Judge Kuhnke Rules Against Ann Arbor DDA

by P.D. Lesko

Circuit Court Refuses to Dismiss Pro Se Plaintiff’s Complaints

To download Judge Carol Kuhnke’s April 2, 2015 Opinion in PDF format, click here.

ACCORDING TO HIS bio., local attorney Jerry Lax is currently in his “48th year of practice. After obtaining degrees from the University of Michigan and Harvard Law School, Jerry served as a law clerk on the United States Court of Appeals for the Sixth Circuit.” In April, Lax was beaten at his own game. The “David” in this Goliath story is a man who owns a bungalow on the Old West Side, but who goes by the sobriquet “Homeless Dave.” David Askins is not a lawyer; he is a big-bearded, bike-riding, teeter-tottering, interviewer of local notables and politicians. Along with his wife, Mary Morgan, Askins  co-published AnnArborChronicle.com. They shuttered the site in Sept. 2014.

Two months later Askins filed suit in the Washtenaw County Circuit Court against one of the AnnArborChronicle.com’s long-time advertisers, the Ann Arbor Downtown Development Authority. In the complaint, filed Nov. 20, 2014, Askins—a so-called “pro se” plaintiff—alleged the DDA had violated the Michigan Open Meetings Act, the Freedom of Information Act and the Michigan DDA Act.

In an April 2015 decision, Washtenaw Circuit Court Judge Carol Kuhnke refused a motion prepared and filed by Jerry Lax to dismiss Askins’s complaints.  Lax, the DDA’s contract attorney, works for Pear Sperling Eggan and Daniels. His Motion to Dismiss included the argument that Askins had no standing to file a compliant against the DDA.  It was an argument with which Judge Kuhnke disagreed.

Jerry Lax was, in fact, unsuccessful in his efforts to have all of Askins’s complaints against the DDA dismissed.

Reached by phone, Jerry Lax had little to say about the judge’s decision.

“The opinion speaks for itself,” he said. “I’m not going to comment. It’s all attorney-client relationship information.”

Jerry Lax offered up no bluster, no “I’ll get him next time” bravado. He uttered no criticisms of the judge’s opinion—an opinion which offered up overt criticism of Lax’s arguments, including making it clear she was not prepared to do his legal legwork for him.

Lax, whose firm also represents the AAATA, is heavily involved in local politics and a regular donor to local politicians and causes, including the Homeless Shelter.

The judge’s 20-page opinion, in several instances, suggested Lax had not provided evidence to support his arguments and in one case based his arguments on an unpublished and thus unbinding court case, Citizens United Against Corrupt Government vs. Troy City Council, decided in Dec. 2014.

Judge Kuhnke’s opinion is damning and suggests that the DDA, with its $20 million budget, has been permitted to be run like a private club rather than a public body accountable to the public whose money funds the DDA’s annual budget.

DDA Board members and staff were cited in Judge Kuhnke’s decision as having failed “to keep minutes” of meetings and having “failed to make” those minutes “publicly available.”

The members of the DDA, many of whom were political appointees of Ann Arbor’s former Mayor John Hieftje, have come under intense criticism from City Council members for a variety of reasons. One of the most persistent criticisms from Council members has been that  the unelected DDA Board members have functioned in secret, been openly insubordinate and in the cases of Joan Lowenstein and Sandi Smith, openly attacked their Council critics.

In the 2014 August primary, former Council member Sandi Smith, a gay activist, was caught flat-footed when she endorsed challenger Don Adams in the Ward 1 City Council race against incumbent—and DDA critic—Sumi Kailasapathy. Adams told The Ann Arbor Independent in an interview he could not support gay marriage   or condone abortion.

Smith, when told of Adams’s stances, said she’d had no idea. Adams, who lost the primary election, nonetheless said he had the support of Mayor Taylor (Taylor donated to Adams’s campaign) as well as state Sen. Rebekah Warren and her husband, County Commissioner Conan Smith.

DDA Board member Joan Lowenstein’s Twitter account is littered with barbs and ad hominem attacks on individual City Council members. In 2013, Council member Stephen Kunselman (D-Ward 3) coined the term “shadow government” to describe the DDA. Kunselman voted against Lowenstein’s 2011 reappointment to the DDA Board.

When running for reelection in 2011, Kunselman also referred to the DDA as a hotbed of “political cronyism.”

“Kunselman’s exploitation of a child’s death for his narcissistic brand of politics shows lack of moral compass,” Lowenstein Tweeted in Oct. 2014.

After Council member Jane Lumm (I-Ward 2) beat incumbent Stephen Rapundalo in the 2011 general election, Lowenstein contributed an essay to The Ann magazine in which she called Ann Arbor voters “old,” “stingy” and “Republican.” The piece, which a former county Commissioner described as a “bizarre rant” to an AnnArbor.com reporter, opened up Lowenstein and the DDA to public derision in the AnnArbor.com comment section after that site ran a piece about her essay.

When a $65 million bond proposal for a new downtown library failed in 2012, a Trustee of the Ann Arbor District Library opined that the defeat could have been because the public thought the DDA Board was somehow involved in pushing for the bond and the tear-down of the downtown library.

While it is true that members of the DDA Board openly endorsed the $65 million bond proposal, there is no evidence that the DDA Board would have controlled the design or construction of the proposed new library building.

In Jan. 2015, when information came to light that the DDA Board members were considering the use of downtown “ambassadors,” criticism from the public was swift and fierce. Even the DDA’s own supporters criticized the proposal, an $899,000 expenditure.

“As a former long-term, non-student resident of Ann Arbor,” one email to the DDA begins, “I have to say that this is one of worst ideas I’ve seen in quite a long time. To put this into perspective, how do greeters at Walmart make you feel? To me, they’re quite creepy….”

A post to the DDA’s Facebook page says, “….Use the money for shelter for homeless people instead of this stupid program. If it’s panhandlers you’re afraid of how about a cop to walk around downtown?”

Yet another email about the proposed Ambassador program from a self-identified “younger person,” resorted to the equivalent of electronic shouting: “YOU ARE EMBARRASSING YOURSELF, DDA. SERIOUSLY. STOP. JUST STOP.”

In David Askins’s complaint,  he alleges that DDA officials redacted “out of spite” documents requested through the Freedom of Information Act.

In addition, Askins writes  in his complaint that in a meeting with DDA Exec. Dir. Susan Pollay, Sandi Smith and DDA Board member Al McWilliams, in response to a request to post DDA check registers online for the public to access, Sandi Smith allegedly replied, “she was reluctant to have the DDA expend its own funds to provide this type of information.” Smith allegedly went on to say that if a citizen wants to know how the DDA is spending the public’s money, FOIA may be used and the DDA can charge for requests to recoup the cost of providing the public records to the public.

Finally, Askins complaint alleges that 2013 reimbursements paid to DDA Board members and then Ward 3 Council member Chris Taylor may not have conformed to the DDA’s written travel policy that requires expenses to be approved “prior to the travel taking place.”