ST Vincent MTD

Case 1:19-cv-01050-RJJ-PJG ECF No. 19 filed 01/22/20 PageID.
421 Page 1 of 32
UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ST. VINCENT CATHOLIC CHARITIES,

Civil No. 1:19-CV-1050
Plaintiff, Hon. Robert J. Jonker
v.
INGHAM COUNTY BOARD OF
COMMISSIONERS, DEFENDANT’S MOTION
TO DISMISS and BRIEF
Defendant.______________/
Lori H. Windham Bonnie G. Toskey (P30601)
Mark L. Rienzi Sarah K. Osburn (P55539)
Nicholas R. Reaves Cohl, Stoker & Toskey, P.C.
William J. Haun 601 N. Capitol Ave.
Jacob M. Coate Lansing, Michigan 48933
The Becket Fund for Religious Liberty (517) 372-9000
1200 New Hampshire Ave. NW btoskey@cstmlaw.com
Suite 700 sosburn@cstmlaw.com
Washington, DC 20036 Attorneys for Defendant
lwindham@becketlaw.org
Telephone: (202) 955-0095
Facsimile: (202) 955-0090
William R. Bloomfield (P68515)

Catholic Diocese of Lansing
228 N. Walnut Street
Lansing, Michigan 48933-1122
(517) 342-2522
wbloomfield@dioceseoflansing.org
Attorneys for Plaintiff
_______________________________________________________
Respectfully submitted by:
Bonnie G. Toskey (P30601)
Sarah K. Osburn (P55539)
Cohl, Stoker & Toskey, P.C.
Attorneys for Defendant Ingham County Board of Commissioners
601 N. Capitol Avenue
Lansing, MI 48933
(517) 372-9000
btoskey@cstmlaw.com
0
Case 1:19-cv-01050-RJJ-PJG ECF No. 19 filed 01/22/20 PageID.422 Page 2 of 32
Proceeding under F.R.Civ.P. 12(b)(6), Defendant Ingham County Board of
Commissioners, through counsel, respectfully moves to dismiss Counts I-V of the
Complaint (ECF No. 1) with prejudice on grounds:
a. The Board of Commissioners is insulated against all claims by virtue of
absolute legislative immunity;
b. The Board of Commissioners’ challenged actions were taken to allocate
public funds based on a change in priority of Community Action Grant criteria which is
not actionable; and
c. St. Vincent lacks standing to sue because there is no “case or
controversy”, or alternatively the case is moot because On November 12, 2019, the
Board of Commissioners formally approved the 2020 resettlement contract St. Vincent
seeks.
This Motion is based on the facts and authorities presented in the accompanying
Brief in Support of Motion to Dismiss.
Respectfully submitted,
Dated: January 22, 2020 By: /s/ Bonnie G. Toskey

Attorneys for Defendant Board
Lansing, MI 48933
(517) 372-9000
btoskey@cstmlaw.com
sosburn@cstmlaw.com
1
UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ST. VINCENT CATHOLIC CHARITIES,

Civil No. 1:19-CV-1050
Plaintiff, Hon. Robert J. Jonker
v.
INGHAM COUNTY BOARD OF DEFENDANT’S BRIEF
COMMISSIONERS, IN SUPPORT OF MOTION
TO DISMISS
Defendant.______________/
Lori H. Windham Bonnie G. Toskey (P30601)
Mark L. Rienzi Sarah K. Osburn (P55539)
Nicholas R. Reaves Cohl, Stoker & Toskey, P.C.
William J. Haun 601 N. Capitol Ave.
Jacob M. Coate Lansing, Michigan 48933
The Becket Fund for Religious Liberty (517) 372-9000
1200 New Hampshire Ave. NW btoskey@cstmlaw.com
Suite 700 sosburn@cstmlaw.com
Washington, DC 20036 Attorneys for Defendant
lwindham@becketlaw.org
Telephone: (202) 955-0095
Facsimile: (202) 955-0090
William R. Bloomfield (P68515)

Catholic Diocese of Lansing
228 N. Walnut Street
Lansing, Michigan 48933-1122
(517) 342-2522
wbloomfield@dioceseoflansing.org
Attorneys for Plaintiff
_______________________________________________________
Respectfully submitted by:
Attorneys for Defendant Ingham County Board of Commissioners
Lansing, MI 48933
(517) 372-9000
btoskey@cstmlaw.com
1
TABLE OF CONTENTS
Table of Contents p. i
Index of Authorities p. ii
Index of Exhibits pv
Statement of Questions Presented p. vi
Statement of Facts p. 1
Standards for Decision p. 6
Argument p. 8
Issue I: St. Vincent’s challenge to the Board’s legislative

appropriation decisions is barred by absolute
legislative immunity. p. 8
Issue II: Any claim relating to St. Vincent’s demand for a

Community Agency Grant of $4,500 must be dismissed,
because the Board cannot be held liable for allocating
public funds based on a change in priority of legitimate
criteria. p. 13
Issue III: Because St. Vincent’s 2019/2020 resettlement contract

was formally approved by the Board on November 12,
2019 for the full array of services, and full contract
amount and full term recommended by the Health
Department, St. Vincent lacks standing to sue (or in the
alternative any claim as to the 2019/2020 resettlement
contract is moot), and this lawsuit must be dismissed
accordingly. p. 18
Relief Requested p. 21
Signature of Counsel (Electronic Signature) p. 22
Certificate of Compliance (per LCivR 7.2(b)(1)) p. 23
i
INDEX OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) p. 19
Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813, 828 n. 5 (1986) p. 13
Alia v. Michigan Supreme Court, 906 F.2d 1100 (6th Cir. 1990) p. 8
Americans United for Separation of Church and State v.

School District, 546 F.Supp. 1071 (W.D.Mich.1982),
affirmed, 718 F.2d 1389 (6th Cir.1983), affirmed
sub nom Grand Rapids School District v. Ball,
473 U.S. 373 (1985) p. 16
Ashcroft v. Iqbal, 556 U.S. 662 (2009) p. 7
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) pp. 6, 7
Bogan v. Scott-Harris, 423 U.S. 44 (1998) pp. 9, 10, 12, 19, 22
Cagle v. Gilley, 957 F.2d 1347 (6th Cir. 1992) p. 8
DirectTV, Inc. v. Treesh, 487 F.3d 471 (6th Cir. 2007) p. 6
Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) p. 9
Fare Deals Ltd. v. World Choice Travel.Com, Inc.,

180 F.Supp.2d 678 (D. Md. 2001) p. 8
Fayetteville Investors v. Commercial Builders, Inc.,

936 F.2d 1462 (4th Cir. 1991) p. 8
Fed. Election Comm'n v. Wisconsin Right to Life, Inc.,

551 U.S. 449 (2007) p. 20
Guindon v Twp. Of Dundee, 488 Fed.Appx. 27 (6th Cir. 2012) p. 9
Harvest Family Church v. Federal Emergency Mgmt. Agency

(S.D. Tex., Houston Div. No. H-17-2662, Dec. 7, 2017) p. 13
Hosack v. Utopian Wireless Corp., No. 11-0420,

2011 WL 1743297 (D. Md. May 6, 2011) p. 8
Jackson v Heh, 215 F.3d 1326 (6th Cir. 2000) pp. 19-20
ii
Locke v. Davey, 540 U.S. 712 (2004) pp. 14, 16
Masterpiece Cake Shop, Inc. v. Colorado Civil Rights Comm’n,

548 U.S. ___, 138 S.Ct. 1719 (2018) pp. 12, 13
McCoy Elkhorn Coal Co. v. United States E.P.A.,

622 F.2d 260 (6th Cir. 1980) p. 12
McMurphy v. City of Flushing, 802 F.2d 191

(6th Cir.1986) p. 12
Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976) p. 21
In re Omnicare, Inc. Sec. Litig., 769 F.3d 455

(6th Cir. 2014) p. 7
Peatross v. City of Memphis, 818 F.3d 233

(6th Cir. 2016) p. 7
Pickering v. Board of Educ. of Township High Sch.

Dist. 205, 391 U.S. 563 (1968) p. 12
Rieger v. Drabinsky (In re Livent, Inc. Noteholders Sec.

Litig.), 151 F.Supp.2d 371 (S.D.N.Y. 2001) p. 8
Scarbrough v. Morgan County Bd. of Educ.,

470 F.3d 250 (6th Cir. 2006) pp. 10, 19
Scott-Harris v. Fall River, 134 F.3d 427 (1st Cir. 1997) p. 10
Sullivan v. Benningfield, 920 F.3d 401 (6th Cir. 2019) pp. 18, 20
Supreme Court of Virginia v. Consumers Union of

the US, Inc., 446 U.S. 719 (1980) p. 9
Tenney v. Brandhove, 341 U.S. 367 (1951) pp. 12, 19, 22
United States v. O'Brien, 391 U.S. 367 (1968) pp. 12, 19
Valot v. Southeast Local Sch. Dist. Bd. of Ed.,

107 F.3d 1220 (6th Cir. 1997) p. 12
Van de Kamp v. Goldstein, 555 U.S. 335 (2009) p. 13
Weinstein v. Bradford, 423 U.S. 147 (1975) p. 20
iii
Constitutional Provisions
US Const, Amendment 1 pp. 1, 9, 12, 14, 16, 21
US Const, Amendment 14 p. 1
Mich. Const. 1963, art. 1, §4 p. 17
Mich. Const. 1908, art. II, §3 p. 17
Mich. Const. 1850, art. 1, §4 p. 17
Mich. Const. 1835, art. 1, §4 p. 17
Statutes
42 U.S.C. §1983 p. 1
M.C.L. 21.43 p. 8
M.C.L. 43.11(m) p. 8
M.C.L. 46.3(1) pp. 3, 19, 20
Court Rules
F.R.Civ.P. 8(a)(2) pp. 6, 7
F.R.Civ.P. 8(e)(2) p. 8
F.R.Civ.P. 12(b)(6) pp. 6, 7, 22
iv
INDEX OF EXHIBITS
1. MDHHS Bulletin MSA 18-41
2. Resolution 19-475
5. St. Vincent Project Budget

Haven House Project Budget
Refugee Development Center Project Budget
v
STATEMENT OF QUESTIONS PRESENTED
ISSUE I: Is St. Vincent’s challenge to the Board’s legislative appropriation
decisions barred by absolute legislative immunity?
Defendant Ingham County Board of Commissioners answers “yes”.
Issue II: Must any claim relating to St. Vincent’s demand for a Community
Agency Grant of $4,500 be dismissed, because the Board cannot be held liable
for allocating public funds based on a change in priority of criteria?
Issue III: Because St. Vincent’s 2019/2020 resettlement contract was formally
approved by the Board on November 12, 2019 for the full array of services, and
full contract amount and full term recommended by the Health Department, does
St. Vincent lack standing to sue (or in the alternative any claim as to the
2019/2020 resettlement contract is moot), so that this lawsuit must be dismissed
accordingly?
vi
STATEMENT OF FACTS
Plaintiff St. Vincent Catholic Charities (“St. Vincent”) sues Defendant Ingham
County Board of Commissioners ( “the Board”) by way of a 5-count Complaint (ECF No.
1) predicated on 42 U.S.C. §1983 (“§1983”) and the 1st and 14th Amendments to the
United States Constitution (“1st/14th Amendment[s]”):
Count I: Infringement of St. Vincent’s right to free exercise of its religion
(ECF No. 1, PageID 27);
Count II: Infringement of St. Vincent’s free speech rights (id., PageID 29);
Count III: Unlawful retaliation for St. Vincent’s exercise of its rights to free
speech, to petition government, and to religious free exercise (id.,
PageID 30);
Count IV: Retaliation for taking action to protect civil rights (id., PageID 31);
Count V: Violation of equal protection by religious discrimination (id., PageID
32).
St. Vincent describes itself as a corporation affiliated with the Catholic Diocese of
Lansing, formed by and subject to the control of the Roman Catholic Bishop of Lansing
(ECF No. 1, PageID 4, ¶10). St. Vincent’s mission “is the work of the Catholic Church:
To share the love of Christ by performing corporal1 and spiritual works of mercy * * *[so
that] those served by the Church * * * encounter Christ” as an “exercise of faith” (Id.).
St. Vincent denominates its work as a “ministry”, and declares this ministry “an integral,
fundamental, and central part of St. Vincent’s religious exercise” (Id.).
For many years, St. Vincent, under a program jointly funded by the State of
1
(Sic) corporeal.
1
Michigan and Ingham County (as well as the federal government)— ECF No. 1, PageID
9, ¶25—through a series of annual contracts and grants2, with the notable exception of
the years 2015 and 2016 where no grant was issued to St. Vincent (none containing
any provision implicating funding for any subsequent fiscal year). Each such contract or
grant is subject to individual approval by the Board (ECF No. 1, PageID 11, ¶31). In this
way, St. Vincent has provided refugee/immigrant resettlement and language interpretive
services by contract (“resettlement contract”), and refugee education programs through
Community Agency Grants grants. In the 2018/2019 Contract year funding was
provided as follows: 1). Medicaid Outreach funding for interpreter services for refugees
at medical and home visit appointments in the amount of $64,000 from the County
general fund which was matched in the amount of $64,000 through a Medicaid
Outreach match for a total of $128,000, and 2). $40,000 from the MDHHS Refugee
Screening and Services Fund. (ECF No. 17-9, PageID 347). For the 2019/2020
Contract year the $64,000 match from Medicaid Outreach was no longer available as
MDHHS determined that interpreter services were not an eligible service for those
match dollars. Id. This left a $64,000 void in funding for refugee services provided by
St. Vincent. Although the County did not have the resources to fully replace the loss of
$64,000 in Medicaid matched funds, it consolidated the available funding into one
Agreement combining the $64,000 from the general fund with the $40,000 budgeted for
2
With one exception—ECF 17-2, PageID 246-262, is an automatically renewing
contract for interpreter services for refugee recipients of health care. Automatic renewal
applies because the funding comes from the federal government (PageID 246, first
“Whereas” paragraph). Additional interpreter services are included in the October 1,
2019-September 30, 2020 contract with St. Vincent (ECF 17-5, PageID 273-309), which
has caused some confusion. Any issue raised by St. Vincent concerning possible
cancellation or non-renewal of ECF 17-2 is simply without basis in fact.
2
refugee screening services and then supplemented those funds with an additional
$24,000 from the Health Center’s operation budget to reach the contract amount of
$128,000 recommended to the Board for approval. Id.
This lawsuit concerns the Board’s funding of St. Vincent’s 2019/2020 Contract
year resettlement/interpretive contract3 in the amount of $128,000, and the Board’s
decision on November 26, 2019 not to fund St. Vincent’s Community Agency Grant
application for educational programs for 2020 in the amount of $4,500.
The Complaint makes much ado about various Committee meetings of the Board
(ECF No. 1, PageID 16-19 and 21-22, ¶¶42-45, 51, 53) and the recommendation of the
County Controller’s Office (ECF No. 1, PageID 22, ¶52). However, Board committees
and the Controller can only make non-binding recommendations to the Board. All
pertinent decisions are made by the full Board, under majority rule. M.C.L. 46.3(1).
The Complaint is also replete with jeremiads concerning individual comments of
various Ingham County Commissioners made during a November 4, 2019 meeting of
the Board’s Human Services Committee (“HSC”), which are asserted to reflect hostility
to St. Vincent due to its participation in a lawsuit against the Michigan Attorney General
regarding which the Assigned Judge, Hon. Robert Jonker, is fully familiar, Buck v.
Gordon (ECF 1-2). But no such comments were made during the November 12, 2019
Full Board meeting where Resolution 19-475 (Exhibit 2), funding St. Vincent’s
3
Although, as described in this section, in prior years the resettlement and interpretive
services contracts were structured separately (ECF No. 1, PageID 12, ¶34), for the
2019/2020 Contract the two contracts were merged into one (Exhibit 2, Board
Resolution 19-475, p. 2, ¶1). Thus, there remained no separate $40,000 interpreter
agreement up for renewal in January, 2020. Interpreter services are covered by the
contract approved on November 12, 2019 in Resolution 19-475, which by its terms
encompasses all services that are provided by St. Vincent and funded by Ingham
County. There is no other contract pending between St. Vincent and the Board.
3
resettlement contract in the full amount of $128,000 for the full twelve (12) month term,
was adopted by a vote of 8-6 (ECF No. 1, PageID 20, ¶48)4. Nor were any such
comments made during either the following HSC or the Full Board meetings of Nov. 18
and 26, 2019.
Turning attention to St. Vincent’s unfunded 2020 Community Agency Grant
application5, the Board’s funding decisions were guided by Resolution 19-243 (Exhibit
3), which declared the Board’s priority for 2020 was to fund “proposals that directly
contribute to addressing the Community’s overarching long-term objective of ‘Meeting
Basic Needs’, such as food, clothing, and shelter, as well as priority given to those
agencies that comply with the County’s non-discrimination policies.” Resolution 19-243
further declared the Board’s intent “for applicants to understand that solicitation of
proposals is not a commitment to fund those proposals in fiscal year 2020.”
On November 26, 2019, the Board allocated to Haven House ($750) and
Refugee Development Center ($3,750) (ECF No. 1, PageID 20, ¶48; Exhibit 4—
Resolution 19-502; Exhibit 3, p. 3) based on the priorities of food, clothing and shelter
established in Resolution 19-243. In contrast, St. Vincent’s application proposed to use
the funds for “classes called ‘Living in America’ to refugees including home
4
Note that, as Resolution 19-475 reflects (Exhibit 2, p. 1), the Board had to identify new
revenue sources to fund the 2019/2020 resettlement contract, because starting January
1, 2019, Medicaid Outreach Funds, previously used to support St. Vincent’s interpreter
services, were no longer available for that purpose by order of the State of Michigan
(Exhibit 1—MDHHS Bulletin MSA 18-41.) Therefore, this Ingham County-St. Vincent
Agreement is not subject to the Buck v Gordon injunction—as St. Vincent concedes
(Complaint, ¶¶57, 62).
5
St. Vincent’s application requested $10,000; however, St. Vincent does not dispute
that no more than $4,500 was available in Community Action Grants to be appropriated
to fund its request.
4
purchasing/home maintenance, small business development, academic ESOL6, and
computer literacy” (Exhibit 4, p. 9). Haven House’s application proposed to “provide[]
food to homeless Ingham County residents while they stay in the shelter” (Exhibit 4, p.
5), and Refugee Development Center proposed to use a grant for “food and clothing to
alleviate immediate suffering, orientation on resource location in community at reduced
costs, English vocabulary necessary to access resources and communicate, education
regarding steps to become self-sufficient” (Exhibit 4, p. 7).
Importantly, St. Vincent’s grant application included its Project Budget (Exhibit 5,
p. 1), on a form supplied by the Board which instructed applicants that their Proposed
Budgets “should be structured to address four major areas: Personnel Services,
Professional and Contractual Services, Operating Expenses, and Direct Services to
Ingham County Residents”, while simultaneously telegraphing it’s warning that “for 2020
emphasis will be placed on provision of direct services to county residents and use of
Community Agency funds for personnel related expenditures is strongly
discouraged.” (Exhibit 5, emphasis added). Curiously ignoring these prominent red
flags, St. Vincent’s Proposed Budget sought $10,000, of which 100% was proposed for
use as “Personnel Services” (salaries and wages, fringe benefits, and unemployment
insurance) and 0% was proposed for “Direct Services to Ingham County Residents.” In
stark contrast, Haven House’s Proposed Budget confirmed 100% of funds would be
devoted to “Direct Services to Ingham County Residents” (food) (Exhibit 5, p. 2). The
figure for Refugee Development Center was 8% for food, interpreters, and
transportation. (Exhibit 5, p. 3). In allocating to Haven House ($750) and to Refugee
6
English for Speakers of Other Languages.
5
Development Center ($3,750) instead of to their competitor St. Vincent, Commissioner
Morgan, who made the motion, lamented that, given that the County had only limited
funds and could not satisfy all applicants, the grants would further the County’s strategic
goal “to provide funding for direct aid to residents, including food, clothing and shelter.”
(Exhibit 3, p. 3).
Contrary to St. Vincent’s assertion (ECF No. 1, PageID 16, ¶41), the $4,500
grant was never “cancelled”—that would have been impossible, as no such grant to St.
Vincent for 2020 was ever approved or ever came into existence. The Community
Agency Grant program is an annual grant program. The awards are made for one year
only, and are not subject to renewal. Every recipient must apply each year, and awards
are made based on each year’s current criteria, which are revised each year by the
Board.
STANDARDS FOR DECISION
F.R.Civ.P. 12(b)(6) provides for dismissal where the complaint fails to state a
claim upon which relief can be granted. Under F.R.Civ.P. 8(a)(2), a pleading must
contain a "short and plain statement of the claim showing that the pleader is entitled to
relief." The Court must construe the complaint in the light most favorable to the plaintiff
and accept well-pleaded factual allegations as true. DirectTV, Inc. v. Treesh, 487 F.3d
471, 476 (6th Cir. 2007). A pleading that offers "labels and conclusions" or "a formulaic
recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Nor does a complaint suffice if it tenders "naked
assertion[s]" devoid of "further factual enhancement." Id., at 557.
To survive a motion to dismiss, the complaint must offer sufficient factual
6
allegations that make the asserted claims plausible on their face. Twombly, 550 U.S. at
570. The plausibility standard asks for more than a sheer possibility that a defendant
has acted unlawfully. Id. at 556. Where a complaint pleads facts that are "merely
consistent with" a defendant's liability, it "stops short of the line between possibility and
plausibility of 'entitlement to relief.'" Id., at 557. Dismissal under Rule 12(b)(6) is
“appropriate when the defendant is entitled to a meritorious affirmative defense such as
qualified immunity.” Peatross v. City of Memphis, 818 F.3d 233, 240 (6th Cir. 2016).
To survive Rule 12(b)(6) scrutiny, a plaintiff must provide more than merely
“labels and conclusions” or a “formulaic recitation of the elements of a cause of action.”
Twombly, supra, 550 U.S. at 555. The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions, and a court is
“not bound to accept as true a legal conclusion couched as a factual allegation".
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not "show[n]"—"that the pleader is entitled to relief." Fed. Rule Civ.
Proc. 8(a)(2). Iqbal at 679.
"Generally, at the motion-to-dismiss stage, a federal court may consider only the
plaintiff's complaint." In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 466 (6th Cir. 2014).
However, “we have recognized that if a plaintiff references or quotes certain documents,
or if public records refute a plaintiff's claim, a defendant may attach those documents to
its motion to dismiss, and a court can then consider them in resolving the Rule 12(b)(6)
motion without converting the motion to dismiss into a Rule 56 motion for summary
judgment.” Ibid.
7
Importantly, it is well-established that “[w]hen the bare allegations of the
complaint conflict with any exhibits or other documents, whether attached or adopted by
reference, the exhibits or documents prevail.” Fare Deals Ltd. v. World Choice
Travel.Com, Inc., 180 F.Supp.2d 678, 683 (D. Md. 2001) (citing Fayetteville Investors v.
Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991)). Likewise, “when a
complaint contains inconsistent and self-contradictory statements, it fails to state a
claim.” Hosack v. Utopian Wireless Corp., No. 11-0420, 2011 WL 1743297 at *5 (D. Md.
May 6, 2011)7.
ARGUMENT
ISSUE I: St. Vincent’s challenge to the Board’s legislative appropriation

decisions is barred by absolute legislative immunity.
St. Vincent concedes that the Board is a legislative body (ECF No. 1, PageID 6,
¶13). The fact that the very actions challenged by St. Vincent concern the expenditure
of public funds, for which a resolution by the County Board of Commissioners is a
statutory prerequisite, M.C.L. 43.11(m); M.C.L. 21.43, means that absolute legislative
immunity bars this lawsuit under §1983 or based any other federal cause of action.
Absolute immunity is immunity from suit and applies whether the relief sought is money
damages or injunctive relief. Cagle v. Gilley, 957 F.2d 1347, 1350 (6th Cir. 1992); Alia v.
Michigan Supreme Court, 906 F.2d 1100, 1102 (6th Cir. 1990). Such absolute immunity
7
In Rieger v. Drabinsky (In re Livent, Inc. Noteholders Sec. Litig.), 151 F.Supp.2d 371,
406 (S.D.N.Y. 2001), the court explained that F.R.Civ.P. 8(e)(2), which allows a
complaint to incorporate alternative claims regardless of consistency, “cannot be
construed as an invitation to incoherent, self-contradictory pleadings.” Thus, the factual
assertions “must be sufficient to state all the requisite elements of a given theory of
liability,” even if they are insufficient to support a different theory. Id. “ That is not to say,
however, that Rule 8(e) grants plaintiffs license to plead inconsistent assertions of facts
within the allegations that serve as the factual predicates for an independent, unitary
claim.” Id.
8
not only protects the Board from liability, but from being sued at all because “a private
civil action, whether for an injunction or damages, creates a distraction and forces
[legislators] to divert their time, energy, and attention from their legislative tasks to
defend the litigation.” Supreme Court of Virginia v. Consumers Union of the US, Inc.,
446 U.S. 719, 733 (1980), quoting Eastland v. United States Servicemen's Fund, 421
U.S. 491, 503 (1975).
Absolute legislative immunity applies with full force and identical logic to local
legislators. Bogan v. Scott-Harris, 423 U.S. 44, 49, 52 (1998). The Supreme Court in
Bogan went on to note that, “[r]egardless of the level of government, the exercise of
legislative discretion should not be inhibited by judicial interference or distorted by the
fear of personal liability.” Id. Further, legislative immunity applies equally to the
legislative body itself. Guindon v Twp. Of Dundee, 488 Fed.Appx. 27 (6th Cir. 2012).
Bogan is controlling here. In Bogan, Janet Scott-Harris, as administrator of the
Fall River, Massachusetts Department of Health and Human Services (HHS),
disciplined a temporary employee, Dorothy Biltcliffe, for making racial and ethnic slurs
about co-workers. Biltcliffe, however, used her political connections to change the
discipline from termination to a 60 day suspension, which was further reduced by the
Mayor. Shortly thereafter, at the Mayor’s recommendation, the HHS Department—of
which Scott-Harris was the sole employee—was eliminated by the city council when
adopting its next annual budget. Scott-Harris sued the City, the Mayor, and other
officials, claiming racial discrimination and violation of her First Amendment right to file a
complaint against Biltcliffe. After trial, a jury rejected the racial discrimination
allegations, but awarded damages for violation of Scott-Harris’ 1st Amendment rights.
9
The Court of Appeals relieved the City of liability8, but upheld the damages awarded
against the individual defendants on the theory they necessarily "relied on facts relating
to a particular individual" and "devised an ordinance that targeted [respondent] and
treated her differently from other managers employed by the City." Scott-Harris v. Fall
River, 134 F.3d 427, 441 (1st Cir. 1997).
The Supreme Court reversed, 523 U.S. at 55-6, holding (boldfaced emphasis
added):
Absolute legislative immunity attaches to all actions taken "in the sphere of
legitimate legislative activity." Tenney, supra, at 376. The Court of Appeals held
that petitioners' conduct in this case was not legislative because their actions
were specifically targeted at respondent. Relying on the jury's finding that
respondent's constitutionally protected speech was a substantial or motivating
factor behind petitioners' conduct, the court concluded that petitioners
necessarily "relied on facts relating to a particular individual" and "devised an
ordinance that targeted [respondent] and treated her differently from other
managers employed by the City." 134 F.3d, at 441. Although the Court of
Appeals did not suggest that intent or motive can overcome an immunity defense
for activities that are, in fact, legislative, the court erroneously relied on
petitioners' subjective intent in resolving the logically prior question of whether
their acts were legislative.
Whether an act is legislative turns on the nature of the act, rather than
on the motive or intent of the official performing it. The privilege of absolute
immunity "would be of little value if [legislators] could be subjected to the cost
and inconvenience and distractions of a trial upon a conclusion of the pleader, or
to the hazard of a judgment against them based upon a jury's speculation as to
motives." Tenney, 341 U.S., at 377 (internal quotation marks omitted).
Furthermore, it simply is "not consonant with our scheme of government for
8
In footnote 2 of Bogan, the Supreme Court noted: “The court held that the city was not
liable because the jury could reasonably infer unlawful intent only as to two of the city
council members, and municipal liability could not rest ‘on so frail a foundation.’ 134
F.3d, at 440.” Here, likewise, St. Vincent can identify only 4 (ECF No. 1, PageID 16-17,
¶42—Sebolt, Tennis, Stivers and id., PageID 18-19, ¶45—Morgan, Stivers, Tennis) out
of 14 Board members who St. Vincent alleges made comments hostile to St. Vincent
relating either to religion or Buck (or anything else whatsoever). Thus, even if absolute
legislative immunity were inapposite, this lawsuit likewise “rests on too frail a
foundation” and would have to be dismissed accordingly. Scarbrough v. Morgan
County Bd. of Educ., 470 F.3d 250, 262 (6th Cir. 2006).
10
a court to inquire into the motives of legislators." Ibid. We therefore held

that the defendant in Tenney had acted in a legislative capacity even
though he allegedly singled out the plaintiff for investigation in order "to
intimidate and silence plaintiff and deter and prevent him from effectively
exercising his constitutional rights." Id., at 371 (internal quotation marks
omitted).
This leaves us with the question whether, stripped of all considerations

of intent and motive, petitioners' actions were legislative. We have little
trouble concluding that they were. Most evidently, petitioner Roderick's acts
of voting for an ordinance were, in form, quintessentially legislative. Petitioner
Bogan's introduction of a budget and signing into law an ordinance also were
formally legislative, even though he was an executive official. We have
recognized that officials outside the legislative branch are entitled to legislative
immunity when they perform legislative functions, see Supreme Court of Va. v.
Consumers Union of United States, Inc., 446 U.S. 719, 731-734 (1980); Bogan's
actions were legislative because they were integral steps in the legislative
process. Cf. Edwards v. United States, 286 U.S. 482, 490 (1932) (noting "the
legislative character of the President's function in approving or disapproving
bills"); Smiley v. Holm, 285 U.S. 355, 372-373 (1932) (recognizing that a
Governor's signing or vetoing of a bill constitutes part of the legislative process).
Respondent, however, asks us to look beyond petitioners' formal actions to

consider whether the ordinance was legislative in substance. We need not
determine whether the formally legislative character of petitioners' actions is
alone sufficient to entitle petitioners to legislative immunity, because here the
ordinance, in substance, bore all the hallmarks of traditional legislation. The
ordinance reflected a discretionary, policymaking decision implicating the
budgetary priorities of the city and the services the city provides to its
constituents. Moreover, it involved the termination of a position, which, unlike
the hiring or firing of a particular employee, may have prospective implications
that reach well beyond the particular occupant of the office. And the city council,
in eliminating DHHS, certainly governed "in a field where legislators traditionally
have power to act." Tenney, supra, at 379. Thus, petitioners' activities were
undoubtedly legislative.
St. Vincent invites this Court to invade the quintessentially legislative actions of
the Board in appropriating public funds committed to their discretionary authority by
condemning the Board’s supposed reliance on allegedly improper motives—whether
hostility to St. Vincent’s exercise of its religion or religious values, or in retaliation for St.
Vincent’s “complicity” in Buck v Gordon, or any other reason particular to St. Vincent.
11
As the 6th Circuit has held, however,
Defendants' interest in protecting the public fisc is not only legitimate, but also
laudable. Protecting the public fisc ranks high among the aims of any legitimate
government.
Valot v. Southeast Local Sch. Dist. Bd. of Ed., 107 F.3d 1220, 1227 (6th Cir. 1997)9.
However, the bottom line, per Bogan, quoting Tenney v. Brandhove, 341 U.S. 367, 377
(1951) is “it simply is ‘not consonant with our scheme of government for a court to
inquire into the motives of legislators.’” Accord: United States v. O'Brien, 391 U.S. 367,
683 (1968) (holding that “this Court will not strike down an otherwise constitutional
statute on the basis of an alleged illicit motive.”) and McCoy Elkhorn Coal Co. v. United
States E.P.A., 622 F.2d 260, 266 (6th Cir. 1980) (“We will not inquire into the motives of
individual legislators for proposing and voting in favor of [pending legislation].”).
St. Vincent, in its Motion for a Preliminary Injunction and Brief in Support, relies
on Masterpiece Cake Shop, Inc. v. Colorado Civil Rights Comm’n, 548 U.S. ___, 138
9
Note that, in Valot, the Board of Education acted in its capacity as employer, not
legislatively. That allowed judicial inquiry into motive and possible retaliation for
exercise of 1st Amendment rights, and application of the balancing test of Pickering v.
Board of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 568 (1968) and
McMurphy v. City of Flushing, 802 F.2d 191, 197 (6th Cir.1986). Valot nonetheless held
that “Defendants' interest in promoting the efficiency of the public service that the Board
performs outweighs Plaintiffs' interests in petitioning for unemployment benefits.
Defendants' interest in protecting the public fisc is not only legitimate, but also laudable.
Protecting the public fisc ranks high among the aims of any legitimate government.” 107
F.3d at 1227. Finding that the Board of Education’s concern for potential future
predations on its treasury was not irrational, the 6th Circuit upheld the Board’s budgetary
decision as outweighing any contrary interest. Id. at 1228. Here, the Board’s policy of
prioritizing the funding of direct services to county residents for food, clothing, and
shelter is both 1st Amendment neutral and a perfectly legitimate fiscal choice, and St.
Vincent’s refusal to budget any part of its grant application to direct services, while
ignoring the Board’s direction that it would disfavor “personnel related expenditures”,
demonstrates that St. Vincent believes itself privileged to demand allocations of
taxpayer dollars for its religious ministry irrespective of its noncompliance with
associated restrictions.
12
S.Ct. 1719 (2018) for the notion that bias by even one person taints a majority decision.
However, Masterpiece Cake involved a quasi-judicial agency adjudication, not a
legislative body. Even under Masterpiece Cake, if the biased members are on the
losing side, as occurred here, no remedy is either necessary or justified. See Aetna Life
Ins. Co. v. LaVoie, 475 U.S. 813, 828 n. 5 (1986).
This lawsuit must be dismissed before further predations on the public fisc and
distractions of the Board from its legislative duties are engendered by St. Vincent. Only
by dismissal may the protection from suit afforded by absolute immunity be fulfilled. As
noted in Van de Kamp v. Goldstein, 555 U.S. 335, 345 (2009):
This Court has pointed out that "it is the interest in protecting the proper
functioning of the office, rather than the interest in protecting its occupant, that is
of primary importance." Kalina, 522 U.S., at 125.
Issue II: Any claim relating to St. Vincent’s demand for a Community Agency
Grant of $4,500 must be dismissed, because the Board cannot be held liable for
allocating public funds based on a change in priority of legitimate criteria.
An examination of Exhibit 5, p. 1, reveals that 100% of St. Vincent’s Community
Agency Grant would have been expended on personnel (wages and salaries, fringe
benefits, unemployment) and none on Direct Services, in blatant defiance of Resolution
19-243’s (Exhibit 3’s) established criteria priorities.
Here, the Board is not hostile toward religion, but expressed reluctance to
appropriate limited public funds to be used to pay the salaries and fringe benefits of the
contractor’s staff rather than for “food, clothing and shelter” for the refugees.
In Harvest Family Church v. Federal Emergency Mgmt. Agency (S.D. Tex.,
Houston Div. No. H-17-2662, Dec. 7, 2017), an injunction was sought against FEMA’s
refusal to allow churches to qualify to provide disaster relief (after Hurricane Harvey)
13
using federal funds based on language in the Robert T. Stafford Disaster Relief and
Emergency Assistance Act declaring that “[f]acilities established or primarily used for
political, athletic, religious, recreational, vocational, or academic training, conferences,
or similar activities are not eligible.” The plaintiff churches claimed that the Stafford Act
exclusion was unconstitutional as a violation of their free exercise rights under the First
Amendment.
Rejecting that argument, the District Court, relying on Locke, held:
Plaintiffs argue that Trinity Lutheran [Trinity Lutheran Church of Columbia,

Inc. v. Comer, 137 S.Ct. 2012, 2019 n.1 (2017)] controls. Id. at 22. In Trinity
Lutheran, a church that owned a daycare center wanted to replace its
playground's surface by participating in Missouri's Scrap Tire Program. 137 S.Ct.
2012, 2017 (2017). However, Missouri had a policy of denying grants to any
applicant owned or controlled by a religious entity. Id. The church sued the state
for violating its right under the Free Exercise Clause of the First Amendment. Id.
at 2018. The Court held that the state's policy violated the Free Exercise Clause
because it denied the church an otherwise available public benefit on account of
its religious status. Id. at 2025.
Plaintiffs argue that FEMA's policy has the same effect as Missouri's policy in
Trinity Lutheran. Dkt. 12 at 14. They argue that FEMA denies the churches an
otherwise available public benefit on account of their religious status. Id.
However, Trinity Lutheran is distinguishable from the instant case. Trinity
Lutheran involved the funding of a playground, not a religious activity. See 137
S.Ct. at 2024 n.3. In fact, four justices joining the majority even acknowledged
that “[the Court] does not address religious uses of funding.” Id.
Instead, this case is similar to Locke v. Davey. 540 U.S. 712, 124 S.Ct. 1307
(2004). In Locke, the state of Washington created a scholarship to help certain
students afford post-secondary education. Id. at 715. Washington awarded a
scholarship to one student, but then refused to give him the funds because he
chose to pursue a devotional theology degree. Id. at 717. The student argued
that the denial of funds violated his rights under the Free Exercise Clause. Id. at
720. Locke held that Washington's denial of funding was constitutionally
permissible. Id. at 724. The Court held that the student was not entitled to a
presumption of unconstitutionality and that the government was not hostile
toward religion for enforcing its anti-establishment goals. See Id. at 722-24.
Trinity Lutheran provides important guidance on Locke. 137 S.Ct. at 2023. As

the Court notes, the Locke plaintiff was not denied a scholarship because of what
14
he was, but “because of what he proposed to do—use the funds to prepare for
the ministry.” Id. In Trinity Lutheran, on the other hand, the church planned to use
the funds to resurface a playground. Id. The funds were not denied because of
what they would be used for—a non-religious use—but because of the church's
status as a religious institution. Id. at 2025. Thus, the policy forced the church to
choose between being a church and receiving a government benefit. Id. at 2024.
In the instant case, FEMA's policy is closer to the scholarship in Locke.

Plaintiffs would use the FEMA funds to rebuild facilities used primarily to promote
religious activities. See Dkt. 11 ¶¶ 47, 57-59, 72-73. Plaintiffs need repairs to
church sanctuaries, a church steeple, and a fellowship hall. Id. ¶¶ 57-59, 72-73.
Plaintiffs even acknowledge that for at least one of the churches, the repairs are
needed to resume religious services. Id. ¶ 73. Thus, Plaintiffs plan to use the
funds for religious purposes, like the Locke student did. 540 U.S. at 717.
Further, FEMA's policy even distinguishes based on use, rather than status or
identity. Policy Guide at 12. The policy requires a PNP's facility to provide
“eligible” services. Id. FEMA's denial of funding is not because of Plaintiffs' status
as religious institutions, but rather because they primarily use their facilities for
religious activities. Id. Thus, the funding from FEMA would be used to further
those religious activities. The policy even contemplates situations when a church
would receive funding. See Id. at 14, 171. The policy states that a community
center operated by a religious institution would receive funding if the facility
provides eligible services. Id. at 14. Or, if a church operates a school and has
multiple facilities, FEMA would consider each facility separately for determining
the eligibility of funds. Id. at 171. Plaintiffs do not have to choose between being
a church and receiving a government benefit because FEMA's funds are not
contingent on Plaintiffs' status as churches. Rather, FEMA's funds are contingent
on how Plaintiffs plan to use the funds—here, rebuilding facilities used for
religious activities. Dkt. 11 ¶ 47.
As the Court recognized in Locke and reaffirmed in Trinity Lutheran, the

government has a historical and justifiable interest in avoiding an
establishment of religion and using public funds to support religion. Locke,
540 U.S. at 722; Trinity Lutheran, 137 S.Ct. at 2023. The difference the Court
draws between Trinity Lutheran and Locke is that Trinity Lutheran involved
playgrounds and was not an “essentially religious endeavor,” like that of pursuing
a religious education. Trinity Lutheran, 137 S.Ct. at 2023. Thus, the government
had different interests in the two cases. See Id. Here, the funding would be used
to repair church facilities so that Plaintiffs could use their facilities for their
primary service, which Plaintiffs admit is providing religious activities. Dkt. 11 ¶
47.
Plaintiffs also briefly argue that FEMA's policy is unconstitutional because it is

not neutral. Dkt. 12 at 16 (citing Church of the Lukumi Babulu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 113 S.Ct. 2217 (1993)). To the extent that Plaintiffs argue
15
the Lukumi reasoning governs this dispute, the court disagrees. Lukumi involved
criminal sanctions that sought to suppress ritualistic practices of a particular
group. See Id. at 524-28. As the Court described in Locke, the law targeted a
specific religious practice by a specific religious group. 540 U.S. at 720. Further,
Locke declined to extend Lukumi beyond “not only [Lukumi's] facts but [Lukumi's]
reasoning.” Id.
The instant case is clearly distinguishable. First, FEMA's policy does not
impose criminal or civil sanctions on any type of religious service or rite. See Id.
Second, FEMA's policy does not deny funding only to entities whose facilities are
primarily used for religious activities. Policy Guide at 12. Instead, facilities used
for “political, athletic, religious, recreational, vocational, or academic training,
conferences, or similar activities are not eligible.” Id. Thus, Lukumi does not
control.
* * * Because Plaintiffs' potential funding was denied based on use rather than
their status as churches, Trinity Lutheran is distinguishable while Locke is
controlling. Further, because Plaintiffs base their constitutional argument on
Trinity Lutheran and Lukumi, they do not show a substantial likelihood of
success. [Boldfaced emphasis added.]
Accord: Americans United for Separation of Church and State v. School District, 546
F.Supp. 1071 (W.D.Mich.1982), affirmed, 718 F.2d 1389 (6th Cir.1983), affirmed sub
nom Grand Rapids School District v. Ball, 473 U.S. 373 (1985) (shared time school
programs allowing parochial school students to be taught in public schools at public
expense held violative of the establishment clause and enjoining their further operation).
Note that, per Locke, it is irrelevant that the Board could have constitutionally
funded St. Vincent’s Community Action Grant application, and equally immaterial that
the Board had funded arguably similar St. Vincent Community Action Grant applications
in prior years. Once focusing on the proposed use of the funds, the Board had
discretion under the 1st Amendment to decline St. Vincent’s 2020 Grant application for
wages and fringe benefits of its employees in order to avoid contributing to an
establishment of religion, or even being perceived as doing so—Locke reviewed the
history of the 1st Amendment, noting, 540 U.S. at 722-723:
16
Since the founding of our country, there have been popular uprisings against
procuring taxpayer funds to support church leaders, which was one of the
hallmarks of an "established" religion.[6] See R. Butts, The American Tradition in
Religion and Education 15-17, 19-20, 26-37 (1950); F. Lambert, The Founding
Fathers and the Place of Religion in America 188 (2003) ("In defending their
religious liberty against overreaching clergy, Americans in all regions found that
Radical Whig ideas best framed their argument that state-supported clergy
undermined liberty of conscience and should be opposed"); see also J. Madison,
Memorial and Remonstrance Against Religious Assessments, reprinted in
Everson v. Board of Ed. of Ewing, 330 U.S. 1, 65, 68 (1947) (appendix to dissent
of Rutledge, J.) (noting the dangers to civil liberties from supporting clergy with
public funds).
Most States that sought to avoid an establishment of religion around the time
of the founding placed in their constitutions formal prohibitions against using tax
funds to support the ministry. E.g., Ga.Const., Art. IV, § 5 (1789), reprinted in 2
Federal and State Constitutions, Colonial Charters and Other Organic Laws 789
(F. Thorpe ed. 1909) (reprinted 1993) ("All persons shall have the free exercise
of religion, without being obliged to contribute to the support of any religious
profession but their own"); Pa.Const., Art. II (1776) in 5 id. at 3082 ("[N]o man
ought or of right can be compelled to attend any religious worship, or erect or
support any place of worship, or maintain any ministry, contrary to, or against, his
own free will and consent"); N.J.Const., Art. XVIII (1776), in id. at 2597 (similar);
Del.Const., Art. I, § 1 (1792), in 1 id. at 568 (similar); Ky.Const., Art. XII, § 3
(1792), in 3 id. at 1274 (similar); Vt. Const., Ch. I, Art. 3 (1793), in 6 id. at 3762
(similar); Tenn.Const., Art. XI, § 3 (1796), in id. at 3422 (similar); Ohio Const.,
Art. VIII, § 3 (1802), in 5 id. at 2910 (similar). The plain text of these constitutional
provisions prohibited any tax dollars from supporting the clergy. We have found
nothing to indicate, as JUSTICE SCALIA contends, post at 728, n. 1, that these
provisions would not have applied so long as the State equally supported other
professions or if the amount at stake was de minimis. That early state
constitutions saw no problem in explicitly excluding only the ministry from
receiving state dollars reinforces our conclusion that religious instruction is of a
different ilk.
Michigan’s 1963 Constitution, art. 1, §4—unchanged from its 1908 (art. II, §3)
and 1850 (art. 4, §§39-40) Constitutions, and similarly to Mich Const 1835, art 1, §4—
equivalently provides:
No person shall be compelled * * * against his consent, to contribute to the * * *

support of any place of religious worship, or to pay tithes, taxes or other rates for
the support of any minister of the gospel or teacher of religion. No money shall
be appropriated from the treasury for the benefit of any religious sect or society *
**
17
The Board therefore acted permissibly in declining to appropriate funds that, even in
part, may have given the appearance of or potentially contributed to the support of a
religious “ministry”.
Dismissal with prejudice is thus warranted on this distinct and independent basis.
Issue III: Because St. Vincent’s 2019/2020 resettlement contract was formally
approved by the Board on November 12, 2019 for the full array of services, and
full contract amount and full term recommended by the Health Department, St.
Vincent lacks standing to sue (or in the alternative any claim as to the 2019/2020
resettlement contract is moot), so that this lawsuit must be dismissed
accordingly.
In paragraph 48 of its Complaint (ECF No. 1, PageID 20), St. Vincent
acknowledges that the $128,000 refugee resettlement and interpreter services
contract10 was fully funded for the full Contract year. Since St. Vincent asks the Court to
compel Ingham County to renew that contract in that amount, and the County has
already done so on November 12, 2019 —without threat of any lawsuit, and of its own
volition—nothing remains for the Court to do. St. Vincent thus has already received
everything to which it claims entitlement in regards to its 2019/2020 resettlement
contract.
As held in Sullivan v. Benningfield, 920 F.3d 401, 407-408 (6th Cir. 2019):
Although the case-or-controversy requirement of Article III, § 2 of the

Constitution "underpins both our standing and our mootness jurisprudence,"
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180,
120 S.Ct. 693, 145 L.Ed.2d 610 (2000), standing and mootness inquiries diverge
in several important respects, one of which is timing. Whether a plaintiff has
standing to sue is "determined as of the time the complaint is filed." Cleveland
Branch, N.A.A.C.P., 263 F.3d at 524. If a plaintiff overcomes the standing hurdle
at the time of filing, the doctrine of mootness then "requires that there be a live
case or controversy at the time that a federal court decides the case." Burke v.
10
See footnote 1, p. 2 above regarding continuation of a separate interpreter services
agreement in addition.
18
Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987). We address
the standing and mootness doctrines in turn.
A. Standing
To establish standing under Article III, a plaintiff must show "(1) an ‘injury in
fact,’ (2) a sufficient ‘causal connection between the injury and the conduct
complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a
favorable decision.’ " Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58,
134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). "In the context of claims
for injunctive or declaratory relief," the threatened injury in fact must be "concrete
and particularized," as well as "actual and imminent, not conjectural or
hypothetical[.]" Sumpter v. Wayne Cty., 868 F.3d 473, 491 (6th Cir. 2017)
(quoting Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173
L.Ed.2d 1 (2009)). "Past exposure to illegal conduct" is insufficient to
demonstrate an injury in fact that warrants declaratory or injunctive relief unless
the past injury is accompanied by "continuing, present adverse effects." O’Shea
v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Grendell
v. Ohio Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001).
Here, St. Vincent has no injury in fact, the Board approved the contract for a full year, in
the full amount of $128,000 with interpreter services salvaged by the Board’s
resourceful use of general fund dollars (in addition to automatic continuation of ECF 17-
2, footnote 1 above). The comments of a minority of Board members made during an
earlier HSC meeting on November 4, 2019, are not cognizable injuries—they failed to
have a present adverse effect. Bogan, supra; Tenney, supra; O’Brien, supra;
Scarbrough, supra.
The request for injunctive relief does not avoid mootness. When seeking
prospective future relief, such as an injunction, it is insufficient to merely allege past
harm. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210-11 (1995). But St.
Vincent—which is not suing for defamation11—has suffered no cognizable past harm.
11
Even if any of the adverse comments had been defamatory, none was a statement by
the Board—the Board acts only through its majority, M.C.L. 46.3(1). The Board cannot
19
Plaintiff alleges 4 Commissioners out of 14 (see above and ECF No. 1, PageID 16-19,
¶¶42 and 45)—allegedly expressed hostility to St. Vincent based on its right of free
exercise or to petition government, and 3 of 14 voted not to renew the
refugee/interpreter contract, but St. Vincent acknowledges they were outvoted. The
majority (11 of 14) ruled. M.C.L. 46.3(1). Since nothing untoward regarding St.
Vincent’s contract actually occurred, this likewise does not qualify as a wrongful act
“capable of repetition but evading review”. Two criteria must be met for a Plaintiff to
have standing under the “capable of repetition yet evading review” exception 12, and St.
Vincent’s can satisfy neither criterion.
In any event the November 12, 2019 approval of the 2019/2020 Contract with St.
Vincent renders this case moot. Per Sullivan, supra at 410:
Ultimately, the "test for mootness is whether the relief sought would, if
granted, make a difference to the legal interests of the parties." McPherson v.
Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc)
(internal quotations and citations omitted). "No matter how vehemently the
parties continue to dispute the lawfulness of the conduct that precipitated the
lawsuit, the case is moot if the dispute ‘is no longer embedded in any actual
controversy about the plaintiffs’ particular legal rights.’ " Already, LLC v. Nike,
Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (internal citations
omitted).
Were it to rule in St. Vincent’s favor on issues relating to the 2019/2020 resettlement
contract, the Court could do no more than order the Board to approve the contract. The
be vicariously liable for offending statements of its individual members. Jackson v Heh,
215 F.3d 1326 (6th Cir. 2000) (no vicarious liability without allegations of municipal
custom or policy to issue careless defamatory statements).
12
First, the injury must be likely to happen to Plaintiff again. Weinstein v. Bradford, 423
U.S. 147, 149 (1975). Specifically, there must be a “reasonable expectation that the
same complaining party would be subjected to the same action again.” Id. Second, the
injury must be of inherently limited duration so that it is likely to always become moot
before any litigation can be completed. Fed. Election Comm'n v. Wisconsin Right to Life,
Inc., 551 U.S. 449, 462 (2007) (citations omitted). Where, as here, there has been no
actual injury, the exception cannot possibly be invoked.
20
Board has already done so on November 12, 2019, one month before this lawsuit was
filed on December 13, 2019; it did so before this lawsuit was filed or even threatened.
Meanwhile, the 14 members of the Board have their own 1st Amendment rights to
free speech. The Court could not enjoin even one of them from decrying St. Vincent’s
participation in Buck, or from espousing their views on marriage and adoption rights for
same sex couples as that would be an unconstitutional prior restraint. As held in
Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 559 (1976):
The thread running through all these cases is that prior restraints on speech
and publication are the most serious and the least tolerable infringement on First
Amendment rights. A criminal penalty or a judgment in a defamation case is
subject to the whole panoply of protections afforded by deferring the impact of
the judgment until all avenues of appellate review have been exhausted. Only
after judgment has become final, correct or otherwise, does the law's sanction
become fully operative.
A prior restraint, by contrast and by definition, has an immediate and

irreversible sanction. If it can be said that a threat of criminal or civil sanctions
after publication "chills" speech, prior restraint "freezes" it at least for the time.
St. Vincent’s paranoid speculation (Complaint, ¶¶60-63) that, at some future time, its
rights might be violated, is grossly premature13. If and when something untoward
occurs, then, and not before, St. Vincent might acquire proper standing to sue. Until
then, this lawsuit must be dismissed based on lack of a cognizable case or controversy.
RELIEF REQUESTED
Dismissal with prejudice under Rule 12(b)(6) should be granted. Plaintiff has
13
Regarding St. Vincent’s trepidation that the Board may in the future find an alternative
provider of the same resettlement services, it asks this Court to grant it a favored
position by injunction, a permanent judicially imposed preference. Such status is in any
event unnecessary as it is recognized that St. Vincent is the sole Federally designated
agency for refugee resettlement services in Lansing. Were this Court to accede to such
importunings, it would be violating the 1st Amendment’s establishment clause. Locke,
supra.
21
chosen to file a Complaint which does not comply with Rule 8, to engage in speculation
about future wrongdoing with no evidence of past wrongdoing, and to sue a legislative
body over appropriations decisions in violation of absolute legislative immunity well
settled by the Supreme Court. Per Bogan, supra, quoting Tenney, supra, “it simply is
‘not consonant with our scheme of government for a court to inquire into the
motives of legislators.’” This lawsuit was thus ill-conceived at its inception.
The Board also acted within its legislative budgetary authority to appropriate
public funds to be used to benefit refugee services. Finally, from the outset, as to its
dominant claim (the $128,000 resettlement contract), St. Vincent lacks standing to sue,
as it has what it seeks—a 2019/2020 contract for the full term and full amount, in
addition to automatic renewal of the separate contract for enhanced interpreter services
(ECF 17-2) per footnote 1 above.
Respectfully submitted,

Attorneys for Defendant Board
Lansing, MI 48933
(517) 372-9000
btoskey@cstmlaw.com
sosburn@cstmlaw.com
22
CERTIFICATE OF COMPLIANCE
Bonnie G. Toskey (P30601) certifies, under LCivR 7.2(b)(1), that this Brief
contains 7,765 words, inclusive of headings, footnotes, citations and quotations, as
counted by Microsoft Word 2010, the word processing software used to create this
Brief.

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Case 1:19-cv-01050-RJJ-PJG ECF No. 19 filed 01/22/20 PageID.

UNITED STATES DISTRICT COURT

ST. VINCENT CATHOLIC CHARITIES,

William R. Bloomfield (P68515)

Proceeding under F.R.Civ.P. 12(b)(6), Defendant Ingham County Board of

Commissioners, through counsel, respectfully moves to dismiss Counts I-V of the

Complaint (ECF No. 1) with prejudice on grounds:

a. The Board of Commissioners is insulated against all claims by virtue of

absolute legislative immunity;

b. The Board of Commissioners’ challenged actions were taken to allocate

not actionable; and

c. St. Vincent lacks standing to sue because there is no “case or

Brief in Support of Motion to Dismiss.

Dated: January 22, 2020 By: /s/ Bonnie G. Toskey

UNITED STATES DISTRICT COURT

ST. VINCENT CATHOLIC CHARITIES,

William R. Bloomfield (P68515)

Statement of Questions Presented p. vi

Standards for Decision p. 6

Issue I: St. Vincent’s challenge to the Board’s legislative

Issue II: Any claim relating to St. Vincent’s demand for a

Issue III: Because St. Vincent’s 2019/2020 resettlement contract

Signature of Counsel (Electronic Signature) p. 22

Certificate of Compliance (per LCivR 7.2(b)(1)) p. 23

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) p. 19

Americans United for Separation of Church and State v.

Ashcroft v. Iqbal, 556 U.S. 662 (2009) p. 7

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) pp. 6, 7

Bogan v. Scott-Harris, 423 U.S. 44 (1998) pp. 9, 10, 12, 19, 22

Cagle v. Gilley, 957 F.2d 1347 (6th Cir. 1992) p. 8

DirectTV, Inc. v. Treesh, 487 F.3d 471 (6th Cir. 2007) p. 6

Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) p. 9

Fare Deals Ltd. v. World Choice Travel.Com, Inc.,

Fayetteville Investors v. Commercial Builders, Inc.,

Fed. Election Comm'n v. Wisconsin Right to Life, Inc.,

Guindon v Twp. Of Dundee, 488 Fed.Appx. 27 (6th Cir. 2012) p. 9

Harvest Family Church v. Federal Emergency Mgmt. Agency

Hosack v. Utopian Wireless Corp., No. 11-0420,

Locke v. Davey, 540 U.S. 712 (2004) pp. 14, 16

Masterpiece Cake Shop, Inc. v. Colorado Civil Rights Comm’n,

McCoy Elkhorn Coal Co. v. United States E.P.A.,

McMurphy v. City of Flushing, 802 F.2d 191

Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976) p. 21

In re Omnicare, Inc. Sec. Litig., 769 F.3d 455

Peatross v. City of Memphis, 818 F.3d 233

Pickering v. Board of Educ. of Township High Sch.

Rieger v. Drabinsky (In re Livent, Inc. Noteholders Sec.

Scarbrough v. Morgan County Bd. of Educ.,

Scott-Harris v. Fall River, 134 F.3d 427 (1st Cir. 1997) p. 10

Supreme Court of Virginia v. Consumers Union of

Tenney v. Brandhove, 341 U.S. 367 (1951) pp. 12, 19, 22

United States v. O'Brien, 391 U.S. 367 (1968) pp. 12, 19

Valot v. Southeast Local Sch. Dist. Bd. of Ed.,

Van de Kamp v. Goldstein, 555 U.S. 335 (2009) p. 13

Weinstein v. Bradford, 423 U.S. 147 (1975) p. 20

US Const, Amendment 1 pp. 1, 9, 12, 14, 16, 21

Mich. Const. 1963, art. 1, §4 p. 17

Mich. Const. 1908, art. II, §3 p. 17

Mich. Const. 1850, art. 1, §4 p. 17

Mich. Const. 1835, art. 1, §4 p. 17

M.C.L. 46.3(1) pp. 3, 19, 20

F.R.Civ.P. 8(a)(2) pp. 6, 7

F.R.Civ.P. 12(b)(6) pp. 6, 7, 22