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  • Lisa Brody and Kevin Elliott

Citizens sue Birmingham over free speech denial

Two Birmingham citizen activists, Clinton Baller and David Bloom, on Monday, July 22, filed suit in federal court against the city of Birmingham, mayor Patty Bordman and city attorney Timothy Currier, alleging their free speech rights had been violated by the city, as guaranteed by the U.S. Constitution and the Michigan Open Meeting's Act, when Bordman and Currier stopped them from speaking at the city's July 8 city commission meeting during the public comment period when they attempted to address the N. Old Woodward parking project and upcoming bond vote. Baller is a resident of Birmingham and is aligned with the Balance 4 Birmingham political action group; Bloom is a resident and aligned with the Birmingham Citizens for Responsible Government (BCRG) political action group. They brought their action under the First and Fourteenth Amendments of the Constitution, Michigan's Open Meetings Act, and 42 U.S. Code 1983, civil action for deprivation of rights, which states that “any citizen… within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.” Along with the city of Birmingham as a municipality, Bordman and Currier were sued both in their official capacities as well as individually. In their lawsuit, Baller and Bloom stated that for the last several years they have regularly attended city commission meetings “in order to gather information about local spending and legislative measures and address the commission on civic matters of priority concern to themselves and their respective citizens' groups.” They have both expressed concerns about the city's proposed N. Old Woodward development project, which is the subject of an August 6 ballot question asking Birmingham residents whether the city can obtain up to $57.4 million in general obligation bonds to replace a parking structure and extend Bates Street to Old Woodward. Over four years ago, the city sought to alleviate its parking crisis and determined that the N. Old Woodward parking garage, the city's oldest parking structure, and the adjacent surface lot could be used for a new and increased-size structure, while at the same time finishing a last piece of the 2016 plan by adding an extension of Bates Street and developing the adjacent property. Committees and subcommittees studied the project, and request for qualifications and then a request for proposals were developed, and after years of work, in June 2018, Woodward Bates Partners LLC was chosen to work with the city in a public/private partnership. The first phase, if approved, will consist of the parking garage and a five-story building fronting on Old Woodward, for which the developers are working on a lease to house a new RH (Restoration Hardware) store and restaurant. Both Baller and Bloom, individually and representing their citizens' groups, have been outspoken opponents of the N. Old Woodward project, speaking out at meetings, sending out mailers to residents opposing the project. At the July 8 city commission meeting, Baller spoke out on a number of agenda items, with both Currier and Bordman stopping him, asserting that the city's cable contract does not permit “advocating” for a political campaign. During the public comment portion of the meeting, Bloom noted in his suit that he was mid-sentence to “new parking deck on Old Woodward,” and was interrupted by Bordman with “You have to stop.” Currier instructed Bloom his comments were out of order because a contract existing between the city and the Birmingham Area Cable Board “prohibits political speech.” When Baller sought to speak next, regarding a city mailer on the vote, Currier said they “can't take any political questions.” Baller in his suit stated he “proceeded to express objection to the body's actions over approximately the next 15 seconds… (and) Bordman declared the meeting adjourned.” Baller and Bloom allege that since they were stopped or restricted from voicing their intended comments at a forum intended for use by the public, their First and Fourteenth Amendments were violated. “If the facts alleged in the complaint are true, then these events are worrisome from a First Amendment perspective. A public body that creates a forum for discussion can impose reasonable time, place, and manner restrictions on speech within it,” said Len Neihoff, professor at the University of Michigan Law School who teaches First Amendment courses. “It's not clear that the contract with the cable company should make a difference here. After all, a public body should not be able to avoid its constitutional obligations to one party by entering into a contract with another. In addition, allowing a public body to cut off conversation about political matters once it became 'advocacy' would seem to lend itself to abuse and uneven treatment. I would worry that such a standard would allow a public body to cut off the expression of viewpoints it doesn't like.” According to the Birmingham Area Cable Board contract, last updated January 2019, under “Public Access,” it states, “Residents of those communities (Birmingham, Beverly Hills, Bingham Farms and Franklin) may use the channel as a forum of free speech and express a diversity of viewpoints as outlined in the 1984 Federal Cable Act.” The contract at no point mentions remarking on or advocating for or against city activity, other than no federal, state or local laws or ordinances can be violated. Birmingham attorney Tim Currier could not be reached for comment. Birmingham city officials issued the following statement; "In line with standard protocol involving legal matters, the city does not comment on pending or ongoing litigation." Patty Bordman stated she had not yet read the complaint and had no comment. Baller has a recent history of complaints against the Birmingham. He filed a campaign election complaint with the state against the city which was dismissed. However, the Michigan Secretary of State found that Baller and his political action committee Balance for Birmingham had violated MCL 169.247 of the Michigan Campaign Finance Act (MCFA) by failing to include a complete and correct identification statement on certain campaign-related materials, and gave him a formal warning. In addition, on June 12, the city's ethics board heard – and unanimously dismissed – two complaints from Baller, against city manager Joe Valentine and mayor Patty Bordman, over their involvement with winning bids and proposals for the new N. Old Woodward Bates project.

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