Lawsuit Now Filed on Dascola Candidacy

Complaint filed on March 28 to assert Dascola's right to appear on the Aug. 5 Democratic primary ballot for Ward 3 city council

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.

Bob Dascola, who owns a barbershop in downtown Ann Arbor, has filed a lawsuit to assert his right to appear on the ballot as a candidate for Ward 3 city council.

Bob Dascola, who owns a barbershop in downtown Ann Arbor, has filed a lawsuit to run for Ward 3 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.”

Residency Requirement

The lawsuit, filed on Dascola’s behalf by local attorney Tom Wieder, contends that Dascola has been a Ward 3 resident since about Sept. 15, 2012, which would meet the one-year residency requirement. On that question, the court may need to make a determination as to the facts.

In an application Dascola filled out on Dec. 1, 2013 to be appointed by the city council to a pedestrian safety task force, he checked an item on the application indicating he was not a city resident. [.pdf of Dascola's application to the pedestrian safety task force] That would put him a few weeks outside the city charter’s one-year residency requirement. But on the same form, Dascola seems to indicate a habitual lodging at the Baldwin Avenue address in Ward 3, where he contends he’s been a resident since Sept. 15, 2012: “I walk to work every day from Stadium and Packard area and have to use crosswalk at Baldwin. I have witnessed an accident because a driver wasn’t paying attention and was almost hit by car.”

Under Michigan election law, for purposes of voting and registration, habitual lodging is one way to determine residency:

168.11 “Residence” defined.
Sec. 11. (1)  ”Residence”, as used in this act, for registration and voting purposes means that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a person has a residence separate from that of his or her spouse, that place at which the person resides the greater part of the time shall be his or her official residence for the purposes of this act. This section does not affect existing judicial interpretation of the term residence

Also supporting Dascola’s contention of residency at the Baldwin address for a year before the 2014 election is his application for renewal of his barber’s license on Aug. 8, 2013, which gives his Baldwin address. [.pdf of Dascola's barber's license renewal]

Voter Registration Requirement

On the question of voter registration, there does not appear to be any dispute on the facts. Dascola did not register to vote in the city of Ann Arbor until Jan. 15, 2014. So he falls about two months short of the one-year charter requirement on voter registration.

In defending the charter requirements, the city of Ann Arbor is likely to point to a ruling in the Washtenaw County circuit court from 2002 by judge Tim Connors on the Wojack case. However, the ruling from Connors focused on the residency requirement, not the voter registration requirement.

The Wojack case – also handled by Wieder – involved the 2001 candidacy of Republican Scott Wojack to run in Ward 1. Wojack was told he could not run based on the in-ward residency requirement. He was allowed to run. But after the 2001 election, Connors issued an opinion upholding the charter residency requirement. [Wojack v. City of Ann Arbor opinion] In that ruling, upholding the charter’s residency requirement, Connors relied on a 1981 federal court decision: [Joseph v City of Birmingham, 510 F Supp 1319, 1327 (ED Mich 1981)]

Status of Voided Charter Provisions

The complaint filed in federal district court on March 28, 2014 gives some indication of the city’s likely approach to the case, by quoting a March 24 email sent by city attorney Stephen Postema: “[W]e believe that they [city charter requirements] are no longer void in light of subsequent changes in federal and Michigan jurisprudence.” So a key question before the federal district court will likely be whether subsequent rulings in jurisdictions other than Ann Arbor can in some way revive Ann Arbor charter provisions that were explicitly ruled void by a federal court.

The complaint asks the court to enjoin the city permanently from enforcing the city charter provisions on eligibility of candidates for city office. The complaint further asks the court to issue a writ of mandamus directing the city clerk “to accept and process any nominating petitions submitted by [Dascola] and determine his eligibility without regard to the voided provisions of [the city charter].”

In a phone interview on March 29, Wieder indicated he would be filing a motion for summary judgment in the case.

Context of Ward 3 Race

The only other candidate so far to take out petitions to run in the Ward 3 Democratic primary is Julie Grand, who also competed in the August 2013 primary. Incumbent Stephen Kunselman received more votes than Grand in that race.

Kunselman is not up for re-election in 2014, but is running for mayor, along with three other councilmembers: Sabra Briere (Ward 1), Sally Petersen (Ward 2) and Christopher Taylor (Ward 3). Because he cannot simultaneously run for mayor and run to retain his Ward 3 seat on the council, Taylor’s decision to run for mayor will leave that seat without an incumbent on the ballot.

Petitions for the partisan primary in August 2014 must be turned in by April 22. For councilmembers, 100 signatures are required from their ward. For mayor, the requirement is for 50 signatures from each of the city’s five wards, for a total of 250 signatures.

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  1. March 29, 2014 at 12:50 pm | permalink

    Dave: The “.pdf of Dascola’s application to the pedestrian safety task force” actually goes to a copy of the lawsuit.

  2. March 29, 2014 at 12:53 pm | permalink

    Re: [1] Thanks for the heads up. Link is now fixed: [link]

  3. By Mark Koroi
    April 1, 2014 at 1:34 am | permalink

    It should be noted that Ann Arbor is among the tiny minority of municipal and township jurisdictions in this state that does not elect its clerk, meaning that the City Clerk, Jackie Beaudry, is subordinate to the City Administrator.

    Would the City Administrator want anyone to oppose Ms. Grand in the Democratic primary? Possibly not. It would be interesting to determine if the City Administrator or City Attorney was the initiating “creative force” behind the denial of Mr. Dascola’s attempts to achieve ballot status.

    Obviously, Postema is defending this action, but did the City Administrator actually function as the primary force in this regard?

    It also would be interesting if Ms. Grand has articulated a position on this issue.

  4. April 1, 2014 at 9:38 am | permalink

    Jackie Beaudry is an excellent clerk and has always given very good customer service. The implication that her actions in this are politically motivated is unfounded and undeserved.

    I haven’t seen any evidence that Steve Powers is motivated by those kinds of political considerations, either. In this model, who would be behind such an action? Or is Powers the instigator? Really – this isn’t New Jersey.

    Incidentally, do you think that elected clerks are less political? They are usually part of a coalition of township politicians and often run against other political factions.

  5. April 1, 2014 at 10:32 am | permalink

    Political intrigue aside, the article notes that one key question before the court will be whether subsequent rulings in jurisdictions other than Ann Arbor can in some way revive Ann Arbor charter provisions that were explicitly ruled void by a federal court.

    And that’s a central argument in the brief Wieder has now added in support of his motion for summary judgement, which has since been filed. This part of the brief struck me as a particularly good read [Plaintiff is Dascola. Defendant is city of Ann Arbor and Jackie Beaudry]:

    There is a single legal issue which should be dispositive of this case. Once a law has been found by a court of competent jurisdiction to be “unconstitutional and void,” can that law subsequently be of any force and effect, absent any effective reversal, vacating or revision of the finding of the original court?

    Plaintiff asserts that the clear and unequivocal answer is “No,” a conclusion supported by consistent and voluminous decisions of Federal and Michigan courts. Those courts have consistently found that the status of such a voided law is that it is “as if the law had never been written.” It has been figuratively, if not literally, wiped off the books. Nothing can revive it from the dead and make it effective once again.

    Defendants assert a rather novel, alternative theory of what happens to such dead laws. It maintains that when some undefined quantity of subsequent jurisprudence emerges which differs from the original “voiding” decision, the voided law is magically “unvoided,” and a governmental body such as the City of Ann Arbor is free to resume applying and enforcing the voided law.

    Plaintiff is unaware of any authority for this novel theory, and Defendants have offered none. Moreover, the theory is vague in the extreme. How much subsequent jurisprudence must come into being for the voided law to be “unvoided?” Is a single case enough, or two or twenty? Can state court decisions unvoid a law voided by a federal court? Do decisions from other trial courts count, or only from appellate courts? Who gets to decide when the appropriate threshold has been reached? Can any governmental body decide on its own and resume application and enforcement of the voided law?

    Another way of stating the Defendants’ position is that if the earlier case which voided the law were being decided today, recent case law suggests that it would now be decided differently. The City would be free to reach this conclusion, ignore the original decision and act as if the voided law were in full force and effect.

    From there the brief goes on to give more technical legal arguments, complete with Latin phrases, citing case law in support of the idea that once a law has been found null and void, it’s just dead, forever.

    [.pdf of March 29, 2014 brief on motion for summary judgment]

  6. By Mark Koroi
    April 1, 2014 at 6:07 pm | permalink

    “Jackie Beaudry is an excellent clerk……..”


    The point I was attempting to make is that the actual decision to deny ballot status to Mr. Dascola may have resided with someone above Ms. Beaudry, who herself may have been merely “following orders”.

    It is not uncommon for a clerk to deny ballot status to someone for political purposes. The same motivation was suspected when Coleman Young had to sue the Detroit City Clerk in 1973 to get his name on the mayoral ballot to eventually become Detroit’s first black mayor.

    This public controversy may help Mr. Dascola get beneficial media exposure in the event he beats Postema in federal court.