In Two Separate Rulings U.S. District Judges Blast City Attorneys’ Legal Arguments

by P.D. Lesko

ANN ARBOR City Attorney Stephen Postema was dressed down in a 17-page opinion penned by U.S. District Court Judge Lawrence Zatkoff in May. The judge concluded city officials had no legal justification to keep Bob Dascola off the Aug. 5 City Council primary ballot. Dascola sued to represent Ward 3. Local attorney Tom Weider represented him in the suit.

Not only did the judge agree with Dascola’s arguments, Zatkoff took the extraordinary measure of awarding Dascola attorney’s fees—fees which could cost Ann Arbor taxpayers tens of thousands of dollars. This will be in addition to the expenses associated with paying the City Attorney, as well staffer Abigail Elias, a former Ann Arbor City Attorney, for their work on the case.

At least one City Council member is thoroughly irritated at the outcome—not because City Attorney Postema lost the case, his first loss in ten years on the job, but that the City Attorney allegedly did not consult City Council prior to deciding to defend what Judge Zatkoff concluded was a section of the Charter which had been found unconstitutional decades ago.

Ann Arbor’s City Attorney has one client: City Council. Council members, individually, have no authority to direct Mr. Postema, but as a group determine what he is expected to do, legally. This relationship was made clear by Stephen Postema himself in a public response to repeated calls by Ward 3 Council member Steve Kunselman to provide a written opinion on the legality of the Percent of Art ordinance. Postema told the former AnnArbor.com that he would provide a written opinion on the legality of the Percent for Art ordinance when instructed to do so by Council.

That was 2011 and Council member Kunselman did not have support from a majority of Council members to force the question. However, in the interim, several reformers have been elected and re-elected to City Council, including Council members who are pushing for more robust transparency from local government—including the City Attorney’s office.

A source said that the City Attorney sent Council members “absurdly arrogant” updates about the Dascola case  “right up until the very end.”

Members of the local legal community suggested that Judge Zatkoff was irritated at Postema, as well.

One local lawyer said: “When a judge accuses a city attorney of trying to convince him to abandon the basic principles of law that have formed the foundation of the United States legal structure for over two hundred years, that’s code for, “Why are you wasting my time?”

The City Attorney’s handling of the Dascola case—on the heels of allegations of double-dipping a car allowance and mileage reimbursement that surfaced last year—have several Council members concerned.

The double-dipping allegations were disposed of with a statement from the city’s CFO Tom Crawford to the effect that Ann Arbor had no official policy against collecting a monthly car allowance as well as mileage reimbursements. The auditor, nonetheless, said in his final written comments that employees who collect a monthly car allowance should not collect mileage reimbursement payments, as well. Shortly thereafter, Postema’s monthly car allowance was discontinued.

In a January 2013 piece in The Ann Arbor Observer, published shortly after the allegations of double-dipping surfaced, the mayor was quoted as saying, “Stephen’s a guy with a lot of integrity, and he’s never lost a case. What more do you want from an attorney?”

Six months later, in a piece published by AnnArbor.com, Stephen Postema is quoted as saying this about Mayor Hieftje: “I see the people who come to see him on his regular Friday morning time with the citizens of Ann Arbor. It’s really quite moving the number of people who come through to see the mayor.”

While John Hieftje and Stephen Postema may appear to have a mutual admiration society, admiration of Ann Arbor’s City Attorney is not universal among Council members.

One Council member describes refusing to see Postema alone because of feeling bullied. Another expresses disappointment that it took a decade to get enough votes on City Council to force Postema to file a written opinion with the City Clerk’s Office.

In late February 2014, Ward 4 resident and attorney Irv Mermelstein filed a lawsuit against the city challenging the legality of a city program launched in 2001 which requires homeowners to disconnect the footing drains from their homes and install sump pumps in their basements.

Mermelstein filed the complaint with the Washtenaw Trial Court and Judge Donald Shelton was set to hear the case.

Two weeks later, Postema removed the case to federal court and Judge Avern Cohn was assigned to it.

Irv Mermelstein is representing plaintiffs John Boyer and Mary Raab, who live on Delaware Drive and Anita Yu, who lives on Georgetown Boulevard.

About a month after Mermelstein filed his 18-page complaint. Postema filed a 189 page reply that asked Judge Cohn to dismiss the entire case. The City Attorney told a reporter on March 23: “Any judge would boot this out.”

In his filing, Postema argued the plaintiffs were barred from bringing their case for reasons including statutes of limitations, since they went through the FDD program in 2002 and 2003. The city also claimed governmental immunity.

In May, Judge Cohn refused to toss Mermelstein’s case out of court. During an 11 minute hearing the judge dismissed the City Attorney’s 189-page filing and other briefs as “jurisprudential legerdomain.” He remanded the case back to the Washtenaw County Trial Court, despite the arguments of assistant city attorney Abigail Elias.

Elias argued that Judge Cohn should dismiss the federal claims if he was going to send the state claims back to the Washtenaw circuit court. She began her arguments by saying, “I understand generally it’s an uphill battle…” but Cohn interrupted, “Not generally. Specifically.”

As Abigail Elias addressed the court, Judge Cohn shook his head in disagreement with her arguments.

There is a website overseen by residents involved in the effort to force the city to discontinue the FDD program. The site alleges the FDD has caused sewage and water backups into basements and also alleges “contracting irregularities centering on ‘pre-qualification’ of five FDD construction contractors, the only ones ‘pre-qualified’ by the FDDP since the program started in 2001.”

The website goes on to allege: “It is common knowledge that Perimeter was started for the primary purpose of doing FDDs under the FDDP, and my understanding is that the company was organized by a group including former employees of the Department of Water Utilities under the former Director.”

According to records from the State of Michigan, Perimeter LLC was incorporated in 2000 by Steven M. Rojeck of Whitmore Lake. Beginning in 2009, the company’s annual statement filed with the State of Michigan began to be signed by James R. Michael.

The City Attorney’s annual review is on the horizon, and there are Council members who suggest Mr. Postema’s recent setbacks in federal court will impact his evaluation. That the city’s legal department jumped in to defend against Bob Dascola’s lawsuit allegedly without consulting all members of City Council prior to doing so, could cause problems, as well.

Should the FDD program, which Postema has told media will be defended “vigorously” in court, be found to have illegally required thousands of residents to spend millions of dollars to install sump pumps and maintain them, one Council member suggested that the City Attorney should start looking for a new job.

In response to Irv Mermelstein’s early efforts to discuss the FDD program with City Council members, including his own Ward 4 representatives, assistant city attorney Abigail Elias sent him a “no contact” letter. She writes, “Your efforts to contact members of City Council to discuss those issues directly are improper and must stop… All your communications with the City regarding these matters…must be directed to me.”