Judge keeps Green on council
Second court date set for December
Macomb County Circuit Court Judge Julie Gatti issued a preliminary and permanent injunction Monday that will keep Warren City Council President Patrick Green securely in his seat amid a recent challenge to his council tenure.
The challenge came from Gary Boike, who finished third in the Nov. 2019 Warren City Council at-large election. The top two vote getters earned seats on the council. Boike contends that because Green served two full four-year terms and a little over a year of a third term previous to being elected in 2019, that his current term should end Nov. 14, 2022 and not in Nov. 2023.
The Warren City Council filed a complaint against Mayor James Fouts Nov. 15 after the mayor vetoed a city council resolution approved at a Nov. 10 special meeting authorizing legal action in response to Boike’s challenge “should the need arise.” In the veto, Fouts indicated that according to the city charter, Green would not be paid or receive city benefits past Nov. 14.
Judge Gatti said filings from attorneys on both sides of the lawsuit as well as attorneys for intervenors Boike and Warren City Attorney Ethan Vinson have been “fast and furious” over the past week and she wants ample time to
study the issue before making a decision.
“I’m not ready to make a decision on something that I just received this morning in the middle of my docket,” said Gatti.
The permanent injunction prevents Fouts or anyone in the city administration from interfering with Green’s term on the city council.
The next court date for summary disposition is scheduled for Dec. 12 at 10 a.m.
Green and his attorneys Jeffrey Schroder and Michael Weaver of Plunkett Cooney law firm said the judge’s issuance of the injunction is a big win for
Green and the city council.
“Absolutely we see this as a win,” said Green. “We are pleased with the decision of the court and like everything else, the law and the plain language of the charter prevails.”
The Warren City Charter states: A person shall not be eligible to hold the position of mayor, city council, city clerk or city treasurer for more than the greater of three complete terms or twelve 12 years in that office.
John Dolan and Tim Tomlinson of York, Dolan & Tomlinson PC, the attorneys representing Fouts, and Lawrence Garcia of Miller Canfield, who represents Boike and Vinson, argued that the intent of the charter amendment is to set a hard 12-year limit on city council terms. To allow Green to remain in office for another year, Tomlinson argued, would allow any elected official who is term-limited to resign during their final term, then run for re-election.
“Very simply, a council person could run for more than 12 years by continually resigning prior to the end of their third term, re-filing and re-running again in contradiction of what this provision was,” said Tomlinson. “You’re relying upon the good will of candidates to honor the rules, but we know that doesn’t always happen.”
Judge Gatti said she thought Tomlinson and Garcia were ignoring the charter language that says “the greater of” three complete terms and that she thought voters were smart enough not to vote for a candidate that resigned only to try and circumvent term limits.
“I hear your argument about an untoward candidate who could circumvent that, but I don’t want to deal with that,” said Gatti. “You like to say plain language, but it says the greater of 12 years or three terms and your argument ignores that language.”
Tomlinson also argued that Fouts should not be named in the lawsuit because it is not he but Boike who is challenging Green’s tenure. Weaver said the wording in Fouts’ veto and the swearing in of Boike as a city council person on Nov. 15 prove that he is involved with attempting to oust Green from his seat, even if he is not the one who wrote the letter challenging Green’s tenure.
“It shows the mayor is involved with this and is trying to stay in power much longer than he should,” said Weaver. “Doesn’t the public have the right to have the people they voted for stay in office?”
Gatti said she was concerned that removing Green would disenfranchise Warren voters.
Green received 27.9% of the votes in Nov. 2019; Angela Rogensues received 25.7% followed by Boike with 23.5% and Diane Young with 22.9%.
Weaver noted that Fouts was not present in the courtroom Tuesday but that his “henchmen” were, a statement to which Garcia objected.
Green sat on one side of the courtroom by himself; Boike, Vinson, councilmen Eddie Kabacinski and Ron Papandrea and assistant city attorney Cecil St. Pierre all sat scattered on the other side of the courtroom.
Boike declined to comment on Monday’s decision.
Fouts contends that he should not be part of the litigation and that it is a disagreement between Boike and Green regarding the interpretation of the city charter. That aspect of the case is to be discussed at the Dec. 12 hearing. The mayor declined to comment further on Gatti’s decision regarding the injunction.
A post on the Warren City Council Facebook page said Fouts and Vinson attempted an “illegal council coup” and that the court put a stop to it.