June 27, 2012 4th Circuit published opinions

Jane Powers Huggins v Prince George’s County Maryland

Huggins operated a salvage yard in violation of county ordinances. Based on her understanding that future violations would be handles in a consultive manner, she entered into consent decrees to follow the county ordinances. After several extensions, the county padlocked the gate and refused to allow any actions on the land except those which would bring the property into compliance. Huggins brought suit alleging federal constitutional and state constitutional and common law claims. The district court dismissed some of the claims and granted judgment to the county and its officers on the rest. The panel affirmed. It held that the alleged contracts failed for lack of consideration or under the parole evidence rule. The panel affirmed the due process judgment as Huggins had no property interest as all permits were revoked when the gate was padlocked and no contract existed. The panel also held that the district court properly found Huggins failed to comply with the tort claim act requiring judgment be entered for the county.

Greater Baltimore Center for Pregnancy Concerns, Incorporated v Mayor and City Council of Baltimore

Baltimore passed an ordinance requiring certain limited service pregnancy services to post a sign in their premises that they did not provide or refer for abortion or birth control. The Center brought suit alleging constitutional violations. The trial court dismissed the landlord and operating religious order form the suit for lack of standing and granted the center judgment on the basis that the sign was compelled speech and was not neutral. The court permanently enjoined the enforcement of the ordinance. The panel, 2-1, affirmed. The majority first held the landlord and operator were not covered by the ordinance and their ideological injury was insufficient to create standing. Turning to the ordinance, the majority held that the free provision of pregnancy services is not “commercial speech” and that Baltimore’s effort to expand the commercial speech doctrine to commercially valuable services was unsupported in the case law. Nor were eh abortion or campaign financing standards applicable as no regulated professionals work at the center and the sign was more akin to campaign speech than disclosures. The majority held that Baltimore field to prove a compelling interest in preventing inaccurate information as it cited no deceptive acts by the Center and even refereed women to the Center without the warning sign being posted. Additionally, the ordinance fails to regulate the purported compelling interest, is overinclusive and there are several available alternatives to the sign. The majority finally affirmed the conversion of the motion to dismiss into a motion for summary judgment as both parties submitted additional information and further discovery would have been futile. The dissent argued that there was evidence that limited service pregnancy providers engage in deceptive advertising. It also argued that the district court acted in a kangaroo court fashion in granting summary judgment on an undeveloped record before discovery as Baltimore needed the opportunity to develop evidence whether against the centers as applied challenge or against a facial challenge. The dissent also argued that discovery was essential to determine if the Center had an independent economic interest in its speech. It also argued that the disclaimer sign can be severed for constitutional analysis from the viewpoint communication of the Center. The dissent rejected the majority’s conclusion that eh ordinance is viewpoint based as there could be many reasons a limited services provider does not provide abortion or birth control. The dissent finally argued there were genuine issues of material fact as to Baltimore’s asserted compelling interest and as to the narrow tailoring element.

Centro Tepayec v Montgomery County

Centro provides pregnancy services, but, does not provide or make referrals for abortions. Montgomery County passed an ordinance requiring two signs be posted on Centro’s premises one indicating there were no licensed health care professionals at the Centro and that the health department encouraged all pregnant women to consult with a licensed professional. Centro brought suit on constitutional grounds. The district court allowed the first sign, but, enjoined the second. On appeal, the panel, 2-1, affirmed in part and reversed in part. The majority held, consistent with Greater Baltimore decided today that both disclosures are compelled speech which are not neutral and therefore cannot survive strict scrutiny. The dissent argued the majority improperly failed to give deference to the district court’s determination of the preliminary injunction request, placed a construction on the first sign which is neither the plain meaning nor one that would save the ordinance and failed to defer to the findings of the district court on narrow tailoring.

Kensington Volunteer Fire Department v Montgomery County

County eliminated funding for 20 administrative support positions for volunteer departments in their fiscal year 2011 budget. The departments brought suit alleging the cuts were done in retaliation for their opposition to an ambulance fee bill. The district court dismissed the case holding that the reductions were facially valid, certain defendants were shielded by legislative immunity and the administrators were not county employees. The panel affirmed. As to the alleged illicit motive, the panel held that the budget was an ordinary budget enactment in tough economic times that reduced spending for almost all agencies. Thus, no inquiry can be made into any bad motives by the council. Further, the terminations of the administrators were done by the volunteer departments not by the County demonstrating the terminations could not be retaliatory. As to immunity, the panel held that enacting a budget is a legislative act and the county executive and fire chief were involved in that process and immune from suit. It finally concluded that the Maryland Code plainly states the administrators were not county employees thus precluding wrongful discharge claims.

Wheeling Hospital Incorporated v The Health Plan of the Upper Ohio Valley, Incorporated

Hospital and others sued the Plan and others for monies allegedly owed for medical services provided. After removal to federal court, the Plan answered and engaged in motion practice. After the other defendants were dismissed, the Plan moved to compel arbitration. The district court concluded that having utilized the litigation machinery to the plaintiffs’ detriment, the Plan had defaulted its right to arbitrate. The panel reversed. It first held that it had appellate jurisdiction because, although the Plan’s motion did not cite to Section 3 or 4 of the Federal Arbitration Act, it did seek the remedy of enforcing an arbitration agreement. Turning to the merits, the panel looked at delay and the litigation activities. It found the six month delay did not prejudice the plaintiffs. It also found the litigation activities did not prejudice plaintiffs because motions filed by the plaintiffs are not a basis for default, the dismissal motion by the Plan did not force plaintiffs to reveal their strategy, there was no evidence the litigation required fees and expenses by the plaintiffs and the mere filing of a motion to dismiss is not prejudicial and no actual prejudice was shown.

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