Paige v Coyner and Board of Commissioners

The 6th Circuit Court of Appeals released a very interesting opinion towards the end of July. In Paige v Coyner and Board of Commissioners, the plaintiff attended a public hearing and spoke in opposition to a new interstate highway project. Although the plaintiff did not identify herself as an employee, she was in fact employed by a firm involved in development in the area, and her opposition allegedly caused the public official in charge of getting approval for the project to call her employers. During the phone call, the public official mistakenly told the employer that the plaintiff identified herself as their employee during the public hearing and encourage them to discharge plaintiff from their employ. Within a week, they fired her.

Retaliation by public officials for the exercise of First Amendment freedoms is certainly nothing new. The question in this case however was whether the alleged encouragement by the public official to a private employer was sufficient to vest a right to sue under §1983. The Court of Appeals found that it was.

[The public official] could thus be liable not because the firing itself was state action, but because a jury might find that the firing was a reasonably foreseeable consequence of the action taken by [that official]. In other words, once there has been state action (here, the phone call), the proper test for the scope of responsibility for events flowing from that action is reasonable foreseeability, not how close the nexus is between the private actors and the state actors.

The Sixth Circuit went on to analyze the remaining elements of the First Amendment retaliation claim, as well as whether or not there was a sufficient allegation to hold the Board of Commissioners, concluding in each case that there was, and as a result reversing the decision of the District Court dismissing the case.

This decision makes very interesting reading and once again serves to emphasize that public officials should not be involved in taking any action that might be deemed an effort to curtail freedom of speech.

A Sorry State of Affairs: The Writ of Certiorari

We don't really need a reminder, but we got one the other day from the Tennessee Court of Appeals: to file a petition for (common law or statutory) writ of certiorari properly, the facts must be verified, that is, sworn to by someone with knowledge. In Brundage v Cumberland County (Tenn App August 4, 2010), a statutory writ of certiorari was requested but not verified. The petition sought to challenge the development of a landfill. But without verification within 60 days of the action of the administrative body, the trial court lacks subject matter jurisdiction and the case must be dismissed. Which is what happened here; the Court of Appeals affirmed. As the court said:

The case law consistently holds that the failure of the petitioner to verify the petition as required by the Constitution and the statute is proper grounds for dismissal, as the court does not obtain jurisdiction without a properly verified petition.

This is truly unfortunate. It is simply a trap for the unwary. The courts are correct about the law, but why should a case not be decided on the merits? Why should it be tossed out for failure to verify? In fact, in most of these kinds of cases, the facts are almost agreed upon by the parties anyway. The real issue usually is how is the law to be applied to the facts. Verification is largely irrelevant. Tennessee needs a different method of review, one that doesn't have numerous traps for unwary litigants.

Let me review for just a moment the number of little tricks in the writ of certiorari:

The petition must:

– be verified, that is notarized and sworn to as true (TCA § 27-8-106)
– state that it is the first application for extraordinary relief (TCA § 27-8-106)
– state that there is no other plain, speedy or adequate remedy (TCA §27-8-101)
– allege that the petitioner is aggrieved (TCA §27-9-101)
– be filed within 60 days (TCA §27-9-102)

And, by the way, if the neighbors are the petitioners, then the attorney must be extra careful to establish standing.

I have used these technical challenges to obtain dismissals of cert petitions myself. But I never feel very good about it. It's time Tennessee had a better way of reviewing local government land use decisions. Certiorari has out lived its usefulness.

Stoneybrook Golf Course v. City of Columbia

Stoneybrook Golf Course v. City of Columbia is an interesting new (dated July 26, 2010) zoning decision from the Tennessee Court of Appeals. The primary issue is whether an ostensible "agreement" between a developer and a city (or rather certain members of the city council) to annex and zone property in a certain way is an enforceable "contract." Well, of course it isn't. No one who works in this area of the law would ever believe that. That's way real estate development is so risky: city council members change their minds, even if they were ever in the developer's corner in the first place.

Typically, the developer may speak to members of the city council and they may agree that the proposal sounds like a good one. But of course, once the word gets out about the proposal, and public hearings begin, the neighbors may point out problems with the proposal. Should the city be bound by such informal agreements? By a judgment made without the benefit of notice and an opportunity to be heard by the surrounding neighbors? No. And that's what the law says.

In fact, even if the government passes a zoning ordinance and then changes its mind and repeals it, even if the developer has now bought the property and is in the process of developing it, the law says that the government may change the zoning without harm. Only if the developer has obtained a building permit and substantial construction has taken place is there any issue of vested rights which might preclude the zoning change. Frankly, in 30 years of practice, I've never seen a case of substantial construction. It is very difficult to argue vested rights in Tennessee or elsewhere.

This case also has an interesting section about general or comprehensive plans.