As Community Celebrates Judge Wickens, Appeals Court Desecrates Legacy Ruling

The Consecration Last Week

Multiple area news agencies, including The Big Rapids Pioneer, turned out along with many members of the community to show their love for former Judge Mark S. Wickens on Valentine's Day this year.  The occasion was meant to dedicate the Lake County Courtroom as the "Honorable Mark S. Wickens Courtroom" celebrating the record 40 years of judicial services he provided to both Lake and Mason County, becoming the longest serving probate judge in Michigan history.

Retiring at the beginning of 2023, Wickens career was commemorated by those who served with him during his four decades.  “Wickens represents what a trial court judge should be,” Former Court Administrator Jeffrey Nadig said. “His integrity, judicial temperament, community engagement, compassion, ethics, patience, character, humility and deep legal knowledge made him unique.”

Wickens said in his experience, some judges he used to practice under referred to the courtroom as “theirs,” but he never took that approach.  “I always considered it the people’s courtroom,” Wickens said. “You have the disputes that need to be settled so you can get on with your lives. It is your courtroom. You are part of the reason I am here, and I appreciate this honor.”

The Desecration This Week

In perhaps his last major ruling from the bench on December 16, 2022, Judge Wickens proved that his courtroom was the people's courtroom when he ruled on behalf of the people of Ludington by granting quo warranto relief in the case of Tom Rotta v. City of Ludington, case# 22-153-AW.  Summarized in a nutshell, plaintiff sought to invalidate the results of an election where the city council of Ludington failed to fix the costs of a charter revision or the compensation of the committee (a statutory duty of theirs), presenting a simple question on the ballot as to whether the city should revise their charter or not, with the inference that it would be a free service. 

Nothing in the literature or the resolution passed by the city council indicated any of these values, not even a FAQ page made for informing the public about charter revision issues.  

The above is from that FAQ published at the same time the budget was being finished.  The council played no part in fixing anything by their actions, the Honorable Judge Wickens expressed that in his opinion when he said that city councils speak through their motions and resolutions to make a decision, otherwise everything going on at a meeting is just a discussion.  He went on to state that numbers on a budget would not satisfy the statute-- especially when those numbers were hidden from the council and public in a line item called "professional services" in the "City Clerk" section of the budget.

The honorable judge went on to offer some advice to the city in summation, the better course of informing the electorate and redoing which wasn't taken.  "Where does that leave the city?  Well, clearly they can appeal this decision... or they obviously could just correct that particular problem, put it back on the ballot in a subsequent election and go from there... in that respect, I'm finding for Mr. Rotta today."

Judge Wickens explored the concept of the legislature's intent on drafting a law that made city councils need to fix rates, accepted the concept that if the electorate was uninformed as to the cost of a ballot issue, that they were effectively disenfranchised.  He was concerned that the public could not find out those values, because they were never fixed before the election.  The best course was laid out: hold a new election and do things right.

Those commonsense evaluations of the facts in the case were overturned in the Michigan Appeals Court in this ruling sent out yesterday.  The appeals court in their limited vision shot down Judge Wickens decisions, summarizing their findings by saying:  "First, the city committed no error in conducting the election. Second, even if it did, plaintiff produced no evidence that the error was material to the election results."

To show its logic, the appeals court went on to describe how keeping the public ignorant of the costs involved in a charter revision process was 'legal' and even if it wasn't, I could not show how it might have changed the results of the election.

Unlike Judge Wickens, these judges overthought materiality, which is actually an easy element to show in this case, because you only have to show the legal concept of "might" rather than "would", the latter which would be impossible to show without holding another election.  There was no citizen movement to have a charter revision, that's why there were only career public officials jockeying for the charter commission seats.  Each citizen would assign a mental value to how much revising the charter should cost.  If the actual cost of a revision was around $80K and had been presented to them, it not only might have changed yes votes to no votes of those believing it to be free, it would have.  It might have affected enough to change the election results, and that's all you need to show, that there was at least a chance it could have happened.

When the court was presented with three election results from the MCC bond issue in 2022 and 2023, it was to show that voters assign value to ballot proposals and change their vote accordingly to whether they see good value or not.  From their original ballot having a $35M bond to a $16M bond in proposal 1 in November 23, there was a 24% change of votes.  Judge Wickens accepted that logic when I used the concept of bottled water at the beach in his courtroom.  One is more likely to pursue a free bottle of cold water, rather than one that costs $10.  And everybody has a cost that they will not accept for buying that water, assuredly much less than $10 for a majority.  

Judge Mark S. Wickens recognized the statute wasn't followed, recognized that the voters were not informed, and recognized that there was a chance these omissions might have affected the election results.  For this, perhaps his last major decision, he was rewarded by the appeals court for his four decades of jurisprudence by them concluding:  "the trial court erred by granting plaintiff’s
motion for summary disposition and thereby implicitly abused its discretion in granting his
application to proceed quo warranto." 

This appeals court trio had no regard for the legacy of a courtroom legend, or the concept of an informed electorate and how they actually cast their vote.  This vapid decision will make it easier for Michigan local governments to hide from the people the actual costs of what they are voting for.

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Too bad! I read the MCP article too--Alway seemed to be gloating more than average.

It's a sad situation when a corrupted Council/Mayor gets control of a city and the electorate is generally relying on the city being honest. You, X, have been enlightening Torch readers.

It will be sad to see how the Charter is corrupted to give the corrupt more power. One can only hope there will be some honest Counselors on the way with a recall of those drinking the corrupt koolaide.

Rob Alway illustrates why he is your #1 source for local fake news as the COL assuredly sent this news bit to him immediately after Ross Hammersley and I got the news from the court.  Plenty of false statements such as:

1) (Rotta) "had claimed election fraud":  nope, I had claimed election error which was the minimal needed to prove my case, proving fraud would have been nigh impossible without a trial as that is an intent crime..  

2) (Rotta) "filed suit in 51st Circuit Court claiming the city did not place potential salaries of the charter commission members on the ballot.":  nope, I claimed the city never fixed the costs of the revision or the compensation of the CRC created, a statutory duty of the city council.  I never said it needed to be on the ballot, but that legislators intended for the voters to know the cost from city council action.

3)  "The city had budged $81,600 for the charter revision with $20,250 set aside for commissioners’ compensation, which came to about $2,250 per commissioner."  Budged?!  The city budgeted over $100,000 for two years in a line item called "professional services" without the council or public knowing the costs of a charter revision was hidden therein.

And I'm sure you caught the negative aspersions towards the David trying to keep the Goliath in check, by gloating and focusing on the quantity of my legal challenges to the COL, rather than the quality which he never acknowledges.  Problem is that Rob Alway sold his soul to the establishment a long time ago and has his money on Goliath government every time.  Ross Hammersley could have done his job right the first time and put the costs and compensation in the original resolution, but he's tens of thousands of dollars richer on our taxpayer money and a hero for city hall now because he didn't.  I'm just a lot poorer, for now I don't even get back my court expenses for filings and motions.  What i still have is my faith in myself, for doing what was right.  

In the end though, I am saddened most for Judge Wickens legacy, as I can still fight on and make sure that this charter revision attempt fails at the ballot box, or the effort is neutered enough so that the changes passed keep the charter strong enough to keep our officials in check.  

First, congratulations X on your efforts in taking this to an appeals court. Not many if any non lawyers have accomplished this feat. Second, it is a sad day when a common sense decision is overturned when that decision clearly follows the law.
What kind of City spends thousands of tax payers dollars to pay for attorneys to defend their corrupt procedures instead of simply and humbly doing the right thing by putting it on the ballot, with the proper information, for citizens to vote on.
I'm not an attorney nor do I claim to have the smarts for deciphering the law but it seems to me that the appeals court misinterpreted the very clause they used to justify overturning Wicken's ruling.
As far as I am concerned, you and Wickens, got it right. The appeals court should give up their day jobs and go back to being the lacky law clerks they appear to be.

A little over a year ago, the council went into closed session with Attorney Hammersley to decide what to do with Judge Wickens decision that was against their interests.  When they came out a little over a half hour later, they decided unanimously to accept Hammersley advice to take it to the appeals court and have him represent them, even when his resolution lacking costs and compensation therein was the cause of the problem. 

No conflict of interest there according to three attorneys at that closed session, so rather than hold a legit election they rolled the bones in appeals court and won, but the big winner was the city attorney whose course of conduct led to the citizens being ignorant of the price tags in the first place (probably intentionally keeping them that way) and whose service enabled him to earn a lot of extra cash he would have never been entitled to without his error.  This wasn't justice or a tribute to a seasoned jurist who just had a court named after him, it was irrational legal theory trumping common sense.   

Thanks for your affirmation that justice was hobbled here, Willy.  


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