RETALIATORY LAWFARE AND THE FIRST AMENDMENT: The War Of Government On Citizens!
There has been a good deal of public and private condemnation, criticism, and general unhappiness with Village President Bill Lewis and the three Trustees who walk in lockstep with him – Denise Pyle, Carolyn Kelly, and Ben Moore.
They have demonstrated a willingness to set aside the interests of Village residents by leasing Village real property to the Lawrence Memorial District Library for $75 a month; to use Village funds to intercede for Bill Lewis’ personal legal and ethical issues surrounding Michigan’s Incompatible Offices law at MCL 15.181, et. seq.; to make taxpayers pay for the removal of trees on private property that is the rights-of-way within the Village; to refuse to enforce the Village code equally by requiring some to jump over made-up hurdles and allowing others to continue to violate provisions of the code on an ongoing basis; and now, by attempting to give away or reduce debts owed to the Village by friends, friends of friends, and supporters.
This gives rise to residents rightly speaking out against these behaviors. It also gives rise to the temptation for retaliation by those who find themselves being taken to task in their public capacity over legal, ethical, and moral ideals.
Everyone has a First Amendment right to free speech. And any elected office holder that retaliates can be sued in Federal Court for doing so. The specifics of the right of free speech are not discussed here. See a qualified licensed attorney for that information. There are public interest law firms that might provide representation to anyone who can’t afford an attorney.
Governments such as villages and independent school boards, as well as elected office holders and public employees are “persons” subject to suit for violations of constitutional rights, according to the United States Supreme Court in Monell v. Department of Social Services, 436 U.S. 658 (1978) This decision created a precedent that established that local governments and local government office holders can be held accountable for unconstitutional acts, including the award of money damages. Such accountability is a legal doctrine known as Monell liability that has been further developed by subsequent case law.
Our own 6th Circuit Court of Appeals in Mark B. Blackwell v. Lisa Nocerini, Ryan Strong, and Finley Carter, 123 F.4th 479 (6th Cir. 2024), recently reiterated the exposure of local officials to suit if they violate an individual’s Constitutional right such as free speech. Local officials and employees do not have qualified immunity for violation of a person’s Constitutional rights. Government entities such as villages and independent school boards and the individuals that are on them cannot conduct their affairs with the assumption that they can violate Constitutional rights and get away with it.
So common are retaliatory lawsuits by public office holders that they have a name. They’re called Strategic Lawsuits Against Public Participation or SLAPP for short. These are often used to intimidate or punish citizens for speaking up. Many states have even adopted laws allowing for the early dismissal of these baseless lawsuits. Michigan has not had such a law but House Bill 4045 has been introduced aiming to give Michigan residents stronger protections against lawsuits targeting their right to speak freely on matters of public interest.
Such ill-advised behavior by elected officials and public employees can result in a judgment for money damages against them personally. Governmental insurance policies don’t cover intentional acts whether civil or criminal. What does this mean? Probably bankruptcy for small governmental units and the individuals retaliating.
So if you see something say something. Don’t be afraid to speak up, confront, or expose wrongdoing. Go to Village Council, Township, School Board, and Library Board meetings. If you don’t agree with what they’re doing say so. It’s your money they’re spending.
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