Dan O’Brien of Woods Oviatt Gilman in Rochester, New York gave oral arguments for the plaintiffs in the Yu v. City of Ann Arbor case on Aug. 27, 2014. Here he was providing the court with supplemental documentation on proof of service for the three motions in front of judge Donald Shelton, on Shelton’s last motion day before retirement. The issue of proper service was not explicitly argued on Aug. 27 and appeared resolved in favor of the idea that service had been proper. (Photos by the writer.)

The case involves a claim of unconstitutional takings – inverse condemnation. Plaintiffs in the case, Yu v. City of Ann Arbor, are three Ann Arbor residents who had their footing drains disconnected under the city FDD program.

On his last motion day before retirement, Shelton chose to deny a motion to disqualify the city attorney’s office in its representation of the city. That motion was based on the plaintiffs’ contention that testimony on non-privileged matters would be required of assistant city attorney Abigail Elias.

Shelton’s ruling to deny the motion to disqualify Elias came only after Elias answered what Shelton portrayed as the key question: Would the city’s defense of the lawsuit depend on a contention that the ordinance was enacted based on the opinion of counsel? Elias indicated that she did not think it was relevant, but Shelton insisted on an answer, telling her that if the city wanted to use that as part of its defense, “you’re out of here.” So Elias told Shelton the city would not be using that as part of its defense. Shelton later made clear that such a defense would not be allowed.

In making his ruling on the disqualification issue, Shelton appeared to indicate that he did not think relevant factors in the case included the city’s stated rationale for enacting the FDD ordinance – on grounds of public safety health and welfare – or the efficacy of the ordinance in reducing sanitary sewer overflows and backups. The case was not about whether the FDD ordinance was a good idea, he said, but rather about whether it was a lawful idea.

Shelton also denied a motion to reassign the case away from judge Timothy Connors – who will be taking over all of Shelton’s civil cases after Shelton’s last day as judge on Aug. 29. On that motion, Shelton pointed out that he did not have the power to grant it. He declined to say anything about what he thought regarding the merits of the motion, and indicated that such a motion should go through the regular disqualification process. That entails making a motion in front of the judge to be disqualified – and if the judge declines to disqualify himself, possibly appealing to the chief judge of the circuit court, who is David Swartz.

However, Shelton delayed ruling on a third motion, on sanctions against the city’s attorneys – for making statements in a brief in support of summary disposition that plaintiffs contend did not have a basis well-grounded in fact. Shelton questioned assistant city attorney Abigail Elias closely on the matter, and appeared to indicate some agreement with plaintiffs’ contention that the city had, in its brief filed with the court, mischaracterized the plaintiffs’ position. And during back-and-forth with Shelton, Elias herself stopped just short of admitting that her choice of the word “concede” was a misrepresentation of the plaintiffs’ legal position – something she described as possibly an overstatement in the course of zealous representation of her client.

Shelton indicated that the motion on sanctions – in connection with the brief on summary disposition – should be heard at the same time the motion on summary disposition is heard. So Shelton indicated he would be adjourning that motion until Sept. 18. That hearing on summary disposition is scheduled before Connors.

No substantive matters have yet been decided in the case, which the city first removed to federal court. However, the plaintiffs moved for remand from the federal court back to the circuit court – a motion that was granted by judge Avern Cohn in late May. When the case returned to the circuit court, plaintiffs filed a motion for a preliminary injunction, which was heard and denied by Shelton in early July. The city had filed a motion for summary disposition on June 9, which was originally scheduled for July 30. It was subsequently rescheduled by the city for Aug. 13, and then shifted by the city again to Sept. 18 – which is after Shelton’s scheduled retirement.

When Shelton ruled on the motions after listening to each side, he prefaced the ruling with some general commentary reflecting his 24 years of experience as a judge, which were coming to an end. That commentary highlighted the idea of “winnowing” out the extraneous issues introduced by lawyers on both sides to focus on what a case was actually about.

For the disqualification issue, Shelton wanted to know two things: What specific non-privileged testimony, relevant to the central issue of the case, would be required from Elias? Would the city use as part of its defense the claim that the ordinance had been enacted based upon the opinion of legal counsel? For the judge reassignment issue, the question Shelton identified and answered himself was: Do I have the power to decide this motion? And for the motion on sanctions, Shelton indicated that the central question was: When and in what context should the motion be decided?

A more detailed report of the proceedings is provided below. Dan O’Brien of Woods Oviatt Gilman in Rochester, New York was asked by Shelton to argue all motions in one speaking turn, which he did in the following order: (1) motion to disqualify; (2) motion to reassign away from Connors; and (3) motion for sanctions.

Motion on Disqualification: Background

The motion filed by plaintiffs would disqualify assistant city attorney Abigail Elias, and thereby the city attorney’s office, from representing the city in this lawsuit. [Aug. 20, 2014 Yu v. City of Ann Arbor brief in support of disqualification]

The brief arguing for disqualification cites an email sent by plaintiffs’ counsel in early February notifying Elias that she would likely be called as a witness in the case:

I am advising that your non-privileged testimony and evidence will likely be required in connection with litigation over the FDDP, which is now in preparation for filing. The case will include a claim for inverse condemnation. You are a necessary witness on both liability and relief, which probably comes as no surprise.

The plaintiffs argued partly on grounds that they need to depose Elias as a reason to disqualify her as the city’s representation.

In its brief in opposition to the motion on disqualification, the city contends that there is no testimony that Elias is in a unique position to provide other than testimony that would be subject to the attorney-client privilege. [Aug. 22, 2014 Yu v. City of Ann Arbor brief opposing disqualification]

The city also contends that disqualification of its city attorneys would be prejudicial to the city, because “Ms. Elias has been involved with the FDD program since its inception 13 years ago. Her familiarity with and knowledge of the issues in this case from those years cannot be replicated easily or quickly.”

Motion on Disqualification: Oral Arguments

Dan O’Brien led off oral arguments by asking which of the three motions Shelton wanted to hear first. Shelton set the tone of the proceedings by saying: “You can pick any one you want, but you’re going to talk about all three, and I’m only going to listen to you once.”

Judge Donald Shelton.

O’Brien began with the motion to disqualify Elias as the city’s legal counsel. He rejected the idea – expressed in the city’s response brief – that the motion was a tactic or a strategic move to disqualify opposing counsel. O’Brien indicated there was no personal issue, saying he was from New York State, so he didn’t know the lawyers in Ann Arbor and had no personal opinion one way or another. The motion was based on a review of the situation and the “long and very intense involvement” by Elias in the issue.

At that point Shelton interrupted O’Brien: “Counsel, let me ask you … What specifically do you intend to use … in the way of testimony from Ms. Elias?” When O’Brien indicated he would provide some examples, Shelton’s rejoinder was sharp: “I don’t want examples; I want the whole litany.”

O’Brien started with the origins of the FDD ordinance. It was known that a consultant was hired by the city, and that the consultant’s recommendation that the most expedient and practical way to resolve the sanitary sewer overflows and backups was to disconnect the footing drains from target area houses. It was also known that the consultant had significant reservations about the legality of going onto private property and installing equipment and disconnecting the footing drains. In the consultant’s report there were several places where those caveats and concerns are addressed. O’Brien continued, saying that within 42 days of the report’s issuance, the ordinance was approved.

So O’Brien concluded it is a “fair topic” of examination: What did Elias do between delivery of that report and the passage of the ordinance – with respect to her contacts and discussions with representatives of the consultant or other third parties who were not employees of the city? Shelton’s one-word question: “Who?” O’Brien named the consultant, CDMI. Shelton followed up: “Who else? … What is the non-privileged relevance of her testimony?” O’Brien told Shelton that the non-privileged relevance was this: If the legality of going onto private property was a concern that had been raised, and it had not been ignored, then the city had possibly come up with some kind of a legal framework or opinion supporting the constitutionality and legality of the ordinance – but if that were available, plaintiffs had not seen it.

Shelton shot back: “So what? What if 10 lawyers said, ‘I think this may be unlawful.’” The issue, Shelton continued, is whether the ordinance is, in fact, unlawful or not. Shelton said he didn’t care what 10 lawyers thought about whether the ordinance was lawful or not – that was the issue to be decided in the lawsuit. It would not be decided by taking a poll, Shelton said.

O’Brien forged ahead, saying that based on the motions that the city has made thus far, it is defending the ordinance on the basis of its ability to serve a public need – to provide for public safety, health and welfare. So O’Brien believed that those issues were relevant in terms of the discussions that took place between the time the report was issued by the consultant and the enactment of the ordinance.

Shelton was skeptical: “Of what relevance can they be?” O’Brien noted that he hadn’t raised that issue, but rather the city had. Shelton dismissed that idea as “fishing.” In the course of the continued back-and-forth, Shelton said he did not understand what Elias had to do with anything other than the fact that she was the lawyer and she was advising the city and the city was paying her to do that.

O’Brien then brought up a memorandum Elias wrote earlier this year – not prepared for her colleagues at the city or as advice to the city council. Instead, Elias had prepared that and read it and distributed it to a citizens advisory committee. That was a group formed by the city to review the efficacy and acceptance in the community of the FDD program and to work in conjunction with the city to prepare a second report on the efficacy of the FDD program. Elias had gone to the citizens advisory committee voluntarily, O’Brien said, and she had extensive discussions with the committee about legal positions. But Shelton asked: “What does that have to do with the guts of this lawsuit?”

O’Brien argued that the city had raised the issue of how effective the ordinance has been. But Shelton responded by saying the city could maintain that was an issue, but he didn’t see it as a relevant issue in this case – no matter how the city characterizes it. “This is not a case about whether this is a good or bad idea. The issue is whether it is a lawful idea or not,” Shelton stated.

When O’Brien made a gambit to get the city to agree to some stipulations as to what the relevant issues would be, Shelton stated: “I’m not asking you or them to stipulate to a non-issue. The court will decide what they are, and I’m telling you that whether it’s a good idea or bad idea is not an issue in this case.”

O’Brien expressed some apparent frustration by saying he was simply trying to deal with issues the city had raised, adding that he appreciated Shelton’s “guidance” on what is relevant and what isn’t. Shelton replied: “I have a couple of more days to issue more than guidance!” Shelton emphasized the point that the court will decide the relevant issues: “Ultimately the court has to decide what the legal issue is and I am telling you … that whether this program was a good or bad idea is not a legal issue that is going to be decided by this court. The court is going to decide whether it is lawful or not.”

O’Brien asked if Shelton was saying that the plaintiffs could not take Elias’ deposition. But Shelton told O’Brien to go on to his next motion.

When Elias took her turn at the podium, she told Shelton that she would be happy to address the motion on her disqualification if he wanted her to do that. Shelton told her: “You probably need to do that!” Elias began by reviewing the arguments in the city’s brief, saying that the plaintiffs had not identified anything on which she would need to testify that is not privileged or a legal issue. She didn’t get very far before Shelton interrupted. He wanted to know: Is the city going to defend the case at all based on the idea that the city had enacted the ordinance in reliance upon advice of counsel?

Elias at first did not respond to the question, hazarding an attempt at humor by asking if Shelton meant legal counsel or the city council. When Shelton laughed and indicated he meant the non-elected, legal counsel, Elias began to advance an argument that she didn’t think reliance on advice of counsel was relevant. Shelton interrupted, saying he agreed it wasn’t relevant, but asked: “Are you going to defend on that basis?” When Elias responded, “I hadn’t gotten to that point …,” Shelton cut her off: “You’ve got to get there right now. Fish or cut bait. Because if you’re going to rely on it at all, you’re out of here.” Elias confirmed the city would not be relying on that.

Elias then addressed some of the characterizations by the plaintiffs of engineering reports. The engineers’ statements were basically that they were engineers and as such did not make legal decisions so it would need to go through the city attorney’s office. Shelton gave Elias treatment similar to what O’Brien had received on the question of what people thought about the legality of the ordinance: “… No denigration to the engineers, or your office, and I don’t think I have ever quoted George Bush, but you are not the ‘deciders’ here.” When Elias started to continue with her arguments, Shelton told her she’d answered the one question he’d had, and invited her to address the other motions.

Motion on Reassignment: Background

The motion to reassign was based on the fact that attorney Mark Koroi is co-counsel for the plaintiffs. According to the brief in support of the motion to reassign the case away from Connors, Koroi has filed four Judicial Tenure Commission grievances against Connors, two of which have been upheld. Koroi’s brief also notes that he has engaged in “vigorous public advocacy against political candidacies of both Timothy Connors and his wife.”

The plaintiff’s brief notes that Michigan court rules stipulate that it is the challenged judge who must make an initial ruling on a motion for disqualification, so the motion to reassign is a proactive measure to eliminate the need to file a motion in front of Connors, which would ask that Connors disqualify himself. [Aug. 20, 2014 Yu v. City of Ann Arbor brief on reassignment]

The city’s response brief argues that the motion is actually a motion for disqualification, and as such the motion is premature and should be heard by Connors. The city also argues explicitly against the idea that Connors should be disqualified, noting that if political speech critical of a judge were adequate grounds for disqualification, then an attorney could engage in such speech specifically so that the attorney would never have to appear in front of that judge.

The city also argues that the brief in support of the motion to reassign doesn’t provide any evidence that Connors is aware of Koroi’s political advocacy or that Connors is actually biased against Koroi. [Aug. 22, 2014 Yu v. City of Ann Arbor response brief on reassignment]

Motion on Reassignment: Oral Arguments

O’Brien led off by saying that the motion was to reassign rather than a motion to disqualify because there is an old law school proverb: A live person has no heirs. “You are still on the bench and you are still on this case,” O’Brien told Shelton. O’Brien indicated that he understood that typically the way cases are reassigned is by lot. Shelton then disabused O’Brien of that notion by explaining that when a judge leaves the bench – as Shelton will do on Aug. 29 – the cases are reassigned by the chief judge as a “bulk reassignment.”

Shelton continued by describing a situation in which assignment could be by lot: If the motion were for Shelton to disqualify himself, and he granted that motion, then it would be circulated to all the other civil judges to be drawn by lot. In that explanation, Shelton injected some humor based on wordplay with the phrase “civil judges,” saying that he meant civil judges “with a capital C” – that is, judges who hear civil cases, not judges who behave in a civil manner. For his criminal cases, a visiting judge is going to handle the criminal cases currently assigned to him, Shelton explained – until the newly elected judge takes office.

Judge Donald Shelton.

But the civil cases are going to be assigned to judge Timothy Connors, and Connors would be keeping them, because the newly elected judge [either Pat Conlin or Veronique Liem] won’t have a civil case load initially. O’Brien responded by saying that he had no personal issue or animus, and wouldn’t know Connors if he bumped into him in the hallway. But based on Koroi’s “previous entanglements” with Connors, O’Brien thought the situation warranted reassignment to some other judge instead of Connors.

Shelton responded by saying he was simply going to rule on the motion, adding that any motion to disqualify would have to be made after it was reassigned to Connors. Shelton described the motion in front of him as a way to “jump ahead” of that process and reassign it to someone else. “I have no power to do that,” Shelton said. That would qualify as “extraordinary relief,” he said, and only the chief judge could do that. If plaintiffs did file a motion with the chief judge, Shelton ventured that he [judge David Swartz] would probably tell the plaintiffs to go through the disqualification process. So Shelton told O’Brien to move on to the next motion.

When Elias’ turn came to make arguments, she ventured that she did not need to address the motion on reassignment, which Shelton confirmed.

Motion for Sanctions: Background

A third motion heard on Aug. 27 was for sanctions on the city attorney’s office for filing papers that are “neither well-grounded in fact nor warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” The papers in question were the city’s brief in support of its motion for summary disposition. [June 9, 2014 Yu v. City of Ann Arbor brief on summary disposition]

Included in the plaintiffs’ claims asking for sanctions to be imposed is the contention that some of the key arguments in the city’s motion for summary judgment are frivolous. Plaintiffs assert that the city’s argument that the plaintiffs’ complaint is time-barred is frivolous. The plaintiffs then argue that one of the city’s positions – that the plaintiffs’ federal claims should be dismissed – is crucially based on the city’s contention that the claims are time-barred.

The plaintiffs’ brief in support of sanctions also asserts that the city has mischaracterized the plaintiffs’ position, highlighting instances where the city states that the plaintiffs have “recognized” or “conceded” some key aspect of the city’s legal position. The plaintiffs argue that the plaintiffs have not recognized or conceded the things that the city claims in its brief. [Aug. 20, 2014 Yu v. City of Ann Arbor brief on sanctions]

For example, the city claims in its brief that [emphasis added]:

Plaintiffs recognize that they own the sump pumps they installed and that the sump pumps and footing drain system operate as an integral part of their houses; in other words that neither the city nor a third party owns anything located in their homes, occupies their properties, or has otherwise taken their properties.

The claim is presented in the “introduction” section of the city’s brief, a section of pleadings where recitations of uncontroversial fact are typically presented. The question of pump ownership and occupation of residents’ homes by the third party are central points of dispute in the case. The plaintiffs’ brief in support of sanctions argues that the citations by the city to the plaintiffs’ pleadings – in support of the claim of “recognition” – do not in fact support a claim of “recognition.”

Another claim by the city – presented in the “background facts” portion of its brief in support of summary disposition – is that [emphasis added]:

“Plaintiffs concede that Sec. 1.1 [the footing drain disconnection ordinance] was adopted by the City to address the public health, safety and welfare issues of sanitary sewer back-ups in basements and sanitary overflows.”

The portion of the plaintiffs’ brief cited by the city in making that characterization does not, according to the plaintiffs, provide any support for the city’s contention that a concession has been made. And elsewhere in the plaintiffs’ brief, they state [emphasis added]:

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.

Based on the city’s descriptions of the plaintiffs’ statements, the plaintiffs contend that the city is distorting the record. From the plaintiffs’ brief in support of sanctions:

This level of mischaracterization goes beyond zealous advocacy: it is misleading and is unfair to both the Court and to the Plaintiffs, whose lawyers are forced to ferret out mischaracterizations and distortions of the record when they should be responding to a “fair presentation of the issues” by opposing counsel.

The city’s response to the plaintiffs’ brief in support of sanctions deals with the part involving plaintiffs’ frivolous legal arguments by arguing for the merit of those arguments.

In its brief opposing sanctions, the city responds to the plaintiffs’ contention that their statements have been misrepresented to the court by insisting that the city’s characterization is based on the plaintiffs’ recitation of facts – and an attachment to the complaint of the city’s written “homeowner’s package” for sump pump installees.

The city’s position appears to be that whatever factual claims and characterizations made in the “homeowner’s package” were recognized and represented to the court by the plaintiffs as true – by dint of the attachment of the “homeowner’s package” to the plaintiffs’ complaint as an exhibit. So the city is not analyzing the plaintiffs’ exhibit merely as a representation by the plaintiffs as to what the city itself claims to be true (via public documents produced by the city), but also what the plaintiffs are recognizing to be true. [Aug. 22, 2014 Yu v. City of Ann Arbor response brief on sanctions]

The city blames any misunderstanding on the plaintiffs, arguing that the plaintiffs wrote poorly worded filings. From the city’s response brief, opposing sanctions:

[T]he City has not mischaracterized Plaintiffs’ Complaint, but has simply analyzed it as written by Plaintiffs. Plaintiffs’ dissatisfaction with the City’s reading of their Complaint arises from Plaintiffs’ own failure to draft a well-pleaded Complaint.

Motion for Sanctions: Oral Arguments

O’Brien began by saying that it was not something he was doing lightly: “I would not bring such a motion if I did not feel that a line had been crossed here.” Addressing an issue raised in the city’s response brief, O’Brien said the city contended the motion was premature, even while indicating that they could not find a case or a rule showing when such motions should be considered.

Plaintiffs’ counsel, Dan O’Brien.

O’Brien told Shelton that the plaintiffs’ brief had cited authority – a Michigan Supreme Court case – which makes clear that the rules governing the imposition of sanctions apply to all motions, affidavits and other papers filed with the court. As a result, there was no impediment to the court to consider the motion for sanctions and to impose them if it finds the court rule has been violated.

O’Brien identified three arguments that the plaintiffs have made. One was that there have been mischaracterizations in the papers filed by the city – “real mischaracterizations and distortions of the positions” that the plaintiffs had described in their complaint.

The city had contended in their brief in support of summary disposition that plaintiffs had “permitted” or “invited” the invasion or occupation complained about in their complaint. O’Brien said that all of the allegations in the plaintiffs’ complaint directly contradict the notion that they “invited” or “permitted” the agents of the city to come in and do work. The fact was that the activity was involuntary. For example, O’Brien said, the complaint talks about “enforced consent,” and “under threat of compulsion.” O’Brien told Shelton that with those kinds of phrases in their complaint, it’s not possible to characterize the pleading as one that “admits” or “acknowledges” the invasion or occupation as permitted or invited.

O’Brien pointed out that in the city’s brief in support of summary disposition, the city indicates it will accept the pleadings of the complaint as true – so the city was not offering any opposing affidavits or any admissible evidence. So for the purposes of their motion, they are acknowledging the allegations of the complaint are to be taken as true. If that is the case, O’Brien continued, then the city’s characterization of the plaintiffs’ argument is “wildly inaccurate.” The city’s characterization is misleading, he said, and it is a distortion of the complaint.

O’Brien also noted that the city had contended the plaintiffs “recognized that they own the sump pumps they installed and that the sump pumps and footing drain system operate as an integral part of their houses; in other words that neither the city nor a third party owns anything located in their homes, occupies their properties, or has otherwise taken their properties.” If you look at the complaint, O’Brien told Shelton, that is directly contrary to what the plaintiffs said in their complaint.

The city had cited as authority for that “admission” – that the plaintiffs had acknowledged there was no unconstitutional taking – the fact that plaintiffs attached the city’s homeowner packet as an exhibit to the complaint. And the city argued that because the plaintiffs attached the city’s own homeowner packet as an exhibit for the complaint, that somehow the plaintiffs had adopted everything the homeowner packet says. There is no way you can read that complaint and the references to the exhibit as the plaintiffs’ “concession” to the city’s position with respect to the FDD program, O’Brien said. “It’s completely uncalled for and is just untrue.”

In the city’s response brief, O’Brien said, the city cites authority for the fact that attached exhibits that contradicts allegations in the complaint trump those allegations. But what cases did the city cite? O’Brien asked. The city cited one case in which a complaint had attached to it promissory notes and guarantees signed by the plaintiff. And based on those promissory notes and guarantees, the court concluded that the allegations of the plaintiff were contradicted by the documentary evidence attached to the complaint – and obviously adopted by the plaintiff. The other case was one where letters by the lawyer were attached, which contradicted the assertions contained in the complaint. Those cases were inapposite, O’Brien said.

Allegations were made in the complaint that the plaintiffs were forced by the city to accept this FDD installation, and the plaintiffs attached the homeowner packet and quoted some of the language in it. To suggest that plaintiffs had adopted the city’s position – just because they’d merely attached that exhibit to the complaint – is fallacious, O’Brien said. “It’s sophistry,” he continued, and that’s the kind of thing that the plaintiffs and the judge should not be required to ferret out any time the city says something.

O’Brien continued by noting that the city had written that the plaintiffs “conceded” that the ordinance was adopted to address public health, safety and welfare. If you read the allegations in the complaint, he noted, you see that the plaintiffs, on the contrary, state that the city enacted the FDD program for expediency – because the city didn’t want to spend money to expand the sewer system or expand the sewage treatment plant. The city enacted the FDD because it was the cheapest way to do it. O’Brien told Shelton: “I don’t know how you can interpret – it’s not even an interpretation – how you can extract from our allegations the statements that they attribute to us.”

O’Brien then moved to the second prong of the plaintiffs’ motion on sanctions – which was the city’s continued assertions that the statute of limitations in this case is six years, when inverse condemnation cases in the state of Michigan have a statute of limitations of 15 years. The city argues frivolously, O’Brien said, that there is a six-year statute of limitations. The position of the city is not well-grounded in fact, O’Brien said.

Shelton did not interrupt O’Brien in his arguments on sanctions.

When Elias took the podium, she began by saying that the city is entitled to rely on and read the plaintiffs’ complaint taking the well-pleaded allegations that are actually supported in the complaint or in the attachments. Conclusory allegations don’t count, she said. The city’s characterizations were made based on the complaint, making the reasonable inferences that they could from the allegations that the plaintiffs had made.

The plaintiffs rely on the homeowner packet, Elias continued, but Shelton cut her off: “One statement that does bother me is your statement that they have ‘conceded’ that the ordinance was adopted in the interest of public health, safety and welfare. That is a stretch even for a lawyer. That’s obviously the whole point of the complaint.”

Assistant city attorney Abigail Elias.

Elias began to respond, saying that if you look at the paragraphs of the plaintiffs’ complaint that the city had cited, the plaintiffs do “recognize” – but she quickly allowed that “maybe ‘concede’ is a strong word there.” Shelton’s two-word commentary: “It is!”

Elias offered that the plaintiffs had acknowledged the sequence of events that led up to the adoption of the ordinance. Elias then told Shelton, “It was not intended – and my apologies to the court if that’s how it was read – to be an argument that …” but Shelton cut her off: “That is what the words say!” Shelton drove home the point: “And those are the words that you are responsible for.”

Elias contended that she was looking at it as a factual issue as opposed to legal issue – so “concession” was more a recognition of the facts, she said. She then stated: “I stand corrected on that if I overstated with some zealousness there.”

Elias then argued that the motion for sanctions was premature. She allowed there is no rule for when a motion for sanctions is decided or considered. But if it is addressed to a motion, those are best decided at the time that the motion has been decided, she said. That’s the same time the merits of the arguments are sorted out – and that’s the appropriate time to be making a ruling on whether or not a motion was frivolous or unsupported.

Elias then advanced an argument that the plaintiffs were arguing that the city owned the sump pumps. But Shelton replied: “That is not the argument that they made. … Their argument simply is that it is a taking when you force them to install a pump on their property.”

Elias responded at moderate length, concluding that the plaintiffs had argued that the sump pump is a physical intrusion, not a regulatory requirement. Shelton’s summary of Elias’ remarks was not complimentary: “The problem here, Ms. Elias, is that you pick a word out and you build a straw man out of it and then burn him alive. I will leave that for the judge. That’s not a strong argument.”

Rulings

After hearing from both sides, Shelton began with some general ruminations on what it’s like to be a judge. It is as much a process of “winnowing” as it is anything else, he said. And that means winnowing through all the verbiage – to get down to what the issue is, and to make a decision on that issue based on the facts and the law.

Judge Donald Shelton exited the courtroom on his final motion day, Aug. 27, 2014. In his retirement, he’ll be teaching at the University of Michigan-Dearborn. In response to some of the well-wishes he received throughout the afternoon, he quipped: “I’ll have to learn to talk to people who don’t have to listen to me.”

Lawyers sometimes feel the need to confuse and obfuscate the issues as much as possible, Shelton ventured, possibly based on their assessment of the strength of their case. But for a judge in a case where there is a significant legal issue – like this one – there is a responsibility to “keep the herd moving west,” and to keep an eye on the crux of the issue.

He announced he was going to deny the motion to disqualify Elias. But Shelton noted that Elias had stated the city will not defend the case on the basis that the ordinance was adopted in reliance upon a legal opinion – so he was ruling that the city cannot defend this case on that basis.

Shelton observed that he’d already denied the motion to reassign the case away from Connors. He noted that plaintiffs could refile that motion with the chief judge, but he suggested waiting until the case is reassigned – and then going through an ordinary disqualification process. He stressed he was not ruling at all on the merits of the motion.

With regard to the motion for sanctions – based on statements by the city in the brief supporting its motion for summary disposition – Shelton had some concerns about a couple of the statements that were made. But he said that the pleadings have to be taken in the context of the entire issue. If he were deciding the motion for summary disposition, it would be appropriate for him to rule on the plaintiffs’ motion for sanctions. However, it would be inappropriate for him to rule on the motion without that motion for summary disposition in front of him.

So Shelton concluded that he would adjourn the motion for sanctions to the hearing on the city’s motion for summary disposition “before whomever it takes place,” he said. Whether the defendant’s statements are without any reasonable basis, or are frivolous, is “really for the judge who hears the motion for summary disposition,” he concluded.

Next Hearing

The next hearing in this case is currently scheduled for 9 a.m. on Sept. 18 in front of judge Timothy Connors at the 22nd circuit courthouse, 101 E. Huron in downtown Ann Arbor.

From left: Assistant city attorney Abigail Elias, city attorney Stephen Postema and co-counsel for the plaintiffs Irvin Mermelstein. The photo is from the July 2, 2014 hearing on a preliminary injunction in the Yu v. Ann Arbor case, which judge Donald Shelton denied.

The latest procedural issues now appear set to be decided on Aug. 27, 2014 – judge Donald Shelton’s final motion day before his retirement.

The case involves a claim of unconstitutional takings – inverse condemnation. Plaintiffs in the case, Yu v. City of Ann Arbor, are three Ann Arbor residents who had their footing drains disconnected under the city FDD program.

The procedural issues that could be decided next week include a motion to disqualify the city attorney’s office from representing the city due to conflicts; a motion to sanction city attorneys for filing documents with statements that plaintiffs allege are not well-grounded in fact; and a motion to reassign the case to a judge other than Timothy Connors. All three motions were filed with the court on Wednesday, Aug. 20.

A dispute about whether those Aug. 20 filings were properly served upon the city is one of the issues Shelton could decide at the start of the hearing.

By way of background, the case was originally filed in the Washtenaw County 22nd circuit court and assigned to Shelton in late February. The city then removed the case to federal court. However, the plaintiffs moved for remand from the federal court back to the circuit court – a motion that was granted by judge Avern Cohn in late May.

When the case returned to the circuit court, plaintiffs filed a motion for a preliminary injunction, which was heard and denied by Shelton in early July. The city had filed a motion for summary disposition on June 9, which was originally scheduled for July 30. It was subsequently rescheduled by the city for Aug. 13, and then shifted by the city again to Sept. 18 – which is after Shelton’s scheduled retirement.

According to the court administrator’s office, the case will not officially be reassigned to a different judge until Sept. 2. However, when The Chronicle inquired with the 22nd circuit court’s central scheduling office, the staff indicated that the plan was to reassign all of Shelton’s civil cases to Connors. So the city’s paperwork scheduling of the Sept. 18 hearing specifies Connors as the judge.

Motion on Reassignment

The Sept. 18 hearing date on the city’s motion for summary disposition could change if Shelton grants the motion to reassign the case to a judge other than Connors.

The motion to reassign is based on the fact that attorney Mark Koroi is co-counsel for the plaintiffs. According to the brief in support of the motion to reassign the case away from Connors, Koroi has filed four Judicial Tenure Commission grievances against Connors, two of which have been upheld. Koroi’s brief also notes that he has engaged in “vigorous public advocacy against political candidacies of both Timothy Connors and his wife.”

The plaintiff’s brief notes that Michigan court rules stipulate that it is the challenged judge who must make an initial ruling on a motion for disqualification, so the motion to reassign is a proactive measure to eliminate the need to file a motion in front of Connors, which would asked that Connors disqualify himself. [Aug. 20, 2014 Yu v. City of Ann Arbor brief on reassignment]

The city’s response brief argues that the motion is actually a motion for disqualification, and as such the motion is premature and should be heard by Connors. The city also argues explicitly against the idea that Connors should be disqualified, noting that if political speech critical of a judge were adequate grounds for disqualification, then an attorney could engage in such speech specifically so that the attorney would never have to appear in front of that judge.

The city also argues that the brief in support of the motion to reassign doesn’t provide any evidence that Connors is aware of Koroi’s political advocacy or that Connors is actually biased against Koroi. [Aug. 22, 2014 Yu v. City of Ann Arbor response brief on reassignment]

Motion for Sanctions

A second motion filed on Aug. 20 for hearing on Aug. 27 is to sanction the city attorney’s office for filing papers that are “neither well-grounded in fact nor warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” The papers in question are the city’s brief in support of its motion for summary disposition. [June 9, 2014 Yu v. City of Ann Arbor brief on summary disposition]

Included in the plaintiffs’ claims asking for sanctions to be imposed are that some of the key arguments in the city’s motion for summary judgment are frivolous. Plaintiffs assert that the city’s argument that the plaintiffs’ complaint is time-barred is frivolous. The plaintiffs then argue that one of the city’s positions – that the plaintiffs’ federal claims should be dismissed – is crucially based on the city’s contention that the claims are time-barred.

The plaintiffs’ brief in support of sanctions also asserts that the city has mischaracterized the plaintiffs’ position, highlighting instances where the city states that the plaintiffs have “recognized” or “conceded” some key aspect of the city’s legal position. The plaintiffs argue that the plaintiffs have not recognized or conceded the things that the city claims in its brief. [Aug. 20, 2014 Yu v. City of Ann Arbor brief on sanctions]

For example, the city claims in its brief that [emphasis added]:

Plaintiffs recognize that they own the sump pumps they installed and that the sump pumps and footing drain system operate as an integral part of their houses; in other words that neither the city nor a third party owns anything located in their homes, occupies their properties, or has otherwise taken their properties.

The claim is presented in the “introduction” section of the city’s brief, a section of pleadings where recitations of uncontroversial fact are typically presented. The question of pump ownership and occupation of residents’ homes by the third party are central points of dispute in the case. The plaintiffs’ brief in support of sanctions argues that the citations by the city to the plaintiffs’ pleadings – in support of the claim of “recognition” – do not in fact support a claim of “recognition.”

Another claim by the city – presented in the “background facts” portion of its brief in support of summary disposition – is that [emphasis added]:

“Plaintiffs concede that Sec. 1.1 [the footing drain disconnection ordinance] was adopted by the City to address the public health, safety and welfare issues of sanitary sewer back-ups in basements and sanitary overflows.”

The portion of the plaintiffs’ brief cited by the city in making that characterization does not, according to the plaintiffs, provide any support for the city’s contention that a concession has been made. And elsewhere in the plaintiffs’ brief, they state [emphasis added]:

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.

Based on the city’s descriptions of the plaintiffs’ statements, the plaintiffs contend that the city is distorting the record. From the plaintiffs’ brief in support of sanctions:

This level of mischaracterization goes beyond zealous advocacy: it is misleading and is unfair to both the Court and to the Plaintiffs, whose lawyers are forced to ferret out mischaracterizations and distortions of the record when they should be responding to a “fair presentation of the issues” by opposing counsel.

The city’s response to the plaintiffs’ brief in support of sanctions deals with the part involving plaintiffs’ frivolous legal arguments by arguing for the merit of those arguments.

In its brief opposing sanctions, the city responds to the plaintiffs’ contention that their statements have been misrepresented to the court by insisting that the city’s characterization is based on the plaintiffs’ recitation of facts – and an attachment to the complaint of the city’s written “homeowner’s package” for sump pump install-ees.

The city’s position appears to be that whatever factual claims and characterizations that are made in the “homeowner’s package” were recognized and represented to the court by the plaintiffs as true – by dint of the attachment of the “homeowner’s package” to the plaintiffs complaint as an exhibit. So the city is not analyzing the plaintiffs’ exhibit merely as a representation by the plaintiff as to what the city itself claims to be true (via public documents produced by the city), but also what the plaintiff is recognizing to be true. [Aug. 22, 2014 Yu v. City of Ann Arbor response brief on sanctions]

The city blames any misunderstanding on the plaintiffs, arguing that the plaintiffs wrote poorly worded filings. From the city’s response brief, opposing sanctions:

[T]he City has not mischaracterized Plaintiffs’ Complaint, but has simply analyzed it as written by Plaintiffs. Plaintiffs’ dissatisfaction with the City’s reading of their Complaint arises from Plaintiffs’ own failure to draft a well-pleaded Complaint.

Motion on Disqualification

A third motion filed by the plaintiffs for hearing on Aug. 27 is one that would disqualify assistant city attorney Abigail Elias, and thereby the city attorney’s office, from representing the city in this lawsuit. [Aug. 20, 2014 Yu v. City of Ann Arbor brief in support of disqualification]

The brief arguing for disqualification cites an email sent by plaintiffs’ counsel in early February notifying Elias that she would likely be called as a witness in the case:

I am advising that your non-privileged testimony and evidence will likely be required in connection with litigation over the FDDP, which is now in preparation for filing. The case will include a claim for inverse condemnation. You are a necessary witness on both liability and relief, which probably comes as no surprise.

The plaintiffs argue partly on grounds that they need to depose Elias as a reason to disqualify her as the city’s representation.

In its brief in opposition to the motion on disqualification, the city contends that there is no testimony that Elias is in a unique position to provide other than testimony that would be subject to the attorney-client privilege. [Aug. 22, 2014 Yu v. City of Ann Arbor brief opposing disqualification]

The city also contends that disqualification of its city attorneys would be prejudicial to the city, because “Ms. Elias has been involved with the FDD program since its inception 13 years ago. Her familiarity with and knowledge of the issues in this case from those years cannot be replicated easily or quickly.”

Hearing

The next hearing is currently scheduled for Aug. 27 at 1:30 p.m. in front of judge Donald Shelton at the 22nd circuit courthouse, 101 E. Huron in downtown Ann Arbor.

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:

1. 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.”
2. 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.
3. 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.”
4. 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.”
5. 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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