United States District Court, E.D. Michigan, Southern Division
ORDER DIRECTING SUPPLEMENTAL BRIEFING
H. CLELAND UNITED STATES DISTRICT JUDGE
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.
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.)
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.)
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-or-controversy
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).
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 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).
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 “pre-enforcement”
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).
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.
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.
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