111111111Un "15004141CZ" - Americans United for Separation of ...

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STATE OF MICHIGAN IN THE 20th CIRCUIT COURT FOR THE COUNTY OF OTTAWA 414 Washington Street Grand haven, Michigan 49417 (616) 846-8320

CITIZENS OF GRAND HAVEN, JANE DOE 1, JANE DOE 2, and JOHN DOE, O P I N

I

O

N

AND ORDER

Plaintiffs, File No. 15-4141-CZ CITY OF GRAND HAVEN,

Hon. Jon Hulsing Circuit Court Judge

Defendant.

Plaintiffs brought suit against the City of Grand Haven regarding Resolution 15-013, passed on January 5, 2015, by the Grand Haven City Council, which limited public access on Dewey Hill and closed i t as a public forum. Plaintiffs are seeking a declaration that the Resolution was an unconstitutional regulation of religious speech. Plaintiffs request a permanent injunction against enforcement of the Resolution, nominal damages, and the award of attomey's fees. Defendant, the City of Grand Haven, has moved for summary disposition on plaintiffs' claims. I t maintains that plaintiffs' complaint failed to state a claim on which relief can be granted and should be dismissed pursuant to MCR 2.116(C)(8). Defendant has also raised the issue of whether the plaintiff identified as "Citizens o f Grand Haven" is an entity with the capacity to bring a lawsuit. Another preliminary issue before the court is the plaintiffs' request for anonymity. Before addressing the issues related to dismissal pursuant to MCR 2.116(C)(8), the court will consider whether this action can be brought by the "Citizens of Grand Haven" and whether the plaintiffs in this action may proceed anonymously. These issues have been extensively briefed by the parties and the court heard oral argument on these issues on May 29, 2015.

111111111Un "15004141CZ"

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Unincorporated Voluntary Association

Both the original complaint and the amended complaint list "Citizens of Grand Haven" (Citizens) as the lead plaintiff but do not further identify Citizens as an incorporated entity or as an unincorporated voluntary association. I n its motion for summary disposition, defendant raised the question of whether Citizen has the capacity to sue or be sued pursuant to MCL 600.2051. In plaintiffs' reply brief, plaintiffs' attorney described Citizens as "an unincorporated voluntary association o f taxpaying citizens" who signed a petition in support of the City continuing to allow a cross to be displayed on Dewey Hill. This petition, with several hundred resident and non-resident signatures, was presented to the mayor on December 1, 2014, and asked the City to use City resources to "legally defend any action to remove" the cross on Dewey Hi11.1 Plaintiffs' attorney argued that Citizens is allowed to sue under MCR 2.201(C)(3) as an "unincorporated voluntary association having a distinguishing name." The amended complaint does not, however, allege a factual basis upon which this court can conclude that Citizens is an unincorporated voluntary association. Moreover, the contention that the petition-signers formed an unincorporated voluntary association is not supported by the information plaintiffs' attorney provided in her brief or in oral argument. The two cases plaintiffs' attorney cited in support of her argument that Michigan has a long history o f allowing unincorporated voluntary associations to bring lawsuits also fail to support her contention. The size of the group is clearly not at issue, making irrelevant the court's approval in Cody Park Ass'n v Royal Oak Sch Dist, 116 Mich App 103, 110; 321 NW2d 855 (1982), of a very small association.2 Allen v Duffi), 43 Mich 1; 4 NW 427 (1880), which plaintiffs' attorney cited to show that Michigan allowed a loosely organized association to sue, also fails to support her claim. I n Allen, a group of men who associated together to build a church sued to collect on a pledge made in a subscription drive during which several men Plaintiffs' Ex 1, submitted at the May 29, 2015, hearing. 2Contrary to the case at bar, the caption of Cody Park clearly identified the plaintiff as an unincorporated voluntary association, a fact noted by the Court of Appeals. Cody Park, 116 Mich App at 110.

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promised to give funds to the church. Plaintiffs' attorney claimed that the Allen case demonstrates an early recognition of standing to sue as a voluntary association, even though there was no evidence of corporate action other than the pledge of funds for the church and the list of pledgers was lost. A careful reading of the Allen case, however, reveals that all the litigants sued or were sued as individuals. Information about the associations into which the litigants entered (church-builder trustees and subscription pledgers) was supplied as background information, but an association was not named as a party in Allen. The named plaintiffs were identified as "trustees" of the Methodist Protestant Church of Brockway circuit. There was no claim that the church did not have an organizational structure. Each o f the church-builder trustees was named as an individual and the trustees sued a single individual, Mr. Allen, for payment of his particular $25 pledge. The deciding issue before the Supreme Court in Allen was not whether the suit should fail because a corporate existence was not made out. T h e court held that the trustees o f an unincorporated association could collect subscriptions, id. at 4, and declared: " T h e principle question in the case is whether the contract was void because made on Sunday." Id. at 5. The Allen case is thus irrelevant to this action. The question of concern here is whether Citizens, which plaintiffs' attorney described as a collection of people who signed a petition directed at the City of Grand Haven, which asked the City to take action to defend the cross located on Dewey Hill, can be deemed to have, by virtue of signing the petition, formed an unincorporated voluntary association and authorized a lawsuit by the association against the City regarding the cross. Michigan courts have not often had the occasion to examine the basic formation and structure of an unincorporated voluntary association. In Moore v Hillsdale Co Tel Co, 171 Mich 388, 389; 137 NW 241 (1912), the court examined the Waldron Telephone Exchange, an association o f neighbors to provide telephone service. T h e court noted that this voluntary association had by-laws, held meetings, and took actions based on majority voting. The court did not decide the question of whether the unincorporated voluntary association could sue in its name and the case caption named the individual members. The court did, however, recognize the unincorporated voluntary association as an ongoing concern and enforced the terms of its 3

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bylaws on the question of whether the Hillsdale County Telephone Company could obtain a controlling interest in the association. Id. at 399. The court's treatment o f the Waldron Telephone Exchange is consistent with legal definitions o f an unincorporated voluntary association and dictionary definitions o f an association, which indicate that an association has an organizational form and procedural rules. An "association" is defined in Webster's New International Dictionary, Third Edition, (1965), as follows: An organization of persons having a common interest, A body of persons organized for the prosecution of some purpose having no charter from the state, but having the general form and mode of procedure of a corporation, A formal or secondary social group expressly organized to satisfy the specific intents and purposes of its members. (Emphasis added). Black's Law Dictionary, Tenth Edition, (2014), defines "unincorporated association" as: An unincorporated organization that is not a legal entity separate from the people who compose it. (Emphasis added.) Other jurisdictions that have examined the basic requirements for unincorporated voluntary associations have also required some form o f organization. I n Underwriters at Lloyd's, London v Osting-Schwinn, 613 F3d 1079, 1089 (CA 11 2010), the court commented: the Lloyd's syndicates are classic examples o f unincorporated associations; they are -bod[ies] o f persons acting together, without a charter, but upon the methods and forms used by corporations, for the prosecution of some common enterprise." Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1222 (5th Cir.1969). (Emphasis added). Several other courts provide similar definitions? 3See also Executive Bd of Missouri Baptist Convention v Carnahan, 170 SW3d 437, 445-46 (Mo Ct App 2005)("An 'association' is 'a body of persons acting together, without a charter, but upon the methods and forms used by incorporated bodies, for the prosecution of some common enterprise.' Clark v. Grand Lodge o f Bhd. o f R,R. Trainmen, 328 Mo. 1084,43 S.W.2d 404, 408 (1931). An association ordinarily operates in a manner quite similar to a corporation."); F o u r Way Plant Farm, Inc v Nat! Council on Comp Ins (IVCCI), 894 F Supp 1538, 1545-46 (MD Ala 1995)( defining association as "'a body of persons acting together, without a charter, but upon the methods and forms used by corporations, for the prosecution of some common enterprise.' Penrod Drilling Co., 414 F.2d at 1222 (quoting 7 C.J.S. Associations § 1, at p. 19).")

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The Michigan Court Rules regarding unincorporated voluntary associations are premised on an assumption that such associations will have an organizational form. M C R 2.105(E) provides: Service of process on a partnership association or an unincorporated voluntary association may be made by (1) serving a summons and a copy of the complaint on an officer, director, trustee, agent, or person in charge of an office or business establishment of the association, and (2) sending a summons and a copy of the complaint by registered mail, addressed to an office of the association. I f an office cannot be located, a summons and a copy o f the complaint may be sent by registered mail to a member o f the association other than the person on whom the summons and complaint was served. The Michigan Rules o f Professional Conduct also support the proposition that an unincorporated voluntary association must have an organizational form and a decision-making process for it to be represented in court. MRPC 1.13 spells out the rules governing an attorney who is representing an organization. T h e Comments section o f MRPC 1.13 provides: "Unincorporated Associations. The duty defined i n this rule applies t o unincorporated associations." The MRPC 1.13 Comments also explain the need for an attorney who represents an association to work with an intermediary who legitimately represents the association: The Entity as the Client. In transactions with their lawyers, clients who are individuals can speak and decide for themselves, finally and authoritatively. In transactions between an organization and its lawyer, however, the organization can speak and decide only through agents, such as its officers or employees. In effect, the client-lawyer relationship is maintained through an intermediary between the client and the lawyer. This fact requires the lawyer under certain conditions to be concerned whether the intermediary legitimately represents the client. A list of people who simply signed a petition cannot be described as an unincorporated voluntary association under any o f these definitions. Defendant has raised concerns as to whether the petition signers have consented to be plaintiffs in this matter and consented to be

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represented by plaintiffs' attorney. Plaintiffs' attorney did not present any evidence (1) that the signers have an organizational form and decision-making procedures, (2) that they agreed, as an association, to institute this lawsuit against the City of Grand Haven, or (3) that the association identified an agent to act as an intermediary between the association and its lawyer. I n the absence of evidence showing that the petition-signers created and are acting as an association, Citizens does not meet the most basic criteria for an unincorporated voluntary association and cannot bring a legal action under MCR 2.201. Anonymity

The individual plaintiffs in the amended complaint are proceeding under pseudonyms. The question of whether a party may proceed anonymously in a lawsuit is left to the discretion of the court. A s a general rule, a complaint must state the names of the parties. MCR 2.113(D)(1) requires that the names of the parties appear in the caption of a complaint and MCR 2.201(B) provides: "an action must be prosecuted in the name of the real party in interest." (Emphasis added). Plaintiffs' attorney argued in her briefs that anonymity should be permitted because religion is at issue, the debate over the cross on Dewey Hill has attracted "anti-Christian animus,"4 and plaintiffs are suing their city government. A t the hearing, she argued that the paramount threat to plaintiffs was a threat of retaliatory litigation by the person who initiated the discussion that led to Resolution 15-013. In federal courts, as explained in Citizens for a Strong Ohio v Marsh, 123 Fed Appx 630, 636-37 (CA 6, 2005), Illailure to seek permission to proceed under a pseudonym is fatal to an anonymous plaintiffs case, because, as the Tenth Circuit has held, 'the federal courts lack jurisdiction over the unnamed parties, as a case has not been commenced with respect to them.' Nat'l Commodity & Barter Assin, Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th

Cir.1989)." Plaintiffs in this case did not bring a motion for leave to proceed, but were directed to brief the matter by the court. Plaintiffs' briefs in support of anonymity are deemed a motion for leave to proceed under pseudonyms. The leading case in Michigan on assessing a party's request for anonymity is Doe v Bodwin, 119 Mich App 264; 326 NW2d 473 (1982). The court introduced the issue by stating: PI Reply Br, p 9. 6

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"Recent federal decisions make it clear that any right to proceed anonymously, as derived from the right to privacy, is not absolute." Id. at 266-67. I t explained, id. at 267, that the decision whether to permit fictitious names is "subject to a decision by the judge as to the need for the cloak of anonymity" and -requires a balancing of considerations calling for maintenance of a party's privacy against the customary and constitutionally-embedded presumption of openness in judicial proceedings". (Citations omitted.) The Fourth Circuit Court of Appeals recently examined the issue of anonymity in depth and reversed a district court's determination allowing anonymity. Doe v Public Citizen, 749 F3d 246, 273-75 (CA 4, 2014). T h e court emphasized that "proceeding by pseudonym is a 'rare dispensation." I d . at 273, quoting James v Jacobson, 6 F 3d 233, 239 (CA 4, 1993). I t explained, id at 274, that: Pseudonymous litigation undermines the public's right o f access to judicial proceedings. The public has an interest in knowing the names of the litigants, see Coe v. Cnty. of Cook, 162 F.3d 491, 498 (7th Cir.1998), and disclosing the parties' identities furthers openness of judicial proceedings, see Jacobson, 6 F.3d at 238. Public Citizen held that "when a party seeks to litigate under a pseudonym, a district court has an independent obligation to ensure that extraordinary circumstances support such a request by balancing the party's stated interest in anonymity against the public's interest in openness and any prejudice that anonymity would pose to the opposing party." Id. The factors to consider when making the assessment described in federal courts and in Bodwin include: (1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; (3) the ages of the persons whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and

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(5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.5 The first factor weighs in favor of anonymity because religion is considered a highly personal matter under the law. The Bodwin court, 119 Mich App at 267-268, noted that: The most common cases allowing party anonymity are those involving abortion, religion, illegitimate, abandoned o r abused children subject t o welfare proceedings, birth control, homosexuality, transsexuality, mental illness and personal safety. " T h e common thread running through these cases is the presence of some social stigma or the threat of physical harm to the plaintiffs attaching to disclosure o f their identities to the public record." (Citations omitted.) As the court stated in Doe v Stegall, 653 F2d 180, 186 (CA 5, 1981), "religion is perhaps the quintessentially private matter." I t should be noted however, that the decision to allow anonymous plaintiffs in Stegall was based not only on the factor of religion but also on threats of actual harm and, most critically, on the fact that the plaintiffs included children in the school whose religious practices were being challenged. I n Doe v Pittsylvania Co, Va, 844 F Supp 2d 724 (WD Va 2012), the court did not allow a plaintiff to proceed anonymously even though she was suing her local government on a religious issue and taking a position contrary to the beliefs of a majority of citizens in the area. A s defendant noted, the position taken by plaintiffs here is not contrary to the beliefs of a majority of local citizens. With respect to the second factor, in Stegall, 653 F2d at 186, evidence of threatened violent reprisals was a factor in allowing anonymity. The Pittsylvania court, 844 F Supp 2d at 733, noted that Ifiear o f humiliation and embarrassment or the threat o f economic harm, standing alone, is not a sufficient reason to grant a motion to proceed pseudonymously." Plaintiffs' attorney raised concern over "anti-Christian animus" and the threat of a retaliatory lawsuit and hate mail, but she did not present the threat of any actual risk of retaliatory physical or mental harm to the litigants. 5Quoting Doe v Pittsylvania Co, Va, 844 F Supp 2d 724, 728 (WD Va 2012). Bodwin, 119 Mich App at 267, did not include all of these factors in its list and included another factor that is not relevant here, whether "the plaintiff is compelled to admit an intention to engage in illegal conduct."

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The third factor also weighs against plaintiffs, who are not children, but adults. T h e Stegall case, which plaintiffs' attorney cited, found "especially persuasive t h e fact that plaintiffs are children." 653 F2d at 186. Plaintiffs' attorney mischaracterized the concern to be addressed in assessing the fourth factor, which is whether government is a defendant. Courts have evidenced some confusion as to the focus of this factor, but the focus of concerns has been clarified in the recent Public Citizens opinion. 749 F3d at 274. I t is not the case that individuals suing the government have a stronger claim to anonymity because defendant is a governmental unit. To the contrary, as the court explained in Public Citizen, id., the public has a strong interest in open judicial proceedings and that interest is especially compelling when a plaintiff is suing the government. Plaintiffs' attorney indicated that plaintiffs faced possible retaliation through increased assessments and argued that the identity o f plaintiffs should be kept secret because the case focused on a constitutional issue and there was thus no need to reveal the names of particular plaintiffs. The balancing of considerations does not however, start from the premise that plaintiffs should be anonymous unless there is a need for disclosure. Plaintiffs must overcome the "constitutionallyembedded presumption of openness in judicial proceedings." Bodwin, 119 Mich App at 267. As to the fifth factor, harm to defendants, it can be argued that because the parties have agreed that the individual plaintiffs would disclose their identities to defendant on the condition that they remain confidential, the risk of unfairness to defendant is obviated. B u t if motivation is an issue in the case, confidential disclosure may not be sufficient. I n Plusylvania, 844 F Supp 2d at 731, the court held that there was little risk in allowing the plaintiff to proceed anonymously

because her lawsuit opposing Christian prayer at board of supervisors meetings revolved around a single legal issue and did not turn on plaintiffs credibility or motivation. Here, because the cross on Dewey Hill is a politically-charged issue that could be related to the next city council election, motivation is potentially an issue.6

6The court takes judicial notice that an election for the Grand Haven City Council will take place on November 3, 2015. The slate of four candidates includes two current council members, who voted in favor of Resolution 15-013, and two challengers. The Court will also take judicial notice that immediately after this hearing, statements were made by individuals to local broadcast media stating that the Cross would be going back up on Dewey Hill either through the filing of a new lawsuit or after November elections. See http://fox17online.com/2015/05/29/courthearing-after-anonymous-group-files-lawsuit-against-city-of-grand-haven-to-reinstate-dewey-hill-crossi. 9

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Having considered the factors relevant to whether plaintiffs should be permitted to proceed anonymously, and balancing the considerations calling for anonymity against the presumption of openness in judicial proceedings, the balance overwhelmingly favors openness in this case. 7 Conclusion For the reasons set forth above, plaintiffs' request for leave to proceed under pseudonyms is DENIED and defendant's request to strike Citizens as a party is GRANTED. The case is DISMISSED on summary disposition on grounds o f lack of jurisdiction over the proposed plaintiffs, pursuant to MCR 2.116(C)(1).8 IT IS SO ORDERED. This is a final order that closes the case.

Dated:

,

2015 s ng, Circuit Judge

7Only one factor operates in favor of anonymity. The other four factors favor openness. The Court recognizes that not all factors need to be given equal weight. 8The Court orders that Citizens and the pseudonyms be struck from the pleadings under MCR 2.115(B) in that this pleading was filed in violation of the court rules; specifically MCR 2.201(B)—an action must be prosecuted in the name of the real party in interest. There being no named plaintiffs, there is no jurisdiction over this matter. See Citizens for a Strong Ohio, 123 Fed Appx at 636-637.

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