Docstoc

moc motion and brief to dissolve ex tro filed

Document Sample
moc motion and brief to dissolve ex tro filed Powered By Docstoc
					                                                                                                                                                        STATE OF MICHIGAN
                                                                                                                                          TH
                                                                                                                             IN THE 30         JUDICIAL CIRCUIT COURT FOR THE INGHAM COUNTY
                                                                                                                                                           CIVIL DIVISION


                                                                                                                      CAPITAL AREA DISTRICT LIBRARY
                                                                                                                                                                                        DOCKET NO. 2011-200-CZ
                                                                                                                             Plaintiff,
                                                                                                                      v.                                                         HON. ROSEMARIE E. AQUILINA
Law Offices  Dean G. Greenblatt, plc  P. O. Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                                      MICHIGAN OPEN CARRY, INC.

                                                                                                                             Defendant.

                                                                                                                                                                                 /

                                                                                                                      MURPHY, BRENTON & SPAGNUOLO, PC                    DEAN G. GREENBLATT, PLC
                                                                                                                      Vincent P. Spagnuolo (P30350)                      Dean G. Greenblatt (P54139)
                                                                                                                      Garry L. Bender (P31557)                           Attorney for Defendant
                                                                                                                      Attorneys for Plaintiff                            4190 Telegraph Road
                                                                                                                      4572 S. Hagadorn Road                              Suite 3500
                                                                                                                      Suite 1A                                           P.O. Box 40
                                                                                                                      East Lansing, Michigan 48823                       Bloomfield Hills, Michigan 48303-0040
                                                                                                                      (517) 351-2020                                     (248) 644-7520

                                                                                                                                                                         Stuart J. Weiss (P56688)
                                                                                                                                                                         Attorney for Defendant
                                                                                                                                                                         6646 Tamerlane Drive
                                                                                                                                                                         West Bloomfield, Michigan 48322
                                                                                                                                                                         (248) 390-8850

                                                                                                                                                                                 /

                                                                                                                           DEFENDANT’S MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER

                                                                                                                             Defendant, through counsel, and pursuant to MCR 3.310(B)(5) moves this Honorable

                                                                                                                      Court for an order dissolving the Ex-Parte Temporary Restraining Order (“TRO”) issued without

                                                                                                                      notice and upon the motion of the plaintiff, Capital Area District Library (“CADL”), on February

                                                                                                                      16, 2011, which restraining order states:

                                                                                                                                     Defendant and its members be immediately enjoined-and restrained,
                                                                                                                             directly and indirectly, whether alone or in concert with others, including any
                                                                                                                             officer, agent, employee and/or representative of Defendant and/or any of its
                                                                                                                     members, until further order of this Court, from entering any of Plaintiff CADL's
                                                                                                                     buildings or library branches while carrying, brandishing or concealing without a
                                                                                                                     proper permit, any form of weapon or firearm in violation of CADL's Weapons
                                                                                                                     Policy.

                                                                                                              TRO 2/16/11. (EXHIBIT A).

                                                                                                                     This motion is based on the following grounds:

                                                                                                                     (1) That the TRO was improvidently issued contrary to court rule without notice to the
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              opposing party and without allegations in the accompanying affidavit or Complaint for

                                                                                                              Declaratory Judgment and Injunctive Relief clearly showing specific facts that would result in

                                                                                                              immediate and irreparable injury, loss, or damage to plaintiff before notice could be served and a

                                                                                                              hearing had upon the application. As such, Plaintiff has failed the meet its burden of proof and

                                                                                                              the TRO should be dissolved. Moreover, the TRO issued does not comply with the express

                                                                                                              requirements of MCR 3.310(B)(2) and (C)(1) regulating temporary restraining orders and

                                                                                                              injunctions and is therefore facially defective.

                                                                                                                     (2) The TRO was issued contrary to established Michigan Law without regard to the

                                                                                                              harm to the public interest and irrespective of the availability of available adequate alternative

                                                                                                              remedies to CADL: The TRO is apparently based upon CADL’s firearms ban which is expressly

                                                                                                              and impliedly preempted by State statute. The TRO enjoins law-abiding citizens of the State of

                                                                                                              Michigan from exercising their Art. I, Sec. 6 constitutional rights, creating a standing violation

                                                                                                              thereof. Michigan Open Carry, Inc. (hereafter referred to as “MOC”) is not a real party in

                                                                                                              interest in this suit and Plaintiff has failed to identify a single individual for whom it seeks to

                                                                                                              enjoin. CADL’s hearsay grievances contained in its Director’s Affidavit are an improper basis

                                                                                                              for the issuance of a TRO and are not identifiable with MOC or its members; are not based upon

                                                                                                              personal knowledge and are merely a collection of the Director’s subjective fears, passions or

                                                                                                              prejudices. (See Affidavit of Lance Werner, EXHIBIT B) The TRO was sought and obtained



                                                                                                                                                                 2
                                                                                                              upon the mere apprehension of future injury or where the threatened injury is speculative or

                                                                                                              conjectural and not upon a particularized showing of irreparable harm.

                                                                                                                        The TRO, together with the underlying declaratory relief Complaint, is a back-door

                                                                                                              attempt to thwart the intent of the Legislature and create a new judicial classification of pistol-

                                                                                                              free zones for open-carriers AND concealed pistol licensees. If successful, the Plaintiff would
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              substantially alter the field of firearm regulations pertaining to concealed pistol licensees and

                                                                                                              State Law specified concealed carry exclusion zones. (See, Defendant’s Response to Order to

                                                                                                              Show Cause, filed simultaneously with this brief, and fully incorporated herein by reference.)

                                                                                                                        WHEREFORE, Defendant respectfully requests this Honorable Court grant the following

                                                                                                              relief:

                                                                                                                        (i)     immediately dissolve the pending Ex-Parte Temporary Restraining Order;

                                                                                                                        (ii)    DENY Plaintiff’s motion for permanent injunctive relief;

                                                                                                                        (iii)   GRANT Defendant a TRO enjoining CADL from enforcing its invalid attempt at

                                                                                                                                legislation/regulation which is preempted by State Law; and,

                                                                                                                        (iv)    award attorney fees and costs to Defendant incurred by being forced to defend

                                                                                                                                this matter, pursuant to MCR 2.114 and 2.119.


                                                                                                                        Respectfully submitted,

                                                                                                              By: _____________________________                      By: _____________________________
                                                                                                                  Dean G. Greenblatt (P54139)                            Stuart J. Weiss (P56688)
                                                                                                                  Counsel for Michigan Open Carry, Inc.                  Counsel for Michigan Open Carry, Inc.


                                                                                                              Dated: March 4, 2011




                                                                                                                                                                3
                                                                                                                                                  STATE OF MICHIGAN
                                                                                                                             IN THE 30TH JUDICIAL CIRCUIT COURT FOR THE INGHAM COUNTY
                                                                                                                                                     CIVIL DIVISION


                                                                                                                      CAPITAL AREA DISTRICT LIBRARY
                                                                                                                                                                                        DOCKET NO. 2011-200-CZ
                                                                                                                             Plaintiff,
Law Offices  Dean G. Greenblatt, plc  P. O. Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                                      v.                                                        HON. ROSEMARIE E. AQUILINA

                                                                                                                      MICHIGAN OPEN CARRY, INC.

                                                                                                                             Defendant.

                                                                                                                                                                                /

                                                                                                                      MURPHY, BRENTON & SPAGNUOLO, PC                    DEAN G. GREENBLATT, PLC
                                                                                                                      Vincent P. Spagnuolo (P30350)                      Dean G. Greenblatt (P54139)
                                                                                                                      Garry L. Bender (P31557)                           Attorney for Defendant
                                                                                                                      Attorneys for Plaintiff                            4190 Telegraph Road
                                                                                                                      4572 S. Hagadorn Road                              Suite 3500
                                                                                                                      Suite 1A                                           P.O. Box 40
                                                                                                                      East Lansing, Michigan 48823                       Bloomfield Hills, Michigan 48303-0040
                                                                                                                      (517) 351-2020                                     (248) 644-7520

                                                                                                                                                                         Stuart J. Weiss (P56688)
                                                                                                                                                                         Attorney for Defendant
                                                                                                                                                                         6646 Tamerlane Drive
                                                                                                                                                                         West Bloomfield, Michigan 48322
                                                                                                                                                                         (248) 390-8850

                                                                                                                                                                                /


                                                                                                                                 BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISSOLVE
                                                                                                                                            TEMPORARY RESTRAINING ORDER


                                                                                                                             Defendant, Michigan Open Carry, Inc., through counsel, and pursuant to MCR

                                                                                                                      3.310(B)(5) moves this Honorable Court to dissolve its Ex-Parte Temporary Restraining Order

                                                                                                                      issued on February 16, 2011, responds to the Court’s Order to Show Cause, and states as

                                                                                                                      follows:

                                                                                                                                                                     4
                                                                                                                                                          PARTIES

                                                                                                                     Michigan Open Carry, Inc. (“MOC”) is a Michigan not-for-profit advocacy organization

                                                                                                              created under the Nonprofit Corporation Act of 1982. MOC supports the lawful carry of

                                                                                                              handguns. (Michigan Open Carry website, http://www.michiganopencarry.org/) MOC provides

                                                                                                              written material for the use of its members, municipalities, and law enforcement that outlines the
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              laws associated with open carrying of handguns. Id. MOC offers seminars on the topic. Id.

                                                                                                              MOC operates a website and a web-based forum. Id.

                                                                                                                     Capital Area District Library (“CADL”) is a District Library created on March 10, 1997

                                                                                                              from the cooperative efforts of the participating municipalities of the City of Lansing and the

                                                                                                              County of Ingham through a District Library Agreement and in accordance with statutory

                                                                                                              requirements. District Library Agreement (EXHIBIT C) The District Libraries Establishment

                                                                                                              Act provides that economic support of the library to be through ad valorem taxes on property in

                                                                                                              the District, state aid, and penal fines. MCL §§ 397.171-196.

                                                                                                                                             PROCEDURAL BACKGROUND

                                                                                                                     On February 15, 2011, Plaintiff CADL filed a Complaint for Declaratory Action and

                                                                                                              Injunctive Relief; Affidavit of Lance Werner; Certificate of Attorney; Ex-Parte Emergency

                                                                                                              Motion for a TRO and Brief in Support; Ex-Parte TRO; Motion for Preliminary and Permanent

                                                                                                              Injunctive Relief and Brief in Support. This Court issued an Ex-Parte TRO on February 16,

                                                                                                              2011, which stated:

                                                                                                                     This matter having come before this Court pursuant to Plaintiff Capital Area
                                                                                                                     District Library's ("CADL") Complaint, Motion for Ex-Parte Relief, Affidavit,
                                                                                                                     and Brief in Support thereof, and the Court being fully advised in the premises;

                                                                                                                     NOW, THEREFORE;

                                                                                                                     IT IS ORDERED THAT Defendant and its members be immediately enjoined-
                                                                                                                     and restrained, directly and indirectly, whether alone or in concert with others,



                                                                                                                                                               5
                                                                                                                     including any officer, agent, employee and/or representative of Defendant and/or
                                                                                                                     any of its members, until further order of this Court, from entering any of Plaintiff
                                                                                                                     CADL's buildings or library branches while carrying, brandishing or concealing
                                                                                                                     without a proper permit, any form of weapon or firearm in violation of CADL's
                                                                                                                     Weapons Policy.

                                                                                                                     This order shall remain in full force and effect until this Court specifically orders
                                                                                                                     otherwise.

                                                                                                              TRO 2/16/11 (EXHIBIT A)
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                                     In addition, this Court ordered Defendant to show cause why a “preliminary injunction

                                                                                                              should not be entered according to the terms and conditions as set forth in Plaintiff's motion.”

                                                                                                              (Id.) The Court required no bond, “pursuant to MCR 3.310(D).” (Id.)

                                                                                                                                                   LEGAL STANDARDS

                                                                                                              STANDARD OF REVIEW:

                                                                                                                     The decision of a trial court to vacate or modify a previously entered temporary

                                                                                                              restraining order is a discretionary ruling. Bowers v VanderMeulen-Bowers, 278 Mich App 287,

                                                                                                              295, 750 NW2d 597 (2008); see Mich Coalition of State Employee Unions v Civil Service

                                                                                                              Comm., 465 Mich 212, 217, 634 NW2d 692 (2001) (decision of a trial court concerning

                                                                                                              injunctive relief is reviewed for an abuse of discretion). “An abuse of discretion occurs when the

                                                                                                              decision results in an outcome falling outside the principled range of outcomes.” Woodard v

                                                                                                              Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).

                                                                                                              BURDEN OF PROOF:

                                                                                                                     “At a hearing on a motion to dissolve a restraining order granted without notice, the

                                                                                                              burden of justifying continuation of the order is on the applicant for the restraining order

                                                                                                              whether or not the hearing has been consolidated with a hearing on a motion for a preliminary

                                                                                                              injunction or an order to show cause.” MCR 3.310(B)(5) (emphasis added). Consequently, the

                                                                                                              burden of proof remains with the plaintiff, CADL, to justify continuation of the ex-parte



                                                                                                                                                               6
                                                                                                              temporary restraining order.

                                                                                                                                                          ANALYSIS

                                                                                                              DISSOLVING AN EX-PARTE TRO:

                                                                                                                     Michigan’s Court Rule regulating injunctions, MCR 3.310, specifies that:

                                                                                                                     A temporary restraining order may be granted without notice . . . only if
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                                     (a) it clearly appears from specific facts shown by affidavit or by a verified
                                                                                                                     complaint that immediate and irreparable injury, loss, or damage will result to the
                                                                                                                     applicant from the delay required to effect notice or from the risk that notice will
                                                                                                                     itself precipitate adverse action before an order can be issued;

                                                                                                                     (b) the applicant's attorney certifies to the court in writing the efforts, if any, that
                                                                                                                     have been made to give the notice and the reasons supporting the claim that notice
                                                                                                                     should not be required; and

                                                                                                                     (c) a permanent record or memorandum is made of any nonwritten evidence,
                                                                                                                     argument, or other representations made in support of the application.

                                                                                                              MCR 3.310(B)(1) (emphasis added); Hawkins v Murphy, 222 Mich App 664, 668, 565 NW2d

                                                                                                              674 (1997). MCR 3.310(B)(1)(a), therefore, sets forth two distinct tests that must be met before

                                                                                                              a court may issue an ex parte TRO. The central inquiry under a MCR 3.310(B)(1)(a) analysis,

                                                                                                              consequently, is whether the facts alleged indicate the likelihood of immediate and irreparable

                                                                                                              harm to the plaintiff should a TRO not enter until such time as a full hearing on the request for

                                                                                                              preliminary injunctive relief may be conducted. Id. Here, Plaintiff fails to meet either prong of

                                                                                                              the test and the injunction, therefore, should be dissolved.

                                                                                                              1.     Plaintiff cannot sustain its burden of proof where it fails both prongs of the “immediate
                                                                                                                     and irreparable” harm test.

                                                                                                                     a.      Plaintiff fails the immediate harm, first prong of the ex-parte TRO test.

                                                                                                                     Under the first prong of the test articulated in MCR 3.310(B)(1)(a) before a court may

                                                                                                              issue an ex parte TRO, the facts alleged in support of the injunction must indicate that the

                                                                                                              threatened harm is immediate. Id. The immediate harm requirement is a critical component of



                                                                                                                                                                7
                                                                                                              the test because constitutional rights are necessarily implicated. For example, it is axiomatic that

                                                                                                              due process, except in extraordinary circumstances, demands that a person be given an

                                                                                                              opportunity for a hearing before that person is deprived of any significant interest. E.g. Boddie v

                                                                                                              Connecticut, 401 US 371, 91 SCt 780, 28 LEd 2d 113 (1971); Mullane v. Central Hanover Bank

                                                                                                              & Trust Co., 339 US 306, 70 SCt 652, 94 LEd 865 (1950) (due process is satisfied when
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              interested parties are given notice through a method that is reasonably calculated under the

                                                                                                              circumstances to apprise them of proceedings that may directly and adversely affect their legally

                                                                                                              protected interests and afford them an opportunity to respond.) Rights of Michigan citizens

                                                                                                              under the State Constitution are also directly affected in this litigation. Const. Art. I, §6.

                                                                                                                     Similarly, the Michigan Supreme Court has stated that a judge, from whom a temporary

                                                                                                              restraining order is sought, should insist upon a clearly persuasive showing of imminent and

                                                                                                              irreparable injury beyond the power and control of the regularly constituted police authorities of

                                                                                                              the community. Cross Co. v. United Auto., Aircraft and Agr. Implement Workers of America

                                                                                                              Local No. 155, 371 Mich 184, 123 NW2d 215 (1963). This clearly persuasive showing is

                                                                                                              required to justify the exercise by the judge of this extraordinary power prior to such hearings as

                                                                                                              due process demands. Id. Thus, it is only in the most exceptional cases, where it is essential to

                                                                                                              preserve the status quo and prevent loss to the plaintiff, and where no great loss to defendant will

                                                                                                              result, that mandatory injunctions are granted prior to the hearing of a case. L & L Concession

                                                                                                              Co. v. Goldhar-Zimner Theatre Enterprises, 332 Mich 382, 51 NW2d 918 (1952); Steggles v.

                                                                                                              National Discount Corp., 326 Mich 44, 39 NW2d 237 (1949).

                                                                                                                     Moreover, “the ‘status quo’ to be preserved by preliminary injunction is the last actual,

                                                                                                              peaceable, non-contested status preceding the pending controversy.” Campau v McMath, 185

                                                                                                              Mich App. 724, 463 NW2d 186 (1990). Contrary to Plaintiff’s assertions that a TRO is required




                                                                                                                                                                 8
                                                                                                              to preserve the status quo, i.e. to prevent MOC members from lawfully open carrying in the

                                                                                                              library, the status quo is defined by the courts as the “last, peaceable uncontested status

                                                                                                              preceding the pending controversy,” Id. and is not enforcement of an ex-parte TRO that

                                                                                                              selectively enforces an invalid CADL regulation. If that were indeed the case, neither of the

                                                                                                              parties would be in court contesting the issue.
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                                       In the case at bar, no exceptional circumstances exist that summarily allow for the denial

                                                                                                              of constitutionally protected due process rights. E.g., Cross Co. v. United Auto., 371 Mich 184,

                                                                                                              123 NW2d 215 (1963) MCR 3.310(B)(1)(a) clearly states that an application for an ex parte

                                                                                                              TRO must be supported by sworn, factual allegations showing the need for such drastic

                                                                                                              injunctive relief. Id. The facts supporting the application may be contained in a verified

                                                                                                              complaint or in affidavits accompanying the application. Id. Here, Plaintiff provided factual

                                                                                                              allegations in the form of an Affidavit from Lance Werner, Director of the CADL, only

                                                                                                              (EXHIBIT B); no verified complaint was filed.

                                                                                                                       Mr. Werner’s affidavit was filed in support of Plaintiff’s CADL’s Complaint for

                                                                                                              Declaratory Action and Injunctive Relief, Ex-Parte Emergency Motion for a TRO, and Motion

                                                                                                              for Preliminary and Permanent Injunctive Relief and Brief in Support. As such, Mr. Werner’s

                                                                                                              affidavit must comply with MCR 2.119(B);1 to wit, it must be made on personal knowledge and

                                                                                                              state facts admissible as evidence establishing applicant's right to ex parte equitable relief. Id.

                                                                                                              Defendant submits that the Werner affidavit falls far short of these requirements and, as such,

                                                                                                              should be held inadmissible and stricken from the record as it merely contains allegations based


                                                                                                              1
                                                                                                               MCR 2.119(B)(1) provides that “[i]f an affidavit is filed in support of or in opposition to a motion, it must:”
                                                                                                                      (a) be made on personal knowledge;
                                                                                                                      (b) state with particularity facts admissible as evidence establishing or denying the grounds stated
                                                                                                                      in the motion; and
                                                                                                                      (c) show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts
                                                                                                                      stated in the affidavit.
                                                                                                              Id. (emphasis added).


                                                                                                                                                                         9
                                                                                                              upon hearsay, opinion, speculation, and conjecture.

                                                                                                                     For example, Mr. Werner swears under oath that he has “personal knowledge regarding

                                                                                                              the matter stated herein.” Werner Aff. ¶ 2. (EXHIBIT B). Moreover, and more egregiously, in

                                                                                                              paragraph 7, Mr. Werner makes allegations concerning an incident at the downtown library

                                                                                                              branch on December 11, 2010. However, in a subsequent press statement, Mr. Werner is quoted
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              as saying that he was not present at the library at the time of the incident, but that he had “read

                                                                                                              the Police Department’s incident report and saw a photograph.” City Pulse, December 15, 2010

                                                                                                              (EXHIBIT D) Consequently, Mr. Werner’s affidavit is, by his own admission, hearsay; and, as

                                                                                                              such, the entire affidavit should be ruled inadmissible and stricken from the record.

                                                                                                                     Similarly, paragraphs 5-13 are replete with instances of inadmissible hearsay of persons

                                                                                                              in the library bearing guns; throughout the affidavit, Mr. Werner swears that members of MOC

                                                                                                              have brought weapons, including rifles, into the downtown Lansing branch of the CADL library

                                                                                                              on multiple occasions, from December 2010 to the present. However, Mr. Werner’s affidavit

                                                                                                              fails to identify a single individual by name, neglects to state how he has personal knowledge of

                                                                                                              any individuals acting in this manner, and fails to indicate how he has personal knowledge that

                                                                                                              these persons were indeed MOC members. In fact, there is no known reported incident

                                                                                                              involving anyone possessing a rifle in CADL’s downtown library, nor is the individual identified

                                                                                                              in the press as carrying a shotgun a member of MOC. In summary, other than speculative

                                                                                                              hearsay statements, Mr. Werner’s affidavit offers nothing to show that he has any personal

                                                                                                              knowledge that any of these persons involved in the incidents were members of MOC.

                                                                                                                     As a further example, paragraph 6 states that patrons have been frightened and disturbed

                                                                                                              by the presence of guns in the library. CADL, however, has provided no affidavits from any of

                                                                                                              the patrons that have allegedly been frightened to support its claims, and has only provided




                                                                                                                                                               10
                                                                                                              inadmissible hearsay statements from Mr. Werner. In paragraph 12, Mr. Werner refers to an

                                                                                                              individual unlawfully possessing a concealed weapon. In addition to the same objections noted

                                                                                                              above, this statement is completely irrelevant where CADL is complaining of the “open carry”,

                                                                                                              not concealed carry, by MOC members. The incident described in paragraph 12 of the Affidavit,

                                                                                                              if true, is a crime, statutorily punishable as same, and not pertinent to this action.
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                                     MOC’s mission is to educate concerning the lawful open carry of handguns and does not

                                                                                                              advocate illegal carrying of concealed weapons nor the open carrying of rifles or shotguns (see,

                                                                                                              Michigan Open Carry website, http://www.michiganopencarry.org/). More importantly, CADL

                                                                                                              claims to take issue with MOC and its open carry policy and not the state concealed carry laws.

                                                                                                              Although, it is clear that CADL’s ultimate goal is to declare itself “school property” which

                                                                                                              would instantly make all Michigan libraries concealed carry exclusion zones.

                                                                                                                     Finally, in a further attempt to justify the ex-parte TRO, paragraph 15 of the affidavit

                                                                                                              states that the Lansing Police Department will not respond when called by CADL, nor will the

                                                                                                              police department remove members of MOC from the premises at CADL’s request. However,

                                                                                                              the reason for this is simple; the police have no authority to remove someone from public

                                                                                                              property who has not broken the law. See, Michigan State Police Legal Update No. 86, Oct. 26,

                                                                                                              2010 (“In Michigan, it is legal for a person to carry a firearm in public as long as the person is

                                                                                                              carrying the firearm with lawful intent and the firearm is not concealed.”) (EXHIBIT E);

                                                                                                              Fowlerville Police Chief Tom Couling (open carrying “[is] not an unlawful act and we can’t do

                                                                                                              anything about it.”), Daily Press & Argus, Feb. 25, 2011; Lansing Police Department Capt. Mike

                                                                                                              Yankowski (“no one will be arrested for openly carrying guns in the library, because Lansing’s

                                                                                                              firearms ordinance - which bans guns in public places unless it is in a case and is not loaded- is

                                                                                                              trumped by state law. However, the LPD will respond to CADL’s calls if necessary.”), “The




                                                                                                                                                                11
                                                                                                              most dangerous library in the world?” City Pulse, Feb. 17, 2011; (EXHIBIT F); Sgt. Aimee

                                                                                                              Maike, Michigan State Police (“[w]e enforce the laws the Legislature enacts . . . . It’s legal in the

                                                                                                              state of Michigan. If the Legislature chooses to change the law, we’ll enforce any law they have

                                                                                                              written.”), Detroit News, “Open-carry defenders aim to educate.” Jan 7, 2011. (EXHIBIT G).

                                                                                                              In summary, both local and state law-enforcement officials, unlike the CADL, believe that state
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              law trumps local legislation in this area. Moreover, the Fowlerville Village Council, similar to

                                                                                                              government officials in Shelby Township (north of Detroit) and Royal Oak, has recently

                                                                                                              amended its local ordinance on firearms to comply with state law on gun regulation. Daily Press

                                                                                                              & Argus, Feb. 25, 2011. (EXHIBIT F).

                                                                                                                     In summary, Mr. Werner’s affidavit falls far short of the requirements for a valid

                                                                                                              affidavit, pursuant to MCR 2.119; thus, any allegations contained therein are inadmissible and

                                                                                                              should be stricken from the record. Consequently, CADL has failed to meet its burden of proof

                                                                                                              pursuant to MCR 3.310(B)(1)(a), which clearly states that an application for an ex parte TRO

                                                                                                              must be supported by sworn, factual allegations showing the need for such drastic injunctive

                                                                                                              relief. Id. As such the temporary restraining order should be dissolved.

                                                                                                                     It is paramount that specific factual allegations must be made in support of the need for

                                                                                                              an ex parte TRO. Indeed, the Michigan Supreme Court has consistently stated that a

                                                                                                              particularized showing of immediate and irreparable harm is an indispensable requirement to

                                                                                                              obtain a preliminary injunction. See e.g., Pontiac Fire Fighters Union Local 376 v City of

                                                                                                              Pontiac, 482 Mich 1, 753 NW2d 595 (2008). A mere apprehension of injury, or a situation in

                                                                                                              which the threatened injury is speculative or conjectural, does not meet the rule requirement.

                                                                                                              Dunlap v City of Southfield, 54 Mich App. 398, 221 NW2d 237 (1974) (“[I]t is well settled that

                                                                                                              an injunction will not lie upon the mere apprehension of future injury or where the threatened




                                                                                                                                                               12
                                                                                                              injury is speculative or conjectural."); see also, Fenestra Inc. v. Gulf American Land Corp., 377

                                                                                                              Mich 565, 601-602, 141 NW2d 36 (1966); Royal Oak School Dist. v. State Tenure Comm., 367

                                                                                                              Mich 689, 693, 117 NW2d 181 (1962) (injunctive relief inappropriate where there is no proof

                                                                                                              that the party would suffer irreparable injury). Moreover, mere conclusory allegations, or

                                                                                                              general allegations that applicant will suffer immediate and irreparable harm if the relief is not
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              granted, are insufficient. Acorn Bldg. Components, Inc. v Local Union No. 2194 of the Intern.

                                                                                                              Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW, 164 Mich App.

                                                                                                              358, 416 NW2d 442 (1987).

                                                                                                                     Paragraph 16 of Mr. Werner’s affidavit states, “CADL fears that violations of its

                                                                                                              weapons policy will result in injury of death and requires immediate judicial intervention to

                                                                                                              prevent such an irreparable catastrophe.” Defendant is unaware of any such incidents of “injury

                                                                                                              or death” neither in the past, nor in the present, and any speculation that it might happen in the

                                                                                                              future is conjecture and insufficient to sustain the required burden of proof for injunctions.

                                                                                                              Consequently, this statement is insufficient, conclusory and lacks specificity, because compelling

                                                                                                              facts are not alleged that clearly indicate that immediate and irreparable harm will befall the

                                                                                                              plaintiff before notice may be given and a hearing held. E.g., Acorn Bldg. 164 Mich App. 358,

                                                                                                              416 NW2d 442. Thus, the TRO should dissolve. See Hawkins v. Murphy, 222 Mich App. 664,

                                                                                                              565 NW2d 674 (circuit court abused its discretion in denying motion to dissolve temporary

                                                                                                              restraining order in absence of any articulated justification for its continuance). Furthermore,

                                                                                                              Mr. Werner’s legal conclusion that immediate judicial intervention is needed to avoid an

                                                                                                              indescribable “irreparable catastrophe” is belied by the more than two-month delay between the

                                                                                                              first issue reported in the press occurring on December 11, 2010 and CADL’s filing of the instant

                                                                                                              action on February 15, 2011. It is worth noting that no catastrophes occurred between December




                                                                                                                                                               13
                                                                                                              11, 2010 and February 16, 2011.

                                                                                                                      Where, as here, Plaintiff has failed the first prong of the MCR 3.310(B)(1) test, further

                                                                                                              inquiry is not required. However, in the interest of a complete analysis and, in the alternative,

                                                                                                              Defendant submits Plaintiff also fails the second prong of the test.

                                                                                                                      b.       Plaintiff fails the irreparable harm, second prong of the ex-parte TRO test.
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                                      The second requirement that must be met before an ex parte TRO may issue is that the

                                                                                                              threatened harm be irreparable. MCR 3.310(B)(1). If the plaintiff has an adequate remedy at

                                                                                                              law, ex parte injunctive relief is not appropriate. E.g. Van Buren Public School Dist. v Wayne

                                                                                                              County Circuit Judge, 61 Mich App. 6, 232 NW2d 278 (1975). Plaintiff cannot sustain its

                                                                                                              burden of proving that an injunction should issue because there is no adequate remedy at law.

                                                                                                              To the contrary, as the cornerstones of a republican government and federalism dictate, Plaintiff

                                                                                                              has more than an adequate remedy at law.

                                                                                                                      First, CADL may seek out an Attorney General opinion regarding the legality of CADL’s

                                                                                                              regulation. MCL §14.32. Second, our government is premised on basic principles of separation

                                                                                                              of powers and checks and balances. In our society, a duly elected congress or other legislative

                                                                                                              body, usually consisting of a house of representatives and a senate, is the correct forum for

                                                                                                              enacting legislation. Should Plaintiff wish to prohibit weapons in its libraries, the proper

                                                                                                              procedure to obtain such relief in a republican form of government, is to petition the legislature

                                                                                                              to amend the applicable statute and add libraries to the list of places that guns are prohibited in

                                                                                                              MCL § 28.425o2 and § 750.234d3. Additionally, Plaintiff could seek an Attorney General’s


                                                                                                              2
                                                                                                               MCL 28.425o provides that a person with a valid CPL shall not carry a concealed pistol in a pistol-free zone.
                                                                                                              Following is a list of the premises (excluding parking lots) included in the statute:
                                                                                                                   School or school property, except a parent or legal guardian who is dropping off or picking up a child and
                                                                                                                      the pistol is kept in the vehicle
                                                                                                                   Public or private day care center
                                                                                                                   Sports arena or stadium


                                                                                                                                                                     14
                                                                                                              opinion seeking to clarify the preemption status of the library’s Code. See also MCL §14.32.

                                                                                                              Plaintiff, consequently, also fails the second prong of the test because injunctive relief will only

                                                                                                              lie where, unlike here; there is no adequate remedy at law. E.g. Van Buren, 61 Mich App. 6, 232

                                                                                                              NW2d 278. Here, Plaintiff does have an adequate remedy at law; however, it chooses to attempt

                                                                                                              to circumvent this process by filing the ex-parte TRO.
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                                      Finally, notwithstanding Plaintiff’s assertion to the contrary, the CADL does not have the

                                                                                                              authority to enact a regulation where the State has already preempted the field and passed

                                                                                                              legislation in that area. “[T]he statutory language of § 1102 demonstrates that, in effect, state

                                                                                                              law completely occupies the field of [firearm] regulation.” Michigan Coalition for Responsible

                                                                                                              Gun Owners v. City of Ferndale, 256 Mich App 401, 414 (2003), cert den 469 Mich. 880 (2003).

                                                                                                              See MCL §123.1102.

                                                                                                                      c.       Other factors:


                                                                                                                     A bar or tavern where sale and consumption of liquor by the glass is the primary source of income (does
                                                                                                                      not apply to owner or employee of the business).
                                                                                                                    Any property or facility owned or operated by a church, synagogue, mosque, temple, or other place of
                                                                                                                      worship, unless authorized by the presiding official
                                                                                                                    An entertainment facility that has a seating capacity of 2,500 or more
                                                                                                                    A hospital
                                                                                                                    A dormitory or classroom of a community college, college, or university
                                                                                                                    A casino
                                                                                                              3
                                                                                                                MCL 750.234d provides that it is a 90 day misdemeanor to possess a firearm on the premises of any of the
                                                                                                              following:
                                                                                                                    A depository financial institution (e.g., bank or credit union)
                                                                                                                    A church or other place of religious worship
                                                                                                                    A court
                                                                                                                    A theater
                                                                                                                    A sports arena
                                                                                                                    A day care center
                                                                                                                    A hospital
                                                                                                                    An establishment licensed under the Liquor Control Code
                                                                                                              The above section does not apply to any of the following:
                                                                                                                    The owner or a person hired as security (if the firearm is possessed for the purpose of providing security)
                                                                                                                    A peace officer
                                                                                                                    A person with a valid concealed pistol license (CPL) issued by any state
                                                                                                                    A person who possesses on one of the above listed premises with the permission of the owner or owner’s
                                                                                                                      agent



                                                                                                                                                                      15
                                                                                                                     Most important to this analysis, is that the relief requested by the Plaintiff cannot

                                                                                                              factually alleviate the concerns of the CADL, i.e. patron safety. Defendant is a non-profit

                                                                                                              Michigan corporation and not a real person. Born of Michigan’s Business and Corporations Act,

                                                                                                              MOC is not capable of violating the TRO as it has no physical presence and cannot carry a

                                                                                                              pistol. The only people that are being enjoined from open carry in the library are members of the
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              MOC, many of whom do not even live in the capital area and are residents of other parts of the

                                                                                                              state. In addition, arguably, there are numerous persons in Michigan open carry, yet they are not

                                                                                                              members of MOC (including the individual presumed to have open-carried the shotgun); the

                                                                                                              TRO does nothing to address this issue and therefore is under inclusive. Moreover, to avoid

                                                                                                              violating the TRO, all a member of MOC would have to do would be to tender resignation of his

                                                                                                              or her MOC membership. The TRO only excludes members of MOC from open carrying;

                                                                                                              therefore, after membership resignation, the person, as a result, could open carry in the library

                                                                                                              without violating the TRO. This shows the absurdity of the TRO, in that it fails to address the

                                                                                                              concerns of the party requesting the TRO, i.e. patron safety.

                                                                                                                     Moreover, in addition to its narrowness, the TRO appears over inclusive where the MOC

                                                                                                              is banned from all CADL premises; however, the only incidents discussed in the affidavit

                                                                                                              concern the downtown library branch and none of the other branches. In conclusion, the ex-parte

                                                                                                              TRO is simultaneously over and under inclusive, fails to address the concerns of the party

                                                                                                              requesting relief, and shows the vengeful and vindictive nature of the injunction.

                                                                                                                     In addition to due process concerns requiring notice and a hearing before loss of an

                                                                                                              interest, other constitutional implications include freedom of association; free speech; and, Art I,

                                                                                                              §6 of the Michigan Constitution (subject to conceded state-statutory regulation). E.g. Female

                                                                                                              Health Care Centers, Inc. v. Mills, 419 Mich. 948, 357 N.W.2d 642 (1984) (restraining order




                                                                                                                                                               16
                                                                                                              dissolved where not supported by specific findings of fact demonstrating that failure to grant

                                                                                                              injunction would result in irreparable harm and which was overbroad and improperly infringed

                                                                                                              upon exercise of defendants' First Amendment rights of free speech and assembly).

                                                                                                              Furthermore, Defendant hereby incorporates by reference the arguments set forth in its Response

                                                                                                              to Order to Show Cause, as if fully set forth herein, to provide additional support for dissolving
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              the injunction.

                                                                                                              2.        The TRO should be dissolved for failure to comply with the requirements of the Court
                                                                                                                        Rules.

                                                                                                                        The Michigan Court Rules further provide in pertinent that “[a] temporary restraining

                                                                                                              order granted without notice must: . . . describe the injury and state why it is irreparable and why

                                                                                                              the order was granted without notice.” MCR 3.310(B)(2)(b) (emphasis added). As previously

                                                                                                              stated, the central focus of MCR 3.310(B) is that ex parte restraining orders should be issued

                                                                                                              completely without notice only in the most compelling situations. E.g. Cross Co. v. United Auto.

                                                                                                              371 Mich 184, 123 NW2d 215 (1963). The intent of MCR 3.310(B) is that, if possible, the trial

                                                                                                              judge should have the benefit of both sides of the case before a TRO issues. This is because ex

                                                                                                              parte orders offend customary notions of due process and fair play and violate the spirit of MCR

                                                                                                              1.105.4

                                                                                                                        Consequently, the preferred method is for the court to hear both sides to a situation, even

                                                                                                              if the hearing is informal and of short duration, before deciding whether injunctive relief is truly

                                                                                                              necessary. For that reason, MCR 3.310(B)(1)(b) requires that the applicant's attorney certify in

                                                                                                              writing the efforts, if any, that have been made to give notice and the reasons supporting any

                                                                                                              claim that notice should not be required. Thus, a significant showing must be made why all


                                                                                                              4
                                                                                                               “These rules are to be construed to secure the just, speedy, and economical determination of every action and to
                                                                                                              avoid the consequences of error that does not affect the substantial rights of the parties.” MCR 1.105 (emphasis
                                                                                                              added).


                                                                                                                                                                      17
                                                                                                              notice should be excused and a certification made by counsel that notice should not be required,

                                                                                                              See MCR 3.310(B)(2)(b). The certification and notice requirements of MCR 3.310(B)(1)(b)

                                                                                                              have serious implications for counsel. Notwithstanding MCR 2.114(D) to (E), apply to the

                                                                                                              proceeding,5 Michigan jurisprudence established that the ultimate validity of any injunctive relief

                                                                                                              obtained might turn upon the assertions made why notice should be excused. See Hawkins v
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              Murphy, 222 Mich App. 664, 668, 565 NW2d 674, 677 (1997) (“the record reveals that

                                                                                                              plaintiff's attorney failed to certify to the court in writing the reasons supporting the claim that

                                                                                                              notice should not be required. Nor did the TRO state on its face the reason why it was granted

                                                                                                              without notice, as required by MCR 3.310(B)(2)(b). Because the requirements of the court rule

                                                                                                              were not complied with, the order was improperly granted.”) (Emphasis added).

                                                                                                                         Here, counsel’s certification that members of MOC may increase their efforts to bring

                                                                                                              weapons into the CADL libraries, thereby “increasing the chance of injury or harm to the

                                                                                                              patrons” is also mere speculation. As such, it is insufficient to sustain CADL’s burden of proof

                                                                                                              to continue the ex-parte injunction. Moreover, it is disingenuous where it asks for relief that fails

                                                                                                              to alleviate the alleged concerns, and asks the court to make a determination that is against

                                                                                                              established Michigan jurisprudence.

                                                                                                              5
                                                                                                                  Rule 2.114 Signatures of Attorneys and Parties; Verification; Effect; Sanctions
                                                                                                                                                                          ***
                                                                                                                         (D) Effect of Signature. The signature of an attorney or party, whether or not the party is
                                                                                                                         represented by an attorney, constitutes a certification by the signer that
                                                                                                                         (1) he or she has read the document;
                                                                                                                         (2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the
                                                                                                                         document is well grounded in fact and is warranted by existing law or a good-faith argument for
                                                                                                                         the extension, modification, or reversal of existing law; and
                                                                                                                         (3) the document is not interposed for any improper purpose, such as to harass or to cause
                                                                                                                         unnecessary delay or needless increase in the cost of litigation.

                                                                                                                         (E) Sanctions for Violation. If a document is signed in violation of this rule, the court, on the
                                                                                                                         motion of a party or on its own initiative, shall impose upon the person who signed it, a
                                                                                                                         represented party, or both, an appropriate sanction, which may include an order to pay to the other
                                                                                                                         party or parties the amount of the reasonable expenses incurred because of the filing of the
                                                                                                                         document, including reasonable attorney fees. The court may not assess punitive damages.



                                                                                                                                                                          18
                                                                                                                     Finally, the rules require a statement made in the TRO itself that notice was excused for a

                                                                                                              specific reason. See MCR 3.310(B)(2)(b). Here the ex-parte order (prepared by Plaintiff) failed

                                                                                                              to comply with the requirements of the court in that it failed to state why notice was waived;

                                                                                                              thereby providing an additional reason to dissolve the ex-parte TRO. See id; Hawkins v Murphy,

                                                                                                              222 Mich App. 664, 668, 565 NW2d 674, 677 (“Nor did the TRO state on its face the reason
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              why it was granted without notice, as required by MCR 3.310(B)(2)(b)).

                                                                                                                                                       CONCLUSION

                                                                                                                     In the final analysis, counsel seeking ex parte injunctive relief, is attempting to bypass

                                                                                                              traditional due process requirements. E.g. Boddie, 401 US 371, 91 SCt 780, 28 LEd2d 113;

                                                                                                              Mullane, 339 US 306, 70 SCt 652, 94 LEd 865 (same); Cross Co v United Auto., 371 Mich 184,

                                                                                                              123 NW2d 215 (same). When such a constitutional end run is attempted, extreme care to

                                                                                                              comply with the requirements should be taken. See Carroll v President & Commissioners of

                                                                                                              Princess Anne, 393 US 175, 89 SCt. 347, 21 LEd2d 325 (1968). Unfortunately, for Plaintiff

                                                                                                              CADL, it has failed to provide any justification for the ex-parte issuance of the TRO and as such,

                                                                                                              it should be dissolved. See e.g. Female Health Care, 419 Mich 948, 357 N.W.2d 642

                                                                                                              (restraining order dissolved where not supported by specific findings of fact demonstrating that

                                                                                                              failure to grant injunction would result in irreparable harm and which was overbroad and

                                                                                                              improperly infringed upon exercise of defendants' First Amendment rights of free speech and

                                                                                                              assembly).

                                                                                                                     WHEREFORE, for the above stated reasons, Defendant requests that this Honorable

                                                                                                              Court grant the following relief:

                                                                                                                     (i) immediately dissolve the pending Ex-Parte Temporary Restraining Order;

                                                                                                                     (ii) DENY Plaintiff’s motion for permanent injunctive relief;




                                                                                                                                                              19
                                                                                                                    (iii) GRANT Defendant a TRO enjoining CADL from enforcing its invalid attempt at

                                                                                                                    legislation/regulation which is preempted by State Law; and,

                                                                                                                    (iv) award attorney fees and costs to Defendant incurred by being forced to defend this

                                                                                                                    matter, pursuant to MCR 2.114 and 2.119.

                                                                                                                                                    Respectfully submitted,
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                              By: _____________________________                 By: _____________________________
                                                                                                                  Dean G. Greenblatt (P54139)                       Stuart J. Weiss (P56688)
                                                                                                                  Counsel for Michigan Open Carry, Inc.             Counsel for Michigan Open Carry, Inc.


                                                                                                              Dated: March 4, 2011




                                                                                                                                                           20
                                                                                                                                                  PROOF OF SERVICE

                                                                                                              COUNTY OF OAKLAND )
                                                                                                                                )SS
                                                                                                              STATE OF MICHIGAN )

                                                                                                                     Dean G. Greenblatt says that on March 4, 2011, he did serve a copy of:
Law Offices  Dean G. Greenblatt  PO Box 40  Bloomfield Hills, Michigan 48303-0040  Phone (248) 644-7520




                                                                                                                 1. Defendant’s Motion and Brief to Dissolve Ex Parte Temporary Restraining Order; and,
                                                                                                                 2. Proof of Service.

                                                                                                              upon counsel of record via email transmission (gbender@mbspclaw.com) and first class mail.

                                                                                                                     I hereby declare that the statement above is true to the best of my knowledge, information
                                                                                                              and belief.

                                                                                                                                                              Dean G. Greenblatt, PLC


                                                                                                              Dated:March ____, 2011
                                                                                                                                                                  By: DEAN G. GREENBLATT
                                                                                                                                                                  Attorney for Defendant
                                                                                                                                                                  P.O. Box 40
                                                                                                                                                                  Bloomfield Hills, MI 48303-0040
                                                                                                                                                                  (248) 644-7520




                                                                                                                                                             21

				
DOCUMENT INFO
Shared By:
Tags:
Stats:
views:57
posted:6/25/2011
language:English
pages:64