The city lost both phases of the litigation, which began when the city sought to enforce city charter eligibility requirements against Dascola to prevent him from being a candidate in the Ward 3 city council Democratic primary race. The election was won by Julie Grand in a three-person field that included Samuel McMullen.

The $35,431.75 amount is the total agreed to for the initial phase of the lawsuit on city charter eligibility requirements ($30,731.75), plus half the amount that was agreed to in the second phase, which involved the counting of misprinted ballots ($9,400). The other half of the $9,400 will be paid by the state of Michigan, which intervened in the second phase of the lawsuit. So the total paid to Dascola’s attorney, Tom Wieder, will be $40,132, which includes court costs.

Fees for the initial phase of the lawsuit were settled on June 19, 2014 – at $30,731.75. That total includes attorney fees in the amount of $30,306.25 – which was the result of 93.25 hours billed at an hourly rate of $325. The remainder of that total was $425.50 – costs for filings and document retrieval.

The motion for fees in the second phase of the lawsuit was filed by Wieder on Aug. 19, 2014 and asked for a total of $12,320 based on 30.80 hours of work at $400 per hour. Wieder’s filing parcels out each item of work to either the city or the state or to both jointly. The amount was reduced to $9,400 through back-and-forth among Wieder, the state and the city, with the final settlement splitting the amount evenly between the city and the state. [.pdf of Aug. 19, 2014 motion for fees]

The initial phase of the lawsuit was decided in favor of Dascola on May 20, 2014. At issue were city charter durational requirements on voter registration and residency – that require city councilmembers to be registered to vote in the city and to be a resident of the ward they want to represent for at least a year prior to taking office. Dascola contended he met the residency requirement, but conceded that he fell short of the voter registration requirement. He did not register to vote in the city until Jan. 15, 2014. The court ruled that the requirements were not enforceable, because they’d been ruled unconstitutional in the early 1970s, and never re-enacted by the city. Dascola submitted sufficient signatures to qualify, so the impact of the ruling was that Dascola was supposed to appear on the Ward 3 ballot.

However through a series of errors, his name did not appear on the printed ballots and nearly 400 of the misprinted ballots were sent to Ward 3 absentee voters. A dispute arose over how ballots would be counted if someone did not return one of the replacement ballots. The state of Michigan intervened on behalf of the Bureau of Elections, which told the city to go ahead and count the ballots. But on July 22, 2014 the federal court ruled that such ballots should not be counted.

The kind of city charter eligibility requirements that triggered the lawsuit in the first place should not become an issue in the future, if Ann Arbor voters approve charter amendments that the city council has voted to place on the Nov. 4, 2014 ballot.

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.

The settlement is reflected in a court document filed by the city of Ann Arbor on June 19, 2014.

That total reflects a reduction from a total of $37,725.50 that Wieder had sought in his motion for award of fees filed with the court on June 6, 2014. [.pdf of motion for fees and accompanying brief] That requested fee award had been based on the same number of hours (93.25) but at the higher rate of $400 per hour.  The argument for the hourly rate is based on various standards cited in the accompanying brief, which include the quality of the results obtained for the client, and the reasonableness of the rate based on Wieder’s experience, skill, and reputation.

The fees agreed to by Wieder and the city of Ann Arbor are to be paid by July 15, 2014.

The ruling of the federal court in Dascola’s lawsuit made on May 20, 2014 by judge Lawrence Zatkoff, was that the city charter eligibility requirements were not enforceable, which put Dascola on the Ward 3 city council Democratic primary ballot for Aug. 5, 2014. He joins Julie Grand and Samuel McMullen on the primary ballot.

The settlement of the fees to be awarded comes after city attorney Stephen Postema reportedly made an effort to convince city councilmembers to direct him to appeal the federal court decision. University of Michigan professor of law Richard Friedman wrote an email to mayor John Hieftje, urging the council to appeal the decision. Friedman felt that the ruling in the case would be overturned on appeal. [.pdf of June 12, 2014 email from Friedman to Hieftje] Hieftje passed the email along to councilmembers.

But a consensus for that direction to appeal the Zatkoff decision was apparently not achieved by the council during two recent closed meeting sessions on the topic – on June 2, 2014 and June 16, 2014.

The ruling from judge Zatkoff was sharply critical of the city’s legal position: “[The city of Ann Arbor has] provided absolutely no authority as to why this Court should simply abandon the basic principles of law that have formed the foundation of the United States legal structure for over two hundred years.”

In the June 6, 2014 filing, attorney Tom Wieder has asked that the court award him fees for 93.25 hours of work at $400 per hour for a total of $37,300. Another $425.50 in costs for filings and document retrieval from the PACER (Public Access to Court Electronic Records) system brings the total amount the city would owe to $37,725.50.

The 93.25 hours of work is itemized in 57 specific increments in spans of time ranging from 15 minutes to 9.75 hours. The number of hours is argued in the supporting brief to be reasonable based on the complexity of the case and the fact that Wieder was Dascola’s sole counsel.

The argument for the hourly rate is based on various standards cited in the accompanying brief, which include the quality of the results obtained for the client, and the reasonableness of the rate based on Wieder’s experience, skill, and reputation. [.pdf of motion for fees and accompanying brief]

At his downtown barbershop, shortly after getting the news that the court had ruled in his favor, Bob Dascola showed The Chronicle photos of himself as a clown participating in Ann Arbor’s Fourth of July parade – something he has done for several years. He will be participating again this year – also as a clown, not as a city council candidate, because he’s already registered his parade entry that way.

At issue were city charter durational requirements on voter registration and residency – that require city councilmembers to be registered to vote in the city and to be a resident of the ward they want to represent for at least a year prior to taking office.

Dascola contended he met the residency requirement, but conceded that he fell short of the voter registration requirement. He did not register to vote in the city until Jan. 15, 2014. Dascola submitted sufficient signatures to qualify, so the impact of the ruling is that Dascola will appear on the Ward 3 ballot.

Dascola was represented in the case by local attorney Tom Wieder.

Both of the Ann Arbor city charter requirements were ruled unconstitutional, null and void in federal cases from the early 1970s. But the city of Ann Arbor sought to enforce those charter requirements against Dascola based on subsequent decisions on eligibility requirements in other jurisdictions in the intervening period. Those included an Ann Arbor case in 2002 (Wojack v. City of Ann Arbor) that resulted in a finding by the local state circuit court upholding the residency requirement. But that finding came only after Republican Scott Wojack was allowed on the Ward 1 city council ballot – a race he did not win. Wojack’s attorney was Tom Wieder.

Based on subsequent case law and a shifted standard of judicial review, one-year durational requirements of the kind that the Ann Arbor city charter includes would almost certainly be found constitutional, if the 1970s cases were to be litigated today. But the May 20, 2014 ruling by Zatkoff found Dascola’s argument convincing: That in order for the city to enforce the charter requirements – which had been found unconstitutional, null and void in separate rulings in 1971 – it would have needed to re-enact those requirements.

From the opinion: “Plaintiff [Dascola] has provided compelling evidence that Defendants [the city of Ann Arbor] have used void provisions of the Charter in an attempt to preclude him from running for City Council. Further, remedies available at law would not compensate Plaintiff for his inability to run for City Council. Finally, as established above, the balance of hardships between the parties – and the public interest at large – warrant this Court enjoining Defendants from enforcing a void law when the City has failed to re-enact that law.” [Dascola v. City of A2: Opinion] [Dascola v. City of A2: Judgment]

That means all the Aug. 5, 2014 ballots for partisan primaries for Ann Arbor mayor and city council are finally set. On the non-partisan side, Bryan Kelly took out petitions for city council in Ward 1, but was informed by the city that he did not meet the charter’s durational eligibility requirements. The ruling on the Dascola case would clear the way for Kelly to run. And as an independent, he’d have until July 17 to submit signatures. But in responding to an emailed Chronicle query, he indicated that he’s content with the representation of Ward 1 on the city council, saying they are “good people,” and he is no longer contemplating running at this time.

The city does have the option to appeal the ruling, but council sources indicate that is not probable. More likely is that the council would vote to place a charter amendment on the ballot this fall so that voters could ratify some set of eligibility requirements. The May 20 ruling from Zatkoff permanently enjoins the city from enforcing either of the former charter requirements prior to re-enacting them.

The background of the case and a review of the opinion are presented below, as well as the complete set of briefings from the case.

Ann Arbor City Charter Durational Requirements

The words printed in the Ann Arbor city charter include two types of one-year durational requirements for city council candidates: voter registration in the city, and residency in the ward they seek to represent. From the Ann Arbor city charter [emphasis added]:

Eligibility for City Office – General Qualifications
Section 12.2. Except as otherwise provided in this charter, a person is eligible to hold a City office if the person has been a registered elector of the City, or of territory annexed to the City or both, and, in the case of a Council Member, a resident of the ward from which elected, for at least one year immediately preceding election or appointment. This requirement may be waived as to appointive officers by resolution concurred in by not less than seven members of the Council.

The Complaint: Feld and HRP

Dascola contended he has lived in Ward 3 since about Sept. 15, 2012, but he allowed that he did not register to vote in the city of Ann Arbor until Jan. 15, 2014. So according to Dascola, he met the residency requirement but did not meet the voter registration requirement.

Ann Arbor’s residency requirement was struck down in federal court as unconstitutional in January 1972 [Feld v. City of Ann Arbor]. The voter registration requirement was struck down in March of the same year [HRP v. City of Ann Arbor].

Dascola’s complaint was based on findings by the U.S. District Court in both the Feld and the HRP cases that the durational requirements were null and void. From Dascola’s complaint: “Neither the Feld, nor the Human Rights Party, decision was appealed, nor has either been overruled, vacated or modified in any way.” [.pdf Dascola v. City of A2: Complaint]

Dascola’s Request for Summary Judgment

Immediately after filing the complaint, Dascola’s attorney Tom Wieder filed a motion for summary judgment – asking the court to find in Dascola’s favor without a full trial. The brief makes essentially the same arguments in the initial complaint: The city’s charter requirements were ruled unconstitutional in Feld and HRP.

From the motion for summary judgment: “The Defendants [city of Ann Arbor] are improperly and illegally relying and acting upon one or more former provisions of the City Charter which are void and of no effect and, in so doing, are depriving Plaintiff of his constitutional right to seek elective office, as well as depriving the electors of the Third Ward of their right to vote for Plaintiff.” [.pdf Dascola v. City of A2: Motion for Summary Judgment]

The part of the argument on which the ruling in Dascola’s case eventually turned is the idea that once charter provisions have been explicitly ruled unconstitutional and declared null and void – as in Feld and HRP – they are not merely dormant, possibly to be awakened, but rather do not exist at all, and it’s as if they’d never been written. The brief cites a body of Michigan case law in support of that notion.

City’s Response to Motion for Summary Judgment

The city’s response to the motion for summary judgment included a potential factual dispute. The city pointed out that in spite of Dascola’s claim that he has resided in Ward 3 since about Sept. 15, 2012, he didn’t change his voter registration or driver’s license to an Ann Arbor address until Jan. 15, 2014. And when Dascola filed an application on Dec. 1, 2013 to be appointed to the city’s pedestrian safety task force, he gave a Grass Lake address as his home address and marked “No” on the application’s question about city of Ann Arbor residency. [.pdf of Dascola's application to the pedestrian safety task force]

The application was included as an exhibit in the city’s brief. But the brief does not appear to mention that in the same application, Dascola seems to indicate a habitual lodging at the Baldwin Avenue address in Ward 3, where he contends he’s been a resident since Sept. 15, 2012: “I walk to work every day from Stadium and Packard area and have to use crosswalk at Baldwin. I have witnessed an accident because a driver wasn’t paying attention and was almost hit by car.”

Under Michigan election law, for purposes of voting and registration, habitual lodging is one way to determine residency:

168.11 “Residence” defined.
Sec. 11. (1) ”Residence”, as used in this act, for registration and voting purposes means that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a person has a residence separate from that of his or her spouse, that place at which the person resides the greater part of the time shall be his or her official residence for the purposes of this act. This section does not affect existing judicial interpretation of the term residence.

Also supporting Dascola’s contention of residency at the Baldwin address for a year before the 2014 election was his application for renewal of his barber’s license on Aug. 8, 2013, which gives his Baldwin address. [.pdf of Dascola's barber's license renewal] The city’s response to the motion for summary judgment does not appear to include the barber’s license renewal.

Factual issues aside, the city’s legal position, as conveyed in the response to the motion for summary judgment, is that the Feld and HRP decisions from the early 1970s are no longer the controlling law in the matter. Among the decisions the city contends should be used to judge the current case is a 2002 Washtenaw County circuit court case [Wojack v. City of Ann Arbor opinion], which relied nearly exclusively on a 1981 federal court decision [Joseph v City of Birmingham (ED Mich 1981)].

The Wojack case involved Republican candidate Scott Wojack, who sought to run for Ward 1 city council. Wojack met the voter registration requirement – because he’d been registered to vote in the city for more than a year – but did not meet the ward residency requirement, because he’d moved, within the city, to Ward 1 under a year before the election. Wojack was allowed to appear on the ballot, but lost the election. The Wojack decision, upholding the Ann Arbor city charter’s durational residency requirement, came after the election.

Also among the cases that the city of Ann Arbor wanted the court to use in deciding Dascola’s lawsuit was a Detroit case from 2013 [Barrow v Detroit Election Commission]. That involved a challenge by Tom Barrow to the eligibility of Mike Duggan to appear on the ballot for mayor, because Duggan did not meet Detroit’s one-year durational voter registration requirement. One wrinkle in the Barrow case is that the Detroit requirement dates from the time of filing petitions, not the date of election. Duggan was ultimately ruled ineligible, even though he would have been eligible if he had waited a few days to file his petitions [.pdf Dascola v. City of A2: Response to Motion for SJ].

Dascola’s Reply to City’s Response to Motion for Summary Judgment

Dascola’s reply to the city’s response to the motion for summary judgment reviewed much of the ground covered previously.

The argument on which the case could possibly turn was reiterated: The idea that once charter provisions have been explicitly ruled unconstitutional and declared null and void – as in Feld and HRP – they are not merely dormant, possibly to be awakened, but rather do not exist at all, and it’s as if they’d never been written. A second part of that argument is to question by what orderly process charter provisions could be revived – whatever it is, the contention is that the city had not followed one [.pdf Dascola v. City of A2: Reply in Support of Motion for SJ].

Other Motions, Briefs

The city also filed a motion to dismiss along with a supporting brief. That got a response from Dascola and a reply from the city. Much of the material in those briefs covered ground also addressed in the briefs on the motion for summary judgment.

Zatkoff also ordered supplemental briefs that were to focus exclusively on the question: If a law is found “unconstitutional and void” by a federal district court, must that law be officially re-enacted before it is enforced?

All of those briefs are included in the complete set of briefs in the final section of this report.

Opinion: Finding for Dascola

The first four pages of Zatkoff’s 17-page opinion recite the historical background of the case. One highlight from that description is Zatkoff’s characterization of the status of the Feld and HRP decisions [emphasis added]:

Both parties agree that neither the Feld nor Human Rights Party decisions were appealed by the City. Further, neither party argues that the Feld and Human Rights Party decisions were ever explicitly overruled, vacated, or modified; indeed, these decisions have never been reviewed or reversed, and thus remain intact.

The analysis section begins with the controlling question on which Zatkoff had asked the parties to file supplemental briefs: If a law is found “unconstitutional and void” by a federal district court, must that law be officially re-enacted before it is enforced?

Zatkoff concludes that on both sides, much of the briefing material that had been submitted had no relevance to that controlling point. About the city’s argument that the charter requirements are, in fact, constitutional, Zatkoff states: “Deciding the constitutionality of the language contained in Section 12.2 of the Charter as if it had been passed today is not the question before the Court.” The opinion continues by noting that the Wojack decision was also not relevant to the question to be decided.

In evaluating the arguments on the basic question, Zatkoff concludes: “Additionally, the Court has not found – nor has either party presented – a case from any circuit indicating that a law found unconstitutional and void that remains intact need not be re-enacted prior to enforcement.”

Zatkoff analyzes three of the city’s arguments, as put forward by city attorney Stephen Postema. First, the city contended that the Feld and HRP decisions did not “repeal” the Ann Arbor city charter requirements, but rather found them null and void – as “repealing” a charter requirement was something that only a city could do through a legislative process under Michigan’s Home Rule City Act. The judiciary was not empowered to “repeal” a charter requirement, the city argued. Zatkoff rejected that argument, saying:

Furthermore, Defendants’ argument is premised on the flawed notion that the term “void” is materially different than “repeal,” and that the only way a law may become unenforceable is if the law is officially “repealed.” The 4th edition of Black’s Law Dictionary defines “void” as “[n]ull; ineffectual, nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it was intended.” Regardless of the definition of “repeal,” this definition of “void” demonstrates that the intent behind the Feld and Human Rights Party decisions was to give the Charter provisions “no legal force or binding effect.”

The city’s next argument analyzed by Zatkoff is one based on the idea that a federal court order applies only to the plaintiff in a particular case: “By arguing that prior federal court orders are only effective for the plaintiff(s) in those cases, Defendants are incorrectly attempting to apply a rule exclusively based on the Declaratory Judgment Act to all decisions made by federal courts.”

The argument is fatally flawed, Zatkoff concludes, because, it creates an “individual challenge” requirement, which would be inconsistent with the basic principles of the federal judicial system. Those basic principles include one expressed in Marbury v. Madison from 1803: “It is emphatically the province and duty of the judicial department to say what the law is.” The city of Ann Arbor’s argument “seeks to destroy this pillar of the legal system,” Zatkoff writes.

Zatkoff then characterizes the city’s position as reserving for itself to say what the law is:

The Court is deeply troubled by this proposition. First, the Defendants fail to indicate any authority granting the City the power to say “what the law is.” Further, the Defendants have provided no indication as to when exactly these voided provisions of the Charter “became” constitutional again. Additionally, the Defendants provided no evidence that notice as to “what the law is” was ever given to the public. In sum, the Defendants have provided absolutely no authority as to why this Court should simply abandon the basic principles of law that have formed the foundation of the United States legal structure for over two hundred years. The Court refuses to do so at this time.

The order from the court permanently enjoins the city from enforcing the city charter eligibility requirements – unless they are re-enacted. That means the council will need to put those or some different requirements before voters to enact – if the city of Ann Arbor wants to be able to enforce eligibility requirements on elected officials.

In explaining why he is issuing a writ of mandamus, Zatkoff points to the city’s failure to follow the federal court’s orders in the HRP and Feld cases:

Additionally, taking into consideration the Defendants’ demonstrated inability (or unwillingness) to follow the explicit orders issued by federal courts with regards to the constitutionality of the provisions at issue, the Court finds that issuing a writ of mandamus is necessary to guarantee Plaintiff receives the relief to which he is entitled.

Briefs

Here are links to .pdf files of the briefs and opinion:

• 03.28.14 [.pdf Dascola v. City of A2: Complaint]
• 03.29.14 [.pdf Dascola v. City of A2: Motion for Summary Judgment]
• 04.14.14 [.pdf Dascola v. City of A2: Motion to Dismiss]
  
• 04.14.14 [.pdf Dascola v. City of A2: Response to Motion for SJ]
• 04.18.14 [.pdf Dascola v. City of A2: Reply in Support of Motion for SJ]
• 04.18.14 [.pdf Dascola v. City of A2: Response to Motion to Dismiss]
• 04.23.14 [.pdf Dascola v. City of A2: Reply to Response to Motion to Dismiss]
• 05.06.14 [.pdf Dascola v. City of A2: Plaintiff's Supplemental Brief]
• 05.06.14 [.pdf Dascola v. City of A2: Defendant's Supplemental Brief]
• 05.08.14 [.pdf Dascola v. City of A2: Motion for Leave to File Amended Complaint]
• 05.09.14 [.pdf Dascola v. City of A2: Response to Motion for Leave to File AC]
• 05.11.14 [.pdf Dascola v. City of A2: Reply to Response to Motion for Leave]
• 05.20.14 [.pdf of Dascola v. City of A2: Opinion]
• 05.20.14 [.pdf of Dascola v. City of A2: Judgment]

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Tom Wieder. (Photo provided by Wieder. The margins of The Chronicle inline layout required cropping out the person next to whom Wieder is standing.)

The Chronicle has previously covered the various lawsuit filings in a fair amount of detail. The central issue in the case is whether Ann Arbor city charter requirements that were struck down as unconstitutional and declared null and void in 1972 can still be applied today.

While we’re waiting for a decision to be handed down, we thought it would be useful to get a possibly more accessible, spoken-word treatment of the lawsuit’s subject matter. To that end, we talked with Dascola’s attorney, Tom Wieder.

Wieder litigated a case similar to Dascola’s back in 2001.

Some highlights from the conversation include the fact that Wieder thinks the city council potentially has a role to play in the city’s handling of the case – based on the fact that the city attorney is accountable to the city council. The city’s legal stance should be determined by the council, Wieder says, not by the city attorney.

And Wieder talks about the fact that a council controlled by Democrats should allow the Democratic Party principle of free and open access to the ballot to guide their thinking on this matter – given that there are at least two plausible points of view on the enforceability of the city charter’s eligibility requirements.

The council’s particular responsibility as a group of Democrats leads to some discussion of the idea that Ann Arbor Democrats, who dominate city politics today, might be a different stripe from the Democrats of the early 1970s and 1980s, who fought for fewer eligibility requirements on candidates for city office.

It’s fair to point out that that Wieder was involved in two key changes to Ann Arbor’s electoral process that could reasonably be analyzed as leading to Ann Arbor’s current political life being dominated by Democrats: (1) redrawing ward boundaries in 1991; and (2) shifting elections from April to November.

Wieder also ventures that the Democratic dominance of local city politics might have lessened an historically strong Democratic interest in the value of process, and not just doing the right things, but doing things the right way: “… I think the fact that the Democrats have now been in charge pretty much for a while, there may be less self-examination when it comes to process and basic political principles than when somebody else was controlling those levers.”

Asked what he thinks the eligibility requirements for city council and mayor should be, Wieder suggests these requirements: At the time of filing petitions for office, a mayoral candidate should be a registered voter in the city; and at the time of filing petitions for office, candidates for city council should be registered voters in the wards they seek to represent.

One unsuccessful attempt to clean up the city charter – so that there are clear and constitutional eligibility requirements – was made in 2003. No matter how Dascola’s lawsuit turns out, Wieder thinks the city council needs to make a better effort to clean up the city charter – by establishing clear and constitutional eligibility requirements for mayor and city council. The council could propose different charter language on eligibility requirements for elective office and place a charter amendment before voters.

During the conversation, Wieder describes how the Wojack case led the city to print up two different sets of ballots, one with Wojack’s name and another set without it. If the Dascola case is resolved by early June, that contingency would not be necessary this time around.

The conversation with Wieder is presented in Q & A format below, with some re-ordering and editing. 

Links to Subsections

The conversation was edited so that the material falls sequentially into the following categories, which link internally to the spot in the conversation where that section begins:

• Background of the Case
• Should the City Council Be Involved?
• An Issue for Ann Arbor Democrats?
• Ann Arbor Democrats: Different Now?
• After 1972: Attempts to Fix the Charter
• What Should Happen, Win or Lose?

Background of the Case

Chronicle: So, I don’t think we need to wallow around in the legal arguments too much, but can you by way of entry into this topic just summarize what the Bob Dascola case is about? How would you describe the situation to a very bright four-year-old?

Tom Wieder: A very bright four-year-old? Well, the case stems from the 1970s, actually, when the requirements in the city charter to be eligible for elective office – either mayor or council – were all struck down as unconstitutional and void, by two different federal court decisions in 1972. And Bob Dascola filed to run for office based on the assumption that those requirements were not enforceable and have not been for decades. The city is taking the position that they can enforce those provisions because of cases that have been decided since the original decisions were handed down.

Chronicle: So what is the legal fight about in this case?

Tom Wieder: The argument in the current lawsuit is about whether those decisions from 1972 still hold and determine what the city is allowed to do today. We argue that those decisions are just as enforceable and valid as the day they were handed down, and that is because of a legal principle that says: When you find something unconstitutional, it’s as if it were never written, it sort of goes away, it’s not really there anymore. And so it can’t be enforced. The city argues that these voided provisions of the charter can be enforced, because of decisions in other cases that happened since, and allowed the charter provisions to be revived and used today.

Chronicle: Right. And one of those other cases is the one that you also litigated back in 2001 – the Scott Wojack case.

Tom Wieder: Right. We had a similar situation there, in that Scott Wojack wanted to run for council and he was told by the city clerk that he couldn’t run, because he had not lived in the ward for a year that he wanted to run in. He’d lived in the city for that long, and he’d been registered to vote, but he changed his residence and was no longer in the same ward. That provision was one of the provisions that was struck down by one of the two federal court decisions in 1972.

And I represented Wojack in the case to force the clerk to put him on the ballot – because that barrier to him being on the ballot was not valid any more legally. We filed the case and there were some things going back and forth between us and the city. And then the city kind of did an about-face and said: OK, we will put him on the ballot and we’ll have the judge decide at some later time whether we can enforce this old provision in the charter. And it was a little strange because the only real practical thing involved in the case was whether he got on the ballot.

I say it’s strange because we already had a federal district court say it was not constitutional. And I’m not sure that there’s any basis for a Washtenaw County circuit judge to have any effect on, or overrule, or anything of the kind, a standing final judgment of a federal district court. He is certainly entitled to offer his opinion about something, but I’m not sure that it carried any legal weight, and in fact, I don’t think it does. [The opinion of judge Tim Connors in the Wojack case was that the city charter's durational residency requirement for councilmembers was constitutional.]

Chronicle: Yet, that is the court in which the case was filed. Your point is that you don’t believe the state court had the authority to overrule the federal court, so why would you file that case in the state court in the first place?

Tom Wieder: Well, the only relief we were seeking was to compel the city to put Scott Wojack on the ballot. It certainly could have been filed in federal court. In retrospect, we probably would have. But we were essentially seeking to compel a state officer to perform his duty – all city employees and officers draw all their power from the state, the Home Rule Cities Act – and therefore it’s perfectly appropriate, if you’re asking them to perform one of their duties, to ask a state court to order them to do so.

Chronicle: I assume it’s going to be decided one way or another in a couple weeks or so. …

Tom Wieder: Well, first of all to assume anything that a federal court might do is dangerous. Yes, it will come out in the next several weeks, I think. But the judge has been told by the city that the sort of drop-dead deadline in terms of knowing who’s going on the ballot doesn’t come until early June, when the ballots have to get printed.

And of course, even that is not etched in stone – because what happened in the Wojack case was: They printed two sets of ballots, because it was so close to the election. … They did double printing. One set with Wojack on and one set not. I’m not saying that the court would push it that far – I don’t think so. I just want to be careful that we not assume too much about that.

Should the City Council Be Involved?

Chronicle: So let me go back to something you said earlier. You said that during the Wojack case, the city at some point seemed to do, from your perspective, an about-face. In the most recent filing by the city in the Dascola case, there is a footnote … with words to the effect that the city attorney at the time recognized that Wojack had no likelihood of being elected, and so decided to allow him to be on the ballot, with the legal issue to be decided after the fact. Is that consistent with your recollection at the time as to why the city decided to allow Wojack on the ballot?

Tom Wieder: Let me start by answering that that footnote is one of the oddest things I have ever seen in a legal brief. And the language you’re talking about said “The then city attorney” – that’s Abigail Elias, who was later removed as city attorney and now is chief assistant city attorney – “recognized that Mr. Wojack had no likelihood of election, and that the validity of his candidacy could be decided if he were to win.” Basically the city is stating in its legal brief that “We ignored what we thought was a valid city charter provision for eligibility to run for office and let somebody we believed ineligible to get on the ballot anyway, because we were sure he was going to lose.” Which is just bizarre!

You asked about my understanding at the time. My understanding is mostly based on just rumor and grapevine, because the city obviously didn’t share with us their reasoning on doing things. What I heard at the time was that councilmembers weren’t too comfortable with the idea of keeping somebody off the ballot based on the legal position that the city had at the time – that these requirements that had been declared unconstitutional had somehow come back to life and could be enforced. And that this discomfort with denying somebody a place on the ballot under that reasoning led them to have the attorney go with this alternative, which was to have Wojack be on the ballot and have the judge decide afterwards whether the provisions could be enforced or not.

Chronicle: Well, if that’s what happened, then I guess it must have happened through back channel conditions between individual councilmembers and the city attorney.

Tom Wieder: Yes, of course. … It’s a question of how the council, and I’ll speak mostly of my fellow Democrats, deals with some issues like this. You know, there is the principle that the Democrats in 1971 filed suit over – it was, I think, an important principle. And it somewhat saddens me and disappoints me that the council does not recognize what the underlying issue is about all of this. And if they do recognize it, they don’t seem to be willing to act upon it – because whatever you might say about this case, this is not black-and-white that the only reasonable position the city could take is to say: Oh, yes, these voided provisions are alive again. They could just as well see it as we do and say: No, they are gone; they were declared unconstitutional and void and they essentially disappeared. There would be nothing inappropriate in the city saying: We give – we’re not going to keep fighting that.

Chronicle: So does it make any difference that it is now the city that is enforcing this and it’s up to Bob Dascola to file suit to get on the ballot? One could imagine a different scenario – a situation more like the one in the Barrow case [concerning the 2013 mayor's race in Detroit] – where some other Ward 3 candidate says: Hey, Bob Dascola shouldn’t be allowed on the ballot, and I’m going to file suit to keep him off the ballot.

Tom Wieder: Are you asking me if it makes a difference to me whether it is the city trying to do it or a third party trying to? Yes! I mean, third parties will do something in their own self-interest, which is probably to help themselves in an election or hurt somebody they don’t like. The responsibility of council – and therefore the city – is a bit different.

It is a council decision ultimately as to the legal stance that the city attorney takes, because the city attorney works for the council. And if there are two or more legally legitimate and plausible arguments and stances to take in a case, you sort of expect that the councilmembers, in deciding what course to take, might apply their political values and principles to making that decision.

And to me, what I would hope to see is Democrats who control the Ann Arbor council say: We’re not so sure that the argument – that these provisions are enforceable – is the right one, and the other argument sounds plausible too, and it fits with our approach to open government and letting more people participate. So we’re going to instruct our city attorney and our city clerk to go that way. Instead, it seems that this is being led by the city attorney’s preferences here, and not the political philosophy of the council.

Chronicle: Isn’t there some value, though, in getting a decision from someone who’s wearing a black robe? So that in the future, if indeed these two provisions are null and void, that nobody will get the idea, based on some different political philosophy, that we want to keep people off the ballot using those provisions? … I’m saying let’s consider what would have happened if it had become public that the city clerk notified Bob Dascola that he didn’t seem to meet the eligibility requirements, then you [Tom Wieder] basically come in and use the art of … “friendly persuasion” and the city said, “Oh, OK, we forgot,” or “You make a reasonable case,” and they let him on the ballot, and it doesn’t get into court. … The door would still be open to [someone else] to try to enforce the two charter provisions.

Tom Wieder: If the result of this case were a decision that those things are still null and void, that really ought to answer it permanently.

Chronicle: That’s why I’m saying: There’s some value in the city taking the position that they’re going to defend the enforcement of those two provisions.

Tom Wieder: … I don’t agree at all. I don’t agree. You say maybe we could get a court to repeat what it ordered 40 years ago, now we will listen to it the second time?! The idea that that has some value doesn’t really ring any bells for me. A decision was made.

An Issue for Ann Arbor Democrats?

Chronicle: Thinking about the current situation, do you think it would be helpful to the cause to have councilmembers convey their opinion one way or another to the city attorney with respect to just going ahead and allowing Dascola on the ballot? …

So for Bob Dascola’s specific cause of getting on the ballot, of course, it would be helpful. … [But] I take it that you do have some either personal or professional special interest in this topic area. I think the last time that your name was included in Ann Arbor Chronicle coverage was back when ward redistricting was being voted on in 2011, and the city attorney was planning to use different boundaries for the general election than were used in the primary. You and several others in the legal community weighed in, and what happened was the city held off its decision to implement the ward boundary changes. I’m sure you recall that episode. In my mind, ballot access issues and ward boundary issues, they seem to be in the same general category.

So maybe instead of asking “Does it help the cause?” maybe a better question is: Do you have a special interest in this topic area? Is this a “cause” for you?

Tom Wieder: Well, it’s certainly no secret that I’ve been active in local Democratic politics for nearly 40 years. So I have an interest as a Democrat. I’ve also been active in the American Civil Liberties Union for about that long or at least a member that long. And I take very seriously constitutional rights in general. But because of my interest in politics, I may take an even greater interest in those issues of civil liberties when they affect elections and the ability to run for office. … The original challenge to the charter was filed by Democrats in 1971 [the Feld case], challenging the requirement that a candidate for council had to have lived in the ward for a year before the election to be eligible to run.

And it was the feeling of Democrats back then that this was an unnecessary restriction on who could run for office – that this is a very transient city and people move a lot, and you shouldn’t be barred from running for city council because you happen to move a few blocks over and ended up in a different ward and couldn’t run for a year. If voters were concerned that you had not lived in the ward for a year, they certainly did not have to vote for you. But there was no reason to prohibit people from running on that basis.

They supported a much more open and accessible kind of election process that you might construct, and that’s what prompted filing that suit. I happen to agree to that approach to elections and people getting involved in them – we should put up as few barriers as possible. So when that case came down, I was pleased at that – I wasn’t directly involved in the case myself, but it certainly comports with my political viewpoint and my civil liberties viewpoint.

Chronicle: So you seem to be identifying the notion of having as few barriers to ballot access as possible as a Democratic value – Democratic with a capital D.

Tom Wieder: Certainly in this town I would say so. To be honest, we had a lot of disputes about that in Ann Arbor, but to the extent that it has arisen, I think you would find that … when we used to have a more visible group of Republicans, the Ann Arbor Democrats would have been more favorable to ballot access than Republicans.

Ann Arbor Democrats: Different Now?

Chronicle: Do you think that Ann Arbor Democrats of 40 years ago are somewhat of a different breed with respect to this type of issue than Ann Arbor Democrats of today? At the very first mayoral forum, the four candidates were assembled … and one of the candidates who has got, I think, unquestionable Democratic Party credentials – Stephen Kunselman – described the basic concept of what he thought a local government is as essentially a book of rules, and we have to follow the rules. Which is all well and good, but it’s not what I would necessarily think of as stereotypically Democratic Party principles.

Tom Wieder: I don’t know what Steve might have meant by that, but I would say that the tenor of the comment doesn’t strike me as what I would think of as the first principle that would come off the tongue of most of the liberal Democrats in Ann Arbor as the purpose of government. But maybe I’m not understanding what …

Chronicle: … well, I’m taking that somewhat out of context, and to be clear he was not trying to articulate in any explicit way what Democratic Party values are. But it is something that he said – in the context of explaining who he is and what he is about. So if indeed there has been a change in what it means to be an Ann Arbor Democrat over the last 40 years, would you be willing to accept some of the credit or perhaps blame for that? As I understand it, you were instrumental in redefining the ward boundaries back in [1991] … and with the shift of elections from April to November, and that pretty much gave us what we have today – which is, as you mentioned before, an invisible Republican Party.

Tom Wieder: That’s a complicated question and requires a somewhat complicated answer. Yes, I do think that Democrats of today in Ann Arbor are somewhat different from the Democrats of 30 or 40 years ago. I think that Democrats of 30 or 40 years ago in Ann Arbor were somewhat more process-oriented and civil-liberties-oriented. They didn’t just have substantive positions on delivery of city services and the like, but a lot of them came out of civil rights activity and anti-war activity and were very concerned about the government doing things in the right way – almost as much as what the city actually did. And when I say in the right way – in terms of individual rights and process. I think it has faded a bit with more recent Democrats, in general.

I think that part of that comes from the fact that Democrats had been in the minority for so long – you always tend to get a little more sensitive about process when someone else controls it! And for many decades, Republicans in Ann Arbor controlled the process. And that may have made Democrats more sensitive about it than they otherwise would be, but I think their instincts were also more in that direction, because of their political philosophy and experiences. Again … I think the fact that the Democrats have now been in charge pretty much for a while, there may be less self-examination when it comes to process and basic political principles than when somebody else was controlling those levers.

Chronicle: Do you think it could also be the simple fact that there are folks who are willing to accept the Democratic Party label on the ballot just as a practical step in order to gain election, and who are not in any way, shape or form actually Democrats? So take Stephen Rapundalo, who ran for mayor as a Republican. I don’t think that he had some deep political epiphany in the intervening years, but then he represented Ward 2 as a Democrat. From what I’ve read and from what I’ve heard, I don’t think that an early 1970s Ann Arbor Democrat would be inclined to prevent a guy like Tom Wieder from addressing a committee meeting for three minutes, and would have instead preferred to argue for three minutes about whether Wieder should be able to address a committee meeting – instead of actually letting him speak. I assume you remember the episode to which I’m referring?

Tom Wieder: Yeah, sure. I certainly think that I have seen things dealt with by the council controlled by Democrats in recent years that would not have been done that way by a council controlled by the Democrats I knew on council a number of years back. Now, I’m not sure that that’s a result of there being – as you would suggest – a number of Republicans in Democrats’ clothing. I think that the Democrats on council who I have no doubt are through-and-through Democrats, and not just wearing the label, are also different from the Democrats of old. So I don’t think it’s a question of there are too many not-real Democrats on there. And that’s why you see the change – because I think the real Democrats today are somewhat a different stripe than the Democrats of the ’70s and ’80s.

After 1972: Attempts to Fix the Charter

Tom Wieder: [After the 1972 federal court cases], the city sort of made up a rule, because there wasn’t any. They just sort of started a practice: People came in and were registered to vote in the city or the ward, and the city was taking their petitions. It’s just something that was made up – there’s nothing written about that anywhere. And they did it for 30 years. And that’s why we still have this question. Because what needed to be done was for new constitutional provisions to be put on the ballot and passed, and then it’s over because the city would have by its processes changed the charter. And then you don’t have to argue about whether the old charter provisions come back to life or anything, because you’ve replaced them with things that met the terms of the court decisions at the time. But nobody took the time or attention to do anything about that.

Chronicle: But you’d have to say that somebody tried to do something about that, in 2003 [when a ballot proposal was put before voters to put in new language for eligibility requirements] … Do you think that effort was in some way defective, and if so, what was the defect of that effort?

Tom Wieder: Well, the ballot language was horribly confusing. And in fact, it was wrong! … The way they described the change in charter language assumed existing charter provisions that never existed. … They threw in other things about volunteer and appointive officers, and I think a lot of people didn’t know what they were voting on. And it’s kind of an accepted principle of electoral politics that if people don’t understand a ballot question, they vote no. … Neither the city nor any independent group did anything to promote it, which is not really surprising on this kind of a change.

But there wasn’t anything that reached the average voter, except one Ann Arbor News article and an editorial – and they got almost everything wrong in that! They kind of missed the point that the two charter provisions had been struck down and made it sound like this was just something that came out of the blue to reduce the requirements to get on the ballot.

There was no hint of the fact that those charter requirements had been thrown out, and the idea was to establish some requirements. They editorialized against it, but the basic facts about what was being done were wrong.

If you thought that the Connors opinion [in the Wojack case] had no force or effect, when that ballot proposal was put on, the status was the same as it had been for 30 years, which was that we did not have any requirements. If you thought that Connors’ opinion did have force and effect, the only requirement would be that a candidate for council had to live in the ward for a year, and that’s it – there were no requirements for mayor, there were no requirements that require the candidate be a citizen or of voting age.

All the rest of that stuff went away with the other [HRP] case. The most you would’ve had is a requirement that council candidates live in the ward. That just didn’t come across [in the editorial] – what was portrayed is that we were going to get rid of these one-year requirements … and were going to make it so that you only had to be an elector at the time of election. But that just wasn’t true – that was not what was being done.

… [The ballot proposal] had this odd thing where it said it was going to make the requirement be that candidates for elective office had to be registered to vote by the date of the election. I don’t know how you could enforce that. Because someone could come in and file petitions and not be a registered elector, they get on the ballot, and then indicate, Well, yeah, I am going to register by Election Day.

Chronicle: I assure you I will absolutely register to vote by Election Day – yes, I promise!

Tom Wieder: So I suppose the result of such a thing if someone did not register by Election Day is that they would be declared ineligible and even if they won election, they could not take office. Normally we decide the eligibility for office at the time of filing. So in many ways, it was a screwed-up ballot proposal. It was not explained well and it was not written well.

Chronicle: … but you’d have to say that somebody tried to do something about this in 2003, even if it may not have been a super-great effort.

Tom Wieder: Well, that’s 30 years later, because we had one of those challenges to deal with. That’s a long time to wait and just go with some sort of jerryrigged method to determine who is eligible to run for office in the city. Well, okay, they tried it once – they could’ve tried it again.

I have to tell you that I did some lobbying, with some council people, to press the city attorney to give an opinion as to what the eligibility requirements were post-Wojack. What could the city do, what could the city not do? And those efforts were to no avail. So that the council could know what ticking time bomb was there about what requirements they still have, if any – it never happened. They made the one effort in 2003, it was unsuccessful, and then everybody ignored it again, and here we are back litigating what we litigated 40 years ago. And it should have been cleaned up by new charter provisions, so that nobody can argue whether they were valid or not. That’s why we are where we are today with another lawsuit about somebody getting on the ballot – because we never cleaned up the charter.

What Should Happen, Win or Lose?

Chronicle: If Bob Dascola wins the case, is there anything left to be done? Or do we say that’s now settled again, until somebody forgets?

Tom Wieder: The answer to that is a little complicated, because winning by Bob Dascola could take a couple of different forms. There are basically two different voided charter provisions that get involved in this. One is that the person running for council has to have been a resident of the ward for a year. The other is that a candidate for any elective office has to have been a registered voter of the city for a year before the election.

The city hasn’t quite conceded, but has come close to conceding, that Bob has lived in the ward for a year. There’s a few factual questions, but even in their pleadings they are indicating … there is a problem there. He could win by the court finding that both of those charter provisions are still null and void, in which case we don’t have to worry about how long he has lived in the ward or whether he is registered in the city or not. And that will give us exactly where we are now: The city doesn’t have any requirements.

Chronicle: Well, it would leave us exactly where we were right after the Feld and the HRP decisions – both were struck down in the 1970s, declared void … I can’t imagine that there would be anything left to do at that point, but that would be my question to you: What else, if anything, might the city council consider undertaking, even if that is the outcome?

Tom Wieder: If that is the outcome – that those two provisions remain voided – then the city needs to make another effort to put proper qualifications back in the charter.

Chronicle: So you’re saying a better effort than was made back in 2003?

Tom Wieder: Yes.

Chronicle: That covers at least some of the ground associated with what might need to happen if Bob Dascola gets on the ballot.

Tom Wieder: But not all of it. As I say, this gets a little complicated. One of the things that could happen is that the judge could decide that the one-year ward residency requirement has once again become enforceable – either because of the Wojack case, or other cases decided on the so-called durational residency requirement. But the court could decide that the other requirement about being a registered voter for a year has not been similarly reinstated, in which case Bob Dascola, if he can show that he has indeed been in the ward for a year, would get on the ballot.

But you would still have this hole in the requirements for mayor and other kinds of requirements for city council that would not have been fixed. You would just have the one-year ward residency requirement for councilmembers. So there would still be a gap in the charter, in terms of elective office that needs to be fixed, and that has needed to be fixed for 40 years.

Chronicle: On the other hand, if the judge in Dascola’s case upholds both of the requirements, is there anything to be done under that scenario? What do you think should happen if Bob Dascola does not get on the ballot?

Tom Wieder: If the judge finds that those charter requirements can now be used again, then nothing has to be done. But if you asked me what do I think should be done, I still believe that those requirements are too strict – as the Democrats did who filed the lawsuit in 1971. And I guess I would like to see a Democratic council take another shot at making the requirements less to get on the ballot.

Chronicle: What do you think the eligibility requirements should be?

Tom Wieder: I think the requirement should be what they were de facto for 30 years, when they didn’t have anything in the charter to go by: If someone came in by the filing deadline and filed a sufficient number of signatures, and was a registered voter in the city, then you got on the ballot. … The requirement I would have is that if you’re running for mayor, at the date of filing the nominating petitions … you have to be a registered elector of the city. And if you’re running for council, you have to be a registered elector of the ward.

Chronicle: So no durational residency requirement beyond that?

Tom Wieder: No, I think we can trust the voters. If they care that the person just moved into the city six months ago, then don’t vote for them. If they moved a half-mile across town and are now in a different ward and they think you have to actually live in the ward to know about the issues that might affect that ward, then you don’t have to vote for them. But why should we keep people off of the ballot?

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Extracted from the cover page of one of the briefs from Bob Dascola’s lawsuit. All the briefs have now been filed in the lawsuit, which Dascola filed in order to appear on the ballot for Ward 3 city council. A decision is expected before the ballots go to the printer.

Dascola’s case is being heard in U.S. District Court by judge Lawrence Zatkoff. On Wednesday, April 23, the deadline expired for the last item on the expedited briefing schedule ordered by Zatkoff. That last item was the city’s reply to Dascola’s response to the city’s motion to dismiss the case. A total of six briefs have been filed, three for each side, after the initial complaint.

The lawsuit stems from the fact that the city clerk has informed Dascola that he is not eligible to be a candidate under city charter requirements. Both of the charter requirements in question – durational one-year requirements for voter registration and for residency – were ruled unconstitutional in separate rulings made by the U.S. District Court in the early 1970s. That’s the basis of Dascola’s complaint. He also contends that he does, in fact, meet the residency requirement.

The city’s position is that Ann Arbor city charter requirements have been revived by subsequent cases in various other venues in the intervening years.

Dascola has submitted sufficient signatures to qualify, so if he’s ruled eligible, he would appear on the Ward 3 ballot. The point of the expedited briefing schedule was to settle the issue before ballots are finalized in June. With the expedited briefing schedule now complete, a ruling could come quickly. Another possibility is that Zatkoff could order a hearing on the motions before making a decision.

This report includes an overview of the case and some highlights from the briefings, along with links to .pdf files of all the briefings.

Ann Arbor City Charter Durational Requirements

The Ann Arbor city charter includes two types of one-year durational requirements for city council candidates: voter registration in the city and residency in the ward they seek to represent. From the Ann Arbor city charter [emphasis added]:

Eligibility for City Office – General Qualifications
Section 12.2. Except as otherwise provided in this charter, a person is eligible to hold a City office if the person has been a registered elector of the City, or of territory annexed to the City or both, and, in the case of a Council Member, a resident of the ward from which elected, for at least one year immediately preceding election or appointment. This requirement may be waived as to appointive officers by resolution concurred in by not less than seven members of the Council.

The Complaint: Feld and HRP

Dascola contends he has lived in Ward 3 since about Sept. 15, 2012, but he allows that he did not register to vote in the city of Ann Arbor until Jan. 15, 2014. So according to Dascola, he meets the residency requirement but does not meet the voter registration requirement.

Ann Arbor’s residency requirement was struck down in federal court as unconstitutional in January 1972 [Feld v. City of Ann Arbor] and the voter registration requirement was struck down in March of the same year [HRP v. City of Ann Arbor].

Dascola’s complaint is based on findings by the U.S. District Court in both the Feld and the HRP cases that the durational requirements were null and void. From Dascola’s complaint: “Neither the Feld, nor the Human Rights Party, decision was appealed, nor has either been overruled, vacated or modified in any way.” [.pdf Dascola v. City of A2: Complaint]

Dascola’s Request for Summary Judgment

Immediately after filing the complaint, Dascola’s attorney Tom Wieder filed a motion for summary judgment – asking the court to find in Dascola’s favor without a full trial. The brief makes essentially the same arguments in the initial complaint: The city’s charter requirements were ruled unconstitutional in Feld and HRP.

From the motion for summary judgment: “The Defendants [city of Ann Arbor] are improperly and illegally relying and acting upon one or more former provisions of the City Charter which are void and of no effect and, in so doing, are depriving Plaintiff of his constitutional right to seek elective office, as well as depriving the electors of the Third Ward of their right to vote for Plaintiff.” [.pdf Dascola v. City of A2: Motion for Summary Judgment]

The part of the argument on which the ruling in Dascola’s case could turn is the idea that once charter provisions have been explicitly ruled unconstitutional and declared null and void – as in Feld and HRP – they are not merely dormant, possibly to be awakened, but rather do not exist at all, and it’s as if they’d never been written. The brief cites a body of Michigan case law in support of that notion.

City’s Response to Motion for Summary Judgment

The city’s response to the motion for summary judgment includes a potential factual dispute. The city points out that in spite of Dascola’s claim that he has resided in Ward 3 since about Sept. 15, 2012, he didn’t change his voter registration or driver’s license to an Ann Arbor address until Jan. 15, 2014. And when Dascola filed an application on Dec. 1, 2013 to be appointed to the city’s pedestrian safety task force, he gave a Grass Lake address as his home address and marked “No” on the application’s question about city of Ann Arbor residency. [.pdf of Dascola's application to the pedestrian safety task force]

The application is included as an exhibit in the city’s brief. But the brief does not appear to mention that in the same application, Dascola seems to indicate a habitual lodging at the Baldwin Avenue address in Ward 3, where he contends he’s been a resident since Sept. 15, 2012: “I walk to work every day from Stadium and Packard area and have to use crosswalk at Baldwin. I have witnessed an accident because a driver wasn’t paying attention and was almost hit by car.”

Under Michigan election law, for purposes of voting and registration, habitual lodging is one way to determine residency:

168.11 “Residence” defined.
Sec. 11. (1) ”Residence”, as used in this act, for registration and voting purposes means that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a person has a residence separate from that of his or her spouse, that place at which the person resides the greater part of the time shall be his or her official residence for the purposes of this act. This section does not affect existing judicial interpretation of the term residence.

Also supporting Dascola’s contention of residency at the Baldwin address for a year before the 2014 election is his application for renewal of his barber’s license on Aug. 8, 2013, which gives his Baldwin address. [.pdf of Dascola's barber's license renewal] The city’s response to the motion for summary judgment does not appear to include the barber’s license renewal.

Factual issues aside, the city’s legal position, as conveyed in the response to the motion for summary judgment, is that the Feld and HRP decisions from the early 1970s are no longer the controlling law in the matter. Among the decisions the city contends should be used to judge the current case is a 2002 Washtenaw County circuit court case [Wojack v. City of Ann Arbor opinion], which relied nearly exclusively on a 1981 federal court decision [Joseph v City of Birmingham (ED Mich 1981)].

The Wojack case involved Republican candidate Scott Wojack, who sought to run for Ward 1 city council. Wojack met the voter registration requirement – because he’d been registered to vote in the city for more than a year – but did not meet the ward residency requirement, because he’d moved, within the city, to Ward 1 under a year before the election. Wojack was allowed to appear on the ballot, but lost the election. The Wojack decision, upholding the Ann Arbor city charter’s durational residency requirement, came after the election.

Also among the cases the city of Ann Arbor wants the court to use in deciding Dascola’s lawsuit is a Detroit case from 2013 [Barrow v Detroit Election Commission]. That involved a challenge by Tom Barrow to the eligibility of Mike Duggan to appear on the ballot for mayor, because Duggan did not meet Detroit’s one-year durational voter registration requirement. One wrinkle in the the Barrow case is that the Detroit requirement dates from the time of filing petitions, not the date of election. Duggan was ultimately ruled ineligible, even though he would have been eligible if he had waited a few days to file his petitions. [.pdf Dascola v. City of A2: Response to Motion for SJ]

Dascola’s Reply to City’s Response to Motion for Summary Judgment

Dascola’s reply to the city’s response to the motion for summary judgment reviews much of the ground covered previously.

The argument on which the case could possibly turn is reiterated: The idea that once charter provisions have been explicitly ruled unconstitutional and declared null and void – as in Feld and HRP – they are not merely dormant, possibly to be awakened, but rather do not exist at all, and it’s as if they’d never been written. A second part of that argument is to question by what orderly process charter provisions could be revived – whatever it is, the contention is that the city has not followed one. [.pdf Dascola v. City of A2: Reply in Support of Motion for SJ]

City’s Motion to Dismiss

The city has also filed a motion to dismiss the case. The arguments in the brief supporting the motion to dismiss were incorporated into the motion opposing Dascola’s motion for summary judgment, so there’s a considerable overlap in material. The city assumes for the purposes of this motion that Dascola does meet the residency requirement, just not the voter registration requirement. However, the city mixes in arguments throughout dealing with residency.

The city contends that this is virtually the exact same issue that was decided in the Wojack case, which was decided in the city’s favor by a state circuit court – with respect to the residency requirement. The city’s motion to dismiss includes a lengthy discussion of why the standards under which the Wojack and Barrow cases decided were appropriate. Those standards did not involve strict scrutiny but rather only an intermediate level of scrutiny.

The city’s motion to dismiss also anticipates an argument that someone might try to make in favor of using the Feld and HRP cases – based on the principles of res judicata and collateral estoppel. Those principles bar claims and issues that have already been litigated and decided from being litigated yet again. The city gives various argument why it thinks those principles don’t apply here.

The inclusion of these principles seems to be an attempt to respond, possibly indirectly, to the arguments made in Dascola’s motion for summary judgment – that once a law has been found unconstitutional and declared null and void, then the law is as if it had never been written. [.pdf Dascola v. City of A2: Motion to Dismiss]

Dascola’s Response to Motion to Dismiss

Dascola’s response to the city’s motion to dismiss the case includes material that is meant to contrast Dascola with the kind of candidate that eligibility requirements are in place to prevent:

The City implies that Plaintiff Dascola is some sort of aggressive interloper who is trying to exploit legal loopholes so he can parachute into the city and do political mischief. Fortunately, neither of these portrayals bears any resemblance to the truth. … Robert Dascola is nothing like the hypothetical individual whom durational eligibility requirements are designed to exclude. Mr. Dascola is 68 years old and was born and raised in the City of Ann Arbor. … Mr. Dascola has spent his entire career as a barber, always working in the City of Ann Arbor. For the past ten years, he has been on the Board of the State Street Area Association. He is a founder of Fire Up Downtown and Friends of West Park (a city park). He was appointed to the Allen Creek Storm Water Management Committee, which deals with a major infrastructure element in the City of Ann Arbor.

In term of legal arguments, Dascola’s response touches briefly on Wojack – a case that Dascola’s attorney Tom Wieder also litigated – but notes that it dealt only with the residency requirement, not the voter registration requirement.

So the focus is on the Barrow case, which dealt with voter registration. Barrow is described as unconvincing, because it “was based solely on the constitutional right to travel, and the court’s ruling is limited to saying that the voter registration requirement did not implicate or violate the constitutional right to travel.” The brief argues that other possible constitutional challenges to Detroit’s eligibility requirements – based on the First Amendment, the right to vote or equal protection – were not considered in Barrow.

The brief goes on to point out the Barrow opinion’s conflation of arguments for residency requirements with requirements on voter registration. The Barrow opinion quotes the governmental interest in eligibility requirements from the Joseph case:

(1) the interest in exposing candidates to the scrutiny of the electorate, so voters may make informed choices; (2) the interest in protecting the community from outsiders who are interested only in their own selfish ends and not seriously committed to the community; and (3) the interest in having officeholders who are familiar with the problems, interests, … and feelings of the community. (Joseph, 510 F.Supp. at 1336.) Barrow, at p. 424.

Those are interests that appear to support residency requirements, but not voter registration requirements in addition to voter registration requirements. However, the Barrow opinion concludes: “These justifications … support the charter’s requirement that candidates must be registered voters for one year when filing for office.”

The response to the motion to dismiss also questions whether state courts (in Wojack and Barrow) can overturn decisions made by the federal courts in Feld and HRP. The real centerpiece of the legal argument in the brief, however, is the idea that once decisions have been made that charter provisions are null and void – as in Feld and HRP – it is not possible to revive them, except by an overturning of those decisions. And that, the brief argues, has not happened. [.pdf Dascola v. City of A2: Response to Motion to Dismiss]

City’s Reply to Response to Motion to Dismiss

The city’s reply to Dascola’s response to the motion to dismiss includes an interesting footnote that portrays the rationale for allowing Wojack on the ballot in 2001: “The then City Attorney recognized that Mr. Wojack had no likelihood of election, and that the validity of his candidacy could be decided if he were to win.”

In large part, this brief reviews ground covered in other briefs. A footnote argues that Dascola has not proven that he meets the residency requirement. The note reiterates that the only facts entered into evidence on the question indicate that he does not meet it – based on the date of this voter registration and the application for the pedestrian safety task force. [.pdf Dascola v. City of A2: Reply to Response to Motion to Dismiss]

The brief includes the description of a 2003 Ann Arbor charter referendum that was defeated. The city’s brief presents that vote as an effort to clarify the status of the voided charter provisions, and appears to conclude that the outcome reflects Ann Arbor residents’ desire to retain pre-election durational eligibility requirements for city officers. [For discussion of the other issues at stake in that referendum, see "Column: Ann Arbor's Dumb Old Charter."]

Briefs

Here are links to .pdf files of the briefs filed so far, in chronological order:

• 03.28.14 [.pdf Dascola v. City of A2: Complaint]
• 03.29.14 [.pdf Dascola v. City of A2: Motion for Summary Judgment]
• 04.14.14 [.pdf Dascola v. City of A2: Motion to Dismiss]
  
• 04.14.14 [.pdf Dascola v. City of A2: Response to Motion for SJ]
• 04.18.14 [.pdf Dascola v. City of A2: Reply in Support of Motion for SJ]
• 04.18.14 [.pdf Dascola v. City of A2: Response to Motion to Dismiss]
• 04.23.14 [.pdf Dascola v. City of A2: Reply to Response to Motion to Dismiss]

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Bob Dascola sitting in the audience of the April 19, 2011 Ann Arbor city council meeting. On that occasion, he addressed the council during public commentary on the topic of panhandling in the State Street area, where his downtown barbershop is located. (Image links to Chronicle report of that council meeting.)

But Dascola was subsequently notified by the city clerk that he did not meet city charter eligibility requirements to represent Ward 3 on city council for this election cycle.

Dascola will be challenging the city clerk’s conclusion based on court cases from the early 1970s.

The Ann Arbor city charter includes two time-based eligibility requirements for city office: (1) a requirement that any local elected official must have been registered to vote in the city for a year before election to office; and (2) a requirement that a city councilmember must have been a resident of the ward they’re elected to represent for at least a year before being elected.

Dascola has lived on Baldwin Avenue in Ward 3 for about a year and a half, he told The Chronicle, but he did not register to vote in the city until Jan. 15, 2014. So he appears to meet the residency requirement, but not the voter registration requirement.

However, both of those Ann Arbor city charter provisions were explicitly ruled unconstitutional in federal court cases dating from the early 1970s.

So Dascola will be asserting his right to compete in the Ward 3 primary. He is represented in the matter by attorney Tom Wieder.

In a telephone interview on March 15, Wieder indicated that if “friendly persuasion” does not result in a change to the city’s position, then he’s prepared to move forward to file a lawsuit to ensure that Dascola can run.

And in the meantime, Wieder told The Chronicle, Dascola will be collecting signatures and submitting them to the city clerk as soon as possible. Dascola confirmed by phone that he was collecting signatures on the afternoon of March 15 – a change from an earlier strategy of waiting until the matter is sorted out.

Wieder ventured it is possible that based only on the charter language, someone might in good faith think that Dascola would not be eligible to represent Ward 3 if he were elected this year. But two separate federal court orders – one from Jan. 12, 1972 and the other from March 29, 1972 – struck down as unconstitutional the Ann Arbor city charter residency requirement and voter registration requirement, respectively.

It does not appear likely that a July 30, 2002 ruling by 22nd circuit court judge Timothy Connors might play any role in the resolution to Dascola’s case. The Wojack case – also handled by Wieder – involved the 2001 candidacy of Republican Scott Wojack to run in Ward 1. Wojack was told he could not run based on the in-ward residency requirement. He was allowed to run. But after the 2001 election, Connors issued an opinion upholding the charter residency requirement.

However, according to Wieder: “A state court cannot overturn an existing, binding decision of a federal court on the same subject.” Further, the Wojack case involved the residency requirement, not the voter registration requirement. And it is the voter registration requirement that appears to be the basis of the city’s conclusion on Dascola’s ineligibility.

Ann Arbor City Charter: Two Requirements

The charter provisions on eligibility for office come from Chapter 12: “Officers.” Two one-year requirements are included – the first on voter registration and the other on in-ward residency.

The phrase “registered elector of the city” can be glossed as “registered to vote in the city.” From the charter [emphasis added]:

Eligibility for City Office – General Qualifications
Section 12.2. Except as otherwise provided in this charter, a person is eligible to hold a City office if the person has been a registered elector of the City, or of territory annexed to the City or both, and, in the case of a Council Member, a resident of the ward from which elected, for at least one year immediately preceding election or appointment. This requirement may be waived as to appointive officers by resolution concurred in by not less than seven members of the Council.

According to Dascola, he moved to his Ward 3 address on Baldwin Avenue from Grass Lake, Mich., about a year and a half ago. So Dascola appears to meet the requirement that he be a resident of Ward 3 for at least a year immediately preceding election.

However, Dascola indicated that he did not register to vote in the city until Jan. 15, 2014. That would put him outside the charter requirement for voter registration in the city – by about two months.

City’s Position: Residency or Voter Registration?

It’s not completely clear if the city’s position is that Dascola doesn’t meet the residency requirement or that he doesn’t meet the voter registration requirement, or both. The document maintained by the city clerk’s office to track petitions includes an asterisk by Dascola’s name with the notation: “Not eligible doesn’t meet one year residency requirement.”

City clerk staff provided that document to The Chronicle – with its asterisk and note – on March 13, the day after Dascola took out petitions to run. That came in the course of a regular in-person visit by The Chronicle to the clerk’s office to check on recent petition activity. At the office counter, city clerk Jackie Beaudry indicated that her conclusion that Dascola was not eligible was based on his voter registration date, which is public information that can easily be verified.

Wieder described the language in a letter Dascola received from the clerk’s office as somewhat unclear on the question of residency or voter registration. But he indicated that it suggests that the city’s conclusion is based on the one-year voter registration requirement.

Federal Court Cases

Two separate federal court cases from almost a half-century ago – about three months apart – struck down first the residency requirement and then the voter registration requirement of the Ann Arbor city charter.

The first case was brought by Daniel J. Feld, Charlene Parker Stern and Bruce S. Kahn. From Ann Arbor News coverage on Dec. 31, 1971:

In October, Feld attempted to take out nominating petitions to run for city council from the Second Ward. However, within the previous 12 months he had moved temporarily to the Fourth Ward and was ruled ineligible to run for the Second Ward by City Clerk Harold Saunders. Miss Stern and Kahn were involved in the suit as registered city voters who claimed they would be deprived of their rights to vote for the candidate of their choice if Feld was not allowed to enter the election.

From the court order by U.S. District Court Judge Lawrence Gubow, filed on Jan. 12, 1972 [emphasis in bold added]:

IT IS FURTHER ORDERED and declared that the portion of Section 12.2 of the Ann Arbor City Charter which requires all candidates for the office of councilman to have been residents of the ward from which they are elected for at least one year immediately preceding their election violates the equal protection clause of the 14th Amendment to the U.S. Constitution and is, therefore, unconstitutional and void. [From court order for Feld v. City of Ann Arbor]

The Ann Arbor News coverage of the Feld case highlights the difference between the residency requirement and the voter registration requirement:

Judge [Lawrence] Gubow ruled only on the one-year residency requirement, and did not rule unconstitutional the charter language requiring that a person be a registered voter for at least a year before assuming elective office. [City attorney Jerold] Lax said persons seeking elective office will have to have the one year of voter registration, stating that he asked Judge Gubow specifically if his ruling went beyond the residency requirement. The answer was “no.”

Even though Gubow’s ruling on the Feld case struck down only the Ann Arbor city charter’s residency requirement, just two and a half months later, the voter registration requirement was also struck down – by U.S. District Judge Ralph Freeman. That came in a ruling on a case brought by the Human Rights Party, David Black and Mark Dickman. Black was the HRP nominee for Ward 4 city council. Dickman was a registered voter who wanted to vote for Black. From Freeman’s order [emphasis in bold added]:

IT IS FURTHER ORDERED and declared that the portion of Section 12.2 of the Ann Arbor City Charter which requires all candidates for the office of councilman to have been registered electors of the City of Ann Arbor for at least one year immediately preceding their election violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution and is, therefore, unconstitutional and void. [From court order for Human Rights Party et al v. City of Ann Arbor]

In the opinion written by Freeman, he begins by noting the outcome of the Feld case. He then contemplates application of either the “rational basis” test or the “compelling interest” test for the charter requirement. He decides that question in favor of the “compelling interest” test, citing a U.S. Supreme Court decision from 1972 [Bullock v. Carter] on which “a filing fee system imposed on prospective candidates in Texas could not be sustained merely upon the showing of a rational basis.” [Opinion in Human Rights Party et al v. City of Ann Arbor]

The “compelling interest” of the city was claimed to be that “a candidate has some commitment to the electoral process.” Freeman concluded that, “Certainly, this is a proper interest.” However, Freeman then notes that “those measures which the city takes to further its interest must be carefully fashioned to attain their purpose without unnecessary infringement on the rights of the electorate.”

Freeman’s opinion cites a number of state offices that do not impose an additional requirement that a candidate’s voter registration must persist for a year before taking office. Freeman then goes on to state:

We can see some merit in the proposition that registration to vote indicates a belief in, or commitment to, the electoral process, but we do not see that maintaining that status as a registered elector for a period of one year necessarily has any relationship to determining the commitment of the registered voter to that process.

Freeman drives home that point by quoting from another opinion, written by judge Damon Keith:

Judge Keith said in Green, supra, at p. 634, In our opinion a candidate is not like a fine vintage wine. His years of residency in a particular community do not necessarily make him a better candidate.

Next Steps

Wieder indicated it might be possible that someone could conclude in good faith – based on just the language of the charter and without knowledge of the two federal cases – that Dascola was not eligible to represent Ward 3.

Wieder said he’s hopeful that when the federal cases are pointed out to the city, it will be recognized that the two charter requirements no longer have any force. If “friendly persuasion” does not result in Dascola being allowed to run for city council, then Wieder indicated a lawsuit would be filed.

Context of Ward 3 Race

The only other candidate so far to take out petitions to run in the Ward 3 Democratic primary is Julie Grand, who also competed in the August 2013 primary. Incumbent Stephen Kunselman received more votes than Grand in that race.

Kunselman is not up for re-election in 2014, but is running for mayor, along with three other councilmembers: Sabra Briere (Ward 1), Sally Petersen (Ward 2) and Christopher Taylor (Ward 3). Because he cannot simultaneously run for mayor and run to retain his Ward 3 seat on the council, Taylor’s decision to run for mayor leaves that seat open.

Petitions for the partisan primary in August 2014 must be turned in by April 22. For councilmembers, 100 signatures are required from their ward. For mayor, the requirement is for 50 signatures from each of the city’s five wards, for a total of 250 signatures.

The Chronicle could not survive without regular voluntary subscriptions to support our coverage of public bodies like the Ann Arbor city council. We sit on the hard bench so that you don’t have to. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!