Amended Complaint: More Dascola Filings

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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 week, Tom Wieder – the attorney for Dascola – filed a motion asking permission from the court to file an amended complaint. The motion for leave to file the amendment describes the nature of the amendments as clarifying the precise source of rights that Dascola is seeking to enforce in his lawsuit [the Equal Protection Clause of the 14th Amendment and his rights under 42 U.S.C. §1983], and to clarify the basis of the claim for attorney fees, if Dascola wins. The motion contends that the changes to the complaint are minimal and raise no new legal or factual issues. On its face, the motion appears intended to ensure that Wieder can be paid, if Dascola were to prevail.

However, in responding to the motion for leave to file an amended complaint, Ann Arbor city attorney Stephen Postema offers a cutting characterization. He calls it ”procedurally odd” and accuses Wieder of failing to exercise due diligence in filing the motion. In addition, Postema responds to arguments made in Wieder’s supplemental brief, on the substance of the lawsuit. The substantial issue raised by the lawsuit involves the status of laws – like the city’s charter durational residency and voter registration requirements – when those laws have been found to be unconstitutional, null and void by a federal court.

Wieder responded in kind to the city’s brief, writing that the city does the following:

1) Misrepresent the nature of the proposed Amendment; 2) Misrepresent authority on the issue of futility and its applicability to this case; 3) Continue its fabricated argument that Plaintiff claims Charter Section 12.2 was “repealed” by the Feld and HRP decisions; 4) Produce and present to the Court what is, essentially, a Response Brief to Plaintiff’s Supplemental Brief, although none was called for by the Court’s Order; and 5) Present a fanciful “parade of horribles” that will befall the Court, the candidates, “possible donors and supporters,” the public and the Defendants if the Amendment is allowed.

By way of background, 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 in April on motions for summary judgment and dismissal.

Here’s the complete set of briefs in the Dascola case, including the filings from last week.

One Comment

  1. By Mark Koroi
    May 14, 2014 at 8:32 pm | permalink

    In clarifying the basis of attorney fees award. Tom Wieder has cited 42 USC 1988.

    This is the Civil Rights Attorney Fees Awards Act of 1976 that was created by an Act of Congress to encourage effective access by private ordinary citizens to address abridgements of rights guaranteed under the U.S. Constitution.

    Under 42 USC 1988, the court has the broad discretion to award costs and attorney fees incurred by a prevailing civil rights plaintiff and the court will deny an award only in extraordinary cases. This provision gave the ACLU great leverage against the AATA to resolve the “Boycott Israel” bus sign litigation.

    Postema is seeking an award of legal fees against Mr. Dascola in his Motion to Dismiss.

    The prestige of the City Attorney’s Office is on the line to prevail against Mr. Dascola and obtain a dismissal of the federal court action.