Manistee Settles Circuit Court Lawsuit Day After City Attorney Saylor Loses Circuit Judge Election

[XLFD]

On November 4, 2014 over 11,000 voters of Benzie and Manistee Counties went to the polls and voted for the 19th Circuit Court Judgeship.  Over 60% voted for attorney David Thompson, under 40% voted for Manistee City Attorney George V. Saylor III. 

 

On November 5, 2014 the Manistee City Council met and with City Attorney Saylor's approval, decided to settle a three year old lawsuit against the City of Manistee with multiple plaintiffs getting a purse over $100,000.  The lawsuit had been remanded to the 19th Circuit Court for an evidentiary hearing to decide whether the City of Manistee was liable for nearly $400,000 of damages claimed by plaintiff. 

One wonders what the difference would be between a ruling by an impartial Judge Thompson and a Judge Saylor, who may have had a 'sweet spot' for his (and his law firm's) long-term association with the City of Manistee, and municipal entities in general.   Acting for the City of Ludington, Saylor was involved with multiple issues of unethical/unlawful behavior by himself, his law firm, and his law firm's association with Mason County's 51st Circuit Court. 

 

In this lawsuit, his firm was involved with advising the City of Manistee officials on legal issues, as the Plunkett & Cooney law firm handled the case's defense in court.  Here is what the Agenda of Nov. 5 2014 meeting said, which was around before the election

 

 

The election occurred and the next day the council, apparently without discussion so as to keep the settlement of the lawsuit as low key as possible, did take action and settled.  Of course, this was not news to any of the Shoreline Media concerns or Rob Alway's Manistee County Press, but the Thursday November 6th issue of the Manistee News Herald went into some detail about the city's actions and the lawsuit particulars-- and George Saylor, City Attorney, passing along some hearsay information from Gretchen Olsen of Plunkett Cooney.

 

The memo mentioned throughout the article is almost certainly developed by the City Manager and City Attorney to best explain their side in the case, so since there is likely a gag order in the settlement on the plaintiffs for discussing the issue further, the Ludington Torch dug into the court files of the Appeals Court.  We found not only a statement of facts and legal concusions developed by the court when they remanded the case back to the circuit court for fact-finding, but a concise summary of the case here, Mich. Bar Summary of COA case, and reprinted below in its entirety.

 

"The court concluded that the facts as to whether a defect existed in the defendant-City's sewage disposal system on the date at issue were clearly in dispute, and that there was a question of fact as to whether the City knew or should have known about the alleged defect. Further, questions of material fact existed as to "whether the City took reasonable steps to repair, correct, or remedy the defect, and if so, whether those steps were taken in a reasonable amount of time." The issue of causation was also for the fact-finder.

 

Thus, the court affirmed the trial court's order denying the City's summary disposition motion. However, it remanded the case for an evidentiary hearing pursuant to Dextrom. Plaintiffs in this class action sought compensation for property damage that occurred when their businesses and homes were flooded with raw sewage due to a backup and overflow of the City's sewer system.

 

The City argued on appeal that the plaintiffs could not establish the necessary elements set forth in MCL 691.1417(3) to avoid immunity. The court disagreed. The City contended that they could not show that "the system had a construction, design, maintenance, operation, or repair defect at the time of the sewage disposal system event."

 

However, plaintiffs asserted that the system had several maintenance defects, including with inflow and infiltration, which inundated the combined sewer system through "collapsed pipes, holes, cracks, and offset joints," and caused the sewage to back up into their properties. They also asserted that the City's failure to employ bypass pumping at the intersection where the separation project was primarily concentrated at the time of the rain event constituted an operation defect. They presented an affidavit and documentation in support of their allegations.

 

The court noted that it held in Willett that MCL 691.1417(3)(b) only requires that a plaintiff "allege the mere existence of a 'defect' in the sewage disposal system," not to show fault in this step of the analysis. As to whether the City knew about the defects or, in the exercise of reasonable diligence, should have known, plaintiffs relied on their expert's affidavit, documented sewer-backup investigations before and after the event at issue, and news articles.

 

The City also argued that the rain event was a "100-year" storm and thus, an "act of God." However, plaintiffs' forensic meteorologist, concluded that the event was approximately a 25 to 50-year storm. Based on the evidence, the trial court correctly found that an act of God defense may not be decided as a matter of law. However, the court remanded for an evidentiary hearing to determine whether the City is entitled to summary disposition based on governmental immunity."

The entire court decision is well worth the read if you believe that the City of Manistee may be neglectful of their water and sewer system, much like the City of Ludington has been, read it here:

Kelley v City of Manistee COA 5-27-2014.  Here are two excerpts:

 

[Willy]

What bother's me is that many municipalities have sewer problems which residents are subject to. Since most municipalities have a mandatory requirement to connect to their systems when living in their jurisdiction, they should be libel for any damages caused by the system but we find that, time and time again,  Cities fight against citizens and refuse to acknowledge the problems and refuse to pay for damages. This fiasco was the fault of Manistee's sewer service and they knew it. Instead of reimbursing the citizens for the damage they chose to fight it which ends costing much more because of the legal fees. This could have been resolved a long time ago. Very good job of reporting X

[AQUAMAN]

Very well said again Willy. And it should bother you, and everyone else too. This could happen to anyone connected to city water/sewer systems. Only the victims seem to care, and that's silly. The callousness and arrogance of any city to deny responsibility and fight this in court with hundreds of thousands of taxpayer dollars, is just wrong! Good find and report again X. And shame on Attorney George Saylor for covering this up instead of attending to his duty to resolve this years ago. Makes ya wonder, how much did his law firm gain from it all in the end. 

[Willy]

Thanks Aquaman. There isn't anything much more nasty than sewage backing up into a building. Not only is there water damage but everything that's contaminated must either be disinfected or thrown out. Then there's the complete inconvenience of living with the stench. 

[XLFD]

You just got to keep your eyes and ears open, and be receptive to the character,both the good and bad impulses and influences, of the local body-politic, and then the path to understanding what goes on locally becomes a lot clearer.  These 'coincidences' become a lot more understandable, and typically, more diabolical in scope as they continue to frequently occur. 

 

But it gets a lot harder when these governing bodies try to blind and deafen the citizenry by making public records unattainable and conduct real decision-making out of the public eye.  Shay, Saylor and Wilson have gone through tens of thousands of the people's dollars just to fight disclosing non-exempt public records regarding unethical and unlawful conduct of public officials; in the old days rogues like this would be put in pillories and flogged in the public square.

[XLFD]

In my opinion, Government Immunity (GI) should not have even been attempted in this case.  When governments get into the utility business they should not be treated any differently for instances of liability than private utilities would for similar negligence.  They should become even more susceptible when they use their municipal powers to mandate their citizens use them exclusively for their water and sewer needs, like Ludington does and I would assume Manistee does (since the Wilson-Saylor law firm pushed that in Ludington).

You can't get another water and sewer provider, so that over time the incentive gets lost for the city to provide quality service or maintenance of their system beyond the minimal required to keep the DEQ, EPA, DNR, etc. off of their backs.  Idiotic city management then spends $1.5 million on painting three water tanks, at least ten years before they need it, while the city's wastewater treatment facility can't get a discharge permit for three years because of long-term neglect. 

This is where the real money gets lost when the city has to spend $10 million to fix something that could have been fixed for less than half that, and provided the citizens with a clean environment all along.  They would rather put a million to make redundant transient docks at the marina and thrice that on sprucing up Ludington Avenue's west end while toxic levels of ammonia flow into our ecosystem.

[AQUAMAN]

These same "watchdogs" we have formed to be fair and honest in public duty like the DNR, EPA, and DEQ, all follow protocol when it comes to defending and watching out for their fellow public employees. They literally look the other way most of the time. But, be it citizen Joe, then they hammer down on you with all kinds of threats, fines, and possible imprisonment. It's NOT a fair and level playing field.