The courts have gone from the sublime to the ridiculous

gavel2So it looks like Bob Dascola has weaseled himself on to the ballot for the August primary. As you have probably guessed, I am none too pleased. Mr. Dascola has sued the City of Ann Arbor over his right to run for a 3rd ward city council seat even though he does not meet the residency requirements that are written in our city charter.  He has won his case. We have now gone from the sublime to the ridiculous with our court system.

(See my post “A Carpetbagger Amongst us?” and also the blog “Making Ann Arbor a Better City” for background information pertaining to this post)

Over on the Ann Arbor Chronicle blog, Dave Askins has provided a list of all the legal briefs involved in the case. Peruse them over on that site; I am not going to link any of them here. I am not even going to summarize them, but will give you my impression of what I read which is this.

Dascola and his lawyer Tom Wieder used a lot of old case law to justify his position. The city of Ann Arbor tried to use modern day case law as a way to show that in the present day, residency/voter registration requirement cases have been heard in many different courts and found to be constitutional. The judge refused to hear it or consider it. In the judge’s written opinion of the case he says this:

“At the outset, Defendants state in several filings that the durational residency requirement and voter registration requirement contained in Section 12.2 of the Charter are constitutional. Defendants argue that, since the Feld and Human Rights Party decisions were rendered, the standard of review by which federal and state courts analyze such requirements have changed. Defendants argue these “changes in law” require the Court to uphold and declare constitutional all the provisions of Section 12.2.

Although Defendants spend a significant amount of time briefing this point, their focus is misplaced. 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.”

So in other words it does not matter what is reality in today’s society or today’s courts. Time stood still after the 1970’s court case? Whether the prior judgment was pertinent to today was not even considered by the judge.

Now I realize that the justice system is actually just power plays of lawyers trying to one up each other on technicalities, but I would hope that judges would also consider what was in the best interest of the people. Is ignoring modern judgments and accepted case law in lieu of protecting an outdated judgment that modern courts consider to be an error serving the people in a just way? I think not.

3d-scales-of-justice-t-1009In my own opinion, the judge should have considered modern day case law and whether the 1970’s case that Dascola was framing his argument around was in error….which is what the modern day case law concludes…..that residency and voter registration requirements are indeed constitutional by today’s standards.

Now I am not a lawyer. I don’t pretend to be one or understand all the intricacies that are involved in manipulating lawsuits. I just feel that arguing about whether the city should have re-instituted a law that is considered in error by today’s standards is simply wrong. Today’s standards say that these requirements to run for office are constitutional, then they are IMO.

There are many old laws on the books from back in the day that still exist. They have never been taken off the books, but are not typically enforced. Should these be enforced even though they are not acceptable by today’s court standards?

Here are some links that speak to some of the ridiculous outdated laws here is Michigan. Some are quite funny. Take a look (source1 , source2 )

According to internet lore, Michigan used to have this law on the books (maybe still does):

Did you know that in Michigan it is/was illegal for a woman to cut her own hair without her husband’s permission? Her hair legally belongs to her husband. (source3, source4, source5)

So if a woman cuts her hair, and her husband does not like it, can he file charges against her? If this law is still on the books, but today’s societal norms and laws have progressed passed this way of thinking, can her husband press charges or sue her using this law? Can and would the court say yes the woman’s hair is the man’s property because he posed the question to the court based on an old law and ignoring all the women’s rights that now exist under current law?

I realize that Bob Dascola owns a barbershop, which implies that he only cuts men’s hair, so I assume he doesn’t have many woman customers. But if a woman comes in, he might want to ask for a signed permission slip from her spouse….being a supporter of old laws and such.

This old law may not be the perfect example, but it was so apropos that I couldn’t resist using it.

So Think about it.  Substitute any of the outdated laws from source1 and source2 above into an example like this. What about civil rights, gay rights, environmental laws?  In the past all those things were thought of in one way, but today are thought of differently.  This is not a case where the courts and society were silent on it since the original ruling.  This is not a case where today’s courts think one way while the majority of the citizenry think the opposite.  This is a case where clearly the residents of Ann Arbor said they wanted these residency requirements and modern courts said they were constitutional.

This is a case about technicalities, not justice, not what is in the best interest of the residents of Ann arbor, and not what the residents of Ann Arbor said in they wanted when they voted on a ballot proposal in 2003 to eliminate the residency requirements form the city charter.  But more on that later.

I am highly annoyed that the city lost this case because modern case law was not accepted as relevant. I’m not saying that it is the only reason the city lost, but it appears that it is a big part of the reason. At least that is how I read things.

I shouldn’t be surprised about any of this. After all, the courts have increasingly made poor decisions in regards to election law over the past years. Just look at the Supreme Court’s decision in the Citizens United case as well as their decision to strike down the heart of the Voting Rights Act of 1965 . More and more decisions involving election laws are not in favor of what is in the best interest of the people overall.

More and more carpetbaggers

With all that said, I would like to get to the real reason I am writing this follow-up.

CarpetbaggerSome of you out there are probably saying, so what? What’s the big deal? Dascola is a really nice guy…let him run. To that I say, this is a huge deal…..but a huge deal having to do with the door that has now been opened, not with Dascola as a person. I have never met Mr. Dascola, I actually don’t know his views on anything except that he is so anti-Julie Grand, that he went to court in order to run against her. That is a trait that will never make me vote for him for any governmental office.

What this means is now anyone, no matter where they live can now run for office in the city of Ann Arbor. A candidate with an outside interest that wants to use Ann Arbor for commercial or political gain can now run for mayor or council. Is that what you really want? To have carpetbaggers with ulterior motives coming in and making decisions for us who live here? You might be thinking ‘no one is going to do that…why would anyone want to do that (besides Dascola that is).

A couple weeks ago I posted about the Koch brothers and their PAC ‘Americans for Prosperity’ getting involved in a small ballot initiative with the Columbus Zoo. (See my post “It is good to not be the Columbus zoo”.) No one would have thought that this small local issue was important to the ultra conservative Koch brothers, but it was.

The Koch brothers along with their Americans for Prosperity (AFP) PAC also got involved with a small local election in Iron County, Wisconsin. They wanted to support local candidates in favor of a billion dollar mining venture in Iron County. They flooded the campaigns with money literature in support of their candidates, but to no avail. Although their attempt to buy the elections did not work, it still affected the local government and how the town functions.

The Koch brothers and AFP can now run any candidate they want here in Ann Arbor if they so choose. Even though the Ann Arbor area is left-leaning , they won’t need to recruit a local, they can just choose anyone from anywhere and run a campaign. Any outside interests groups can now stack our council with supportive people for their private interests. Think that can’t happen, think that will never happen? Think again.

There is a lot of talk about drilling in Scio Township and mining in Chelsea. Although we have laws protecting the city from such things currently, can those laws be overturned with a new less environmentally friendly council? I’m not sure.  Maybe not, maybe so.  What if it was an issue about development or parks?

Although this scenario is not actually probable right now (I hope), the Dascola Case now makes this sort of thing possible. Anyone, from anywhere, who has outside motives, can now run for a seat on our council. Money can always buy elections no matter how hard the legitimate local candidate works.

Listen up Third Ward Voters

So huge deal aside, now I want to point out something for all you third ward voters. It is something that the judge also did not consider. Back in 2003 the residents of Ann Arbor voted on the subject of residency requirements. They had their say and voted down a ballot proposal to eliminate this requirement that Dascola just sued the city over.   Lets walk through the background.

There was a ballot proposal on the November 2003 ballot that said:

(Language is from the March 3, 2003 City Council Minutes. I am assuming that this is the exact language that appeared on the ballot proposal, but I have not found a source to confirm it).

ANN ARBOR CITY CHARTER AMENDMENT ESTABLISHING ELIGIBILITY REQUIREMENTS FOR ELECTED AND VOLUNTEER APPOINTED OFFICES

Shall the Charter be amended to replace the requirement that the Mayor and Council Members be registered electors in the City at the time of election and that Council Members be residents in their wards for one year prior to their election, with a requirement that the Mayor and Council Members be registered electors of the City, and the Council Members of their wards, on the date they are elected or appointed to office, to require that volunteer appointed officers be residents rather than registered electors in the City, and to eliminate the requirement that paid appointed officers be registered electors?

_YES _NO

All court cases aside; the voters were asked this straightforward question. There was no confusion about what this was asking. Although it was a three-part question, the language is completely understandable.  It asked:

  • should we change our charter and remove all residency requirements for elected officials who are running for office
  • should we  allow residents who live here but who vote elsewhere to be a volunteer appointee (e.g. students)
  • should we allow paid staff to be registered to vote ( and therefore live) outside of Ann Arbor if they so choose.

Our charter says this regarding the council part of the question. This is the original language that the ballot proposal was trying to change.

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 proposal was well publicized and explained in the Ann Arbor News

(From the Ann Arbor News Archives at www. aadl.org-  you need a member password to access the database)

Want to run Ann Arbor? Move in by election day

Ann Arbor News (MI) – Sunday, October 26, 2003

Readability: 10-12 grade level (Lexile: 1170L)

Although the greenbelt proposal ‘s getting all the buzz this fall, there’s another ballot question waiting for Ann Arbor voters nine days from now.

It’s a charter amendment, which – on its face – seems to eliminate some residency requirements for running for city office.

In reality, residency requirements were thrown out by a federal judge three decades ago and the proposed change would have the effect of at least preventing any dispute about age and citizenship requirements.

Your head spinning?

It’s no surprise. But it’s important to sort out instead of waiting to read the ballot language at your polling place on election day and saying – as was my instinct – “I don’t think it’s too much to ask that someone live in the ward a year before presuming to represent my neighborhood.”

In a pair of equal protection cases, the court then ruled that I’m the one who presumes too much.

Decided in the 1970s, the separate lawsuits were brought by city Democrats and what was then Ann Arbor’s Human Rights Party.

Both won.

But somehow the old – according to the federal court, unenforceable – language stayed in the charter.

Three decades later, a would-be candidate was told he wasn’t eligible to run for City Council. The reason: the residency requirement.

That led to a lawsuit and, after a loss in the local courts, to an appeal.

“If anyone had looked back, they’d have known we had no requirements,” argues Ann Arbor lawyer Tom Wieder, who represented Scott Wojack in that unsuccessful suit in county court.

The ’70s decisions, Wieder says, voided provisions that candidates be registered voters (and therefore citizens and at least 18 years old) along with the residency rules. The only eligibility rules left applied to residency on and after election day.

Relying on a more recent federal ruling, the local court disagreed. And its 2002 decision effectively left the city with a 1-year residency requirement for seeking a City Council seat and no such requirement for mayor.

However, city officials were soon ready to clean up the tangle. And as they neared agreement to put what is now Proposal A on the Nov. 4 ballot , Wieder and his client dropped the appeal.

True to the 1971 and ’72 federal court decisions, the charter amendment would require only that the mayor and City Council members be registered voters in the city, and council members of their wards, on the date they’re elected or appointed.

I still don’t think much of it.

Wieder, who does, acknowledges that a federal case might well end differently today. Certainly, he says, residency requirements similar to the Ann Arbor rules struck down in ’71 and ’72 have been upheld since.

Like affirmative action, reproductive choice and innumerable other issues, election laws and interpretations of the constitutional questions that surround them are subject to trends and to the times.

And it’s all complicated enough without letting invalid language stay on the books.

Fortunately, today, we can watch for the revisions online. See that you do.

And the result was that the residents of Ann Arbor WANT residency requirements. The ballot proposal for elimination of the residency requirements was voted DOWN by 57% of the voters.

Voters retain rule for council

Ann Arbor News (MI) – Wednesday, November 5, 2003

Readability: >12 grade level (Lexile: 1340L)

Author: TOM GANTERT

Ann Arbor voters on Tuesday rejected a ballot proposal that would have eased residency rules to run for City Council, as well as those for city appointees and volunteers on commissions.

Proposal A was defeated by 11,369 votes, or 57 percent, to 8,540 votes, according to unofficial results.

The proposal would have eliminated the requirement that City Council candidates live in the ward they want to represent for at least one year before being elected. Candidates would have had to live in the their wards on the date they are elected or appointed.

“It’s absolutely clear to me that voters in Ann Arbor believe that candidates should be residents of the ward for at least a year before they run for office,” said Council Member Mike Reid, R-2nd Ward.

Attorney Thomas Weider has said the ballot would have cleaned up the city charter language by imposing residency requirements for City Council and mayoral candidates.

Weider said requirements now in the charter have been struck down by federal court opinions. The city, however, says the opinions are unpublished and have been overturned by appellate courts.

Proposal A was overshadowed by the greenbelt millage Proposal B. The original signs made in August for the Friends of Ann Arbor Area Open Space supporting Proposal B just said “Yes.”

The group changed its signs to “Yes on B” after they learned there were two proposals on the ballot.

So all court cases aside, the voters as recently as 2003 have said that they are in favor of residency requirements and voter registration requirements. That is a fact.

I Want It Now! -Veruca Salt from Willy Wonka and the Chocolate Factory

I Want It Now!
-Veruca Salt from Willy Wonka and the Chocolate Factory

Mr. Dascola in his first act as a potential city council candidate, selfishly ignored the will of the people, the will of the voters, and decides to sue the city and demand that he be allowed to run anyway. He selfishly ignored you!

Why would you want to vote for someone who so callously disregards the will of his future constituents? How could you trust him to represent you? One year is too big a hurdle to wait? One year is a reason to sue us because he wants to be a politician immediately….when he demands it.

Now I know that sometimes a politician has to make tough calls and go against the will of their constituents in order to do what’s right for the city (state, country etc.) when their constituency does not understand all the issue. Sometimes that is just part of the job. But this is not that. This is not a tough call. This is a blatant disregard for the results of a ballot proposal. His is a selfish ego that implies ‘I don’t care what the residents want….. I want what I want’.

How can you trust him? I don’t. He is a carpetbagger who is not thinking about what is in the best interest of the city, only what is in his best interest.  There are two other candidates running for this 3rd ward seat, Julie Grand And Sam McMullen. Do the entire city a favor and pick between them when you vote for your 3rd ward council rep.

 radix malorum est cupiditas

-MOTL

 

 

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