ACLU v. Lincoln
Comes now, OSR, chief counsel for Atlasian County & Local Utilities (ACLU), asking that the Supreme Court grant a writ of certiorari to hear the following case against the government of Lincoln.
In September of this year, the City government of Hamtramck, Michigan passed an ordinance pertaining to which flags the City government may display upon City property, which reads in its entirety:
WHEREAS, the City of Hamtramck is one of the most diverse cities in the United States, in which we should proudly promote and embrace its diversity; and
WHEREAS, the City must and will serve and treat its residents equally, with no discrimination, or special treatment to any group of people; and
WHEREAS, each religious, ethnic, racial, political, or sexually oriented group is already represented by the country it belongs to; and
WHEREAS, the City does not want to open the door for radical or racist groups to ask for their flags to be flown; and
WHEREAS, this resolution does not in any way, shape or form infringe upon the fundamental right of an individual or business in the City of Hamtramck to engage free speech. Nor does this resolution limit speech by public employees provided that such employees engage in such speech in a protected time, manner and place.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hamtramck, Wayne County, Michigan, that the government of the City of Hamtramck does not allow any religious, ethnic, racial, political, or sexual orientation group flags to be flown on the City’s public properties, and only, the Atlasian flag, the Lincoln Flag, the flag of the State of Michigan, the Hamtramck Flag, and the Prisoner of War flag on City property.
This is a lawful exercise of the City's powers to engage in and control the message of government speech. See Weatherboy v. South (2022). On September 4, 2023 the Chief Executive of Lincoln purportedly filed a lawsuit against the City of Hamtrack with the GM Office, allegedly on constitutional grounds. ACLU asks the Court to grant its writ of certiorari and issue a permanent injunction against the government of Lincoln and its officers from filing improper lawsuits implicating constitutional issues with the non-judicial GM Office.
This act violates the constitutional rights of ACLU and its member localities, specifically freedom of speech (Art. 1, Sec. 2 of the Atlasian Constitution), due process of law (Art. 1, Sec. 5 of the Atlasian Constitution), and separation of powers (Art. 5 of the Atlasian Constitution). Accordingly, we seek the Court to grant a permanent injunction enjoining these violations.
Claim 1: Freedom of Speech ACLU is an association of local goverent-owned utilities operating in all three (3) Regions, including Lincoln. Many of our members own utility poles which are legally classified as government property. The Governor of Lincoln seeks to invalidate a municipal ordinance determining which flags the City government may display upon City property, perplexingly on free speech grounds. Contrary to the Governor's claims, the only free speech rights at risk are those of the City of Hamtramck and other local governments to determine their own speech. This Court has long recognized that the government, like citizens, has a right to express its own ideas and messages as strictly government speech. See Weatherboy v. South (2022); Tmthforu94 v. Fremont (2020); Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. __ (2015); Rust v. Sullivan, 500 U.S. 173 (1991).
Accordingly the City of Hamtramck has the right to determine what messages it, as a government, expresses on its own government property. Government flagpoles on government property are not a traditional public forum, and the City's ordinance very carefully ensures its flagpoles are not being designated as public forum; only official government flags are permitted to fly on government poles. See Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37 (1983). This ordinance was adopted to express certain ideas, including civic unity and government neutrality and uniformity, as well as to prevent the perception that the City is endorsing certain political viewpoints which the City has not. See International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). The City is under no obligation to allow its flagpoles to be used by random members of the public to express a myriad of viewpoints, ideas, or messages that conflict with the City's speech. And yes, flags constitute speech. See Stromberg v. California, 283 U.S. 359 (1931).
And the ordinance does not prohibit private citizens from displaying whatever flags they want while physically present on City property. The only speech being regulated by the ordinance is the speech of the City itself.
This is a text book violation of freedom of speech, both of Hamtramck and the members of ACLU. Accordingly, the Government of Lincoln and its officers should be enjoined from filing its purported lawsuit.
Claim 2: Due Process ACLU is also being denied its liberty without due process of law as by not filing a proper lawsuit to a proper court vested with judicial power, and by seemingly suggesting that the GM Office can just arbitrarily decide an issue of Constititional interpretation without the due process protections of a lawsuit, the Governor of Lincoln is at risk of taking away the rights of ACLU members. Were this case to be litigated in a Court, ACLU could file amici briefs, seek to intervene, enjoin, or a host of other procedural protections that ensure ACLU members can protect their rights. These procedural protections are lost if the GM Office can just decide constitutional issues on a whim. This is a text book violation of procedural due process, both of Hamtramck and the members of ACLU. Accordingly, the Government of Lincoln and its officers should be enjoined from filing its purported lawsuit with the GM Office.
Claim 3: Separation of Powers Finally, the Governor of Lincoln is seeking to violate the separation of powers mandated by the Atlasian Constitution, to the detriment of the ACLU members. Art. 5 of the Constitution is very clear:
Sec. 1. The judicial power of the Republic of Atlasia shall be vested in the Supreme Court ...
Sec. 2. The judicial power of each of the several Regions shall be vested in a Circuit Court composed of the Associate Justice chosen from that Region, and no Region shall establish any other court or judicial authority.
Only the judicial branch is vested with judicial power under the Constitution. None is vested in the GM Office. The purported lawsuit by the Governor of Lincoln implicates the constitution, a federal statute, a regional statute, and local ordinance the GM Office represents has been passed. The constitutionality/legality of such important matters cannot be left to the whims of the GM Office. This would be a massive violation of the separation of powers and would render the Supreme Court in many ways, irrelevant to constitutional interpretation. A different GM Office could hypothetically say a local government banned abortion totally, find a sympathetic region to file a dummy lawsuit to the GM Office, and then the GM Office could uphold the constitutionality of that law. This is a text book violation of separation of powers. Accordingly, the Government of Lincoln and its officers should be enjoined from filing its purported lawsuit with the GM Office.
Conclusions The actions by the Governor of Lincoln are indisputedly unconstitutional by violating the free speech and due process rights of ACLU and its members, all while violating sepatation of powers. It interferes with the right of local governments to determine what messages and ideas it expresses upon its own flagpoles, it denies procedural due process for ACLU members to participate in lawsuits affecting the rights of its members, and it violates the separation of powers by cloaking the GM with judicial powers over constitutional and legal issues. I thus ask for certiorari so that this attack on the nation can be enjoined. Thank you.
- OSR, ACLU Counsel
