Footing Drain Lawsuit Back to State Court

Federal judge will send case back to Washtenaw County’s 22nd circuit court, over objection from city of Ann Arbor's attorney

A lawsuit filed against the city of Ann Arbor over its footing drain disconnection ordinance will be remanded from federal court back to Michigan’s state court system – over the objection of the city of Ann Arbor. The indication came at an 11-minute hearing on Wednesday May 28, 2014 before federal district judge Avern Cohn at the Theodore Levin U.S. Courthouse in downtown Detroit.

Theodore Levin U.S. Courthouse in downtown Detroit.

Theodore Levin U.S. Courthouse in downtown Detroit.

The lawsuit had originally been filed against the city three months ago, on Feb. 27, in Washtenaw County’s 22nd circuit court. There it had been assigned to judge Donald Shelton. On March 17, about two weeks after it was filed, the city removed the case from the state court to the federal court.

But the plaintiffs in the case – Ann Arbor residents who had their footing drains disconnected from the sanitary sewer system under the city’s ordinance – filed a motion for remand back to the 22nd circuit court. At the Wednesday hearing, Cohn indicated that he’d be granting the motion for remand.

By way of background, the ordinance that’s being challenged was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the city’s sanitary sewer system. Its intent is to diminish the risk of sanitary overflows into the Huron River and of sanitary sewage backups in homeowners’ basements.

The lawsuit – Yu v. City of Ann Arbor – claims the city’s FDD ordinance violates: (1) the Michigan state law setting forth requirements for a government to take private property for public use; (2) the Michigan state constitutional prohibition against taking private property for public use without just compensation; (3) the corresponding U.S. constitutional prohibition against taking private property, which is a Fifth Amendment claim; and (4) the prohibition against violating the federally protected rights of others, which is a claim under 42 U.S. Code Section 1983.

In broad strokes, Cohn summarized all of the plaintiffs’ claims against the city as reducible to claims about inverse condemnation – taking of private property without just compensation. The plaintiffs contend that the city’s ordinance requiring disconnection of footing drains from the sanitary sewer system – and its associated installation of a sump with a pump – is a physical occupation of a homeowner’s property with equipment not belonging to the homeowner.

Inverse condemnation is a kind of claim for which remedies in the state courts must first be exhausted, before moving to federal court. And although the complaint cites federal law in its causes of action, Cohn was not willing to sever the state claims from the federal claims or to stay the federal claims in the complaint.

Because all the claims were about inverse condemnation, Cohn said, “All I know is that I don’t have subject matter jurisdiction until there’s an exhaustion of remedies under state law. I’m going to have to remand it – I can’t keep it. The only way they can exhaust their remedies is in Washtenaw County circuit court.”

Cohn made his position so clear in his initial remarks that the plaintiffs’ counsel – Dan O’Brien of Woods Oviatt Gilman in Rochester, New York – was initially content not to offer oral argument: “I’ll rely on my papers, your honor.”

So assistant city attorney Abigail Elias, who represented the city at the May 28 hearing, was arguing before a judge who’d essentially already indicated how he would rule. She still made a bid to convince Cohn at least to dismiss the federal claims without prejudice, if he was going to remand the state claims back to the circuit court. She opened her remarks by saying, “I understand generally it’s an uphill battle…” but Cohn interrupted, “Not generally. Specifically.”

In the course of the short hearing, Cohn was not generous in his assessment of the city’s legal briefs that had been filed, calling them “jurisprudential legerdemain.”

For previous Chronicle coverage, see “Lawsuit Filed on City Footing Drain Program” and “Backups: Lawyers, Sewers, Pumps.”

The hearing is reported below in more detail.

May 28, 2014 Hearing

Plaintiffs in the case are Ann Arbor residents John Boyer, Mary Jean Raab and Anita Yu. They are represented by attorneys Dan O’Brien, who’s chair of the litigation department at Woods Oviatt Gilman in Rochester, New York; Irvin Mermelstein, a local Ann Arbor attorney in private practice; and Mark Koroi, a Plymouth attorney. All three attorneys attended the hearing. O’Brien handled the oral argument.

Representing the city of Ann Arbor at the hearing was assistant city attorney Abigail Elias.

The hearing was before federal judge Avern Cohn of the U.S. District Court Eastern District of Michigan. Cohn was appointed to the bench during the Carter administration in 1979, and assumed senior status in the federal court system in 1999.

May 28,2014 Hearing: Proceedings

The hearing began at 2:15 p.m. as Cohn told the parties: “I’ve read your papers and I’ve read the complaint carefully.” He commented on the “amount of paper” that’s been generated in this case, and ticked through the seven causes of action in the complaint. He noted that some of the causes of action weren’t really causes of action – for example, a request for declaratory relief. But Cohn summarized them all as arising from one basic cause of action under the Michigan constitution: The plaintiffs were making inverse condemnation claims, Cohn concluded.

All of these claims can be adjudicated in state court – because there is a remedy for the claims under state law, Cohn said. If the plaintiffs prevail under state law, he added, “that’s the end of it. Under Williamson, the case doesn’t belong here.”

By way of background, the Williamson case Cohn cited in his remarks was a Supreme Court case – Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City (1985). It held that inverse condemnation cases are not appropriate for federal review until there is a final determination in state court.

Cohn then commented on the briefs filed in the case by the city of Ann Arbor, calling them “jurisprudential legerdemain.”

After ending his commentary, Cohn gave attorneys on both sides the chance to respond. When asked if he wanted to address the court, plaintiffs’ counsel Dan O’Brien told Cohn: “I’ll rely on my papers, your honor.”

Abigail Elias, representing the city of Ann Arbor, then stepped to the podium to address the court. “I understand generally it’s an uphill battle…” but Cohn interrupted, “Not generally. Specifically.”

Elias cited England v. La. State Bd. of Med. Exam’rs (1964) in support of her contention that the court had an obligation to adjudicate the federal claims over which it has jurisdiction. The plaintiffs had not made an “England reservation” with the state court, Elias said. “That troubles me,” she added.

By way of background, the federal practice manual for legal aid attorneys from the Shriver Center characterizes an “England reservation” as follows:

An express England reservation has three elements: (1) explicit expression to the state tribunal of an intent to return to federal court in the wake of an adverse state determination, if any; (2) explicit notification to the state tribunal of the federal questions that would be reserved, and (3) an absence of voluntary litigation in the state court by the reserving party of the federal questions that would be preserved for federal trial.

Elias suggested that the federal claims in the Yu v. City of Ann Arbor case could be dismissed by Cohn without prejudice.

Cohn, who’d been shaking his head in disagreement while Elias spoke, told her that he wouldn’t sever the state claims from the federal claims – and he wouldn’t stay the federal claims. If the plaintiffs want to assert federal claims in state court, they can try to do that. Regarding the claims of inverse condemnation, the federal court doesn’t have subject matter jurisdiction, he said, until the plaintiffs have exhausted all remedies under state law.

Theoretically, Cohn noted, he could remand the state claims and stay the federal claims. But he hadn’t seen cases where that had been done. “I’m going to have to remand it – I can’t keep it,” Cohn said. The only way that the plaintiffs can exhaust their remedies is in Washtenaw County circuit court, he said.

O’Brien then spoke briefly. This case, O’Brien said, is “on all fours” with another recent case handled by the same court [Oakland 40, LLC v. City of South Lyon (2011)]. In that case, an inverse condemnation claim had been removed from the state court to the federal court, and the federal court had granted a motion for remand back to the state court. “The same thing should happen here,” O’Brien said. The plaintiffs had not brought the case in federal court because of Williamson, he noted.

Elias then appeared to attempt to secure a clarification about whether the plaintiffs were in fact pleading involuntary servitude – a federal claim. Cohn told Elias he didn’t see such a pleading in the briefs. Elias contended such a claim seemed to be present in the complaint – in a reference to homeowners having to work without pay [to maintain their sump pumps].

Cohn then told Elias that when the case was remanded to state court, the city of Ann Arbor could move to dismiss the federal claims. Cohn said he didn’t know why the plaintiffs had chosen to plead the federal causes of action. Cohn said he read the complaint as about inverse condemnation “and nothing more.”

The hearing, which lasted about 11 minutes, ended at 2:26 p.m.

Briefs Filed

Briefs filed in the case so far include the following:

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  1. By Frank Burdick
    May 29, 2014 at 5:16 am | permalink

    Welcome back. Now the appropriate Court located in the appropriate County can finally get to work and provide the appropriate ruling and judgement on the “appropriate-ness” of the City mandated Footing Drain Disconnect Program.

    Perhaps City Council should take this latest ruling by a Federal Judge into consideration prior to Monday, June 2, 2014. This consideration should be PRIOR to approving the $3.4 million total contract extension to the existing Consultant who has designed, implemented, and inspected the FDD Program described in the litigation noted above.

    It will be very interesting to see how our current Mayoral candidates will vote on the Resolution to continue to fund the Consultant. A “yes” vote will invariably imply “support” for the FDD Program and more potential basement flooding and home de-valuations as has been the result of the current program. This should make for an interesting campaign issue.

  2. By Alan Goldsmith
    May 29, 2014 at 6:13 am | permalink

    More below par representation from the City Attorney office. The City needs to settle this case, grasp that their poorly designed disconnect plan is unpractical in some Ann Arbor neighborhoods and that the wise decision is not to spend millions and several years defending the error. With the ongoing campaign for Council and Mayor, the drain disconnect program has gotten next to zero attention. Hopefully with this ruling, all the candidates will address where they stand on this issue, as well as the continued horrible legal representation coming from the City Attorney.

  3. By Judith Hanway
    May 29, 2014 at 8:01 am | permalink

    It seems that the City Attorney’s office isn’t faring too well in court these days. The City Council and Mayor should question the validity of the legal advice given on the Footing Drain Disconnect Program. It is a program with serious flaws.

  4. By Jack Eaton
    May 29, 2014 at 10:08 am | permalink

    Thank you to the Chronicle for taking the time to attend this hearing. Another thank you for your clarity in writing about legal issues. I look forward to your continued coverage of this litigation.

    I agree with Mr. Burdick (comment #1) that Mayoral candidates are well advised to have a good understanding of issues related to the City’s footing drain disconnect program. Anyone who needs a basic primer on footing drain issues in Ann Arbor should read the Chronicle’s excellent article “Backups: Lawyers, Sewers, Pumps”, which is linked in this story.

  5. June 2, 2014 at 8:29 am | permalink

    “Jurispudential legerdemain”, eh? For the second time in a month, the City Attorney’s office has been on the losing end of significant rulings. Both times that office has been severely criticized by the federal judge.