FDD Class Action Progress in US Supreme Court: City of Ann Arbor Waives Right to Respond to Homeowners’ Petition for SCOTUS Review and Relief

City Will File Opposition Only if Requested by the Supreme Court Justices

In January 2019, the Homeowner Plaintiffs in the FDD Federal Class Action (Lumbard, et al. v City of Ann Arbor) were handed a disappointment when the Sixth Circuit Court of Appeals affirmed the dismissal of their claims by the US District Court in Detroit.

On June 21, 2019, however, the Supreme Court handed down its much-anticipated decision in Knick v Township of Scott. We posted about the case before and after the decision in June.

The Court there was faced with compelling arguments by the homeowner, Rose Knick, for overturning two decisions that, in combination, produced a tactic referred to by the Chief Justic as the “San Remo preclusion trap” employed by municipal governments to extinguish federal Fifth Amendment claims without a hearing for the plaintiffs.

Chief Justice John Roberts exceeded our wishes. He did not perpetuate the legal mess that litigation of federal private property claims had become. Rather, he burned to the ground the entire legal and procedural structure that produced both the City’s San Remo Trap tactics against the Homeowner Plaintiffs in federal court and the Sixth Circuit opinion based on the City’s arguments. The Opinion of the Supreme Court particularly condemned the use of the San Remo “traps” by municipalities, the only intended result of which was to deny meritorious federal plaintiffs their day in Court.

Mlive and the City Attorney were very vocal and positive in their assertions that the litigation over the FDDP was at an end. In a press release, the City Attorney ventured that “[n]one of this litigation should have ever been filed.” He continued that “[t]his case has tied up the time of one state trial court judge, three state court of appeals judges, one federal district court judge and now 20 federal court of appeals judges.” According to the Supreme Court in Knick, however, it’s the municipalities, not the property owners, that are responsible for this waste of judicial time.

Now that the decision in Knick went the FDD Homeowners’ way, the City has waived its only right to file a Response to the Petition with the Supreme Court. The document filed by the City on August 26, 2019, signed by Abigail Elias, says that “I do not intend to file a Response to the petition for a writ of certiorari unless one is requested by the Court.” This time, no press release from the City Attorney, Stephen Postema.

What is the timeline from here? The Lumbard case is Supreme Court Case No. 19-150. Following the City’s Waiver, the Petition will now be circulated to all the Justices. There is a “cert. pool” of Supreme Court clerks who will review and analyze the Petition for seven of the Justices. Two still are briefed by their own Clerks. The next hurdle is for the case to be put on a “conference list” for one of the Justices’ private Friday conferences.

Here is some further description of the Court’s prodedure from Wikipedia:

Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the “discuss list”; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be “re-listed” for discussion at a later conference. This occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted. The votes of four Justices at conference (see Rule of four) will suffice to grant certiorari and place the case on the court’s calendar.

In fact, the Solicitor General of the United States did intervene in the Knick case on the side of the homeowner. So, the Justices may very well want to hear General Noel Fransisco’s thoughts.

Just Months Before 2001 City Task Force Picked Mandatory FDDs as “Solution” to City Sewage Overflows, City Admitted Lack of “Certainty” About FDD Data, Effectiveness

City Task Force Admitted toHigher Level of Certainty [in] the Other Solutions”

The City Council passed the mandatory FDD Program in August 2001. In 2001 and since, City of Ann Arbor officials, staff, attorneys, employees, contractors and others involved with the Footing Drain Disconnection Program billed FDD’s to the City at large and to the homeowners in five FDDP “Target Areas” as a safe, effective and cheap solution to flooding problems and sewage overflows into the Huron and local tributaries.

As the previous post shows, however, the City apparently completed mandatory FDDs, without the knowledge of owners, free of requirements of State Building Codes on the basis of an administrative determination in Lansing, without notice to anyone.

Quite apart from expecting code enforcement by the City and State, however, the thousands of residents involved had separate expectations based on trust in the honesty and competence of the City government. They would have been justified in thinking that if the City were going to require construction in thousands of private homes, then the City would certainly have had the highest confidence in the functioning, safety and effectiveness of FDDs to do what they were advertised as doing.

Nothing could be further from the truth. In fact, as alleged in Paragraph 73 of the FDD Federal Class Action Complaint, the City admitted in writing that FDDs were unproven and lacking in scientific support when the City began doing them.

The City’s Water Utility Department published a flyer in January 2001 that included a Q&A about the City’s confidence in FDDs. This was the question, on page 2:

[Question:] The Task Force says there is less ‘certainty’ about the ‘footing drain disconnect’ solution. Why?

The surprising, lengthy official answer, supplied by the same City “Task Force,” was as follows, with some of my comments on the text:

[Answer:] We have less than complete data on the amount of wet weather flow from the foundation footing drains that gets into the sewer system during storms.

In other words, the City had no scientific basis for recommending (let alone requiring) footing drain disconnections as the City’s complete solution to sewage overflows. The various statements contradict the entire premise of the FDDP narrative–that disabling residential footing drain systems would remove so much stormwater from the sewers that no physical construction or other alternative was preferable.

With “less than complete data,” more data collection was planned:

Instituting this alternative as a solution will include additional work to complete the data collection to bring the same higher level of certainty as the other solutions.

If you think this implied that the City would first collect more data, attain the “higher level certainty” it lacked in FDDs or fail; and only then start going into people’s houses, you’d be sorely mistaken.

Instead, the flyer states that as FDDs were built, “flow data collection from these locations will be used to increase the confidence in the flow projections.”

“These locations” refers to targeted houses under the FDDP. The City had empowered itself to order homeowners (without any due process) to act as the City’s canaries in the FDD coal mine. The City decided, without notice to them, that it needed these citizens to submit their houses to destructive mandatory FDD construction so that the City could mine that data to “increase [the City’s] confidence in the flow projections.”

What if FDDs didn’t work out? The City had an answer for that too:

If the newly collected data does not increase our level of certainty about this remedy, the Task Force would recommend different protection measures for the neighborhood.

It would appear from the City’s words that the FDDP was still an R&D project in the data collection phase when the program was launched. Homeowners were not told that failure of the experimental construction was contemplated as a real possibility, even though the construction was mandatory and permanent.

What was the City’s hurry?

State Building Code Agency: Mandatory Footing Drain Disconnections under Ann Arbor FDDP Were Not Required to Meet Any Michigan State Building Codes

In August 2001, the City Council passed City Ordinance 32-01 launching the mandatory “Footing Drain Disconnection Program” (FDDP). The program targeted the owners and residents of approximately 2,000 one- and two-family residences in Ann Arbor, on the basis of their addresses. From 2001 to 2012, the City Water Utility Director exercised her authority and ordered all of them to submit to construction in their basements and crawl spaces called “footing drain disconnections” or “FDDs.”

According to the State agency that polices local government enforcement of State Building Codes, however, if you are or were one of the owners of a house targeted for an Ann Arbor FDD, none of the construction inside your homes was required to comply with any official State Building Codes.

This determination by the State Bureau of Construction Codes followed my formal complaint in October 2014 about improper code enforcement in the case of FDDs. The BCC responded in its letter to me on November 7, 2014:

We reviewed your correspondence in regard to the City of Ann Arbor, received in this office on October 30, 2014.

[Y]ou indicate concerns regarding the enforcement of the City’s requirement for mandatory disconnection of foundation drains from sanftary sewer lines in pre-1982 single family residences under [the Ann Arbor FDD Ordinance]. You request that our agency conduct an investigation into your concerns under the rules applicable to the Bureau of Construction Codes.

Based upon our review, it has been determined that our agency has no authority to investigate your concerns regarding the City of Ann Arbor’s local ordinance requirements or enforcement of same. The issues you raise within your complaint are not regulated by the Stille-DeRossett-Hale Single State Construction Code Act, 1972 PA 230, Michigan Residential Code, the Michigan Plumbing Code and the Michigan Building Code. The City’s local ordinance falls beyond the scope of authority of this agency to address. You may wish to consider other avenues of recourse to address and resolve your concerns.

[Emphasis added.] BCC has refused at least twice to send a single state inspector to look at any FDD construction in even a single home.

BCC’s determination (without explanation) was that construction of FDDs would be regulated like the paint or wood trim in a remodeled kitchen, which are well-known examples of “non-code” construction. City Building Inspectors inspect the new plumbing in the kitichen according to the building permit to see if it meets the State Building Codes and local requirements. They won’t inspect the paint job because the quality of paint jobs is not regulated by any State Building Code or local code.

FDDs, however, were nothing like paint jobs. Paint jobs don’t include installation of operating equipment for the owner to operate after the painter leaves. The construction for an FDD was a big project. In a typical house, it usually lasted two to three days. It included (i) demolition of concrete flooring; (ii) physical disabling of perfectly legal, functioning, as-designed building drainage systems; (iii) installation of new plumbing systems and electrical work (frequently including a new electrical panel); (iv) sump crock excavation and removal of soil under the house; (v) sump crock construction; (vi) piercing of the building envelope for drainage piping; and (vii) other tasks inside and outside of the house. It involved a general plumbing contractor, non-plumbing subcontractors, and a construction manager; it cost over $10,000 according to a City Council Resolution in 2011.

That is a lot of construction without codes for the City and its chosen contractors to follow in residential construction, especially construction the City ordered be done. In more recent email and phone communications with BCC management and their counsel, they confirmed my understanding that none of the construction in these 2,000+ homes was required to meet any State Building Codes.

There were, in fact, and remain no building codes at all for “footing drain disconnections” in Michigan or anywhere in the United States, to my knowledge. There are no codes for how to do a “footing drain disconnection” or that require FDDs. Why?

First, by definition, a “footing drain disconnection” is a modification to an “existing structure” under any of the State Building Codes from which BCC says it exempted FDDs. That’s true of building codes in the United States going back over 50 years.

Without the freely given and fully informed consent of the homeowners, the City could not have lawfully required any modification to “existing structures” that were functioning as designed and not dangerous. And if the City had tried, the State Building Codes would have protected the homeowner with significant due process, hearing and appeal rights. The local FDD Ordinance includes no right to appeal an Order of the “Water Utilities Director.”

Residents did not know that, if they were targeted for a “disconnect” under Ann Arbor’s local ordinance, they would be denied the protection of the same State Building Codes for the mandatory construction in their houses that would apply to, say, the construction of an outdoor deck.

Here is a link to the FDD Federal Class Action Complaint. The facts discussed in this post are included in the Complaint as part of claims already asserted by the Class Plaintiffs on behalf of all homeowners with FDD construction in their houses.

FDD Class Plaintiffs File Petition with US Supreme Court to Overturn Sixth Circuit’s Judgement for City of Ann Arbor

Landmark SCOTUS Decision Eradicates Legal Barriers to Commencement of New Federal Litigation by Additional Class Action Plaintiffs

I am pleased to report that on July 29, 2019, the FDD Federal Class Action Plaintiffs in Lumbard et. al vs City of Ann Arbor filed their Petition with the United States Supreme Court review the United States Supreme Court to vacate the decision of the Sixth Circuit Court of Appeals in their consolidated cases.

Here is a link to the full document. If you read the relatively short arguments beginning on Page 20 you will get a brief version of the autopsy report on the City of Ann Arbor’s case in the FDD litigation since 2014.

The Plaintiffs’ Petition follows the decision of the Supreme Court on June 21 in Knick v Township of Scott, No. 17-647, 588 U.S. ___ 2019). As we discussed in an earlier post, Knick overturned the two cases on which the City’s successes in both state and federal court depended,  Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172  (1985) and San Remo Hotel, L. P. v. City and County of San Francisco, 545 U.S. 323 (2005). 

In brief, after Knick, Williamson, San Remo, and all of the jurisprudence under them for 34 years, ceased to exist. The use by municipal governments of  Williamson and San Remo, as a tactic to preclude federal takings plaintiffs from their day in federal court, was on trial in the Supreme Court in Knick. The Court reacted with unusual force to the “unanticipated result” of preclusion of federal takings plaintiffs under San Remo, particularly where the plaintiffs have spent years in state court formerly required under Williamson. 

The Court made such tactics legally impossible even to be attempted post-Knick. Justice Roberts carefully eliminated all the precedents and doctrines that underlay the use of “preclusion traps,” root and branch. The City of Ann Arbor will go down as one of the last municipalities–if not the last–to employ a San Remo trap successfully to preclude federal takings plaintiffs from an independent federal forum for their claims.

Because of Knick, the Sixth Circuit decision in Lumbard did not end litigation arising from the City’s Footing Drain Disconnection Program at all. The Lumbard case is very much alive. Independent of its effect on Lumbard, Knick also removed any barriers to a new class action by a further class action by another class representative, this time commenced in federal court, federal court, by a new class plaintiff. We will have some details on that in a separate post.

Only four Justices are required to grant a Petition; there were five in the majority in Knick. Additionally, the Court has already granted the Petition of another takings plaintiff from the Ninth Circuit while the case was was still “in process” in the federal courts when Knick was handed down by the Supreme Court. The whole Court (not just the majority justices in Knick) granted summary relief, vacated the judgment of the Ninth Circuit and ordered “further proceedings not inconsistent with the decision in Knick.” Lumbard  is also “in process,” as discussed in the attached Petition. The Court’s handling of the earlier Ninth Circuit plaintiff is at least some indication of the direction the Court may take in the case of the Petition now before it. 

Next Steps at the Supreme Court and Timing

Here is a good brief summary on Supreme Court process from A Reporters Guide to Applications Pending Before The Supreme Court of the United States:

Q:How long does it take the Court to act, once a petition has been filed?

A: On the average, about six weeks. Once a petition has been filed, the other party has 30 days within which to file a response brief, or, in some cases waive his/her right to respond. Once the 10 day period for receiving a reply brief has passed, the case is circulated to the Justices and placed on a conference list, for consideration at one of the Justices’ private Friday conferences. Copies of conference lists are available to news reporters for their convenience ONLY, and not for publication. Cases appearing on a conference list may reasonably be expected to appear on the following Monday’s Order List (the announcement of dispositions in pending cases) although this is not always the case. If a case does not appear, it will be relisted for consideration at a future conference. If the petition is granted, the petitioner has 45 days within which to file a brief on the merits, and the respondent has 35 days within which to file the brief in response, for a total of about 80 days. The petitioner may then file a reply brief up to one week prior to the date oral argument has been scheduled.  

The City of Ann Arbor’s Response Brief, if any, looks like it will be due on September 3, 2019. We will have the official date from the Supreme Court shortly. The Plaintiffs’ Reply Brief will be filed no later than September 13, so its reasonable to expect the Petition will be circulated to the nine Justices the week of September 16, 2019.

Irvin Mermelstein