Maple Heights News et al v. Lansky et al

Filing 60

Opinion and Order. Defendant Jeffrey Lansky's Motion for Summary Judgment (Related doc # 39 ) is granted as to Plaintiffs' federal claims. The Court declines to exercise supplemental jurisdiction over the pendent state law claims and dismisses them without prejudice. Counterclaim-Defendant William Brownlee's Motion for Summary Judgment (Related doc # 38 ) is denied as moot. Plaintiffs' Motions to Strike (Related doc #'s 43 , 56 , 57 ) are denied as moot. Judge Christopher A. Boyko on 3/10/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MAPLE HEIGHTS NEWS, et al.,
Plaintiffs,
vs.
JEFFREY A. LANSKY, et al.,
Defendants.

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CASE NO. 1:15CV53
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #39) of Defendant,
Jeffrey A. Lansky, for Summary Judgment. For the following reasons, the Motion is granted
as to Plaintiffs’ federal claims. The Court declines to exercise supplemental jurisdiction over
the pendent state law claims.
I. FACTUAL BACKGROUND
On January 12, 2015, Plaintiffs filed the instant Complaint against certain public
officials of the City of Maple Heights for, inter alia, violation of their First Amendment rights
and Plaintiff William C. Brownlee’s right of privacy.
Lansky served as the Mayor of the City of Maple Heights from December 1, 2007

through December 31, 2015. Brownlee was elected as a City Councilman in Maple Heights
in November, 2013, taking office on January 1, 2014. Brownlee publishes a “news media
reporting service” on the internet, under the name, Maple Heights News. Brownlee has been
a vocal critic of Lansky’s administration, particularly on budgetary issues. Brownlee made
audiovisual recordings of City Council meetings and re-published them to the community on
the Maple Heights News website.
At the May 21, 2014 City Council Meeting, the renewal of a waste collection contract
came up for discussion. The Council President spoke at length regarding the issue. Brownlee
voiced opposition. The Law Director attempted to rebut Brownlee’s comments. Then, the
Council President “call[ed] the roll for adoption.” Brownlee raised a “point of order,”
contending debate had been prematurely terminated. The Council President declared
Brownlee out of order and proceeded to a vote. When Brownlee repeated his “point of
order,” the Council President directed the Police Chief to escort Brownlee out of the meeting.
When Lansky noted that Brownlee “forgot his camera,” the Law Director terminated the
audiovisual recording and delivered the camera to Brownlee. (The parties dispute whether or
not Lansky directed the Law Director to remove the camera; but there is no dispute that the
video camera was shut off and removed from the meeting room). The City made an audio
recording of the entire May 21, 2014 proceeding. (Lansky Motion Exhibit A, Brownlee
Deposition at 67-68).
In July of 2013, when Brownlee was running for his City Council seat, Lansky
received an anonymous paper in the U.S. Mail indicating that Brownlee had not filed or paid
his municipal income taxes. Later, at a January 15, 2014 City Council Caucus Meeting

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concerning a switch from the Regional Income Tax Agency (“RITA”) to another agency,
Lansky questioned Brownlee about whether Brownlee had paid his City income taxes. On
January 21, 2014, Brownlee sent Lansky an email, explaining that he and his wife were
working with the Assistant Finance Director to “sort out any confusion about our taxes.”
During the course of the November 2014 election campaign, Lansky and Lansky for
Mayor published a political flyer declaring that “Brownlee did not file and paid no city
income taxes for years 2011-2013.” At a subsequent City Council Meeting on December 17,
2014, Lansky said: “I’m very offended by Councilman Brownlee’s comments because, you
know, he’s someone who’s unemployed and doesn’t even work and lived here for three years
and didn’t even file or pay taxes.”
Plaintiffs bring two constitutional claims pursuant to 42 U.S.C. § 1983. First,
Plaintiffs claim that Lansky violated their First Amendment rights by directing or
encouraging the Law Director to turn off and remove Brownlee’s video camera during the
May 21, 2014 Council Meeting. Plaintiffs insist that the public and the media have the right
to meaningful and effective access to government proceedings, including the right to record
public meetings. Second, Brownlee claims that Lansky violated his due process rights and his
federal right to privacy by obtaining and disclosing his taxpayer information at Council
meetings and in the Lansky for Mayor mailings. Plaintiffs also bring several state law claims
for invasion of privacy and defamation. Lansky has asserted a Counterclaim against
Brownlee for defamation.
Defendant Lansky, individually and in his capacity as Mayor, now moves for
summary judgment in his favor on all Counts in Plaintiffs’ Complaint.

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II. LAW AND ANALYSIS
Fed.R.Civ.P. 56 Standard of Review
Summary judgment shall be granted only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” See Fed.R.Civ.P. 56(a). The burden is on the moving party to conclusively show no
genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Lansing Dairy. Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The moving party must
either point to “particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show “that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” See Fed.R.Civ.P. 56(c)(1)(A), (B). A court
considering a motion for summary judgment must view the facts and all inferences in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its burden, the
nonmoving party may not rest on its pleadings, but must come forward with some significant
probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at
1347.
This Court does not have the responsibility to search the record sua sponte for genuine
issues of material fact. Betkerur v. Aultman Hospital Ass 'n., 78 F.3d 1079, 1087 (6th Cir.
1996); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992). The
burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving party
fails to make the necessary showing on an element upon which it has the burden of proof, the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether summary
judgment is appropriate depends upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Amway Distributors Benefits Ass 'n v. Northfield Ins. Co., 323
F.3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
42 U.S.C. § 1983
Brownlee and Maple Heights News bring their constitutional claims under 42 U.S.C.
§ 1983, which requires a plaintiff to allege he was deprived of a right, privilege, or immunity
secured by the Federal Constitution or laws of the United States, and the deprivation was
caused by a person while acting under color of state law. Flagg Bros. v. Brooks, 436 U.S.
149, 155-57 (1978); Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.2005). Section 1983
“is not itself a source of substantive rights,” but provides a vehicle for “vindicating federal
rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989).
Removal of Plaintiffs’ Video Camera
Plaintiffs assert that they have the First Amendment right of access to the legislative
process; to gather and disseminate newsworthy information; and to record public officials
performing a governmental function on public property. In support, Plaintiffs cite to WJWTV, Inc. v. City of Cleveland, 686 F.Supp. 177 (N.D.Ohio 1988) and Crawford v. Geiger, 996
F.Supp.2d 603 (N.D.Ohio 2014). In WJW-TV, the district judge concluded that the First
Amendment mandates that the legislative process be available to the press and the public.

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The district judge in Crawford found that the First Amendment protects the right to video
record police officers performing their duties.
This Court is not persuaded by Plaintiffs’ arguments and authorities. First, WJW-TV
was vacated by the Sixth Circuit Court of Appeals in WJW-TV v. City of Cleveland, 878 F.2d
906 (6th Cir.1989). Next, Crawford’s holding was not so broad, nor have decisions since
expanded its application to protect the right to record any public official performing public
functions in public or on public property, as Plaintiffs suggest.
The U.S. Supreme Court “never intimated a First Amendment guarantee of a right of
access to all sources of information within government control.” Houchins v. KQED, Inc.,
438 U.S. 1, 9 (1978). The First Amendment does not mandate “unfettered access” to
government information. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d
177, 182 (3rd Cir.1999), citing Houchins, id.
The First Amendment does not require states to accommodate every potential
method of recording its proceedings, particularly where the public is granted
alternative means of compiling a comprehensive record.
Whiteland, 193 F.3d at 183; see Combined Communications Corp. v. Finesilver, 672 F.2d
818, 821 (10th Cir.1982).
Plaintiffs contend that their First Amendment rights were violated when Lansky
turned off and removed their video camera from the May 21, 2014 City Council proceedings.
However, Brownlee admits that the entire meeting was audio-recorded, that the audio
recording was made available to him by the Maple Heights Clerk of Council and that it was
posted on the YouTube channel operated by Maple Heights News. (Lansky Motion Exhibit
A, Brownlee Deposition at 67-70).
The Court concurs with the Whiteland analysis: Plaintiffs have “failed to demonstrate

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an essential nexus between the right of access and a right to videotape.” Whiteland, 193 F.3d
at 183. Thus, Brownlee and Maple Heights News have failed to demonstrate any deprivation
of their First Amendment rights, by virtue of Lansky’s removal of their video camera from the
Maple Heights City Council Meeting.
Declarations
Plaintiffs challenge the Declarations of the Maple Heights Law Director, which were
submitted in support of Lansky’s Motion for Summary Judgment. (ECF DKT #43; ECF DKT
#56; ECF DKT #57).
Plaintiffs argue that the initial Declaration did not comply with 28 U.S.C. § 1746,
requiring that it be made under “penalty of perjury.” A Supplemental Declaration has been
submitted which cures that technical defect. However, Plaintiffs raise a further objection that
evidence in the form of a supplemental affidavit or declaration cannot be proffered for the
first time in a reply brief.
Next, Plaintiffs complain that the Law Director’s statements contradict prior judicial
admissions. That is, prior to being dismissed from this lawsuit, the Law Director answered
and admitted that Lansky directed him to turn off Plaintiffs’ audiovisual equipment. In his
Supplemental Declaration, the Law Director states that Lansky did not specifically instruct
him to remove the camera.
Whether or not these challenges have merit, the Court has already decided that
Plaintiffs were not deprived of their First Amendment rights when their video camera was
shut down and removed from the Council Meeting. Therefore, it is unnecessary for the Court
to consider the evidence of whether Lansky’s conduct, as a state actor, violated Plaintiffs’

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clearly established constitutional rights. Plaintiffs’ three Motions to Strike are denied as
moot.
Disclosure of Taxpayer Information
Brownlee claims that the constitutional right to privacy extends to precluding the
unauthorized disclosure of personal taxpayer information by a government official. The
Court disagrees.
The Sixth Circuit has narrowly construed the Supreme Court precedents of Whalen v.
Roe, 429 U.S. 589 (1977) and Nixon v. Administrator of General Services, 433 U.S. 425
(1977), holding that the right to privacy is triggered only when the interest at stake concerns
“those personal rights that can be deemed ‘fundamental’ or ‘implicit’ in the concept of
ordered liberty.” J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir.1981). Not all disclosures of
private information will trigger constitutional protection. “[T]he Constitution does not
encompass a general right to the nondisclosure of private information.” Jarvis v. Wellman, 52
F.3d 125, 126 (6th Cir.1995), quoting DeSanti, 653 F.2d at 1090.
Although we acknowledged the significance of a right of privacy, we found
that’[i]nferring very broad ‘constitutional’ rights where the Constitution itself
does not express them is an activity not appropriate to the judiciary.’
Jarvis, 52 F.3d at 126, quoting DeSanti, 653 F.2d at 1090.
Courts in this Circuit have declined to expand the right to privacy to the disclosure of
social security numbers, which this Court deems comparable to the disclosure of income tax
information. Pitts v. Perkins Local School Bd. of Educ., 2006 WL 1050675, No. 1:05CV2226
(N.D.Ohio April 19, 2006); Lambert v. Hartmann, 2006 WL 3833529, No. 1:04CV837
(S.D.Ohio Dec. 29, 2006). While this Court is certainly cognizant of the problems, such as
financial harm from identity theft or personal embarrassment that may arise from the release
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of tax information, Brownlee’s situation fails to reach the magnitude of liberty deprivation.
As this Court is unpersuaded that the protection from disclosure of one’s income tax
information (filing or not filing and paying or failing to pay) is a fundamental constitutional
right; and in keeping with the Sixth Circuit’s admonition to refrain from inferring
constitutional rights where not expressly enunciated, the Court holds that Brownlee’s Third
Cause of Action for violation of the right of privacy fails.
Insofar as Brownlee is making a substantive due process claim, the Court likewise
finds in favor of Defendant Lansky.
The substantive due process guarantee protects against government power arbitrarily
and oppressively exercised. Daniels v. Williams, 474 U.S. 327, 331 (1986). For more than a
half a century, the Supreme Court has described that level of abuse of power as that which
shocks the conscience. Rochin v. California, 342 U.S. 165, 172-173 (1952) (finding the
forced pumping of a suspect’s stomach enough to offend due process as conduct “that shocks
the conscience” and violates the “decencies of civilized conduct.”). In Breithaupt v. Abram,
352 U.S. 432 (1957), the Supreme Court repeats the principle that conduct that “‘shocked the
conscience’ and was so ‘brutal’ and ‘offensive’ that it did not comport with traditional ideas
of fair play and decency” would violate substantive due process. Id at 435.
Substantive due process serves the goal of preventing “governmental power from
being used for purposes of oppression,” regardless of the fairness of the procedures used. See
Daniels, 474 U.S. at 331. Substantive due process serves as a vehicle to limit various aspects
of potentially oppressive government action. Id. It serves as a check on official misconduct,
which although not infringing on a fundamental right, is so literally “shocking to the

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conscience,” as to rise to the level of a constitutional violation. Howard v. Grinage, 82 F.3d
1343, 1349 (6th Cir.1996).
A citizen, however, does not suffer a constitutional deprivation every time he is
subjected to some form of harassment by a government agent. Parate v. Isibor, 868 F.2d 821,
833. The conduct asserted must be “so severe, so disproportionate to the need presented, and
such an abuse of authority as to transcend the bounds of ordinary tort law and establish a
deprivation of constitutional rights.” Id.
Brownlee identifies several instances when Lansky publicized Brownlee’s purported
failure to comply with the City’s income tax laws. In fact, at one point, Lansky made the
charge in a sarcastic, political flyer that was distributed by mail to Maple Heights voters.
Taking these facts at face value since they are undisputed by Lansky, they still do not
demonstrate conduct which shocks the conscience, which is brutal or offensive or which does
not comport with traditions of fair play and decency so as to violate substantive due process
guarantees. This is especially so in the well-known, highly volatile realm of politics.
State law claims
Plaintiffs allege state law claims of invasion of privacy and defamation against
Lansky. 28 U.S.C. § 1367 grants district courts supplemental jurisdiction over all claims
“that are so related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States Constitution. 28 U.S.C.
§ 1367(a). The statute also grants district courts the discretion to dismiss pendent state law
claims if all federal claims have been dismissed. 28 U.S.C. § 1367(c)(3). The Court has
determined that Plaintiffs’ claims of First Amendment violations and right of privacy

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deprivations have no merit. Since the remaining claims do not arise under federal law, do not
invoke remedies expressly granted by the U.S. Constitution or an act of Congress, nor present
a “pivotal question of federal law”, those state claims in Plaintiffs’ Complaint are dismissed
without prejudice.
III. CONCLUSION
For these reasons, the Motion (ECF DKT #39) of Defendant, Jeffrey A. Lansky, for
Summary Judgment is granted as to Plaintiffs’ federal claims. The Court declines to exercise
supplemental jurisdiction over the pendent state law claims and dismisses them without
prejudice.
Defendant Lansky’s Counterclaim for defamation is purely a state claim which the
Court likewise declines to adjudicate under its supplemental jurisdiction. Consequently, the
Motion (ECF DKT #38) of Counterclaim-Defendant William Brownlee for Summary
Judgment on the Counterclaim of Defendant Jeffrey Lansky is denied as moot.
In addition, as discussed previously, Plaintiffs’ three Motions to Strike (ECF DKT
#43; ECF DKT #56; ECF DKT #57) are denied as moot.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 10, 2017

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