Appeals court reinstates lawsuit against supervisor
Activist attorney accused supervisor of violating state’s Open Meetings Act
The state Court of Appeals has reinstated a lawsuit by an activist attorney accusing the Macomb Township supervisor of illegally throwing him out of a township board meeting during an exchange related to former trustee Dino Bucci.
A panel of appeals judges in a 3- 0 ruling last month reversed a Macomb County judge in the lawsuit filed by attorney Frank Cusumano against township Supervisor Janet Dunn, who removed him from a
September 2018 Board of Trustees meeting.
Cusumano, a township resident, accuses Dunn of violating the state Open Meetings Act with his removal.
The judges wrote in a 9-page opinion the standard for removal is a “breach of peace” by a chair person of a meeting.
“A genuine issue of material fact exists whether plaintif f committed a breach of peace at the meeting,” the judges say.
The judges say Macomb Circuit Judge Edward Servitto’s granting of Dunn’s summary disposition motion in July 2019 was “based upon ( his) incorrect conclusion that plaintiff’s indecorum warranted his explusion” from the meeting.
The judges note Cusumano “calmly attempted to clarify what he considered incorrect in defendant’s charactization of his quo warranto lawsuit against Bucci.”
“Reasonable minds my differ on whether plaintiff committed a breach of the peace,” the judges say.
Cusumano was ordered removed by Dunn after she had addressed him during the “Supervisor’s Comments” agenda item regarding Cusumano’s filing of a quo warranto legal action to remove Bucci, who had been indicted 10 months earlier on federal
corruption charges but remained on the board and failed to attend meetings.
Dunn read a letter by Bucci’s attorney, Fred Gibson, requesting the board pay for an attorney for Bucci in the quo warranto action. Dunn told Cusumano, who was sitting in the audience: “So, thank you, Mr. Cusumano, you probably have cost us another few thousand dollars.”
Cusumano rose from his seat and as he walked to the lecturn in the audience area, asked for permission to speak.
“Sit down, your time to speak is over,” Dunn said.
Cusumano, a one-time attorney for ousted Macomb County Clerk Karen Spranger, who was removed by a quo warranto action, responded: “I want to state that that is untrue. He’s not named in his official capacity. No. 2, Karen Spranger also …” but was cut off by Dunn.
Cusumano, as he started to walk back to his seat, said, “I just wish that this board would act appropriate and professionally.”
Dunn struck the gavel and said, “That’s enough,” and told a Sheriff’s deputy at the meeting, “Deputy, would you please remove this man.”
Cusumano asked her to explain her legal basis to remove him but she waved her arm, the judges say.
The deputy gestured for him to leave, and Cusumano complied.
Based on prior cases, a breach of peace as “seriously disruptive conduct involving abusive, disorderly, dangerous, aggressive or provocative speech and behaviors tending to threaten or incite violence,” the judges wrote.
Under state law, such behavior “goes well beyond behavior accepted in civil society,” according to the opinion.
Dunn’s attorney argued Cusumano violated board “rules or policy,” according to the opinion.
But the judges note “the board has never formally adopted rules governing the manner in which its meetings were to be conducted,” and failed to establish rules to limit public comment.
The judges say it cannot opine whether Dunn violated the Open Meetings Act because Servitto did not rule on that.
“If the jury determines the plaintiff did not breach the peace at the board meeting, then it must decide whether defendant intentionally violated the Open Meetings Act,” the judges wrote.
An intentional violation of the OMA is liable for exemplary damages of up to $500 plus court costs and attorney fees for the complainant.
The case has already been scheduled for a Nov. 5 pretrial andNov. 10 trial, according to circuit court records.
Dunn’s term expires this year as she is not running for re-election.
Bucci was indicted on 18 counts of conspiracy, bribery, embezzlement, exortion, mail fraud and money laundering related to contracts with the township and Macomb County Department of Public Works, where Bucci was a top official.
He resigned in November 2018, making the quo warranto action moot.
Bucci in June pleaded guilty to bribery, theft and conspiracy to commit extortion charges. He admitted extorting hundreds of thousands of dollars from developers and engineering firms by pressuring themto purchase tickets to fundraisers for his former boss, former county Public Works commissioner Anthony Marrocco, and conspiring with contractor Christopher Sorrentino to steal $96,000 from the township in a kickback scheme.
He is scheduled to be sentenced Jan. 19 in U.S. District Court.
Marrocco was indicted June 1, the day before Bucci pleaded guilty, on charges of conspiracy to commit extortion, two counts of extortion and one count of attempted extortion. A status conference in his case is set for Dec. 10.
About two dozen people have been charged in the widespread, several-year investigation by the FBI and U. S. attorneys into public corruption centered in Macomb County.
The judges say Macomb Circuit Judge Edward Servitto’s granting of Dunn’s summary disposition motion in July 2019 was “basedupon (his) incorrect conclusion that plaintiff’s in decor um warranted his explusion” fromthemeeting.