Ann Arbor Election Eligibility Lawsuit: Update

Briefs now all filed in Bob Dascola's lawsuit as he seeks to be placed on Ward 3 Ann Arbor city council primary ballot

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.

All the briefs have now been filed in Bob Dascola's lawsuit, which he filed in order to appear on the ballot for Ward 3 city council.

Extracted from the cover page of one of the briefs from Bob Dascola’s lawsuit. All the briefs have now been filed in the lawsuit, which Dascola filed in order to appear on the ballot for Ward 3 city council. A decision is expected before the ballots go to the printer.

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.

Ann Arbor City Charter Durational Requirements

The Ann Arbor city charter includes two types of one-year durational requirements for city council candidates: voter registration in the city and residency in the ward they seek to represent. From the Ann Arbor city charter [emphasis added]:

Eligibility for City Office – General Qualifications
Section 12.2. Except as otherwise provided in this charter, a person is eligible to hold a City office if the person has been a registered elector of the City, or of territory annexed to the City or both, and, in the case of a Council Member, a resident of the ward from which elected, for at least one year immediately preceding election or appointment. This requirement may be waived as to appointive officers by resolution concurred in by not less than seven members of the Council.

The Complaint: Feld and HRP

Dascola contends he has lived in Ward 3 since about Sept. 15, 2012, but he allows that he did not register to vote in the city of Ann Arbor until Jan. 15, 2014. So according to Dascola, he meets the residency requirement but does not meet the voter registration requirement.

Ann Arbor’s residency requirement was struck down in federal court as unconstitutional in January 1972 [Feld v. City of Ann Arbor] and the voter registration requirement was struck down in March of the same year [HRP v. City of Ann Arbor].

Dascola’s complaint is based on findings by the U.S. District Court in both the Feld and the HRP cases that the durational requirements were null and void. From Dascola’s complaint: “Neither the Feld, nor the Human Rights Party, decision was appealed, nor has either been overruled, vacated or modified in any way.” [.pdf Dascola v. City of A2: Complaint]

Dascola’s Request for Summary Judgment

Immediately after filing the complaint, Dascola’s attorney Tom Wieder filed a motion for summary judgment – asking the court to find in Dascola’s favor without a full trial. The brief makes essentially the same arguments in the initial complaint: The city’s charter requirements were ruled unconstitutional in Feld and HRP.

From the motion for summary judgment: “The Defendants [city of Ann Arbor] are improperly and illegally relying and acting upon one or more former provisions of the City Charter which are void and of no effect and, in so doing, are depriving Plaintiff of his constitutional right to seek elective office, as well as depriving the electors of the Third Ward of their right to vote for Plaintiff.” [.pdf Dascola v. City of A2: Motion for Summary Judgment]

The part of the argument on which the ruling in Dascola’s case could turn is the idea that once charter provisions have been explicitly ruled unconstitutional and declared null and void – as in Feld and HRP – they are not merely dormant, possibly to be awakened, but rather do not exist at all, and it’s as if they’d never been written. The brief cites a body of Michigan case law in support of that notion.

City’s Response to Motion for Summary Judgment

The city’s response to the motion for summary judgment includes a potential factual dispute. The city points out that in spite of Dascola’s claim that he has resided in Ward 3 since about Sept. 15, 2012, he didn’t change his voter registration or driver’s license to an Ann Arbor address until Jan. 15, 2014. And when Dascola filed an application on Dec. 1, 2013 to be appointed to the city’s pedestrian safety task force, he gave a Grass Lake address as his home address and marked “No” on the application’s question about city of Ann Arbor residency. [.pdf of Dascola's application to the pedestrian safety task force]

The application is included as an exhibit in the city’s brief. But the brief does not appear to mention that in the same application, 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] The city’s response to the motion for summary judgment does not appear to include the barber’s license renewal.

Factual issues aside, the city’s legal position, as conveyed in the response to the motion for summary judgment, is that the Feld and HRP decisions from the early 1970s are no longer the controlling law in the matter. Among the decisions the city contends should be used to judge the current case is a 2002 Washtenaw County circuit court case [Wojack v. City of Ann Arbor opinion], which relied nearly exclusively on a 1981 federal court decision [Joseph v City of Birmingham (ED Mich 1981)].

The Wojack case involved Republican candidate Scott Wojack, who sought to run for Ward 1 city council. Wojack met the voter registration requirement – because he’d been registered to vote in the city for more than a year – but did not meet the ward residency requirement, because he’d moved, within the city, to Ward 1 under a year before the election. Wojack was allowed to appear on the ballot, but lost the election. The Wojack decision, upholding the Ann Arbor city charter’s durational residency requirement, came after the election.

Also among the cases the city of Ann Arbor wants the court to use in deciding Dascola’s lawsuit is a Detroit case from 2013 [Barrow v Detroit Election Commission]. That involved a challenge by Tom Barrow to the eligibility of Mike Duggan to appear on the ballot for mayor, because Duggan did not meet Detroit’s one-year durational voter registration requirement. One wrinkle in the the Barrow case is that the Detroit requirement dates from the time of filing petitions, not the date of election. Duggan was ultimately ruled ineligible, even though he would have been eligible if he had waited a few days to file his petitions. [.pdf Dascola v. City of A2: Response to Motion for SJ]

Dascola’s Reply to City’s Response to Motion for Summary Judgment

Dascola’s reply to the city’s response to the motion for summary judgment reviews much of the ground covered previously.

The argument on which the case could possibly turn is reiterated: The idea that once charter provisions have been explicitly ruled unconstitutional and declared null and void – as in Feld and HRP – they are not merely dormant, possibly to be awakened, but rather do not exist at all, and it’s as if they’d never been written. A second part of that argument is to question by what orderly process charter provisions could be revived – whatever it is, the contention is that the city has not followed one. [.pdf Dascola v. City of A2: Reply in Support of Motion for SJ]

City’s Motion to Dismiss

The city has also filed a motion to dismiss the case. The arguments in the brief supporting the motion to dismiss were incorporated into the motion opposing Dascola’s motion for summary judgment, so there’s a considerable overlap in material. The city assumes for the purposes of this motion that Dascola does meet the residency requirement, just not the voter registration requirement. However, the city mixes in arguments throughout dealing with residency.

The city contends that this is virtually the exact same issue that was decided in the Wojack case, which was decided in the city’s favor by a state circuit court – with respect to the residency requirement. The city’s motion to dismiss includes a lengthy discussion of why the standards under which the Wojack and Barrow cases decided were appropriate. Those standards did not involve strict scrutiny but rather only an intermediate level of scrutiny.

The city’s motion to dismiss also anticipates an argument that someone might try to make in favor of using the Feld and HRP cases – based on the principles of res judicata and collateral estoppel. Those principles bar claims and issues that have already been litigated and decided from being litigated yet again. The city gives various argument why it thinks those principles don’t apply here.

The inclusion of these principles seems to be an attempt to respond, possibly indirectly, to the arguments made in Dascola’s motion for summary judgment – that once a law has been found unconstitutional and declared null and void, then the law is as if it had never been written. [.pdf Dascola v. City of A2: Motion to Dismiss]

Dascola’s Response to Motion to Dismiss

Dascola’s response to the city’s motion to dismiss the case includes material that is meant to contrast Dascola with the kind of candidate that eligibility requirements are in place to prevent:

The City implies that Plaintiff Dascola is some sort of aggressive interloper who is trying to exploit legal loopholes so he can parachute into the city and do political mischief. Fortunately, neither of these portrayals bears any resemblance to the truth. … Robert Dascola is nothing like the hypothetical individual whom durational eligibility requirements are designed to exclude. Mr. Dascola is 68 years old and was born and raised in the City of Ann Arbor. … Mr. Dascola has spent his entire career as a barber, always working in the City of Ann Arbor. For the past ten years, he has been on the Board of the State Street Area Association. He is a founder of Fire Up Downtown and Friends of West Park (a city park). He was appointed to the Allen Creek Storm Water Management Committee, which deals with a major infrastructure element in the City of Ann Arbor.

In term of legal arguments, Dascola’s response touches briefly on Wojack – a case that Dascola’s attorney Tom Wieder also litigated – but notes that it dealt only with the residency requirement, not the voter registration requirement.

So the focus is on the Barrow case, which dealt with voter registration. Barrow is described as unconvincing, because it “was based solely on the constitutional right to travel, and the court’s ruling is limited to saying that the voter registration requirement did not implicate or violate the constitutional right to travel.” The brief argues that other possible constitutional challenges to Detroit’s eligibility requirements – based on the First Amendment, the right to vote or equal protection – were not considered in Barrow.

The brief goes on to point out the Barrow opinion’s conflation of arguments for residency requirements with requirements on voter registration. The Barrow opinion quotes the governmental interest in eligibility requirements from the Joseph case:

(1) the interest in exposing candidates to the scrutiny of the electorate, so voters may make informed choices; (2) the interest in protecting the community from outsiders who are interested only in their own selfish ends and not seriously committed to the community; and (3) the interest in having officeholders who are familiar with the problems, interests, … and feelings of the community. (Joseph, 510 F.Supp. at 1336.) Barrow, at p. 424.

Those are interests that appear to support residency requirements, but not voter registration requirements in addition to voter registration requirements. However, the Barrow opinion concludes: “These justifications … support the charter’s requirement that candidates must be registered voters for one year when filing for office.”

The response to the motion to dismiss also questions whether state courts (in Wojack and Barrow) can overturn decisions made by the federal courts in Feld and HRP. The real centerpiece of the legal argument in the brief, however, is the idea that once decisions have been made that charter provisions are null and void – as in Feld and HRP – it is not possible to revive them, except by an overturning of those decisions. And that, the brief argues, has not happened. [.pdf Dascola v. City of A2: Response to Motion to Dismiss]

City’s Reply to Response to Motion to Dismiss

The city’s reply to Dascola’s response to the motion to dismiss includes an interesting footnote that portrays the rationale for allowing Wojack on the ballot in 2001: “The then City Attorney recognized that Mr. Wojack had no likelihood of election, and that the validity of his candidacy could be decided if he were to win.”

In large part, this brief reviews ground covered in other briefs. A footnote argues that Dascola has not proven that he meets the residency requirement. The note reiterates that the only facts entered into evidence on the question indicate that he does not meet it – based on the date of this voter registration and the application for the pedestrian safety task force. [.pdf Dascola v. City of A2: Reply to Response to Motion to Dismiss]

The brief includes the description of a 2003 Ann Arbor charter referendum that was defeated. The city’s brief presents that vote as an effort to clarify the status of the voided charter provisions, and appears to conclude that the outcome reflects Ann Arbor residents’ desire to retain pre-election durational eligibility requirements for city officers. [For discussion of the other issues at stake in that referendum, see "Column: Ann Arbor's Dumb Old Charter."]


Here are links to .pdf files of the briefs filed so far, in chronological order:

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  1. By Mark Koroi
    April 24, 2014 at 6:13 pm | permalink

    Several interesting points:

    (1) One of Mr. Dascola’s briefs makes reference to the fact that Larry Kestenbaum ran for Ann Arbor City Council in 1999 (he eventually lost to GOP nominee Marcia Higgins in the November election by a narrow margin)without apparently meeting the durational residency requirements at issue herein – this shows that the City Clerk treated the City Charter requirement as void and unenforceable in apparent recognition of the federal court ruling issued in 1972 by Judge Gubow;

    (2) One of the key points raised by Mr. Dascola is that Judge Gubow’s order striking down of the City Charter provision at issue as void and unenforceable must be vacated before that provision can be enforced, in other words, the voided provision cannot be resurrected in a separate case – assuming this argument is valid, all the city would have had to have done to enforce the provision is amend the City Charter to reinstate the voided provision if a separate court had felt the voided provision was now constitutional due to an intervening change in the law;

    (3) Mr. Dascola is seeking an award of attorney fees under federal law – this could end up costing the City of Ann Arbor tens of thousands of dollars in legal fees if he attains a “prevailing party” status under the Federal Civil Rights Act – the AATA forked over money to the ACLU in settlement of the “Boycott Israel” First Amendment litigation after the plaintiff therein obtained a preliminary injunction against the AATA;

    (4) Postema is seeking attorney fees against Mr. Dascola in his Motion to Dismiss – this seems odd the City Attorney would seek a fee award against a citizen who simply wants his name on the City Council Democratic primary ballot – this smacks of hardball tactics by City Hall;

    (5) An irony is that Mr. Dascola is getting plenty of free publicity for his City Council candidacy via this litigation;

    (6) A second ironic twist is that Julie Grand’s husband is a magistrate judge in the same United States District Court as Judge Zatkoff – although Judge Grand sits in the Ann Arbor federal building while Judge Zatkoff hears cases in Detroit.

  2. April 24, 2014 at 6:32 pm | permalink

    Re: [1]

    As long as you pointed out that connection, Mark, it’s worth making explicit how this was handled procedurally by the court. There’s a docket entry with notice to the parties about the relationship. Here’s further clarification from Rod Hansen, Media Information Officer United States District Court, who responded to a query from The Chronicle:

    Magistrate Grand is not assigned to the case in any way, so there is no conflict – this is the most important point. I believe Magistrate Grand advised the assigned judge of the situation in the interest of total transparency. Judge Zatkoff then disclosed the matter to the parties as is evidenced by the docket entry. That disclosure then gives the parties the opportunity to argue for disqualification, change of venue, or any other relief they might feel is appropriate. Generally, the judges are bound by the Code of Conduct for United States Judges which you can find on For example, Canon 3(A)(6) states in part that a judge should not make public comment on a matter pending or impending in the court.

    [.pdf of docket entry with notice to parties]