Last Briefs Filed in Dascola Election Lawsuit

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 meets the residency requirement. He allows that he does not meet the voter registration requirement. But Dascola’s core legal claim is that the two charter provisions were struck down as unconstitutional, null and void in federal court cases dating from the 1970s. The city contends that it can enforce the two city charter requirements based on case law that evolved subsequent to the 1970s cases.

The court ordered an expedited schedule so that the issue might be resolved before early June, when ballots must be printed. Briefs, responses, and replies had already been filed on motions for summary judgment and dismissal.

The additional briefs, both filed on the afternoon of May 6, are supposed to focus just on the question of whether a law that has once been found to be unconstitutional must be officially re-enacted before it can be enforced. From the order on additional briefing:

The briefs shall focus solely on answering the following question: If a law is found “unconstitutional and void” by a federal district court, must that law be officially re-enacted before it is enforced? The briefs shall not focus on issues regarding collateral estoppel, res judicata or the “revival doctrine,” as the Court finds these issues have been addressed. The briefs must contain accurate and binding legal support, and are limited to seven (7) pages. [.pdf of April 30, 2014 court order on additional briefs]

The brief from Dascola’s attorney, Tom Wieder, answers the court’s question in the affirmative, arguing that the only way a Michigan city charter provision can be enforced – after it has been found unconstitutional, null and void in federal court – is for the charter provision to be re-enacted by the procedures outlined in Michigan law for revising a city charter: “[Charter provisions found to be unconstitutional, null and void], essentially, cease to exist and had no legal existence since the day they were enacted. Given this view, there is then no law to be enforced, because it is gone, or never was. Re-enactment is the only way the voided provisions could return as enforceable law.”

In support of this position, Wieder cites cases spanning 208 years. Wieder’s argument also relies on the idea that there has been no overruling or reversal of the two decisions from the early 1970s that found both of Ann Arbor’s durational requirements for city council candidates to be unconstitutional.

The city’s supplemental brief relies crucially on the idea that the finding of the city’s charter provisions as unconstitutional, null and void by the federal courts in the early 1970s did not amount to a repeal of those provisions – because courts do not have the power to repeal laws enacted through a prescribed legislative process: “The Michigan Home Rules [sic] City Act provides that the method for amending (or repealing) provisions of a municipal Charter is through a vote of the residents.” Instead of removing the charter provisions from the books, the city argues, such a finding made them unenforceable at that time. A law that is found unconstitutional “becomes unenforceable, but it is not erased,” the city argues.

The city’s argument cites a case from 1972 in New Jersey (YMCA of Princeton v. Kugler) where a federal court found that a declaratory judgment of a state statute’s unconstitutionality was only binding between the plaintiffs in a specific case (seven physicians) and the state of New Jersey. In that ruling, the state was allowed to enforce the statute against other physicians.

Here’s the complete set of briefs in the Dascola case: