Rita Johnson v. Timothy Morales ( 2020 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0008p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RITA R. JOHNSON, ┐
Plaintiff-Appellant, │
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v. > No. 17-2519
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TIMOTHY MORALES; DENNIS JORDAN; CITY OF │
SAGINAW, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:17-cv-12405—Thomas L. Ludington, District Judge.
Argued: October 16, 2018
Decided and Filed: January 7, 2020
Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for
Appellant. Robert A. Jordan, O’NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for
Appellees. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock,
Michigan, for Appellant. Robert A. Jordan, Gregory W. Mair, O’NEILL, WALLACE
& DOYLE, P.C., Saginaw, Michigan, for Appellees.
NALBANDIAN, J., delivered the opinion of the court in which COLE, C.J., and WHITE,
J., joined, except as to the issues discussed in Sections IV.D, IV.G, and IV.I of his opinion.
WHITE, J. (pp. 30–37), delivered the opinion of the court as to those issues, in which COLE,
C.J., joined. Judge Nalbandian’s discussion of those issues represents his dissent.
No. 17-2519 Johnson v. Morales, et al. Page 2
____________________
OPINION/DISSENT
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I.
NALBANDIAN, Circuit Judge. Plaintiff Rita Johnson challenges the suspension of her
business license by Defendants City of Saginaw, City Manager Timothy Morales, and City
Human Resources Director Dennis Jordan. Morales issued Johnson a notice to immediately
suspend all commercial activities at her restaurant. This came after persons unaffiliated with
Johnson or her restaurant began shooting at it one night. Jordan upheld the suspension in a
hearing where he served as the hearing officer. And an appeal panel later upheld his decision.
Johnson eventually filed this action in the district court, alleging several constitutional violations.
She now appeals the district court’s order dismissing her case for failure to state a claim and
denying her leave to amend her complaint. For the following reasons, we AFFIRM in part,
REVERSE in part, and REMAND.1
II.
Rita Johnson owns and operates Rita’s Southern Soul Café in the City of Saginaw,
Michigan (“City”).2 One evening, Johnson rented her restaurant to a private party. For unknown
reasons, individuals unaffiliated with her or the party emerged from a vehicle that night and
began shooting at the restaurant. According to Johnson, no guest of the restaurant instigated the
1This opinion constitutes the majority opinion on Johnson’s claims that (1) Defendants violated due
process by having Jordan review his immediate supervisor’s decision to suspend Johnson’s license; (2) Defendants
violated due process because one of the City’s attorneys had represented Jordan in an unrelated case six years
before; (3) Defendants violated due process by denying Johnson a pre-suspension hearing; (4) section 110.06(E) of
Saginaw’s Code of Ordinances, which regulates the process of appealing a suspension decision, violates due
process; and (5) section 110.06(F) is unconstitutionally vague both on its face and as applied to Johnson’s case.
This opinion dissents regarding the judgment on Johnson’s claim that section 110.06(D) violates due
process. Johnson asserted a facial challenge to the ordinance and not an as-applied challenge, as the majority
believes. And placing the burden on the licensee at the first post-suspension hearing does not violate due process.
Finally, this opinion dissents on Johnson’s equal protection and substantive due process claims.
As a result, Section IV.D, Section IV.G, and Section IV.I do not represent the majority opinion.
2The district court dismissed Johnson’s complaint for failure to state a claim and denied her leave to amend
her complaint on futility grounds. So we take her well-pleaded factual allegations as true. Bennett v. MIS Corp.,
607 F.3d 1076, 1091 (6th Cir. 2010).
No. 17-2519 Johnson v. Morales, et al. Page 3
shooting. Nor did the shooting “ha[ve] [anything] to do with the commercial activities of [her]
business.” (R. 15-1, Proposed Second Am. Compl. at PageID #250 ¶ 17.) Although police were
called during the shooting, they never apprehended any of the shooters. But Saginaw Police
Chief Robert Ruth opined that the incident may have “involve[d] gangs from the ‘southside’ and
‘northside’ of Saginaw.” (Id. ¶ 21.)
Less than two days after the shooting, City Manager Timothy Morales issued Johnson a
notice ordering the suspension of all business activity related to her restaurant. Morales issued
the suspension order under section 110.06(F) of Saginaw’s Code of Ordinances. Section
110.06(F) allows the city manager to immediately suspend any license or permit issued by the
City if he considers the suspension necessary and “in the interest of the public health, morals,
safety, or welfare[.]” Saginaw, Mich., Code of Ordinances § 110.06(F) (2018).
The suspension order listed the following non-exclusive reasons for suspending
Johnson’s license:
1. Serious and violent criminal activity generated by the operation of this
establishment;
2. The aforementioned serious and violent criminal activity has resulted in
significant injury to persons and damage to property;
3. The aforementioned serious and violent criminal activity has occurred as
recently as Saturday, May 6, 2017;
4. The aforementioned serious and violent criminal activity constitutes a
hazardous condition contrary to the health, morals, safety and welfare of the
public;
5. Failure to maintain adequate security to prevent or discourage unlawful
behavior[.]
(R. 15-1, Proposed Second Am. Compl. at PageID #265 (alterations omitted).)
The order also informed Johnson that a hearing would occur three days later, where she
would have to “show cause” as to why her license should not remain suspended or revoked. (Id.
at PageID #251 ¶¶ 33–36.) A little over two months after the hearing, Human Resources
Director Dennis Jordan issued a decision upholding the suspension of Johnson’s license.
No. 17-2519 Johnson v. Morales, et al. Page 4
But Johnson believed she did not receive a fair administrative process. So she filed a complaint
in the district court alleging that Defendants had violated several of her constitutional rights.
Johnson then amended her complaint to include additional factual allegations and another
count against Defendants. She also filed a motion for a temporary restraining order and,
alternatively, a motion for a preliminary injunction to prevent Morales from sitting on the appeal
panel expected to review Jordan’s decision. The district court denied that motion. Later,
Defendants moved to dismiss Johnson’s complaint for failure to state a claim.
After the district court denied Johnson’s motion for equitable relief, she filed her
administrative appeal. The appeal panel, which did not turn out to include Morales, held a
hearing where it affirmed Jordan’s decision upholding the suspension of her license. The very
next day, Johnson filed a motion for leave in the district court to amend her complaint again.
And roughly two months later, the district court granted Defendants’ motion to dismiss and
denied Johnson’s motion to amend her complaint on futility grounds.
This appeal followed.
III.
We review the district court’s grant of Defendants’ motion to dismiss de novo. Beydoun
v. Sessions, 871 F.3d 459, 464 (6th Cir. 2017) (citing Kottmyer v. Maas, 436 F.3d 684, 688 (6th
Cir. 2006)). Because the district court denied Johnson’s motion to file a second amended
complaint on futility grounds, we review that decision de novo. Id. (citing Colvin v. Caruso,
605 F.3d 282, 294 (6th Cir. 2010)). Several of Johnson’s claims overlap both complaints; we
analyze those claims before we analyze the claims unique to her proposed second amended
complaint.
IV.
A.
In Count I of Johnson’s first amended complaint and Count IV of her proposed second
amended complaint, Johnson alleges that the City and Jordan violated her due process rights by
having Jordan serve as the hearing officer at her initial administrative hearing. Her argument
No. 17-2519 Johnson v. Morales, et al. Page 5
rests on a “command influence theory,” which she articulates as follows: “[I]mmediate
subordinates are not ‘neutral and detached’ enough to satisfy due process when called upon to
review an immediate boss’s decision.” (Johnson’s Opening Br. at 18.) According to Johnson’s
theory, Jordan was not “neutral and detached” enough to serve as her hearing officer. (Id. at 10.)
This is because he was sitting in review of his immediate supervisor’s decision to suspend her
license.
Federal due process “guarantees ‘an absence of actual bias’ on the part of a judge.”
Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (quoting In re Murchison, 349 U.S. 133,
136 (1955)). But we apply an objective standard in evaluating whether the government has
fulfilled that guarantee. Id. So in reviewing claims of actual bias, we “ask[] not whether a judge
harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge
in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.”
Id. (internal quotation marks omitted). Moreover, claims of bias “must overcome a presumption
of honesty and integrity in those serving as adjudicators[.]” Withrow v. Larkin, 421 U.S. 35, 47
(1975).
Johnson traces the origins of her theory to two state court decisions: State ex rel. Ellis v.
Kelly, 112 S.E.2d 641 (W. Va. 1960) and Mayer v. Montgomery County, 794 A.2d 704 (Md. Ct.
Spec. App. 2002).3 We examine both in turn.
3It is unsurprising that Johnson does not substantially rely on the Supreme Court’s recusal precedents.
After all, the Court has declined to find an unconstitutional risk of bias in all but a few narrow circumstances—none
of which apply here. Before its decision in Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009), the Court
had only required recusal in two types of situations. The first was “when the judge ha[d] a financial interest in the
outcome of the case,” and the second was “when the judge [was] trying a defendant for certain criminal contempts.”
Id. at 890 (Roberts, C.J., dissenting).
In Caperton, the Court held that there is an unconstitutional risk of bias “when a person with a personal
stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising
funds or directing the judge’s election campaign when the case was pending or imminent.” Id. at 884. The
narrowness of its holding reflected the Court’s perception that it was dealing with an “extreme case” that presented
“an extraordinary situation” with facts it considered “extreme by any measure.” Id. at 887. This, the Court
explained, was characteristic of its recusal cases, each of which “dealt with extreme facts that created an
unconstitutional probability of bias that ‘cannot be defined with precision.’” Id. (quoting Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813, 822 (1986)).
The Court next revisited its recusal jurisprudence in Williams. There, once again, the Court framed its
holding narrowly: “[W]here a judge has had an earlier significant, personal involvement as a prosecutor in a critical
No. 17-2519 Johnson v. Morales, et al. Page 6
In Kelly, West Virginia’s Department of Motor Vehicles (“Department”) suspended a
used car dealer’s license after the Department’s commissioner investigated the dealership and
found that the dealer had breached certain record-keeping requirements. 112 S.E.2d at 642. The
Department later held a hearing on the suspension. Id. at 643. There, the deputy commissioner
served as the hearing officer and the commissioner testified before the deputy. Id. West
Virginia’s Supreme Court of Appeals held that this violated due process. The court found:
It can hardly be contended that the commissioner, in the making of the
investigation and in testifying before the deputy commissioner appointed by him
and responsible to him, beyond any reasonable probability, did not become biased
and prejudiced in the matter being heard. It would seem to be beyond human
experience and expectation for impartiality to result where the officer is the
investigator, prosecutor, witness and trier of the facts.
Id. at 644.
But it was essential to the court’s analysis that “the commissioner personally conducted
the investigation and personally testified before his deputy.” See id. at 643. In contrast, Johnson
alleges neither that Morales testified at her hearing nor that he investigated her business.
Johnson’s argument hinges on her allegations that Morales issued the suspension order, selected
Jordan to serve as the hearing officer, and is Jordan’s immediate supervisor. Because Morales
was not the “investigator, prosecutor, witness and trier of the facts” in Johnson’s case, Kelly is
inapposite.
The second case Johnson relies on, Mayer, involved a county police sergeant who sought
a promotion to the rank of lieutenant. 794 A.2d at 706. The sergeant filed a grievance after he
was denied the promotion. And a county director denied his grievance through a written “Step
II” response. Id. at 708. Then, the County Administrative Officer (“CAO”) designated a
subordinate of the director to conduct a “Step III” hearing. So the sergeant requested a different
hearing officer. Id. He argued that the subordinate “would be loath to render a decision adverse
to that of her superior and therefore would not be impartial, or at least would not appear to be
impartial.” Id. The CAO denied the sergeant’s request for a different hearing officer. And the
decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level.”
Williams, 136 S. Ct. at 1910. The situation here bears no resemblance to either Caperton or Williams.
No. 17-2519 Johnson v. Morales, et al. Page 7
subordinate denied the grievance. Id. at 709. So the sergeant appealed. Yet the Maryland Court
of Special Appeals concluded that “the CAO’s appointment was contrary to the governing laws
. . . .” Id. at 717.
But those “governing laws” did not refer to the Due Process Clause. Instead, they
referred to the county’s “governing [] laws, regulations, or procedures,” which the court cited at
the beginning of its analysis. Id. at 709, 711–12.4 Indeed, the sergeant’s argument was “that the
fairness requirements of the applicable Montgomery County personnel laws and procedures were
[not] satisfied in his grievance . . . .” Id. at 711–12 (emphasis added). That said, part of the
court’s reasoning relied on Kelly, which analyzed federal due process. See id. at 712–13. Yet
the court distinguished the sergeant’s case from various federal due process cases that the county
cited in its brief. See id. at 714–15. At the very least, it does not appear as though the court was
exclusively interpreting the Due Process Clause when it ruled for the sergeant.
Even assuming the contrary, Mayer would still be inapt. Mayer held that “when . . . the
Step III hearing officer is a subordinate of the Step II responder, there is a substantial likelihood
that the hearing officer[] . . . will not render an impartial decision[.]” Id. at 714. But it was
critical to the court’s decision that both the Step II and Step III officers were adjudicators. See
id. And it was on that basis that the court distinguished another case: Consumer Prot. Div.
Office of Att’y Gen. v. Consumer Publ’g Co., Inc., 304 Md. 731, 763 (Md. 1985). There, “the
mere fact that both the prosecutorial and adjudicatory functions occurred within the Attorney
General’s Office was not a due process violation and, in fact, those . . . who participated in the
investigation and filing of charges did not participate in the adjudicatory phase of the case.”
Mayer, 794 A.2d at 714. In the sergeant’s case, “by contrast, . . . a subordinate was called upon
to pass judgment on the correctness . . . of his superior’s decision resolving a grievance.” Id.(emphasis added).
4Those “laws, regulations, [and] procedures” included (1) the Montgomery County Council’s statement of
legislative intent for its merit system law; (2) provisions of the Montgomery County Code; (3) provisions of the
Montgomery County Personnel Regulations (“MCPR”); and, (4) a state administrative procedure. Mayer, 794 A.2d
at 709–12.
No. 17-2519 Johnson v. Morales, et al. Page 8
Unlike the Step III hearing officer in Mayer, Jordan did not review an adjudication.
Rather, he reviewed an enforcement action taken by Morales—the suspension of Johnson’s
business license. And Mayer said that such a blend of executive and adjudicative functions
within an agency does not violate due process. More importantly, the Supreme Court held as
much. See Withrow, 421 U.S. at 95. Johnson asks us to find that due process precludes agency
adjudicators from reviewing the executive actions of their direct supervisors. But that position is
unsupported by either our precedent or the Supreme Court’s. And the two state court cases
Johnson directs us to do not support her theory. We therefore hold that Jordan’s participation in
Johnson’s hearing as the hearing officer did not present an unconstitutional risk of bias.
B.
In Count I of Johnson’s first amended complaint and Count VI of her proposed second
amended complaint, Johnson lodges another due process claim against Jordan and the City. She
argues that Jordan should have recused himself because one of the City’s attorneys at her
hearing, Gregory Mair, had represented Jordan in another case. In that case (unrelated to
Johnson’s), a police officer sued Jordan and other City officials, alleging that they discriminated
against him because of his race and disabilities. See Ramirez v. City of Saginaw, No. 10-13408-
BC, 2011 WL 6309158 (E.D. Mich. Dec. 15, 2011).
Johnson cites just one case, Morrissey v. Brewer, 408 U.S. 471 (1972), supporting her
argument. But Morrissey did not address this issue, and Johnson does not explain its relevance
in her brief. And this circuit held that a school board did not violate due process when one of its
attorneys acted as the hearing officer in a suspension hearing that it commenced against a school
superintendent. See Prichard v. Lafferty, 974 F.2d 1338, 1992 WL 205659, at *4 (6th Cir. 1992)
(table). There, we said that “[n]either [the hearing officer’s] familiarity with the situation nor his
relationship to the Board per se disqualified him.” Id.Here, there is even less potential for bias since Jordan was not himself an attorney for the
City—one of the City’s attorneys had merely represented him in an unrelated case six years
before. See also Dell v. Bd. of Educ., Twp. High Sch. Dist. 113, 32 F.3d 1053, 1065–66 (7th Cir.
1994) (holding that a school district did not violate due process where its law firm had
No. 17-2519 Johnson v. Morales, et al. Page 9
represented the hearing officer’s employer); James v. Indep. Sch. Dist. No. I-050 of Osage Cty.,
448 F. App’x 792, 798 (10th Cir. 2011) (holding that members of a school board did not violate
due process where the board’s law firm paid for the hearing officer in a termination hearing).
Given that Johnson fails to articulate why Mair’s representation violated her due process rights,
and the relevant case law we have found goes against her, we hold that the district court did not
err in dismissing this claim.5
C.
In Count II of Johnson’s first amended complaint and Count VII of her proposed second
amended complaint, Johnson alleges that the City and Morales violated her procedural due
process rights by suspending her business license before granting her a chance to be heard.
The Fourteenth Amendment prohibits states from depriving individuals of life, liberty, or
property without due process of law. U.S. Const. amend. XIV, § 1. When evaluating a claim
alleging a property deprivation without due process, we first determine whether due process
applies. See Morrissey, 408 U.S. at 481. If it does, we then determine what process is due. See
id. Johnson’s interest in her business license is enough to invoke due process protection. See
Bell v. Burson, 402 U.S. 535, 539 (1971); United Pet Supply, Inc. v. City of Chattanooga,
768 F.3d 464, 486 (6th Cir. 2014). So we consider whether due process entitled her to a pre-
suspension hearing.
It is the general rule that due process “requires some kind of a hearing before the State
deprives a person of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990)
(collecting cases). But there are exceptions to this rule. For example, “we have held that the
failure to provide a pre-deprivation hearing does not violate due process in situations where a
government official reasonably believed that immediate action was necessary to eliminate an
emergency situation and the government provided adequate post-deprivation process.” United
5Johnson also argues that the district court erred in concluding that she pleaded this claim in her first
amended complaint and that it could dismiss the same claim in her proposed second amended complaint for the
same reasons. Her argument lacks merit. The claims in both complaints are virtually identical. The only difference
is that she lists the claim as a separate count in her proposed second amended complaint, whereas she lists it as a
paragraph in Count I of her first amended complaint.
No. 17-2519 Johnson v. Morales, et al. Page 10
Pet Supply, 768 F.3d at 486 (collecting cases); see also Spinelli v. City of New York, 579 F.3d
160, 170 (2d Cir. 2009). And under the Parratt doctrine, “[c]ourts may dismiss a procedural due
process claim if the state provides an adequate postdeprivation remedy” and the following
conditions apply: “(1) the deprivation was unpredictable or ‘random’; (2) the predeprivation
process was impossible or impracticable; and (3) the state actor was not authorized to take the
action that deprived the plaintiff of property or liberty.” Daily Servs., LLC v. Valentino,
756 F.3d 893, 907 (6th Cir. 2014) (quoting Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.
1995) (per curiam)).
None of these exceptions apply to Johnson’s case. Defendants do not contend that the
decision to suspend Johnson’s license was a “random” or “unauthorized” act. And Johnson
specifically disputes that, at the time of the suspension, any type of emergency or exigent
circumstance required the immediate suspension of her license.
But relevant here, we have said that “[t]he failure to provide a hearing prior to a license
or permit revocation does not per se violate due process.” United Pet Supply, 768 F.3d at 488
(citing Barry v. Barchi, 443 U.S. 55, 65–66 (1979)). Thus, the balancing test from Mathews v.
Eldridge, 424 U.S. 319 (1976), determines whether the government must provide some type of
hearing before suspending a business license. See Spinelli, 579 F.3d at 170.
The Mathews test weighs three factors:
First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.
424 U.S. at 335 (citing Goldberg v. Kelly, 397 U.S. 254, 263–71 (1970)).
The Private Interest. The Supreme Court has long recognized that an individual may have
a significant interest in maintaining a license. See, e.g., Burson, 402 U.S. at 539 (“Once licenses
are issued . . . their continued possession may become essential in the pursuit of a livelihood.”).
No. 17-2519 Johnson v. Morales, et al. Page 11
More generally, the Court has “repeatedly recognized the severity of depriving someone of his or
her livelihood.” FDIC v. Mallen, 486 U.S. 230, 243 (1988).
In Cleveland Board of Education v. Loudermill, for example, a security guard sued the
Cleveland Board of Education (“Board”) for dismissing him after it discovered that he had
falsely stated on his job application that he had never been convicted of a felony. 470 U.S. 532,
535 (1985). The Court held that the Board violated the security guard’s due process rights by not
providing him a “pretermination opportunity to respond” to the charges against him. Id. at 547.
In so holding, the Court noted that “the significance of the private interest in retaining
employment cannot be gainsaid” and that it had “frequently recognized the severity of depriving
a person of the means of livelihood.” Id. at 543 (collecting cases).
But the Court qualified this interest in Gilbert v. Homar, 520 U.S. 924 (1997). In Gilbert,
the Court held that a state university did not violate a tenured police officer’s due process rights
when it suspended him without a pre-suspension hearing after he was charged with drug-related
offenses. See id. at 926–27. While the Court acknowledged “the severity of depriving someone
of the means of his livelihood,” it explained that “account must be taken of ‘the length’ and
‘finality of the deprivation[.]’” Id. at 932 (emphases omitted). The court reasoned:
Unlike the employee in Loudermill, who faced termination, respondent faced only
a temporary suspension without pay. So long as the suspended employee receives
a sufficiently prompt postsuspension hearing, the lost income is relatively
insubstantial (compared with termination), and fringe benefits such as health and
life insurance are often not affected at all[.]
Id. (emphases omitted). Gilbert would seem to undercut the private interest in Johnson’s case
because Johnson received a hearing just three days after having her license suspended. That
said, important differences between Gilbert’s facts and Johnson’s well-pleaded allegations limit
its relevance here.
First, unlike the suspension of the employee in Gilbert, who may have retained “fringe
benefits such as health and life insurance” in his job, Johnson alleges that the suspension of her
license “was specifically designed to destroy the commercial interests of [her] business.” (R. 15-
1, Proposed Second Am. Compl. at PageID #250 ¶ 27.) On appeal, Johnson elaborates that her
license “means all or nothing for the continued operation of her southern soul food business.”
No. 17-2519 Johnson v. Morales, et al. Page 12
(Johnson’s Opening Br. at 22.) It seems unlikely, therefore, that Johnson could have counted on
the availability of “fringe benefits” to provide her a financial safety net while awaiting a final
decision.
Second, roughly one month after his suspension, the employee in Gilbert resumed
working for the university, although as a lower-paid groundskeeper, and he received backpay
from the date his suspension took effect. 520 U.S. at 927. In Johnson’s case, the City took a
little over two months to make its decision upholding the suspension of her business license.6
And even if the City had ruled in Johnson’s favor, the City has given no indication that she
would have been entitled to any compensation for lost income attributable to the suspension.
Third, and finally, the Court assumed that the employee’s lost income in Gilbert would
be “relatively insubstantial” since the university had only suspended and not terminated him. Id.
at 925. But it is unclear what difference it makes that the City suspended Johnson’s license
rather than revoked it. We have not found (and Defendants have not cited) any authority that
explains what the formal or practical difference is between a suspended license and a revoked
license. No provision in Saginaw’s Code of Ordinances conveys that suspended licenses are any
easier to renew than revoked licenses, for example. Rather, a person who has had her license
suspended or revoked may only renew her license by applying for a new license like someone
seeking a license for the first time. See § 110.07.
The Government’s Interest. We also accept that the government has a substantial interest
in ensuring the safety of its citizens, especially where it concerns violent gang activity. But in
assessing the government’s interest, we must consider “the fiscal and administrative burdens that
[] additional or substitute procedural requirements would entail.” Mathews, 424 U.S. at 335.
Given that the City held a hearing within three days of the shooting (after suspending Johnson’s
6Contrary to the district court’s opinion, the Supreme Court’s precedents show that we measure the extent
of the private interest from the time of the suspension to the time a decision has been reached in the post-suspension
proceeding. See Mathews, 424 U.S. at 342 (“Since a terminated recipient must first obtain a reconsideration
decision as a prerequisite to invoking his right to an evidentiary hearing, the delay between the actual cutoff of
benefits and final decision after a hearing exceeds one year.”); United States v. James Daniel Good Real Prop.,
510 U.S. 43, 56 (1993) (“And even if the ultimate judicial decision is that the claimant was an innocent owner, or
that the Government lacked probable cause, this determination, coming months after the seizure, would not cure the
temporary deprivation that an earlier hearing might have prevented.”) (internal quotation marks omitted).
No. 17-2519 Johnson v. Morales, et al. Page 13
license), it does not appear as though it would have been impractical for the City to have held a
hearing before suspending her license. See James Daniel Good Real Prop., 510 U.S. at 59.
Nor would doing so appear to create an undue financial burden on the government.
In Mathews, for instance, the Court found that the burden of requiring a pre-suspension hearing
“would not be insubstantial” due, in part, to the expense of providing benefits to ineligible
recipients pending decision. 424 U.S. at 347. But here, the City loses no money by allowing
Johnson to stay in business. On the contrary, the financial risk of an erroneous decision is solely
for her to bear. So providing Johnson a pre-suspension hearing would likely not “have been
unduly burdensome, especially given the property interest at stake, namely continued operation
of business.” Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 613 (6th Cir. 2006); see also
Freeman v. Blair, 862 F.2d 1330, 1332 (8th Cir. 1988) (holding that the summary suspension of
a business license violated due process, “especially in view of the fact that defendants have made
no showing that a predeprivation hearing was impracticable or impossible”).
The Risk of an Erroneous Deprivation. Without a pre-deprivation hearing, due process
generally requires some other way to ensure that reasonable grounds exist to support the
deprivation of a property interest. See Gilbert, 520 U.S. at 934; Mallen, 486 U.S. at 240(collecting cases).
Mathews reasoned that a pre-deprivation hearing is more appropriate where “a wide
variety of information may be deemed relevant, and issues of witness credibility and veracity []
are critical to the decisionmaking process.” 424 U.S. at 343–44. The flip side is that a pre-
deprivation hearing is less appropriate where the decision turns “upon routine, standard, and
unbiased” information. Id. at 344 (internal quotation marks omitted).
Here, the decision to suspend Johnson’s license based on her alleged failure “to maintain
adequate security to prevent or discourage unlawful behavior” presumably turned on “a wide
amount of information.” (R. 5, Am. Compl. at PageID #54; R. 5-1, Am. Compl. Ex. A at PageID
#61.) We also know that the government presented witness testimony at her post-deprivation
hearing and that the hearing had to be adversarial. See § 110.06(D), (F). Thus, we can infer that
“issues of witness credibility and veracity” were critical in the decision to suspend her license.
No. 17-2519 Johnson v. Morales, et al. Page 14
A pre-deprivation hearing may also be unnecessary where some other pre-deprivation
process ensures that reasonable grounds exist to support the deprivation. See Gilbert, 520 U.S. at933–34. In Gilbert, that was accomplished by the employee’s arrest and the filing of charges
against him. Id. at 934. As the court noted, the arrest and charges ensured that the suspension
was not “baseless or unwarranted” because “an independent third party ha[d] determined that
there [was] probable cause to believe the employee [had] committed a serious crime.” Id.; see
also Mallen, 486 U.S. at 241 (noting that a hearing was not required before the government
could suspend a bank official where “[a] grand jury had determined that there was probable
cause to believe that [he] had committed a felony”); Tanasse v. City of St. George, 172 F.3d 63,
1999 WL 74020, at *4 (10th Cir. 1999) (table) (holding that the government did not violate due
process in revoking a business license without a pre-deprivation hearing where “[t]he revocation
followed directly from [the licensee’s] conviction in a court of law, with all its attendant
procedures and safeguards”).
Here, in contrast, the City has not arrested or charged anyone for the shooting that
prompted the suspension. Nor is there any other indication that the City had reasonable grounds
to suspend Johnson’s license without first affording her a pre-suspension hearing.7 On the
contrary, Johnson maintains that the decision to suspend her license is “premised on numerous
faulty assumptions and lack of proof.” (R. 15-1, Proposed Second Am. Compl. at PageID #253
¶ 56.) Indeed, she alleges that the City decided to suspend her license rather than apprehend the
individuals responsible for the shooting to “shift blame from its poorly-staffed and ineffective
police department[.]” (Id. at PageID #250 ¶ 25.)
The government and private interests are both weighty. So this factor tips the Mathews
balance in Johnson’s favor. At this stage of the litigation, we cannot know whether the
government ensured that there were reasonable grounds to suspend Johnson’s license without
affording her a pre-suspension hearing. And, under these circumstances, the value of a pre-
suspension hearing in mitigating the risk of an erroneous deprivation was likely high. Thus, we
7The complaint makes a passing reference to an investigation that occurred between the time of Johnson’s
suspension and her initial administrative hearing. But given that this appeal comes to us on a motion to dismiss, we
have no details of what that investigation consisted of and whether it ensured there were reasonable grounds to
suspend Johnson’s license.
No. 17-2519 Johnson v. Morales, et al. Page 15
hold that Johnson has stated a viable procedural due process claim based on the government’s
failure to provide her some type of hearing before suspending her license.
D.
In Count III of Johnson’s first amended complaint and Count VIII of her proposed second
amended complaint, Johnson alleges that section 110.06(D) of Saginaw’s Code of Ordinances
unconstitutionally places the burden on the licensee to show her suspension is unwarranted.
Unlike the majority, I do not read Johnson’s complaint as an as-applied challenge. Because
Johnson’s argument is a facial challenge to the ordinance, she must show that “no set of
circumstances exists under which the [ordinance] would be valid.” United States v. Salerno,
481 U.S. 739, 745 (1987). So I respectfully depart from the majority’s conclusion that the
ordinance offends due process.
Johnson does not explicitly label her claim a facial challenge but nearly all of her
allegations concern the ordinance’s application generally. Only one allegation mentions the
ordinance’s application to her own hearing. (See R. 15-1, Proposed Second Am. Compl. at
PageID #261 ¶ 136 (alleging that the ordinance “result[ed] in a set of circumstance[s] whereby
Defendant Timothy Morales and/or Defendant City of Saginaw never had to legally support or
prove the soundness or correctness of the immediate suspension”).) But this allegation is more
appropriately viewed as a challenge to the reasonableness of Jordan’s decision. And we consider
that challenge in our review of Johnson’s substantive due process claim.
Either way, section 110.06 seems to place at least some, if not the entire, burden of proof
on the licensee at the first post-suspension hearing. That reading is based on sections 110.06(C)
and 110.06(D). The former requires the City Manager to notify the licensee to “show why”—at
the hearing—her license should not be suspended. The latter reiterates that the licensee shall
“show cause” for why the license or permit should not be suspended at her hearing. I say
“some” because section 110.06(A) only authorizes the City Manager to suspend a license “for
cause.” And section 110.06(B) provides a non-exhaustive list of what constitutes “cause.” So
section 110.06 could be read as placing at least a preliminary burden of proof on the City
Manager, with the burden swinging back to the defendant at some point in the hearing. In any
No. 17-2519 Johnson v. Morales, et al. Page 16
event, the parties do not dispute that the ordinance places the burden of proof on the licensee. So
I agree with the majority that Johnson plausibly alleges the burden shifted to her, the licensee.
But I do not believe that section 110.06 violates due process on its face. As a result, I depart
from the majority’s position that the statute, as applied, violates due process.
The Supreme Court has said several times that outside the context of the criminal law,
“where special concerns attend, the locus of the burden of persuasion is normally not an issue of
federal constitutional moment.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 58 (2005)
(quoting Lavine v. Milne, 424 U.S. 577, 585 (1976)).
And the cases Johnson cites do not contravene that general rule. Some are cases
involving statutes that created irrational presumptions of ultimate facts based on facts proven.
See W. & A.R.R. v. Henderson, 279 U.S. 639, 644 (1929); Minski v. United States, 131 F.2d 614,
616 (6th Cir. 1942). But section 110.06(D) does not establish any such presumption. It only
requires the licensee to “show cause” why her license should not be suspended. Other cases that
Johnson cites address the burden of proof in a criminal proceeding. See Patterson v. New York,
432 U.S. 197, 210 (1977); In re Winship, 397 U.S. 358, 363 (1970). But her proceeding was not
criminal. Johnson also cites Speiser v. Randall, 357 U.S. 513 (1958), where the Court held that
requiring claimants seeking tax exemptions to show they did not advocate for the violent
overthrow of the government violates due process. Id. at 529. There, however, it was essential
that the law operated as a restraint on free speech. See id. at 526 (“Where the transcendent value
of speech is involved, due process certainly requires in the circumstances of this case that the
State bear the burden of persuasion . . . .”). Here, Johnson does not allege that section 110.06(D)
restrains any speech. Nor is there any indication on its face that it does.
Even Speiser acknowledged that it is generally “within the power of the State to regulate
. . . the burden of producing evidence and the burden of persuasion . . . .” Id. at 523. And we
have stated that shifting the burden of proof to the responding party in a quasi-judicial
proceeding, like Johnson’s suspension hearing, does not implicate due process concerns. See In
re Cook, 551 F.3d 542, 552 (6th Cir. 2009).
No. 17-2519 Johnson v. Morales, et al. Page 17
Consistent with these authorities, I would hold that section 110.06(D) does not violate
due process by placing the burden of proof on the licensee at the first post-suspension hearing.
E.
Having considered each of Johnson’s claims that overlap both of her complaints, we now
turn to the claims that she alleges exclusively in her proposed second amended complaint.
In Count I of her proposed second amended complaint, Johnson challenges the
constitutionality of section 110.06(E).8 That ordinance regulates the process by which a licensee
can appeal the suspension or revocation of her license after her initial post-suspension hearing.
See § 110.06(E).
First, Johnson argues that section 110.06(E) violates due process because it permits the
appointment of “non-detached, non-neutral decision makers . . . by a direct supervisor who has
the ability to fire each arbiter from their regular jobs at the City of Saginaw.” (R. 15-1, Proposed
Second Am. Compl. at PageID #254 ¶ 75(a).) But her argument depends on the same “command
influence” theory we rejected above. (See Johnson’s Opening Br. at 32.) And it is similarly
unavailing here.
Second, Johnson argues that section 110.06(E) is unconstitutional because it allegedly
permits “[t]he appointment of panelists who [] lack [the] training, experience, and/or education
to understand and properly adjudicate the factual and legal arguments placed before them.”
(R. 15-1, Proposed Second Am. Compl. at PageID #255 ¶ 75(b).) As the district court noted,
Johnson seems to argue that due process entitled her to a panel consisting of attorneys or other
persons with sophisticated legal knowledge. Johnson disputes this in her opening brief, yet she
still argues that the members of her hearing panel “[were] supposed to be able to know the rules
of statutory construction, the rules of vagueness, [and] constitutional standards.” (See Johnson’s
Opening Br. at 34.)
8Again, Johnson is unclear about whether she is challenging the ordinance on its face or as applied to her
case. In any event, if she is arguing that the ordinance is facially unconstitutional, her claim necessarily fails
because she cannot show that the ordinance was applied unconstitutionally to her. See Women’s Med. Prof’l Corp.
v. Voinovich, 130 F.3d 187, 194 (6th Cir. 1997) (“[A] facial challenge to a statute should fail if the statute has a
constitutional application.”).
No. 17-2519 Johnson v. Morales, et al. Page 18
Johnson cites no legal authority to support her argument, but we find Morrissey
instructive. There, the Court held that due process does not require decisionmakers in parole-
revocation hearings to be lawyers or judicial officers. See Morrissey, 408 U.S. at 486, 489.
It reasoned that “granting and revocation of parole are matters traditionally handled by
administrative officers.” Id. at 486.
Likewise, the City’s ordinances do not suggest that persons with sophisticated legal
knowledge are involved in the decision to approve an application for a business license. Instead,
officials like the City’s police chief, fire chief, and health officers participate in that decision.
§ 110.04(D)–(E). So, as in parole-revocation decisions, the decision to grant a business license
in Saginaw is a matter “traditionally handled by administrative officers.” We thus hold that due
process did not require Johnson’s appeal panel to consist of persons with sophisticated legal
knowledge.
Third, Johnson argues that section 110.06(E) unconstitutionally granted the appeal panel
“unstructured, unlimited, and arbitrary discretion to determine whether to affirm or [reverse]”
Jordan’s decision upholding the suspension order. (R. 15-1, Proposed Second Am. Compl. at
PageID #255 ¶ 75(c).) By its plain terms, section 110.06(E) does no such thing. Rather, it
provides that “[t]he factual record made in the hearing [below], or license or permit
application . . . shall constitute the basic record for the appeal.” § 110.06(E). It also states that
oral argument “as to the relevant factual and legal issues shall be permitted[,]” and that the panel
may allow “the presentation of additional evidence by a majority vote.” Id.
True, section 110.06(E) does not specify what standard of review the panel should apply.
But due process does not regulate state administrative procedure in such granular detail. “The
fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” See, e.g., Mathews, 424 U.S. at 333 (quoting Armstrong v. Manso,
380 U.S. 545, 552 (1965)). Johnson concedes that Morales provided her notice of her license
suspension and that she had two opportunities to respond—the first at the initial hearing and the
second at the appeal hearing. Section 110.06(E) details procedures to facilitate a meaningful
opportunity for the licensee to be heard before the appeal panel, while section 110.06(D)
specifies even more extensive procedures regulating how the initial hearing is to be conducted.
No. 17-2519 Johnson v. Morales, et al. Page 19
See § 110.06(D)–(E). And Johnson does not allege that she was denied any process these
ordinances entitled her. We are thus satisfied that Johnson’s appeal was conducted in
accordance with the minimum requirements of due process.
Fourth, and last, Johnson argues that section 110.06(E) is unconstitutional because of the
“lack of any requirement of (or the failure of actually providing) a written statement by the
appeal board panelists as to the reasons for their affirmance vote.” (Johnson’s Opening Br. at
31). Even if we assume that the appeal panel needed to provide her a written statement, see
Morrissey, 408 U.S. at 489, her argument misses the mark for a few reasons.
Section 110.06(E) states that “the decision of the appeal panel shall be reached by
majority vote and mailed to the parties within seven days of the conclusion of the hearing.”
§ 110.06(E) (emphasis added). So the ordinance contemplates that the appeal panel will prepare
a written statement of its decision because it requires the decision to be mailed to the licensee.
And contrary to her allegation, the record reveals that Johnson received a written statement of the
panel’s decision explaining that it was affirming the decision to suspend Johnson’s license.9
Granted, the statement does not detail its reasons for affirming the decision. This was not
the only written statement that Johnson received, however. Section 110.06(D)(10) requires that
the hearing officer at the initial administrative hearing “make written findings of fact based upon
the competent evidence and testimony admitted during the hearing.” § 110.06(D)(10). And
Johnson concedes that she received Jordan’s written findings of fact on July 14, 2017. Johnson
has not established that she was entitled to any more due process than what she received at her
initial hearing. So her due process rights were not violated just because the appeal panel did not
thoroughly explain why it was affirming Jordan’s decision.
F.
In Count II of her proposed second amended complaint, Johnson alleges that section
110.06(F) of Saginaw’s Code of Ordinances is unconstitutionally vague both on its face and as
9Defendants attached this document to their response to Johnson’s motion for leave to file her second
amended complaint. Although courts seldom consider factual information outside the complaint, the district court
properly considered this document since it was “referred to in the Complaint and [is] central to the claims contained
therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
No. 17-2519 Johnson v. Morales, et al. Page 20
applied to her case. Section 110.06(F) provides for the immediate suspension of a business
license where the City Manager or his designee determines that such a suspension is necessary
and “in the interest of the public health, morals, safety, or welfare . . . .” § 110.06(F). Johnson
argues that the ordinance gives the City Manager authority “to exercise the entirety of all state
police power in the manner, mode, and interpretation he sees fit,” and so “fails to put Johnson on
notice” of what conduct is proscribed. (See Johnson’s Opening Br. at 39.) But because Johnson
does not claim that the Ordinance implicates her First Amendment rights, and the Ordinance
does not impose criminal sanctions,10 she only has standing to challenge its purported vagueness
as applied to the facts of her case. See New York v. Ferber, 458 U.S. 747, 767–69 (1982); Belle
Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 557 (6th Cir. 1999).
“A statute can be impermissibly vague for either of two independent reasons. First, if it
fails to provide people of ordinary intelligence a reasonable opportunity to understand what
conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory
enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000) (citing Chicago v. Morales, 527 U.S.
41, 56–57 (1999)). That said, the Supreme Court has made clear that the void for vagueness
doctrine is applied less strictly to economic regulations. See Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498–99 (1982).11
Moreover, our own court has upheld the validity of laws challenged on vagueness
grounds that are phrased similarly to section 110.06(F). For example, we held that a statute
prohibiting persons from discharging substances into state waters that are or may “become
10To
be sure, section 110.99 provides that the violation of any provision of Chapter 110 of Saginaw’s Code
of Ordinances constitutes a civil infraction and imposes a civil fine on offenders. See § 110.99. But even if the
sanction were criminal, a licensee would presumably only be sanctioned for continuing to operate a business after its
license had been suspended, not because the City Manager suspended the business under section 110.06(F).
11The Supreme Court justified subjecting economic regulation to a less strict vagueness test on these
grounds:
[I]ts subject matter is often more narrow, and . . . businesses, which face economic
demands to plan behavior carefully, can be expected to consult relevant legislation in advance of
action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the
regulation by its own inquiry, or by resort to an administrative process. The Court has also
expressed greater tolerance of enactments with civil rather than criminal penalties because the
consequences of imprecision are qualitatively less severe.
Village of Hoffman Estates, 455 U.S. at 498–99.
No. 17-2519 Johnson v. Morales, et al. Page 21
injurious to the public health, safety, or welfare” was “sufficiently specific to provide a fair
warning that certain kinds of conduct are prohibited.” United States v. Akzo Coatings of Am.,
Inc., 949 F.2d 1409, 1441 (6th Cir. 1991) (citations omitted). And the statute in Akzo contained
three of the four terms that Johnson argues make section 110.06(F) vague: “health,” “safety,”
and “welfare.”
And our decision in Fowler v. Bd. of Educ. of Lincoln Cty., 819 F.2d 657 (6th Cir. 1987),
clarifies that the fourth term that Johnson challenges—morals—does not make the ordinance
void for vagueness. There, we concluded that a Kentucky statute proscribing “conduct
unbecoming a teacher” was not unconstitutionally vague as applied to a teacher who “had a
fifteen-year-old student show a controversial, highly suggestive and somewhat sexually explicit
movie to a group of high school students aged fourteen to seventeen.” Id. at 665. In so holding,
we noted that some of the “most conscientious of codes that defined prohibited conduct of
employees includes ‘catchall’ clauses prohibiting employee ‘misconduct,’ ‘immorality,’ or
‘conduct unbecoming.’” Id. (quoting Arnett v. Kennedy, 416 U.S. 134, 161 (1974)).
Our decisions in Akzo and Fowler show that a person of “ordinary intelligence” would
understand that section 110.06(F) applies when gangsters shoot at and into a person’s business.
This type of conduct plainly concerns the “health,” “safety,” or “welfare” of the residents of
Saginaw. So Johnson should have been on notice that the City could have suspended her license
in the wake of such gang violence to safeguard those interests. We therefore hold that section
110.06(F) is not unconstitutionally vague as applied to Johnson’s case.
G.
In Count III of Johnson’s proposed second amended complaint, Johnson alleges a
selective enforcement claim against Defendants. In support of her claim, she alleges that the
City did not suspend or revoke the licenses of two other businesses where shootings occurred.
To succeed on a selective-enforcement claim, a plaintiff must prove that (1) he or she
belongs to an identifiable group singled out for prosecution even though the state actor did not
“prosecute persons not belonging to that group in similar situations”; (2) the state actor
prosecuted the person with a discriminatory purpose; and (3) the prosecution had
No. 17-2519 Johnson v. Morales, et al. Page 22
“a discriminatory effect on the group [] the [plaintiff] belongs to.” Libertarian Party of Ohio v.
Husted, 831 F.3d 382, 394–95 (6th Cir. 2016) (quoting Stemler v. City of Florence, 126 F.3d
856, 873 (6th Cir. 1997)). Johnson fails to allege facts that, taken as true, would satisfy any of
these elements.
Johnson has not alleged that the City singled her out for belonging to an identifiable
group. Although she claims her suspension was based on an “unjustifiable standard premised on
arbitrary classification,” (R. 15-1, Proposed Second Am. Compl. at PageID #257 ¶ 94), this is a
conclusory assertion that does not identify her as belonging to any specific group. Johnson has
also not alleged that the City initiated its enforcement action with a discriminatory purpose or
that the City’s enforcement action had a discriminatory effect on any group to which she
belongs.
Even so, the majority construes Johnson’s claim as an equal protection claim based on
the “class-of-one” theory recognized in Village of Willowbrook v. Olech, 528 U.S. 562 (2000).
In Olech, the Court stated that such a claim could be brought “where the plaintiff alleges that she
has been intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Id. at 564.
The majority concludes that Johnson has plausibly alleged a class-of-one claim.
I respectfully disagree. Before I explain why, I pause to question whether such a claim is even
cognizable here. In Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008), the Court held that
class-of-one claims are not cognizable in the public-employment context. A substantial part of
its reasoning, worth quoting at length, appears applicable to this case:
There are some forms of state action, however, which by their nature involve
discretionary decisionmaking based on a vast array of subjective, individualized
assessments. In such cases the rule that people should be “treated alike, under
like circumstances and conditions” is not violated when one person is treated
differently from others, because treating like individuals differently is an accepted
consequence of the discretion granted. In such situations, allowing a challenge
based on the arbitrary singling out of a particular person would undermine the
very discretion that such state officials are entrusted to exercise.
Id. at 603.
No. 17-2519 Johnson v. Morales, et al. Page 23
The Court’s reasoning suggests that class-of-one claims are not cognizable where the
relevant state action “involve[s] discretionary decisionmaking based on a vast array of
subjective, individualized assessments.” Id. And the Court signaled that its holding would apply
outside the public employment context when it offered a non-employment hypothetical involving
a traffic officer. See id. at 603–04. In that hypothetical, the officer tickets just one speeding car
on a busy highway even though not every offender can be ticketed, and the offenders are
indistinguishable from one another. Id. The Court explained that “allowing an equal protection
claim on the ground that a ticket was given to one person and not others, even if for no
discernible or articulable reason, would be incompatible with the discretion inherent in the
challenged action.” Id. at 604. More pithily, the Court put it: “It is no proper challenge to what
in its nature is a subjective, individualized decision that it was subjective and individualized.”
Id.The City’s decision to suspend Johnson’s license is exactly the type of “subjective,
individualized decision” contemplated by Engquist. We need only look to the examples Johnson
discusses in her complaint to see why.
The first example describes a shooting at Dom’s Food Market, a liquor store in Saginaw,
where Johnson alleges that a man was killed and that the “gun fire exceed[ed] the damage caused
at [Johnson’s] property.” (R.15-1, Second Am. Compl. at PageID #256 ¶ 91.) The second
describes a shooting at a Saginaw hospital where a patient fired a single gunshot and nobody was
injured.
The reasons why the City might have chosen to suspend Johnson’s license but not the
licenses of these businesses are many. But take just a few: (1) There is no indication that the
shootings at the liquor store or hospital were gang-related, and “[t]he City . . . could rationally
conclude that gang-related violence is substantially more likely to recur than other gun-
violence.” (R. 20, Op. and Order at PageID #394.); (2) the risk of mass casualties could be
higher at Johnson’s business than at Dom’s Food Market because idle patrons enjoying a meal
are probably easier targets than those simply passing through a liquor store; (3) the previous risk
is even greater in Johnson’s case because she often rents out her restaurant to private parties
seeking event space; (4) only one gunshot was fired at the hospital while several were fired at
No. 17-2519 Johnson v. Morales, et al. Page 24
Johnson’s restaurant; and (5) any security benefits gained from suspending the hospital’s
business license may have been outweighed by the public health benefits lost because of
suspension. The list goes on and on.
Something else should be apparent by now. Johnson can’t plausibly allege a class-of-one
claim even if it is cognizable. Recall Johnson’s burden under rational-basis review. As relevant
here, Johnson must “negat[e] every conceivable basis which might support the government
action[.]” Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012) (emphasis added)
(quoting Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006)). But as the
preceding list shows, she plainly can’t do that. And that makes sense. If a decision is truly
subjective and individualized, there are any number of rational (if not wise) bases that might
support the decision. For these reasons, I would hold that Johnson has failed to state a plausible,
if even cognizable, equal protection claim.
H.
In Count V of Johnson’s proposed second amended complaint, she alleges that her due
process rights were violated because Jordan “had secret, ex parte communications with Chief
Ruth” about her case outside her or her counsel’s “presence or knowledge.” (See R.15-1, Second
Am. Compl. at PageID #258 ¶ 1123.) To support her claim, she attaches an email chain
(obtained through FOIA requests) that shows Jordan asking Ruth whether Ruth has any notes or
written agreements relating to a meeting Ruth attended with Johnson. Ruth responded that he
had no such documentation and that he was unsure if anyone else who attended the meeting did.
(Id.) The email also shows that Ruth copied the City’s Office of Management and Budget
director in his response to Jordan. The director responded that she did not “document anything,”
although she remembered attending the meeting. (Id. at PageID #294.) She also stated that she
had forwarded Jordan’s email to two other individuals who may have had notes from the
meeting.
On appeal, Johnson relies only on Morrissey for the proposition that minimal due process
entails the “right to confront and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation).” (Johnson’s Opening Br. at 41.)
No. 17-2519 Johnson v. Morales, et al. Page 25
But Morrissey examined what process was due in the context of a parole-revocation hearing. See
408 U.S. at 489. It did not purport to set forth the minimum requirements of due process in
every type of state and local administrative hearing.
Even if Morrissey applies here, Johnson does not allege that she was denied the right to
confront and cross-examine adverse witnesses at her hearing. Indeed, the suspension order
informed Johnson that she could “cross-examine any witnesses and examine all evidence” at her
hearing. (R. 15-1, Proposed Second Am. Compl. at PageID #267.) And nothing in her
complaint alleges that she was denied that opportunity.
Outside the context of a criminal proceeding, few cases address the permissible scope of
ex parte communications under the Due Process Clause. But the cases we have found suggest
that hearing officers in local administrative proceedings do not violate due process when they
have ex parte communications, especially absent a showing of prejudice. See, e.g., Massman
Constr. Co. v. Tenn. Valley Auth., 769 F.2d 1114, 1126 (6th Cir. 1985); Stone v. FDIC, 179 F.3d
1368, 1377 (Fed. Cir. 1999).
None of the ex parte communications Johnson attaches to her complaint reveal she was
prejudiced by such communications. Nor does she allege that there are other ex parte
communications that would show this prejudice. The communications she attaches merely show
Jordan seeking to confirm whether Ruth or others had documented a certain meeting with
Johnson. And the communications suggest that Ruth had already described the meeting at
Johnson’s hearing, where she presumably had a chance to cross examine him. We therefore hold
that Jordan’s alleged ex parte communications did not violate Johnson’s due process rights.
No. 17-2519 Johnson v. Morales, et al. Page 26
I.
Last, in Count IX of Johnson’s proposed second amended complaint, Johnson alleges a
substantive due process claim. Essentially, she claims that the City’s decision to suspend her
license “due to the illegal actions of third parties [is] arbitrary and capricious,” so it violates
substantive due process. (R. 15-1, Proposed Second Am. Compl. at PageID #262.)
“To establish a violation of substantive due process, a plaintiff must first establish the
existence of a constitutionally-protected property or liberty interest.” Silver v. Franklin Twp.,
Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992). Johnson has such an interest in her
business license. See United Pet Supply, 768 F.3d at 486.
Next, “a plaintiff must show that the state administrative agency has been guilty of
‘arbitrary and capricious action’ in the strict sense[.]”12 Pearson v. City of Grand Blanc,
961 F.2d 1211, 1221 (6th Cir. 1992) (quoting Stevens v. Hunt, 646 F.2d 1168, 1170 (6th Cir.
1981)). This means that the plaintiff must show that the administrative decision “is not
supportable on any rational basis or is willful and unreasoning action, without consideration and
in disregard of the facts or circumstances of the case.” Id. (internal quotation marks and
alterations omitted).13
12The use of the phrase “arbitrary and capricious” in the context of substantive due process is slightly
confusing, given its more familiar and common usage in the context of agency action in administrative law. But it is
clear that our cases regard “arbitrary and capricious” as used in the substantive due process context as a stricter
standard to meet. Compare Maple Drive Farms Ltd. P’ship v. Vilsack, 781 F.3d 837, 851 n.22 (6th Cir. 2015)
(noting that, in federal administrative law, “arbitrary-and-capricious” review and “substantial-evidence” review
“have a tendency to converge, and the difference between the two is ‘largely semantic’”) (alteration omitted) with
Pearson, 961 F.2d at 1221 (6th Cir. 1992) (explaining that, in the context of substantive due process, “arbitrary and
capricious” review is “much narrower” than “substantial evidence” review).
13The majority contends that Johnson’s substantive due process claim can succeed under Pearson even if
the City had a factual basis for shuttering Johnson’s business. To make that argument, they claim “[s]ubstantive due
process . . . may be violated even if the state-defendant commits no factual error.” Infra 33 n.4. Yet the language of
Pearson does not easily accord with the majority’s conclusion. Pearson provides just two ways that a state’s
administrative action may violate substantive due process: the state action will be upheld unless it is (1) “not
supportable on any rational basis” or (2) a “willful and unreasoning action, without consideration and in disregard of
the facts or circumstances of the case.” Pearson, 961 F.2d at 1221 (internal quotation marks omitted). So we must
travel one of these two paths to find that the City violated Johnson’s substantive due process rights.
Thus, assuming the City had a factual basis for its actions, it could have only violated Johnson’s substantive
due process rights by acting irrationally. Under Pearson generally, it is “extremely rare for a federal court properly
to vitiate the action of a state administrative agency as a violation of substantive due process.” Id. at 1222. And
No. 17-2519 Johnson v. Morales, et al. Page 27
In Pearson, we characterized the degree of irrationality a plaintiff must show as “extreme
irrationality” that “shocks the conscience.” Id. at 1222. We also emphasized the limited scope
of our review. While we said we could look at the evidence underlying the administrative
decision, we also said the decision could “not be set aside as arbitrary and capricious if there is
‘some factual basis’ for the administrative action.” Id. (quoting Evans v. Page, 516 F.2d 18, 21
(8th Cir. 1975)). And we held that the application of these standards was “a matter of law for the
court.” Id.14
I cannot conclude that the City’s decision to suspend Johnson’s license lacks a factual
basis. At this stage of the litigation, we must accept all of Johnson’s well-pleaded allegations in
her complaint as true—and I do. According to Johnson, the City decided to suspend her license
after gangsters shot at and into her restaurant one night. She thus concedes that there was “some
factual basis” underlying the City’s decision to suspend her license.
What Johnson really contests is whether the decision to suspend her license based on that
fact is arbitrary and capricious. In other words, Johnson contends that the City’s decision to
suspend her license “due to the illegal actions of third parties [is] arbitrary and capricious.”
(R. 15-1, Proposed Second Am. Compl. at PageID #262; see also Johnson’s Opening Br. at 48
(“Permanently destroying Johnson’s restaurant and cafe business because of the acts of third
substantive due process violations should be even rarer, perhaps nonexistent, when the government provides a
factual basis for its action. Id. (“The state decision may not be set aside as arbitrary and capricious if there is some
factual basis for the administrative action.”) (internal quotation marks omitted).
Even so, the majority interprets Pearson to permit finding a substantive due process violation for a “willful
and unreasoning act,” even if the government offers a factual basis for its decision. That’s not what Pearson says.
But that misreading stems from the majority’s premise that Pearson recognizes “various contexts” for substantive
due process violations. Infra 33n.4. Yet this ignores how Pearson repeatedly insists on strict and limited
substantive due process inquiries. And Pearson also relies on a framework that defers to fact-based state actions.
So the majority’s broad interpretation of Pearson conflicts with our precedent. I respectfully disagree with that
approach.
14We should read Pearson narrowly. Otherwise we risk subjecting every state administrative decision to
federal court review. And that would turn our system of separated powers and dual sovereignty on its head. Out of
concern for this risk, courts have generally limited such challenges to a narrow set of situations, including: self-
dealing or corruption on the part of a state official; disparate treatment based on racial or ethnic status or
constitutionally protected activity; and “conduct which is intentionally injurious and knowingly committed without
justification.” 12 Bus. & Com. Litig. Fed. Cts. § 127:8 (4th ed. 2018) (internal quotation marks omitted); see also
Bell v. Ohio State Univ., 351 F.3d 240, 251 (6th Cir. 2003) (“Where . . . there is no equal protection violation, we
can see no basis for finding that a medical student’s interest in continuing her medical school education is protected
by substantive due process.”).
No. 17-2519 Johnson v. Morales, et al. Page 28
party criminals is and has to be the epitome of the violation of substantive due process.”).)
In Pearson, however, we were clear that the inquiry into whether a state’s administrative
decision is arbitrary and capricious and whether the decision has some factual basis in the record
is the same. 962 F.2d at 1222.
Johnson concedes that the City had a factual basis for suspending her business license—
that a violent, gang-related shooting occurred on her restaurant’s premises. And the City’s
decision to suspend her license based on that fact cannot be characterized as an instance of
“extreme irrationality.” See Tri-Cty. Concrete Co. v. City of N. Royalton, 181 F.3d 104, 1999
WL 357789, at *3 (6th Cir. 1999) (table) (“Municipal defendants do not act with ‘extreme
irrationality’ if there is evidence in the record that supplies a reason why they might have taken
the action they did.” (internal quotation marks omitted)). Nor is it a decision so irrational as to
“shock the conscience.” EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 862 (6th Cir.
2012) (equating behavior that would “shock the conscience” to “behavior . . . so shocking as to
shake the foundations of this country”).
The majority attempts to distinguish these cases on their facts. What the majority does
not and likely cannot do is cite a single Sixth Circuit case that applies Pearson to hold that
government action violates substantive due process. That is because, until today, we do not
appear to have ever done so. I doubt it is wise to start in a case where the plaintiff concedes that
the government had “a reason why [it] might have taken the action [it] did.” Tri-Cty. Concrete
Co., 1999 WL 357789, at *3 (internal quotation marks omitted). But, at the end of the day, it is
unsurprising that three judges can’t agree on questions like whether government action is “so
shocking as to shake the foundations of this country.” EJS Properties, 698 F.3d at 862. For a
doctrine that, at times, evokes as much clarity as the phrase “green pastel redness,”15 that is par
for the course.
Respectfully, I dissent.
15John Hart Ely, Democracy and Distrust 18 (1980).
No. 17-2519 Johnson v. Morales, et al. Page 29
V.
For these reasons, and the reasons expressed in the separate majority opinion, we
AFFIRM the judgment of the district court except on Johnson’s claims that Defendants violated
her: (1) rights to procedural due process by denying her a pre-suspension hearing; (2) rights to
procedural due process by shifting to her the burden of showing cause; (3) rights to equal
protection based on her class-of-one theory; and (4) rights to substantive due process.16 For
those claims, we REVERSE the judgment of the district court and REMAND for proceedings
consistent with this opinion.
16As for Johnson’s motion seeking leave to file her second amended complaint, our opinion is limited to
the district court’s denial of that motion on futility grounds.
No. 17-2519 Johnson v. Morales, et al. Page 30
____________________________
OPINION/CONCURRENCE
____________________________
HELENE N. WHITE, Circuit Judge. I write separately to express the majority view with
respect to Johnson’s claims (1) that the ordinance shifted the burden to her in violation of due
process; (2) that the City’s suspension of her license violated her substantive-due-process rights;
and (3) that the City and Timothy Morales violated her right to equal protection under a “class of
one” theory. First, because Johnson plausibly alleges an as-applied procedural-due-process
violation stemming from the combination of the absence of a pre-deprivation hearing and a
presumption that Morales’s decision was correct, we reverse the district court’s dismissal of
Johnson’s burden-shifting claim. Second, we reverse the district court’s denial of Johnson’s
motion for leave to amend to add a substantive-due-process claim because Johnson’s proposed
complaint plausibly alleges that the City acted arbitrarily and capriciously. Finally, we reverse
the district court’s denial of leave to amend to add a selective-enforcement or class-of-one equal-
protection claim because Johnson’s proposed complaint plausibly alleges that the City treated her
business differently from other similarly situated businesses without a rational basis.
I.
Johnson claims that § 110.06(D) of Saginaw’s Code of Ordinances operated to violate her
due process rights by authorizing the immediate suspension of her business license and shifting
the burden to her to show cause why her license should not be suspended. We conclude that
Johnson has plausibly alleged that such burden-shifting, as applied here, violated her right to
procedural due process.1
1Although many of Johnson’s allegations concern the ordinance’s application generally, she alleges in both
her first and proposed second amended complaint that the ordinance unconstitutionally placed the burden on her to
“prove actual innocence” on Morales’s findings, “thereby resulting in a set of circumstance[s] whereby Defendant
Timothy Morales and/or Defendant City of Saginaw never had to legally support or prove the soundness or
correctness of the immediate suspension.” R. 5, First Am. Compl. at PID 57 ¶ 76; R. 15-1, Second Am. Compl. at
PID 261 ¶ 136. We conclude that these allegations challenge the constitutionality of the ordinance as applied to
Johnson’s license suspension.
No. 17-2519 Johnson v. Morales, et al. Page 31
Section 110.06(A) of Saginaw’s Code of Ordinances permits the City Manager to
“suspend, revoke, or deny renewal of a license for cause.” As made clear by § 110.06(C), in the
usual course, a license is not immediately suspended or revoked until after the licensee has been
afforded notice of the charges and an opportunity to respond. Here, however, the City acted
pursuant to § 110.06(F), which allows the City Manager to immediately suspend a license “in the
interest of the public health, morals, safety, or welfare.” The Suspension Order listed the
following in support of the immediate suspension:
(1) serious and violent criminal activity generated by the operation of this establishment;
(2) the aforementioned serious and violent criminal activity has resulted in significant
injury to persons and damage to property;
(3) the aforementioned serious and violent criminal activity has occurred as recently as
Saturday, May 6, 2017;
(4) the aforementioned serious and violent criminal activity constitutes a hazardous
condition contrary to the health, morals, safety and welfare of the public;
(5) failure to maintain adequate security to prevent or discourage unlawful behavior.
R. 5-1, PID 61. Johnson contends that the City’s ordinance provisions—allowing for suspension
without a hearing followed by a requirement that the licensee carry the burden of showing that
the suspension should be overturned—resulted in a situation where Morales’s decision was
presumed to be correct and the City was never required to support or justify its original decision
to suspend Johnson’s business license.
Although “the requirements of due process are fluid and fact dependent,” Shoemaker v.
City of Howell, 795 F.3d 553, 559 (6th Cir. 2015), “[t]he point of procedural due process is to
‘require procedural fairness and to prohibit the state from conducting unfair or arbitrary
proceedings,’” Puckett v. Lexington-Fayette Urban Cty. Gov’t, 833 F.3d 590, 606 (6th Cir.
2016) (quoting Garcia v. Fed. Nat’l Mortg. Ass’n, 782 F.3d 736, 740-41 (6th Cir. 2015)). In
order to effectuate those goals, due process requires that an aggrieved party be afforded a hearing
conducted “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S.
545, 552 (1965). We have held that these requirements are not satisfied simply because a
hearing took place. Moody v. Mich. Gaming Control Bd., 871 F.3d 420, 427 (6th Cir. 2017).
No. 17-2519 Johnson v. Morales, et al. Page 32
Rather, we look to the “substance, not to bare form, to determine whether constitutional
minimums have been honored.” Bell v. Burson, 402 U.S. 535, 541 (1971).
Johnson has plausibly alleged that the City’s ordinance deprived her of a meaningful
opportunity to challenge her suspension. The City Manager invoked § 110.06(F) to immediately
suspend Johnson’s license after determining that an immediate suspension was in the interest of
the public health, morals, safety, or welfare. But at no point was the City required to justify that
initial decision. Johnson alleges—and the City appears to concede—that the ordinance placed
the burden on Johnson to show that her business did not threaten the public health, morals,
safety, or welfare.2 That allegation is consistent with the text of the ordinance, which suggests
that the post-deprivation hearing that was afforded to Johnson was limited to allowing her to
show cause why her license should not be suspended for an additional period (or revoked)—
rather than on whether the City Manager demonstrated the requisite cause. See § 110.06(F)
(providing that the immediate suspension order must state the charge against the licensee and
“order the licensee . . . to show why their license or permit should not be suspended for an
additional period of time or revoked”).
Thus, Johnson plausibly alleges that by depriving her of a pre-deprivation hearing and
requiring her to bear the burden of proving that her business was not a threat to the public health,
morals, safety, or welfare, the ordinance created a situation where Johnson’s vested property
2We note that the “normal default rule” places the burden of proof on the party seeking relief. Schaffer ex
rel. Schaffer v. Weast, 546 U.S. 49, 57-58 (2005); Campbell v. United States, 365 U.S. 85, 96 (1961). As the district
court properly found, the City is appropriately construed “as the party seeking affirmative relief (a change in the
status quo)” in this case because Johnson “has a property interest in the license and it was suspended without prior
hearing.” Op. & Order, R. 20, PID 385 n.6. The Supreme Court has been skeptical of regulations that seek to place
the entire burden of proof on the opposing party. For instance, the Court has noted that “[d]ecisions that place the
entire burden of persuasion on the opposing party at the outset of a proceeding . . . are extremely rare.” Schaffer,
546 U.S. at 57 (emphasis in original). Although the Court has cautioned that, “[o]utside the criminal law area,
where special concerns attend, the locus of the burden of persuasion is normally not an issue of federal constitutional
moment,” Lavine v. Milne, 424 U.S. 577, 585 (1976), it has recognized that burden-shifting can be a problem of
constitutional dimension in the civil context. For instance, in Speiser v. Randall, 357 U.S. 513, 525-26 (1958), the
Court invalidated a California procedure under which taxpayers had the burden of demonstrating that they were not
individuals who advocated the overthrow of the government in order to qualify for tax exemptions. The Court was
particularly concerned that the burden-shifting in Speiser led to situations where “the possibility of mistaken
factfinding” created the danger that legitimate conduct would be penalized. 357 U.S. at 526. Here, the fact-laden
nature of the inquiry and the generality of a standard based on “the interest of the public health, morals, safety, or
welfare” make it plausible that placing the burden of persuasion on Johnson impermissibly heightened “the
possibility of mistaken factfinding” and created the danger that her valid property interest in her business was
illegitimately jeopardized.
No. 17-2519 Johnson v. Morales, et al. Page 33
interest in her business license could be revoked without any proof, but reinstated only if
Johnson proved that her business was not a danger to the health, morals, safety, or welfare, of the
city; and that such a system unfairly jeopardized Johnson’s property interest in her means of
livelihood, an interest that this court and the Supreme Court have recognized as “one of the most
significant that an individual can possess.” Ramsey v. Bd. of Educ. of Whitley Cty., 844 F.2d
1268, 1273 (6th Cir. 1988) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543
(1985)). Given the nature of the right involved,3 a post-deprivation hearing in which the
suspension is presumed to be warranted and Johnson bore the burden to prove the opposite fails
to provide the meaningful procedure mandated by due process.
We emphasize that our holding is narrow. Due process does not require that the burden
of proof always be placed on the party seeking relief. However, due process does require a
meaningful opportunity to be heard in order to “prevent, to the extent possible, an erroneous
deprivation of property.” Garcia, 782 F.3d at 741. Johnson has plausibly alleged that the
procedures afforded to her here fell short of those requirements. Accordingly, we reverse the
district court’s order dismissing Johnson’s burden-shifting claim.
II.
To prevail on her proposed substantive-due-process claim, Johnson must show “that there
is no rational basis” for the City’s decision to suspend her business license. Pearson v. City of
Grand Blanc, 961 F.2d 1211, 1221 (6th Cir. 1992).4 In its Suspension Order, the City purported
to suspend Johnson’s license based upon factual findings that (1) it was Johnson’s business that
3As the Court noted in Speiser, “the more important the rights at stake the more important must be the
procedural safeguards surrounding those rights.” 357 U.S. at 520-21.
4The dissent would affirm the denial of leave to amend on Johnson’s substantive-due-process claim largely
on the basis that the City had a factual basis for shutting down her business. According to the dissent, the factual
basis for closing Johnson’s business was that unknown members of a gang shot into her restaurant, which Johnson
does not dispute. The dissent concludes that this ends the discussion because it provides “some factual basis.”
Pearson, however, did not state that substantive due process is violated only if there is no factual basis for the
decision. Pearson described at length the various contexts in which courts have found that substantive due process
is violated—including that the action was “willful and unreasoning,” “shocks the conscience,” was “extreme[ly]
irrational[],” or lacks “some factual basis.” Id. at 1221-22. Substantive due process thus may be violated even if the
state-defendant commits no factual error. Moreover, Johnson’s allegations that her business was not the cause of the
violence, that the perpetrators were unaffiliated with her business, and that the shooting was random rebut the City’s
purported factual bases for suspension, so Johnson has plausibly alleged that the City lacked a factual basis as well.
No. 17-2519 Johnson v. Morales, et al. Page 34
was causing or “generat[ing]” the violence, and (2) she failed to take adequate measures to
prevent that violence. R. 5-1, PID 61. Likewise, on appeal, Defendants contend that the
suspension was rational “to protect the health and safety of the Plaintiff and the citizens of
Saginaw from the violent activity that was taking place in connection with Plaintiff’s business.”
Appellee Br. at 33 (emphasis added). However, Johnson alleges that her business was not the
cause of the violence, that the perpetrators were unaffiliated with her business, and that the
shooting was random.
Suspending Johnson’s business license because of unlawful acts of unaffiliated persons
of which she had no prior notice qualifies as extremely irrational. The City’s action is only
rationally related to promoting public health, morals, safety, or welfare if it somehow deters or
prevents conduct that threatens those interests. Thus, suspending Johnson’s license is rational
only if Johnson and her business somehow caused or contributed to the violence. Johnson
plausibly alleges that she and her business were not the cause of the shooting, and that shutting
down her business lacks any relation to promoting the public health, morals, safety, or welfare.
The district court concluded that “[b]ecause gang-violence can be systemic and often centers
around the same geographic areas, the City’s decision to eliminate one potential location for
repeated violence was rational.” R. 20, PID 399-400. However, this “eliminating one potential
location” rationale faults the restaurant’s mere existence, and therefore could apply to any
business operating in the City. Such a result is not rational. Cf. Paterek v. Vill. of Armada,
801 F.3d 630, 648-49 (6th Cir. 2015) (reversing summary judgment for defendants on plaintiffs’
substantive-due-process claim because a reasonable jury could find that defendants arbitrarily
and capriciously deprived plaintiffs of a recognized property interest).
The cases cited by the dissent are distinguishable. In the first case, Tri-County Concrete
Co. v. City of North Royalton, a concrete company alleged that the defendant city deprived it of
substantive due process by refusing to permit it to construct a concrete recycling operation on its
property. 181 F.3d 104 (6th Cir. May 14, 1999) (table). The court affirmed the district court’s
dismissal of the complaint on the basis that documents attached to the complaint showed that the
city was concerned about “protecting nearby landowners from noise and dust that plaintiff’s
concrete recycling operation would produce.” Id. at *3 (emphasis added). Therefore, according
No. 17-2519 Johnson v. Morales, et al. Page 35
to the court, “the evidence in the record [ ] supplie[d] a reason why [the defendants] ‘might have’
taken the action they did.” Id. Here, the reason for suspending Johnson’s license was that
Johnson’s business was “generat[ing]” the violence. Johnson’s proposed complaint, however,
alleges that is not true, that none of the shooters were connected to her business, and that she had
no warning this would happen.
In the second case, EJS Properties, LLC v. City of Toledo, the prospective purchaser of a
property asserted that the city and a city-council representative violated its substantive-due-
process rights after the purchaser refused to pay a bribe and the representative retaliated by
opposing the requested rezoning. 698 F.3d 845, 862 (6th Cir. 2012). The court held that the
solicitation of the bribe was not conscience-shocking and noted that “the decision not to grant re-
zoning passes rational-basis review in light of the clearly expressed desire at numerous meetings
to maintain the area for future industrial use.” Id. Thus, regardless of the bribery attempt, there
was a legitimate reason to deny the rezoning. Here, however, there was no alternative reason to
suspend Johnson’s license. The City’s action was irrational because, according to the complaint,
despite the City’s statements, the shooters were wholly unrelated to Johnson or her business.
Because Johnson adequately pled that the City lacked a rational basis to suspend her
license and thus plausibly alleged that the City violated her substantive-due-process rights, we
reverse and remand for further proceedings.
III.
Johnson’s proposed complaint also states a plausible claim for an equal-protection
violation based on a “class of one” theory. The proposed complaint alleges that the City
suspended her business license after a shooting but did not suspend the licenses of two other
businesses that experienced random shootings, Dom’s Food Market and Covenant HealthCare.
The Supreme Court has recognized “successful equal protection claims brought by a
‘class of one,’ where the plaintiff alleges that [1] she has been intentionally treated differently
from others similarly situated and [2] that there is no rational basis for the difference in
No. 17-2519 Johnson v. Morales, et al. Page 36
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).5 The first
element requires that the plaintiff and the others who were treated differently were “similarly
situated in all relevant respects.” EJS Properties, 698 F.3d at 865 (internal quotation marks
omitted). “A ‘class of one’ plaintiff may demonstrate that a government action lacks a rational
basis in one of two ways: either by negativ[ing] every conceivable basis which might support the
government action or by demonstrating that the challenged government action was motivated by
animus or ill-will.” Warren v. City of Athens, 411 F.3d 697, 711 (6th Cir. 2005) (internal
quotation marks omitted).
Dom’s Food Market is similarly situated to Johnson’s restaurant. Both establishments
sell food to the public, and the circumstances of the shooting at Dom’s are similar to the shooting
at Johnson’s restaurant: a random shooting with unknown shooters. On appeal, Defendants
argue that Johnson’s restaurant is dissimilar from Dom’s on the basis that patrons at the
restaurant can consume alcohol on the premises, whereas liquor is merely sold at Dom’s.
However, there is no indication why this distinction is relevant here. There is no suggestion that
alcohol played a role in either shooting. Nor does there appear to be any basis for concluding
that Johnson’s restaurant’s sale of liquor for consumption was related to the random shooting
that occurred at her restaurant.
Accepting Johnson’s allegations as true, there is no conceivable rational basis for treating
her restaurant differently from Dom’s. The district court concluded that unlike the shooting at
Dom’s, the shooting at Johnson’s restaurant appeared to be gang-related, and gang-related
shootings are likely to be more frequent. The dissent likewise contends that “[t]here is no
indication that the shooting[] at the liquor store . . . w[as] gang-related or involved more than one
5The dissent expresses doubt that Johnson’s “class of one” claim survives the Supreme Court’s decision in
Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008). Notably, the Court in Engquist was
addressing a “class of one” claim in the public-employment context, and this court on a number of occasions has
declined to address whether Engquist applies outside of that context to other discretionary decisions. See EJS
Properties, 698 F.3d at 864 n.15 (declining to decide whether Engquist applies outside of the public-employment
context); Clark v. Johnston, 413 F. App’x 804, 817 n.12 (6th Cir. 2011) (same); Aldridge v. City of Memphis, 404 F.
App’x 29, 42 (6th Cir. 2010) (same). There appear to be good reasons to limit Engquist’s applicability outside the
public-employment context. See Franks v. Rubitschun, 312 F. App’x. 764, 766 n.3 (6th Cir. 2009) (suggesting
Engquist should be limited to public-employment action and relying on Engquist’s characterization of the public-
employment context as “‘unique’” and “its reliance on the ‘crucial difference’ between government acting as
sovereign and government acting as employer” (quoting Engquist, 553 U.S. at 598)).
No. 17-2519 Johnson v. Morales, et al. Page 37
shooter.” Op. at 28. As an initial matter, there is no suggestion that the shooting at Dom’s was
not gang related or did not involve more than one shooter. Rather, the victim was shot “several
times” exiting the store, a fact that could suggest more than one shooter. R. 15-1, PID 297.
Moreover, the circumstances and manner of the shooting at Dom’s and the shooting at Johnson’s
restaurant appear very similar: unknown individuals arriving and shooting at a business.
Because Johnson’s proposed second amended complaint plausibly alleges a “class of
one” selective-enforcement claim and her claim was therefore not futile, we reverse the district
court’s denial of leave to amend her complaint to assert that claim.
IV.
We emphasize that this is an appeal from a dismissal on the pleadings and a denial of
leave to amend. We accept all of Johnson’s well-pleaded facts as true and draw all inferences in
her favor. We reverse the district court’s dismissal of Johnson’s burden-shifting, substantive-
due-process, and equal-protection claims. We concur in Judge Nalbandian’s opinion in all other
respects.