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Hyman v. City of Salem

United States District Court, N.D. West Virginia

June 3, 2019

WILLIAM HYMAN, CHAD THOMPSON, and MARISSA RINEHART, Plaintiffs,
v.
CITY OF SALEM, WEST VIRGINIA, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION [DKT. NO. 2]

          THOMAS S. KLEEH UNITED STATES DISTRICT JUDGE

         Pending with the Court is the Motion for Preliminary Injunction and/or Temporary Restraining Order [Dkt. No. 2] filed by Plaintiffs. At an April 19, 2019, evidentiary hearing on Plaintiffs' motion came Plaintiffs by Lonnie C. Simmons and Mark R. Brown, and Defendant by Samuel H. Harrold, III. The parties submitted the issue on oral arguments and the briefs and, on that basis, the Court GRANTS Plaintiffs' Motion for Preliminary Injunction [Dkt. No. 2].[1]

         I. FINDINGS OF FACT

         Plaintiffs in this matter are William Hyman, Chad Thompson, and Marissa Rhinehart, and the Defendant is the City of Salem, West Virginia, a West Virginia municipality [Dkt. No. 1]. On or about January 14, 2019, Plaintiffs Hyman and Thompson presented to Defendant City of Salem, West Virginia, an initiative with sufficient supporting signatures calling for the decriminalization of marijuana possession in the City of Salem[2] [Id. at Exh. 1]. The initiative satisfied the procedural requirements prescribed by law, was supported by a sufficient number of voters' signatures, and fully complied with West Virginia's and the City of Salem's requirements for placing an initiative on the Defendant's June 4, 2019, election ballot [Dkt. No. 1 at ¶ 3]. On or about March 28, 2019, Plaintiffs were orally notified by Defendants that the initiative would not be included on the June 4, 2019, election ballot [Id. at ¶ 4]. Plaintiffs did not receive formal or official notice from Defendant that the initiative would be removed from the election ballot; however, Plaintiffs' attorney was informed on or about April 8, 2019, that the Defendant would not include the initiative on the June 4, 2019, election ballot [Id. at ¶¶ 6-7].

         The decision by Defendant to exclude the initiative from the June 4, 2019, election ballot was premised on a March 28, 2019, memorandum from an attorney in the office of the West Virginia Secretary of State's Office to Defendants' attorney [Dkt. No. 1 at ¶ 8, Exh. 2]. The memorandum was prepared at Defendant's request in response to specific questions raised by Defendant, [3] and includes the statement that the Secretary of State “does not have authority to enforce or officially interpret the provisions discussed below, ... [but would] offer an information interpretation for consideration by interest parties” [Id. at ¶¶ 10, 14, Exh. 2].

         At all relevant time, Defendant had in place a proper Charter provision, enacted pursuant to West Virginia Code § 8-12-4, allowing initiatives to be included on its local election ballots [Dkt. No. 1 at ¶ 12]. West Virginia Code § 8-12-4 states in relevant part:

         Any city may by charter provision provide for any or all of the following:

(1) The initiation of ordinances by petition bearing the signatures, written in their own handwriting, of not less than ten percent of the qualified voters of such city; [and]
(2) The submission to the qualified voters of such city of a proposed ordinance at a regular municipal election or special municipal election upon petition bearing the signatures, written in their own handwriting, of not less than ten percent of the qualified voters of such city or upon resolution of the governing body of such city; ….

[Id. at ¶ 13; W.Va. Code § 8-12-4(1)-(2)].

         One of the issues Defendant presented to the Secretary of State's Office was whether “a municipality in WV [may] adopt an ordinance that is contrary to current WV law, notwithstanding the fact that the initiative satisfies the procedural requirements of W.Va. Code § 8-12-4?” [Dkt. No. 1 at ¶ 14, Exh. 2]. The memorandum explained that Plaintiffs' proposed decriminalization ordinance, presented to Defendant as an initiative, would “[l]ikely” “violate the WV Constitution, ” since possession of marijuana remains criminal under West Virginia State law [Id. at ¶ 15, Exh. 2]. The memorandum also concludes by stating that “[t]he opinions expressed in this memorandum are non-binding and have no legal effect. This memorandum is provided merely for municipal officials' consideration in the instant case” [Id. at ¶ 16, Exh. 2]. The memorandum did not direct Defendant to remove Plaintiffs' initiative from the June 4, 2019, election ballot [Id. at ¶ 17, Exh. 2].

         Plaintiffs, William Hyman, Chad Thompson, and Marissa Rinehart (“Plaintiffs”), contend that Defendant's decision to remove Plaintiffs' initiative from the June 4, 2019, election ballot is premised on the view that the content and/or subject matter of the initiative would contradict state law, prove unconstitutional under the West Virginia Constitution, and thereby be unenforceable [Dkt. No. 1 at ¶ 19]. Plaintiffs allege that the decision to remove the initiative from the June 4, 2019, election ballot was an act of discretion, a content-based restriction on Plaintiffs' speech, and was not based on or governed by content-neutral, objective standards prescribed according to law [Id. at ¶¶ 20-21, 23]. Neither West Virginia law nor local law include objective, content-neutral standards to limit a city's discretion to select which initiatives to be included or excluded from local election ballots based on the content and/or subject matter of the proposed initiative [Id. at ¶ 28]. Plaintiffs further allege that Defendant's decision to remove Plaintiffs' initiative from the City of Salem's June 4, 2019, election ballot violates the procedural safeguards required by the First and Fourteenth Amendments of the United States Constitution when government uses content and/or subject matter to restrain a person's speech [Dkt. No. 1 at ¶ 33].

         Defendant City of Salem, West Virginia argues that a preliminary injunction should not issue because Plaintiffs will not experience irreparable harm and are unlikely to succeed on the merits of their case if the initiative is not placed on the June 4, 2019, election ballot [Dkt. No. 13 at 1-2]. While the Defendant concedes that an individual's First Amendment rights should not be impaired, it notes that West Virginia Code § 8-12-4 is found within Part II of Article 12 which sets forth Home Rule Powers for Cities [Id. at 2]. According to Defendant, the Municipal Home Rule Amendment, Article 6 § 39(a) of the West Virginia Constitution, defines Defendant's legislative authority and prevents Plaintiffs from undertaking an initiative in conflict with the state's general laws [Id. at 3].

         II. DISCUSSION

         A. Preliminary Injunction Standard

         “A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (internal quotation marks and citations omitted). In order to be awarded a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted).

         B. West Virginia Law Governing Municipal Authority to Provide for ...


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