MILLER v. ALLENDALE CHARTER TOWNSHIP (2023)

OPINION AND ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT

Pending before the Court are the parties’ cross motions for summary judgment in this First Amendment matter (ECF Nos. 32, 36). Plaintiffs Anthony Miller, Jessica Miller, and Barbara Brown, pursuant to a program established by Defendant Allendale Charter Township (“the Township”), sought to have certain messages engraved on bricks that would be placed in a public park owned and operated by the Township. However, the Township and Defendant Jody Hansen, the Township Clerk, rejected Plaintiffs’ brick applications. Thus, Plaintiffs commenced this civil rights lawsuit, arguing that Defendants violated their free speech rights. Because there are multiple remaining material questions of fact that dictate whether the speech at issue is government or private speech, the Court will grant in part and deny in part Defendants’ motion for summary judgment, and it will deny Plaintiffs’ motion for summary judgment.

I. Facts

In 1998, Allendale Charter Township was celebrating its 150th anniversary. As part of that celebration, the Township built the Garden of Honor, a war memorial designed to commemorate nine of America's major wars, inside the Allendale Township Park. The purpose of this memorial was to “honor[ ]” the Township's “area veterans” (ECF No. 37-13 at PageID.452). The Garden of Honor contains nine statues, eight of which are placed in a circle surrounding an approximately 18-foot-tall obelisk topped with an American eagle. The Allendale Township Park is owned by the Township, and the Township maintains the Park and the Garden of Honor.

To help pay for the construction of the Garden of Honor, the Township initiated a program where members of the public could submit an application for a personalized brick to be placed in a circle inside the Garden of Honor. The cost of each brick was $50, and the purchaser could have the brick engraved with any message they wished: “The bricks will be engraved as specified by the donor. The engraving could include a veterans name, a business name, family members[’] names, [or] whatever the purchaser of the brick would like.” (Id.). Although many bricks contained messages memorializing veterans, the Township approved a variety of messages on the bricks, including “I am the Resurrection and the Life”; “Lord Jesus Christ St John 11:25”; “Allendale's 1997 Car Show”; “Class of 2005”; “Allendale Eye Care”; “Local #2074 Grand Valley State Univ”; and “Ann's Beauty Salon” (see ECF No. 37-7). Candy Kraker, who was the Township Clerk at the time of the original brick program and the brick “program's point of contact” (ECF No. 37 at PageID.319), testified in a deposition that the Township never rejected a brick application submitted for the original brick program (ECF No. 37-1 at PageID.349-50).

The brick program was administered entirely by the Township. Once the Township received “a sufficient number of donations,” the Township would send the bricks to an engraver for customization, and then it had a bricklayer install the engraved bricks in the Garden of Honor (ECF No. 33 at PageID.125). Defendants assert that, “The applicants did not install the bricks and had no control over when or where they were installed. Private citizens could not come out and install a brick on their own” (Id.) (internal citation omitted). The original brick program lasted from 1998 until 2005, when the community interest in purchasing a brick was no longer present (ECF No. 37-1 at PageID.347) (“There was no more interest. People weren't buying bricks anymore, so we just concluded the whole process.”). Defendants also assert that “there was no more room to install bricks in the circle surrounding the obelisk” (ECF No. 48 at PageID.825; ECF No. 33-3 at PageID.172).

In August 2019, the Township Board of Trustees (“the Board”) established another brick program. While Plaintiffs assert that the Board “reestablished” the original 1998 brick program, Defendants assert that the 2019 brick program was “a new program” (compare ECF No. 37 at PageID.319, with ECF No. 33 at PageID.126).¹ Upon requests from constituents, the Board wanted to restart the brick program to raise funds for future maintenance work (ECF No. 37 at PageID.319). At a Board meeting on August 12, 2019, the Board raised the idea of establishing the 2019 brick program, and they discussed the details of the program (see Transcript of August 12, 2019, Board Meeting, ECF No. 33-4). Although the 1998 brick program did not limit the types of messages that could be engraved on the bricks, for the 2019 brick program, the Board considered limiting the engravings to only memorial messages honoring veterans (Id. at PageID.183) (proposing changes from the 1998 brick program: increasing the price per brick and “keeping it to the veterans”). Township Supervisor Adam Elenbaas raised the idea of opening the 2019 brick program to messages about more than just veterans, but the other Board members appeared to disagree:

Adam [Elenbaas]: [W]e can open [the 2019 brick program] up to people that, you know, may it's more than just veterans. I like the idea.

Unidentified Speaker: I say keep it at the veterans.

Adam: I'd like that too.

Unidentified Speaker: It's a veteran's memorial, I'd like to keep it focused on them.

(Id. at PageID.185).

Eventually, after much discussion about the parameters of the proposed program, the Board decided to move forward with the 2019 brick program, although the Board members never took a formal vote on the program. The following discussion about whether to limit the permissible engravings to only memorial messages about veterans occurred:

Unidentified Speaker [Marcia]: So, I'm gonna ask the question. If somebody says, hey, I don't have a family member that's a veteran, but I'm patriotic, and I want to put a stone in that says God Bless America, are we gonna allow them to?

Unidentified Speaker [Candy]: That's why we did that before, because there were people that did things like that.

Unidentified Speaker [Laurie]: There's class of –

Unidentified Speaker [Candy]: Yeah, there's different names and memory of, but there was also those patriotic notes just to say things like that.

Unidentified Speaker [David]: So, it wasn't just veterans then.

Adam [Candy]: No.

Unidentified Speaker [David]: Okay.

Unidentified Speaker [Marcia]: That's, you know, that's why -- there was a comment made earlier about only allowing it for veterans.

Unidentified Speaker: Right.

Unidentified Speaker [David]: I thought that's what it was.

Unidentified Speaker [Marcia]: I just want to ask that question in case that comes up, that whoever is seeking this order can answer the question.

Unidentified Speaker [David]: Personally as long as it's focused on either veterans or patriotic theme, I wouldn't want just anything. But in spirit of the veteran's memorial, do we get in trouble with –

Unidentified Speaker [Attorney]: I think it's either honoring an individual veteran or honoring veterans.

Unidentified Speaker [Candy]: In this political climate, should we put a disclosure in there, a disclaimer in there that if somebody says something derogatory and awful that we can choose not to put that out there? Just saying.

Unidentified Speaker [Bruce]: That's why the attorney's here so he can word that for us properly.

Unidentified Speaker [David]: Well, I think we would just refuse that and [defend] it to the hilt if we needed to.

Unidentified Speaker [Attorney]: I think you all deserve the right not to put something that's inappropriate.

Unidentified Speaker [Candy]: Should that be in writing or not worry about it.

Unidentified Speaker [David]: I wouldn't worry about it.

Unidentified Speaker [Attorney]: I think that would give it more attention.

Unidentified Speaker [Bruce]: Purposely trying to do something. We don't need to set ourselves up.

Unidentified Speaker [David]: But you're right in this climate.

Unidentified Speaker [Candy]: Oh, I could just see it.

(Id. at PageID.185-86).² Defendants assert that this discussion establishes the Township's “ultimate directive from the Board regarding the content of the bricks”: that the bricks would be restricted to honoring veterans only (ECF No. 33 at PageID.127-28).

In August 2019, the Township began advertising and accepting applications for the 2019 brick program. In the October and November 2019 editions of “The Announcer,” a monthly publication from the Allendale Area Chamber of Commerce, the Township advertised the 2019 brick program with a small advertisement that stated, “Buy a brick to honor a veteran. Allendale Township is now selling bricks for around the Veterans Memorial. An order of 50 bricks is necessary for engraving. The bricks would be placed around the Revolutionary War statue and around the flag pole. Forms are available on our web site or at the township office.” (ECF No. 33 at PageID.130; 33-6 at PageID.215). The original application for the 2019 brick program, like the application used for the 1998 brick program, did not state that the engravings on the bricks would be limited to only messages regarding veterans (see Application, ECF No. 37-9) (“Please fill out the ‘brick’ as you want your brick to be engraved”). From August 2019 through 2020, the Township received ten brick applications, which all honored individual veterans (see ECF No. 33-9).

In 2020, Laurie Richards—the Township Clerk during the August 12, 2019, Board meeting and who was managing the 2019 brick program—did not seek reelection. Defendant Jody Hansen was elected during the 2020 general election and assumed her position on November 11, 2020 (ECF No. 33 at PageID.131). Hansen then took over the administration of the 2019 brick program. While learning her new position, Hansen began “reviewing the files of the previous clerk and familiarizing herself with the tasks she would be administering” (Id.). When she located the file for the 2019 brick program, she found a document containing typed and handwritten notes, dated July 23, 2019, which appears to be notes for the 2019 brick program compared to the 1998 brick program (see ECF No. 33-12). With respect to the types of permissible messages on the bricks, the document contained a typed note stating, “Last time we opened it up to anyone ․ didn't have to be veterans ․ should we consider keeping it at only veterans this time? Is $50 still a good amount?” (Id.). Then, a handwritten note with a line drawn toward the typed note stated, “Only Veterans!” (Id.) That note was then crossed out with another handwritten note that said “Honoring Veterans”:

(Id.). Based on this document, Hansen testified in a deposition that she understood the Board's directive for the 2019 brick program to “honor veterans only” (ECF No. 37-2 at PageID.382). However, she also testified that the handwritten note stating, “Honoring Veterans” above the crossed-out text of “Only Veterans!” could be interpreted multiple ways (Id. at PageID.383).

In the summer of 2020, protests regarding racial justice and police brutality occurred across the country following the deaths of George Floyd and Breonna Taylor. As part of these protests, many activists called for the removal of public statues with a racial undertone. In Allendale, civilians advocated for the removal of the Civil War statue in the Garden of Honor. The statue depicts a Confederate soldier and a Union soldier standing back-to-back with an enslaved Black child at their feet holding a plaque that says, “Freedom to Slaves” (ECF No. 1 at PageID.17). In June 2020, a protest at the Allendale Community Park occurred where the public demanded the removal of the statue. All three plaintiffs in this matter attended the protest (see ECF No. 37 at PageID.318). After the protest, the Board enlisted a commission to consider options for the statue, and the commission recommended that the statue be removed from the Garden of Honor and replaced with a different statue. However, after receiving the commission's recommendation, the Board voted against removing the statue from the Garden of Honor (Id.).

On February 19, 2021, Hansen received the first brick application during her tenure as Township Clerk. The application was from Plaintiff Barbara Brown with a proposed engraving of “SAY HER NAME – BREONNA TAYLOR – LOUISVILLE EOW” (ECF No. 33-8 at PageID.233).³ Hansen noticed that Brown's application differed from the other applications processed and accepted by Hansen's predecessor because Brown's application “didn't indicate ․ branch of service or a date range of service” (ECF No. 33-11 at PageID.295-96). She remembered the document containing the handwritten notes about the 2019 brick program being limited to only “honoring veterans,” and she was concerned that Brown's application did not meet that criterion (Id. at PageID.295-98). After reviewing these notes, Hansen consulted Township Supervisor Elenbaas, who attended the August 12, 2019, Board meeting, “to see if he could recall what the Board directive was” from the August 2019 meeting (Id. at PageID.299). Elenbaas claims that he told Hansen that the Board's directive was “for honoring veterans” (ECF No. 33-5 at PageID.199-200; ECF No. 33-11 at PageID.299).

To confirm, Hansen brought Brown's application to the next Board meeting on March 8, 2021. She advised the Board that she had received a brick application in honor of someone who was not a veteran, and she sought the Board's guidance on how to proceed. The Board advised Hansen that the “brick donations were for veterans only,” and presumably, she was told to reject Brown's brick application (ECF No. 33-13 at PageID.305). Regarding this issue, the meeting minutes are as follows:

Ms. Hansen informed the board that she received a brick donation for someone who is not a veteran. She was under the impression that the brick donations were designated for veterans only. After doing some research she discovered the intent of the previous board was to open brick donations, keeping them specific to veterans. She asked the board how to proceed. The board gave verbal direction to continue keeping brick donations available only to those who have served in the armed forces. Ms. Hansen informed the board she will draft written policy, revamp donation forms, and create letter/communication templates for the Garden of Honor Brick Donation Program. Mr. Elenbaas and Ms. Hansen will also draft language for a resolution for the board to consider as well. She will present these to the board soon for approval.

(Id.). The Board did not pass a resolution regarding the parameters of the 2019 brick program at that meeting, but given the Board's direction, Hansen sent a denial letter to Brown the following day and returned her $75 donation (ECF No. 37-11 at PageID.432). The letter noted that “all bricks donated for the Veteran's Garden of Honor are reserved for those who have served in one of the U.S. Department of Defense Armed or Reserved forces” (Id.).

Plaintiff Jessica Miller (“Jessica”) attended the March 8, 2021, Board meeting (ECF No. 33 at PageID.134). The next day, Jessica's husband, Plaintiff Anthony Miller (“Tony”), submitted a brick application with a proposed engraving of “BLACK LIVES MATTER TAKE IT DOWN! – TONY” (ECF No. 33-8 at PageID.236). The application included Tony's $75 donation. Tony is a veteran of the United States Navy (ECF No. 37 at PageID.324). On March 19, 2021, Tony submitted twelve more brick applications, along with the required donation of $75 per brick,⁴ with the following proposed engravings: “AMEND THE 13TH – ABOLISH PRISON LABOR”; “BIPOC LIVES MATTER! THE MILLERS”; “BLACK LIVES MATTER! BEN JONES”; “BLACK LIVES! MARVIN FREEMAN”; “BLACK LIVES MATTER! ALORNZO WHITE”; “BLACK LIVES! FREDERICK DOUGLASS”; “BLACK LIVES MATTER! MOSES HARDY”; “INDIGENOUS LIVES MATTER! PAYSON WOLFE”; “INDIGENOUS LIVES! KBIC DONNY DOWD”; “INDIGENOUS LIVES! ARCHIE CADREAU”; “INDIGENOUS LIVES! ODDAWA DON GANN”; and “INDIGENOUS LIVES MATTER! JOE CADREAU”. (ECF No. 33-8 at PageID.248-60). Plaintiffs assert that “almost all of” the proposed engravings honor veterans of the U.S. armed forces (ECF No. 37 at PageID.324).

At the next Board meeting, held on March 22, 2021, the Board unanimously passed Resolution 2021-06 (“the Resolution”) (ECF No. 37-6). The Resolution states that the Board “reestablished” the Garden of Honor Brick program, and that it was “necessary to clarify the parameters of said program” (Id. at PageID.403). The Resolution set written standards for the 2019 brick program, noting that the bricks “are reserved for those who have served in one of the U.S. Department of Defense Armed or Reserved Forces,” and that content is “limited to combinations of the following”: name of veteran; branch of service; dates of service; name of war or conflict; location of service; rank; unit; specialty; medals/awards; or POW/MIA status (Id.). For all donations made between August 12, 2019, and the adoption of the Resolution that did not meet these guidelines, the Resolution stated that the donors would be refunded (Id.). The Resolution was signed by Hansen and Elenbaas, and it went into effect on March 22, 2021. After the Township passed the Resolution, it amended the 2019 brick program application to contain language regarding “content requirements”:

Content is limited to combinations of the following: Name of Veteran, Branch of Service, Dates of Service, Name of War or Conflict, Location of Service, Rank, Unit, Specialty, Medals/Awards, or POW/MIA Status. For a full list of rules and regulations, refer to Resolution # 2021-06.

(ECF No. 1 at PageID.19).

On March 29, 2021, Hansen sent Tony two denial letters: one for the single application submitted on March 9, 2021, and another for the twelve applications submitted on March 19, 2021 (ECF No. 33-8 at PageID.235, 247). Both letters referenced the Resolution, which was passed after Tony submitted all of his brick applications.

On December 6, 2021, Plaintiffs filed their single-count complaint, pursuant to 42 U.S.C. § 1983, alleging a violation of the First Amendment right to free speech (ECF No. 1). Discovery has now closed, and both parties have moved for summary judgment (ECF Nos. 32, 36).

II. Legal Standard

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008). The burden is on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by pointing out an absence of evidence supporting the nonmoving party's case. Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The facts, and the inferences drawn from them, must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When evaluating cross-motions for summary judgment, the court is obligated to analyze each motion on its own merits and view facts and inferences in the light most favorable to the nonmovant. Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 506 (6th Cir. 2003).

Once the moving party has carried its burden, the nonmoving party must set forth specific facts, supported by evidence in the record, showing there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The question is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52. The function of the district court “is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Resolution Trust Corp. v. Myers, 9 F.3d 1548 (6th Cir. 1993) (unpublished table opinion) (citing Anderson, 477 U.S. at 249).

However, the party opposing the summary judgment motion “must do more than simply show that there is some metaphysical doubt as to the material facts.” Amini v. Oberlin College, 440 F.3d 350, 357 (6th Cir. 2006) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994)) (quotation marks omitted). A mere “scintilla of evidence” in support of the non-moving party's position is insufficient. Daniels v. Woodside, 396 F.3d 730, 734–35 (6th Cir. 2005) (quoting Anderson, 477 U.S. at 252). Accordingly, the non-moving party “may not rest upon [his] mere allegations,” but must instead present “specific facts showing that there is a genuine issue for trial.” Pack v. Damon Corp., 434 F.3d 810, 814 (6th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)) (quotation marks omitted). In sum, summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

III. Analysis

A. Defendants’ Motion for Summary Judgment

1. Government Speech

Defendants have moved for summary judgment on the basis that the bricks engraved pursuant to the 2019 brick program constitute government speech, and therefore, the Free Speech Clause has no application to this case. See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (“The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”); Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 553 (2005) (“[T]he Government's own speech ․ is exempt from First Amendment scrutiny.”); Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015) (“When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”); Shurtleff v. City of Boston, 142 S. Ct. 1583, 1589 (2022) (“The First Amendment's Free Speech Clause does not prevent the government from declining to express a view.”). If the speech at issue constitutes government speech, then Defendants have no liability and are entitled to summary judgment.

In scenarios where the government “invites the people to participate in a program,” the “boundary between government speech and private expression can blur.” Shurtleff, 142 S. Ct. at 1589. Therefore, when considering whether the government is speaking on behalf of itself or whether it may regulate private expression, courts should conduct a “holistic inquiry.” Id. Specifically, courts should look at three factors when determining whether speech is government or private speech: (1) the history of the expression at issue; (2) the public's likely perception as to who is speaking; and (3) the government's control over the expression. See, e.g., Walker, 576 U.S. at 210-14. When viewing the facts in the light most favorable to Plaintiffs, there is a genuine dispute of material fact as to whether the factors weigh in favor of the finding that the engraved bricks were private expression or government speech.

History: The Court must first consider whether the engraved bricks have historically “communicated messages” on behalf of the Township. See id. at 211. Defendants argue that the Garden of Honor, as a whole, has historically communicated a message on behalf of the Township. This message, as Defendants allege, is “one honoring veterans” (ECF No. 33 at PageID.140). Defendants argue that such a message is one “closely associated with the government” (Id.).

Defendants rely on Summum, 555 U.S. at 470, where the Supreme Court held that “[p]ermanent monuments displayed on public property typically represent government speech.” With respect to the history of monuments on public property, the Supreme Court noted that,

Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.

Id. Moreover, even “privately financed and donated monuments that the government accepts and displays to the public on government land” may constitute government speech because such monuments “convey[ ] some message on the property owner's behalf.” Id. at 470-71. Defendants essentially ask the Court to adopt the Supreme Court's analysis regarding the history of monuments on public property from Summum: That is, historically, governments use monuments on public property to speak to the public.

In the Court's opinion, Defendants interpret the speech at issue too broadly, especially when viewing the facts in the light most favorable to Plaintiffs (see Plaintiffs’ Response to Defendants’ Motion for Summary Judgment, ECF No. 40 at PageID.473) (“Defendants’ analysis of the history prong focuses on government monuments at large, with little focus on the particulars of Allendale's Garden of Honor bricks program and the ways in which it differs from other types of monuments.”). True, Summum is particularly instructive regarding monuments on public property, but the monuments in the Garden of Honor are not at issue in this case. Rather, the bricks surrounding the monuments are at issue. The Township has not solicited the public to donate monuments to the Garden of Honor, nor has the Township denied a monument from being displayed in the Garden of Honor, like in Summum.

Instead, the Township has asked members of the public to pay to have their own message engraved on a brick in a public park that contains monuments. Historically, the Township has allowed all types of messages to be engraved on the bricks, including: “Lord Jesus Christ St. John,” “I am the Resurrection and the Life,” “Second CRC [Christian Reformed Church] of Allendale,” “Allendale's 1997 Car Show,” “Ann's Beauty Salon,” “St John Lutheran Church,” “Local #2074 Grand Valley State Univ,” “D Kleinjans Sons–Roofing Thank You Vets,” “Class of 2005,” “Allendale Animal Hospital,” “Huntington Bank,” “Allendale Christian School K–2,” “Schut's Body Shop Thank You Servicemen,” “First CRC of Allendale,” “Allendale Class of 2003,” and many others (ECF No. 40-1). The Court recognizes that these bricks were engraved during the 1998 brick program and that there is a genuine dispute as to whether, prior to March 22, 2021, the 2019 brick program was a continuation/renewal of the 1998 brick program, even when viewing the facts in the light most favorable to Plaintiffs.⁵ In any event, the history of the entire Garden of Honor brick program—regardless of whether the Township created two separate, distinct programs or one long-term program—is relevant. The Township has allowed many different types of messages on the engraved bricks. These messages—such as “I am the Resurrection and the Life,” “Class of 2005,” and “Ann's Beauty Salon”—do not indicate that the Township is speaking. Such messages appear to be private speech conveyed by members of the public. Therefore, in the Court's judgment, historically, the Township has used the brick program as a forum for private speech. This first factor may weigh in favor of the engravings on the bricks constituting private speech.

Public Perception: Second, the Court must “consider whether the public would tend to view the speech at issue as the government's.” Shurtleff, 142 S. Ct. at 1591. Given the variety in the types of messages the Township allowed to be engraved under the 1998 brick program—including religious messages (e.g., “St John Lutheran Church”), promotional messages for private businesses (e.g., “Duke Construction”), and names of individuals who may or may not be veterans (e.g., “Kathryn W Headley”)—the Court has no doubt that the public would not view the speech at issue as the Township's. The members of the public, not the Township, determine what messages are to be engraved on the bricks. See Matwyuk v. Johnson, 22 F. Supp. 3d 812, 823 (W.D. Mich. 2014) (finding that the speech at issue—personalized license plates—“cannot reasonably be considered government speech” partly because “the individuals who apply for Michigan personalized license plates—not the government—determine the message”).

Again, Defendants view the speech at issue too broadly. Defendants argue that,

The 2019 Brick Program would place engraved bricks within the Garden of Honor – a memorial dedicated to honoring veterans. The name and location itself tells the entire story. Again this is a Veterans’ Garden of Honor is installed on government owned property. Specifically, it is installed in the “Allendale Community Park” and is located only a matter of feet from a sign identifying it as such.

(ECF No. 33 at PageID.142). When viewing the facts in the light most favorable to Plaintiffs, the speech at issue is the messages on the bricks pursuant to the brick programs, not the park as a whole, and not even the monuments along with the bricks. See Tong v. Chicago Park Dist., 316 F. Supp. 2d 645, 658 (N.D. Ill. 2004) (“In deciding to open up broadly the subject matter of buy-a-brick program engravings to commemorative messages that are important to a donor or the donor's family, the [defendant] put itself in a position to play editor to root out such expressions that include a religious viewpoint. This level of government interference with private speech is exactly the kind of activity that the First Amendment is designed to curtail.”). Prior to March 22, 2021, the Township had never exercised any editorial control over the messages engraved on the bricks. Instead, it allowed every private person who submitted an application to have a message of their choosing be engraved on a brick (see ECF No. 37-1 at PageID.349-50).

Indeed, the website for the 1998 brick program stated that the donor could choose his or her message: “The bricks will be engraved as specified by the donor. The engraving could include a veteran[’]s name, a business name, family members[’] names, [or] whatever the purchaser of the brick would like.” (ECF No. 37-13 at PageID.452) (emphases added). At the time Plaintiffs submitted their brick applications, the Board had not formally adopted any policy changing the parameters of the 2019 brick program from the 1998 brick program, and the application that Plaintiffs submitted did not contain any language limiting the permissible engravings (see ECF No. 37-9) (“Please fill out the ‘brick’ as you want your brick to be engraved”). The facts support the finding that private donors could choose their own messages—regardless of content—and given the complete lack of editorial control (until the review of Plaintiffs’ applications), the public could perceive the engraved bricks to be private speech.

Government Control: Third, the Court must ask whether the Township “maintain[ed] direct control over the messages conveyed” through the brick program. See Walker, 576 U.S. at 213. Defendants argue that the Township maintained control over the Allendale Township Park, the Garden of Honor, and the installed bricks (see ECF No. 33 at PageID.145-46). But the control of the premises is not particularly helpful to the Township; it is the control over the engravings on the bricks that is relevant. See Shurtleff, 142 S. Ct. at 1592 (analyzing a program where private groups could fly a flag of their choosing outside of Boston's city hall, and finding that the third factor of the government speech analysis weighed in favor of private speech even though Boston maintained the premises: “Boston maintained control over an event's date and time to avoid conflicts. It maintained control over the plaza's physical premises, presumably to avoid chaos. And it provided a hand crank so that groups could rig and raise their chosen flags. But it is Boston's control over the flags’ content and meaning that here is key; that type of control would indicate that Boston meant to convey the flags’ messages.”).

Moreover, Defendants contend that the Township oversaw the entire brick program, from advertising and review of applications to customization and installation. In the Court's opinion, there is a question of fact as to how much control the Township exercised over the brick program, and in particular, the messages on the engraved bricks. Although the Township administered the 1998 and 2019 brick programs, it did not necessarily control the messages engraved on the bricks—this is evident from the variety of messages engraved on the bricks in the Garden of Honor, including numerous religious messages. In fact, the Township did not decide to control any messages on the bricks until it reviewed Brown's application. See id. (“The city's practice was to approve flag raisings, without exception.”).

Finally, with respect to the messages themselves, Defendants argue that the Township “exercised control over the message[s]” on the bricks because, during the August 12, 2019, Board meeting, the Township “determined that the messages on the bricks were to be limited to honoring veterans or a veteran” (Id. at PageID.145). But the Board failed to enact a policy establishing such parameters until after Plaintiffs submitted their applications. In other words, at the time Plaintiffs submitted their applications, the Township did not have a definitive, formal policy establishing concrete guidelines for the 2019 brick program. See id. (“[T]he city had nothing—no written policies or clear internal guidance—about what flags groups could fly and what those flags would communicate.”). Even a review of the transcript of the August 2019 Board meeting fails to resolve such questions of fact (see ECF No. 33-4 at PageID.185-86). At most, the Board decided that it reserved the right to reject applications containing “inappropriate” messages (see id.). But whether the 2019 brick program would be limited to patriotic messages, messages honoring veterans, or whether it was limited at all and was simply a continuation of the 1998 brick program, is unclear.

In the past, the Township had exercised no control over the messages engraved on the bricks in the Garden of Honor. Upon reviewing Plaintiffs applications, it tried to exercise control, absent a written policy or clear directive allowing it to do so. In the Court's judgment, there is at least a genuine issue of material fact as to whether the Township exercised control over the messages conveyed through the brick programs.

For these reasons, the Court finds that questions of fact remain as to whether the speech at issue was government speech, or whether the Township created a forum for private speech. While Defendants rely heavily on Summum in arguing that the brick program constitutes government speech, the Court is not convinced that Summum is as on-point as Defendants contend. The speech at issue in this matter is not monuments donated by the public in the Garden of Honor; it is the bricks surrounding the monuments. In fact, as discussed below, this case may be exactly the type of case that the Summum Court opined might be subject to the forum analysis, rather than a finding that the speech at issue is government speech. See Summum, 555 U.S. at 480.

2. Qualified Immunity – Defendant Jody Hansen

Defendants also contend that Hansen, the current Township Clerk, is entitled to qualified immunity. However, as Plaintiffs correctly assert, Defendants’ qualified immunity argument is misplaced. Because Plaintiffs merely seek declaratory and injunctive relief, not monetary damages, qualified immunity is not applicable to this matter. See Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir. 2001) (“The defense of qualified immunity protects officials from individual liability for money damages but not from declaratory or injunctive relief.”); (see also ECF No. 40 at PageID.482) (collecting cases). As such, Defendants motion for summary judgment will also be denied with respect to their qualified immunity argument.

3. Standing – Plaintiff Jessica Miller

Finally, Defendants move for summary judgment with respect to Jessica Miller's claims, arguing that she lacks standing to pursue them. For a plaintiff to have standing, the plaintiff must have suffered an injury-in-fact, fairly traceable to the defendant's allegedly unlawful conduct, and the injury is likely to be redressed by the requested relief. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Without standing, a federal court does not have jurisdiction to adjudicate the plaintiff's claims. See Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997).

Only Tony, Jessica's husband, submitted and signed all thirteen of his brick applications, not Jessica (see ECF No. 33-8 at PageID.236-37, 248-60). Because Jessica did not submit an application, Defendants argue that Jessica did not suffer an injury-in-fact necessary to establish standing. Plaintiffs respond that Jessica's name,⁶ in addition to Tony's, appears on the $900 check submitted with the latter twelve of Tony's applications, though only Tony signed the check (see id. at PageID.260). Jessica's name does not appear on the $75 check submitted with Tony's first application (see id. at PageID.237). Because Jessica's name appears on the $900 check, Plaintiffs argue that the applications were submitted by both Tony and Jessica.

In the Court's judgment, Jessica's name merely appearing on the check, absent her signature on the check, is not enough to establish an injury-in-fact. Jessica did not sign the applications, nor was her name present anywhere on the thirteen applications that Tony submitted. Although Tony suffered an injury-in-fact, he did not suffer an injury-in-fact on behalf of Jessica simply because they share a checking account. The Court will therefore grant Defendants’ motion for summary judgment with respect to Jessica Miller's claims.

B. Plaintiffs’ Motion for Summary Judgment

1. Forum Analysis

As explained above, there is a genuine dispute of material fact as to whether the messages on the engraved bricks constitute government speech or private speech. If the speech is private speech, the Court must apply the forum analysis to determine what type of forum the Township has created for the private speech, and in turn, what level of scrutiny applies the regulations on the private speech. See Miller v. City of Cincinnati, 622 F.3d 524, 533 (6th Cir. 2010) (“To determine the constitutionality of a government restriction on speech on publicly-owned property, we consider three questions: (1) whether the speech is protected under the First Amendment; (2) what type of forum is at issue and, therefore, what constitutional standard applies; (3) whether the restriction on speech in question satisfies the constitutional standard for the forum.”). Because there is a genuine dispute of material fact as to whether the messages engraved pursuant to the 2019 brick program are government or private speech, the Court will apply the forum analysis to the 2019 brick program. See Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010) (explaining that the “forum analysis” is used “to determine when a governmental entity, in regulating property in its charge, may place limitations on speech”). Plaintiffs argue that the Township created a designated public forum, causing any restrictions on private speech to be subject to strict scrutiny (see ECF No. 37 at PageID.336-37). Defendants, on the other hand, argue that the Township created a limited public forum, where the Township may restrict private speech if the restrictions do not discriminate against speech on the basis of viewpoint and are reasonable in light of the purpose served by the forum (see ECF No. 44 at PageID.638).

As a preliminary matter, Defendants argue that the forum analysis is inappropriate in this case because the Summum Court expressly rejected the applicability of the forum analysis regarding the installation of privately funded monuments in a public park. See Summum, 555 U.S. at 480 (“The obvious truth of the matter is that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations. And where the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place.”). However, Plaintiffs point to an “exception,” outlined at the end of the Summum opinion, which they argue shows why the forum analysis is exactly appropriate for this case:

To be sure, there are limited circumstances in which the forum doctrine might properly be applied to a permanent monument—for example, if a town created a monument on which all of its residents (or all those meeting some other criterion) could place the name of a person to be honored or some other private message. But as a general matter, forum analysis simply does not apply to the installation of permanent monuments on public property.

Id. According to Plaintiffs, this case fits into the “exception” that the Summum Court opined.

While the Court may ultimately agree with Plaintiffs that the present matter fits into this “exception,” the Court need not explicitly decide so at this point in the litigation. There is a genuine issue of material fact as to whether the speech at issue constitutes government or private speech (and in turn, whether the speech is subject to the protections of the First Amendment). Because of this question of fact, the next step in the overall analysis of this free speech case is to determine what type of forum the Township created by establishing the brick programs. See Miller, 622 F.3d at 533. Even when viewing the facts in the light most favorable to the Township, the Court finds that questions of fact remain—namely, whether the 2019 brick program was a renewal of the 1998 brick program or whether they were totally separate programs, and whether the 2019 brick program limited the permissible engravings to only messages honoring veterans—that dictate whether the brick program was a limited public forum or whether it was a designated public forum, and consequently, what level of scrutiny the Court must apply to the restrictions on the engravings.

That brings the Court to the forum analysis: What type of forum was the 2019 brick program? Plaintiffs say it was a designated public forum; Defendants say it was a limited public forum. With respect to designated public fora, “[t]he government creates a designated public forum when it opens a piece of public property to the public at large, treating as if it were a traditional public forum.” Miller, 622 F.3d at 534. See also Church of the Rock v. City of Albuquerque, 84 F.3d 1273, 1278 (10th Cir. 1996) (holding that a city-owned senior center was a designated public forum because, although “not a traditional location of public debate or assembly,” the city opened it “to the public for discussive purposes” by permitting “lectures and classes on a broad range of subjects by both members and non-members”). Like restrictions in traditional public fora, restrictions on speech in designated public fora are subject to strict scrutiny. See id. (quoting Summum, 555 U.S. at 469-70). With respect to limited public fora, “A government entity may ‘create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ ” Id. at 534-35 (quoting Summum, 555 U.S. at 470). Restrictions on speech in limited public fora receive lesser scrutiny than those in designated public fora: “The government may restrict speech in a limited public forum as long as the restrictions do ‘not discriminate against speech on the basis of viewpoint’ and are ‘reasonable in light of the purpose served by the forum.’ ” Id. at 535 (quoting Good News Club v. Milford Cent. Sch., 533 U.S 98, 106-07 (2001)).

Plaintiffs argue that, until March 22, 2021—the date the Township passed Resolution #2021-06 outlining the content limitations on the engravings—the entire brick program was a designated public forum because it allowed all members of the public to purchase a brick, to be placed on public property, and specify any message the public member wanted engraved on the brick (which they otherwise would not have been permitted to do absent the brick program) (see ECF No. 37 at PageID.336-37). Plaintiffs claim that the “diversity of the bricks that the Township placed (and remain there today) is evidence of the opened nature of the forum” (ECF No. 50 at PageID.844). Because the Township declined to limit the content of the engravings until it passed the Resolution, Plaintiffs argue that the brick program, from 1998 to March 2021, constituted a designated public forum.

Conversely, Defendants argue that the 2019 brick program is a distinct forum from the 1998 brick program, and because the Township intended to limit the permissible content of the bricks engraved under the 2019 brick program to only messages honoring an individual veteran, it therefore created a limited public forum (see ECF No. 44 at PageID.643-45). A government's intent, Defendants argue, “is key” (Id. at PageID.644). Defendants rely on the August 12, 2019, Board meeting transcript, Supervisor Elenbaas's deposition testimony, and former Township Clerk Kraker's deposition testimony in arguing that “the Board's intent was to restrict the content of the bricks [in the 2019 brick program] to veterans only” (Id. at PageID.645). And when determining the type of forum, courts are reluctant to hold that a government created a public forum without clear intent to do so. See Corenlius v. NAACAP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 803 (1985) (“We will not find that a public forum has been created in the face of clear evidence of a contrary intent․”).

But these documents, as well as the other evidence in the record, show anything but a clear intent regarding the parameters of the 2019 brick program. Board meeting minutes, agendas, and transcripts have all described the 2019 brick program as an effort to “restart,” “renew,” or “reestablish” the 1998 brick program (see ECF No. 40-3 at PageID.522-23; 33-4 at PageID.183). Even the Resolution stated that the Board “reestablished on August 12, 2019 the Veterans Garden of Honor Brick Program” (ECF No. 37-6 at PageID.403). If the 2019 brick program was indeed a “reestablishment” of the 1998 brick program, then, like the 1998 brick program, “[t]he bricks will be engraved as specified by the donor” (ECF No. 37-13 at PageID.452). The original 2019 brick program application contained no restrictions, the Board never took a formal vote nor drafted a written policy restricting the program, and even the advertisement in The Announcer (which Defendants specifically rely upon) does not explicitly say that the engravings would be limited to only messages honoring veterans.

The record is not clear as to (1) whether the 2019 brick program was a new or reestablished program, and (2) whether, prior to the passage of the Resolution, the 2019 brick program was limited to only messages honoring veterans. These genuine disputes of material fact dictate whether the Township created a limited public forum or a designated public forum. Because the type of forum determines what type of scrutiny the Court must apply to any regulations on speech in the forum, the Court cannot award summary judgment to either party on Plaintiff's free speech claim at this stage in the case.

2. Prior Restraint

Finally, Plaintiffs argue that “Allendale's engraved brick program amounted to an unconstitutional prior restraint on speech because it (1) created a forum for private speech, and (2) it lacked adequate standards for assessing applications” (ECF No. 37 at PageID.327). “The term ‘prior restraint’ describes administrative and judicial orders that block expressive activity before it can occur.” Polaris Amphitheater Concerts, Inc. v. City of Westerville, 267 F.3d 503, 506 (6th Cir. 2001). If a licensing statute places “unbridled discretion in the hands of a government official or agency, [it] constitutes a prior restraint and may result in censorship.” City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 757 (1988). The elements of a prior restraint are: (1) one who seeks to exercise First Amendment rights is required to apply to the government for permission; (2) the government is empowered to determine whether the applicant should be granted permission on the basis of a review of the content of the proposed expression; (3) approval is dependent upon the government's affirmative action; and (4) approval is not a routine matter, but involves an examination of the facts, an exercise of judgment, and the formation of an opinion. See Cantwell v. Connecticut, 310 U.S. 296, 305 (1940).

Again, the questions of fact articulated above prevent the Court from granting summary judgment to either party on this issue. The overarching question of whether the speech at issue was government or private speech will determine whether the speech is subject to a prior restraint analysis in the first place. Moreover, the parameters (or lack thereof) of the 2019 brick program will determine whether the Township properly reviewed the content of the proposed expression, and whether approval of the expression had been a routine matter in the past. The Court will deny the entirety of Plaintiffs’ motion for summary judgment based on the numerous outstanding questions of material fact.

IV. Conclusion

For the reasons articulated above, the Court will grant Defendants’ motion for summary judgment with respect to the claims alleged by Plaintiff Jessica Miller. But because there are numerous material questions of fact that remain, the motions for summary judgment will be denied in all other respects. Accordingly,

IT IS HEREBY ORDERED that Defendants’ motion for summary judgment (ECF No. 32) is GRANTED in part and DENIED in part.

IT IS FURTHER ORDERED that Plaintiffs’ motion for summary judgment (ECF No. 36) is DENIED.

IT IS SO ORDERED.

FOOTNOTES

1.   For clarity, this opinion will refer to each brick program as the “1998 brick program” and the “2019 brick program,” while recognizing that there a genuine dispute of fact as to whether they are distinct, separate programs or whether the 2019 brick program was a continuation or renewal of the 1998 brick program.

2.   Although the transcript of the August 12, 2019, Board meeting identified the Board members as “Unidentified Speakers,” Plaintiffs assert that deponents identified the speakers during their depositions (ECF No. 37 at PageID.321 n.4). The identified speakers are Adam Elenbaas - Township Supervisor; Candy Kraker - Township Trustee; David VanderWall – Treasurer; Laurie Richards - Township Clerk in 2019; Bruce Zeinstra - Township Trustee; Marcia - Township Trustee; and Bob Sullivan - Township Attorney. Defendants do not refute the identity of these speakers.

3.   “EOW” is an acronym for “End of Watch,” which is typically used in connection with armed service members or law enforcement officials killed in the line of duty. Brown used the abbreviation to honor Ms. Taylor's service as an EMT and emergency room technician (ECF No. 37 at PageID.323).

4.   Both Tony and Jessica's names were listed on the $900 check. Only Tony's signature appears on the check (ECF No. 33-8 at PageID.260).

5.   Notably, multiple different Township officials described the 2019 brick program as an effort to “restart,” “revive,” or “reestablish” the 1998 brick program (see ECF No. 40-3 at PageID.522-23).

6.   The name “Jessica L. Griffin” is listed on the check (ECF No. 33-8 at PageID.260). Defendants have not argued that Jessica L. Griffin and Plaintiff Jessica Miller are different people.

Paul L. Maloney, United States District Judge