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.

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]

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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Swartz will replace current chief judge Donald Shelton, who has served in that position for four years. Because of his age, Shelton will be ineligible for re-election when his term ends next year. The state constitution requires that judicial candidates at the time of election must be younger than 70 years old. According to the press release, as of Jan. 1 Shelton will be presiding judge of of the trial court’s civil/criminal division through the end of 2014, when his term expires. He will also oversee the implementation of a new case management software system and the roll-out of e-filing.

Swartz has served as a trial court judge since 1997 and was chief judge from 2008-2009. He is currently chief judge pro tempore, a role that will be taken over by judge Carol Kuhnke on Jan. 1. She will also serve as presiding judge of the family division. That position is currently held by judge Archie Brown.

Other trial court judges are Timothy Connors, Darlene A. O’Brien, and Nancy Wheeler, who is on medical leave. Earlier this month, the court announced that retired judge Charles Nelson would be serving as a full-time visiting judge, taking on Wheeler’s docket.

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

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

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

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

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

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

Shelton’s Ruling

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

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

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

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

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

Campaign Contributions in Judicial Race

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

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

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

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

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

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