefing. Plaintiff's Supplemental brief by 1/3/2018; Defendants' Supplemental brief by 1/10/2018. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN THIEDE,
Plaintiff,
v.

Case No. 16-13650

LEROY BURCROFF, et al.,
Defendants.
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ORDER DIRECTING SUPPLEMENTAL BRIEFING
Before the court is Plaintiff’s Motion for Partial Summary Judgment as to Count III
of Plaintiff’s Complaint, which seeks declaratory judgment that City of Romulus
Policy #34 is an unconstitutional prior restraint on free speech. (Dkt. #37.) Also pending
is a motion for summary judgment by Defendants LeRoy Burcroff, Julie Wojtylko, and
City of Romulus (Dkt. #33); these Defendants seek summary judgment against Plaintiff
on all counts, including Count III. Having examined the briefing and the case law, it
appears to the court that Plaintiff may lack standing to pursue his claim for declaratory
judgment. The court will, therefore, order further briefing on the issue of standing.
In September 2016, the City of Romulus adopted “Policy #34.” (Dkt. #37 Pg. ID
773.) Policy #34 provides:
From time to time, the City of Romulus may be sued in a Court of law. All
verbal or written communications, information or documents in the
possession of the city related to City business requested by a party to the
litigation, or by a third party on behalf of the party to the litigation, must be
coordinated through the City Attorney or the attorney representing the
City.

Therefore, all employees of the City shall not provide any information or
documents related to the City to a litigant or a third party representing a
litigant, unless otherwise designated by the Mayor.
Further, all information or documents related to the City must be provided
to the City Attorney, or other attorney representing the City in the litigation,
for distribution to the parties in the litigation or their representatives.
(Id.) It is undisputed that Plaintiff has not been disciplined for any alleged violation of
Policy #34. (Dkt. #41 Pg. ID 1066.) Indeed, Defendants Burcroff and Wojtylko both
testified that they were unaware whether anyone had been disciplined under Policy #34.
(Burcroff Dep. Dkt. #33-9 Pg. ID 600; Wojtylko Dep. Dkt. #33-12 Pg. ID 624.)
Plaintiff claims that Policy #34 is an unconstitutional prior restraint on free speech
that is “impermissibly vague and overbroad.” (Dkt. #1 Pg. ID 13.) He claims that
Policy #34 “attempts to unlawfully limit and restrain employees from exercising their
First Amendment free speech and association rights.” (Id.)
Federal courts lack jurisdiction where there is no “case” or “controversy” within
the meaning of Article III of the Constitution. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). “[S]tanding is an essential and unchanging part of the case-orcontroversy requirement of Article III.” Id. The party invoking federal court jurisdiction
bears the burden to establish that standing exists. Id. at 561. On a motion for summary
judgment, the party invoking jurisdiction must come forward with concrete evidence—
not “mere allegations”—to prove standing. McKay v. Federspiel, 823 F.3d 862, 867 (6th
Cir. 2016).
Standing requires proof of three elements. First, the plaintiff must have suffered
an “injury in fact”: violation of a legally-protected interest that is both (a) concrete and
particularized and (b) “actual or imminent, not conjectural or hypothetical.” Lujan, 504

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U.S. at 560 (internal quotations omitted). Second, there must be some causal
connection between the injury and the complained-of conduct. Id. Third, “it must be
likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Id. (internal quotations omitted).
Where a plaintiff challenges the constitutionality of a law, he need not always
prove that the law was enforced against him. See Steffel v. Thompson, 415 U.S. 452,
459 (1974) (holding that it was unnecessary for the plaintiff to “first expose himself to
actual arrest or prosecution to be entitled to challenge a statute that he claims deters
the exercise of his constitutional rights.”). Rather, federal courts may conduct a “preenforcement” review of a law where circumstances “render the threatened enforcement
sufficiently imminent.” Susan B. Anthony List v. Driehaus, __ U.S. __, 134 S. Ct. 2334,
2342 (2014). “Specifically, . . . a plaintiff satisfies the injury-in-fact requirement where he
alleges ‘an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and there exists a credible threat of
prosecution thereunder.’” Id. (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298
(1979)). Each of these allegations—intent to engage in conduct affected with a
constitutional interest, proscription by statute, and threat of prosecution—is analyzed
separately. See, e.g., id. at 2343–47; McKay v. Federspiel, 823 F.3d 862, 868 (6th Cir.
2016); Kiser v. Reitz, 765 F.3d 601, 608–10 (6th Cir. 2014).
Plaintiff has not, thus far, brought forth evidence sufficient to support any of these
necessary allegations. Plaintiff, for example, has not demonstrated an intent to engage
in conduct “arguably affected with a constitutional interest” that is proscribed by
Policy #34. See McKay, 823 F.3d at 868.

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The court is particularly uncertain that Plaintiff can meet the last requirement:
threat of prosecution. While the doctrines of overbreadth and vagueness have generally
been styled as “exceptions” to the traditional rules of standing, see Savage v. Gee, 665
F.3d 732, 740 (6th Cir. 2012), a plaintiff alleging overbreadth or vagueness must still
point to “some specific action on the part of the defendant in order for the litigant to
demonstrate an injury-in-fact,” Morrison v. Bd. of Educ., 521 F.3d 602, 609 (6th Cir.
2008). The plaintiff must show, in other words, that enforcement of the allegedly chilling
statute or policy “occurred or is imminent.” Morrison, 521 F.3d at 610. “[A]bsent proof of
a concrete harm, where a First Amendment plaintiff only alleges inhibition of speech,
the federal courts routinely hold that no standing exists.” Id. at 609.
The Sixth Circuit has found the threat of enforcement sufficiently imminent to
confer standing “where plaintiffs allege a subjective chill and point to some combination”
of other facts demonstrating that enforcement is likely. McKay, 823 F.3d at 869
(emphasis original). Other facts demonstrating likely enforcement include: “(1) a history
of past enforcement against the plaintiffs or others; (2) enforcement warning letters sent
to the plaintiffs regarding their specific conduct; and/or (3) an attribute of the challenged
statute that makes enforcement easier or more likely,” like a provision permitting
members of the public to initiate enforcement actions. Id. (internal citations omitted). A
defendant’s refusal to “disavow enforcement” against the particular plaintiff may also be
taken into account. Id.
The court has seen nothing in the record demonstrating that enforcement of
Policy #34 is imminent. To date, the court has only the testimony of Defendants Burcroff
and Wojtylko that Policy #34, to their knowledge, has not been enforced. Nothing

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indicates that there is some history of enforcement of Policy #34, that Plaintiff has been
threatened with enforcement of Policy #34, or that enforcement of Policy #34 may be
initiated by some member of the public. Plaintiff has not yet, therefore, identified any
imminent threat of enforcement or any act by Defendants sufficient to chill Plaintiff’s
speech. Because none of the parties have been heard on this issue, however, the court
will give them an opportunity to address the court’s concerns. Accordingly,
IT IS ORDERED that Plaintiff is DIRECTED to file a supplemental brief of no
more than seven pages addressing the issues raised above by January 3, 2018.
IT IS FURTHER ORDERED that Defendants Burcroff, Wojtylko, and City of
Romulus are DIRECTED to file a supplemental brief of no more than seven pages
addressing the issues raised above by January 10, 2018.
No additional briefing is to be presented absent court direction.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

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Dated: December 20, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, December 20, 2017, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\KNP\Civil\16-13650.THIEDE.supplemental.briefing.KNP.RHC.docx

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