Posted by: Patricia Salkin | August 26, 2018

Sixth Circuit Court of Appeals Finds Owner Failed to Establish Prima Facie Case of First Amendment Retaliation

This post was authored by Matthew Loeser, Esq.

In this case, Plaintiff Bluegrass Dutch Trust Morehead, LLC, appealed the district court’s order granting summary judgment in favor of defendants, the popularly-elected members of the Rowan County Fiscal Court, in their individual capacities, in this action brought pursuant to 42 U.S.C. § 1983. Plaintiff alleged that defendants violated the First Amendment when the Fiscal Court refused to grant it permission to erect a fence and an electric gate on its property in retaliation for plaintiff’s political support. Plaintiff’s alleged protected speech consisted of erecting a political yard sign on its property in support of Walter Blevins during the 2014 Rowan County Judge Executive election cycle.

The court found that Plaintiff failed to provide any evidence beyond speculation that all, or any, member of the Fiscal Court even knew that plaintiff had supported Blevins in the election. Furthermore, plaintiff conceded that it failed to give its former counsel, Blandford and Frazier, permission to be deposed. These two lawyers had personal knowledge of what County Attorney Cecil Watkins said to them on the conference call after the variance request was denied, and could have therefore confirmed or denied whether Watkins said that the denial was “payback” or “politics” during a deposition or even in an affidavit submitted in opposition to the summary judgment motion. Thus, through its own conduct or inaction, plaintiff failed to obtain the testimony of its own former attorneys with first-hand knowledge of the conversation.

Additionally, the only evidence offered in response to defendants’ summary judgment motion, failed to reveal dates when the sign was erected and when it was removed. Here, the record reflected that almost four months elapsed between the November 4, 2014, election of Blevins and the February 23, 2015, meeting of the Fiscal Court where the variance motion failed. Due to so much time having passed, the court failed to make a temporal inference of retaliatory intent. Accordingly, the court affirmed the judgment of the district court.

Bluegrass Dutch Trust Morehead, LCC v Rowan County Fiscal Court, 734 Fed. App. 322 (6th Cir CA 5/10/2018)

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