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. He also declined to rule on the merits of 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 retirement at the end of this week. On that motion, Shelton pointed out in denying it that he did not have the power to grant it and indicated that such a motion should go through the regular disqualification process.

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 well-founded basis. Shelton questioned assistant city attorney Abigail Elias closely on the matter, and appeared to indicate agreement with plaintiff’s contention that the city had, in its brief filed with the court, mischaracterized the plaintiff’s position.

However, Shelton indicated that the motion on sanctions should be heard when the motion on summary disposition is heard – on Sept. 18. So Shelton indicated he would be adjourning that motion until Sept. 18. That hearing is scheduled before Connors.

For additional background, see “Shelton to Hear Motions in FDD Case.”

This brief was filed from Shelton’s courtroom shortly after the hearing ended. A more detailed report will follow: [link]

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.

Here’s bit of friendly advice to high school teachers everywhere: If you take a group of kids in southern Indiana and assign them parts in Anouilh’s Antigone to read aloud sitting at their desks, at least one of those kids will contemplate stabbing out his own eyes as a way to avoid doing that.

This is Emily Caffery as Elektra, making her entrance onto the stage at West Park on opening night, July 10, 2014.

Because I am not a hero in a Greek play, I did not act on the inclination. But based on that first exposure to Greek drama, I did not develop an appreciation for it, or any other literary tradition. In literary terms, this failure to “develop an appreciation” for Greek drama is, I believe, accurately described as “understatement.”

So I must avail myself of another highfalutin literary device (irony) to urge you, Chronicle readers, to attend one of the upcoming performances of “Elektra,” this year’s Penny Seats Theatre Company West Park production.

Opening night was July 10. It will be performed over three weekends: July 10-12, July 17-19 and July 24-26. Buy a ticket.

To be clear, it’s not Greek drama I’m trying to sell you. I’d like to sell you on the idea of Greek drama performed in West Park, one of 157 parks here in Ann Arbor.

I want to sell you on that idea, because mostly when you read about Ann Arbor’s parks in The Chronicle, it’s in some super policy-wonky context. Sometimes that context is the city council, when it’s engaged in its own park-based drama. Or it’s our coverage of the park advisory commission.

So in the Penny Seats production of “Elektra,” I spotted an opening to pitch Ann Arbor’s parks to readers – in a different way than we typically cover them.

West Park is just west of downtown, between Chapin and Seventh streets. Motorists on Huron Street will be familiar with the park’s general location, even if they don’t know the park itself: It’s north of the HAWK crosswalk pedestrian signal as you pass the Y building.

Pedestrians who cross Huron at the HAWK crosswalk, and head a half block north along Chapin, will find the park entrance on the left. From that direction, the park offers a fairly conventional playground, a basketball court and a Project Grow gardening plot. A bit farther to the west, hugging the northern portion of the park, is a baseball field. And to be perfectly clear, that’s a baseball (not softball) field – which has been described by players as the best place to play baseball in all of lower Michigan. To the south, there’s a pond or wetland type area. A boardwalk leads across it, so you can stop along the way and make friends with a frog, some duck or a muskrat.

On up the hill to the west, past the ball field and the wetland, is the bandshell, with a series of seatwalls. The Penny Seats production of “Elektra” is being performed on the apron immediately in front of the seatwalls, not on the bandshell stage.

I attended opening night of “Elektra.”

I’ll grant you that the opening to this column might have convinced you that I am not to be trusted on theatrical matters. I do have one credential, however. The summer after that high school English class – the one that made me think about stabbing out my eyes – our teacher bused us up to the Shakespeare Festival in Stratford, Ontario. We attended a half-dozen performances. So I think I have some frame of reference for what a professionally-produced stage performance is supposed to look and sound like.

And professional is what the Penny Seats production sounds like. Listen for yourself: [.mp3 Elektra Snippet 1] [.mp3 Elektra Snippet 2] [.mp3 Elektra Snippet 3]

And professional is also what the Penny Seats production looks like. See for yourself:

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

Elektra, July 10, 2014

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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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The surface of the Library Lane parking structure is highlighted in yellow.

Direction from the city council to Powers – to engage a broker for the development rights on top of the Library Lane underground parking parking garage – initially came at the council’s March 17, 2014 meeting. That was an 8-1 vote, with dissent from Sumi Kailasapathy (Ward 1). Absent was Sally Petersen (Ward 2). Margie Teall (Ward 4) departed late in the meeting but before the vote.

However, the resolution was reconsidered at the council’s April 7, 2014 meeting – with the same outcome, but a different vote tally. The vote on April 7 was 7-4, with dissent from Kailasapathy, Jane Lumm (Ward 2), Jack Eaton (Ward 4), and Mike Anglin (Ward 5). Stephen Kunselman (Ward 3), who’d sponsored the resolution, nonetheless asked the council to reconsider it. He made it clear that he was bringing back the resolution for reconsideration to highlight why he had wanted the property listed for sale: He wanted definitive answers on the question of how many of the Library Lane structure parking spaces could be dedicated for private use – while still meeting the restrictions of the Build America Bonds used to finance the structure.

A partial answer to some of Kunselman’s questions came when the council voted on March 17, 2014 to waive attorney-client privilege on a memo written by outside bond counsel. [.pdf of Aug. 9, 2012 Dykema memo]

Other recent council action on Library Lane includes a resolution to allocate 50% of the proceeds of the sale of the development rights to the city’s affordable housing trust fund. That resolution was approved at the council’s April 7, 2014 meeting. Also on April 7, the council re-settled a previously decided issue, and passed a resolution that would reserve a 12,000-square-foot portion of the Library Lane surface for an urban plaza/park.

The message from the city administrator announcing the selection of CBRE cites the broker’s extensive experience in community engagement and clients that include cities, counties, universities and states. CBRE’s international, national, and regional experience is also cited in the administrator’s message. Next steps will include city staff working with CBRE  on development of  the community engagement plan, competitive disposition process, and marketing of the property, Powers wrote.

This is the second time in the past year that the city has hired a broker to explore the sale of city-owned property. A year ago, Powers selected Colliers International and local broker Jim Chaconas to handle the possible sale of the former YMCA lot, located at the corner of Fifth and William in downtown Ann Arbor – near the Library Lane site. On Nov. 18, 2013, the city council approved the sale of that site – a parcel north of William Street between Fourth and Fifth avenues – to Dennis Dahlmann for $5.25 million. Of that sale, the city council voted to deposit $1.4 million into the city of Ann Arbor’s affordable housing trust fund.

Theodore Levin U.S. Courthouse in downtown Detroit.

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

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

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

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

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

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

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

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

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

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

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

The hearing is reported below in more detail.

May 28, 2014 Hearing

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

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

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

May 28,2014 Hearing: Proceedings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Briefs Filed

Briefs filed in the case so far include the following:

• 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]
• 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]

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How to search just the city of Ann Arbor’s website with Google and reduce frustration when you are unable to find information by navigating to it.

So stop navigating it. Stop “reading” it.

Start searching it – and you’ll probably find what you’re looking for.

That’s not to defend the user interface or the look and feel of a2gov.org. Maybe it is terrible. I don’t have a strong opinion on that. It’s worth noting that the city council approved a contract with Keystone Media ($26,900) at its Oct. 21, 2013 meeting to redesign the basic templates for the city’s website.

I’m not sure if that work has yet been implemented – as I just don’t pay that much attention to the look and feel or the navigational features of the city’s website. That’s despite the fact that part of The Job is to look stuff up – quite frequently on the city’s website. And mostly I find what I’m looking for pretty quickly.

So my point in writing is to share one simple technique I use dozens of times a day to do The Job. I use Google search – but constrain the search to just the one website where I’m looking.

The syntax goes like this:

site:terrible-to-navigate-website.com word-1 word-2 word-3 word-4

To illustrate how effective this can be, let’s consider an example from real life. Last year, the March 18, 2013 city council meeting featured extensive public commentary on the 413 E. Huron project that pushed the meeting conclusion to around 2 a.m. I wanted to include in our meeting report the names of all the speakers.

But the final speaker stated her name in an unclear way, so that it was not possible to discern what it was – even after listening to an audio recording several times. She did, however, identify herself as a member of the Old Fourth Ward Historic District Study Committee.

That historic district study took place 30 years ago. What are the chances the city’s website had a list of the committee member names to which I could compare the audio? To find out, I didn’t read the city’s website. I did not navigate the city’s website. I did not even “visit” the city’s website.

The first thing I tried was using Google’s site-specific search. Here’s a screen shot of the search results from Google:

Screenshot of search results from “site:a2gov.org historic district study committee for the Old Fourth Ward”

The third result looked likely to have a listing of committee member names. It did. Comparing the audio to the list was easy work: Cappy Bilakos.

I don’t mean to suggest that site-specific search syntax is magical or that the city should  not worry about improving the readability and navigation for its website.

But I would suggest that frustration levels for users could be reduced if Google’s site-specific search were used as a primary strategy for finding information. That goes not just for the city’s website, but for the Internet in general.

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From top: Petersen, Briere, Kunselman, Taylor.

The class is taught by Ann Arbor mayor John Hieftje, who announced last year that he would not be seeking re-election.

Hieftje and the students organized the town hall format event, which is scheduled from 1:10-2:30 p.m. in the Ford School’s Annenberg Auditorium at 735 S. State St.

The event is open to the public. The town hall will be moderated by students in the class. Questions from the audience will be considered as time allows.

Confirmed to appear at the event will be Sabra Briere, Stephen Kunselman, Christopher Taylor and Sally Petersen. All are Democrats and are currently serving on the Ann Arbor city council.

As of the morning of April 16, only Kunselman had submitted the required signatures from registered voters in each of the city’s five wards to qualify for the ballot. Signatures must be submitted to the city clerk by April 22. Although no one other than these four councilmembers has announced an intent to contest the mayoral primary race, it’s still technically possible to take out petitions and collect signatures in time to qualify for the ballot.

The forum is being co-sponsored by UM’s Center for Local, State, and Urban Policy (CLOSUP) and the Gerald R. Ford School of Public Policy.

The Chronicle has made arrangements to provide CART (Communication Across Real Time) text streaming services for the event. If all technical challenges have been met, text will start streaming after the jump around 1:10 p.m. on April 16.

Live Text Stream

The event is now over. Here’s a link to a lightly corrected transcript from the live stream. [.txt of live stream]

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

The lawsuit 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.

In moving the case to the federal court’s Eastern District of Michigan, the city is exercising its right under 28 USC §1441, which states in part:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

The procedure for removing a case to the federal district court requires that the defendant, the city of Ann Arbor, file with the district court within 30 days of being served the lawsuit and to include a “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” Among the statements covering the city’s grounds for removing the case to federal court is the following:

Plaintiffs’ state law claims arise from the same common nucleus of operative facts and are so intertwined with and related to Plaintiffs’ federal claims that they form part of the same case or controversy as those federal claims, over which this Court has original jurisdiction.

The city filed with the federal court on March 17, 2014, which was 10 days after being served the lawsuit, on March 7. [.pdf of March 17, 2014 federal court filing]

The circuit court case had been assigned to judge Donald Shelton. The federal case is assigned to judge Avern Cohn.