Court to Ann Arbor: Aren’t You in Contempt?
A procedural issue related to the Ann Arbor Ward 3 city council ballot counting question has been decided by a federal court as expected: The Michigan Secretary of State has been allowed as an intervening party in the dispute.
Not necessarily expected, however, was the court’s issuance of a show cause order that requires the city of Ann Arbor to demonstrate why the city is not in contempt of court.
Excerpt from judge Lawrence Zatkoff’s show cause order, requiring the city of Ann Arbor to demonstrate that it is not in contempt of the court order that disallowed the enforcement of eligibility requirements for city officials against Bob Dascola.
The court has essentially ordered the city to present an explanation for the fact that the city clerk sent out ballots to 392 absentee voters in the Aug. 5, 2014 primary that did not contain Bob Dascola’s name – after the court had earlier ruled that the city’s eligibility requirements could not be enforced against Dascola.
Both of the most recent decisions were issued by the court on July 16, 2014.
[July 16, 2014 Show Cause Order] [July 16, 2014 Order on Intervention] [.pdf of July 11, 2014 SoS motion to intervene]
The prior court ruling on May 20, 2014 had held that the city charter’s eligibility requirements are not enforceable. And the effect of that ruling was that the city was supposed to place Bob Dascola‘s name on the Ward 3 city council ballot for the Aug. 5, 2014 Democratic primary. Printed correctly on the ballots were the names of the other two candidates: Julie Grand and Samuel McMullen.
However, a series of events led to the omission of Dascola’s name from the printed ballots. Dascola’s name was initially not included in the information provided to the county’s third-party ballot programmer – Government Business Systems (GBS). But when the federal court ruling was made last month – that the city charter’s eligibility requirements were not enforceable – the new Ward 3 candidate slate, including Dascola, was provided to GBS. Proofs of the ballots were then sent to the county clerk and the city clerk as well as to the candidates. Those proofs included Dascola’s name – so the ballots survived those checks.
Then, a change to the ballots was requested by the city of Ypsilanti – to remove city council races from Ypsilanti ballots where there was not a contested race. This is a city charter provision – that when there’s not more than one candidate for a primary race, it’s not included on the ballot. As a part of that revisions, GBS removed the city of Ann Arbor council races. The proofing process identified that error. But in restoring the Ann Arbor city council races to the ballot, GBS reverted to the initial slate – which did not include Dascola’s name.
At that point the mistake was missed, by the county clerk’s office and by by the county election commission, which consists of the county clerk (Larry Kestenbaum), county treasurer (Catherine McClary) and the chief probate judge (Darlene O’Brien). The city clerk was not provided proofs of the incorrect ballots.
A total of 392 misprinted ballots were sent to absentee voters. The court has been informed of the circumstances surrounding the misprinting of the ballots, but seems unimpressed by those circumstances as excusing the city from responsibility [emphasis added]:
Further, the Court has reviewed Defendants’ explanation as to how this failure occurred and found it wanting. Defendants are ready to assign blame for this failure to computer programmers, vendors, and various municipal agencies, yet never acknowledge or take any responsibility. Defendants’ explanation completely ignores the responsibility levied upon them by this Court’s May 20, 2014, Opinion and Order. Further, Defendants admit that the office of Defendant City Clerk individually placed 392 inaccurate ballots into envelopes prior to delivery. Yet Defendants provide absolutely no explanation why Defendants failed to review any of the 392 absentee ballots prior to placing them in envelopes.
The city of Ann Arbor has until July 23, 2014 to respond to the court’s show cause order. The mood of the court is further reflected in the order by the requirements for the response: “Defendants’ response to the Order to Show Cause shall contain specific and accurate legal support, including pinpoint citations to authority relied upon, and shall be limited to ten pages and comply with E.D. Mich. L.R. 5.1.”
A resident who received the incorrectly printed ballot identified the ballot printing error. And since that time, the city clerk has focused on reducing the impact of the error. The city has sent replacement ballots to all voters who received a misprinted ballot, with a letter of instructions. The city is also actively attempting to contact voters who have sent in a misprinted ballot so that they can send in a correctly printed ballot.
The ballot-counting dispute concerns the question of how votes on misprinted ballots should count for the Ward 3 race, if a voter does not submit a correctly-printed replacement ballot. And the city’s election commission is getting updates from the city clerk on how many potentially disputed ballots remain. As of the election commission’s July 15, 2014 meeting, the number of potentially disputed ballots stood at 10. In the Ward 3 primary, the estimated total number of votes to be cast is around 3,000.
Dascola’s position is that votes in the Ward 3 race that are cast on the misprinted ballots should not count. Dascola’s attorney, Tom Wieder, filed a motion expressing that position – as post-judgment relief in the lawsuit that was won to put Dascola on the ballot in the first place. Michigan’s Secretary of State takes the position that such ballots should be counted. [See ”Ann Arbor Ballot Dispute: Michigan Wants In”] Because the court granted the Secretary of State’s motion to intervene, the court will now consider the arguments made by the Secretary of State for its position that the misprinted ballots should be counted. And Dascola will have a chance to respond to those arguments.
Updated July 18, 2014: The reply to the Secretary of State’s response brief was filed by Dascola’s attorney, Tom Wieder, on July 17: [.pdf of reply to response brief]
The Chronicle could not survive without regular voluntary subscriptions to support our coverage of local elections. Click this link for details: Subscribe to The Chronicle. And if you’re already voting for The Chronicle, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!
Not an auspicious day for the City Attorney’s office.
Why does the Mayor and City Council tolerate having a City Attorney who is incompetent? What do the four candidates for Mayor think we should do about the City Attorney? Are they happy with his overall job performance?
The heated order by the judge is beyond my poor power to add or detract.
What does it mean when a city goverent is held in contempt? Are office holders or officers personally liable? Are taxpayers on the hook?
Is this ballot error merely a garden-variety human oversight, or an intentional act by goverent actors frightened of (at least) 3rd ward voters?
City hall’s attempt to keep a candidate off the ballot is unseemly, but I hope the absentee ballot issue is just ball-dropping, not an intentional act. The city’s refusal to take responsibility is not promising.
What should be the threshold on how much money (to say nothing of the embarrassment) the actions of a city attorney and/or city staff can cost the taxpayers, before the people should expect relief from their representatives; and the people’s representatives should exercise their authority to reprimand or replace the parties responsible for these costs? I have not totaled it up, but I know we have settled many actions for undisclosed amounts, we have allowed massively unpopular developments (413) to move forward, we have actions pending against the city (FDD program), and now this, $30,000+ and who knows how much a Federal contempt of court fine might be. For such an educated community, we are not looking too sharp lately…
The TV show “So You Think You Can Dance” gives contestants who are in danger of being eliminated from the competition a chance to “Dance for Your Life” – a solo performance that can convince the judging panel they should continue to compete. This is a jurisprudential version of that. Will Postema attempt a jazz number, a cha cha, or deliver one of his familiar tap routines? Based on the part of the order that’s quoted out above, Zatkoff might prefer to see him dance a ballet – as the judge has specifically asked for citations that are on point.
Judge Zatkoff is viewing this ongoing debacle from the same perspective as I have previously.
At some point in time, the Ann Arbor City Clerk’s Office received ballots for distribution to absentee voters in Ward #3 – it defies explanation why the City Clerk’s staff – and the City Attorney himself – did not inspect these ballots to ensure compliance with the federal court order of May 20th.
The show cause order hints at the possibility of imposing further costs against the City of Ann Arbor.
God bless Judge Zatkoff and Tom Wieder for standing up for the public interest.
After all we have suffered from the actions of aforementioned City officials for over a decade, it would be ironic if this egregious error truly were an accident. At the very best it is dereliction of duty. Smoke and mirrors, secrecy, feats of prestidigitation, and flat-out lies have put us into what is looking to become a very expensive corner.
Re (4) – “Is this ballot error merely a garden-variety human oversight, or an intentional act by goverent actors frightened of (at least) 3rd ward voters?”
It would be hard to argue that the failure to include Bob Dascola was an intentional act. The initial proof reading involved a ballot that had Dascola on it. Changes to Ypsilanti races somehow caused changes to other ballots. I think it would be like having too many versions of a document on your hard drive.
When the final ballot was distributed, it was reviewed by the County Clerk, the County Election Commission, the City Clerk and the City Election Commission and no one noticed the Ward 3 omission. It is hard to believe that all of those folks were working in concert to keep Dascola off the ballot.
On the other hand, the City of Ann Arbor was under a Court Order and probably had a greater duty to ensure that Bob Dascola appeared on the ballot. That heightened duty is why the Court issued the show cause order, regarding the Contempt issue. Mere negligence may not be a good defense to failing to follow the Court’s prior order.
Re (6) LOL!
Re (2) & (5) The Council is currently engaged in its “annual” evaluation of the City Attorney. If you have strong feelings on that subject, contact the Mayor and your Council members.
“If you have strong feelings on that subject, contact the Mayor and your Council members.”
@9 That would be you. :)
What continues to happen to hear does have more than a few funny moments.
But let’s remember another set of victims of “Postema’s follies”: the employees of the City Clerk’s office. These people are doing hard and exacting work. They are not only charged with making mistakes, but now have to show, essentially, that they are not evil.
If I were one of these employees, I would be asking myself “Am I going to get fired? Did I do something wrong? Will I have to testify in court? What is contempt?”
And all of this is Postema’s personal fault.
#11 – I agree – the clerk’s office and those who work behind the counter are the nicest, most helpful folks I have come across in my dealings with the city. They seem to go out of their way to make sure your documents are in order, that you have all the necessary info, etc. It is a shame that Ms. Beaudry’s name is associated with this debacle – unless I am missing something?
@Jeff Hayner:
Jackie Beaudry is the individually named defendant in this case – and one of the nicest and most helpful persons who work at City Hall. I have never had a problem with her or her staff. I have suspected that she was not the impetus behind the denial of Mr. Dascola’s initial attempts to get on the ballot – that it emanated from others at City Hall for political motives.
What I have found as interesting is that Judge Zatkoff appears to have issued the show cause order “sua sponte” – meaning that he did so without being requested by Mr. Dascola’s counsel. The judge felt strongly enough that the conduct should be addressed by civil contempt proceedings that he issued the order on his own.
The City of Ann Arbor likely has a significant exposure to further costs and attorney fees incurred by Mr. Dascola as a result of the city’s failure to adhere to the spirit and letter of the May 20th order. Judge Zatkoff will no doubt address that.
As I understand it what Steve Postema did that was potentially in contempt of court is that he failed to ensure that the city clerk’s office adequately inspected the 392 ballots were put in envelopes and mailed. While this was undeniably a significant error and could be treated as contempt, it does not strike me as a horrendous error or one that should generate quite this level of anger. What else is going on here? From what I read, Postema has done a lot of good things for the city, too.
Failures appear to have occurred at the County Clerk’s office, the City Clerk’s office and the City Attorney’s office. Of the 3 parties involved, the attorney’s office likely had the least involvement in the actions that led to this mess and likely relied on the professionals in the other 2 offices to ensure that the Judge’s order was followed properly. Larry and Jackie are generally well-liked here while the city attorney is despised by some commenters but it’s quite selective outrage to single out the city attorney’s office for criticism when the ball was dropped by all three.
Remember that according to Councilmember Eaton (posting elsewhere on the Chronicle), the City Council never approved the original decision not to approve Dascola’s petition, and never approved the City Attorney’s decision to contest Dascola’s suit.
Does the City Council approve every case where the city gets involved in litigation?
@John Q:
You make an excellent point, as always.
The City Council is the governing body for the City of Ann Arbor and there should be some ordinance that delineates the powers to settle legal claims filed against it. I do not believe there is any authority anywhere that bestows upon the City Attorney the general power to defend a federal suit without City Council approval – especially where there exists the possibility of prohibitive monetary exposure as is the case here where Tom Wieder was successful in persuading Judge Zatkoff to award attorney fees under 42 USC 1988.
You make reference to “selective outrage” toward the City Attorney by some commenters, however the current round of court proceedings could have been avoided entirely – as referenced in the July 7, 2014 Ann Arbor Chronicle article on the issue – if the City Attorney had simply given assurances to Tom Wieder that no incorrect absentee ballots received by the City Clerk would not be counted. Because the City Attorney did not convey such assurances to Mr. Dascola’s counsel, it necessitated the motion to bring that matter to the attention of Judge Zatkoff – and Zatkoff took the initiative to issue an order to show cause why the City of Ann Arbor should not be held in civil contempt of court. A contempt finding may result in an imposition of further costs and attorney fees to be assessed against the City of Ann Arbor in conjunction with its failure to abide by the May 20th order. I fully expect the judge to seriously consider such relief in the event he finds contemptuous conduct occurred.
I salute Judge Zatkoff for his proactive approach in initiating civil contempt proceedings against the City of Ann Arbor and await the response the city will be filing to explain its position.
The last time I can recall a major Michigan city held in contempt of court was when Wayne County Circuit Court Judge James Rashid placed the Detroit City Attorney in jail for four days in 1988 for civil contempt for failure to turn over documents under a FOIA request.
Litigation would have been avoided in the County Clerk and City Clerk had done their job. That sounds harsh but those are the offices that should have ensured that voters were provided with the correct ballot. I’m sure that both offices are embarrassed by how this has unfolded.