One Rottan Appellee Spoils the Whole Burial

[XLFD]

I never really understood the City's decision to appeal the quo warranto lawsuit I had won in December 2022, effectively nullifying the vote on the charter revision ballot question introduced to the citizens on May 3, 2022.  The simple question about whether to have the city charter revised was introduced after a LASD millage proposal filled with numbers showing what current millages would be raised to and their effect on taxpayers.  

The problem wasn't that the City of Ludington forgot to put those numbers on the ballot, they had no duty to do that.  The problem was that the city council had a duty before the election to fix the cost of the revision process and the compensation for the nine members of the commission that was charged with the work.  They never passed an ordinance resolution, or even a simple motion doing any of that.  It was a clear violation of section 19 of the Home Rule City Act, and since those values were never set, voters were sure to assume that the cost was negligible for the process, and that the commissioners would be unpaid volunteers. 

All of the material printed for this vote, on city resources and local media, never mentioned these expenses, other than a FAQ sheet that told us it would be fixed by council before the election.  That was inaccurate.  The only material that had estimates of potential costs and compensation figures was in the city's budget, hidden in a line item under the city clerk section that was called "professional services".   A memo from the city manager to the council on a different night had cost numbers, these were never mentioned or discussed and never fixed by council.  

Had they been fixed, the cost of over $82,000 would have been part of the literature, the FAQs, the meeting minutes, and the media's voting guides.  Would that cost have swayed about 1/8th of the "yes" voters to vote "no" and change the course of the election?  I think it would have, voters considering ballot questions do cost-benefit analyses and assign values when the spending of tax money is involved.  Has any citizen expressed any desire to change the charter in the last 15 years?  Not that I can remember, but the city council has looked into it multiple times, trying to make themselves less accountable.  Who actually would pay $82,000 just to review the charter when nobody is having problems with it, except some officials who want less duties under law?

So rather than just correct those errors and have the citizens vote in May 2023 when they are made aware of the costs and compensation of the revision and its committee prior to the election and can perhaps have an informed opinion before and during the election, the city council had the city attorney, whose error of omission launched this controversy, gain some extra cash in appealing one of Judge Wickens' last decisions to the Michigan Appeals Court.  It had the extra benefit of wasting my time and resources in defending the victory.  

Over the course of last year, City Attorney Ross Hammersley wrote an appellant brief, I responded with an Appellee Brief, and he also put forth a Reply Brief.  Since it's a lot more money for him, and he can show that he's a card-carrying member of the bar while I'm just some discerning citizen, he asked for an oral argument in front of the court.  I would have rather not, but I didn't want to be further disadvantaged by the system, so I requested an oral argument as well.  

The arguments were to take place on Tuesday, February 6th, at 10 PM in Grand Rapids.  I'm not the best 'morning person' so after getting up before 6 AM and starting on the road before 7, I rediscovered that I don't like driving long distances that early either.  I'm somewhat familiar with traveling through downtown GR, but not with parking in that area.  Yet, I thought it would be bad, (win, lose or draw) if I came out after court and my car was towed away. 

So I parked it in a lot and about three hours later, I paid an $18 parking fee (why they call it 'a lot', I guess), just slightly less than what I paid for gas to get there and back.  I was happy that I was able to give that expense to my client, but then I remembered who my client was.  

I was in the appeals courthouse before nine, and after getting through security, I went upstairs and found out the court wouldn't be open for the day until 9:30.  Lounging around the waiting room upstairs, I saw some familiar faces filtering in.  Mayor Mark Barnett and City Manager Mitch Foster were the first to arrive.  Nice to see that the city taxpayers can pay for the city manager to go to GR for the day to take part in a court hearing where he won't be able to testify in.  My forty dollars for gas and parking would pay less than a tenth of what he received from my fellow citizens in wages for just driving there and back.  Councilor Winczewski and her husband, who was on the Charter Revision Committee also appeared.

The court doors opened at 9:30 and you can see the dais behind the marble facia where the three-judge panel would sit, the desk that I would sit at, and to the far left, the desk where Hammersley would set.  You also see the friendly court officer sitting at his desk.  I got his permission to take a couple photos of the courtroom before the judges arrived, and he dropped by before they arrived to let me in on what the courtroom protocols were, just so I would know, since I told him this was my first time in this venue.

Our case was fourth on the docket and so when Judges Noah Hood, Allie Maldonado, and Christopher Murray entered and were seated, three cases went before us, and they were diverse.  The first was  via Zoom, where one attorney spoke of some fine points of law as regarding the rights of his client.  The second was disturbing allegations from Allegan County, with a defense attorney arguing for her client, who appears to have had a lot of history with CSC on young ladies.  Maybe it was all of the talk of a 7-year-old boy allegedly molesting his two-year-old sister that started my head (and heart) hurting.  This lasted about a half hour.  The Allegan County prosecutor stayed for the next hearing and uncontested, this went rather quick.  It was our turn to be called up.  

I had noticed my throat had gotten dry so when I sat down I checked the water decanter in front of me, took one of the paper cups available, and discovered that the prosecutor had taken every last drop out of it.  With a dry throat, a headache, and totally out of my optimal circadian rhythms, I listened to Hammersley presentation, he would be first to lay out the case, I would get a rebuttal, and he would get a reply afterwards with any time left over.  

Hammersley's presentation didn't offer anything new from his perspective, but Judge Murray would ask questions that illustrated he was very receptive to the city's position, that the city council could fix costs and compensation by getting a memo and having numbers they never fixed hid from them inside budget tables only saw by three administrators that worked on the budget. 

When it came to my turn, Murray's line of questioning had offset me a little and after inexpertly getting some prepared comments into the record, he started peppering me with some questions and reactions that didn't make my headache any better.  To Judge Murray, it was as if the city council had did their duties and that I was the bad party for trying to void the election for their creative way of getting around their duties so that nobody in the public would know there was a cost to revising the charter.  

Judge Hood, the lead judge, and Judge Maldonado, both of whom were the main speakers in the prior cases were mostly just following along, with Judge Maldonado sympathizing with me at one point when I apologized for having a hard time recalling a couple of items I had in my notes.  "You're doing fine.", she said, but I certainly wasn't feeling it.  

Between Judge Murray and my headache, I got out probably half of what I wanted to convey, and so after Hammersley closed being well-received by Murray again, I was relieved that they closed the hearing and indicated that they would rule on it in the future with an order/opinion.  I can only hope it's not written by Judge Murray, who seems to believe that the city council can waive their duties and leave voters ignorant of costs and compensation and expect that vote to count for something.  

If they do overrule Judge Wickens' (possibly) last decision made before retiring, they will likely make a precedent that allows city councils and other officials with fixed duties go around them by hiding them in a budget or other similar mechanism, rather than perform them.  I hope that won't be the case, and cooler judge heads will prevail.

[Freedom Seeker]

Just amazing what you have done and are doing, X. 10 p.m. threw me off upon first reading, but your other descriptions clarified the suffering.

So if this Decision comes back over ruling Judge Wickens, then the Winczewski's can continue the Charter revision? It all smells of nepotism and a city "club" out of touch with the residents, standing behind a deer-hater, lying on application and doing what a few of his neighborhood friends convince him is a problem because of losing a few hostas.

[XLFD]

It's not as if I am unused to getting up earlier than my usual 8 AM-ish to attend 7 AM school committee meetings or do other things (it used to happen all of the time back when I was on the LFD) it's just that my mental performance seems to be wanting when I do.  I noticed tension in my head on the first hour of my trip down, going slower than normal due to fog and darkness-- but happy that it wasn't the blizzard I was dreading back in January for this date.

They could do almost anything, they're judges, but the main three rulings I would think would be affirming the Wickens decision (no harm), remanding the decision back to the trial court with instructions. and reversing.  Doubt they'll do the second, because the trial judge would have to be decided.  My main hope is that the two judges who weren't talking did not support Judge Murray's view of the record and understand what the ramifications would be for reversing the decision.

There are a lot of MI attorneys who haven't argued their case live in front of the appeals court, but now I can cross out that entry on my bucket list.  I don't know why it was on that list in the first place.

[Freedom Seeker]

Regardless of the fog and your first kick of that bucket, the city can sit safely behind Hammersley, and marvel at your ability to do what most attorneys haven't. I just wonder if Foster, Winczewski and Barnett, et al., will wake up to your insightful brilliance of government and listen and act appropriately ... instead of hardening their hearts and stoking their egos which in the end may put the preacher in a lake of fire.

[Willy]

Wonderful work X. Thanks for all you have done for the citizens. The thing that everyone should realize is that the current City officials are spending thousands of taxpayers dollars for attorney fees and using tax payers money for expenses, salaries and travel for City officials just because they want to be allowed to keep the cost of the Charter revision a secret instead of just putting the cost of the revision on the ballot and letting voters decide. What a bunch of sleaze balls. We all know they will make a great effort to blame X for this court costs. X is sticking up for the poor hapless taxpayers whose income is being eaten up by those taxes and inflation. The fact that the City is going to court over this instead of doing it the right way shows just how bad these conniving politicians can be. Those running the City should be ashamed of themselves and should payback, out of their own pockets, every dollar this is costing the taxpayers. Win or lose, X, you know you are on the correct and honorable side of this situation. No matter how this turns out the people are the winners because they have you to stand up for them.

https://ludingtoncitizen.ning.com/photo/congratulations-mr-rotta?co...

[XLFD]

Willy, I am so lucky to have you and Freedom Seeker in my corner supporting me at this time.  Thanks for adapting the "Mr. Smith Goes to Washington" theme to a meme honoring my efforts, what may become my lost cause, but lost causes are often the only causes worth fighting for. 

And even if my efforts to thwart this fails, and you think I'm licked, I'm just gonna keep fighting for my neighbors even if the room gets filled with lies upon lies.  And even should the city send armies wielding swords of deception my way, I know some will listen to me as long as I remain armored in truth and pointing the way with a spear of common sense.  Among the forefront of those who will stand with me are you two.