Judge Puts Dascola on Ward 3 Ballot

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 his downtown barbershop, shortly after getting the news that the court had ruled in his favor, Bob Dascola showed The Chronicle photos of himself as a clown participating in Ann Arbor’s Fourth of July parade – something he has done for several years. He will be participating again this year – also as a clown, not as a city council candidate, because he’s already registered his parade entry that way.

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.

Ann Arbor City Charter Durational Requirements

The words printed in the Ann Arbor city charter include 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 contended he has lived in Ward 3 since about Sept. 15, 2012, but he allowed that he did not register to vote in the city of Ann Arbor until Jan. 15, 2014. So according to Dascola, he met the residency requirement but did 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]. The voter registration requirement was struck down in March of the same year [HRP v. City of Ann Arbor].

Dascola’s complaint was 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 eventually turned 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 included a potential factual dispute. The city pointed 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 was 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 was 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 that the city of Ann Arbor wanted the court to use in deciding Dascola’s lawsuit was 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 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 reviewed much of the ground covered previously.

The argument on which the case could possibly turn was 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 had not followed one [.pdf Dascola v. City of A2: Reply in Support of Motion for SJ].

Other Motions, Briefs

The city also filed a motion to dismiss along with a supporting brief. That got a response from Dascola and a reply from the city. Much of the material in those briefs covered ground also addressed in the briefs on the motion for summary judgment.

Zatkoff also ordered supplemental briefs that were to focus exclusively on the 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?

All of those briefs are included in the complete set of briefs in the final section of this report.

Opinion: Finding for Dascola

The first four pages of Zatkoff’s 17-page opinion recite the historical background of the case. One highlight from that description is Zatkoff’s characterization of the status of the Feld and HRP decisions [emphasis added]:

Both parties agree that neither the Feld nor Human Rights Party decisions were appealed by the City. Further, neither party argues that the Feld and Human Rights Party decisions were ever explicitly overruled, vacated, or modified; indeed, these decisions have never been reviewed or reversed, and thus remain intact.

The analysis section begins with the controlling question on which Zatkoff had asked the parties to file supplemental briefs: If a law is found “unconstitutional and void” by a federal district court, must that law be officially re-enacted before it is enforced?

Zatkoff concludes that on both sides, much of the briefing material that had been submitted had no relevance to that controlling point. About the city’s argument that the charter requirements are, in fact, constitutional, Zatkoff states: “Deciding the constitutionality of the language contained in Section 12.2 of the Charter as if it had been passed today is not the question before the Court.” The opinion continues by noting that the Wojack decision was also not relevant to the question to be decided.

In evaluating the arguments on the basic question, Zatkoff concludes: “Additionally, the Court has not found – nor has either party presented – a case from any circuit indicating that a law found unconstitutional and void that remains intact need not be re-enacted prior to enforcement.”

Zatkoff analyzes three of the city’s arguments, as put forward by city attorney Stephen Postema. First, the city contended that the Feld and HRP decisions did not “repeal” the Ann Arbor city charter requirements, but rather found them null and void – as “repealing” a charter requirement was something that only a city could do through a legislative process under Michigan’s Home Rule City Act. The judiciary was not empowered to “repeal” a charter requirement, the city argued. Zatkoff rejected that argument, saying:

Furthermore, Defendants’ argument is premised on the flawed notion that the term “void” is materially different than “repeal,” and that the only way a law may become unenforceable is if the law is officially “repealed.” The 4th edition of Black’s Law Dictionary defines “void” as “[n]ull; ineffectual, nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it was intended.” Regardless of the definition of “repeal,” this definition of “void” demonstrates that the intent behind the Feld and Human Rights Party decisions was to give the Charter provisions “no legal force or binding effect.”

The city’s next argument analyzed by Zatkoff is one based on the idea that a federal court order applies only to the plaintiff in a particular case: “By arguing that prior federal court orders are only effective for the plaintiff(s) in those cases, Defendants are incorrectly attempting to apply a rule exclusively based on the Declaratory Judgment Act to all decisions made by federal courts.”

The argument is fatally flawed, Zatkoff concludes, because, it creates an “individual challenge” requirement, which would be inconsistent with the basic principles of the federal judicial system. Those basic principles include one expressed in Marbury v. Madison from 1803: “It is emphatically the province and duty of the judicial department to say what the law is.” The city of Ann Arbor’s argument “seeks to destroy this pillar of the legal system,” Zatkoff writes.

Zatkoff then characterizes the city’s position as reserving for itself to say what the law is:

The Court is deeply troubled by this proposition. First, the Defendants fail to indicate any authority granting the City the power to say “what the law is.” Further, the Defendants have provided no indication as to when exactly these voided provisions of the Charter “became” constitutional again. Additionally, the Defendants provided no evidence that notice as to “what the law is” was ever given to the public. In sum, the Defendants have provided absolutely no authority as to why this Court should simply abandon the basic principles of law that have formed the foundation of the United States legal structure for over two hundred years. The Court refuses to do so at this time.

The order from the court permanently enjoins the city from enforcing the city charter eligibility requirements – unless they are re-enacted. That means the council will need to put those or some different requirements before voters to enact – if the city of Ann Arbor wants to be able to enforce eligibility requirements on elected officials.

In explaining why he is issuing a writ of mandamus, Zatkoff points to the city’s failure to follow the federal court’s orders in the HRP and Feld cases:

Additionally, taking into consideration the Defendants’ demonstrated inability (or unwillingness) to follow the explicit orders issued by federal courts with regards to the constitutionality of the provisions at issue, the Court finds that issuing a writ of mandamus is necessary to guarantee Plaintiff receives the relief to which he is entitled.

Briefs

Here are links to .pdf files of the briefs and opinion:

• 03.28.14 [.pdf Dascola v. City of A2: Complaint]
• 03.29.14 [.pdf Dascola v. City of A2: Motion for Summary Judgment]
• 04.14.14 [.pdf Dascola v. City of A2: Motion to Dismiss]
  
• 04.14.14 [.pdf Dascola v. City of A2: Response to Motion for SJ]
• 04.18.14 [.pdf Dascola v. City of A2: Reply in Support of Motion for SJ]
• 04.18.14 [.pdf Dascola v. City of A2: Response to Motion to Dismiss]
• 04.23.14 [.pdf Dascola v. City of A2: Reply to Response to Motion to Dismiss]
• 05.06.14 [.pdf Dascola v. City of A2: Plaintiff's Supplemental Brief]
• 05.06.14 [.pdf Dascola v. City of A2: Defendant's Supplemental Brief]
• 05.08.14 [.pdf Dascola v. City of A2: Motion for Leave to File Amended Complaint]
• 05.09.14 [.pdf Dascola v. City of A2: Response to Motion for Leave to File AC]
• 05.11.14 [.pdf Dascola v. City of A2: Reply to Response to Motion for Leave]
• 05.20.14 [.pdf of Dascola v. City of A2: Opinion]
• 05.20.14 [.pdf of Dascola v. City of A2: Judgment]

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