Birmingham faces lawsuit, accused of violating constitutional rights

By: Tiffany Esshaki | Birmingham - Bloomfield Eagle | Published July 29, 2019

BIRMINGHAM — Just ahead of an already contentious vote on a multimillion-dollar development proposal, tensions climbed even higher as two residents filed suit against the city of Birmingham, alleging violations to the U.S. Constitution and the Michigan Open Meetings Act.

Clinton Baller and David Bloom, both of Birmingham, filed the complaint July 22 against the city and, specifically, Mayor Patty Bordman and City Attorney Tim Currier, stating that their right to free speech had been violated during the public comment portion of the City Commission’s July 8 meeting.

Both are civic activists, Bloom with Birmingham Citizens for Responsible Government and Baller with Balance 4 Birmingham, a citizen group advocating against the passage of next week’s Birmingham North Old Woodward, or N.O.W., proposal. The $54.7 million bond would fund the replacement of the N.O.W. parking structure, located at 333 N. Old Woodward Ave.; extend Bates Street out to Woodward Avenue; and lay the groundwork for further mixed-use development at the site.

During that July 8 meeting, Baller and Bloom said, they attempted to “raise new findings and concerns relating to the N.O.W. project” during the public comment portion of the meeting but were stopped by Bordman and Currier.

“Immediately following his midsentence reference to the ‘new parking deck on Old Woodward,’ at only 25 seconds into his speaking time, Plaintiff Bloom was then interrupted by Defendant Bordman exclaiming, ‘All right. You have to stop,’” the complaint reads.

Video of the meeting can be found on the city’s website, and Bordman stopped Bloom at the reported time, followed by comments from Currier explaining the interruption.

“The city of Birmingham has a contract with the Birmingham Area Cable Board for community television, which prohibits political speech at this time,” Currier said. “We’re here to educate, not advocate.”

At that time, Baller approached the microphone and responded to the commission, “Everything you do here is political. This is a First Amendment issue.”

Currier used the same reasoning moments later when Baller attempted to ask the board who had produced, edited and laid out a Birmingham N.O.W. fact sheet that was mailed to homes in the weeks prior. Currier said a city employee had done all of the work on the mailer.

Baller lamented the city’s fact sheet — designed in a truth-versus-fact format — and as Currier went to stop him, Baller was unmoved.

“I don’t care,” he said. “You know what, you’re not going to kick me out right now. You have characterized legitimate opinions of residents as myth. If you want to cut off the TV, go ahead.”

The suit states that the city violated Baller and Bloom’s First Amendment right to free speech and their right to address a meeting of a public body under the Michigan Open Meetings Act.

Just a week before the squabble, Baller had made a complaint about the mailing with the Michigan Department of State’s Bureau of Elections, stating that the city had used taxpayer resources to create materials advocating for a yes vote on Birmingham N.O.W.

The Michigan Campaign Finance Act dictates that government bodies must keep a neutral position in election matters in order to ensure a fair and unbiased vote of the constituency. Baller’s complaint was dismissed: The bureau noted that the mailing contained no language to specifically recommend passage of the bond.

Shortly after, resident Jay Shell filed a campaign election complaint of his own with the Bureau of Elections against Baller, stating that Balance 4 Birmingham had failed to properly disclose the group’s funding for its own campaign materials. The bureau agreed with Shell and cited Baller for the offense. He was given a warning.

“I never would have thought this could happen in Birmingham,” Baller said in an email about his lawsuit. “We’re educated. We’re affluent. But apparently we have a few people in City Hall who think it’s OK to trample on our constitutional rights.”

Bordman and Birmingham Communication Director Kevin Byrnes both declined to comment on the suit, citing the city’s policy not to speak about pending litigation.

Currier could not be reached for comment before press time.

Representing Baller and Bloom in the suit is attorney Matthew Erard and American Civil Liberties Union counsel Bonsitu Kitaba-Gavigilo. The plaintiffs are asking for acknowledgement of the violations, as well as “nominal damages” and other further relief the court deems appropriate.

“The city and its developers are so intent on getting their bond issue approved that officials are willing to shamefully shut down their own residents to avoid criticism,” Baller said in an email to the Eagle. “When viewed in combination with the vast amount of money being spent on deceptive advertising by the developers, you have to ask some serious questions.”

He said he hopes Birmingham residents will vote against the N.O.W. proposal.