Stories indexed with the term ‘lawsuit’

The footing drain disconnection lawsuit filed against the city of Ann Arbor in late February has taken several procedural turns over the last six months, with virtually no issues on the merits of the case yet resolved.

The latest procedural issues now appear set to be decided on Aug. 27, 2014 – judge Donald Shelton’s final motion day before his retirement.

The case involves a claim of unconstitutional takings – inverse condemnation. Plaintiffs in the case, Yu v. City of Ann Arbor, are three Ann Arbor residents who had their footing drains disconnected under the city FDD program.

The procedural issues that could be decided next week include a motion to disqualify the city attorney’s office from representing the city due to conflicts; a motion to sanction city attorneys for filing documents with statements that plaintiffs allege are not well-grounded in fact; and a motion to reassign the case to a judge other than Timothy Connors. All three motions were filed with the court on Wednesday, Aug. 20.

A dispute about whether those Aug. 20 filings were properly served upon the city is one of the issues Shelton could decide at the start of the hearing.

By way of background, the case was originally filed in the Washtenaw County 22nd circuit court and assigned to Shelton in late February. The city then removed the case to federal court. However, the plaintiffs moved for remand from the federal court back to the circuit court – a motion that was granted by judge Avern Cohn in late May.

When the case returned to the circuit court, plaintiffs filed a motion for a preliminary injunction, which was heard and denied by Shelton in early July. The city had filed a motion for summary disposition on June 9, which was originally scheduled for July 30. It was subsequently rescheduled by the city for Aug. 13, and then shifted by the city again to Sept. 18 – which is after Shelton’s scheduled retirement.

According to the court administrator’s office, the case will not officially be reassigned to a different judge until Sept. 2. However, when The Chronicle inquired with the 22nd circuit court’s central scheduling office, the staff indicated that the plan was to reassign all of Shelton’s civil cases to Connors. So the city’s paperwork scheduling of the Sept. 18 hearing specifies Connors as the judge. [Full Story]

The final tally of costs to the city of Ann Arbor in connection with the Bob Dascola election lawsuit is $35,431.75. According to Tom Wieder, attorney for Dascola, the settlement agreed to on Aug. 20, 2014 for the second phase of the lawsuit was $9,400 – to be split between the city and the state of Michigan.

The city lost both phases of the litigation, which began when the city sought to enforce city charter eligibility requirements against Dascola to prevent him from being a candidate in the Ward 3 city council Democratic primary race. The election was won by Julie Grand in a three-person field that included Samuel McMullen.

The $35,431.75 amount is the total agreed to for the initial … [Full Story]

The Ann Arbor city election commission meets today at 3 p.m. in the city council workroom at city hall. The Chronicle plans to present a live audio broadcast of the proceedings, using the embedded live stream player below.

This meeting is a regular event in the election process, and will include the approval of the list of election workers for the Aug. 5, 2014 primary. The three-member commission consists of chief of police John Seto, city attorney Stephen Postema and city clerk Jackie Beaudry.

Possibly of more interest than the approval of the list of election workers will be an update on proceedings in the pending legal dispute over the way that some misprinted ballots might be counted. Nearly 400 misprinted ballots … [Full Story]

Michigan’s Secretary of State has asked the federal district court to be allowed as an intervening party to an action that is currently pending before the court – on the question of how to count ballots in the city of Ann Arbor Ward 3 Democratic primary.

The motion on behalf of the Secretary of State was filed by the Michigan Attorney General on Friday, July 11. [.pdf of July 11, 2014 motion to intervene]

In-person voting for the election takes place on Aug. 5, 2014. But the point in dispute concerns ballots that were printed incorrectly and sent to absentee voters.  The question of counting votes has arisen because the incorrectly printed ballots omitted the name of one of the candidates. Printed correctly on the ballots were Julie Grand and Samuel McMullen. However, Bob Dascola – who had filed a successful lawsuit against the city in order to be a candidate – was mistakenly left off the ballots.

Just a few days after the roughly 400 incorrectly-printed ballots were sent out, the city sent out replacement ballots with a letter of instructions. The city is making additional efforts to contact voters who sent in an incorrectly-printed ballot – to reduce the potential number of ballots that might eventually be in dispute. The disputed question is whether to count any votes in the Ward 3 race that are might cast on an incorrectly printed ballot.

Amid the ballot-counting controversy, the candidates continue to campaign for the seat to represent Ward 3 in the city of Ann Arbor – a ward that has historically seen some close primary races. In 2009, the margin achieved by Stephen Kunselman over the Ward 3 incumbent, Leigh Greden, was just six votes.

All three candidates appeared in a League of Women Voters candidate forum earlier this week. Chronicle coverage in ”Ward 3 Candidate Forum: CTN Broadcast” includes an embedded video player for playing back the forum, along with a transcript in a scrollable text box.

The Ward 3 candidates are also invited to participate in the Ann Arbor Democratic Party city council candidate forum, scheduled for Saturday, July 12 at 10 a.m. at the Ann Arbor Community Center, 625 N. Main St. The Chronicle is planning to provide a live audio feed from that event.

The Secretary of State’s current position is that votes in the Ward 3 race that are cast with the incorrectly printed ballots should still be counted – if no replacement ballot is sent in by the voter. That’s a reversal of the state’s own position taken when the question was first considered. The state is asking the federal court to be allowed as an intervening party, in order to put its arguments in front of the court. The state’s motion to intervene comes after Bob Dascola’s attorney, Tom Wieder, filed a motion at the beginning of the week – on Monday, July 7 – seeking to prevent the city of Ann Arbor from counting Ward 3 votes cast on defective ballots.

Wieder’s July 7 motion was filed as a request for post-judgment relief in the federal case that was litigated to put Dascola’s name on the ballot in the first place. In that ruling, the court decided that the city charter eligibility requirements are not enforceable. Related to that, the city council is beginning to contemplate the steps necessary to make a change to those eligibility requirements.

The city’s response to Wieder’s motion, filed two days later, took no position on the question of how the ballots should be counted. But the entire response brief, including exhibits, runs 49 pages. [.pdf of city of Ann Arbor's July 9, 2014 response] The reply from Wieder on Dascola’s behalf was filed the following day. [.pdf of July 10, 2014 reply brief] [Full Story]

In the Yu v. City of Ann Arbor footing drain disconnection lawsuit, judge Donald Shelton has denied a motion for a preliminary injunction against the city.

Had it been granted, the motion would have prevented the city of Ann Arbor from enforcing its footing drain disconnection (FDD) ordinance. Shelton’s ruling came from the bench after a roughly 25-minute hearing held on July 2, 2014 at Washtenaw County’s 22nd circuit court at Huron and Main in downtown Ann Arbor.

Shelton appeared to reach his conclusion on the injunction fairly easily. But more than once during the hearing, he indicated that he had questions about the city’s legal position, reserving the possibility that the plaintiffs in the case could ultimately prevail after a full trial, which he expected would take place.

That has implications for the city’s motion for a summary disposition – a request for a decision from Shelton without a full trial. That motion was filed on June 9 and is on Shelton’s calendar for July 30. But at the conclusion of the July 2 hearing, after he’d ruled, Shelton told assistant city attorney Abigail Elias he’d begun a review of that motion for summary disposition and said, “I’ll just tell you that I think it is premature.” But he told Elias she could proceed as she liked.

Under the ordinance, property owners can be required to disconnect their footing drains from the city’s sanitary sewer system. The city has a program under which pre-approved contractors do the disconnection work and install the equipment, with the initial costs borne by the city.

Plaintiffs in the lawsuit contend that the city’s FDD ordinance amounts to inverse condemnation, a taking of property through physical occupation. They rely on the Loretto v. Teleprompter Supreme Court decision, which found that the required installation of a bracket for a cable television can be analyzed as an unconstitutional taking through physical occupation.

The criteria to be weighed in granting a preliminary injunction can include the merit of the actual case – the likelihood that the plaintiff will prevail. And Shelton did touch on one aspect of the merits of the case, as he expressed skepticism about the public health, safety and welfare argument for the FDD ordinance. That skepticism was based on the fact that the city gives homeowners the option of making a $100 per month payment in lieu of a required footing drain disconnection. If it’s important to public health, safety and welfare, Shelton could not imagine that the city would say: Well, just give us some money and that will satisfy it.

But Shelton reserved most of his skepticism on July 2 for the idea that the plaintiffs would suffer irreparable harm in the absence of a preliminary injunction now. That’s because the plaintiffs in the case had their drains disconnected in 2002. If the plaintiffs had brought an action back in 2002, based on a desire not to comply, then that would have been a different situation, Shelton said. At that time, a motion for a preliminary injunction would have been to preserve the status quo – of not being yet disconnected from the sanitary sewer. “But now, more than a decade later, you come in and say: Undo the status quo while we have a trial!” He allowed the plaintiffs might well win at trial, adding that he didn’t know.

In ruling from the bench, Shelton reviewed the fact that the only question before him that day was the question of issuing a preliminary injunction. Circumstances under which the court can grant a preliminary injunction are limited, he said. “I’m going to deny the motion for a preliminary injunction.” He said he believed that the status quo would be disrupted by such an order, and he did not believe any significant irreparable harm would result from waiting until a full trial is held on the merits of the case. [Full Story]

The motion for fees filed by Bob Dascola’s attorney in his successful election lawsuit against the city of Ann Arbor has now been filed with the federal court. The ruling of the federal court, made on May 20, 2014, was that the city charter eligibility requirements were not constitutional enforceable, which put Dascola on the Ward 3 city council Democratic primary ballot for Aug. 5, 2014.

In the June 6, 2014 filing, attorney Tom Wieder has asked that the court award him fees for 93.25 hours of work at $400 per hour for a total of $37,300. Another $425.50 in costs for filings and document retrieval from the PACER (Public Access to Court Electronic Records) system brings the total amount the city … [Full Story]

A contract extension with CDM Smith Inc. for continued work as part of Ann Arbor’s footing drain disconnection (FDD) program has been approved by the city council. The vote at the council’s June 2, 2014 meeting was 6-2, over dissent from Jack Eaton (Ward 4) and Sumi Kailasapathy (Ward 1). Mike Anglin (Ward 5) was absent.

It had previously been postponed at the council’s May 5, 2014 meeting, to be taken up again on June 2. During the postponement, the dollar amount of the contract extension had been reduced from $748,106 to $143,440. That reflects a reduction in the scope of the work. The original May 5 resolution called for the following activities to be funded: citizen support ($36,928); FDD … [Full Story]

A lawsuit filed against the city of Ann Arbor over its footing drain disconnection ordinance will be remanded from federal court back to Michigan’s state court system – over the objection of the city of Ann Arbor. The indication came at an 11-minute hearing on Wednesday May 28, 2014 before federal district judge Avern Cohn at the Theodore Levin U.S. Courthouse in downtown Detroit.

The lawsuit had originally been filed against the city three months ago, on Feb. 27, in Washtenaw County’s 22nd circuit court. There it had been assigned to judge Donald Shelton. On March 17, about two weeks after it was filed, the city removed the case from the state court to the federal court.

But the plaintiffs in the case – Ann Arbor residents who had their footing drains disconnected from the sanitary sewer system under the city’s ordinance – filed a motion for remand back to the 22nd circuit court. At the Wednesday hearing, Cohn indicated that he’d be granting the motion for remand.

By way of background, the ordinance that’s being challenged was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the city’s sanitary sewer system. Its intent is to diminish the risk of sanitary overflows into the Huron River and of sanitary sewage backups in homeowners’ basements.

The lawsuit – Yu v. City of Ann Arbor – claims the city’s FDD ordinance violates: (1) the Michigan state law setting forth requirements for a government to take private property for public use; (2) the Michigan state constitutional prohibition against taking private property for public use without just compensation; (3) the corresponding U.S. constitutional prohibition against taking private property, which is a Fifth Amendment claim; and (4) the prohibition against violating the federally protected rights of others, which is a claim under 42 U.S. Code Section 1983.

In broad strokes, Cohn summarized all of the plaintiffs’ claims against the city as reducible to claims about inverse condemnation – taking of private property without just compensation. The plaintiffs contend that the city’s ordinance requiring disconnection of footing drains from the sanitary sewer system – and its associated installation of a sump with a pump – is a physical occupation of a homeowner’s property with equipment not belonging to the homeowner.

Inverse condemnation is a kind of claim for which remedies in the state courts must first be exhausted, before moving to federal court. And although the complaint cites federal law in its causes of action, Cohn was not willing to sever the state claims from the federal claims or to stay the federal claims in the complaint.

Because all the claims were about inverse condemnation, Cohn said, “All I know is that I don’t have subject matter jurisdiction until there’s an exhaustion of remedies under state law. I’m going to have to remand it – I can’t keep it. The only way they can exhaust their remedies is in Washtenaw County circuit court.”

Cohn made his position so clear in his initial remarks that the plaintiffs’ counsel – Dan O’Brien of Woods Oviatt Gilman in Rochester, New York – was initially content not to offer oral argument: “I’ll rely on my papers, your honor.”

So assistant city attorney Abigail Elias, who represented the city at the May 28 hearing, was arguing before a judge who’d essentially already indicated how he would rule. She still made a bid to convince Cohn at least to dismiss the federal claims without prejudice, if he was going to remand the state claims back to the circuit court. She opened her remarks by saying, “I understand generally it’s an uphill battle…” but Cohn interrupted, “Not generally. Specifically.”

In the course of the short hearing, Cohn was not generous in his assessment of the city’s legal briefs that had been filed, calling them “jurisprudential legerdemain.”

For previous Chronicle coverage, see “Lawsuit Filed on City Footing Drain Program” and “Backups: Lawyers, Sewers, Pumps.”

The hearing is reported below in more detail. [Full Story]

The Democratic primary ballot for the Ward 3 Ann Arbor city council race will now include Bob Dascola, in addition to Julie Grand and Samuel McMullen. That’s the result of a ruling from federal district judge Lawrence Zatkoff – in a lawsuit filed by Dascola against the city of Ann Arbor: The city cannot bar Dascola from the Ward 3 city council Democratic primary ballot based on city charter eligibility requirements that were ruled null and void in the early 1970s.

At issue were city charter durational requirements on voter registration and residency – that require city councilmembers to be registered to vote in the city and to be a resident of the ward they want to represent for at least a year prior to taking office.

Dascola contended he met the residency requirement, but conceded that he fell short of the voter registration requirement. He did not register to vote in the city until Jan. 15, 2014. Dascola submitted sufficient signatures to qualify, so the impact of the ruling is that Dascola will appear on the Ward 3 ballot.

Dascola was represented in the case by local attorney Tom Wieder.

Both of the Ann Arbor city charter requirements were ruled unconstitutional, null and void in federal cases from the early 1970s. But the city of Ann Arbor sought to enforce those charter requirements against Dascola based on subsequent decisions on eligibility requirements in other jurisdictions in the intervening period. Those included an Ann Arbor case in 2002 (Wojack v. City of Ann Arbor) that resulted in a finding by the local state circuit court upholding the residency requirement. But that finding came only after Republican Scott Wojack was allowed on the Ward 1 city council ballot – a race he did not win. Wojack’s attorney was Tom Wieder.

Based on subsequent case law and a shifted standard of judicial review, one-year durational requirements of the kind that the Ann Arbor city charter includes would almost certainly be found constitutional, if the 1970s cases were to be litigated today. But the May 20, 2014 ruling by Zatkoff found Dascola’s argument convincing: That in order for the city to enforce the charter requirements – which had been found unconstitutional, null and void in separate rulings in 1971 – it would have needed to re-enact those requirements.

From the opinion: “Plaintiff [Dascola] has provided compelling evidence that Defendants [the city of Ann Arbor] have used void provisions of the Charter in an attempt to preclude him from running for City Council. Further, remedies available at law would not compensate Plaintiff for his inability to run for City Council. Finally, as established above, the balance of hardships between the parties – and the public interest at large – warrant this Court enjoining Defendants from enforcing a void law when the City has failed to re-enact that law.” [Dascola v. City of A2: Opinion] [Dascola v. City of A2: Judgment]

That means all the Aug. 5, 2014 ballots for partisan primaries for Ann Arbor mayor and city council are finally set. On the non-partisan side, Bryan Kelly took out petitions for city council in Ward 1, but was informed by the city that he did not meet the charter’s durational eligibility requirements. The ruling on the Dascola case would clear the way for Kelly to run. And as an independent, he’d have until July 17 to submit signatures. But in responding to an emailed Chronicle query, he indicated that he’s content with the representation of Ward 1 on the city council, saying they are “good people,” and he is no longer contemplating running at this time.

The city does have the option to appeal the ruling, but council sources indicate that is not probable. More likely is that the council would vote to place a charter amendment on the ballot this fall so that voters could ratify some set of eligibility requirements. The May 20 ruling from Zatkoff permanently enjoins the city from enforcing either of the former charter requirements prior to re-enacting them.

The background of the case and a review of the opinion are presented below, as well as the complete set of briefings from the case. [Full Story]

More briefs have now been submitted in the Dascola election lawsuit late last week and over the weekend – after the final supplemental briefs were submitted earlier last week.

On May 6, 2014, the final court-ordered supplemental briefs were submitted by both sides in the lawsuit, filed by Bob Dascola against the city of Ann Arbor. Dascola contends he’s an eligible candidate and wants the court to order that he be placed on the ballot in the Ward 3 city council Democratic primary. He would join Julie Grand and Samuel McMullen in that election, which will be held on Aug. 5, 2014.

But as the electorate awaits a ruling from federal judge Lawrence Zatkoff, the two sides have continued to lather up. Late last … [Full Story]

Final supplemental briefs have now been submitted in the lawsuit filed by Bob Dascola against the city of Ann Arbor – in his effort to be placed on the ballot as a candidate in the Ward 3 city council Democratic primary. He would join Julie Grand and Samuel McMullen in that election, which will be held on Aug. 5, 2014. [.pdf Dascola v. City of A2: Plaintiff's Supplemental Brief] [.pdf Dascola v. City of A2: Defendant's Supplemental Brief]

Ann Arbor’s city charter includes two durational requirements for city councilmembers – that they be registered voters in the city for a year before election, and that they be residents of the ward they seek to represent for a year before election.

Dascola contends that he … [Full Story]

Federal judge Lawrence Zatkoff has ordered that additional briefs be submitted in the lawsuit Bob Dascola has filed against the city of Ann Arbor. That means that Ann Arbor’s Ward 3 Democratic primary ballot won’t be set any sooner than May 6, when the additional briefs are due.

Dascola filed suit in order to be placed as a candidate on the ballot for Ann Arbor’s Ward 3 city council primary. He would join Democrats Julie Grand and Samuel McMullen in that race. Ann Arbor’s city charter includes two durational requirements for city councilmembers – that they be registered voters in the city for a year before election, and that they be residents of the ward they seek to represent for a year … [Full Story]

The lineups for all the Ann Arbor city council primary races on Aug. 5, 2014 have now been finalized – except for Ward 3. Whether Bob Dascola’s name will appear alongside those of Julie Grand and Samuel McMullen will depend on the outcome of a lawsuit that has been filed in federal district court.

The Chronicle has previously covered the various lawsuit filings in a fair amount of detail. The central issue in the case is whether Ann Arbor city charter requirements that were struck down as unconstitutional and declared null and void in 1972 can still be applied today.

While we’re waiting for a decision to be handed down, we thought it would be useful to get a possibly more accessible, spoken-word treatment of the lawsuit’s subject matter. To that end, we talked with Dascola’s attorney, Tom Wieder.

Wieder litigated a case similar to Dascola’s back in 2001.

Some highlights from the conversation include the fact that Wieder thinks the city council potentially has a role to play in the city’s handling of the case – based on the fact that the city attorney is accountable to the city council. The city’s legal stance should be determined by the council, Wieder says, not by the city attorney.

And Wieder talks about the fact that a council controlled by Democrats should allow the Democratic Party principle of free and open access to the ballot to guide their thinking on this matter – given that there are at least two plausible points of view on the enforceability of the city charter’s eligibility requirements.

The council’s particular responsibility as a group of Democrats leads to some discussion of the idea that Ann Arbor Democrats, who dominate city politics today, might be a different stripe from the Democrats of the early 1970s and 1980s, who fought for fewer eligibility requirements on candidates for city office.

It’s fair to point out that that Wieder was involved in two key changes to Ann Arbor’s electoral process that could reasonably be analyzed as leading to Ann Arbor’s current political life being dominated by Democrats: (1) redrawing ward boundaries in 1991; and (2) shifting elections from April to November.

Wieder also ventures that the Democratic dominance of local city politics might have lessened an historically strong Democratic interest in the value of process, and not just doing the right things, but doing things the right way: “… I think the fact that the Democrats have now been in charge pretty much for a while, there may be less self-examination when it comes to process and basic political principles than when somebody else was controlling those levers.”

Asked what he thinks the eligibility requirements for city council and mayor should be, Wieder suggests these requirements: At the time of filing petitions for office, a mayoral candidate should be a registered voter in the city; and at the time of filing petitions for office, candidates for city council should be registered voters in the wards they seek to represent.

One unsuccessful attempt to clean up the city charter – so that there are clear and constitutional eligibility requirements – was made in 2003. No matter how Dascola’s lawsuit turns out, Wieder thinks the city council needs to make a better effort to clean up the city charter – by establishing clear and constitutional eligibility requirements for mayor and city council. The council could propose different charter language on eligibility requirements for elective office and place a charter amendment before voters.

During the conversation, Wieder describes how the Wojack case led the city to print up two different sets of ballots, one with Wojack’s name and another set without it. If the Dascola case is resolved by early June, that contingency would not be necessary this time around.

The conversation with Wieder is presented in Q & A format below, with some re-ordering and editing.  [Full Story]

Now that the April 22 petition filing deadline has passed, the Aug. 5, 2014 ballots for partisan primaries for Ann Arbor mayor and city council are set – except possibly in Ward 3. The outcome of a pending lawsuit will determine whether the final lineup for the Ward 3 Democratic primary includes Bob Dascola along with Julie Grand and Samuel McMullen.

Dascola’s case is being heard in U.S. District Court by judge Lawrence Zatkoff. On Wednesday, April 23, the deadline expired for the last item on the expedited briefing schedule ordered by Zatkoff. That last item was the city’s reply to Dascola’s response to the city’s motion to dismiss the case. A total of six briefs have been filed, three for each side, after the initial complaint.

The lawsuit stems from the fact that the city clerk has informed Dascola that he is not eligible to be a candidate under city charter requirements. Both of the charter requirements in question – durational one-year requirements for voter registration and for residency – were ruled unconstitutional in separate rulings made by the U.S. District Court in the early 1970s. That’s the basis of Dascola’s complaint. He also contends that he does, in fact, meet the residency requirement.

The city’s position is that Ann Arbor city charter requirements have been revived by subsequent cases in various other venues in the intervening years.

Dascola has submitted sufficient signatures to qualify, so if he’s ruled eligible, he would appear on the Ward 3 ballot. The point of the expedited briefing schedule was to settle the issue before ballots are finalized in June. With the expedited briefing schedule now complete, a ruling could come quickly. Another possibility is that Zatkoff could order a hearing on the motions before making a decision.

This report includes an overview of the case and some highlights from the briefings, along with links to .pdf files of all the briefings. [Full Story]

On Friday, March 28, 2014, the Ann Arbor’s city clerk staff validated 103 signatures for Bob Dascola’s attempted candidacy to represent Ward 3 on the Ann Arbor city council.

That same day, Dascola filed a lawsuit in the Eastern District of Michigan’s U.S. District Court to assert his right to compete in the Aug. 5 Democratic primary election. [.pdf of March 28, 2014 complaint Dascola v. City of Ann Arbor]

Even though Dascola has more than the required 100  signatures to stand for election, the city clerk previously informed Dascola that he does not meet the city charter eligibility requirements for candidates.

And city clerk records still indicate in red type that Dascola does not meet the eligibility requirements.

The city has two different eligibility requirements for city council candidates. The first requires one year of residency in the ward that a candidate seeks to represent, prior to election. The second requires one year of voter registration in the city of Ann Arbor, prior to election.

Dascola’s lawsuit is based in part on the fact that each of Ann Arbor’s charter requirements were explicitly struck down in federal court in the early 1970s. [Feld v. City of Ann Arbor] [Human Rights Party et al v. City of Ann Arbor]

The complaint indicates that the city apparently believes Dascola doesn’t meet either of the requirements. Dascola contends that he actually meets the city charter’s residency requirement.

Previous coverage from The Chronicle includes: “Dascola to Assert Right to Run in Ward 3.” [Full Story]

The city of Ann Arbor has moved into federal court a lawsuit filed over its footing drain disconnection ordinance. The case was originally filed in the 22nd circuit court in Washtenaw County.

The ordinance that’s being challenged was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the city’s sanitary sewer system. Its intent is to diminish the risk of sanitary overflows into the Huron River and of sanitary sewage backups in homeowners’ basements.

The lawsuit claims the city’s FDD ordinance violates: (1) the Michigan state law setting forth the requirements for a government to take private property for public use; (2) the Michigan state constitutional prohibition against taking private … [Full Story]

A lawsuit has now been filed in Washtenaw County’s 22nd Circuit Court challenging the legal foundation of the city of Ann Arbor’s footing drain disconnection (FDD) ordinance.

The ordinance was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the sanitary sewer system. Its intent is to diminish the risk of sanitary overflows into the Huron River and of sanitary sewage backups in homeowners’ basements.

In connection with that lawsuit, a motion for a preliminary injunction has also been filed, asking that the court order the city immediately to stop enforcement of its ordinance.

[FDDP-Complaint-Feb.27.2014-OCR] [FDDP-Motion-Feb.27.2014-OCR]

In September 2012, the Ann Arbor city council already took action partially to suspend the FDD program. That council decision of nearly 18 months ago came not in response to a formal legal action, but rather coincided with complaints from residents in the southeastern part of the city.

Then about a year ago, in February 2013, the city authorized a contract with an engineering firm to undertake a sanitary sewer wet weather evaluation (SSWWE) – in part to determine the impact of the FDD program to date. At a public meeting on the SSWWE held two weeks ago, on Feb. 6, 2014, the future status of the FDD program was portrayed as dubious: Even if the SSWWE study eventually identified an ongoing risk of sewage backups in Ann Arbor basements, the FDD would probably not continue “as is.”

The lawsuit claims the city’s FDD ordinance violates: (1) the Michigan state law setting forth the requirements for a government to take private property for public use; (2) the Michigan state constitutional prohibition against taking private property for public use without just compensation; (3) the corresponding U.S. constitutional prohibition against taking private property, which is a Fifth Amendment claim; and (4) the prohibition against violating the federally protected rights of others, which is a claim under 42 U.S.C. Section 1983.

The lawsuit asks that the court declare the FDD ordinance is “unconstitutional, on its face and as implemented.”

Plaintiffs in the case are Ann Arbor residents John Boyer, Mary Jean Raab and Anita Yu. They are represented by attorneys Dan O’Brien, who’s chair of the litigation department at Woods Oviatt Gilman in Rochester, New York; Irvin Mermelstein, a local Ann Arbor attorney in private practice; and Mark Koroi, a Plymouth attorney.

Background leading up to the filing, as well as a description of the filing, has been tracked on a2underwater.com. Mermelstein is the resident agent for a2underwater, LLC.

The lawsuit was filed on Feb. 27, 2014. It has been assigned to judge Donald Shelton.

Some of the legal theories on which the lawsuit is based have already surfaced in correspondence that’s become public. And some aspects of the city’s potential defense against a lawsuit may have already been described publicly by assistant city attorney Abigail Elias. That description came at a recent meeting of a citizens advisory committee that is supposed to make a recommendation sometime in the summer of 2014 on the future of the FDD program. For additional background on the topic of the footing drain disconnection program, see Chronicle coverage: “Backups: Lawyers, Sewers, Pumps.” [Full Story]

AOL Autos reports on a lawsuit filed by the ACLU on behalf of two Michigan men – including Dave DeVarti of Ann Arbor. The lawsuit contends that the state of Michigan violated First Amendment rights when it rejected applications for vanity license plates. DeVarti wanted a plate that stated “WAR SUX.” [Source]

Ypsilanti attorney David Raaflaub has filed a lawsuit against the Washtenaw County board of commissioners over a resolution that the board passed on Oct. 16, 2013. The resolution, which was approved on a 5-4 vote, urged state legislators to repeal Michigan’s Stand Your Ground law. [.pdf of board resolution] [.pdf of Raaflaub complaint]

The complaint, filed on Oct. 21 in the 22nd Circuit Court of Washtenaw County, asks the court to determine two issues: (1) what authority the board has that enables it to “draw conclusions of law,” and (2) what authority the board has to represent the county in seeking changes to state law.

Curtis Hedger, the county’s corporation counsel, stated in an Oct. 24 email to The … [Full Story]

Ann Arbor city council meeting (Aug. 19, 2013): An extraordinarily light agenda prompted Jane Lumm (Ward 2) on arrival in council chambers to remark that the meeting could be done in a half hour. The meeting actually stretched to about 90 minutes. But that still made it the shortest meeting in recent memory.

The council didn’t engage in substantive deliberations on any of its regular business items, but did pull three items off the consent agenda for more scrutiny: (1) an Oktoberfest street closure in downtown; (2) a dam safety inspection contract for the city’s two hydroelectric dams; and (3) a renewal of the maintenance and support agreement for CityWorks software.

The CityWorks software drew public commentary from resident Kathy Griswold – because the web-based citizen request system that a third-party developed a few years ago using the CityWorks API (application programmer interface) does not have a good mobile interface. To the extent that a better mobile interface would allow residents more easily to report problems with traffic-related lines of sight (such as excessive vegetation), that could result in safety improvements.

Pedestrian safety was the second point raised by Griswold, as she weighed in against the city’s crosswalk ordinance, which requires motorists to stop for pedestrians who are in the crosswalk or standing at the crosswalk. It’s a position that Griswold has taken on several occasions in her remarks to the council over the last two years. Her contention is that the city’s ordinance should be identical to the language in the Michigan Uniform Traffic Code, which does not require stopping and does not extend to cover pedestrians who are standing at a crosswalk but not within it.

Sabra Briere (Ward 1) picked up on the topic of pedestrian safety during communications time, and delivered remarks she’d prepared at the request of former city councilmember Leslie Morris. Morris had attended the previous day’s Sunday night caucus and had asked Briere to address the issue of a recent pedestrian fatality on Plymouth Road. Briere ticked through a number of statistics on traffic crashes involving a pedestrian.

The meeting featured two topics related to constitutionally protected speech – one raised during public commentary and the other raised less visibly, during a closed session on the settlement of a lawsuit.

During his turn at public commentary, James Rhodenhiser asked the council to consider expressing its view on a regular weekly anti-Israel protest that’s been held for nearly 10 years outside the Beth Israel Congregation. Rhodenhiser is rector at St. Clare of Assisi Episcopal Church, and conveyed a written document to the council indicating support from 31 other local clergy. The council has in the past approved two resolutions referring to the protests. The city has not been able to take any substantive action to compel the protesters to cease their activity, because the demonstration is constitutionally-protected free speech.

Another issue related to constitutionally-protected speech was the topic of a closed session held near the end of the meeting, which lasted about 15 minutes. When the council emerged from the closed session, a unanimous vote was taken to settle a lawsuit: Dobrowolski v. City of Ann Arbor. The lawsuit alleged that the city infringed on constitutionally-protected speech when it used its vehicle sign ordinance to prohibit anti-abortion signs. The city agreed to pay $7,000 in legal fees and $50 to the plaintiff, Paul Dobrowolski – to cover the tickets he was issued for his signs.

In some significant voting business, the council confirmed appointments to the boards of the Ann Arbor Downtown Development Authority and the Ann Arbor Area Transportation Authority. Sally Petersen (Ward 2) offered positive remarks about both appointees – Rishi Narayan to the board of the Ann Arbor DDA and Jack Bernard to the board of the AAATA.

Petersen highlighted one other appointment – Alison Stroud to the city’s commission on disability issues, noting that Stroud is hearing impaired and used the CART (Communication Access Realtime Translation) to follow along at meetings. [Full Story]

Earlier this week, the American Civil Liberties Union of Michigan – along with two plaintiffs – filed suit against the Ann Arbor Public Schools for the school district’s plan to charge students who want to take a seventh class in a semester.

The lawsuit argues that the Michigan Constitution requires a free public education for all Michigan students, and that charging for a seventh hour is unconstitutional. Kary Moss, ACLU of Michigan executive director, outlined the position in an ACLU press release: “Allowing this model to continue will open the floodgates for any district in the state to charge for every conceivable part of their students’ education creating a two-tiered system in which students who have money get ahead, while those who do not fall behind.”

In early June, I wrote my first column for The Chronicle, about three aspects of the AAPS budget proposal. ["Column: Disparate Impact of AAPS Cuts?"] One of the areas I wrote about was seventh hour, a term that refers to the option of taking a seventh class during a semester, rather than the more standard six classes.

I was concerned about issues of equity – about Skyline students being able to acquire 7.5 credits in a year without paying, while Pioneer and Huron students could only earn 6 credits in a year for free. I was concerned about students losing access to the arts. I was concerned about disparate impacts.

I assumed that – as with many other proposals – this idea was poorly conceived, but legal.

A couple of days after my column was published in The Chronicle, I talked with the ACLU’s Kary Moss. (Full disclosure: Kary is a friend of mine, and we frequently discuss education issues. And that first Ann Arbor Chronicle column ended up as “Exhibit 4” in the ACLU complaint.)

Kary suggested to me that she was concerned about seventh hour, too – because she believed the move to charge tuition was unconstitutional.

Unconstitutional?! That thought had not even occurred to me. [Full Story]

After a four-month pause in court action on a lawsuit filed against the Ann Arbor Transportation Authority – for its refusal to place an anti-Israel ad on its buses – a ruling came earlier this week. Federal judge Mark Goldsmith did not agree with Blaine Coleman and the ACLU’s argument that the preliminary injunctive relief to which they were entitled should take the form of placing the ad on AATA buses.

On the general motion for a preliminary injunction made by the ACLU, Goldsmith had earlier ruled in the case that the AATA’s policy – under which the advertisement had originally been rejected – was unconstitutional. In light of that ruling, the AATA then changed its advertising policy to remove a … [Full Story]

The Detroit Free Press reports that Paul Dobrowolski has filed a federal lawsuit against the city of Ann Arbor and police chief John Seto, alleging that his Constitutional rights have been violated. Dobrowolski, an anti-abortion activist, has been ticketed for violating city code that prohibits parking a vehicle on a street with the purpose of displaying advertising. Dobrowolski was ticketed for parking outside of Planned Parenthood in Ann Arbor with a sign in his car that included information about a facility that provides free ultrasounds. [Source]

In an order filed Dec. 17, 2012, judge Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan has ruled that the Ann Arbor Transportation Authority must reconsider an advertisement it had previously rejected for placement on the sides of its buses. [.pdf of Dec. 17, 2012 court order] The ad included the text “Boycott ‘Israel’ Boycott Apartheid.”

In the course of the lawsuit, which was filed by Ann Arbor resident Blaine Coleman over a year ago, the court found in favor of Coleman on his request for a preliminary injunction. But Goldsmith left the question of appropriate relief to be determined. Since that initial ruling, the AATA board, at its Nov. 29, 2012 meeting, revised its advertising … [Full Story]

Ann Arbor Transportation Authority special board meeting (Nov. 29, 2012): A pending lawsuit against the AATA – for refusing to allow a “Boycott ‘Israel’ Boycott Apartheid” advertisement to appear on the sides of its buses – provided the context for a special meeting of the board. A unanimous vote to approve changes to the AATA’s ad policy came after board members were briefed by outside legal counsel in a closed session. [.pdf of marked up revised AATA ad policy]

Among other clarifying changes, a key clause that’s been deleted from the policy is one that previously allowed the AATA to disqualify an ad based on “good taste.”  That clause was crucial in the court’s analysis – as part of an initial ruling in the case – that the AATA’s advertising policy was unconstitutional.

The revised policy is meant still to exclude the ad that the AATA rejected, prompting the lawsuit. The change to the AATA advertising policy was characterized at the meeting as bringing the policy into compliance with a ruling from late October of this year made by the 6th Circuit of the U.S. Court of Appeals – involving a different transit advertising case. The AATA, in a recent brief filed with the court in the current lawsuit, has argued that the 6th Circuit ruling provides support for the AATA ad policy’s “scorn and ridicule” clause.

At the Nov. 29 meeting, board chair Charles Griffith also indicated that the AATA hopes the changes to the ad policy would resolve the issues that had been brought against the AATA in connection with the lawsuit. The suit was filed a year ago by Ann Arbor resident Blaine Coleman, who’s being represented by the ACLU.

The case has not yet proceeded to trial, but the court made an initial ruling on Sept. 28 on a motion for a preliminary injunction, finding in favor of Coleman. What the court is currently weighing is the determination of appropriate relief in connection with the preliminary injunction. The court has indicated it’s willing to consider a range of possibilities – from forcing the AATA to place the ad on its buses to allowing the AATA to revise its advertising policy.

A status conference among the parties in the lawsuit is scheduled for Dec. 6. The next regularly scheduled AATA board meeting had been for Dec. 20 – which prompted the special meeting before the status conference. The AATA has argued to the court that the form of injunctive relief that’s appropriate in the case is to allow the AATA to revise its advertising policy. The status conference will now take place in the context of the AATA having already taken the step it’s argued would be appropriate.

The AATA anticipates a net of $120,000 from its advertising program for FY 2013, in a total revenue budget of roughly $32 million.

A second piece of business transacted by the board at the Nov. 29 special meeting was a resolution that acknowledged the Title VI requirements related to the AATA’s planned service improvements on Route #5, which runs down Packard toward Ypsilanti, and that set Jan. 27, 2013 as a start date for the more frequent service. Two weeks earlier – at the board’s Nov. 15, 2012 meeting – a re-programming of funds necessary to pay for the increased Route #5 service had been authorized by the board. Title VI is the civil rights legislation that in the context of public transportation requires proof that a service change has no adverse effect on disadvantaged populations.

Route #5 has two branches – between downtown Ann Arbor and downtown Ypsilanti, and between downtown Ann Arbor and the Carpenter Road Meijer. The current service level runs buses every 15 minutes on the main trunk of the two branches. It’s on the branch that is primarily within the city of Ann Arbor where frequency will be increased – with the result that service on the main trunk will be every 10 minutes.

The Route #5 item was added to the agenda the same day as the Nov. 29 meeting, in an effort to eliminate the need for the board’s regular December meeting – on Dec. 20. The Route #5 service had been the only voting item anticipated for that regular meeting, so the Dec. 20 meeting has now been cancelled.  [Full Story]

A special meeting of the Ann Arbor Transportation Authority board has been called for Thursday, Nov. 29, 2012 starting at 4 p.m. at the AATA headquarters, 2700 S. Industrial Highway. The meeting, which was announced via email on Nov. 21, did not have an agenda set until Nov. 28. The agenda includes a closed session and an item that would revise the AATA’s advertising policy. [.pdf of board packet, including revised advertising policy]

The board’s meeting comes in the context of a legal case that’s pending against the AATA for refusing to run an advertisement on the sides of its buses that states, “Boycott ‘Israel.’” The initial substantive ruling in the case went against the AATA, when the judge … [Full Story]

Additional briefs have now been filed by the parties in a bus advertising lawsuit – in response to a court ruling against the Ann Arbor Transportation Authority issued on Sept. 28, 2012.

Plaintiff Blaine Coleman had attempted to purchase an advertisement on AATA buses that included the text “Boycott ‘Israel’ Boycott Apartheid,” and an image depicting a scorpion-like creature with a skull for a head. [.pdf of image and text of proposed ad] Coleman filed suit last year on Nov. 28, 2011.

In the Sept. 28 ruling, Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan denied the AATA’s motion to dismiss the case. Goldsmith also granted plaintiff Blaine Coleman’s request for a preliminary injunction. But Goldsmith did … [Full Story]

A court ruling on Friday did not settle the issue of whether the Ann Arbor Transportation Authority must run an anti-Israel ad on the side of its buses.

However, the Sept. 28 ruling – by judge Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan – did deny AATA’s motion to dismiss the lawsuit, filed last year on Nov. 28.

The court granted the American Civil Liberties Union motion, filed on behalf of plaintiff Blaine Coleman, for a preliminary injunction against the AATA. But the court stopped short of granting the ACLU’s requested relief, which was to force the AATA to run the ad.

The court’s ruling calls forcing the AATA to run the ad “certainly a legitimate relief option.” However, another possibility sketched out by the court would be to have the AATA craft a “new [advertising] policy without the constitutional infirmities identified by this opinion.” On that scenario, the court allowed the possibility that the injunctive relief to which Coleman would be entitled could be this: Reconsideration of his ad under a revised advertising policy that is constitutional.

A decision on the relief to be granted to Coleman and the ACLU will emerge from a process defined in the Sept. 28 ruling.  The ACLU has until Oct. 15 to file a brief on what it thinks the proper remedy and relief should be. From the time the ACLU files that brief, the AATA will have 14 days to respond. The court will then weigh those written briefs before making a decision on relief, and might schedule a hearing before deciding that issue. [.pdf of Sept. 28, 2012 court ruling on AATA advertising case]  [Full Story]

Ann Arbor city council meeting (July 2, 2012): The council’s agenda was relatively light, consisting of several apparently unrelated items. But for some agenda items, “sustainability” was a common theme.

Most obviously fitting that theme was a resolution passed by the council directing the city’s planning commission to incorporate 16 sustainability goals into the city’s master plan. The 16 goals, which were compiled from existing planning documents, had worked their way through a community engagement process and were adopted by several city commissions before arriving before the city council. The goals fall into four categories: climate and energy; community; land use and access; and resource management.

Clearly related to land use and access (the goal of “preserve our natural systems”), as well as resource management (“eliminate pollutants in our air and water systems”) was a resolution directing city staff to develop a “green streets” policy. The policy would formalize an approach to stormwater management that would allow city street projects to incorporate various technologies to mimic natural processes, to reduce the amount of stormwater runoff that goes directly into the city’s stormwater pipes and on into the Huron River. Features like bioswales, for example, would filter stormwater through natural systems so that pollutants from street surfaces would not flow directly to the river.

The river itself was part of the meeting’s sustainability theme as it was highlighted with a mayoral proclamation in honor of Huron River Day, which falls on July 15 this year.

Among the specific sustainability goals in the category of “community” is one that addresses economic sustainability: “Develop a prosperous, resilient local economy that provides opportunity by … rewarding investment in our community …” In that spirit, the council took the first step toward awarding a tax abatement to Barracuda Networks, a company that recently announced it’s moving from its Depot Street location into downtown Ann Arbor as part of a planned expansion of its workforce.

Another agenda item could be analyzed as part of the “integrated land use” and “economic vitality” sustainability goals: final approval of a rezoning request for the Shell station on the northeast corner of Ann Arbor-Saline and West Eisenhower Parkway.

Fitting into the “community” sustainability category was a resolution that made Ann Arbor a member of the Washtenaw Health Initiative (WHI) by authorizing a $10,000 annual membership fee. The goal of the WHI is to help local health care providers handle an influx of an estimated 50,000 newly insured patients when federal health care reforms take effect in 2014. The specific sustainability goal is to “provide services that meet basic human needs of impoverished and disenfranchised residents to maximize the health and well-being of the community.”

The council also approved appointments to three city commissions that are connected thematically to the sustainability goals – environmental, greenbelt advisory, and planning.

Making the city of Ann Arbor more financially sustainable is not an explicit part of the sustainability goals adopted by the city council. Yet financial sustainability could be seen as an outcome of the council’s ratification of three different union contracts. All three contracts increase the retirement benefit vesting period for new hires from five to 10 years, and increase the period for the final average compensation calculation to five years from three. The three labor groups that had their contracts ratified were the police professional assistants, civilian supervisors, and the deputy police chiefs.

Some of the public commentary also featured a sustainability theme – as former Allied Bendix engineer Kermit Schlansker outlined the energy efficiency benefits of cisterns. Also weighing in during public commentary were opponents of the new “smart meters” that are being installed by DTE Energy in Ann Arbor and other Michigan communities.

In other business, the council approved a weapons screening contract with the Washtenaw County sheriff’s office – for the 15th District Court, located inside the new justice center along with the Ann Arbor police department.

During communications time, city attorney Stephen Postema updated the council on legal action related to the Dream Nite Club, which had its liquor license revoked earlier this year. He said four significant court rulings on lawsuits filed by the club’s owners against the city had gone the city’s way.

The council’s communications also included mention of two ballot questions that voters might have to decide in November. One is a renewal of the park maintenance and capital improvements millage. The council is almost certain to place that millage renewal on the Nov. 6 ballot. Another question is less certain – one that would change the city charter to require a voter referendum, if the city were to lease parkland. The charter already prohibits the sale of parkland without a referendum. [Full Story]

At its May 7, 2012 meeting, the Ann Arbor city council approved two change orders totaling $46,238 to resolve all remaining issues related to a lawsuit that CMA Design/Build Inc. had filed against the city in connection with the construction of hangars at the Ann Arbor municipal airport.

The original contract was approved by the city council on May 5, 2008 for $2.390 million, of which $1.101 million was for the local share. Because CMA failed to complete the project, Ann Arbor terminated the contract and CMA’s bonding company, North American Specialty Insurance Co., finished up the work. CMA filed suit against the city; and one of CMA’s subcontractors filed suit against CMA. Claims by CMA involved costs it incurred due to stop work orders … [Full Story]