The ruling makes clear that votes in races other than the Ward 3 city council race can be counted from the misprinted ballots. In-person voting takes place on Aug. 5, 2014.

That ruling came in response to a motion filed by Ward 3 candidate Bob Dascola’s attorney, Tom Wieder, on  July 7, 2014, asking that the city be enjoined from counting votes in the Ward 3 race that were cast on incorrectly printed ballots.

The question of counting votes arose because the ballots for the race were initially printed incorrectly, omitting the name of one of the candidates. Printed correctly on the ballots were Julie Grand and Samuel McMullen. However, Bob Dascola – who had filed a successful lawsuit against the city in order to be a candidate – was mistakenly left off the ballots.

About 400 of those incorrect ballots were sent to absentee voters. The city has taken steps to attempt to rectify the situation, sending replacement ballots with instructions to those voters who received incorrect ballots. For background on the series of events that led to the incorrect printing of ballots, see “Dascola Mistakenly Left Off Ward 3 Ballot.”

The number of potentially disputed ballots currently stands at less than a dozen.

Wieder’s July 7 motion was filed as a request for post-judgment relief in the federal case that was litigated to put Dascola’s name on the ballot in the first place. In that ruling, the court decided that the city charter eligibility requirements are not enforceable. Related to that, the city council voted at its July 21, 2014 meeting to place legally enforceable charter requirements in front of voters for the Nov. 4 general election.

The July 22 ruling from the court came in favor of Dascola, even though the Michigan Secretary of State had, on July 11, 2014, filed a successful motion to be allowed as an intervening party – and had argued for counting Ward 3 votes on the misprinted ballots.

The July 22 order includes a requirement that the city, Dascola and the Secretary of State all file with the court by noon on July 25 a description of the procedures that will be used to count votes in the Ward 3 race. One of the specific questions they must answer in their filings is: “What process will the Ann Arbor Defendants and the Secretary of State use to guarantee only those absentee votes cast for Third Ward Councilmember on accurate ballots are counted?”

In its July 22 order, the court also awarded as-yet-unspecified attorney fees to Dascola. As part of the lawsuit that put Dascola on the ballot, the city was already paying Wieder $30,731 in attorney’s fees and costs.

In addition to the description of the procedures it will use to ensure compliance with the court’s order on ballot counting, the city also must respond by July 23 to a show cause order from the court, explaining why the events that led to the omission of Dascola’s name do not amount to contempt of court.

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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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.