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September 29, 2014

Platinum Sports Shoots Air Ball; Sixth Circuit Dismisses Action Against Governor Snyder and Attorney General Schuette for Lack of Standing

In 2011, the Michigan legislature enacted laws barring sexually oriented businesses from displaying signs on premises, or off-site billboards, that contain more than "words or numbers." See MCL §§ 125.2833 and 252.318a. Platinum Sports, a business affected by the legislation, sued Michigan Gov. Rick Snyder and Attorney General Bill Schuette, challenging the laws on First Amendment grounds. The district court preliminarily enjoined enforcement of the laws, and the Governor and Attorney General stipulated to a final judgment declaring the laws unconstitutional and permanently enjoining their enforcement. As Judge Jeffrey Sutton (the author of the Sixth Circuit opinion) observed:  "That, one might have thought, was the end of that." It was not.

Two months after securing the permanent injunction, "Platinum Sports, represented by the same attorney who had won the first set of lawsuits, sued the same defendants, challenging the same laws . . . on the same free speech grounds." Platinum Sports Ltd v. Snyder, Nos. 12-1811/1812, slip op. at 2. Commenting on this unique case, Judge Sutton wryly noted:

Whether Platinum Sports wished to seize potential defeat from the jaws of established victory or hoped to pile victory (and potential § 1988 fees) on top of victory is not clear. What is clear is that the federal courts have no authority to resolve this "dispute." The hardest question is which Article III defect to invoke. We choose lack of standing, lack in particular of a cognizable injury, and on that ground affirm the district court’s dismissal of the case.

Id. 

"[A] claimant does not present the kind of 'case or controversy' required by Article III of the United States Constitution unless it suffers an injury caused by the defendant and redressable by a court." Id. at 3. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Finding that Platinum Sports has no cognizable theory of injury, the Sixth Circuit observed that Platinum Sports "offers no explanation how it was injured before the laws were preliminary enjoined, and it cannot show any injury going forward in view of the injunctions."  Id.

"Every effort by Platinum Sports to prove otherwise misses the net and the rim."  Id.  Platinum Sports argued that the fact that the statutes appear "on the books" will chill its sign and billboard speech. Rejecting this argument, the Sixth Circuit concluded that "whatever chilling effect the on-the-books existence of these laws might have in the abstract is removed by the concrete injunction preventing their enforcement." Id. Absent some "credible threat" of enforcement, no injury exists. 

Affirming the dismissal of this suit for lack of standing, Judge Sutton observed: "Platinum Sports has nothing to fear but, to borrow a phrase, fear itself, and that assuredly does not amount to a 'well-founded fear' of enforcement."

© 2014 Varnum LLP

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About this Author

Gary J. Mouw, Varnum Law Firm, Litigation Attorney
Partner

Gary is a member of the Litigation and Trial Services Practice Group. As a former clerk for the Honorable Corniela G. Kennedy of the United States Court of Appeals for the Sixth Circuit and the Honorable Gordon J. Quist of the United States District Court for the Western District of Michigan, Gary has experience and insight in handling both appellate and trial court matters in federal court. In addition, Gary has represented clients in a wide range of cases including criminal tax defense, gross negligence and immunity issues, and constitutional claims.

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