by Tim O'Brien
June 1998

 

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 Belleville, Brownstown, Dearborn Heights, Ecorse, Lincoln Park, River Rouge, Riverview, Romulus, Southgate, Taylor, Van Buren, and Wyandotte) agreeing to spend nearly a quarter of a billion dollars to design and build a new storm drain system for the downriver area 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 shunted directly into the Detroit river.

 

Now, this may seem quite sensible; obvious, even. However, because the rainwater picks up various and sundry chemical byproducts of our very mobile society as it makes its way off the streets into the storm drains and down to the river, it means that a few stormy days every year our downriver communities go out of compliance with federal EPA limits on how many "parts-per-million" of this or that are permitted to enter the Great Lakes watershed -- on the theory that such excessive amounts of same might be harmful 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, that a quarter billion dollar upgrade of our storm drain system is a sledgehammer solution to a flyspeck problem when we had far more immediate needs, that the design of local drainage is none of the federal government's business in the first place and that, even if it were a federal concern (i.e., assuming 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 in any event since, under the 1978 Headlee Amendment, such would violate our state constitution.

 

I regularly waxed eloquent at my 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 under Headlee 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 (except me) that the property tax increase was not a Headlee-limited tax increase but rather an exceptional one necessary to satisfy a judgement, 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 in fact a class action lawsuit has been brought on behalf of the residents of 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. (The exceptions are Romulus and Brownstown which are about to be added, Belleville and Dearborn Heights from which plaintiff/citizens have yet to come forward, and Van Buren, Wyandotte and Riverview -- all of which complied with the Final Judgement without violating Headlee, apparently not an impossibility after all.)

 

It turns out that a part of the Federal Rules of Civil Procedure says: "The execution of any judgement 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 that says: "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 Michigan case called American Axle & Manufacturing Inc. v. City of Hamtramck that says: "Defendants, in levying the judgement 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 my city officials had in 1994 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 Judgement 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 only municipal corporations and as such 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 an ironic postscript for me in this whole situation. 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 inequity.

 

We were taught from our 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.

 

Tim O'Brien is the Executive Director of the Libertarian Party of Michigan.