The Ann Arbor Chronicle » 22nd circuit court

Aug. 5 Primary: Procrastinator’s Guide

Chronicle Staff — Mon, 04 Aug 2014 02:00:13 +0000

In Ann Arbor, local elections are mostly determined in the Democratic primary, held this year on Tuesday, Aug. 5. The mayoral race is well contested with four Democratic candidates. Races in three of the city’s five wards offer actively contested races.

“Vote Here” sign designating an Ann Arbor polling location for a previous election.

No Republicans are running for mayor or in any of the city council races. Only one independent candidate – Bryan Kelly, who’s running for mayor – will appear on the Nov. 4 ballot.

Races for probate judge and circuit court judge offer fields of five and three candidates, respectively.

This article provides a roundup of Chronicle election coverage, for anyone who’s still studying up on the candidates. It includes links to reports and recordings of candidate forums, campaign finance data, analysis and other information. Links are also provided to candidate websites and League of Women Voters candidate profiles.

If you’re not sure whether you’re registered to vote or you’re not sure which ward you live in, Michigan’s Secretary of State website offers an easy way to check. The site also lets you look at a sample ballot. To give you a general idea of what ward you live in, check out this ward boundary map.

Polls open on Tuesday morning at 7 a.m. and close at 8 p.m. Readers can follow along during the day as The Chronicle goes poll-hopping, checking in at locations throughout the city. We’ll also be posting updates with results starting soon after the polls close. The Washtenaw County elections division website also provides unofficial results on election night.

Below you’ll find more information on the Ann Arbor mayoral and city council candidates, as well as judicial candidates for the probate and 22nd circuit courts.

Ann Arbor Mayor

Competition for the Democratic Party’s mayoral nomination is a four-way race: Stephen Kunselman, Sabra Briere, Christopher Taylor, Sally Petersen. All are current city councilmembers. Incumbent mayor John Hieftje is not seeking re-election, and there is no Republican candidate. The winner of the Aug. 5 primary will face independent Bryan Kelly in the Nov. 4 general election.

The League of Women Voters provides written candidate profiles with responses to questions on its Vote411.org website. [Mayoral Vote411.org profiles]

Here are links to Chronicle coverage of mayoral candidate forums, campaign finance reports, and other analysis:

Ann Arbor City Council

There are five wards in Ann Arbor, with two councilmembers from each ward serving two-year terms. Each year, one of those ward seats is up for election. This year, races are actively contested only in Wards 1, 2 and 3.

In Ward 4, Graydon Krapohl – a Democrat who is currently vice chair of the park advisory commission – is the only person who has qualified from either party for the primary, so that race will not appear on the Ward 4 primary ballot. There are no Republican or independent candidates running for that seat. Incumbent Democrat Margie Teall is not seeking re-election.

Ward 5 voters will see two names on the Democratic primary ballot: one-term incumbent Chuck Warpehoski and Leon Bryson. Bryson has announced that he’s withdrawn his candidacy and won’t campaign for the seat. However, Bryson’s name will still appear on the ballot. As in Ward 4, there is no Republican or independent candidate running for the Ward 5 seat.

Ann Arbor City Council: Ward 1

The Ward 1 Democratic primary features one-term incumbent Sumi Kailasapathy and Don Adams, who is seeking elected office for the first time. There are no Republicans or independents in this race.

The League of Women Voters provides written candidate profiles with responses to questions on its Vote411.org website. [Ward 1 Vote411.org profiles]

Here are links to Chronicle coverage of candidate forums, campaign finance reports, and other analysis:

Ann Arbor City Council: Ward 2

In Ward 2, there are two candidates in the Democratic primary: Nancy Kaplan, a current trustee of the Ann Arbor District Library; and Kirk Westphal, who until recently served as chair of the Ann Arbor planning commission. The incumbent, Sally Petersen, is running for mayor rather than seeking re-election to that council seat. There are no Republican or independent candidates in Ward 2.

The League of Women Voters provides written candidate profiles with responses to questions on its Vote411.org website. [Ward 2 Vote411.org profiles]

Here are links to Chronicle coverage of candidate forums, campaign finance reports, and other analysis:

Ann Arbor City Council: Ward 3

This year’s Ward 3 contest features Julie Grand, Bob Dascola and Samuel McMullen, who are all competing for the seat that Christopher Taylor is leaving in order to run for mayor.

In addition to the candidates’ websites, more information is provided in the League of Women Voters written candidate profiles with responses to questions on its Vote411.org website. [Ward 3 Vote411.org profiles]

Here are links to Chronicle coverage of candidate forums, campaign finance reports, and other analysis:

Links to more coverage related to Dascola’s lawsuit against the city can be found here.

Probate Judge

Five candidates are seeking to be the next Washtenaw County probate judge: Jane Bassett, Tamara Garwood, Constance Jones, Tracy Van den Bergh and recently appointed judge Julia Owdziej. The nonpartisan primary will narrow the race to two candidates for the Nov. 4 general election.

Owdziej was appointed to the seat by Gov. Rick Snyder just last month, on June 2, 2014, to fill the vacancy on the court left by Nancy Wheeler’s retirement. The announcement of that retirement came on May 1, after candidates had filed to run. Wheeler was expected to retire at the end of the year, but it came earlier than expected due to health reasons. Bassett, Garwood and Jones currently work in private practice while Van den Bergh is a staff attorney for a legal services nonprofit.

On its Vote411.org website, the League of Women Voters has posted candidates’ written responses to questions: [Probate court candidate responses]

Here are links to Chronicle coverage of the probate judicial race:

22nd Circuit Court Judge

Pat Conlin, Veronique Liem and Michael Woodyard will compete in the nonpartisan Aug. 5 primary for 22nd circuit court judge. The top two candidates will advance to the Nov. 4 general election. The winner of that contest will fill the open seat left by judge Donald Shelton, who turned 70 in June. According to Michigan state law, only a person under the age of 70 can be appointed or run for the position of judge.

Conlin and Liem are local attorneys, while Woodyard works in the Wayne County prosecutor’s office. A second seat on the court is also up for election, as judge David Swartz is at the end of a six-year term. He is running uncontested to retain his 22nd circuit court incumbent seat.

On its Vote411.org website, the League of Women Voters has posted candidates’ written responses to questions: [22nd circuit court candidate responses]

Here are links to Chronicle coverage of the 22nd circuit court judicial race:

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Washtenaw Dems Host Judicial Forum

Chronicle Staff — Sat, 19 Jul 2014 13:54:38 +0000

The Washtenaw County Democratic Party is hosting a forum for candidates in county judicial races this morning (July 19, 2014) at 10 a.m. at the Pittsfield Township Hall on Michigan Avenue near Platt Road.

The Chronicle plans to provide a live audio broadcast from the event. The embedded live-stream player below will be replaced with an audio recording after the event is over.

Two contested races will appear on the ballot for the Aug. 5, 2014 primary – one for the circuit court and the other for the probate court.

The circuit court tries felonies and criminal matters, family law, and civil disputes where claims are greater than $25,000. However, the docket for this particular seat on the circuit court is heavily weighted toward family cases.

There’s no incumbent in this race. Pat Conlin, Veronique Liem and Michael Woodyard will compete in the nonpartisan Aug. 5 primary, which will advance the top two candidates to the Nov. 4 general election. The winner of that contest will fill the open seat left by judge Donald Shelton, who turned 70 in June. According to Michigan state law, only a person under the age of 70 can be appointed or run for the position of judge.

On its Vote411.org website, the League of Women Voters has posted candidates’ written responses to questions: [22nd circuit court candidate responses] Community Television Network has recorded video playable on demand from the 22nd circuit court League of Women Voters forum.

The county probate judge handles largely estate cases, and issues regarding mental health and addiction.

Jane Bassett, Tamara Garwood, Constance Jones, Tracy Van den Bergh and recently appointed judge Julia Owdziej will appear on the Aug. 5 primary ballot. The nonpartisan primary will narrow the race to two candidates for the Nov. 4 general election.

Owdziej was appointed to the seat by Gov. Rick Snyder just last month, on June 2, to fill the vacancy on the court left by Nancy Wheeler’s retirement. The announcement of that retirement came on May 1, after candidates had filed to run. Wheeler was expected to retire at the end of the year, but she stepped down earlier than expected due to health reasons. Bassett, Garwood and Jones currently work in private practice, while Van den Bergh is a staff attorney for a legal services nonprofit.

On its Vote411.org website, the LWV has posted candidates’ written responses to questions: [Probate court candidate responses] Community Television Network has recorded video playable on demand from the probate court League of Women Voters forum.

Listen to the July 19 forum live using the player below. Under the player are two text boxes, with identical content, which The Chronicle will use to provide notes about the live audio. The first box forces the view of the embedded text file to the bottom. The second box requires manual scrolling.

[.mp3 of Washt-Dems-Judicial-Forum-Probate]

[.mp3 of Washt-Dems-Judicial-Forum-Circuit]

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Circuit Court Race: Conlin, Woodyard, Liem

Giacomo Bologna — Fri, 18 Jul 2014 15:04:53 +0000

On July 7, 2014, three candidates vying to fill a vacancy on Washtenaw’s 22nd circuit court participated in a League of Women Voters forum.

Candidates for the circuit court judgeship from left: Michael Woodyard, Veronique Liem, Pat Conlin.

Pat Conlin, Veronique Liem and Michael Woodyard will compete in the nonpartisan Aug. 5 primary, which will advance the top two candidates to the Nov. 4 general election. The winner of that contest will fill the open seat left by judge Donald Shelton, who turned 70 in June. According to Michigan state law, only a person under the age of 70 can be appointed or run for the position of judge.

Conlin and Liem are local attorneys, while Woodyard works in the Wayne County prosecutor’s office. At the July 7 forum, the candidates fielded questions covered topics including: family, the visibility of the court and general judicial philosophy.

A second seat on the court is also up for election, as judge David Swartz is at the end of a six-year term. He is running uncontested to retain his 22nd circuit court incumbent seat.

On its Vote411.org website, the LWV has posted candidates’ written responses to questions: [22nd circuit court candidate responses]

At the July 7 LWV forum, the candidates made opening statements, answered six questions and then made closing statements. The forum was moderated by Miriam Eve Borenstein, with questions predetermined by the league after asking for public submissions.

Candidates’ remarks are summarized below. To view the recorded video from the 22nd circuit court LWV forum, use Community Television Network’s video on demand.

Opening Statements

Pat Conlin: Conlin said he’s proud to have the opportunity to seek to serve his community. His family has roots in public service, and 20 judges locally and across the state have endorsed him. People often aren’t familiar with judicial candidates, but it’s very important for people to become well acquainted with the candidates, he said. Conlin continued, saying he’s been a lawyer for 16 years. Before that he was a school teacher and service employee. He said he’s well rounded with the depth of knowledge to serve well as judge.

Michael Woodyard: Woodyard thanked the League of Women Voters and CTN for hosting the event. Echoing Conlin, he called the forum a great opportunity for voters to get acquainted with the candidates. He said he’s worked as public servant in the prosecutor’s office in Wayne County for the past 12 years. Personally, he’s a longtime resident of Ann Arbor and Washtenaw County, and he added that his children attend school in Washtenaw County.

Veronique Liem: This is an important race, Liem said, especially because 65% of the cases in the circuit court deal with family law – and this seat is designated to hear family cases. Liem said that as a child of divorce, she cares deeply about child custody cases. She also wants to make sure that victims of domestic abuse feel comfortable in the courtroom too. As she has done for the past 25 years as a lawyer, she would advocate for cooperative methods of resolving family law and other cases. Being a judge would allow her to give back to the community and her profession.

Question: What kind of cases does the 22nd circuit court try and how can we be a better-informed public about the role of our court system?

Conlin: The circuit court tries felony criminal matters, family law, and civil disputes where claims are greater than $25,000, Conlin responded, noting that Liem correctly pointed out that this seat on the court would primarily deal with family cases. Washtenaw County uses a unified trial court, meaning probate judges can hear civil and criminal matters and the circuit judges can hear probate matters. “It’s important that the judges in this county are well-versed across all areas of the law to serve the public,” he said. Lastly, Conlin said he hoped residents would be made aware of the court system, although not as participants. Rather, there are opportunities to serve on juries, and people should watch forums like this one.

Woodyard: There are many ways public can be involved or aware of the court, perhaps as a litigant, juror or witness. Beyond those roles, people are free to come in to the circuit court and see the court in action for themselves. But unfortunately, people don’t often realize that it’s a public institution. The circuit court is a court of general jurisdiction – felonies, divorce, civil disputes, name changes, adoption, juvenile delinquency, child protection proceedings. He suggested that the court’s website has a thorough description of its role.

Liem: Conlin and Woodyard had done a good job explaining the court system, Liem said. In addition, there are also specialty courts that are being developed in the district and circuit court system. As an example of that, she cited the new peacemaking court, pioneered by judge Timothy Connors, based on tribal methods of dispute resolutions. People should know about these new courts, and the issue of rehabilitation compared to putting people in jail.

Question: What is your general judicial philosophy?

Woodyard: Boiling down his philosophy to one word, that would be “respect,” Woodyard said, meaning respect for the institution by making sure serving the community is valued more than serving lawyers. Secondly, laws are made by the legislature – and a judge has to recognize and respect the separation of powers. Thirdly, it’s important to respect the litigants – not just the lawyers, but the people themselves, the criminal defendants, the families who are in turmoil, and most of all, the children who appear in court through no fault of their own.

Liem: A judge first serves the community and is there to render justice. A judge should treat each and every participant in a case with respect, regardless of the individual’s background. Furthermore, a judge shouldn’t be naive, but should look for solutions that allow the potential for individuals to grow as people: “I think the judge can be a catalyst to provide resources to the litigants who appear before the judge and need some assistance in solving some important problems.”

Conlin: “Compassionate efficiency,” Conlin answered. People are not in the best place in their lives when they’re in court — particularly so in family court. Emotions and stakes are both high, but judges need to understand where the people are coming from. It’s also very important that the judge knows the law precisely and that the litigant understands that the judge is an expert of the law, so she or he feels that they are being properly heard. Efficiency and compassion might not seem to go together, but it’s important that cases are heard efficiently, Conlin said.

Question: What challenges might you encounter in moving from your current position to a new role as circuit court judge, and how would you deal with those challenges?

Liem: Liem said she’s currently an advocate – and advocacy is different from being a judge where she’d be the one rendering decisions. Still, Liem noted she has experience in this capacity as an arbitrator and also as a mediator, where she’s helped parties reach amenable agreements. Being a judge would be a challenge, “but I believe I can rely on the experience I have had to help me bridge the gap.”

Conlin: Liem had done a good job explaining the difference between advocacy and judgeship, Conlin said. But being a successful judge relies on the personality of that person. Conlin explained that as a lawyer, he approaches cases with a breadth of evaluation akin to a judge. He examines both sides, in order to advocate better for his client. “Becoming a judge is not going to be a huge leap for me, because it’s really how I’ve always evaluated a case that comes before me.” He, too, has been an arbitrator and mediator, Conlin noted.

Woodyard: To respond to the question, Woodward said he needed to provide some context. For the past 12 years, he has worked as an assistant prosecuting attorney in Wayne County and he’s been in court nearly every workday, appearing before numerous judges and courts in a variety of situations. He’s argued hundreds of different motions, he said. Becoming a judge is not the next logical step for a lawyer, because judgeship requires a unique skill set – an open mind, compassion, an ability to be decisive – which he characterized as practical knowledge that doesn’t come from simply reading a book. “I think you need to become involved on a close daily basis with that particular operation to observe how judges render decisions that are fair and just. And that’s exactly what I’ve been doing.”

Question: What constitutes a good divorce?

Conlin: Conlin said that when you’re talking about families, a good divorce involves the two parties realizing that the kids are the most important consideration. A good divorce requires two parents who can work together and put the best interest of their children first. That doesn’t always happen, so for a judge, a good divorce is one where an abundance of information is at hand, so that the judge can make the best decision on behalf of the children. So it’s also important to provide adequate information — the more information, the better.

Woodyard: Ideally, a good divorce is one that doesn’t happen, Woodyard said. But when a divorce takes place, it can be made better. The key for the judge is to impart to the involved parties an understanding of the ramifications of divorce. The children involved don’t often understand the divorce, and it can be traumatic for them, so it’s vital that the judge is keeping children’s best interests in mind.

Liem: A “good divorce” is one that ends conflict between parents, and that keeps children away from parental conflict, she said. Both parties need to be heard and the priorities of the children need to be put above anyone else’s. A good divorce is also one that stays out of court. Liem suggested that couples pursue mediation or the collaborative divorce approach rather than take the case into court.

Question: If elected, you’ll be trying cases dealing with children and their well-being. How have your experiences prepared you to deal with such scenarios?

Woodyard: Woodyard said he has worked on child abuse cases in the prosecutor’s office in Wayne County for six years, where he had the opportunity to speak with children and parents involved in cases where children were physically and sexually abused. He continued, saying that “the experience of serving families in those terrible moments of their lives has instilled in me a deep commitment that I will do whatever it takes to ensure the well-being of a child…” He added that the court plays a very important role for children whose lives are in turmoil.

Liem: Children in these situations do well when parents do well, Liem said. It’s important not only for their own sake, but for their children’s sake, that parents are in a healthy place. Liem also noted her own strong experience of 25 years in family law. She has experience litigating, but she said she doesn’t encourage litigation. Instead, Liem said she prefers mediation. She serves on the executive board of the Collaborative Practice Institute of Michigan.

Conlin: Conlin agreed with both candidates that maintaining the best interests of the children is paramount, which can be complex in custody disputes. He added that while he hasn’t specialized in juvenile matters, through his work in general practice during the past 16 years he’s had experience in juvenile court. In criminal cases in juvenile court, it’s vital that decisions rendered on children don’t harm them unfairly later in life. He expressed some caution about the use of personal protection orders.

Question: How are cases prioritized in this court and how do you plan to improve or change its operations or procedures?

Liem: The guidelines for family law cases set by the Michigan Supreme Court are that cases involving children should be heard in six months, and within one year for cases not involving children. But other types of cases take longer, like medical malpractice, while others, like criminal cases, need to move relatively quickly as well. Nonetheless, Liem said that all cases should be given their fair day in court and everybody in the court system should be treated with respect, and all the facts need to be heard.

Conlin: Conlin said he’s not yet a judge and he doesn’t play one on TV, but if he were he would look into increasing the number of days the court dedicates to immediate relief, which occurs when a party files a motion to have interim or temporary relief. Conlin said he would like to see up to two days a week where these motions are heard – instead of one day, or just one half day, per week. That could potentially streamline cases and prevent complications. Lastly, he noted that there shouldn’t be artificial barriers to cases being heard.

Woodyard: There are time constraints on basically every court case, according to the Michigan Supreme Court, he said, and a certain percentage of cases must be resolved within certain timeframes. But this creates a tension between timeliness and fairness. Ultimately, ensuring fairness is more important than meeting a schedule, but “litigants are entitled to a timely resolution of their disputes.” Woodyard promised his day-to-day responsibilities as judge would be handled efficiently.

Closing Statements

Woodyard: Woodyard said he enjoyed the opportunity to answer questions. And he encouraged voters to take a close look at the candidates. Being a judge is much more than an extension of being a lawyer, he said, and he is alone among the candidates in having the required experience: appearing in court and advocating for justice. Woodyard explained that he’s served in multiple types of cases, like personal protection orders, child abuse and delinquency, domestic violence and others, which all fall under family law. “My hope is that voters look at the candidates and select the candidate who has the broadest practical knowledge combined with the technical expertise to serve,” he said.

Liem: Liem said that 40 years ago she came to Washtenaw County with few resources or connections. She obtained her MBA and subsequently her law degree from the University of Michigan. She added that she couldn’t have imagined the path that’s led her here. “If I am elected, I will be very mindful to protect the children involved in custody cases, render decisions that help people grow as individuals, and to promote family-friendly solutions…,” Liem said. She noted she won’t shy away from issuing rulings. She concluded by saying she’s endorsed by more than 100 attorneys, the mayors of Ypsilanti, Ann Arbor and Saline, most of the Ann Arbor city council, state Rep. Jeff Irwin and many others. She thanked those watching for wanting to be informed about the race.

Conlin: Conlin said it was a privilege to there and even to be running for a position as judge. Conlin’s father was a judge for more than 20 years in Washtenaw County, and Conlin said he grew up seeing his father coming home after making the difficult decisions each day. That helped him understand the drive required to be a judge. And while this seat is dedicated to family issues for now, Conlin said this judge will handle other matters as well. He has a wide experience in general civil law on top of a solid base in family law and would be able to render tough decisions. Conlin said all three candidates are qualified for the job and he encouraged voters to review all three candidates thoroughly.

Election Information

The last day to register for the Aug. 5 election was July 7. The last day to register for the Nov. 4 general election is Oct. 6. To check your voter registration or to find your polling place, visit the Michigan Secretary of State’s website.

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Footing Drain Lawsuit: City Survives Motion

Dave Askins — Thu, 03 Jul 2014 16:06:26 +0000

In the Yu v. City of Ann Arbor footing drain disconnection lawsuit, judge Donald Shelton has denied a motion for a preliminary injunction against the city.

Judge Donald Shelton denied the plaintiffs’ motion for a preliminary injunction against the city of Ann Arbor’s footing drain disconnection ordinance.

Had it been granted, the motion would have prevented the city of Ann Arbor from enforcing its footing drain disconnection (FDD) ordinance. Shelton’s ruling came from the bench after a roughly 25-minute hearing held on July 2, 2014 at Washtenaw County’s 22nd circuit court at Huron and Main in downtown Ann Arbor.

Shelton appeared to reach his conclusion on the injunction fairly easily. But more than once during the hearing, he indicated that he had questions about the city’s legal position, reserving the possibility that the plaintiffs in the case could ultimately prevail after a full trial, which he expected would take place.

That has implications for the city’s motion for a summary disposition – a request for a decision from Shelton without a full trial. That motion was filed on June 9 and is on Shelton’s calendar for July 30. But at the conclusion of the July 2 hearing, after he’d ruled, Shelton told assistant city attorney Abigail Elias he’d begun a review of that motion for summary disposition and said, “I’ll just tell you that I think it is premature.” But he told Elias she could proceed as she liked.

Under the ordinance, property owners can be required to disconnect their footing drains from the city’s sanitary sewer system. The city has a program under which pre-approved contractors do the disconnection work and install the equipment, with the initial costs borne by the city.

Plaintiffs in the lawsuit contend that the city’s FDD ordinance amounts to inverse condemnation, a taking of property through physical occupation. They rely on the Loretto v. Teleprompter Supreme Court decision, which found that the required installation of a bracket for a cable television can be analyzed as an unconstitutional taking through physical occupation.

The criteria to be weighed in granting a preliminary injunction can include the merit of the actual case – the likelihood that the plaintiff will prevail. And Shelton did touch on one aspect of the merits of the case, as he expressed skepticism about the public health, safety and welfare argument for the FDD ordinance. That skepticism was based on the fact that the city gives homeowners the option of making a $100 per month payment in lieu of a required footing drain disconnection. If it’s important to public health, safety and welfare, Shelton could not imagine that the city would say: Well, just give us some money and that will satisfy it.

But Shelton reserved most of his skepticism on July 2 for the idea that the plaintiffs would suffer irreparable harm in the absence of a preliminary injunction now. That’s because the plaintiffs in the case had their drains disconnected in 2002. If the plaintiffs had brought an action back in 2002, based on a desire not to comply, then that would have been a different situation, Shelton said. At that time, a motion for a preliminary injunction would have been to preserve the status quo – of not being yet disconnected from the sanitary sewer. “But now, more than a decade later, you come in and say: Undo the status quo while we have a trial!” He allowed the plaintiffs might well win at trial, adding that he didn’t know.

In ruling from the bench, Shelton reviewed the fact that the only question before him that day was the question of issuing a preliminary injunction. Circumstances under which the court can grant a preliminary injunction are limited, he said. “I’m going to deny the motion for a preliminary injunction.” He said he believed that the status quo would be disrupted by such an order, and he did not believe any significant irreparable harm would result from waiting until a full trial is held on the merits of the case.

History of the Lawsuit

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

Then 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 a hearing on May 28, 2014 in Detroit, federal judge Avern Cohn indicated that he’d be granting the motion for remand, which he subsequently did. That’s why the case is back in Washtenaw County’s 22nd circuit court.

Briefs filed in the case so far include the following:

02.27.14 [.pdf of Yu v. City of A2: Complaint]
02.27.14 [.pdf of Yu v. City of A2: Motion for Preliminary Injunction]
02.27.14 [.pdf of Yu v. City of A2: Brief in Support of PI]
03.17.14 [.pdf of Yu v. City of A2: Notice of Removal]
03.24.14 [.pdf of Yu v. City of A2: Motion to Dismiss]
04.03.14 [.pdf of Yu v. City of A2: Motion for Remand]
04.17.14 [.pdf of Yu v. City of A2: Response to Motion for Remand]
04.24.14 [.pdf of Yu v. City of A2: Reply to Response on Remand]
06.09.14 [Yu v. City of A2: Motion for Summary Disposition]
06.26.14 [.pdf of Yu v. City of A2: Response to Motion for PI]

For background on the details of the case, see Chronicle coverage: “Lawsuit Filed on City Footing Drain Program” and “Backups: Lawyers, Sewers, Pumps.”

The city of Ann Arbor’s footing drain disconnection ordinance requires residents to disconnect their foundation footing drains from the sanitary sewer system. In broad strokes, the lawsuit is based on the idea that the city’s footing drain disconnection ordinance results in a physical occupation of a homeowner’s property – through installation of a sump and a pump – and that this amounts to inverse condemnation. Otherwise put, the contention by the plaintiffs is that enforcement of the city’s footing drain ordinance results in an unconstitutional taking of private property.

However, the July 2 hearing was on the plaintiff’s request that the court issue a preliminary injunction enjoining the city from enforcing the footing drain disconnection ordinance. So the arguments included a multi-pronged test the court is supposed to weigh in deciding whether to grant a preliminary injunction. From the plaintiff’s brief, those criteria include the likelihood of success on the merits of the claims, a balance of harms to plaintiffs and defendants in the absence of a preliminary injunction, whether plaintiffs have irreparable injury absent a preliminary injunction, whether injury to the plaintiff is of a continuous character, and whether the public interest is served.

The city’s response brief argues that before those criteria can be applied, a more basic condition needs to be satisfied. The response cites a Michigan Court of Appeals decision [Bratton v DAIIE (1983)] in support of that basic condition: “The object of a preliminary injunction is to preserve the status quo, so that upon the final hearing the rights of the parties may be determined without injury to either. The status quo [that] will be preserved by a preliminary injunction is the last actual, peaceable, noncontested status which preceded the pending controversy.”

The city’s response to the motion for preliminary injunction argues that the plaintiffs had their footing drains disconnected so long ago (11 and 12 years) that the status quo is clearly the current situation. The status quo, according to the city, is that the plaintiffs’ footing drains are not connected with the sanitary sewer system. The city also argues that the preliminary injunction would inappropriately grant the plaintiffs all the relief they are requesting, without a hearing on the merits of the case.

The city also argued in its brief that the elements of the standard multi-pronged test for preliminary injunctions are not satisfied, most importantly the irreparable harm criterion. The city argued that if the irreparable harm criterion is not satisfied, then the court need not even consider the question of a likelihood of success on the merits.

Plaintiffs in the case are 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. O’Brien argued the plaintiff’s motion for a preliminary injunction.

City attorney Stephen Postema attended the hearing. But arguing the city of Ann Arbor’s side at the hearing, opposing the motion for a preliminary injunction, was assistant city attorney Abigail Elias.

Detailed notes from the hearing are included below.

Arguments from the Plaintiff: Dan O’Brien

Dan O’Brien began by noting that the motion to be argued was for a preliminary injunction. The case itself was based on inverse condemnation resulting from the city of Ann Arbor’s footing drain disconnection program, he said. O’Brien stated that the case “begins and ends” with the Supreme Court decision in Loretto v. Teleprompter.

Plaintiffs’ counsel, Dan O’Brien.

O’Brien contended that the city of Ann Arbor’s position rests upon several misinterpretations of the applicable law. For example, O’Brien said, the city contends that the FDD is a regulatory taking and argues extensively based on that in its brief. The city urges the court to adopt the analysis in Penn Central Transit Co. v New York (1978) – which is essentially a balancing test based upon the nature and significance of the public interest that is served. The city, O’Brien said, apparently refuses to acknowledge that the installation of a sump pump and sump is a permanent physical occupation under a mandatory ordinance, which O’Brien contended is governed under the Loretto decision.

The two types of takings are mutually exclusive, O’Brien argued. If you have a physical invasion, that’s a special type of taking – and specifically that is not a regulatory taking. So a different standard applies, he continued, which is a part of the Supreme Court decision in the Loretto case.

O’Brien noted that the Loretto decision had been upheld on many occasions, and affirmed by the Supreme Court in Arkansas Game and Fish Commission v. U.S. (2012). O’Brien summarized that opinion as concluding that there are few bright lines in eminent domain jurisprudence – but one of them is that when a physical occupation takes place, that is a taking for which compensation must be paid, regardless of the significance or extent of the public interest being served.

O’Brien allowed that the law surrounding regulatory takings is complex, and involves identification and balancing of competing interests. The interests to be balanced include those of the government compared with the property owner. But permanent physical occupations, O’Brien argued, are quite simple and they involve no balancing of the public interest compared to the burden of the property owner. The Supreme Court could not have been more specific on that point, O’Brien said. He argued that a permanent physical occupation authorized by the government is in fact a taking – without regard to the public interest that it might serve.

Much of the city’s response brief, O’Brien contended, was dedicated to the facts surrounding the origin and derivation of the city’s FDD ordinance. O’Brien highlighted one claim the city has made about its FDD ordinance – that it has been successful in achieving its objectives. Without conceding whether the FDD ordinance had, in fact, achieved its objectives, O’Brien stated that the plaintiff’s position is that it’s not relevant whether the city has achieved its objectives. Under Loretto, he explained, effectiveness is not an issue. There was no dispute under Loretto, he said, that the bracket that was affixed to the building was effective in facilitating the distribution of cable television wires. But the effectiveness of that bracket did not matter to the court, he said.

Shelton then interrupted, telling O’Brien that the arguments he was making all go to the merits of the basic case, not the preliminary injunction. What about the other elements that you have to satisfy for a preliminary injunction? Shelton asked.

O’Brien responded with “I’m glad you asked that,” which earned an “I am, too!” from Shelton.

O’Brien then addressed the city’s argument in its brief that there was no hardship to the plaintiffs. O’Brien characterized the city’s position as follows: If there is any hardship, than it is overwhelmed by the hardship to the city of Ann Arbor that would result from granting the preliminary injunction.

O’Brien pointed out that affidavits had been submitted from the plaintiffs that outline the burdens they assumed as a result of the installation of the sumps and sump pumps in their homes. And the plaintiffs had done that under a mandatory ordinance, he said.

Shelton interjected: “But they have already done it.” O’Brien allowed that his clients had already done it. Shelton characterized it as strange – that O’Brien was asking for an injunction against something that his clients have already done. O’Brien invited Shelton to look at Exhibit 3 in the complaint – a document entitled “A Sump and Sump Pump Maintenance Manual.” O’Brien described Exhibit 3 as a 12- to 13-page document outlining what has to be done to maintain a sump pump, to test it, and the like.

Shelton interrupted: “It’s a sump pump, counsel! It’s a sump pump!” Shelton came back to the point that the motion was for a preliminary injunction. What he was being asked to do in that regard, Shelton said, was to disturb the status quo, not to preserve the status quo pending trial.

O’Brien responded to Shelton by saying he was asking Shelton to free his clients from the continuing burden of having to maintain and monitor their sump pumps. Shelton ventured that meant that O’Brien was asking him to change the status quo. Shelton stated that it would be a totally different situation, if the case had been brought before him in 2002 – as far as the question of preliminary injunction was concerned. By saying that, Shelton stressed, he was not addressing the merit of the lawsuit itself. O’Brien then connected his remarks to the parts of the city’s brief that indicated the request for preliminary injunction was actually the final relief that had been sought in the case. O’Brien said that was clearly not true – because they were asking for just compensation under the Fifth Amendment and under Michigan law.

Shelton steered O’Brien back to the question of what Shelton was being asked to do that day. O’Brien told Shelton he was asking him to relieve his clients of the burden of having to continually maintain their sump pumps. Shelton ventured that it was a burden that O’Brien’s clients had voluntarily assumed. If O’Brien’s clients had brought an action back in 2002, based on a desire not to comply, then a motion for a preliminary injunction to preserve the status quo at that time – of not being yet disconnected from the sanitary sewer – would be a different situation. “But now, more than a decade later, you come in and say: Undo the status quo while we have a trial!” Shelton said. The plaintiffs may well win at trial, he added, saying that he didn’t know yet.

O’Brien stressed that both Anita Yu and John Boyer have physical problems that make it difficult for them to fulfill the sump pump maintenance obligations, which are set forth in the maintenance manual. Anita Yu had wanted the sump pump installed in a specific location in her basement. But the contractor for her work – one of four contractors approved by the city – had installed it in her crawlspace. So it was essentially impossible for her to maintain the pump in that location. O’Brien described how the Boyers have had three different sump pumps, because they had to be replaced. Their house had flooded on several occasions and their basement had been damaged. That kind of occurrence had not ever happened before the FDD program had been implemented. O’Brien concluded that the ongoing and perpetual burden was not trivial.

Shelton pointed out that O’Brien’s clients had already assumed this burden. O’Brien responded by saying his clients continued to be forced to assume the burden and would continue to have to bear this burden without some kind of injunctive relief granted by the court. O’Brien told Shelton that he could see that Shelton was skeptical. Shelton agreed with O’Brien that he was skeptical about that specific aspect of the motion for a preliminary injunction. But Shelton stressed that he was not expressing anything about the merits of the rest of the case.

O’Brien invited Shelton to consider what the potential burden might be to the city that would result from granting the preliminary injunction. O’Brien was asking that his clients be relieved from the ongoing burden of having to continue to assume the maintenance obligations of the sump and the pump that was located in their basements. But there’s no proof of any hardship to the city, O’Brien said. The city had filed no affidavits from anyone with personal knowledge of the facts. O’Brien said it’s hard to imagine how the city would be burdened if the two homeowners who were his clients were freed from the burden of the FDD’s ongoing maintenance and repair obligations. The plaintiffs had submitted affidavits from people who were directly affected – which supported the motion for a preliminary injunction, he concluded. On the city’s side, there was nothing for Shelton to look at of an evidentiary nature, O’Brien argued.

The city makes an argument about a statute of limitations, O’Brien continued. He argued that other cases established that the statute of limitations is clearly 15 years – when there is a taking and the plaintiff still has title to the property. So O’Brien rejected any argument that there is only a three- or a six-year statute of limitations, saying such arguments “don’t hold water.”

In support of its position, O’Brien contended, the city talks about status quo and the fact that there was a consent order with the Michigan Department of Environment Quality. But the city had not told the court that the consent order was not in place until after the footing drain disconnects of the plaintiffs. So the administrative consent order was not a factor in justifying the footing drain disconnection ordinance for either Anita Yu or John Boyer. And secondly, the city had not told the court that the consent order had been terminated, O’Brien said. But in fact it had been terminated in November 2009.

O’Brien was granted permission to approach the bench, and handed Shelton a copy of the termination order. The status quo today, O’Brien said, was that the administrative consent order was not in force. With respect to enforcement of continuing the FDD program, that administrative consent order simply does not exist, he concluded. Shelton did not seem impressed with the termination document for the administrative consent order, laughing, “This is because they [the city] complied!” Shelton continued by saying the city had complied by having people stop putting stormwater into the sanitary sewer.

O’Brien came back to his first point regarding the administrative consent order – that it was not the administrative consent order under which the city enforced the FDD program with respect to his clients, because his clients’ disconnects had taken place before the administrative consent order was agreed to. Shelton allowed that he had understood O’Brien’s point, but ventured that wasn’t really the point that O’Brien wanted to make. O’Brien said the point was this: To the extent there’s any ongoing responsibility for his clients because of the consent order, that’s a non sequitur.

About the issue of irreparable harm, O’Brien said, it’s the fact that his clients have to live with this burden. O’Brien referred to Shelton’s remark that “It’s just a sump pump.” It’s more than that, O’Brien argued: It’s the fact that the plaintiffs have to buy battery backups, which are not paid for by the city, and they have to replace the sump pumps, because apparently the pumps don’t have a very long lifespan. It’s also the fact that they’re constantly in fear of the sump pumps not working and their basements flooding. Flooding has happened and this had damaged their basements and made parts of their basements unusable, O’Brien said.

There’s no peace of mind for his clients, O’Brien said, as a result of the implementation of the city’s FDD ordinance. Before the ordinance was implemented, they never had any drainage problems at all, O’Brien said, “not a drop of water in their basement.” To minimize this burden, or to say it’s not ongoing or to characterize it as the status quo, overlooks the fact that his clients are people who are retired and not able to sustain the burden that has been imposed upon them, O’Brien said. Clearly what’s happened is a physical invasion of their property, he said. And the Loretto case states that this is a taking without just compensation, regardless of the public benefit that is being served, O’Brien concluded.

Arguments from the City: Abigail Elias

Arguing for the city, Abigail Elias began by noting that the motion before the court that day was the motion for a preliminary injunction – which is characterized by a form of extraordinary relief, she said. Based on the arguments made by the plaintiffs, she ventured that the plaintiffs actually seemed to be addressing a motion for summary disposition as opposed to a motion for a preliminary injunction.

Elias reviewed the key point from the city’s brief – that the primary point of a preliminary injunction is to preserve the status quo and to prevent irreparable harm. She contended that the plaintiffs hadn’t identified any imminent irreparable harm that would result from a change in the status quo.

Assistant city attorney Abigail Elias.

What the plaintiffs were really asking for, she contended, was in the conclusion to their brief – that the court declare invalid the city’s footing drain disconnection ordinance, and stop the city from enforcing it. That kind of relief is not specific to the plaintiffs, she said. And it’s not relief that will prevent irreparable harm to the plaintiffs specifically. And the plaintiffs cannot represent other parties who are not before the court, she continued. Elias noted that other parties in the city might have a different point of view than the plaintiffs with respect to the ordinance. Based on the lack of imminent irreparable harm, Elias told Shelton that she did not think she really needed to argue any further.

However, Elias had considered the arguments on the merits – the likelihood of success. Elias contended that the plaintiffs had ignored the part of the Loretto case that points out the regulations that require installation of instruments and equipment into a property are not takings. This is not a case where the city has authorized a third-party to install anything in the house, she said. And this is not a situation where the city has installed something that occupies someone’s house, she said.

At that, Shelton expressed some skepticism: “Wellll, if you tell them that they gotta install a sump pump, and these are the only people who are approved to install it, what’s the difference?” Elias stated that through disconnecting the footing drains, homeowners are bringing their property into compliance with the current building code.

Elias then began to argue based on health, safety and welfare. But Shelton told her that argument that the FDD ordinance is essential to ensure health, safety and welfare is “sort of undercut” by the fact that a property owner can give the city some money and avoid it. If it’s important to public health, safety and welfare, Shelton could not imagine that the city would say: Well, just give us some money and that will satisfy it. Elias replied that the effect of the city’s $100-per-month policy was that two property owners had opted for that route, as opposed to disconnecting and installing a sump and pump.

Shelton then adduced a saying from his fishing partner: It’s not the principle of the thing, it’s the money. But he always told his fishing partner that “in court, it’s all about the principle of the thing.” It doesn’t matter how many people have opted to pay the money, Shelton said. The principle of the thing is the city can’t rely on an argument of health, safety and welfare when the city says a homeowner can “buy out of it.”

Elias told Shelton that when sewage backups occur, the city does provide sanitation and clean-up services – for example, if the plaintiffs were to undo their disconnects and the city were faced with increasing backups either in their own homes or in their neighbors’ homes. The point Elias eventually made was that the city does put the $100-per-month cost, paid by the two property owners, toward the operation of the sewage system.

Shelton told Elias that he was disturbed by the idea of the $100-per-month payment as it related to the merits of the case. He told Elias he was familiar enough with the concept – that the whole idea is to keep stormwater out of the sanitary sewer, because it costs a lot of money to treat sewage and you shouldn’t be spending that money and that effort at your sewage treatment plant on stormwater. “I’m with you on all of that, until you say, ‘But you can buy out of that.’ There is a disconnect there, to me,” Shelton said. How does that jibe with the idea that you can buy your way out of it? he asked. How does a few extra dollars address that human health issue?

Elias said that if the cost had been something like $10 a month, that would be different. She did not think now was the time to address the calculation of $100. But $1,200 a year is a significant amount for an individual: It’s designed as an incentive, she said. Shelton asked her if the city used that money to increase the capacity of the sewage treatment plant. Elias said the money goes into the funds that are used to operate the system, and into the funds used to clean up basements when there are incidents with sanitary sewer backups. So the money paid to the city is used to address issues that are being addressed otherwise by the footing disconnect program.

Shelton told Elias he didn’t mean to get sidetracked on this issue of the merits of the case. But he wanted to let her know there are some questions about the city’s position on the merits. He was more concerned, for the purposes of that day’s hearing, about the irreparable harm issue. “There’s going to be a trial at some point in this case. The only issue .. before me today is what happens between now and that trial.”

Elias then addressed O’Brien’s comments about the administrative consent order. She explained that the plaintiffs’ disconnections were included as part of the count that the city was required to achieve to satisfy the order, even though they were done before the order was signed. Elias also pointed out that Michigan’s Home Rule City Act was amended in 2002. And that was done specifically to authorize an ordinance such as the city’s, which requires private property disconnects and separation of storm and sanitary systems. So the city’s footing drain disconnect program was authorized by state law, Elias contended.

It also helps the city comply with its obligations under the federal Clean Water Act, she said. The city of Ann Arbor had not threatened to shut off people’s water, like Hickory Hills did, for individuals who did not disconnect their footing drains from the sanitary sewer. “Ann Arbor, being a kinder, gentler city,” she quipped, figured that the extra $100 a month would be at least as good an incentive, without that kind of threat.

Elias contended that no harm would come to the plaintiffs beyond their existing status quo. The risk, if the plaintiffs’ connections were restored, would be possible backups in their neighbors’ basements. Elias concluded her remarks by saying that she did not think the plaintiffs had met the requirements for a preliminary injunction.

Ruling: Shelton

In ruling from the bench, Shelton reviewed the fact that the only question before him that day was the question of issuing a preliminary injunction.

Judge Donald Shelton.

Circumstances under which the court can grant a preliminary injunction are limited, he said. “I’m going to deny the motion for a preliminary injunction.” He said he believed that the status quo would be disrupted by such an order, and did not believe any significant irreparable harm would result from waiting until a full trial is held on the merits of the case.

Shelton indicated that he had seen the filing by the city for a summary disposition and he had begun to review it. “I’ll just tell you that I think it is premature,” he said. But he added that Elias could proceed as she’d like.

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Lawsuit Filed on City Footing Drain Program

Dave Askins — Fri, 28 Feb 2014 13:54:24 +0000

A lawsuit has now been filed in Washtenaw County’s 22nd Circuit Court challenging the legal foundation of the city of Ann Arbor’s footing drain disconnection (FDD) ordinance.

A lawsuit has been filed in the 22nd Circuit Court challenging the constitutionality of the city of Ann Arbor’s footing drain disconnection program. (Illustration by The Chronicle.)

The ordinance was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the 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.

In connection with that lawsuit, a motion for a preliminary injunction has also been filed, asking that the court order the city immediately to stop enforcement of its ordinance.

[FDDP-Complaint-Feb.27.2014-OCR] [FDDP-Motion-Feb.27.2014-OCR]

In September 2012, the Ann Arbor city council already took action partially to suspend the FDD program. That council decision of nearly 18 months ago came not in response to a formal legal action, but rather coincided with complaints from residents in the southeastern part of the city.

Then about a year ago, in February 2013, the city authorized a contract with an engineering firm to undertake a sanitary sewer wet weather evaluation (SSWWE) – in part to determine the impact of the FDD program to date. At a public meeting on the SSWWE held two weeks ago, on Feb. 6, 2014, the future status of the FDD program was portrayed as dubious: Even if the SSWWE study eventually identified an ongoing risk of sewage backups in Ann Arbor basements, the FDD would probably not continue “as is.”

The lawsuit claims the city’s FDD ordinance violates: (1) the Michigan state law setting forth the 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.C. Section 1983.

The lawsuit asks that the court declare the FDD ordinance is “unconstitutional, on its face and as implemented.”

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.

Background leading up to the filing, as well as a description of the filing, has been tracked on a2underwater.com. Mermelstein is the resident agent for a2underwater, LLC.

The lawsuit was filed on Feb. 27, 2014. It has been assigned to judge Donald Shelton.

Some of the legal theories on which the lawsuit is based have already surfaced in correspondence that’s become public. And some aspects of the city’s potential defense against a lawsuit may have already been described publicly by assistant city attorney Abigail Elias. That description came at a recent meeting of a citizens advisory committee that is supposed to make a recommendation sometime in the summer of 2014 on the future of the FDD program. For additional background on the topic of the footing drain disconnection program, see Chronicle coverage: “Backups: Lawyers, Sewers, Pumps.”

Physical Taking: Whose Pump Occupies the Space?

One aspect of the unconstitutional takings legal theory, in broad strokes, is that the city is occupying space in a homeowner’s basement – without compensation or due process for such an occupation. The theory is based in part on the Loretto v. Teleprompter Manhattan CATV Corp. et al U.S. Supreme Court case, which found that a required installation of cable wiring amounted to an unconstitutional taking. In the case of Ann Arbor’s footing drain disconnection program, it’s the installation of a sump and a pump that allegedly amounts to an illegal physical occupation.

From the complaint:

The mandatory disconnection of the Plaintiff’s footing drains and the forced installation of sump pumps and related equipment constituted a physical intrusion by the City, or others acting on its behalf or in its stead, resulting in a permanent physical occupation of the Plaintiffs’ property and a significant interference with the Plaintiffs’ use of their property.

Where does a sump and a pump fit into the requirement that footing drains be disconnected from the sanitary sewer? Before a disconnection, rain water flowed away from the foundation of a house through forces of gravity into the sanitary sewer. So after disconnection, that water needs to be managed. It’s managed by installing a sump, where the water collects. A pump then lifts the water up and out to the surface, where it can eventually flow into the stormwater pipes – which are designed to handled that kind of flow. The animation below illustrates the contrast between a pre-FDD and a post-FDD configuration. To see something close to a full-screen version of the animation, use this [link].

Figure 3. Animation of contrast between the pre-FDD configuration and the post-FDD configuration. (Original illustration from screenshots of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

The physical occupation of a homeowner’s basement through a sump and a pump is a theory on which assistant city attorney Abigail Elias has already commented publicly. She made the comments on Jan. 9, 2014 to a citizens advisory committee that formed in connection with the city’s sanitary sewer wet weather evaluation (SSWWE). On Jan. 9 Elias essentially reviewed the content of her Nov. 25, 2013 memo for the committee, which came in part in response to an email sent by attorney Irvin Mermelstein on Oct. 29, 2013 to the consultant hired by the city to facilitate the committee’s work.

Elias explained the notion of “taking” by telling the committee that under the U.S. Constitution, a government cannot take private property without compensation. Elias told the committee: “If I condemn your land because I need to run a street through it, I have to pay you for that land.”

The requirement that someone be paid for their land is reflected in the causes of action listed in the Feb. 27 complaint. Payment is one required component of Michigan law (MCL Section 213.23) for taking someone’s property. But the law also includes an additional requirement that it be for a public use. The proposed use of the property must, by statute, be fairly deemed a governmental activity by one or more of the following standards:

(a) A public necessity of the extreme sort exists that requires collective action to acquire property for instrumentalities of commerce, including a public utility or a state or federally regulated common carrier, whose very existence depends on the use of property that can be assembled only through the coordination that central government alone is capable of achieving.

(b) The property or use of the property will remain subject to public oversight and accountability after the transfer of the property and will be devoted to the use of the public, independent from the will of the private entity to which the property is transferred.

(c) The property is selected on facts of independent public significance or concern, including blight, rather than the private interests of the entity to which the property is eventually transferred.

The complaint alleges that the city of Ann Arbor would have failed to meet that requirement. From the complaint:

Alternatively, if the City had attempted to comply with the requirements of MCL Section 213.23, it would have failed in its burden of proving that the taking was necessary in accordance with Section 213.23 (2) because no public necessity of an extreme sort existed, the property taken will not remain subject to public oversight and the property was not selected on facts of independent public significance or concern, including blight.

The complaint cites the statutory requirement on takings that transfer the property to a private entity. By implication, the legal theory on which the lawsuit is based includes the possibility that the sump pump, after it is installed in someone’s home, is not owned by the homeowner, but rather a private party, presumably the plumbing contractor. The ownership question arose at the Jan. 9 meeting of the citizens advisory committee.

At the Jan. 9 meeting, Elias began her explication of the legal framework for the city’s footing drain disconnection (FDD) program by saying that the situation is “very, very different” from the Loretto case. According to Elias, a key difference is this: Who owns the pump? Her answer: The homeowner.

Elias explained that in the Loretto case, a couple of inches on the side of a building for installing cable wiring was, in fact, considered a taking. That was because New York City had required building owners to allow the local cable provider to attach its antennas to the building so that the tenants could get service – whether the landlord wanted it or not. According to Elias, in the Loretto case the court said that the requirement of allowing installation of cable equipment might be for a public purpose, but it involved a third party occupying space with its equipment – and that’s not allowed because that’s a taking.

In the Loretto case, the cable company – not the landlord – still owned the equipment. If you consider the sump pumps in the city’s FDD program, they are owned by the homeowner, Elias contended. The sump pumps are not a part of the city’s utility system, she contended – as the pumps become part of the property owner’s house. The fact that the Loretto case was a physical occupation by a third party was what made the difference – tipping Loretto over the edge to being analyzed as a prohibited taking.

Responding to an emailed query from The Chronicle about the ownership of the pumps, Elias wrote that the homeowner becomes the owner of the pump at the point when it’s installed and the work is accepted by the homeowner:

Question: It was reiterated at the Jan. 9 meeting that a key difference between the city’s FDD program and the set of facts in the Loretto case involves the ownership of the installed equipment. From a legal perspective at what specific point in the transaction does the Ann Arbor homeowner become the owner of the FDD equipment?

Elias: The property owner owns the sump pump and lead lines as soon as they are installed and the property owner accepts the work done by the plumbing contractor with whom the property owner contracted to do the work. Except as inventory for the plumbing contractor, they are never owned by anyone else.

Retro Compliance: Health, Safety, Welfare

While connections between footing drains and the sanitary sewer system do not currently comply with the existing code, at one time they did. Until around 1980, footing-drain-to-sanitary-sewer connections were legal to make. They were also (and still would be) convenient to make, because the footing drains and the sanitary sewers are typically buried at roughly the same depth. That means gravity can be used to lead stormwater away from a building foundation by connecting footing drains into the sanitary system. Storm sewer pipes are typically not as deep, so gravity works against moving water from footing drains into the stormwater system.

At the start of the FDD program, the city identified roughly 16,000 houses in Ann Arbor that had such connections. But how is it that a requirement can be imposed retroactively to bring a building up to current code? That question is raised in the complaint that’s been filed with the 22nd Circuit Court:

Because the Plaintiffs’ homes were constructed in conformity with the then applicable building code and other relevant standards and the Plaintiffs or their predecessors-in-title received Certificates of Occupancy and/or other necessary approvals from the City, the Plaintiffs acquired vested rights to the footing drains and related storm water and sanitary sewer facilities related thereto.

One tack the city’s defense against the lawsuit might take is to cite a 2002 amendment to Michigan’s Home Rule City Act, which came a year after the city’s FFD ordinance passed. At the Jan. 9 meeting, Elias pointed out the amendment, which says you can require property owners to separate footing drains from the sanitary sewer. From the amended statute:

117.5j Sewer separation; authorization; ordinance; special assessment.
Sec. 5j. A city, in order to protect the public health, may adopt an ordinance to provide for the separation of storm water drainage and footing drains from sanitary sewers on privately owned property. The legislative body of a city may determine that the sewer separation authorized by this section is for a public purpose and is a public improvement and may also determine that the whole or any part of the expense of these public improvements may be defrayed by special assessment upon lands benefited by the public improvement or by any other lawful charge. A special assessment authorized by this section shall be considered to benefit only lands where the separation of storm water drainage and footing drains from sanitary sewers occurs.

Elias pointed out that the amended statute also says a city can impose a charge on those who benefit, and can even impose the cost only on the homeowners who benefit from the separation. About the city’s FDD program, Elias said: “So we could make the homeowners pay.” But she said the policymakers in Ann Arbor didn’t think that making property owners pay was the right way to do it, and the policymakers’ choice was to fund the program.

At the Jan. 9 meeting, Elias also said the courts distinguish exercising police powers – which are for health, safety and welfare of the community and its residents – from takings by a third party by occupying somebody’s property. The health, safety and welfare argument is based at least in part on the risk of sanitary sewer overflows into the Huron River, which can be caused by excess flows in the sanitary system during wet weather.

That concern – based on actual overflows – led in 2003 to the city’s signing of a consent order with the Michigan Dept. of Environmental Quality. That included a requirement that the city perform at least 155 footing drain disconnections a year for four years, for a total of 620. The 620 required disconnections were to be done in addition to 179 disconnections that had already been completed by the city by the time the consent order was signed. Those 179 disconnections were based on the 2001 FDD ordinance. The city has completed more than 1,800 disconnections under its program, nearly three times the number required under the consent order.

At the Jan. 9 meeting, Elias told the citizens advisory committee that when courts have looked at retroactive application of building codes, they look at a couple of issues: (1) Is there a public safety, health and welfare reason for doing it? and (2) Is it an overwhelming or undue burden on the property owner?

Regarding the first test mentioned by Elias, the complaint denies there’s a public safety, health and welfare reason for doing it. From the complaint:

Upon information and belief, the Ordinance was not enacted in response to emergency conditions or some other imminent threat to public health, safety or welfare. Rather, the Ordinance was enacted by the City in order to facilitate a solution to long-standing and self-created conditions in the least expensive and/or most expedient way possible.

As for the second test mentioned by Elias, the complaint contends that an unreasonable burden is imposed on the property owners. From the complaint:

Moreover, the ongoing and perpetual responsibilities for the operation and maintenance of the sump pumps and related equipment represent an unreasonable financial and personal burden upon the Plaintiffs’ use and enjoyment of their property and represent an inappropriate delegation by the City to its citizens of its governmental obligations.

People Affected

Two of the plaintiffs in the case are Ann Arbor homeowners John Boyer and Mary Jean Raab, who have lived in their Ward 4 home since 1970, according to the complaint. And until 2006 when their footing drain was disconnected from the sanitary system, their basement had been dry and they had experienced no flooding, dampness or other water problems in their home. According to the complaint, their backyard and basement have flooded on a significant and recurring basis: “Two flooding events were particularly severe, with the basement living space under water while the sump pumps were fully operational.”

An additional plaintiff in the case is Anita Yu, who had her footing drains disconnected in 2003 – with a sump pump installed in a “The sump and sump pump were installed in a location accessible to plaintiff, Anita Yu, only with difficulty as she suffers from a disabling condition that it makes it impossible for her to perform the operation and maintenance mandated by the FDDP and the FDD Ordinance without hiring a contractor at her own cost.” Before the disconnect, Yu had “complete peace of mind,” according to the complaint.

The complaint also cites results of a survey of homeowners who’ve had their footing drains disconnected. For the survey, which was conducted in connection with the SSWWE study, 2,350 surveys were mailed and 850 responses were received. [.pdf of survey report]

One of many highlights of the survey responses were the divergent results on the kind of “peace of mind” issue cited by the complaint. According to the summary, after disconnection and installation of a sump pump, 35% of respondents had at least some reduction in anxiety, but 40% had at least some increase in anxiety. That difference is reflected in the verbatim comments of respondents:

This is the worst thing possible. The drain disconnect has cost me thousands of dollars. The installation destroyed my basement floor, holes dug, tiles not replaced, check valve at toe stubbing level. I’ve had 2 major floods, both happened during summer storms when the power went out. Both times I was traveling and did not know until I came home. Coach’s Catastrophe Carpet Care came both times; $2,200 the first time – all furniture, carpet, everything had to be thrown out, the second cost was $1,800, the same thing, everything had to be thrown away. I bought a generator at a cost of $7,000, then the pump stopped working – another flood. Replaced the pump for a few hundred dollars. I am a 73 year old widow on a fixed income, living alone. This program has cost me thousands of dollars, destroyed my peace of mind and had a negative impact on the value of my home. Also, I would be interested in knowing whether anyone has paid the onerous fines we were threatened with.

Survey results also included comments indicating that anxiety was eased:

I am much less concerned about sewage backups since the sump pump was installed.

We were very glad to have the pump installed. We had heard about flooding in this basement before we had the house. It provides peace of mind and has worked well for years ago.

So happy with this new system!! Greatly relieved, thank you so much!

Next Steps

The brief for the preliminary injunction sets forth four points as the standards that the court should balance in determining whether the injunction should be granted.

Those four points are: (1) whether the plaintiff has shown a substantial likelihood of success on the merits; (2) whether the plaintiff has shown “irreparable injury”; (3) whether issuing a preliminary injunction will cause substantial harm to others (or whether harm to the plaintiff in the absence of a preliminary injunction outweighs the harm to defendant if a preliminary injunction is granted); and (4) whether the public interest will be served by issuing a preliminary injunction.

With respect to those standards, the brief gives five summary points, in addition to the more detailed arguments in favor of an injunction:

The brief argues that the suit is likely to succeed on its merits: the “… United States Supreme Court’s decision in Loretto v. Teleprompter CATV Corp. and case law in Michigan have clearly held such governmental invasions to be takings in violation of the U.S. Constitution.”
The brief contends there would be no harm to the city of Ann Arbor as a result of granting a preliminary injunction: “The remedy sought herein is to prevent the city of Ann Arbor from enforcing its FDD ordinance. There is no proof that the city will be damaged from issuance of an injunction barring FDD ordinance enforcement.” The brief points to hardships endured by the three plaintiffs as described in their affidavits.
The brief contends that the injury is irreparable: “… irreparable injury, also known as inadequacy of legal remedies, is present here as is the danger of a multiplicity of suits.”
On the permanent and continuous question, the brief states that: “… equity will enjoin interference of enjoyment and use of land where the invasion is of a continuous character.”
On the question of public interest, the brief argues that “… the public interest is advanced by preventing future constitutional injury and preventing a multiplicity of suits due to enforcement of an unconstitutional ordinance.”

A posting on the website a2underwater.com indicates that a show cause hearing on the preliminary injunction would take place no earlier than March 26, 2014. Based on the posting on a2underwater.com the complaint has not yet been formally served to the city of Ann Arbor, but that is expected Friday or Monday.

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County “Peacekeeping Court” Gets Funding

Chronicle Staff — Thu, 05 Dec 2013 01:59:23 +0000

At their Dec. 4, 2013 meeting, Washtenaw County commissioners authorized acceptance of a $150,000 grant to establish the Washtenaw County Trial Court’s Peacemaking Court. The grant, awarded by the State Court Administrator’s Office, is for funding from Oct. 1, 2013 through Sept. 30, 2014.

The state grants are intended to support creative approaches in the court system. The Peacemaking Court is described in a staff memo:

Like tribal peacemaking programs and restorative justice programs, the Peacemaking Court will provide a great benefit to youth and the community in juvenile cases by reducing recidivism and giving youth a diversionary option to avoid a record that can preclude future educational and employment opportunities. Domestic relations and other family cases will benefit from more durable and tailored solutions that result from a clearer understanding of the different perspectives or “truths” of all those involved. This, in turn, will enable the healing of important relationships, in contrast to the harm and polarization that too often results for families through the adversarial process.

The Peacemaking Court will allow the parties and those most affected by the conflict to talk about the event, its impact on them, and to look at the whole conflict in a comprehensive context that leads to understanding and meaningful solutions that address the needs of all those involved. When participants are respected and the individuals responsible for causing the problem are part of the decision process and take responsibility for their actions in a meaningful way, the resolutions are more comprehensive and address the needs of everyone involved, as well as the issues that underlie the problem. An important difference between the traditional system and the peacemaking court process is that the resolution is determined WITH the court not BY the court.

According to the grant application, key members involved in this project are 22nd Circuit Court judge Timothy Connors, 14A District Court judge Cedric Simpson, project director Susan Butterwick, and Robert Carbeck, 22nd Circuit Court deputy court administrator and budget director. [.pdf of grant application] Connors, who has spearheaded this initiative, was on hand at the Dec. 4 meeting to describe the project and answer questions.

This brief was filed from the boardroom of the county administration building at 220 N. Main St. in Ann Arbor, where the board of commissioners holds its meetings. A more detailed report will follow: [link]

22nd Circuit Court: Nelson Subs for Wheeler

Chronicle Staff — Wed, 02 Oct 2013 14:27:29 +0000

Retired judge Charles Nelson will be serving as a full-time visiting judge to absorb the docket of judge Nancy Wheeler on the 22nd circuit court of Washtenaw County, while she is away from the bench for medical reasons. Nelson’s service will start on Oct. 7, 2013 and last one to three months, according to an email sent to court personnel and others by court administrator Dan Dwyer.

Dwyer’s email states that “There are no planned changes to Judge Wheeler’s overall docket schedule while she is away and we anticipate minimal disruptions to these cases.”

A similar arrangement – with Nelson filling in for Wheeler – was announced about 20 months ago on Jan. 20, 2012.

County Board Debates Trial Court Funding

Chronicle Staff — Thu, 06 Jun 2013 04:19:07 +0000

In a move that appeared to surprise many commissioners and staff, Washtenaw County commissioner Alicia Ping (R-District 3) formally proposed giving notice to eliminate a lump-sum budgeting approach for the Washtenaw County Trial Court. She made the proposal at the board’s June 5, 2013 meeting.

Washtenaw County commissioner Alicia Ping (R-District 3) at the board’s June 5, 2013 meeting.

After a lengthy and often heated debate, the board gave initial approval to give notice, but postponed final action until July 10. The approval was on a 5-4 vote.

Unlike other units of county government, which prepare line-item budgets authorized by the county board, the trial court operates under a memorandum of understanding with the board of commissioners. The board approved that MOU on Jan. 19, 2011, replacing one that had been in place since 1990. [.pdf of memorandum of understanding] As part of the agreement, the county pays for operations of the trial court in four “lump sums,” allocated separately to: (1) the 22nd Circuit Court [including circuit court administration, juvenile-general fund, friend of the court and community corrections]; (2) Probate Court [estates & mental health]; (3) 14-A District Court; and (4) the child care fund. The county does not have line-item budgeting authority, but the trial court agreed to submit a bi-annual line-item budget, and provide quarterly financial projections.

The proposal by Ping, the board’s vice chair, comes in the context of the administration’s goal of identifying $6.99 million in structural reductions for the 2014 budget. For several weeks, Ping has raised concerns that the court is treated differently than other county units in the budgeting process. At the board’s May 15, 2013 meeting, she asked to see the history of funding for the courts, saying she was curious about whether the courts had cut in the same way that other county units had cut. “I’d like to know that we’re all in the game together,” she said at the time. [.pdf of historical funding for public safety & justice operations]

On June 5, Ping noted that her goal isn’t necessarily to cut funding for the courts, but rather to be more transparent about where the money goes. The board could ultimately decide to leave the lump sum approach in place. Giving a notice to terminate the agreement simply gives the board the option to end it.

Conan Smith (D-District 9) supported the action, saying that the legislative branch has budgeting responsibility, and the board has abrogated that responsibility by agreeing to lump sum funding. With a line-item approach, the county board could indicate priorities for the court by allocating more funds to specific areas. Dan Smith (R-District 2) also argued in favor of the action, noting that the courts are funded with essentially no oversight.

No one from the trial court attended the June 5 meeting – the proposal had not been on the published agenda.

The process for ending the lump sum agreement is written into the MOU:

13. Modification and Duration – This Agreement may be modified by mutual consent of the parties. This Agreement shall continue indefinitely and may be terminated only upon one year’s written notification by a party to all other parties. The County agrees to include the Court in the modification process relative to any County policies covered by this Agreement.

However, during the board’s June 5 ways & means committee meeting – when Ping brought forward the proposal – the discussion was based on a faulty assumption that the MOU called for a six-month notification process. That assumption influenced the debate, with some commissioners arguing for urgency in order to end the agreement before voting on the next budget. The administration is preparing a new four-year budget from 2014-2017, which will require board approval before Dec. 31, 2013.

Ronnie Peterson (D-District 6) argued most strongly against Ping’s proposal, fearing it would damage the board’s relationship with the courts. [Though he was not mentioned by name, the trial court is led by chief judge Donald Shelton.] Rolland Sizemore Jr. (D-District 5) warned that the board might be starting a fire that they couldn’t put out. He noted that if the court decides to sue, the county would be required to pay the attorney fees.

Yousef Rabhi (D-District 8), the board’s chair, indicated that he didn’t know Ping would be making this proposal. He agreed with her reasons for making it, but was concerned about the process. He felt there hadn’t been sufficient thought given to the ramifications of this action.

After further debate during the ways & means committee meeting – including a failed attempt to postpone the item – the board voted 5-4 to give initial approval. Voting in favor were Ping, Conan Smith, Dan Smith, Andy LaBarre and Kent Martinez-Kratz. Voting against the proposal were Yousef Rabhi, Ronnie Peterson, Rolland Sizemore Jr. and Felicia Brabec.

Commissioners initially were set to take a final vote at the board meeting that same night – held immediately after the ways & means committee meeting. However, after a break between the two meetings, corporation counsel Curtis Hedger reported that the MOU actually required a full year of notice. This turned the opinion of some commissioners, who wanted to take more time to study the issue. Andy LaBarre (D-District 7), who chairs the board’s working session, offered to schedule the topic for a working session as soon as possible.

Rabhi lobbied for postponement, saying he didn’t want to create a confrontational atmosphere with the courts – although he acknowledged that the evening’s discussion might have already damaged that relationship. He proposed postponing final action until July 10.

The motion to postpone passed on a 6-3 vote, with dissent from Alicia Ping, Dan Smith and Kent Martinez-Kratz. The proposal will be on the board’s July 10 agenda. That meeting will also include action related to the county’s major bonding initiative.

This brief was filed from the boardroom of the county administration building at 220 N. Main St. in Ann Arbor. A more detailed report will follow: [link]

No Sanctions, But Stern Words for Worthy

Dave Askins — Thu, 17 Jan 2013 15:18:18 +0000

Donald Shelton, chief judge of Washtenaw County’s 22nd Circuit Court, has declined to sanction Wayne County prosecutor Kym Worthy in connection with a motion she filed last year in the Neal v. Michigan Dept. of Corrections case.

Washtenaw County Courthouse at Main and Huron streets in downtown Ann Arbor.

However, in the course of oral arguments heard this week, Shelton appeared to indicate basic agreement with the points of the presentation given by Dick Soble, one of the plaintiff’s attorneys in the case, who had asked for sanctions against Worthy. The Wayne County prosecutor is involved in the case as an intervenor, and was represented during oral arguments by Donn Fresard, the Wayne County prosecutor’s office chief of staff. Sanctions had also been sought against Fresard.

Soble and other opposing counsel had asked for sanctions against the Wayne County prosecutors because of their motion for recusal of judge Timothy Connors from the case – a motion filed on Nov. 1, 2012, five days before the Nov. 6 election. Soble contended that the motion had no legal merit, and instead had political motives. The incumbent Connors was opposed in the race by Michael Woodyard, who works as an assistant prosecuting attorney in Worthy’s office. Connors prevailed in that election.

The oral arguments and Shelton’s ruling from the bench came on Jan. 16, 2013 at the Washtenaw County courthouse at Huron and Main in downtown Ann Arbor.

Despite his decision not to sanction the Wayne County prosecutors, Shelton had some sharp words for their actions. He indicated that if similar filings were to come before him again in connection with the case, he would not hesitate to impose sanctions.

The case has previously been handled by Connors, who had denied the motion for his own recusal in late November. Yet it’s Shelton, not Connors, who will now be handling the rest of the Neal v. MDOC case. It was reassigned to Shelton as the result of a court reorganization to accommodate the addition of a new judge, Carol Kuhnke. She was elected on Nov. 6 in a race against Jim Fink, and replaces the retiring judge Melinda Morris on the 22nd circuit court. Because of the reassignments, Shelton said at the Jan. 16 hearing, “This case fell in my big lap.”

Shelton’s Ruling

After hearing oral arguments, Shelton began his remarks by saying that he found the motion to recuse Connors – in its content and especially in its timing – to fit a term he described as deriving from his own dated vernacular: “smeggy.” He continued by saying that he could hold an evidentiary hearing to determine whether the motive in filing the motion was an attempt to influence the outcome of the election between Connors and Woodyard. However, he was “choosing” not to do that, he said. He also said he was “choosing” not to begin his assignment to “whatever is left of this case” by sanctioning the attorneys.

In his choice of the phrase “whatever is left of this case,” Shelton seemed in part to be echoing an aspect of Soble’s oral arguments for sanctions. By way of a background sketch, the Neal v. MDOC case dates from the late 1990s. It involved women prisoners held by the Michigan Dept. of Corrections who were found to have been subjected to abuse by prison guards. They were awarded a settlement of $100 million in installments over a six-year period, paid into an escrow account and then distributed to the attorneys and class members according to an allocation plan.

The settlement prompted the involvement of the Wayne County prosecutor’s office, which had an interest in ensuring that the victims of crimes committed by the women prisoners were paid any restitution they might have been owed – from the settlement of the Neal v. MDOC case. Soble argued that the agreement for the distribution of settlement had been signed by parties to the case on Oct. 31, 2012 – just one day before the motion for recusal was filed – and that this agreement essentially excluded Connors from future involvement in the process of distribution. With nothing left for Connors to rule on in the case, Soble’s argument went, why was recusal necessary?

The motion for recusal claimed that some remarks Connors from proceedings on June 10, 2011 had lumped the prosecutor’s office in with the MDOC as part of the same government that had abused the prisoners, and thus showed bias. An excerpt from Connors’ remarks: “The record had established that the class action involved individuals who were victims of sexual abuse by the government. Three of the — all of the intervenors are a portion of the government who committed, on behalf of the government, part of that same entity.” But at the time, no party had objected to that statement as reflective of a bias that required recusal, Soble argued.

If it was too late now to use a June 10, 2011 statement by Connors as the basis for a motion for recusal, then the Nov. 1, 2012 filing of that motion was unnecessarily early, according to Soble. He sought to undercut Worthy’s claim that the motion for recusal had to be filed before the Nov. 6 election – by questioning whether an Oct. 21 visit to the Secretary of State’s campaign contribution website by the Wayne County prosecutor could sensibly be taken as the start of a 14-day window for filing such a motion. Soble pointed out that no campaign contributions were listed on that website until Oct. 25, and a 14-day window would have left room to file after Nov. 6, the date of the election.

Campaign Contributions in Judicial Race

The campaign contributions at issue were Soble’s and those of other opposing counsel, who had contributed the maximum under the law to Connors’ campaign – $3,400. But Soble cited the 2006 Adair v. State Dept. of Education opinion, which concluded: “It is simply impossible for the Supreme Court, as well as most other courts in Michigan, to function if a lawful campaign contribution can constitute a basis for a judge’s disqualification.” Soble called it “outrageous” to contend that Connors could be bought, or that Soble and his co-counsel were a part of the buying.

Soble also pointed to the various choices of words and phrasing in the motion for recusal that had no bearing on the argument for recusal – and concluded they were crafted for a “different audience” than the court. For example, the motion for recusal described “alleged mistreatment” of women prisoners by guards, when the conclusion that the guards had in fact mistreated prisoners was supported by the findings and the settlement in the case. Soble concluded that the Wayne County prosecutor had not so much filed a motion as “filed a press release.”

As Fresard reviewed the claims in the motion before Shelton, Shelton rejected the relevance of the older incidents, telling Fresard that they were long since past, and that the only thing left for Fresard to argue potentially were the campaign contributions. Fresard responded by telling Shelton that he didn’t think the campaign contributions should be considered in a vacuum.

On the question of campaign contributions, which Soble had defended by citing Adair, Fresard attempted to question the relevance of that case by noting the Adair case predated a change in court rules that now allow for a recusal to be based on the appearance of impropriety. [.pdf of original Nov. 1, 2012 filing of motion for recusal]

Based on his remarks in connection with the ruling, Shelton was not moved by Fresard’s arguments and found those of Soble to be persuasive – but chose to exercise discretion in not imposing sanctions.

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Column: Mapping Ann Arbor’s 2012 Elections

Dave Askins — Tue, 13 Nov 2012 18:47:34 +0000

With the 2012 general elections well behind us, it’s time for politicians to put on their very serious faces and make very serious pronouncements like, “The voters have spoken.”

I prefer to make a funny face and ask: How is a judicial candidate like the city park system? Or for a question that sounds less like the set-up to a punch line: What’s the deal with downtown Ann Arbor and its connection to the art millage and the library bond proposal?

Voting results from two Nov. 6, 2012 proposals on the Ann Arbor ballot: The Ann Arbor District Library bond proposal and the public art millage. Maps do not include the portion of the library district outside the city boundary. Maps show only in-person votes, not including absentee voters. Shades of green through white indicate a majority voting yes. Shades of lavender through purple indicate a majority voting no. (Maps by The Chronicle.)

Of course, politicians are at least partly right when they say that the voters have spoken. But what did the voters actually say? It’s easy to make true statements about voter sentiment – if you stick to the text of the ballot.

For example, in the non-incumbent race for judge of the 22nd Circuit Court, more voters preferred to have Carol Kuhnke decide future Washtenaw County court cases than to have Jim Fink decide them. You can tell that just from the ballot and from the results. But it’s possible to make a stronger claim: More voters preferred the kind of person Kuhnke is – a candidate endorsed by the city of Ann Arbor Democratic Party. And to support that claim, we’d need to look at other results, like those from the presidential election.

Or by way of another example, the election results indicate that a majority of Ann Arbor voters said they do not want the city to levy an 0.1 mill tax to pay for art in public places. That’s all you can tell from the ballot question and the results. To make stronger claims – related, for example, to what (if anything) voters were trying to say about the existing Percent for Art program – you’d need to find some other way to explore the content of voters’ minds.

The same goes for the Ann Arbor District Library bond proposal and the parks maintenance and capital improvements millage renewal. “Do not tax us to make the bond payments for a new downtown library building, but please continue to tax us to pay for city park needs.” That’s all voters said. They didn’t say anything about their favorite books, or which city park is the best. (By the way, it’s West Park, located in Ward 5, which is indisputably the highest-numbered ward in the city.)

Yet we’d like to divine something more from the results than just the results.

This column, which is heavy on impressionistic conclusions based on maps, and light on rigorous statistical analysis, begins with mapped illustrations of some basics. For example, mostly Democrats live in the eastern portion of Washtenaw County. And in Ann Arbor, Wards 2 and 4 are the strongest city wards for Republicans – even though those wards also lean Democratic. That’s still true 20 years after Ann Arbor’s ward boundaries were drawn to achieve that effect.

The column concludes by illustrating a possible geographic connection between the failed public art millage and the failed downtown library bond proposal – namely, downtown Ann Arbor.

Ann Arbor City Ward Boundaries

The ward boundaries in the city of Ann Arbor underwent their last substantial revision in the early 1990s. The goal of the redistricting was to establish three heavily Democratic wards (1, 3 and 5), leaving two Republican-leaning wards (2 and 4). Comparing the ward boundaries in Map 1 and the results of the presidential race in Map 2, the ward-wise distribution of Democrats and Republicans has remained fairly stable. Except in the northwest precincts of Ward 4 – where the Ward 5 Democratic strength bleeds down into Ward 4 – the ward boundaries are reflected clearly in the presidential results.

Map 1: Ann Arbor ward boundaries.

Map 2: Ann Arbor 2012 presidential election results (in-person voting only.) Darker blue reflects greater strength for Democrat Barack Obama.

Judges, Dems, Parks

Judicial races are non-partisan. But in the non-incumbent race between Carol Kuhnke and Jim Fink, the local Democratic Party endorsed Kuhnke. And Fink himself, during a candidate forum hosted by the Democratic Party, acknowledged that if it were a partisan legislative race, ”you would not even think about voting for me.” So it was not a secret that Kuhnke was “the Democrat” and Fink “the Republican” in the race. Fink’s pitch to Democrats as voters was that he would follow the law and as a judge set aside his personal views. And in fact, several high-profile Democrats supported his campaign.

In Map 3, the results within the city of Ann Arbor show that support for Kuhnke shows a vaguely similar pattern to the presidential results. But it was not by any means an exact mirroring of the pattern of support received by the Democratic presidential candidate, Barack Obama. In fact, the geographic distribution of Kuhnke’s support within the city of Ann Arbor seems to resemble more closely support for the parks millage (Map 4) than it does support for Obama.

Map 3: Nov. 6, 2012 Ann Arbor city results for 22nd Circuit Court non-incumbent judicial race (in-person voting results only). Darker blue areas reflect stronger support for Carol Kuhnke, who defeated Jim Fink.

Map 4: Nov. 6, 2012 Ann Arbor city results for parks maintenance & capital improvements millage renewal (in-person voting results only). Darker green areas indicate greater support for the parks millage.

Countywide Judicial Race

Countywide, the race between Kuhnke and Fink (Map 6) also showed a roughly similar pattern to the presidential race (Map 5), but it was not by any stretch an exact mirroring.

Map 5: Washtenaw County presidential results for the Nov. 6, 2012 election. Blue shades indicate a majority for Democrat Barack Obama. Red shades indicate support for Republican Mitt Romney.

Map 6: Nov. 6, 2012 Washtenaw County results for 22nd Circuit Court non-incumbent judicial race. Blue shades indicate a majority for Carol Kuhnke. Red indicates support for Jim Fink.

So I think it’s fair to conclude that a substantial number of people voted for the kind of person that they perceived Kuhnke to be (a Democrat, with whatever associations that comes with) as contrasted with the kind of person they perceived Fink to be (a Republican, with whatever associations that comes with). But it’s also fair to conclude that many voters appealed to something other than the “party” in making their choice.

Art and the Library: Downtown Connection

I don’t think the geographic distribution of results in the presidential and judicial races is particularly surprising, even if they do make for pretty maps.

But the distribution of results within the city of Ann Arbor for the public art millage (Map 7) and the Ann Arbor District Library bond proposal (Map 8) reveals something interesting: One factor underlying voter sentiment on those two questions seems to be proximity to the downtown.

Both proposals drew their strongest support from areas near the geographic center of the city. Opposition was strongest in areas further away from the geographic center. For the library bond proposal, which would have funded construction of a new downtown library building, that’s not surprising. For the public art millage, it’s not as obvious that this should be the case.

One possible theory is that folks who live in or near downtown are just more “cosmopolitan” and “arty” and for that reason supported the millage. More plausible, I think, is the idea that greater support in the core areas really reflects less opposition – and that the opposition was based in part on the perception that the public art millage was all about only the downtown. That perception could be based on the fact that the two highest profile, most expensive, and most controversial pieces of public art produced by the city’s current Percent for Art program are located downtown: Herbert Dreiseitl’s fountain sculpture, and Ed Carpenter’s interior piece, both at the new Justice Center. [Carpenter's hanging sculpture has been commissioned, but not yet installed.]

Perhaps some of the votes against the public art millage might be seen as votes against a downtown-centric art program. The Ann Arbor public art commission has recently been working toward an approach that would be more geographically balanced – based on quadrants of the city. And a revision to the city’s public art ordinance that’s expected to be brought forward at the Nov. 19 city council meeting also has a geographic component. The proposed revision to the ordinance includes a requirement that councilmembers for the ward where a piece of art is proposed be notified of that proposal.

To the extent that the results on these two proposals reflect something about attitudes toward the downtown, the Ann Arbor Downtown Development Authority should take notice. Part of the logic behind enacting a downtown development authority – with its ability to “capture” taxes of other jurisdictions – is to pay for investments in the downtown area that wouldn’t otherwise be made.

Those investments wouldn’t otherwise be made, because the downtown would likely lose every single time, if the use of those taxes were put through the regular budgeting process. That’s because voters in the periphery (who’ll vote like any voters at least partly in a self-interested way) outnumber those in the core. The enactment of a downtown development authority is a mechanism for enforcing the discipline of making infrastructure investments in the downtown, without subjecting them to the relatively volatile annual city budgeting process.

I think one of the minor lessons of the 2012 general election in Ann Arbor is that the case for investments in the downtown is not obvious to many voters, and will need to be made on an ongoing basis.

Map 7: Results of the Nov. 6, 2012 Ann Arbor public art millage. Maps show only in-person votes, not including absentee voters. Shades of green through white indicate a majority voting yes. Shades of lavender through purple indicate a majority voting no.

Map 8: Results for the Nov. 6, 2012 Ann Arbor District Library bond proposal (in-person voting results only). Results from townships outside Ann Arbor are not included. Shades of green through white indicate a majority voting yes. Shades of lavender through purple indicate a majority voting no.

Links to Maps

Links to the dynamic maps built by The Chronicle on geocommons.com:

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