More than three years ago, I began voicing objections at my bi-monthly city council meetings to a Consent Decree entered into by my hometown of Allen Park (along with a dozen other downriver communities) agreeing to spend nearly a quarter of a billion dollars to design and build a new storm drain system to comply with the order of federal Judge John Feikens.
It seems that on those two or three occasions a year that we get a lot of rain in a short time, the water treatment plant is overwhelmed by the combined volume of both normal wastewater and excessive rainwater. To avoid having raw sewage back up into people’s homes when that happens, the rainwater is temporarily shunted directly into the Detroit river.
Now, this may seem quite sensible; obvious, even. However, because the rainwater picks up the chemical byproducts of our very mobile society as it makes its way off the streets, into the storm, drains and down to the river, on a few stormy days every year our downriver communities exceed federal EPA limits on how many “parts-per-million” of this or that are permitted to enter the Great Lakes watershed. The supposition is that this poses harm to those who live downstream.
Of course, raw sewage in your basement is no theoretical harm. And I maintained that the traditional approach to handling these exceptional conditions is the rational one. A quarter billion dollar upgrade of our storm drain system, I suggested, is a sledgehammer solution to a thumbtack problem. We had far more pressing needs.
And in any case, the design of a local drainage system is not the province of the federal government in the first place. Further, even if the good people of Cleveland or Buffalo or somewhere else along the way to the Atlantic could show actual rather than hypothetical damages, a judge cannot unilaterally impose a new tax without putting it to a vote of the people. Under the 1978 Headlee Amendment, such an order would violate our state constitution.
I regularly waxed eloquent at city council meetings on the point that while there were numerous instances in which the “Supremacy Clause” of our national constitution had been taken much farther than the drafters could have ever imagined in their worst nightmares, surely stretching it to the point where a federal administrative rule can trump a state’s constitution has to be beyond the breaking point.
I even threatened to assert in court my right not to be handed my “fair share” of the enormous bill for this boondoggle without ever having been afforded the opportunity to vote on the question.
Everyone on the council, the mayor, our city engineer and city attorneys looked at me as if I were speaking in Martian.
It seemed obvious to everyone in the room but me that the property tax increase was not subject to referendum per Headlee. This one, I was lectured by our city attorney, was being imposed to satisfy a judgment. And that, of course, a federal judge could order our city to do anything he deemed appropriate to force us to comply with federal regulations.
Now comes word that a class action lawsuit has been brought on behalf of the residents in six of the communities affected by the “Super Sewer” scheme, challenging the financing plan in the Consent Decree as — surprise! — a violation of the Headlee Amendment.
It turns out that the Federal Rules of Civil Procedure include the provision: “The execution of any judgment shall be governed by the laws of the state in which the federal district court sits.”
There is a 1995 Illinois case called Perkins v. City of Chicago Heights in which the court held: “While parties can settle their litigation with consent decrees, they cannot agree to disregard valid state laws, and cannot consent to do something together that they lack the power to do individually.”
And there is a 1997 ruling in the Michigan case American Axle & Manufacturing Inc. v. City of Hamtramck that says: “Defendants, in levying the judgment tax, are required to comply with the dictates of the Headlee Amendment and submit the proposed tax increase to a vote of the people.”
It also turns out that back in 1994 my own city officials had agreed to a clause in the Consent Decree wherein they “assured this Court that none of them will hereafter object to the proposed treatment of such Judgment Payments as being in excess of charter, statutory or constitutional limitations.”
In other words while acting as though they didn’t have a clue what I was talking about with regard to Headlee restrictions on this tax increase, they had already explicitly promised the court not to assert those very rights!
Fortunately, the cities that entered into this agreement are simply municipal corporations. As such they do not have the authority to waive the constitutional rights of their citizens. Thus, the whole thing will be back in court again on Monday. Though, unless someone has a sudden burst of common sense, the issue will only be finally resolved on appeal.
There is for me an ironic epilogue to this story.
It turns out my house does not even connect into the downriver system I’m being tagged $108 a year to upgrade. The wastewater of the northern third of Allen Park — where I live — is processed through the Detroit water treatment plant.
Now you might think I could go into court and petition on behalf of myself and the rest of us living in the unaffected portion of the city to be exempted from this property tax increase on that basis alone. You’d be wrong.
Judge Feikens has issued another order enjoining “the parties and their citizens from instituting, appearing in or carrying on any litigation or any administrative proceeding in any court, tribunal or administrative agency which would have the effect of preventing or delaying compliance with the 1994 Financing Plan and Final Judgement,” completely barring our access to any forum at all to redress this grievance.
I seem to recall having been taught from my earliest school days that our republic was founded on the idea that there are limits to all power. Checks and balances, remember? They say even the Lord took six days to create the world. But then, God isn’t a federal judge.
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More on constitutional law:
- Term limits redux
- The court of public policy
- Selling us a sales tax bill of goods (add 6%)
- In memoriam: The Bill of Rights
- Keep your government even closer
- No census con
- Drunk with power
- Freedom of speech
- Highway robbery in the dead of night
- Term limits — A baby step in the right direction
- Honoring Headlee
- Prohibition — No nobler the second time around
