IV. Redress of Grievance Clause; Retaliation

• Library: Litigating Religious Land Use Cases (ABA) (2016 Ed.)

IV. Redress of Grievance Clause; Retaliation

The very last clause of the First Amendment is one that is often overlooked: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" (emphasis added).

Claims arising out of the redress of grievances clause are commonly known as First Amendment retaliation cases. These types of cases should also be considered in the land use context. To succeed on this claim, a plaintiff must demonstrate that (1) he or she was engaged in a constitutionally protected activity, (2) the defendant's adverse conduct caused the plaintiff to suffer an injury that would likely stop an ordinary person from continuing to engage in that activity, and (3) the adverse action was motivated, at least in part, in response to plaintiff exercising his or her constitutional rights.¹⁷⁶

A First Amendment retaliation claim often arises when a person speaks in opposition to a city or township's decisions at a local public meeting and in response the city or township takes action to "get back" at that person for the criticisms voiced at the public meeting. A similar retaliation claim might arise when a religious organization verbally or otherwise contests the decision of the local government agency on a requested permit.

In a case decided by the Sixth Circuit, the court addressed a First Amendment retaliation claim brought by a private citizen against a township and its supervisor. In Fritz v. Charter Township of Comstock,¹⁷⁷ the plaintiff worked out of her home office as an independent Farm Bureau Insurance agent.¹⁷⁸ Fritz applied for a special use permit to operate the home office, and the permit was issued in October 2005.¹⁷⁹ While her permit application was pending, Fritz attended several township meetings. At various meetings, the township supervisor apparently expressed his frustration with Fritz monitoring the meetings and tried to intimidate her from coming to future meetings.¹⁸⁰

Soon after the permit was issued to Fritz, various township residents and officials purportedly made false statements about Fritz, and in response she complained to the township supervisor.¹⁸¹ The supervisor apparently spoke with Fritz's Farm Bureau supervisors three different times about Fritz's conduct at the township meetings and her general reputation within the community.¹⁸² In addition, a township-planning commissioner called the Farm Bureau supervisors to express his displeasure with Fritz bringing a lawyer to a planning commission meeting.¹⁸³

In response to these calls, Fritz's employer discussed changing her behavior within the community and eventually terminated Fritz's relationship with the Farm Bureau based on her "controversial community relations with [her] neighbors and with the local governmental unit."¹⁸⁴ After her termination, Fritz filed suit, alleging that the township unlawfully retaliated against her for publicly exercising her First Amendment rights at the township meetings, as well as various state tort violations.¹⁸⁵ The district court dismissed the First Amendment retaliation claim and declined to hear the state law claims after it dismissed the federal claim. Fritz appealed the district court's decision regarding the retaliation claim.¹⁸⁶

On appeal, the Sixth Circuit determined that Fritz's complaint sufficiently stated a claim for First Amendment retaliation. To do so, she had to demonstrate two elements: that the township acted under color of law, and that the township's conduct deprived her of rights secured under federal law.¹⁸⁷ First, the lower court did not dispute whether the township supervisor acted under color of law. With respect to whether the township's conduct constituted retaliation based on a prior exercise of her First Amendment rights, the court noted three factors Fritz must demonstrate:

(1) the plaintiff engaged in constitutionally protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was motivated at least in part by the plaintiff's protected conduct.¹⁸⁸

Here, the township did not contest that Fritz engaged in public comment at township meetings and that the First Amendment protected that such actions.¹⁸⁹ In addressing the "adverse action" the township took against Fritz, the court noted that Fritz sufficiently pled a "set of facts" that could entitle her to relief, and the specifics of the conversations between the township supervisor and Fritz's supervisors at Farm Bureau could be discovered through depositions.¹⁹⁰ Also, the facts could demonstrate that the supervisor's statements were specifically targeted toward Fritz's economic livelihood.¹⁹¹ Further, Fritz had demonstrated that the township's denial of her zoning and sign variances were motivated in part by her protected conduct at the township meetings.¹⁹²

Thus, based on these findings, the Sixth Circuit reversed the district court's grant of summary judgment in favor of the township with respect to the First Amendment retaliation claim, and it remanded the matter for further proceedings.¹⁹³

Paeth v. Worth Township is a textbook First Amendment retaliation case.¹⁹⁴ George and Margaret Paeth have spent the past decade dreaming of the day they could complete their marital home in Worth Township. They certainly knew how to do it. George Paeth has worked with building codes and zoning ordinances for three decades in his work in the construction business.¹⁹⁵ Yet, despite the Paeths' compliance with all building codes and zoning ordinances, Worth Township dragged the couple through a ten-year ordeal that has prevented the completion of construction on their home to this day. In the meantime, they continue to live in a condo that is no bigger than 500 square feet and have spent their life savings and retirement funds fighting against vindictive township officials in both state and federal court. The Paeths were finally vindicated when a federal jury found that the Paeths had been repeatedly stripped of their constitutional rights at the hands of the township.

Worth Township is a Michigan Municipal Corporation located in Sanilac County, Michigan. Based on the 2009 American Community Survey, Worth Township had a population of 3,874 residents. The township, which is located about 80 miles northeast of Detroit, is governed by a township supervisor, a township clerk, and two township trustees who hold regular meetings to discuss government business.¹⁹⁶

In 1998, shortly after they were married, the Paeths purchased the home and lot at 7433 Maplewood in Worth Township.¹⁹⁷ The Paeths set about securing the appropriate permits and received a building permit from Sanilac County in June 1999.¹⁹⁸ They met with Barbara Cutcher, who signed off on the Paeths' land use application.¹⁹⁹ Cutcher, then the township zoning administrator, assured the Paeths that the fact that the northwest corner of their home did not conform with the side-yard setback requirements was not a problem and construction could proceed.²⁰⁰ The Paeths soon began construction.

In 2003, two years after Worth Township created its own building department, Cutcher informed the Paeths their 1999 building permit was invalid.²⁰¹ Significant construction and remodeling had already been completed.²⁰² Despite the Paeths' correct belief that the permit had not expired, they applied for and received a new building permit in 2003 from Worth Township.²⁰³ The following year, five years after the initial building permit was issued, the township first informed the Paeths that the northwest corner of their home violated the side-yard setback requirement and a variance would be needed from the Worth Township Zoning Board of Appeals (ZBA).²⁰⁴ The township threatened the Paeths that their home would be demolished or they would be fined $1,000 per day so long as the variance was not secured.²⁰⁵

The Paeths applied for the variance.²⁰⁶ The ZBA did not grant the Paeths a hearing for the variance until 11 months after the request was submitted and eventually denied the variance.²⁰⁷ The Paeths successfully appealed the denial to the Sanilac County Circuit Court, which remanded the matter to the ZBA in January 2005.²⁰⁸ Furious that the Paeths had won in the circuit court, the ZBA did not notify the Paeths of the date and time of the second meeting in May 2006.²⁰⁹ Instead, the township sent a letter to the wrong address.²¹⁰ However, even if the proper address had been used, the Paeths would not have received notice before the hearing.²¹¹

After the ZBA denied the variance a second time, without the Paeths present, the Paeths again successfully appealed to the Sanilac County Circuit Court, which ordered the zoning board to hold a third hearing. The zoning board held the third meeting and denied the variance yet again.²¹² Finally, the Sanilac County Circuit Court reversed the zoning board and granted the variance—three years after the Paeths had first applied to the zoning board.²¹³ Afterward, the township took the extraordinary step of appealing the circuit court's decision to the Michigan Court of Appeals, which affirmed the decision and denied reconsideration.²¹⁴

The Paeths thought their troubles were over and construction could resume.²¹⁵ Instead, Cutcher, at the behest of the most senior township officials, posted a "stop work" order on the Paeths' home on Nov. 5, 2007.²¹⁶ When asked why the order was posted, the inspector, Barbara Cutcher, explained that she was told to post the order by township officials because the township was not appealing the Paeths' circuit court win.²¹⁷ The order was posted without the Paeths having notice or an opportunity to be heard before being deprived of their property interest.²¹⁸

The Paeths did not remove the order...