Highway by user; MCL 221.20; MCL 221.20a; Donaldson v Alcona Cnty Bd of Cnty Rd Comm’rs; Standing; First Amendment retaliation; 42 USC § 1983; Hornbeak-Denton v Myers (Unpub 6th Cir); Causation; Qualified immunity; Clearly established constitutional rights

The court held that plaintiffs had standing to bring a highway by user “claim, and that the trial court prematurely decided whether plaintiffs could ‘force’” defendant-city to accept a road as public. Thus, it vacated the trial court’s order granting defendants summary disposition of plaintiffs’ highway-by-user claim and remanded. But it affirmed the dismissal of plaintiffs’ First Amendment retaliation claim under § 1983. “Plaintiffs own homes adjacent to Lakewood Drive, a short dead-end road in Battle Creek.” They argued that “the city could not discontinue maintenance and repair work on Lakewood Drive, even though public records show the road was abandoned by the” county road commission in 1965. Plaintiffs “invoked the highway-by-user statute, MCL 221.20. The trial court held that [they] had standing to sue, but that the statute could not be used by private parties to compel a governmental unit to ‘accept’ a road as public.” The question on appeal was “not whether plaintiffs can establish their claim on the merits, as the trial court never reached that issue. Nor can there be any doubt that plaintiffs have standing to bring this claim, as Donaldson . . . held that similar homeowners had a sufficient personal stake, unique from that of the general public, to have standing[.]” The court noted that “what the trial court relied upon from Donaldson, and what the parties continue to spar over on appeal, is a closing footnote that put into question whether the highway-by-user statute is available for private individuals to sue the government to have a private road declared public.” The footnote questioned “whether the highway-by-user statute could apply in a case seeking to force a government agency to accept a road as a public highway[.]” The court concluded “that the trial court erred by granting defendants summary disposition on this basis, and at this stage, pursuant to MCR 2.116(C)(8).” As to plaintiffs’ First Amendment retaliation claims against Battle Creek and defendants-City Attorney (Steele) and City Manager (Fleury), the court held that the contents of the letters plaintiffs relied on did “not support a First Amendment violation.” Defendants “acted under color of law in their interactions with plaintiffs” and plaintiffs’ “conduct was protected by the Petition Clause of the First Amendment.” But as to the second element, plaintiffs “failed to establish an issue of fact as to whether [Steele] took adverse action against them” where she simply apprised them “of the city’s legal position and what actions the city may have to take if Lakewood Drive became a public highway[.]” As to Fleury, the court found that “plaintiffs sufficiently established a factual dispute on their” claim. But they did not “sufficiently plead that their asserted constitutional rights were clearly established. Fleury was therefore entitled to qualified immunity from” the claim.