Federal Judge Mulls Holding City in Contempt for Sending Out Hundreds of Ballots Without Ward 3 Candidate’s Name

by Rob Smith

1992 WAS QUEEN Elizabeth II’s “annus horribilis.” Prince Charles and Prince Andrew’s marriages both broke down, Princess Anne divorced and large parts of Windsor Castle were destroyed by a major fire, which destroyed many priceless artefacts. City Attorney Stephen Postema might choose 2014 as his own “annus horribilis.” He is beset by a City Council populated by members who question the city’s need of ten attorneys, when Washtenaw County makes due with one (who gets help from outside attorneys, when necessary). Council recently voted to direct the City Attorney to make public two of his “advice memos.” Postema has relied on privileged “advice memos” for years. The memos have allowed him to hide his legal opinions from public scrutiny, critics claim.

Mr. Postema recently lost his first court case in a decade in defending against local barber Bob Dascola’s suit that challenged the City Charter’s residency requirement as it applied to Council candidates. Postema’s legal reasoning has twice been vilified by federal judges in the space of just a few months and now U.S. District Court Judge Lawrence Zatkoff is mulling over whether to hold the City of Ann Arbor in contempt.

After Judge Zatkoff suggested City Attorney Postema was asking the judge to ignore 200 years of federal jurisprudence in finding against Bob Dascola’s lawsuit, 392 Ward 3 absentee ballots were sent out to voters without Dascola’s name printed on them.

County Clerk Larry Kestenbaum fell on his sword and took responsibility for a mistake which he characterized as “very embarrassing” in a blog entry.

Judge Zatkoff is having none of County Clerk Kestenbaum’s explanations or apologies. This is from the judge’s show cause order, requiring the city of Ann Arbor to demonstrate that it is not in contempt of the court order that disallowed the enforcement of eligibility requirements for city officials against Bob Dascola: “Defendants are ready to assign blame for this failure to computer programmers, vendors and various municipal agencies, yet never acknowledge or take responsibility. Defendants’ explanation completely ignores the responsibility levied upon them by this Court’s May 20, 2014, Opinion and Order.”

Judge Zatkoff makes clear it wasn’t Kestenbaum whom he’d ordered to put Dascola’s name on the ballot 60 days earlier. It was the City of Ann Arbor and City Attorney Postema, who is a member of Ann Arbor Election Commission, along with Police Chief John Seto and City Clerk Jackie Beaudry.

While members of the public batted about theories about how the mistake happened, Ward 4 Council member Jack Eaton shared his opinion in response to a news story on the subject: It would be hard to argue that the failure to include Bob Dascola was an intentional act. The initial proof reading involved a ballot that had Dascola on it. Changes to Ypsilanti races somehow caused changes to other ballots. I think it would be like having too many versions of a document on your hard drive.

When the final ballot was distributed, it was reviewed by the County Clerk, the County Election Commission, the City Clerk and the City Election Commission and no one noticed the Ward 3 omission. It is hard to believe that all of those folks were working in concert to keep Dascola off the ballot.

On the other hand, the City of Ann Arbor was under a Court Order and probably had a greater duty to ensure that Bob Dascola appeared on the ballot. That heightened duty is why the Court issued the show cause order, regarding the Contempt issue. Mere negligence may not be a good defense to failing to follow the Court’s prior order.”

It’s tempting to wonder how the county’s election commission—comprised of a judge, Kestenbaum and the county’s treasurer—all missed the mistake on the ballot. However, there’s little time to sit and marvel at that slip-up. The Michigan Election Commission first determined the absentee ballots without Dascola’s name which were returned would not be counted. Then, the Election Commission reversed itself.

The Ann Arbor Independent has learned that as a part of City Attorney Postema’s evaluation, Council members took him to task for defending against Dascola’s residency suit without consulting his client (Council).  It was a decision which cost taxpayers over $30,000 in attorney’s fees. Along with deriding Postema’s legal reasoning in his Opinion, Judge Zatkoff further expressed his displeasure by awarding Dascola attorney’s fees—an extraordinary measure since Dascola had not asked for them.

Now, City Attorney Postema has until July 23 to respond to Judge Zatkoff’s show cause order.

Mark Karoi is an attorney familiar with the Dascola case. He pointed out that, once again, Judge Zatkoff had gone above and beyond what Dascola was requesting (to have the misprinted absentee ballots thrown out).

Karoi writes: “What I have found interesting is that Judge Zatkoff appears to have issued the show cause order sua sponte – meaning that he did so without being requested by Mr. Dascola’s counsel. The judge felt strongly enough that the conduct should be addressed by civil contempt proceedings that he issued the order on his own. The City of Ann Arbor likely has a significant exposure to further costs and attorney fees incurred by Mr. Dascola as a result of the city’s failure to adhere to the spirit and letter of the May 20th order. Judge Zatkoff will no doubt address that.”

Ward 3 Council candidate Julie Grand has complained that Bob Dascola’s lawsuit and now his name being left off the absentee ballots, is affording him free publicity.

Meanwhile, Judge Zatkoff is not amused. In his show cause order he writes, “Despite this clear instruction from the Court, Defendants failed to correctly accept and process Plaintiff’s nominating petition. The Court finds this failure strikes at the very heart of the Court’s May 20, 2014, Order and Opinion granting Plaintiff’s requested relief. This failure demonstrates a continued history of Defendants inability to follow federal court orders; indeed, the very nature of the underlying claim centered on Defendants absolute refusal to comply with federal court orders finding sections of the Ann Arbor City Charter unconstitutional and void.”

While Ann Arbor City Clerk Jackie Beaudry told the media the deletion of Bob Dascola’s name from the ballot by a programmer had occurred after she’d proofed the ballot, Judge Zatkoff isn’t letting Beaudry (a named defendant) off the hook so easily. He points out that, “Further, Defendants admit that the office of Defendant City Clerk individually placed 392 inaccurate ballots into envelopes prior to delivery. Yet Defendants provide absolutely no explanation why Defendants failed to review any of the 392 absentee ballots prior to placing them in envelopes.”

Should the City of Ann Arbor be found in contempt, Judge Zatkoff may impose a fine at his own discretion. That, however, is just one part of what has become a legal morass involving an Ann Arbor barber, his lawyer, the city of Ann Arbor, its lawyer, Secretary of State Ruth Johnson and her lawyer—Michigan Attorney General Bill Schuette.

In Schuette’s motion to intervene in the case to protect Michigan’s right to oversee elections, Dascola is accused once again of trying to “disenfranchise Ward 3 voters.” Those would be the absentee voters who received the misprinted ballots and returned them.

While the lawyers circle each other, City Clerk Jackie Beaudry has been trying to implement her own solution to the dilemma.

“There’s been a tremendous amount of work by the city clerk’s office on this,” City Attorney Stephen Postema said.

The clerk’s office has called, written to and even gone to voters’ homes of people who had turned in misprinted ballots without Dascola’s name.

“Any first ballots received initially, we made best efforts to find a phone number, some way to contact them, and we either talked to them personally over the phone or left them a voicemail,” explained City Clerk Jackie Beaudry. “We had a small number that we just had no way to contact, and so we did knock on doors.”

Of the 392 replacement absentee ballots that were given to voters, about 130 of them have been returned. That means there are still over 260 ballots out there. The Ward 3 race was decided by six votes in 2009.

Bob Dascola, along with Julie Grand and Sam McMullen, are running in the Democratic primary for the Ward 3 City Council Seat being vacated by mayoral candidate Christopher Taylor.

Bob Dascola is in good company. In May 2014 in a small West Virginia town, the name of the two-term incumbent who was running unopposed was left off the ballot. In place of his name, the name of another Council member was printed. On Election Day, the candidate got a call saying his name had been left off the ballot. The county clerk suggested a rerun but the Council member balked. He fears if there’s a revote he might face opposition.