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February 07, 2005

It Takes a Real Man

I've been waiting for tonight's City Commission meeting for an apology from our City Attorney, and two other commissioners, for the debacle over the brick building lawsuit. The joke was that it would take a real man to apologize to Commissioner Melichar and to Jeff Nixon (and so the expectation was that one would not be forthcoming). Jeff Nixon's lawsuit, and Commissioner Melichar's advocacy of saving the brick building, was deemed not frivolous, and so the city did not win its counterclaim for expenses.

Wouldn't you know it? The two commissioners who insisted the City countersue Mr. Nixon are absent from tonight's meeting. As is another commissioner who agreed this would be appropriate.

More than the lawsuit, it would seem an apology in public would be appropriate after the meeting during which Commissioner Melichar was accused of all kinds of misbehavior in connection with the city's pursuit of expenses. And in the press.

Posted by Gadflygirl at February 7, 2005 07:19 PM


Perhaps in private life you are annoying, but I hardly think the long stream of drearily predictable "TC opposition" talking points qualifies you as a gadfly. HL Mencken was a gadfly. IF Stone was a gadfly. I have read gadflies, madam, and you are not one of them.

But anyhow, I wonder if you've ever considered Jeff Nixon's series of legal manuevers to be a strategic lawsuit to thwart the public will.

Anyone that lives in Traverse City knows damn right well where public sentiment lies on this issue. If we were to go through the time and expense of a public vote, you'd lose. If you don't know that either you don't live in Traverse City or you don't experience quite the same reality as the rest of us.

The purpose of the lawsuit isn't to get a public vote, though. It's to cause trouble.

Initially the idea was to cause enough trouble to get the city to agree to let the building stand. Now, since I doubt the appeals court will grant an injunction on demolition, it's just to cause trouble.

It may well be that tearing the building down is stupid. But, that is what democracy is about--sometimes the people want to do something stupid. They still get to do it.

On the other hand, I don't really see what we need the building for anyhow--it isn't attractive like the Bankside power plant in Londong that Jeff Nixon rather humorously compares ours to our modest heap.

(The Bayside Power Plant was designed by Sir Giles Gilbert Scott, also designer of the famous red British telephone booth. I wonder who designed ours?)

Anyhow, it's Jeff Nixon and his supporters who are slapping down the public with their grand dreams of a bayside building that would . . . do what? Serve as public restrooms? Be a significant draw on our city's finances? What precisely is the need for the building again? What civic events are going without buildings to happen in?

Posted by: Gadflypaper at February 16, 2005 01:05 PM

Response to Gadflypaper:

I love to be addressed as "madam."

But sir, if you read any of the entries regarding the brick building, you would know that I could not care less about whether the brick building stands or falls. My concern has been what I consider (and apparently so do others) a SLAPP action on the part of the city, which has cast a net involving others who have no bone to pick over the brick building. Talk about causing trouble and thwarting the public.

You would also have read that my belief is: had the issue gone before the voters, Jeff Nixon would have lost. There would not have been three appeals (and now four)and several temporary halts to the demolition. And tens of thousands pursuing this action.

Other concerns have much to do with public meetings during which elected officials have been accused of lying or withholding information in a legal deposition. This is pretty serious, don't you think? If not true, a clarification, if not an apology, should have been made in public ... same as the accusation.

I quit thinking about the demise of the brick building long ago, and altogether the day Judge Powers, in response to the city's SLAPP, deemd Nixon's actions not frivolous.

Posted by: Gadflygirl at February 19, 2005 01:23 PM

Well, not frivolous perhaps, but case dismissed pretty much out of hand.

I just don't beleive we need a referendum on every single issue that comes before our elected representatives. That's why they are there: to represent us so that we don't have ot vote on every single issue.

And you don't address the core issue here: aren't lawsuits like Nixon's (now on appeal) every bit as pernicious as your alleged SLAPPs? Isn't litigious obstructionism just as bad when practiced by interest groups as by municipalities?

"Not frivolous" is not a great vindication in a lawsuit. It means you pass bare minimum muster. (And by the way, the vindication wouldn't extend to Ann Melichar, anyway: she had nothing to do with whether the suit was frivolous or not.)

I don't think Jeff Nixon deserves an apology. A sound thrashing might come closer, but we live in a civilized society.

I think rather than apologizing to Mr. Nixon we might all lament his lack of judgement, taste and his inability to discern his egotism from public spiritedness.

Posted by: gadflypaper at February 21, 2005 04:39 PM

Response to Gadflypaper

I don't think we need a referendum on everything either, but on this issue, there was a question whether the city charter required a public vote on the teardown of the building. True? Jeff Nixon and his attorney believed it to be so. And if true, there would be nothing obstructionist about it.

I don't know Jeff Nixon, and have never filed a lawsuit. I have to believe, however, that filing a lawsuit such as Nixon's is such a huge gamble (of money, time, reputation … affecting lifestyle, home life, career), that he must not have taken the action lightly.

There were two occasions when Nixon offered to withdraw his lawsuit; the first time in a public meeting where he asked that the brick building be open for public viewing. Instead, the city chose to pursue him, piling up more and more costs.

I agree Nixon is not owed an apology … he took a big chance, spent a lot of money, and if I were Nixon, would now move on.

If I didn't make it clear (I am, after all, not H. L. Mencken, I. F. Stone, nor Ida Tarbell), the apology is owed to Anne Melichar. The meeting I refer to is the one in which she was essentially accused of "withholding" in a legal deposition connected with this city's countersuit. In public. Seems libelous.

Posted by: Gadflygirl at February 21, 2005 07:44 PM

From the initial salvo here:

"The joke was that it would take a real man to apologize to Commissioner Melichar and to Jeff Nixon."

On Nixon's lawsuit: his willingness to give up on it is, to me, a pretty strong indication that he knew he couldn't win and that the suit was basically a strategem to force his pet project down our throats by whatever means he had on hand. The suit wasn't frivolous, but, remember, he lost without the case having progressed very far at all.

On Melichar: There is a problem with being on both sides of a lawsuit: it is an adversarial process. Apparently enough commissioners thought that Melichar was privvy to both sides of the suit. So they asked that she not be involved in their side of the legal strategizing.

Was this belief justified? I don't know, but I really don't think Melichar has been particularly forthcoming about it.

She was not a "member" of Save TC Building, but Save TC Building is not a membership group. I think if she came clean with a full public statement about the nature and extent of her involvement with Nixon and the lawsuit, both directly and through intermediaries, then I think we might have a basis to demand an apology from the comissioners.

Are the commissioners a bit "over-cautious" on this point? Maybe . . . even probably. Was Melichar out of line, irresponsible, out to hurt the city if she couldn't get her way? Open question as far as I can see.

Posted by: gadflypaper at February 22, 2005 10:19 AM


Well, since this is a journal really, (and amateur, don't forget), I remember a discussion with friends over the previous weekend where we wondered aloud if any apologies would be uttered at the Monday meeting. To Jeff Nixon? No way! I did believe Anne Melichar deserved an apology for the treatment she received at the hands of the city attorney. Perhaps it is right she should not have been allowed to participate in the settlement strategy … but why not call her ahead of time to discuss this rather than the inappropriate and unprofessional public "fight?"

Back to SLAPPs … please bear in mind that in response to the Nixon lawsuit, a couple of the commissioners sought the advice of counsel in counter-suing not only to retrieve expenses, but "to teach a lesson." So rather than resolving the issue legally, the city's countersuit had all the earmarks of a SLAPP. If I were an attorney, I would have advised against it. It cost the city a lot of money for a $61 award. Maybe the apologies are owed to the taxpayers of TC.

In the meantime, aside from what is going on in Acme, Elmwood, and Manistee, there were two other cases where the city was sued: one involved the placement of the new BATA station (motives here were questionable … I know traffic congestion, bus fumes were talked about, but so was the "caliber" of passengers), and the other involved local residents caught unaware one day when a power pole went up in their neighborhood. The city won both cases (although I do not know if the cases were actually "won" or settled). Were the businesses and property owners obstructionists? Should they have been "taught a lesson?"

I'd be interested in your opinion, and will let you have the last word, since you must be as blue in the face as I am.

Posted by: gadflygirl at February 24, 2005 01:02 PM

Personally, I wish the court system was much less involved in the public decision-making process than it is.

The lawsuits we're talking about (where a government bosy sues for costs) seems to me to be the natural outgrowth of the obstructionist lawsuit.

Are there vengeful motives behind some of them, or all of them. I'd imagine yes.

But if you think about the city and the public utilities as institutions which always are goring someone's ox (that being the nature of public business), then the discouragement of lawsuits generally (increasing the costs of bringing suits) is natural.

If bringing suits to stop governmental activity becomes too easy, then such suits will proliferate, the governmental bodies will spend more and more to defend their decisions in court, more and more activities will be delayed by injunctions and all of this will have considerable costs to taxpayers--both direct costs and opportunity costs.

My take on *some* of these suits is that they are a natural and inevitable response by governmental bodies to raise the cost of lawsuits.

Would I have pursued costs against Nixon? No, for the simple reason that the case *wasn't* frivolous, as the judge said there were some legit questions involved in the suit, but they were legit questions that Nixon could have settled himself with a little research, and I think he and his lawyer did just that even before they filed. My take is that they were hoping for a charitable (mis)interpretation of the law from the first judge that would have put them in a position to get a longer injunction and possibly negotiate a favorable settlement with the city while the case was on appeal.

It's this sort of courtroom manuevering that has poisoned the process, and I think we need to start strangling off the recourse to the courts as a means of trumping public decision-making. The courts won't do it because it is in the interest of judicaial institutions to let themselves be the final arbiter of everything.

So, I suppose I am philosophically as opposed to "SLAPPs" as you are, but I tend to see them in the context of a system that has already brought the courts far too much into the center of public policy making.

Posted by: gadflypaper at February 26, 2005 10:49 AM

i read the discourse and found it to be quite engaging. you both seem to be educated and logical thinkers. i think you have found an even match on this one. the volley back and forth is a good game and i would like to see you take up other subjects as well.

Posted by: marloumer at February 27, 2005 08:18 PM

Now I know why I won't ever host a blog---way too much work keeping up withe the responses! I love discussions like this that start out as disagreements and as both sides hears each other out and gets to say their piece, come to some kind of concensus--the system works!

I'd like to hear more about how to make representative government work in a democratic society. Minority rights vs. Majority rule, Common Good vs. Individual Rights, etc. Everything that causes conflict in America ends up in the courts---it's as natural as apple pie, because the contradictions in our system of elections, commissions, committees and courts will always lead to lawsuits. Everyone hates the lawyers until they need one or feel that their rights have been denied.

Posted by: Brian D. McCall at March 12, 2005 02:33 PM

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