Providence Baptist Church v. City of Eucid

CASE NO. 04-4542

 

UNITED STATES COURT OF APPEALS

FOR THIS COURT

 

                                                                                                                  

 

PROVIDENCE BAPTIST CHURCH, et al.,

Plaintiffs-Appellees,

 

v.

 

CITY OF EUCLID,

Defendant-Appellee,

 

v.

 

Hillandale Committee, Ltd.,

Intervenor-Appellant.

                                                                                                                  

 

Appeal From The United States District Court,

Northern District of Ohio, Eastern Division

                                                                                                                  

 

FINAL APPELLEES’ BRIEF OF PROVIDENCE BAPTIST CHURCH,

REVEREND RODNEY MAIDEN AND FRANCIS JAMES

                                                                                                                  

 

Sheldon Berns (0000140)

Gary F. Werner (0070591)

Berns, Ockner & Greenberger, LLC

37 Park, Suite 200

3733 Park East Drive

Beachwood, Ohio  44122

Phone:  (216) 831-8838

Fax:      (216) 464-4489

E-Mail:   sberns@bernsockner.com

             gwerner@bernsockner.com

Counsel for Plaintiffs-Appellees

 


 

CORPORATE DISCLOSURE STATEMENT

 

          Pursuant to Sixth Circuit Rule 26.1, Plaintiffs-Appellees, Providence Baptist Church, Reverend Rodney Maiden, and Francis James make the following disclosures:

          1.       Is said party, or any one of said parties, a subsidiary or affiliate of a publicly-owned corporation?     No   .

          2.       Is there a publicly-owned corporation, not a party to the appeal, that has a financial interest in the outcome?     No   .

 

_____________________________                            ______________________

Gary F. Werner, Esq.                                             Date

Attorney for Plaintiffs-Appellees

 

 

 


TABLE OF CONTENTS

 

 

CORPORATE DISCLOSURE STATEMENT................................................ i

 

TABLE OF CONTENTS................................................................................. ii

 

TABLE OF AUTHORITIES........................................................................... v

REQUEST FOR ORAL ARGUMENT........................................................... 1

STATEMENT OF SUBJECT MATTER

AND APPELLATE JURISDICTION............................................................. 2

STATEMENT OF ISSUES FOR REVIEW................................................... 3

STATEMENT OF CASE................................................................................ 5

          A.      The Nature of the Case................................................................. 5

          B.      The Course of the Proceedings.................................................... 5

          C.      Disposition Below......................................................................... 6

STATEMENT OF FACTS.............................................................................. 8

          A.      The Parties.................................................................................... 8

          B.      The City of Euclid, Ohio............................................................... 9

          C.      The Property............................................................................... 10

          D.      Providence’s Attempt to Rezone the Property........................... 11

          E.      The Proceedings Below.............................................................. 12

          E.      The District Court’s Rulings....................................................... 15

SUMMARY OF ARGUMENT...................................................................... 17

ARGUMENT.................................................................................................. 19

I.       STANDARD OF REVIEW.................................................................. 19

 

II.      NOT BEING IN FACT THE ENTITY THAT CIRCULATED

          THE SUBJECT REFERENDUM PETITION AND THAT REPRESENTED ITS SIGNATORIES, HILLANDALE

          POSSESSES NONE OF THE RIGHTS TO INTERVENE,

          REAL OR HYPOTHESIZED, WHICH THE ENTITY

          ACTUALLY RESPONSIBLE MIGHT POSSESS.............................. 20

 

III.     THE DISTRICT COURT PROPERLY DENIED.............................. 29

          HILLANDALE’S MOTION TO INTERVENE

 

          A.      Hillandale failed to demonstrate grounds for intervention as

                   of right under Fed. R. Civ. Proc. 24(a)........................................... 29

 

                   1.       Hillandale had no “protectable legal interest” in

                             preserving the outcome of the 11/2/04 election..................... 30

 

                             i)        Preserving a particular set of laws is not a

                                       legitimate interest for intervention purposes.......... 31

 

                             ii)       Petition circulators and signatories are by

                                      definition involved only in qualifying issues for inclusion on the ballot, not advocating a

                                      particular election outcome..................................... 36

 

                   2.       Any alleged interest Hillandale may have had in securing

                             the exercise of the referendum right at the 11/2/04 election became moot on November 3, 2004 after the vote occurred............................ 37

 

                   3.       The City quite adequately represented the legitimate

                             interests at stake in the lawsuit, obviating Hillandale’s participation  40

 

          B.      The District Court did not abuse its discretion in denying

                   Hillandale motion for permissive intervention under

                   Fed. R. Civ. Proc. 24(b)................................................................ 43

 

          C.      The District Court did not abuse its discretion in denying

                   Hillandale’s Motion to Intervene for Hillandale’s failure to

                   comply with the mandatory requirements of

                   Fed. R. Civ. Proc. 24(c)................................................................ 44

 

IV.     HILLANDALE MUST, BUT DOES NOT HAVE STANDING

          TO APPEAL FROM THE CONSENT JUDGMENT BELOW......... 48

 

V.      CONCLUSION..................................................................................... 52

         

CERTIFICATE OF COMPLIANCE

WITH TYPE-VOLUME LIMITATION........................................................ 54

 

CERTIFICATE OF SERVICE..................................................................... 55

 

DESIGNATION OF APPENDIX.................................................................. 56

 

 


TABLE OF AUTHORITIES

Federal Cases

 

Abramson v. Pennwood Inv. Corp., 392 F.2d 759 (2d Cir. 1968)....................... 46

 

Affholder v. Preston Carroll Co., 866 F.2d 881 (6th Cir. 1989)........................... 38

 

Allen v. Wright, 468 U.S. 737 (1984)................................................................. 38

 

Alternative Research and Development Foundation v. Veneman, et al.,

          262 F.3d 406 (D.C. Cir. 2001)............................................................ 50, 51

 

Athens Lumber Co. v. Federal Election Comm’n, 690 F.2d 1364

          (11th Cir. 1982)............................................................................ 26, 27, 28

 

Bryant v. Yellen, 447 U.S. 352 (1980)................................................................ 49

 

Carras v. Williams, 807 F.2d 1286 (6th Cir. 1986)............................................. 38

 

Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) 13

 

County of Los Angeles v. Davis, 440 U.S. 625 (1979)......................................... 39

 

County of Oakland v. City of Detroit, 866 F.2d 839 (6th Cir. 1989)

 

Crane v.  Ind.  High Sch.  Athletic Ass’n, 975 F.2d 1315 (7th Cir. 1992)............ 39

 

Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003).............................................. 35

 

Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389 (6th Cir. 1993)........................... 29

 

Deakins v. Monaghan, 484 U.S. 193 (1988)...................................................... 38

 

Diamond v. Charles, 476 U.S. 54 (1986)......................... 24, 32, 34, 35, 46, 48, 49

 

Donaldson v. U.S., 400 U.S. 517 (1971)............................................................ 31

 

Employment Division of Human Resources of Oregon  v. Smith,

          494 U.S. 872 (1990)................................................................................ 13

 

Fleet Aerospace Corp. v. Holderman, 848 F.2d 720 (6th Cir. 1988).................... 38

 

FTC v. Owens-Corning Fiberglas Corp., 853 F.2d 458 (6th Cir. 1988)........ 20, 51

 

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979)......................... 49

 

Green v. Ameritech Corp., 200 F.3d 967 (6th Cir. 2000)..................................... 19

 

Grubbs v. Norris, 870 F.2d 343 (6th Cir. 1989).................................................... 2

 

In re South State Street Bldg. Corp., 140 F.2d 363 (7th Cir. 1943)..................... 45

 

Johnson v. City of Memphis, 73 Fed. Appx. 123 (6th Cir. 2003)......................... 39

 

Jordan v. Michigan Conf. of Teamsters Welfare Fund, 207 F.3d 854

          (6th Cir. 2000)................................................................................... 19, 31

 

McPherson v.  Mich.  High Sch.  Athletic Assoc., Inc., 119 F.3d 453

          (6th Cir. 1997)......................................................................................... 39

 

Meyer Goldberg, Inc.  v. Fisher Foods, Inc., 823 F.2d 159 (6th Cir. 1987)........... 2

 

Michigan v. Meese, 853 F.2d 395 (6th Cir. 1988)............................................... 38

 

Michigan AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997)............. 25, 26, 27, 29

 

Mine Workers v. Eagle-Picher Mining & Smelting Co., 325 U.S. 335 (1945)..... 49

 

Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985)........................................... 47

 

Purnell v. City of Akron, et al., 925 F.2d 941 (6th Cir. 1991).............................. 19

 

Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584 (1993).................. 46

 

Rettig v. Kent City School Dist., 788 F.2d 328 (6th Cir.).................................... 38

 

Shevlin v. Schewe, 809 F2 447 (7th Cir. 1987)................................................... 45

 

Sierra Club v. Morton, 405 U.S. 727 (1972)...................................................... 32

 

Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976)................. 49

 

U.S. v. Hooker Chems. & Plastics Corp., 749 F.2d 968 (2d Cir. 1984)............... 41

 

U.S. v. Texas E. Transmission Corp., 923 F.2d 410 (5th Cir. 1991).................... 44

 

Valley Forge Christian College v. Americans United for Separation

          of Church & State, 454 U.S. 464 (1982)............................................. 38, 50

 

WJW-TV, Inc. v. Cleveland, 878 F.2d 906 (6th Cir. 1989)............................ 38, 39

 

State Cases

 

State ex rel. Comm. For the Referendum of Ordinance No. 77-101

          v. Lorain Cty. Bd. of Elections, 74 N.E.2d 239 (2002).............................. 33

 

State ex rel. Ryant Comm. v. Lorain Cty. Bd. of Elections,

          712 N.E.2d 696 (1999)............................................................................. 34

 

State ex rel. Super America Group v. Licking Cty. Bd. of Elections,

          685 N.E.2d 507 (1997)............................................................................. 34

 

Constitutions

 

Ohio Constitution, Article I, Section 3............................................................ 5, 12

 

Ohio Constitution, Article I, Section 7............................................................ 5, 12

 

Ohio Constitution, Article I, Section 11.......................................................... 5, 12

 

Ohio Constitution, Article I, Section 19.............................................................. 14

 

United States Constitution, Article III........................... 2, 3, 4, 7, 18, 38, 48, 49, 50

 

United States Constitution, Article III, Section 1................................................. 38

 

United States Constitution, Ist Amendment..................................................... 5, 12

 

United States Constitution, XIVth Amendment................................................ 5, 12

 

Statutes

 

42 U.S.C. §1982........................................................................................... 6, 12

 

42 U.S.C. §1983............................................................................................... 14

 

42 U.S.C. §1988...................................................................................... 6, 12, 14

 

42 U.S.C. §2000cc........................................................................................ 6, 14

 

42 U.S.C. §2000cc-1......................................................................................... 35

 

Civil Rights Act of 1871...................................................................................... 6

 

Ordinances

 

Ordinance No. 12-2004, City of Euclid, Ohio..................................................... 20

 

Ordinance No. 13-2004, City of Euclid, Ohio..................................................... 20

 

U4 Local Retail or Wholes Stores Districts, City of Euclid, Ohio........................ 10

 

U7 Light Industrial Park District, City of Euclid, Ohio......................................... 10

 

Rules

 

6 Cir. R. 27(e)(1).............................................................................................. 37

 

6 Cir. R. 28(e).................................................................................................... 1

 

Fed R. Civ. Proc. 24.............................................................................. 17, 43, 48

 

Fed R. Civ. Proc. 24(a).................................................................... 16, 29, 30, 41

 

Fed R. Civ. Proc. 24(a)(1)................................................................................. 29

 

Fed R. Civ. Proc. 24(a)(2)........................................... 3, 17, 18, 29, 31, 32, 40, 42

 

Fed R. Civ. Proc. 24(b).............................................................. 16, 18, 29, 30, 43

 

Fed R. Civ. Proc. 24(b)(2).................................................................................. 4

 

Fed R. Civ. Proc. 24(c)..................................................... 4, 15, 18, 44, 45, 46, 48

 

Fed R. Civ. Proc. 41(a)(1)........................................................................... 50, 51

 

F.R.A.P. 34(a)(1)................................................................................................ 1

 

Misc.

 

6 Moore’s Federal Practice, § 24.24[2][c] (Matthew Bender 3d ed.)..................... 2

 

cityofeuclid.com................................................................................................. 8

 

euclidawareness.com......................................................................................... 25

 

factfinder.census.gov.......................................................................................... 9

 

Planning/Zoning Assessment, February 2, 2004.................................................... 9

 

 


 

REQUEST FOR ORAL ARGUMENT

          Plaintiffs-Appellees, Providence Baptist Church, Reverend Rodney Maiden, and Francis James, pursuant to 6 Cir. R. 28(e) and F.R.A.P. 34(a)(1), hereby request oral argument respecting this appeal.  This case involves the settlement of a lawsuit in the District Court between Providence and the City arising out of a dispute about Providence’s right to construct a place of worship and an associated housing community within that City, and the zoning laws that prohibited that construction.  The appeal is made necessary by a new limited liability company with unidentified members opposed to the Church’s development plans that, despite its documented lack of involvement in an otherwise successful referendum campaign in the City aimed at preventing that development, sought (and was denied) intervention below on behalf of the referendum signatories, and which persists in its effort to undo the parties’ settlement. 

          That limited liability company, formed just days before the referendum election, has through its counsel seriously misrepresented to this and the District Court the facts concerning its involvement in these matters.  These factual misrepresentations permeate the group’s legal claims and obscure the otherwise straightforward disposition of this appeal.  Accordingly, Appellees believe oral argument will greatly assist in clarifying and disposing of the issues and interests actually before this Court. 


 

 

STATEMENT OF SUBJECT MATTER

AND APPELLATE JURISDICTION

 

          Appellees concur with Intervenor-Appellant, Hillandale Committee, Ltd. (“Hillandale” or “Intervenor”) statement of the District Court’s jurisdiction and stipulate to the timeliness of this appeal.  The Court also has appellate jurisdiction to review the denial of Hillandale’s Motion to Intervene as of right de novo and its motion for permissive intervention for abuse of discretion.  (Grubbs v. Norris, 870 F.2d 343 (6th Cir. 1989); Meyer Goldberg, Inc.  v. Fisher Foods, Inc., 823 F.2d 159 (6th Cir. 1987), and 6 Moore’s Federal Practice, § 24.24[2][c] (Matthew Bender 3d ed.)

          But Hillandale’s appeal from the denial of its motion to intervene is moot, and Hillandale is otherwise without standing to appeal unilaterally the dismissal of the District Court action pursuant to the Consent Judgment therein.  Assuming arguendo that Hillandale was (as it falsely contends) the “duly authorized committee” that circulated the referendum petitions at issue, and that it represents the signatories thereto, the 11/2/04 election on the subject referendum issues occurred, and protecting the exercise of those referendum rights was Hillandale’s sole protectable legal interest, if any it had, in intervening.  Because Hillandale has no other protectable legal interests, and no injury in fact for standing purposes (Art. III, U.S. Constitution), this Court lacks subject matter jurisdiction to consider its appeal further.

STATEMENT OF ISSUES FOR REVIEW

          1.       Whether Hillandale is in fact, as it falsely contends, the “duly authorized committee” that circulated the referendum petitions at issue (filed on 3/1/04) and represents the “4,426 petitioners, electors, residents, citizens and taxpayers in the City” who signed them, and entitled to intervene as such, given that materials attached to its own Motion for Relief From Judgment below, supplemented by board of elections and other information attached to Appellees’ Motion to Dismiss filed with this Court, reveal that a group called the Euclid Awareness Committee (assisted by Hillandale’s counsel herein) was in fact the entity spearheading that referendum issue, not Hillandale, which only came into existence but 8 days before the 11/2/04 election.

          Assuming arguendo that Hillandale is the entity responsible for advancing the subject referendum issues:

          2.       Whether its basis for intervention as of right under Fed. R. Civ. Proc. 24(a)(2) is now moot, given that securing the exercise of referendum rights on two zoning ordinances at the 11/2/04 election—the results of which are certified and uncontested—was Hillandale’s only colorable “protectable legal interest,” and that its other purported interests were either insufficient or invalid for intervention purposes.

          Whether the fact that Defendant-Appellee, the City of Euclid, adequately represented Hillandale’s interests in the litigation below vitiated Hillandale’s intervention as of right.

          3.       Whether the District Court abused its discretion in denying Hillandale’s motion for permissive intervention under Fed. R. Civ. Proc. 24(b)(2), given that it advanced no “claim or defense” of its own which shared common law or fact questions with the parties’ claims and defenses in the main action below.

          4.       Whether the District Court abused its discretion in denying Hillandale’s Motion to Intervene, in part, for Hillandale’s failure to comply with Fed. R. Civ. Proc. 24(c) requirement of attaching to its motion a pleading setting forth its claims and defenses, given that the requirement is mandatory and that no distinct claims or defenses of its own were otherwise set forth in Hillandale’s Motion to Intervene.

          5.       Whether Hillandale has standing to proceed unilaterally on this appeal from the District Court’s dismissal upon entry of a Consent Judgment Entry below, given that Hillandale was not made a party below, that it neither alleges nor can it prove injury in fact, causation and redressability for purposes of the Art. III “case and controversy” requirement of the U.S. Constitution, and given that no proper party with standing has otherwise appealed.

 

STATEMENT OF THE CASE

          A.      The nature of the case.

          On April 21, 2004, Providence Baptist Church (“Providence”), its Senior Pastor, Appellee, Rev. Maiden, and Appellee, Ms. James, (collectively “Plaintiffs-Appellees”) a member of Providence who resides in the City of Euclid, Ohio (“Euclid” or “City”), filed an action against Euclid in the United States District Court for the Northern District of Ohio, Eastern Division.  They claim that certain zoning regulations in Euclid violate the First and Fourteenth Amendments of the United States Constitution, and Article I Sections 3, 7 and 11 of the Ohio Constitution, to the extent that they prohibited the use of Providence’s property for a church and for single family homes. 

          B.      The course of the proceedings.

          On September 24, 2004, Providence filed an Amended Complaint challenging the constitutionality of the zoning and building ordinances of Euclid to the extent that they prohibited the use of the property for a church to be constructed generally in accordance with a site plan and architectural elevations attached to the Amended Complaint and for single family homes in accordance with the site plan, elevations and floor plans attached to the Amended Complaint. 

          The Amended Complaint also sought an order requiring the City to issue all necessary permits and authorizations to allow the construction of the church and the single family homes in accordance with the site plans and architectural elevations attached to the Amended Complaint.  It also sought a judgment for compensatory damages and attorneys’ fees pursuant to the Civil Rights Act of 1871, 42 U.S.C.§§ 1982 and 1988, and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) of 2000, 42 U.S.C. § 2000cc, et seq. as a consequence of the deprivation by Euclid of Plaintiffs’ constitutional rights to freedoms of assembly and to worship, as alleged in the Amended Complaint.

          On October 28, 2004, Hillandale moved to intervene.  Hillandale alleged that it was “the duly authorized committee which circulated the referendum petitions” proposing to place on the November 2004 ballot the two rezoning ordinances passed by Euclid on February 2, 2004.  The ordinances were passed to accommodate Providence’s erection of a church and associated housing development on its property in the City.  At the 11/2/04 General Election, the Euclid electors rejected the two rezoning ordinances. 

          C.      Disposition below.

          On November 16, 2004, the District Court denied Hillandale’s Motion to Intervene.  On November 17, 2004, the District Court signed and filed a detailed Consent Judgment agreed to by Euclid and the Plaintiffs-Appellees finding that the challenged zoning and building ordinances of Euclid were unconstitutional as applied to the Property. 

          On December 16, 2004, Hillandale filed its Notice of Appeal from the denial of its Motion to Intervene and from “the dismissal of the herein action pursuant to the Consent Judgment filed on September 17, 2004.” 

          D.      Proceedings before this Court.

          Since the filing of that appeal, Plaintiffs-Appellees and Euclid filed a joint motion to dismiss the appeal for lack of subject matter jurisdiction on January 12, 2005, to which Hillandale filed an opposition on January 27, 2005, and the moving parties filed a reply on February 7, 2005.

          In its March 15, 2005 Order, this Court denied the motion to dismiss “at this time,” recognizing that aspects of the subject matter jurisdiction question remained open.  Leaving it to the merit panel to consider, this Court said as follows in its Order:

          The issue of whether the appellant also has standing to appeal the consent judgment is complex and is intertwined with the merits of the intervention appeal.  Therefore, the panel to be assigned to hear this appeal on the merits should decide whether the appellant’s interest in the litigation equates to Article III standing for the purposes of pursuing an appeal of the consent judgment or whether the appeal is moot because no effective relief can be granted.

 

(3/15/05 Order, p. 1.) 

STATEMENT OF FACTS

          A.      The Parties.

Providence is a not-for-profit Ohio corporation established in 1921 with a predominantly African American membership in excess of 1,200.  Having outgrown the church it presently occupies in Cleveland, it sought a location in the eastern suburbs of Cleveland where much of its congregation was living.  In order to fulfill its fundamental religious beliefs, Providence required a church to provide a place it could assemble for worship; for Bible education and religious instruction; to foster the active sharing by its members of their gifts and talents for the benefit of the entire Church membership; to provide a base for community outreach programs to feed the hungry and clothe the poor; and for its fundamental missionary purpose in spreading the Good News of Jesus Christ to the world around them.

          B.      The City of Euclid, Ohio.

          Euclid contains 10.3 square miles of land and is located along the easterly boundary of Cuyahoga County approximately 12 miles northeast of downtown Cleveland.  Euclid, incorporated as a Village in 1877, became a City in 1930, and has a population 52,717.[1]

          Nearly 65% of Euclid’s housing stock was built prior to 1960.[2]  Many of those homes are very small, contain a small kitchen and only one bathroom and are no longer keeping with current market standards.  An additional 30% of Euclid’s housing stock was built between 1960 and 1980, and only an additional 5% in the last 25 years.  In 2000, the median value of homes in Euclid was $90,800 and the median household income was $35,151.  Although manufacturing and other industrial uses were the driving economic force in Euclid during and after World War II, as a consequence of the decrease in manufacturing in Northeast Ohio in recent years, Euclid now has 1.5 million square feet of vacant industrial space.[3]  In 2000, 75.1% of Euclid’s population was white and 12.3% was African American.

          Euclid’s Zoning Code divides uses permitted within the City into twelve use classification districts.  In 1984, Euclid created the U-R-2 zoning district in which churches are the only permitted uses.  All churches then existing in Euclid were rezoned U-R-2, but no other land or buildings in the City were rezoned to the U-R-2 zoning district classification.  Although other places of assembly are permitted in other zoning districts in Euclid, churches are not permitted in any zoning district other then U-R-2.  Consequently, the only properties in Euclid that are permitted to be used for religious assembly are those already devoted to that use, i.e., no property in the City, vacant or otherwise, is available to start a new church.

          C.      The Property.

          On April 18, 2004, Providence purchased 68.092 acres of land (the “Property”) in Euclid for the purpose of constructing a church on approximately 23 acres and constructing a development of single family homes on the remaining 45 acres.  The Property is located adjacent to existing single family home developments and was isolated from the remainder of the City’s property zoned for light industrial use.  The homes were intended for sale both to members of its congregation and to the general public.  A portion of the single family homes to be built on the Property were to be devoted for use by persons 55 years of age and older for whom maintenance and landscape services would be provided by a homeowners association. 

          At the time of its purchase, all but a very small portion of the Property was zoned U7 Light Industrial Park District, which restricted the use of that portion of the Property to specific manufacturing and assembly processes and products.  The remainder of the Property consisted of a small area zoned U4 Local Retail or Wholesale Stores Districts which was restricted to businesses engaged in the sale of retail and wholesale products and services.  Prior to its purchase by Providence, the Property was marketed without success for industrial use.  Indeed, prior to its purchase by Providence, the Property has never been used or developed for any purpose. 

          D.      Providence’s Attempt to Rezone the Property.

          On September 5, 2003, Providence filed a petition with Euclid asserting that the Euclid Zoning Ordinances unconstitutionally prohibited the use of the Property for a church and the development of single family homes, as Providence proposed, and requested the rezoning of part of the Property for use as a church and the remainder for single family homes.  On October 21, 2003, Euclid’s Planning Commission recommended to Euclid’s City Council (the “Council”) that the Property be rezoned as requested by Providence.

          Although the great majority of homes in Euclid contain less than 1,350 square feet of finished livable floor area, on November 3, 2003, the Council enacted an amendment to its Building Code increasing from 1,350 square feet to 2,000 square feet, the minimum finished livable floor area for any new one family home thereafter constructed in Euclid,

          On February 2, 2004, the Council enacted Ordinance No. 12-2004 and Ordinance No. 13-2004 (the “Rezoning Ordinances”) to rezone the Property in accordance with the Planning Commission’s recommendation.

          On March 1, 2004, pursuant to the provisions of Euclid’s Charter, referendum petitions signed by Euclid residents were submitted to the City in order to place the ordinances on the ballot for approval or disapproval at the 11/2/04 General Election.

          E.      The proceedings below.

          On April 21, 2004, Plaintiffs-Appellees filed an action against Euclid in the United States District Court for the Northern District of Ohio, Eastern Division, alleging claims including the violation of the First and Fourteenth Amendments of the United States Constitution, and Article I Sections 3, 7 and 11 of the Ohio Constitution by the zoning ordinances of Euclid, to the extent that they prohibited the use of the property for a church and for single family homes.  Plaintiffs-Appellees filed an Amended Complaint on September 24, 2004, challenging the constitutionality of Euclid’s zoning and building ordinances to the extent that they prohibited the church and single family home uses of the property as depicted generally in site and floor plans and architectural elevations attached to the Amended Complaint.  The Amended Complaint also sought compensatory damages for alleged violations of 42 U.S.C. § 1982 and 1988, and of RLIUPA.

          On October 28, 2004, Hillandale moved to intervene, for the reasons set forth in the Statement of the Case herein. 

          After the Euclid electors rejected the Rezoning Ordinances at the 11/2/04 General Election, Euclid understood that it was faced with claims it had no reasonable probability of defending successfully:

                   (1)     Euclid’s zoning ordinances confined churches solely to properties on which existing churches were already located while allowing the use of property in other City zoning districts for non-religious assembly uses, effectively prohibiting the use of such property for churches, making it likely, therefore, that its zoning ordinances would be found to violate the First Amendment to the United States Constitution and Article 1 Sections 3, 7 and 11 of the Ohio Constitution because its ordinances discriminated against the religious use of land.  See, e.g., Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); and Employment Division of Human Resources of Oregon  v. Smith, 494 U.S. 872 (1990);

                   (2)     its zoning ordinances, which restricted the use of all but a small portion of the Property to industrial uses and the balance of the Property to retail and wholesale uses, would likely be found to violate the Fourteenth Amendment to the United States Constitution because

                             (i)      the Property was situated adjacent to subdivisions of existing single family homes,

                             (ii)      the Property was recommended for single family use by Euclid’s March, 1996 Master Plan,

                             (iii)     the Property is isolated from Euclid’s primary industrial use area in which almost 1.5 million square feet of vacant industrial space was available, and

                             (iv)     Euclid’s Economic Development Director and its Planning Consultant agreed that the exclusion by the City’s zoning ordinances of a church and a single family home development on the Property did not advance any legitimate governmental interest of the City;

                   (3)     the 2,000 minimum square foot requirement for finished floor area in new single family homes far exceeded the floor area in the great majority of Euclid’s homes, or the area required in other cities that are similar to Euclid, and was well beyond that appropriate for the homes proposed by Providence for those 55 years of age and older; and

                   (4)     if the City’s ordinances were found to violate Plaintiffs-Appellees’ constitutional rights, the City would be obliged to pay Plaintiffs-Appellees’ claims for compensatory damages and attorneys’ fees for the unconstitutional deprivation for a period then exceeding one year of their rights to freedom of religion and assembly pursuant to 42 U.S.C. §§ 1983, 1988 and 2000cc et seq., and of Providence’s right to the use of its property for a church and single family homes pursuant to Article 1 Section 19 of the Ohio Constitution. 

The period of deprivation then exceeded one year and, in the event of the trial of the action, the period of deprivation would increase along with Euclid’s obligation to pay the Plaintiffs-Appellees’ attorneys’ fees.  One complete building season had already been lost and if the litigation continued, it was clear that at least one additional building season would be lost.  In addition, interest rates for construction loans were escalating.  It was estimated that Plaintiffs-Appellees’ damages and attorneys’ fees would probably exceed $1,000,000.

          F.      The District Court’s rulings.

          The District Court denied Hillandale’s Motion to Intervene on November 16, 2004.  The District Court stated two bases for denying the Motion to Intervene.  The first basis was Hillandale’s failure to attach to its motion the pleading made mandatory by Fed. R. Civ. Proc. 24(c).  In this regard the District Court stated:

          Hillandale fails to provide any justification or argument for its failure to comply with Rule 24’s express provisions.  Accordingly, Hillandale’s motion is defective on its face and not well taken. 

 

(R. 21, 11/16/04 Order, Apx. 207.)  The second basis was that Hillandale’s only stated and legitimate interest in the matter was its purported role as the committee which circulated the petitions to cause the referendum on the two Rezoning Ordinances to be placed on the ballot.  Because the election had taken place with the Rezoning Ordinances on the ballot, Hillandale’s interest in the matter was moot.  (R. 21, 11/16/04 Order, Apx. 208.)  The District Court implicitly found that Hillandale had failed to demonstrate any legitimate protectable interests in the matter beyond securing the referendum issue on the ballot, given the District Court’s concluding observation that:

          * * * Hillandale has no cognizable legal interest, claim or defense, much less a substantial legal interest, as required by Fed. R. Civ. P. 24(a) or (b).

 

(R. 21, 11/16/04 Order, Apx. 208.)

          On November 17, 2004, the District Court signed and filed the detailed Consent Judgment agreed to by Euclid and the Plaintiffs-Appellees.  The Consent Judgment found that the challenged zoning and building ordinances of Euclid were unconstitutional as applied to the Property. 

          The Consent Judgment (R. 22, Consent Judgment, Apx. 209) contained a comprehensive Order providing for the development of the Property for the construction of a church and a single family housing development consisting of 106 single family homes pursuant to a site plan, architectural elevations, floor plans and a Declaration of Covenants, Easements and Restrictions to be filed with the Recorder of Cuyahoga County, Ohio.  The Consent Judgment imposed obligations upon Providence as well as Euclid and released Euclid from all claims for damages unless an appeal of the Consent Judgment was filed and not dismissed within 120 days—which would likely prevent Providence from obtaining a loan for construction of the church and the necessary subdivision improvements to the Property and would likely result in the loss by Providence of another building season, thereby increasing the damages that Providence would sustain.

          On December 16, 2004, Hillandale filed its Notice of Appeal from the denial of its Motion to Intervene and from “the dismissal of the herein action pursuant to the Consent Judgment filed on September 17, 2004.” 

SUMMARY OF ARGUMENT

          1.       Hillandale is not in fact the “duly authorized committee” which circulated the referendum petitions filed on March 1, 2004, relative to the 11/2/04 election, and, thus, not the representative for the petition signatories since, inter alia, Hillandale did not even exist until October 20, 2004.  Consequently, Hillandale possesses none of the Fed. R. Civ. Proc. 24 “interest[s] relating to the property or transaction which is the subject of the action” that the actual petition circulating committee might otherwise possess. 

          Assuming arguendo that Hillandale is what it has repeatedly and falsely claimed itself to be:

          2.       Of the two “protectable interests” Hillandale identified as warranting its Fed. R. Civ. Proc. 24(a)(2) intervention as of right below, the first, i.e., protecting the voters’ right to exercise referendum rights at the 11/2/04 general election concerning the Ordinances, is moot because the certified vote on the referendum occurred without contest. 

          The second, i.e., protecting the result of that election, is as a matter of law not a valid “significantly protectable interest” of Hillandale’s for Fed. R. Civ. Proc. 24(a)(2) purposes.  The other generalized interests Hillandale refers to are either insufficient or invalid as a matter of law.  Notwithstanding, the City adequately (and responsibly) represented such interests as were at stake regarding the parties’ claims and defenses below, obviating Hillandale’s intervention below.

          3.       Hillandale articulated no “claim or defense” of its own respecting which it could even have a “question of law or fact in common” with the parties’ claims and defenses in the “main action,” for Fed. R. Civ. Proc. 24(b) permissive intervention purposes.  The District Court did not abuse its discretion in so finding. 

          4.       The District Court did not abuse its discretion in denying Hillandale’s Motion to Intervene, in part, for Hillandale’s failure to comply with Fed. R. Civ. Proc. 24(c)’s mandatory requirement that a pleading setting forth Hillandale’s claims or defenses be attached to its Motion to Intervene.

          5.       Hillandale is without independent Art. III standing under the U.S. Constitution’s “case or controversy” requirement sufficient to proceed unilaterally on this appeal from the dismissal below without a separate appeal by any party to the main action. 

ARGUMENT

I.       STANDARD OF REVIEW

 

          “The district court's denial of a party's Motion to Intervene as a matter of right is reviewed de novo.  [citations omitted]  Purnell v. City of Akron, et al., 925 F.2d 941, 945 (6th Cir. 1991).  A district court’s findings of fact are reversible only if they are clearly erroneous.  Jordan v. Michigan Conf. of Teamsters Welfare Fund, 207 F.3d 854, 862 (6th Cir. 2000) (affirmed denial of motion for intervention as of right finding, inter alia, adequate representation by existing party).

          “The denial of permissive intervention should be reversed only for clear abuse of discretion by the trial judge.  [citations omitted]  Purnell, supra., at 951.

          “This court applies a de novo standard of review to questions of subject matter jurisdiction. [citation omitted]”  Green v. Ameritech Corp., 200 F.3d 967, 972 (6th Cir. 2000).  Thus, the component of the District Court’s November 16, 2004 order denying Hillandale’s Motion to Intervene on mootness (i.e., jurisdictional) grounds must be reviewed de novo.

II.      NOT BEING IN FACT THE ENTITY THAT CIRCULATED THE SUBJECT REFERENDUM PETITION AND THAT REPRESENTED ITS SIGNATORIES, HILLANDALE POSSESSES NONE OF THE RIGHTS TO INTERVENE, REAL OR HYPOTHESIZED, WHICH THE ENTITY ACTUALLY RESPONSIBLE MIGHT POSSESS.

 

          Hillandale is not who it has repeatedly, and falsely, represented itself to be to this Court and to the District Court.  Whether this fact deprives this Court of subject matter jurisdiction, and dictates the dismissal of this appeal, is a question properly considered in limine:

          [J]urisdictional questions may be raised for the first time on appeal, and a court may sua sponte raise jurisdictional issues.  The question of whether there exists a justiciable controversy in the sense of appealability to this court is an essential jurisdictional issue.  Moreover, the jurisdictional question here concerns the right to appeal to this court, which was not before the district court.

 

FTC v. Owens-Corning Fiberglas Corp., 853 F.2d 458, 464 (6th Cir. 1988) (court had no jurisdiction to consider intervenor’s appeal without corresponding appeal by a party with standing). 

          Hillandale has repeatedly claimed to be the “duly authorized committee which circulated the referendum petitions for Ordinance No. 12-2004 and Ordinance No. 13-2004” and to “representing the 4,426 petitioners who signed the referendum petitions placing [the two Ordinances] on the 11/2/04 general election ballot….”  (E.g., Appellant’s Br., pp. 2, 3, 8, 15, 19, 20, 21, 23, 24, 25, 26.)  It has claimed:

          Hillandale Committee designated a referendum committee composed of six (6) members for the Rezoning Ordinances to represent the Hillandale Committee.

 

(R. 16, Motion to Intervene, Apx. 124.)  But it has also explained that:

          Hillandale Committee which initially was an unincorporated association of individuals, but who later formed the Hillandale Committee Ltd., an Ohio Limited Liability Company.

 

(R. 25, Motion for Relief From Judgment, Aff. and Exhs., Apx. 327.)  

          In fact, Hillandale did not even exist until October 20, 2004 (when it filed its Articles of Organization with the Ohio Secretary of State).  (R. 20, Euclid’s Opposition to Motion to Intervene, Apx. 186-90.)  Thus, Hillandale was formed a mere 8 days before it filed its Motion to Intervene and just 13 days before the 11/2/04 referendum election it claims to have generated.  (See also Motion to Dismiss, filed with this Court, p. 17.)  Hillandale’s briefs, even its Appellant’s brief, give no indication who a single one of its members is—none of whom are parties hereto—or what direct involvement any of those members had in the referendum campaign.  Whatever rights and privileges the actual circulating committee might have enjoyed, they are not shared by Hillandale, and that actual committee is not before this Court. 

          Hillandale curiously undermined its own claim by attaching to its District Court filings various documents substantiating the Euclid Awareness Committee’s (“EAC”) responsibility for the referendum movement.  (R. 16, Motion to Intervene, Apx. 151-154; R. 25, Motion for Relief From Judgment, Aff. and Exhs., Apx. 330-33, 335-36, 338-40.)  Hillandale is identified nowhere on that documentation.  If it is anyone, only EAC, not Hillandale, can rightly be said to represent any such interests as may be had by the referendum petition signers regarding the Rezoning Ordinances. 

          The briefing before this Court on the Joint Motion to Dismiss filed by Appellees and the City fairly exposes Hillandale’s identity shell game.  In its Response (the “Response”) to that Motion to Dismiss, Hillandale stated more than ten times that it was the “duly authorized committee which circulated the referendum petitions” relating to the Rezoning Ordinances.  (See Response, pp. 3, 4, 8, 10, 11, 12, 14, 16, 17 and 18; also “Documents in Support” of Response, p. 1.)  Because the Court’s ruling on that Motion to Dismiss left open some further consideration of this issue, Appellees’ respectfully request this panel to consider the following.

          Hillandale was not among the Political Action Committees (“PAC”) that filed pre- and post-general election reports with the Cuyahoga County Board of Elections relative to the 11/2/04 general election.  (Motion to Dismiss, Makhlouf Aff., par. 6, Exh. “A” thereto, and Exh. “3” to the Aff.)  But among the PACs active during that election cycle, and that did file the required Campaign Finance Reports, was the EAC.  The EAC’s pre- and post-general election reports plainly reveal that the EAC, not Hillandale, was the committee that actually drove the referendum process concerning the two Rezoning Ordinances.  (Motion to Dismiss, Makhlouf Aff., pars. 4-5, Exh. “A” thereto, and Exhs. “1” and “2” to the Aff.)  Specifically, bills for legal services “rendered in connection with the referendums of Ordinance No. 12-2004 and Ordinance No. 13-2004” were paid by the EAC to Intervenor’s counsel, Phillips & Co., L.P.A., and were attached to the EAC’s pre-election Campaign Finance Report.  (Motion to Dismiss, Makhlouf Aff., par. 4, Exh. “A” thereto, and Exh. “1” to the Aff.)  

          The Rebecca Conway affidavit and other “Documents in Support” of Hillandale’s Response (and Motion for Relief From Judgment) are to similar effect.  (See, e.g., Motion for Relief From Judgment, Aff. and Exhs., Apx. 327-42.)  As noted above, the Rebecca Conway Affidavit (“Conway Aff.”) contains the elliptical statement that:

          there was and is a referendum committee composed of six (6) members for the Rezoning Ordinances who [sic] represents the Hillandale Committee….

 

(R. 25, Motion for Relief From Judgment, Aff. and Exhs., Apx. 328.)  If this testimony is not utterly meaningless, it is at least without any probative value on the question of Hillandale’s role in the referendum process at issue.  Construed generously, it appears to aver that the referendum committee represents the Hillandale Committee, though even this interpretation leaves totally obscured and unsubstantiated the “Hillandale Committee’s” nature and composition.  While this resulting evidentiary void is at least consistent with the EAC’s documented role in driving the referendum process, [4] it nevertheless fails Hillandale’s claimed control of that process.

          Specifically, the campaign literature opposing the Rezoning Ordinances that Hillandale presented with its Response and its Motion for Relief From Judgment unambiguously reflects (in the required disclaimer thereon) the sponsorship of the EAC, not Hillandale.  (R. 25, Motion for Relief From Judgment, Aff. and Exhs., Apx. 335-36, 338-40.)  Yet Ms. Conway’s Affidavit suspiciously blurs Hillandale’s identity with the EAC by “authenticating” that literature as follows:

          Exhibit D are true and accurate copies of campaign literature of the Hillandale Committee political action committee Euclid Awareness Committee….

 

 

(R. 25, Motion for Relief From Judgment, Aff. and Exhs., Apx. 328.)  Whether borne of mendacity or overwrought advocacy, that testimony is provably false. 

 

 

 

 

Finance Director, Jack Johnson signs for receipt of over 4,400 signatures of Euclid Voters!

 

Looking on is John Conway and EAC Lawyer Gerald Phillips.

 

(From www.euclidawareness.com on 4/28/05)

          As late as October 24, 2004, four days after Hillandale filed its Articles of Incorporation, the EAC, not Hillandale, was still directing the challenge related to the subject Rezoning Ordinances, and the associated referendum, and this federal litigation.  (R. 25, Motion for Relief From Judgment, Aff. and Exhs., Apx. 330-33.)  The EAC’s website (i.e., www.euclidawareness.com), which logs activities and news reports relating to these topics, never mentions Hillandale once in conjunction with any of them, not even as the EAC’s “political action committee” as Ms. Conway’s affidavit avers.  What the website does contain is a picture (see inset) of Hillandale’s counsel, Gerald Phillips, filing the referendum petitions and identifying him as “EAC[’s] Lawyer.”  (Motion to Dismiss, Makhlouf Aff., pars. 7-8, Exh. “A” thereto, and Exhs. “4” and “5” thereto.)

          Hillandale relies upon Michigan AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997) believing that it gives legal significance to Hillandale’s alleged raison d’etre.  (R. 16, Motion to Intervene, Apx. 119; Appellant’s Brief, pp. 13-14.)  But the Michigan AFL-CIO decision betrays Hillandale by contrasting Hillandale’s conspicuously limited existence and involvement in the referendum issues sub judice with an intervenor involved substantially more deeply and consistently in the interests it sought to protect. 

          The Michigan AFL-CIO court regarded as a “particularly compelling” reason to allow intervention the fact that the Michigan Chamber of Commerce (the “Chamber”), the intervenor there, had for over a decade been a “vital participant” in the political process.  The court recognized that during that time the Chamber had consistently pushed for legislation to apply campaign finance spending restrictions equally to unions as to corporations, and had been a “repeat player” in litigating those issues.  Michigan AFL-CIO, at pp. 1243-44, 1246-47. 

          In fact, the Michigan AFL-CIO court relied on these “particularly compelling facts” to distinguish the Chamber’s situation from that of another intervenor (i.e., a labor union) in an 11th Circuit decision, Athens Lumber Co. v. Federal Election Comm’n, 690 F.2d 1364 (11th Cir. 1982), whose Motion to Intervene was denied.  The union in Athens Lumber sought to intervene in an action by Athens Lumber against the Federal Election Commission challenging limitations on corporate expenditures, asserting an interest in preventing financial harm from corporate contributions.  Athens Lumber, at 1366.  Quoting Athens Lumber, the Michigan AFL-CIO court noted that the union was deemed to be without a “direct, substantial, legally protectable interest,” and further noted the Athens Lumber court’s assessment that the:

          “sole basis of [the union’s] [sic] interest is general concern…shared with all unions and all citizens concerned about the ramifications of direct corporate expenditures.” 

 

Michigan AFL-CIO, at 1246, quoting Athens Lumber, at 1366.  Under the “compelling” facts before it about the Chamber, and with the Athens Lumber decision in view, the Michigan AFL-CIO court still deemed the call for intervention before it as a “close one.”  Michigan AFL-CIO, at 1247.

          The call here is not “close.”  Hillandale did not exist when the referendum petitions were circulated and filed.  Hillandale was only 8 days old on the date when it filed its Motion to Intervene and only thirteen days old when the referendum which it purports to have been promoting, was voted on.  (Motion to Dismiss, p. 17.)  Its name appears nowhere on the EAC campaign literature or at the EAC’s website.  Thus, to the extent the comparatively inchoate Hillandale here established none of the involvement or level of engagement that the Chamber in Michigan AFL-CIO did, that decision furnishes Hillandale no support for its position.  Moreover, Hillandale’s concern for preserving certain zoning laws in the City of Euclid is indistinguishable from a “general concern…shared with all [like-minded groups, businesses] and all citizens concerned about the ramifications” of such zoning laws in Euclid, Ohio.  Athens Lumber, supra., at 1366.  That interest is insufficient for intervention purposes.

          Other circumstances surrounding Hillandale’s existence, composition and filings herein only underscore the foregoing points:

          a.       Hillandale is not identified in the petitions that were circulated, concerning the referendum on the subject Rezoning Ordinances, where the identity of the circulators appears (Motion to Dismiss, pp. 16-18, and Exhs. “C” and “D” thereto);

 

          b.       nowhere in its Appellant’s Brief or Response, or in the materials submitted in support of its Response or any briefs below, does Hillandale identify a single one of its members;

 

          c.       the name of Rebecca Conway, whose affidavit was submitted with and purports to authenticate the “Documents in Support” of Hillandale’s Motion for Relief From Judgment and Response, also does not appear among those designated on the referendum petitions “as the committee to be regarded as filing this petition or its circulation” (compare Motion to Dismiss, Exhs. “C” and “D” with Motion for Relief From Judgment, Aff. and Exhs., Apx. 327-28); and

 

          d.       no member of Hillandale Committee Ltd., any one of whom could have presumably submitted affidavit testimony putting all of the foregoing issues to rest, submitted an affidavit supporting Hillandale’s composition and role in these events either below or before this Court.

 

These facts either overwhelmingly contradict, or at least call into serious question, Hillandale’s relentless insistence that it was the “duly authorized committee which circulated the referendum petitions.”  What is more likely is that the force with which the facts contradict that assertion account for Hillandale’s belaboring it.

III.     THE DISTRICT COURT PROPERLY DENIED HILLANDALE’S MOTION TO INTERVENE

 

          A.      Hillandale failed to demonstrate grounds for intervention as of right under Fed. R. Civ. Proc. 24(a).

 

          Hillandale pursued intervention below both as of right and on a permissive basis pursuant to Fed. R. Civ. Proc. 24(a) and (b) respectively.  Rule 24 states the conditions for entitlement to intervention as of right as follows:

(a) Intervention of Right.  Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.  (emphasis added)

 

Hillandale did not rely upon subsection (a)(1) for its intervention effort, which focuses the present analysis on subsection (a)(2). 

This court has interpreted Rule 24(a) as establishing four elements, each of which must be satisfied before intervention as of right will be granted: (1) timeliness of the application to intervene, (2) the applicant's substantial legal interest in the case, (3) impairment of the applicant's ability to protect that interest in the absence of intervention, and (4) inadequate representation of that interest by parties already before the court.  Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 395 (6th Cir. 1993).

 

Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997).  Although this Court’s review of the denial of intervention under Fed. R. Civ. Proc. 24(a) is de novo, no issue was raised below regarding the timeliness of Hillandale’s Motion to Intervene and Appellees raise none here.

          Hillandale identified two interests supporting its effort to intervene below:  (1) protecting the voters’ right to vote on Ordinance No. 12-2004 and Ordinance No. 13-2004 (the “Subject Ordinances”) at the 11/2/04 general election, and (2) protecting the result of that election.  (R. 16, Motion to Intervene, Apx. 119 and 126.)  The District Court correctly found that the first purported interest is now moot and that the second is invalid, leaving Hillandale no possibility of any legally significant relief relative to this appeal and no basis to intervene.  Appellees here address the second, invalid interest first.

                   1.       Hillandale had no “protectable legal interest” in preserving the outcome of the 11/2/04 election.

 

          Hillandale falsely represents to this Court that the District Court below:

          did not deny the Motion to Intervene * * * because the Hillandale Committee Ltd. did not have a substantial interest in the subject matter of the herein action * * *.  (emphasis in original)

* * *

          There was no finding of * * * [a] lack of substantial interest * * *.

 

(Appellant’s Brief, pp. 5, 6.)  To the contrary, the District Court did in fact emphatically so find:

          * * * Hillandale has no cognizable legal interest, claim or defense, much less a substantial legal interest, as required by Fed. R. Civ. P. 24(a) or (b).

 

(R. 21, 11/16/04 Order, Apx. 208.)  Given, inter alia, Hillandale’s only avowed but limited participation by circulating the referendum petition, and its non-existence until just 13 days before the 11/2/04 Election (see R. 20, Euclid’s Opp. to Motion to Intervene, Apx. 186-90), the factual findings underpinning this conclusion were in no sense “clearly erroneous.”  Jordan, supra. (affirmed denial of motion for intervention as of right finding, inter alia, adequate representation by existing party.)  A closer examination of Hillandale’s contentions only underscores this conclusion.

                             i)        Preserving a particular set of laws is not a legitimate interest for intervention purposes.

 

          Hillandale’s reliance on its supposed interest in protecting the “results of the election” as grounds to intervene is wholly misplaced, as the District Court so found.  (Appellant’s Brief, p. 2.)  In effect, Hillandale claims that it has a legally cognizable interest in insulating from all further consideration a particular subset of the City’s zoning regulations, a preference for which zoning regulations was expressed by the referendum vote at the 11/2/04 election.  For Fed. R. Civ. Proc. 24(a)(2) purposes, the U.S. Supreme Court has concluded that “[w]hat is obviously meant” by that Rule’s reference to “an interest relating to the property or transaction which is the subject of the action” is “a significantly protectable interest” therein.  Donaldson v. U.S., 400 U.S. 517 (1971).  This requirement of a “significantly protectable interest”:

                   calls for a direct and concrete interest that is accorded some degree of legal protection.

 


 

Diamond v. Charles, 476 U.S. 54, 75 (1986), Justice O’Connor concurring. 

          The U.S. Supreme Court has expressly reserved exclusively to political subdivisions any “protectable interest” in upholding a particular subset of its laws.  In Diamond, the U.S. Supreme Court unequivocally affirmed that the interest in the enforcement of a particular code is exclusive to the enacting governmental agency:

          [Intervenor’s] attempt to maintain the litigation is, then, simply an effort to compel the State to enact a code in accord with [Intervenor’s] interest.  But “the power to create and enforce a legal code, both civil and criminal” is one of the quintessential functions of a State.  [citation omitted]  Because the State alone is entitled to create a legal code, only the State has the kind of “direct stake” identified in Sierra Club v. Morton, 405 U.S., at 740, in defending the standards embodied in that code.  (emphasis added)

 

Diamond, at 65.  As a matter of law, Intervenor never had a “direct and concrete” interest in rendering immutable the zoning regulations respecting which two alternative Ordinances were submitted to referendum at the 11/2/04 election.  Thus, the District Court did in fact correctly note that beyond protecting the exercise of the referendum right at the 11/2/04 election, Hillandale had “no cognizable legal interest, claim or defense, much less a substantial legal interest” in the “main action.”  Fed. R. Civ. Proc. 24(a)(2).  (R. 21, 11/16/04 Order, Apx. 208.) 

          Hillandale did not in any of its briefing, including in its Appellant’s Brief, raise any concern or note any pending contest regarding the validity or certification of the 11/2/04 election results.  The Rezoning Ordinances that Hillandale falsely


 

credits itself for having ushered to the November 2004 ballot did indeed get on the ballot, were in fact voted, and that election result was certified without contest.  Appellees have also found no case supporting Hillandale’s contention that it has a legitimate interest (for intervention purposes) in forever preserving the defeat of the two Rezoning Ordinances subjected to referendum at the 11/2/04 election.  To be sure, the cases Hillandale cites for support of that contention are inapposite.  (See Appellant’s Br., p. 17.) 

          In State ex rel. Comm. For the Referendum of Ordinance No. 77-101 v. Lorain Cty. Bd. of Elections, 774 N.E.2d 239 (2002), the Supreme Court of Ohio denied a writ of mandamus to compel reversal of the board of election’s post-election order decertifying the referendum issue for the ballot, based upon false representations made in the circulator’s petition.  Id. at ¶ 51.  It was indeed a case in which intervention was allowed post-election, but it concerned itself with intervenor-circulators’ interest in determining whether a referendum issue had properly gotten to the ballot, not with some interest in preserving the outcome of that election. 

          Whatever proposition State ex rel. Comm. For the Referendum of Ordinance No. 77-101 v. Lorain Cty. Bd. of Elections does stand for, it does not substantiate or validate Hillandale’s supposed “significantly protectable interest” in preventing all subsequent activities affecting the election result.  Likewise, the decision in State ex rel. Ryant Comm. v. Lorain Cty. Bd. of Elections, 712 N.E.2d 696 (1999) neither articulated nor validated an intervenor’s supposed “significantly protectable interest” in preventing all subsequent activities affecting the election result.  (Appellant’s Br., p. 17.)  It too dealt with infirmities in the petitions relative to a referendum issue dealing with the rezoning of property, and whether those petitions had been properly executed.  Because of errors committed and inexcusable delays in registering objections to the petitions, the relator’s petition for writ of prohibition to prevent the special election therein was denied.  State ex rel. Ryant at 113-14.  The referendum procedure is not at issue here; the election has occurred and the results have been certified.

          The decision in State ex rel. Super America Group v. Licking Cty. Bd. of Elections, 685 N.E.2d 507 (1997) also addressed the procedural question of whether a particular ballot issue gets to the ballot, and the voter-intervenors’ interest in insuring that it does.  Like Hillandale’s other cited cases, Super America Group had nothing to do with supposed interests in protecting election outcomes.  The cluster of cases packed into Hillandale’s Brief at pp. 17-18 fail to support Hillandale’s hypothetical “interest” in preventing the City from considering its residents’ interests when resolving litigated claims.

          It must also be noted that Hillandale has in none of its briefing confronted the U.S. Supreme Court decision in Diamond v. Charles, 476 U.S. 54, 75 (1986), a decision which the parties challenging Hillandale’s intervention have repeatedly put at issue.  (See R. 19, Plaintiffs-Appellees’ Opp. to Motion to Intervene, Apx. 175; R. 20, Euclid’s Opp. to Motion to Intervene, Apx. 183; R. 27, Jnt. Opp. to Motion for Relief from Judgment, Apx. 458.)  Diamond, cited herein and in Appellees’ prior Motion to Dismiss, established that the interest in the enforcement of a particular set of laws or standards is exclusively that of the legislative, law-making body.  (See this Section supra.)  That principle from Diamond remains undisturbed by Hillandale and vitiates its claimed “heightened” interest in “the protection of the vote of the people and the results of the election against its destruction and nullification through a Settlement Agreement or Consent Judgment….”  (Appellant’s Brief, p. 15.)[5]

                             ii)       Petition circulators and signatories are by definition involved only in qualifying issues for inclusion on the ballot, not advocating a particular election outcome.

 

          Even if Hillandale were the referendum petition circulator, the petitions themselves reveal that petition circulators, qua petition circulators, are not thereby imbued with any intrinsic pro or con position regarding the subject of their petitions.  Hillandale contends that circulating the petitions alone certifies the circulators’ and signers’ opposition to the issue proposed for consideration by the electors.  (Appellant’s Brief, p. 2.)  The petitions at issue on the subject Ordinances, however, contain no more than the following statement of the petition circulator’s fundamentally neutral, administrative role:

          We, the undersigned electors of the City of Euclid, Ohio, respectfully order Ordinance No. 12-2004, passed by the City Council of Euclid on the 2nd day of February 2004, be submitted to the electors of such City for their approval or rejection at the general election to be held on the 2nd day of November 2004, or at such other election as is provided by law:  (emphasis added)

 

Similar verbiage was included on the petition relative to Ordinance No. 13-2004.  (Petitions, Motion to Dismiss, Exs. “C” and “D” thereto.)  Petition circulators, qua petition circulators, are not, thus, certified as per se committed to the affirmative or negative of the issue they seek to subject to referendum by the voters. 

          The committee dedicated to opposing the subject Rezoning Ordinances and restoring the pre-Ordinance zoning of the Property was EAC, not Hillandale.  (See Section II supra.)  So even if Hillandale circulated the petitions, which it did not do, that act signifies at most Hillandale’s representation of those wishing to give the electors a choice to approve or disapprove of the proposed Rezoning Ordinances.  Nothing inherent in petitions or the act of circulating them signifies either Hillandale’s opposition to (or support of) the Ordinances or the opposition (or support) of those who signed the petitions.  If Hillandale was the petition circulator, its role (i.e., interest) as such was simply to get the referendum on the Rezoning Ordinances to the ballot.

                   2.       Any alleged interest Hillandale may have had in securing the exercise of the referendum right at the 11/2/04 election became moot on November 3, 2004 after the vote occurred.

 

          Hillandale cites many cases that recognize the interest intervenors have in ensuring that issues of community concern subject to referendum get to the ballot.  Such interest was in fact the only one the District Court identified as potentially legitimatizing Hillandale’s intervention.  (R. 21, 11/16/04 Order, Apx. 208.)  But as Hillandale itself has put it:

          The election has now occurred, and the election results have been certified as official.  The vote of the people has occurred, and the will of the people has been spoken.  [sic]

 

(Appellant’s Brief, p. 14.)  This presents a straightforward incident of mootness.

          A challenge to this Court’s jurisdiction is proper “[a]ny time after a notice of appeal is filed.”  (6 Cir. R. 27(e)(1).)  Mootness, therefore, is a threshold subject matter jurisdictional issue for this court of appeals since it involves the determination that a “case or controversy” continues to exist between the parties: 

          “Article III of the [U.S.] Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants….It is not enough that a controversy existed at the time the complaint was filed….”

 

WJW-TV, Inc. v. Cleveland, 878 F.2d 906, 909-910 (6th Cir. 1989), quoting Deakins v. Monaghan, 484 U.S. 193 (1988)[6]; Rettig v. Kent City School Dist., 788 F.2d 328, 330 (6th Cir.)(“Of initial concern to this court is the threshold issue of subject matter jurisdiction.”), cert. denied, 478 U.S. 1005 (1986).  “If there is no case or controversy, this court lacks subject matter jurisdiction to hear this appeal….”  Michigan v. Meese, 853 F.2d 395, 397 (6th Cir. 1988).  And no “case or controversy” continues to exist where, due to intervening circumstances, the court will be unable to grant the requested relief.  Fleet Aerospace Corp. v. Holderman, 848 F.2d 720, 723 (6th Cir. 1988); Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986).

          This Court has specifically held that the occurrence of the contingency which an intervenor seeks to protect moots the basis for intervention:

          The proposed intervenors pointed out at oral argument that this appeal may be moot with respect to the forty-one proposed intervenors who competed in the new promotional process and were promoted to the rank of sergeant.  We agree that this appeal is moot with respect to those forty-one proposed intervenors because the relief requested in their Motion to Intervene--that Defendant be enjoined from demoting them or requiring them to compete in the new promotional process-would, if granted, be of no value to them.  See McPherson v.  Mich.  High Sch.  Athletic Assoc., Inc., 119 F.3d 453, 458 (6th Cir.  1997) (stating that “`the test for mootness is whether the relief sought would, if granted, make a difference to the legal interests of the parties’”) (quoting Crane v.  Ind.  High Sch.  Athletic Ass’n, 975 F.2d 1315, 1318 (7th Cir.  1992)). 

 

Johnson v. City of Memphis, 73 Fed. Appx. 123, 130-131 (6th Cir. 2003) (attached as Exhibit “A” per 6 Cir. R. 28(g)).  Simply stated, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.  Powell v. McCormack, 395 U.S. 486, 496 (1969).”  County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). 

          This Sixth Circuit has clearly stated that dismissal is the only appropriate judicial action once the “case or controversy” is rendered moot:

          [E]stablished precedent indicates that the appropriate remedy “under circumstances where a controversy has become moot before final appellate adjudication” is to remand the decision of the lower court with “instructions to vacate the judgment below and dismiss the complaint.” [citations omitted]

 

WJW-TV, Inc. v. Cleveland, 878 F.2d 906, 911 (6th Cir. 1989).  Hillandale’s claims became moot when the election occurred, leaving no relief available to them from further consideration of this appeal.  Dismissal is the only appropriate action at this point.

          That the referendum issues were on the 11/2/04 ballot and the election results have been certified thereon is undisputed.  Further adjudication respecting that interest simply will not impact any right of consequence in this action.  If Hillandale had any legitimate interest, it has been satisfied and the matter is moot. 

                   3.       The City quite adequately represented the legitimate interests at stake in the lawsuit, obviating Hillandale’s participation.

 

          This Court is of course free to consider de novo whether Hillandale was “so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect [its] interest” and whether existing parties in the lawsuit would be unable to “adequately represent[]” that interest.  Intervention as of right is permitted only if both inquiries are answered in the affirmative.  Fed. R. Civ. Proc. 24(a)(2).  Appellees submit that the foregoing establishes that Hillandale’s sole legitimate “interest” was, at best, the securing of the exercise of the referendum rights respecting the Ordinances, and that the uncontested certification of the 11/2/04 election results moots that interest.  Thus, Hillandale had no remaining cognizable interest the protection of which was at issue in the lawsuit.

          Suspending logic and law, assume arguendo that Hillandale had even a minimally cognizable interest in the “protection of taxpayer funds” and/or the development of the Property for specific uses, as it suggested.  (Appellant’s Brief, p. 9.)  At the very least, Hillandale concedes that all of its claims and defenses would be equivalent to those asserted by the City.  (Appellant’s Brief, p. 11.)  But while it talks about having similar claims and defenses with the City, Hillandale does not set forth “claims or defenses” unique to itself that share common fact and law questions with the City’s claims and defenses.  (Appellant’s Brief, pp. 10-11.)  Hillandale’s intervention under these circumstances would be wholly superfluous.

          Logically, the fact alone of a possible settlement between the City and Appellees cannot be grounds for concluding that the City’s interests and Hillandale’s diverged cognizably.  All lawsuits carry with them at least some prospect for settlement.  It simply cannot be that such prospect is alone sufficient to render a party to the lawsuit per se incapable of adequately representing an intervenor with otherwise aligned interests.  If that is so, then the settlement potential inhering in all litigation nullifies this prong of the Civ. R. 24(a) analysis. 

          Moreover, even had the District Court allowed Hillandale’s intervention, it would have been within its discretion to permit intervention while prohibiting Hillandale’s participation in the settlement between the parties.  U.S. v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 993, n. 22 (2d Cir. 1984) (“See 1966 Advisory Committee Note: ‛An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.’  Of course, as Wright & Miller pointed out, ‛the fact that the Committee Note says that [courts] have the power does not create the power if it does not otherwise exist.’  7A Wright & Miller, supra, § 1922 at 625.  Nevertheless, courts have taken the Committee Note at face value, frequently imposing as a condition of intervention under Rule 24 (a) (2) that approval of a settlement should not require the intervenor's consent, and commentators have approved this.  [citations omitted]”)  So Hillandale’s consent to the consent judgment below was dispensable with or without its intervening.

          A municipality’s compromising of a lawsuit such as the one sub judice involves many considerations.  The merits of the claims and defenses at issue are an important factor, but not the exclusive or even necessarily the most important one.  Accountable to all of its residents, a municipality must consider the time and economic expense litigation unavoidably involves.  Because the present action also involved Appellees’ challenge to the constutionality of certain City zoning regulations, the prospect of a regulatory taking was also in play, with all of the potential attendant exposure for the City’s populace. 

          These manifold considerations were nicely detailed in campaign literature endorsing approval of the subject Ordinances, which Hillandale attached to its briefing below.  (R. 25, Motion for Relief From Judgment, Aff. and Exhs., Apx. 341-42.)  The scope of these interests borne by the City in the litigation below easily encompasses Hillandale’s purported solicitude for the City’s taxpayers and concerns over the City’s development strategies.  (See, e.g., R. 25, Motion for Relief From Judgment, Aff. and Exhs., Apx. 328 (pars. 9, 13, 14 & 15), 342-448.)  The balance of these generalized interests was, therefore, indeed adequately represented by the City, independently obviating Hillandale’s intervention.

          B.      The District Court did not abuse its discretion in denying Hillandale motion for permissive intervention under Fed. R. Civ. Proc. 24(b).

 

          The District Court also rightly denied Hillandale’s request for permissive intervention.  Subsection (b) of Fed. R. Civ. Proc. 24 provides the following grounds for permissive intervention:

          (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. * * * In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.  (emphasis added)

 

Hillandale failed this standard for intervention for a few reasons.

          The rule unambiguously requires two sets of claims or defenses.  The moving party is to present a “claim or defense” of its own that shares a “question of law or fact in common” with the “main action.”  Hillandale presented no claim or defense of its own.  In the light most favorable to Hillandale, it did no more than recite in its Motion to Intervene duplicative concerns already raised in the lawsuit and represented therein by the City.  This failure to state its claims or defenses was sharply compounded by Hillandale’s utter failure to comply with the unambiguous requirement of Fed. R. Civ. Proc. 24(c), which requires that a pleading stating such claims or defenses be attached to the Motion to Intervene.  (See next section.)

          The City and Appellees negotiated a complex and detailed Consent Judgment below.  (R. 22, Consent Judgment, Apx. 209-268.)  The Consent Judgment comprehensively addressed, inter alia, the economic, environmental, aesthetic, structural, timing and site planning aspects of Appellees’ proposed development, including the dedication of public areas and articulation of comprehensive covenants and restrictions.  Under similar circumstances, the 5th Circuit Court of Appeals found no abuse of discretion in denying permissive intervention (and intervention as of right) to the State of Pennsylvania in a lawsuit settled between the federal Environmental Protection Agency and a Pennsylvania natural gas pipeline operator.  U.S. v. Texas E. Transmission Corp., 923 F.2d 410, 416 (5th Cir. 1991) (complex settlement adequately protected Pennsylvania’s interests without impairing its rights).

          C.      The District Court did not abuse its discretion in denying Hillandale’s Motion to Intervene for Hillandale’s failure to comply with the mandatory requirements of Fed. R. Civ. Proc. 24(c).

 

          In denying Hillandale’s Motion to Intervene, the District Court conjoined with its mootness determination the incontestable finding that Hillandale had failed Fed. R. Civ. Proc. 24(c)’s patent mandate that a pleading setting forth the intervenor’s claim or defense be attached to the motion.  (R. 21, 11/16/04 Order, Apx. 207.) The requirement is beyond debate:

          (c) Procedure. A person desiring to intervene shall serve a Motion to Intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene.  (emphasis added)

 

Hillandale acknowledges that it did not comply with this mandatory requirement in seeking to excuse itself from doing so.  (Appellant’s Brief, p. 11.) 

          Merely having the right to intervene is not a substitute for complying with the procedure set forth to accomplish it:

          We have held that an interested party who had taken part in the proceedings and had the right to intervene, but who had not formally done so, was not capable of appealing, as such a party was not properly on the record as an intervenor, and not being a party to the record, had no standing to appeal.  [citations omitted]

 

In re South State Street Bldg. Corp., 140 F.2d 363, 367 (7th Cir., 1943) (appellant participated in litigation but never filed Motion to Intervene; lacking the requisite interest, participation in the litigation alone did not confer standing without formal intervention).

          No pleading is attached to Intervenor's Motion to Intervene.  As noted by the court in Shevlin v. Schewe, 809 F.2d 447, 450 (7th Cir. 1987):

          Lawsuits cannot be tried merely on memoranda.  Federal Rule of Civil Procedure 24(c) is unambiguous in defining the procedure for an intervenor.

 

The court in Shevlin, even after adopting a lenient application of Fed. R. Civ. Proc. 24(c)’s requirements, rejected intervenor’s attempt at intervention, stating that even such lenient application “does not mean that intervenors may totally ignore the rule, particularly where the original parties in the meantime work out a settlement to their lawsuit.”  Id.  Moreover, as Justice O’Connor observed in her concurring opinion in Diamond:

          [A]lthough permissive intervention “plainly dispenses with any requirement that the intervenor shall have a direct personal or pecuniary interest in the subject of the litigation,” [citation omitted], it plainly does require an interest sufficient to support a legal claim or defense “founded upon [that] interest” and which satisfies the Rule’s commonality requirement.  [citation omitted]

 

Diamond, at 77 (emphasis in original). 

          Appellees are unaware of any case which finds that a District Court, in the course of enforcing a mandatory requirement of the Federal Rules of Civil Procedure, has thereby abused its discretion.  The Seventh Circuit has unambiguously held that a court is within its discretion to deny a motion to intervene that fails to attach the pleading made mandatory by Fed. R. Civ. Proc. 24(c).  Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 595-596 (1993) (“We cannot say that the district court abused its discretion when it refused to entertain both C.A.R.E.P.A.C.'s and the Ahlfeld group's procedurally deficient motions for intervention”); see also Abramson v. Pennwood Inv. Corp., 392 F.2d 759, 761 (2d Cir. 1968) (court deemed that “reference in [intervenor’s] motion papers to the allegations of the original complaint was insufficient to comply with the requirement of Rule 24(c).”)

          The decision in Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985) does not assist Hillandale.  (Appellant’s Brief, pp. 9-10.)  Piambino was essentially an enforcement decision in a class action directed towards a District Court that had flaunted that appellate court’s prior decision in the case.  Substantively, it was aimed at rectifying a settlement that seriously prejudiced minority-shareholder intervenors and that was prepared by lawyers who not only profited unduly from the arrangement but whose interests were “diametrically opposed” with the minority (and the majority) shareholders.  Piambino, at 1146.  Intervention in that case was focused on the manifest injustice which the settlement inflicted on the intervenors, by counsel acting notwithstanding a serious conflict of interest.  Id. at 1118 (“Most of the factors that counseled our decision on the intervention issue made clear the unfairness of the settlement.”)  That is not the case here for Hillandale.

          Hillandale admits that at best it only “briefly set forth its position on the propriety of the Plaintiffs-Appellants’ [sic] First Amended Complaint in its Motion to Intervene….”  (Appellant’s Brief, p. 10.)  Hillandale also repeatedly contends that its Motion to Intervene was filed “timely” (Appellant’s Brief, 11, 12, 13, 14), but that fact is not in dispute and is otherwise immaterial to Hillandale’s failure to comply with Fed. R. Civ. Proc. 24(c).  Based upon all of these deficiencies, the District Court did not abuse its discretion in enforcing Rule 24(c) by its terms.

IV.     HILLANDALE MUST, BUT DOES NOT HAVE STANDING TO APPEAL FROM THE CONSENT JUDGMENT BELOW

 

          Besides appealing the denial of its Motion to Intervene, Hillandale also appealed from “the dismissal of the herein action pursuant to the Consent Judgment filed on November 17, 2004….”  (R. 23, Notice of Appeal, Apx. 269.)  While Appellees do not question the Court’s jurisdiction to review Hillandale’s appeal from the denial of its Motion to Intervene, its appeal from the dismissal requires consideration of a threshold jurisdictional question.  Whatever gradient of interests lie between those sufficient for Fed. R. Civ. Proc. 24 intervention and those sufficient to satisfy Art. III standing requirements, one thing is certain.  To proceed on its appeal from the dismissal unilaterally, as it has done, Hillandale must demonstrate that it is has Art. III standing to do so.  That principle is articulated by the U.S. Supreme Court in Diamond, supra.

          In Diamond, Justice O’Connor concurring opined that the question of the intervenor’s “standing subsumes a challenge to the sufficiency of his interest as an intervenor for purposes of Rule 24.”  Id.  The Diamond decision stands for the proposition that where a party satisfies the requirements of Art. III standing, that party is presumed to have an interest sufficient to justify intervention.  But the Supreme Court in Diamond unambiguously rejected an intervenor’s claimed interest in the enforcement of a particular “code” as sufficient to confer standing to proceed in court without the political subdivision involved.  Diamond, at 65 (obstetrician/gynecologist intervenor had no standing to appeal to Supreme Court from decision enjoining enforcement of Illinois abortion laws when State of Illinois itself took no appeal).  The High Court reasoned as follows on this issue:

          Diamond's status as an intervenor below, whether permissive or as of right, does not confer standing sufficient to keep the case alive in the absence of the State on this appeal.  Although intervenors are considered parties entitled, among other things, to seek review by this Court, Mine Workers v. Eagle-Picher Mining & Smelting Co., 325 U.S. 335, 338 (1945), an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III.  See id., at 339. See also Bryant v. Yellen, 447 U.S. 352, 368 (1980).

* * *

          We need not decide today whether a party seeking to intervene before a district court must satisfy not only the requirements of Rule 24(a)(2), but also the requirements of Art. III.  To continue this suit in the absence of Illinois, Diamond himself must satisfy the requirements of Art. III.  The interests Diamond asserted before the District Court in seeking to intervene plainly are insufficient to confer standing on him to continue this suit now.

 

Diamond, at 68-69.  Article III standing, after all, requires an injury with a nexus to the substantive character of the statute or regulation at issue:

          [At] an irreducible minimum, Art. III requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979), and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision,’ Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 (1976).

 

Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). 

          This Court is simply without subject matter jurisdiction over this appeal for Hillandale’s lack of standing.  Hillandale’s only even arguably legitimate interest in securing the exercise of the subject referendum rights is moot.  Having failed to demonstrate any other interest, even under the relatively more lax standards for intervention, Hillandale has manifestly failed to articulate—or for that matter even allege—a basis establishing its Art. III standing to appeal to this Court from the District Court’s dismissal upon entry of the Consent Judgment below.  Hillandale is without and cannot demonstrate any of the indicia of Art. III standing (injury, causation, redressability). 

          Neither was Hillandale made a party below giving it standing to proceed here.  Alternative Research and Development Foundation v. Veneman, et al., 262 F.3d 406, 411 (D.C. Cir. 2001).  In Alternative Research, the court affirmed denial of a motion to intervene by the National Association for Biomedical Research (“NABR”).  NABR had moved to intervene in a matter in which Alternative Research had sued the USDA to enjoin the exclusion of certain laboratory animals from the definition of “animals” under the Animal Welfare Act.  Id. at 407.  Alternative Research and the USDA settled and stipulated a dismissal under Fed. R. Civ. Proc. 41(a)(1), but NABR subsequently filed a motion under Rule 60(b) to vacate that stipulation.  Id.

          After a hearing, the trial court filed the stipulated dismissal of record and denied the other two motions on two alternative bases:  (1) by concluding that it lacked jurisdiction to rule in light of the stipulated dismissal; and (2) by denying intervention on the merits.  Id. at 407-408.  In a thoughtful examination of the issues, the D.C. Circuit first concluded that it would under any circumstance have jurisdiction to consider an appeal from an order denying a Motion to Intervene as of right.  Alternative Research, at 409.  In examining the merits of the Motion to Intervene the court affirmed the lower court’s denial of intervention.  Id. at 411.

          After so concluding, the court in Alternative Research stated as follows:

          [B]ecause the district court correctly denied intervention, NABR is not a party to the action and lacks standing to appeal from either the stipulation of dismissal or the order denying its Rule 60(b) motion, which challenged the stipulated dismissal.  [citations omitted]

 

Id.  The syllogism is patent:  only a party may appeal; having no basis to intervene, intervenor is not a party; therefore, intervenor may not appeal.  FTC, supra., at 464 (court had no jurisdiction to consider intervenor’s appeal without corresponding appeal by a party with standing). 

          Thus, Hillandale’s appeal from the dismissal was neither brought by one who was made a party to the District Court action below nor brought by one with independent standing to proceed on this appeal without a separate appeal having been taken by one of the parties to the action below.  Once again, the requisite “case and controversy” is absent and this Court is without jurisdiction to proceed on Hillandale’s appeal.

V.      CONCLUSION

          A clearer picture of Intervenor’s objectives is forcefully emerging.  A handful of people, who persist in anonymity, have in the eleventh hour formed a limited liability company that, with regard to a recent referendum on two Rezoning Ordinances, purports to a leadership roll in that referendum process which the documented evidence categorically contradicts.  The interests of that company are, as articulated, indistinguishable from those of the public at large—for whom the City’s elected officials act as the only legitimate representatives.  Notwithstanding, that company is intentionally distorting recent history and its role in its continuing campaign to control the destiny of an entire City and a Church seeking membership therein and, in the process, to undo, at no risk to itself, the City’s considered decision to avoid exposure to potentially millions of dollars in takings claims.


 

          For the foregoing reasons, Appellees respectfully request that the Court affirm the District Court’s ruling and dismiss the instant appeal for lack of subject matter jurisdiction.

 

Respectfully submitted,

 

                                               

Sheldon Berns (0000140)

Gary F. Werner (0070591)

Berns, Ockner & Greenberger, LLC

3733 Park East Drive, Suite 200

Beachwood, Ohio 44122-4334

Telephone:  (216) 831-8838

Facsimile:  (216) 464-4489

Email: gwerner@bernsockner.com

Attorneys for Plaintiffs-Appellees

 


 

CERTIFICATE OF COMPLIANCE

WITH TYPE-VOLUME LIMITATION

          In accordance with 6 Cir. R. 32(a), the undersigned attorney hereby certifies that the foregoing Final Appellees’ Brief of Providence Baptist Church, Reverend Rodney Maiden and Francis James complies with the type-volume limitations set forth in FRAP 32(a)(7)(B).  According to the word count functionality of the word-processing system used to prepare this brief, it contains 12,079 words, exclusive of the certificates incorporated herein, the corporate disclosure statement, table of contents, table of citations, statement with respect to oral argument and any addendum containing statutes, rules or regulations, pursuant to FRAP 32(a)(7)(B)(iii).

 

                                                                                                                  

                                                Gary F. Werner

                                                Attorney for Appellees


 

CERTIFICATE OF SERVICE

 

          A true and accurate copy of the foregoing Final Appellees’ Brief of Providence Baptist Church, Reverend Rodney Maiden and Francis James was served by regular U.S. mail, postage prepaid, this 4th day of May, 2005, upon:

 

Stephen M. O’Bryan (00009512)

Majeed Makhlouf (0073853)

Taft, Stettinius & Hollister LLP

200 Public Square, Suite 3500

Cleveland, OH 44114-2316

 

and

 

L. Christopher Frey (0038964)

Law Director, City of Euclid

585 East 222nd Street

Euclid, OH 44123

 

Attorneys for Defendant-Appellee

 

 

 

Gerald W. Phillips, Esq.

35955 Detroit Road

Avon, OH 44011

 

Attorneys for Hillandale Committee Ltd.

 

 

                                     

                                                                                                                  

                                                                   Gary F. Werner (0070591)


 

DESIGNATION OF APPENDIX

 

          Pursuant to an agreed expedited briefing schedule, the parties to this appeal have already filed a Joint Appendix on April 14, 2005.  Accordingly, Plaintiffs-Appellees here offer no designation of additional items for the Joint Appendix.  For the Court’s convenience, an Index to the Appendix follows:

R.      Document                                                               Page          Date

          District Court Docket.............................................. 0001         

1        Complaint............................................................... 0005          04/21/04

2        Assignment of Magistrate Judge..................... 0030 04/21/04

3        Corporate Disclosure Statement............................... 0031          04/21/04

5        Stipulation for Leave to Plead or Answer ................ 0035          05/10/04

          District Court’s 5/14/2004 Order............................. 0036          04/14/04

6        Defendant’s Motion to Dismiss............................... 0037          06/01/04

7        Stipulation for Leave to Respond to Defendant’s

          Motion to Dismiss................................................... 0073          06/25/04

 

          District Court’s 6/30/2004 Order............................. 0074          06/30/04

 

8        Stipulation for Leave to Respond to Defendant’s

          Motion to Dismiss................................................... 0075          07/14/04

 

          District Court’s 7/22/2004 Order............................. 0076          07/22/04

9        Stipulation for Leave to Respond to Defendant’s

          Motion to Dismiss................................................... 0077          08/20/04

 

10      District Court’s 8/25/2004 Order............................. 0078          08/25/04

R.      Document                                                               Page          Date

11      First Amended Complaint........................................ 0079          09/24/04

 

12      Unopposed Motion for Extension of Time............... 0112          10/14/04

 

13      District Court’s 10/21/04 Order............................. . 0114          10/21/04

 

14      Unopposed Motion for Extension of Time............... 0115          10/21/04

 

15      District Court’s 10/28/04 Order .............................. 0117          10/28/04

 

16      Motion to Intervene................................................. 0118          10/28/04

 

17      Answer to First Amended Complaint....................... 0155          11/04/04

 

18      Joint Motion for Extension of Time.......................... 0167          11/12/04

 

19      Plaintiff’s Memorandum in Opposition to Motion

          to Intervene............................................................. 0169          11/15/04

 

20      Defendant’s Memorandum in Opposition to Motion

          to Intervene............................................................. 0181          11/15/04

 

21      Order Denying Motion to Intervene.......................... 0207          11/16/04

 

22      Consent Judgment................................................... 0209          11/17/04

 

23      Notice of Appeal..................................................... 0269          12/16/04

 

24      Motion for Relief from Judgment............................. 0283          12/16/04

 

25      Motion for Relief from Judgment

          (Affidavit and Exhibits)........................................... 0325          12/16/04

 

26      Acknowledgment from USCA................................. 0454          12/29/04

 

27      Joint Memorandum in Opposition to Motion

          for Relief from Judgment......................................... 0455          12/29/04

 



[1] All information in this paragraph is taken from the City of Euclid’s official website (i.e., cityofeuclid.com).

[2] Except where otherwise indicated, all data cited in this paragraph is taken from the U.S. Census 2000 Demographic Profiles (see, e.g., factfinder.census.gov).

 

[3] Statistical information regarding vacant industrial space is taken from the February 2, 2004 Planning/Zoning Assessment prepared for the Mayor and City Council of Euclid by Robert Hill.

[4] That this Court lacks jurisdiction to consider Hillandale’s appeal readily manifests from Hillandale’s patent disconnect from the issues of consequence in this matter.  But even as to the EAC, which arguably did play the role in the referendum process that Hillandale claims to have played, this Court would be without jurisdiction to consider its appeal.  The claimed interest in protecting the exercise of the referendum rights remains moot, given that the 11/2/04 general election occurred, and the claimed interest in protecting the “outcome” of that election remains invalid as a matter of law under Diamond v. Charles, 476 U.S. 54, 75 (1986). 

[5] Intervenor also asserts that among its “claims and defenses” is a constitutional challenge to the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), under which the Church had asserted a claim below.  Intervenor predicates this purported RLUIPA challenge upon Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003), “which declared RLUIPA unconstitutional as a violation of the establishment clauses of the U.S. Constitution and Ohio Constitution.”  (Appellant’s Brief, p. 10.)  This argument is inert for several reasons:  (1) Cutter never mentions the Ohio Constitution; (2) because Cutter involved RLUIPA challenges by prisoners, this Court expressly noted in Cutter that “all references [therein] to RLUIPA are to 42 U.S.C. §  2000cc-1 only, the portion of the Act that applies to institutionalized persons” (Id. at 261) and expressly held that only that section of RLUIPA, which is plainly not implicated here, violates the establishment clause (Id. at 268-69); and (3) the Consent Judgment below contained a finding and declaration only that the challenged zoning ordinances were unconstitutional, and did not include any finding concerning RLUIPA, rendering issues raised under RLUIPA moot, or irrelevant, as well (Consent Judgment, p. 2, par. 2).

[6]   Accord Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 471 (1982) (“Article III of the Constitution limits the ‘judicial power’ of the United States to the resolution of ‘cases’ and ‘controversies.’“); Affholder v. Preston Carroll Co., 866 F.2d 881, 885 (6th Cir. 1989) (“Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’ or ‘controversies.’“) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)); County of Oakland v. City of Detroit, 866 F.2d 839, 845 (6th Cir. 1989) (“The Constitution makes it clear that the judicial power vested in federal courts under Section 1 of Article III extends only to ‘Cases’ and ‘Controversies.’“). 


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Synopsis
Brief of Providence Baptist Church, Reverend Rodney Maiden and Francis James.
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