Motion To Dismiss

2:17-cv-11742-MAG-DRG Doc # 32 Filed 06/15/17 Pg 1 of 39 Pg ID 844
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT DAVIS and

D. ETTA WILCOXON,
Plaintiffs, Case No. 17-cv-11742
-v.- Hon. Mark A. Goldsmith
DETROIT DOWNTOWN DEVELOPMENT

AUTHORITY, DETROIT BROWNFIELD
REDEVELOPMENT AUTHORITY,
DETROIT CITY COUNCIL,
ERIC SABREE, in his official capacity as the
duly elected Wayne County Treasurer,
CHRISTA MCCLELLAN, in her official
capacity as Treasurer of the City of Detroit,
MIKE DUGGAN, in his official capacity as the
Chair of the Downtown Development
Authority Board of Directors, and
THOMAS LEWAND, in his official capacity
as stand-in Chair of the Downtown
Development Authority Board of Directors,
Defendants.
Andrew A. Paterson (P18690) David H. Fink (P28235)

Attorney for Plaintiffs Darryl Bressack (P67820)
2893 E. Eisenhower Pkwy Nathan J. Fink (P75185)
Ann Abor, MI 48108 FINK + ASSOCIATES LAW
Aap43@hotmail.com Attorneys for Detroit Downtown
Development Authority and Detroit
Jeffrey M. Sangster (P30791) Brownfield Redevelopment Authority
R. Edward Boucher (P57251) 38500 Woodward Ave., Ste. 350
Dennis K. Egan (P29116) Bloomfield Hills, MI 48304
KOTZ SANGSTER WYSOCKI P.C. Tel.: (248) 971-2500
Attorneys for Detroit Downtown dfink@finkandassociateslaw.com
Development Authority and Detroit dbressack@finkandassociateslaw.com
Brownfield Redevelopment Authority nfink@finkandassociateslaw.com
400 Renaissance Center, Suite 3400
i
Detroit, MI 48243 Charles N. Raimi (P29746)

Tel.: (313) 259-8300 James D. Noseda (P52563)
jsangster@kotzsangster.com CITY OF DETROIT, LAW DEPT.
rboucher@kotzsangster.com Attorneys for Detroit City Council
degan@kotzsangster.com and Christa McClellan
2 Woodward Ave., Suite 500
Detroit, MI 48226
(313) 237-5037
raimic@detroitmi.gov
nosej@detroitmi.gov
MOTION TO DISMISS ON BEHALF OF

DETROIT DOWNTOWN DEVELOPMENT AUTHORITY,
DETROIT BROWNFIELD REDEVELOPMENT AUTHORITY,
DETROIT CITY COUNCIL AND CHRISTA MCCLELLAN
Defendants, the City of Detroit Downtown Development Authority (the
DDA), the City of Detroit Brownfield Redevelopment Authority (the BRA) (the
TIF Defendants), the Detroit City Council (Council) and Christa McClellan
(collectively, the Moving Defendants) respectfully move to dismiss Plaintiffs
First Amended Complaint (FAC) pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6).
The undersigned counsel certifies that counsel communicated in writing with
opposing counsel, explaining the nature of the relief to be sought by way of this
motion and seeking concurrence in the relief; opposing counsel thereafter expressly
denied concurrence.
ii
Undersigned counsel further certifies that counsel sought a conference with
opposing counsel to further explain the nature of the relief to be sought by way of
this motion. Opposing counsel stated he was not available for the conference.
WHEREFORE, for the reasons specified in the attached Brief in Support, the
Moving Defendants respectfully request that this Court enter an order dismissing
Plaintiffs First Amended Complaint in its entirety, with prejudice.
Respectfully submitted,
CITY OF DETROIT, LAW DEPT. FINK + ASSOCIATES LAW
By: /s/ Charles N. Raimi (w/ consent) By: /s/ David H. Fink
Charles N. Raimi (P29746) David H. Fink (P28235)
James D. Noseda (P52563) Darryl Bressack (P67820)
Attorneys for Detroit City Council and Nathan J. Fink (P75185)
Christa McClellan Attorneys for Detroit Downtown
2 Woodward Ave., Suite 500 Development Authority and Detroit
Detroit, MI 48226 Brownfield Redevelopment Authority
Tel: (313) 237-5037 38500 Woodward Ave., Ste. 350
raimic@detroitmi.gov Bloomfield Hills, MI 48304
nosej@detroitmi.gov Tel: (248) 971-2500
dfink@finkandassociateslaw.com
KOTZ SANGSTER WYSOCKI P.C. dbressack@finkandassociateslaw.com
Jeffrey M. Sangster (P30791) nfink@finkandassociateslaw.com
R. Edward Boucher (P57251)
Dennis K. Egan (P29116)
Attorneys for Detroit Downtown
Brownfield Redevelopment Authority
Detroit, MI 48243
Tel: (313) 259-8300
jsangster@kotzsangster.com
degan@kotzsangster.com
rboucher@kotzsangster.com
iii
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT DAVIS and
D. ETTA WILCOXON,
Case No. 17-cv-11742
Plaintiffs,
Hon. Mark A. Goldsmith
-v.-
DETROIT DOWNTOWN DEVELOPMENT

AUTHORITY, DETROIT BROWNFIELD
REDEVELOPMENT AUTHORITY,
DETROIT CITY COUNCIL,
ERIC SABREE, in his official capacity as the
duly elected Wayne County Treasurer,
CHRISTA MCCLELLAN, in her official
capacity as Treasurer of the City of Detroit,
MIKE DUGGAN, in his official capacity as the
Chair of the Downtown Development
Authority Board of Directors, and
THOMAS LEWAND, in his official capacity
as stand-in Chair of the Downtown
Development Authority Board of Directors,
Defendants.
Andrew A. Paterson (P18690) David H. Fink (P28235)

Attorney for Plaintiffs Darryl Bressack (P67820)
2893 E. Eisenhower Pkwy Nathan J. Fink (P75185)
Ann Abor, MI 48108 FINK + ASSOCIATES LAW
Aap43@hotmail.com Attorneys for Detroit Downtown
Jeffrey M. Sangster (P30791) Brownfield Redevelopment Authority
R. Edward Boucher (P57251) 38500 Woodward Ave., Ste. 350
Dennis K. Egan (P29116) Bloomfield Hills, MI 48304
KOTZ SANGSTER WYSOCKI P.C. Tel: (248) 971-2500
Attorneys for Detroit Downtown dfink@finkandassociateslaw.com
Development Authority and Detroit dbressack@finkandassociateslaw.com
Brownfield Redevelopment Authority nfink@finkandassociateslaw.com
i
400 Renaissance Center, Suite 3400 Charles N. Raimi (P29746)

Detroit, MI 48243 James D. Noseda (P52563)
Tel.: (313) 259-8300 CITY OF DETROIT, LAW DEPT.
jsangster@kotzsangster.com Attorneys for Detroit City Council
degan@kotzsangster.com and Christa McClellan
rboucher@kotzsangster.com 2 Woodward Ave., Suite 500
Detroit, MI 48226
(313) 237-5037
raimic@detroitmi.gov
nosej@detroitmi.gov
MOTION TO DISMISS ON BEHALF OF

DETROIT DOWNTOWN DEVELOPMENT AUTHORITY,
DETROIT BROWNFIELD REDEVELOPMENT AUTHORITY,
DETROIT CITY COUNCIL AND CHRISTA MCCLELLAN
ii
TABLE OF CONTENTS
INDEX OF AUTHORITIES..................................................................................... II
STATEMENT OF THE ISSUES PRESENTED .................................................... VI
MOST CONTROLLING OR APPROPRIATE AUTHORITIES ........................VIII
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................2
I. STANDARD OF REVIEW .............................................................................2
II. IN COUNTS I IV PLAINTIFFS FAIL TO STATE
A CLAIM FOR A VIOLATION OF THEIR RIGHT TO VOTE ..................3
III. IN COUNTS I IV, PLAINTIFFS FAIL TO STATE A CLAIM
REGARDING CAPTURE OF TAX INCREMENT REVENUE ...................5
A. Plaintiffs Voting Right Claims are Brought
Against the Wrong Parties for the Wrong Relief .........................................7
B. Plaintiffs Arguments Relating to TIR Require
New Language to Be Read into the Statutes ................................................8
C. Plaintiffs Arguments Relating to TIR Capture Fail Because
they Violate Michigan Rules of Statutory Construction ............................10
IV. COUNT V DOES NOT STATE A CLAIM REGARDING FOIA ..............15
V. COUNTS I V, VII AND VIII MUST BE DISMISSED
BECAUSE PLAINTIFFS DO NOT HAVE STANDING ............................17
VI. COUNTS IX AND X DO NOT STATE RICO CLAIMS ............................19
VII.COUNTS I IV AND VIII ARE BARRED BY LACHES
AND THE BIGGER DOCTRINE .............................................................21
CONCLUSION AND RELIEF REQUESTED .......................................................25
i
INDEX OF AUTHORITIES
Cases
Anderson v. Collins, No. 2:96-CV-269, 1998 WL 1031496

(E.D. Ky. July 14, 1998), aff'd, 191 F.3d 451 (6th Cir. 1999) .............................20
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)..........................................................................................3
Bigger v. City of Pontiac, 390 Mich. 1; 210 N.W.2d 1 (1973) ........................ 21, 22
Brown-Graves Co. v. Cent. States, Se. & Sw. Areas Pension Fund,
206 F.3d 680 (6th Cir. 2000) ................................................................................21
Bylinski v. City of Allen Park, 8 F. Supp. 2d 965 (E.D. Mich. 1998),

affd, 169 F.3d 1001 (6th Cir. 1999) ....................................................................22
Call v. Watts, 142 F.3d 432 (6th Cir. 1998).............................................................20
City of S. Haven v. Van Buren Cty. Bd. of Comm'rs,

478 Mich. 518; 734 N.W.2d 533 (2007) ..............................................................14
Davis v. Highland Park Bd. of Educ., No. 315002,

2014 WL 3705083 (Mich. Ct. App. July 24, 2014) ...............................................2
Davis v. Robert, No. 15-CV-12076,

2016 WL 1084683 (E.D. Mich. Mar. 21, 2016)...................................................16
Directv Inc. v. Treesh, 487 F.3d 471 (6th Cir. 2007) ................................................3
Egerer v. Woodland Realty, Inc., 556 F.3d 415 (6th Cir. 2009) .............................22
Gregory v. Shelby County, 220 F.3d 433 (6th Cir. 2000)). .......................................3
Hafer v. Melo, 502 U.S. 21; 112 S. Ct. 358 116 L. Ed. 2d 301 (1991) ...................20
Haynes v. Marshall, 887 F.2d 700 (6th Cir. 1989) ...................................................18
Hunter v. Hamilton Cnty. Bd. of Elections,

850 F. Supp. 2d 795 (S.D. Ohio 2012) .................................................................17
In re Contempt of United Stationers Supply Co.,

239 Mich. App. 496; 608 N.W.2d 105 (2000) .....................................................21
ii
Kendall v. Balcerzak, 650 F.3d 515 (4th Cir. 2011) ..................................................4
Langs v. City of Pontiac, 96 Mich. App. 639; 293 N.W.2d 659 (1980)..................22
Lansing Sch. Educ. Ass'n v. Lansing Bd. of Educ.,

487 Mich. 349; 792 N.W.2d 686 (2010) ..............................................................18
League of United Latin Am. Citizens v. Bredesen,

500 F.3d 523 (6th Cir. 2007) ..................................................................................3
League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008).............4
Mefaj v. IndyMac FSB, 2015 WL 2343812 (E.D. Mich. May 14, 2015) ................16
Murphy v. Michigan Bell Tel. Co., 447 Mich. 93; 523 N.W.2d 310 (1994) ...........10
Northeast Ohio Coalition for Homeless v. Husted,

696 F.3d 580 (6th Cir. 2012) ..................................................................................5
People v Rahilly, 247 Mich. App. 108; 635 N.W.2d 227 (2001) ............................11
People v. Knox, 115 Mich App 508; 321 NW2d 713 (1982) ..................................11
People v. Lewis, 302 Mich. App. 338; 839 N.W.2d 37 (2013) ...............................11
Pontiac Police & Fire Retiree Prefunded Grp. Health & Ins. Trust Bd.
of Trustees v. Pontiac No. 2, 309 Mich. App. 611; 873 N.W.2d 783 (2015) ......18
Range v. Douglas, 763 F.3d 573 (6th Cir. 2014) .......................................................5
RileyJackson v. Ocwen Loan Servicing,

2013 WL 5676827 (E.D. Mich. Oct. 18, 2013)....................................................16
Ruth v. Unifund CCR Partners, 604 F.3d 908 (6th Cir. 2010) ................................22
Steinberg v. Fed. Home Loan Mortg. Corp.,

901 F. Supp. 2d 945 (E.D. Mich. 2012) ...............................................................21
Taxpayers United for Assessment Cuts v. Austin,

994 F.2d 291 (6th Cir. 1993) ..................................................................................4
Vill. of Holly v. Holly Twp., 267 Mich. App. 461; 705 N.W.2d 532 (2005) ...... 9, 18
Walker v. Gen. Tel. Co., 25 F. Appx 332 (6th Cir. 2001) ........................................3
iii
Walker v. Michigan Pub. Serv. Comm'n,

24 F. Supp. 2d 803 (W.D. Mich. 1998), aff'd, 201 F.3d 442 (6th Cir. 1999) ......18
Walled Lake Consol. Sch. Dist. v. Charter Twp. of Commerce,

174 Mich. App. 434; 437 N.W.2d 16 (1989) .......................................................22
Ward v. Alt. Health Delivery Sys., 261 F.3d 624 (6th Cir. 2001) ..............................3
White v. Highland Park Election Comm.,

312 Mich. App. 571; 878 N.W.2d 491 (2015) .....................................................19
Statutes
1994 PA 280 (1994 amendment to DDA Act) ..........................................................9
2012 PA 396 (2012 amendment to DDA Act) ..........................................................9
2013 PA 66 (2013 amendment to DDA Act) ............................................................9
2013 PA 67 (2013 amendment to BRA Act ..............................................................9
26 C.F.R. 1.150-2 ..................................................................................................20
42 U.S.C. 1983 ........................................................................................................4
Brownfield Redevelopment Financing Act, MCL 125.261 et. seq. ............. passim
Downtown Development Authority Act MCL 125.1651 et. seq. ................. passim
Freedom of Information Act, MCL 15.231 et. seq. ................................. 15, 16, 17
General Property Tax Act, MCL 211.1 et. seq. ............................................ passim
Internal Revenue Code .............................................................................................20
Revised School Code, MCL 380.1 et. seq. .............................................................5
Other Authorities
1991-1992 Mich. Op. Att'y Gen. 60 (1991)...............................................................8
2014 Mich. Op. Atty Gen. No. 7280 (Dec. 10, 2014) ....................................... 9, 14
Const. 1963, art 9, ll ..............................................................................................10
iv
Const. 1963, art. 9, 23 .............................................................................. 15, 16, 17
In re Request for Advisory Opinion on Constitutionality of

1986 PA 281, 430 Mich. 93; 422 N.W.2d 186 (1988) .................................. 13, 15
Rules
Fed. R. Civ. P. 12(b)(1)..............................................................................................3
Fed. R. Civ. P. 12(b)(6).................................................................................... passim
Fed. R. Civ. P. 56 .....................................................................................................18
v
STATEMENT OF THE ISSUES PRESENTED
Should Counts I IV be dismissed due to Plaintiffs failure to state valid
constitutional equal protection or due process claims?
Moving Defendants Answer: Yes
Should Counts I IV be dismissed because they fail to state claims under
Michigan law?
Should Count V be dismissed due to Plaintiffs failure to assert a valid
constitutional claim relating to the denial of a FOIA request pursuant to the
litigation exemption?
Should Counts I - V, VII and VIII be dismissed because Plaintiffs lack
standing to pursue the claims?
vi
Should Counts IX and X be dismissed because Plaintiffs fail to state valid
RICO claims?
Should Counts IV, VI, VIII and X be dismissed because they are not causes
of action, but, instead, are remedies to which Plaintiffs will not be entitled?
Should Counts I IV and VIII be dismissed because the claims are barred
under federal and state laches doctrines and by the related Bigger doctrine?
vii
MOST CONTROLLING OR APPROPRIATE AUTHORITIES
Cases
Anderson v. Collins, No. 2:96-CV-269, 1998 WL 1031496 (E.D. Ky. July 14,
1998), affd, 191 F.3d 451 (6th Cir. 1999)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)
Bigger v. City of Pontiac, 390 Mich. 1; 210 N.W.2d 1 (1973
In re Request for Advisory Opinion on Constitutionality of 1986 PA 281, 430 Mich.

93; 422 N.W.2d 186 (1988)
Lansing Sch. Educ. Ass'n v. Lansing Bd. of Educ., 487 Mich. 349; 792 N.W.2d 686
(2010
Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014)
Vill. of Holly v. Holly Twp., 267 Mich. App. 461; 705 N.W.2d 532 (2005)
Statutes
Brownfield Redevelopment Financing Act, MCL 125.261 et. seq.
Downtown Development Authority Act MCL 125.1651 et. seq.
General Property Tax Act (GPTA) MCL 211.1 et. seq.
Freedom of Information Act, MCL 15.231 et. seq.
42 U.S.C. 1983
Rules
Fed. R. Civ. P. 12(b)(6)
viii
INTRODUCTION
After emerging from bankruptcy, the City of Detroit is writing a remarkable
comeback story. One of the most exciting chapters in the Citys rebirth is the
imminent completion of a new state of the art arena for the Red Wings, with
accompanying retail, office and residential development and the anticipation of the
Pistons returning to Detroit after a 40 year hiatus. This miracle has been made
possible by hard work, determination and the use of every available development
and financing tool. The DDA and the BRA have played a key role, by providing
financing through bonds backed by tax increment financing. But, while this major
development effort unfolded in public meetings, and the local press reported every
detail, Plaintiffs sat back, waiting until the last possible moment to attack.
Robert Davis and D. Etta Wilcoxon come to this court with a package of
frivolous claims, timed to cause the greatest possible risk to the Citys delicate
recovery. This should not be a surprise. Mr. Davis has a well-documented history of
abusive litigation tactics, in this court and elsewhere. Davis and his counsel have
made a game of filing frivolous lawsuits, without respectful consideration of the law,
the facts or the resultant waste of taxpayer money. In referring to a filing by Davis
and his counsel, one court stated no one exercising good judgment would do that
1
[n]o lawyer that I know would do that except you. (Exhibit 1). Due to this
repeated behavior, Davis and his attorney have both been sanctioned.1
The claims in this action are no less frivolous than many of Daviss other suits.
In Counts I to IV, Plaintiffs do not come close to stating a due process or equal
protection claim, nor do they state valid claims under Michigan law. In Count V,
Plaintiffs falsely assert that a FOIA exemption can be construed as a violation of the
Michigan Constitution, a claim which Mr. Davis has tried unsuccessfully to bring
before this Court in the past. Counts I-IV, VII and VIII fail because Plaintiffs lack
standing to pursue them. Finally, the RICO claims in Counts IX and X, carelessly
filed against governmental entities, are patently absurd. The only place in the Federal
Rules of Civil Procedure where any of these claims could have been contemplated
is Rule 11.
ARGUMENT
I. STANDARD OF REVIEW
When reviewing a motion to dismiss under Rule 12(b)(6), a court must
construe the complaint in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in favor of the plaintiff.
See, e.g., Davis v. Highland Park Bd. of Educ., No. 315002, 2014 WL
1
3705083, at *5 (Mich. Ct. App. July 24, 2014) (affirming award of attorney fees
against Davis for filing of frivolous lawsuit, but reversing trial courts decision not
to sanction Daviss counsel).
2
Directv Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). But the court need not
accept as true legal conclusions or unwarranted factual inferences. Id. (quoting
Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). [A] plaintiff's
obligation to provide the grounds of his entitle[ment] to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007) (citation omitted). To state a valid claim, a complaint must
contain either direct or inferential allegations respecting all the material elements to
sustain recovery under some viable legal theory. League of United Latin Am.
Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citing Twombly at 1969).2
II. IN COUNTS I IV PLAINTIFFS FAIL TO STATE A CLAIM

FOR A VIOLATION OF THEIR RIGHT TO VOTE
Plaintiffs do not claim they have been denied the right to cast a ballot. Indeed,
Mr. Davis claims to have voted, unencumbered, on the Parks millage and Ms.
Wilcoxon admits to voting on the DPS proposal. See FAC 31 and 71. Neither
Plaintiff claims to have been treated differently than other citizens in exercising the
right to vote. Instead, Plaintiffs make the specious claim that their constitutional right
A motion to dismiss for lack of standing is properly analyzed under Rule

2
12(b)(1). Ward v. Alt. Health Delivery Sys., 261 F.3d 624, 626 (6th Cir. 2001)
(citations omitted). See also Walker v. Gen. Tel. Co., 25 F. Appx 332, 333 (6th Cir.
2001) (affirming the district courts dismissal of pursuant to Rule 12(b)(1) pursuant
to Michigan state law).
3
to vote was infringed because the ballot proposals did not contain language that was
purportedly required by the General Property Tax Act (GPTA) MCL 211.1 et.
seq. See FAC at 50, 64-65, 92, 96-98. These claims are postured as arising under
42 U.S.C. 1983. Plaintiffs also allege that their voting rights were violated because
they were not permitted to vote in favor of millage assessments that they supported
while simultaneously voting against allowing tax increment financing authorities to
capture a portion of that revenue. See, e.g., FAC 65.
Voting rights claims may be brought pursuant to 42 U.S.C. 1983. But, the
right is the equal protection right to have ones vote counted on equal terms with
others. League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 476 (6th Cir.
2008). Further, our form of government is not a plebiscite where voters are entitled
to vote on each and every matter that affects their daily lives. There is no
fundamental right to vote on a particular policy question. See Kendall v.
Balcerzak, 650 F.3d 515 (4th Cir. 2011) (holding that the right of referenda does not
implicate the right to vote); see also Taxpayers United for Assessment Cuts v. Austin,
994 F.2d 291, 295 (6th Cir. 1993) (the Constitution does not require a state to have
any sort of ballot-initiative procedure). Because Plaintiffs do not have a fundamental
right to compel a particular issue to be put to a vote, and allege that they successfully
voted on the ballot questions that were submitted to the voters, Counts I and II of the
FAC must be dismissed.
4
Wilcoxons substantive due process claim (Count III) also fails. Substantive
due process ensures freedom from government actions that shock the
conscience. Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014) (citation
omitted). The Due Process Clause protects against extraordinary voting restrictions
that render the voting system fundamentally unfair. Northeast Ohio Coalition for
Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012). The FAC does not (and cannot)
allege voting irregularities or voter disenfranchisement in connection with the 2012
election, much less problems with voting that are so egregious as to shock the
conscience or render the entire voting system fundamentally unfair. Plaintiffs
allege, wrongly, that capture of tax increment revenue violates a state statute. See,
e.g., FAC at 40, 45. Setting aside their lack of merit, those allegations do not
implicate voter disenfranchisement, do not shock the conscience, and are not so
outrageously arbitrary as to constitute a gross abuse of governmental authority.
III. IN COUNTS I IV, PLAINTIFFS FAIL TO STATE A CLAIM

REGARDING CAPTURE OF TAX INCREMENT REVENUE
Counts I-IV should also be dismissed because they are wrongly bootstrapped
to a faulty legal theory that capture of tax increment revenue from the DPS and
Parks millages violates the GPTAs requirement that a ballot disclose each unit of
government to which revenue may be disbursed. See, e.g., FAC at 48-53, 74-84.3
3
Although Plaintiffs refer to the Revised School Code (RSC), the statute is
silent as to ballot language. See, e.g., FAC at 118. As attenuated as Plaintiffs
5
This dispute with respect to Michigan law need not be reviewed from a blank
slate. The Michigan Supreme Court, other courts throughout the State, and Michigan
Attorneys General have repeatedly affirmed the statutes at issue here. This is not a
close call. Tax increment finance authorities (TIFs), such as the DDA and the
BRA, must capture tax increment revenue from the levy of all non-excluded taxing
jurisdictions, irrespective of the language of the ballot proposal authorizing the levy.
An analysis of tax increment financing is useful. A Downtown Development
Authority (DDA) is created, among other things to halt property value
deterioration and to promote economic growth. (MCL 125.1653(1)) (DDA
Act). Similarly, a Brownfield Redevelopment Authority (BRA) is created to
remediate blight. MCL 125.2651, preamble (BRA Act). TIFs, such as the DDA
and the BRA, are generally defined to include any governmental entity that is
funded, at least in part, by tax increment revenue (TIR). TIR is the amount of ad
valorem property taxes and specific local taxes attributable to the application of the
levy of all taxing jurisdictions upon the captured assessed value of real and
personal property in the TIF district. (MCL 125.1651; MCL 125.2652).
arguments are with respect to the GPTA, there is no way the RSC could be
interpreted as requiring specific ballot language. Viewing their claim in the light
most favorable to them (an exercise that is quite difficult, given the utter lack of
merit of the claims), Plaintiffs are claiming they were harmed when some money
collected under the DPS millage was captured. At best, this is a challenge to the use
of the revenue, not a voting issue; as all applicable law makes clear, Plaintiffs cannot
challenge the Michigan Legislatures decisions on how to allocate tax revenue.
6
Captured assessed value is the amount in any one year by which the current
assessed value of the taxable property in the TIF district exceeds the initial assessed
value. (Id.). The underlying concept is that the local taxing jurisdiction does not
lose revenue, it continues to collect taxes from the initial assessed values.
Meanwhile, the TIF receives the additional revenue from the increase in property
value resulting from the authoritys activities.
A. Plaintiffs Voting Right Claims are Brought Against the Wrong

Parties for the Wrong Relief
Plaintiffs voting right claims arise from their assertion that the GPTA
requires every millage ballot proposal to identify each TIF that may capture TIR.
See, e.g., FAC at 64, 96. If Plaintiffs were correct they are not the proper
defendants would be the taxing units that proposed the millage, not the TIF
Defendants, who have no control over the ballot language. Under the GPTA, the
government entity requesting a millage ballot proposal is also the entity responsible
for submitting the question to voters. MCL 211.24f (If a taxing unit submits a
proposal imposing a new millage, or increasing or renewing an existing millage
.). TIFs have nothing to do with the ballot language.
This means, of course, that if Plaintiffs were correct, the remedy would not be
disallowing capture (because Michigan law requires the capture); instead, the
remedy would be to set aside the entire millage.
7
The TIF side of the statutory equation is that the TIF Defendants are required
by statute to capture TIR from all non-excluded millages in the district, irrespective
of the ballot language authorizing the levies. The TIF Acts both state that the
municipal and county treasurers shall transmit TIR to the (TIF) authority and that
they shall expend the tax increment revenues according to their approved plans.
MCL 125.1665 and MCL 125.2666 (emphases added). 4
Plaintiffs demand for relief directly contrary to statutory mandates against
parties who have no control over the challenged ballot language is inequitable and
not grounded in logic or in any known legal precedent.5
B. Plaintiffs Arguments Relating to TIR Require New Language

to Be Read into the Statutes
Plaintiffs essentially ask the Court to add the following language to the TIF
Acts: Tax increment revenue does not include any revenue that is attributable to a
ballot proposal which did not specifically identify the authority as one potential
4
See 1991-1992 Mich. Op. Att'y Gen. 60 (1991) (Michigan Attorney General
Opinion stating the Legislature has plainly commanded that the tax levy of all
taxing bodies on the captured assessed value is to be transmitted to the authority
[without] statutory exceptions for special millage levies approved by the voters for
limited purposes. There is simply no basis in the text of the statutory provisions in
question to determine that these specially voted millages are exempt from capture
under these statutes.)
5
It is common for millage proposals throughout the state not to reference
capture. If Plaintiffs were correct, numerous municipalities and related entities
throughout Michigan would face imminent default on untold millions in bonds.
8
recipient of the taxes to be levied. But, the Michigan Legislature has never
incorporated any such exception to tax capture.6
The fact that this exclusion is not found in the TIF Acts can only be interpreted
as intentional. See, e.g., Vill. of Holly v. Holly Twp., 267 Mich. App. 461, 478; 705
N.W.2d 532 (2005). The Legislature clearly knows how to exclude millages from
tax increment financing; it has done so numerous times. For example, in 2013, the
Legislature made the policy decision to exclude zoo and art authority millages from
tax increment financing. See 2013 PA 66 (amendment to DDA Act) and 2013 PA 67
(amendment to BRA Act). Similarly, at various times, the Legislature has chosen to
explicitly exclude school operating millages from TIF capture. See 1994 PA 280 (in
which the Legislature amended the DDA Act to limit the value-added capture of
school taxes to amounts required to pay eligible advances).7
6
In Wayne County alone there are approximately 50 TIFs. See
https://www.michigan.gov/documents/treasury/82MuniCodeAC_226299_7.pdf.
Identifying each authority and their proposed use of the TIR would cause each ballot
proposal to become unworkably long (and costly). The primary purpose of the
millage would become completely lost to the voter in violation of the requirement
that ballot proposals have a clear statement of purpose and not be confusing. MCL
211.24f.
7
In 2012, the Legislature amended the DDA Act to allow capture of school
taxes for a catalyst development project. 2012 PA 396. The Michigan Attorney
General confirmed that the 2012 amendment was constitutionally sound because the
State Constitution does not prohibit the Legislature from subsequently determining
that State education tax revenues may be subject to capture and enacting legislation
to authorize the capture. Such a conclusion would require reading additional words
into art 9, 11. 2014 Mich. Op. Atty Gen. No. 7280 (Dec. 10, 2014). The
9
Based upon this prior history of TIF-related legislation, there is no question
that the Legislature was well-aware that TIFs throughout the State have continuously
captured TIR from millages with ballots that did not identify the capture. If the
Legislature wanted to exclude capture of those taxes it would have done so; it has
repeatedly demonstrated its ability to create exceptions where warranted. Neither
Plaintiffs nor the courts are empowered to substitute their policy perspective for that
of the Legislature.8
C. Plaintiffs Arguments Relating to TIR Capture Violate

Michigan Rules of Statutory Construction
Plaintiffs make the fundamental error of failing to reconcile the language of
the GPTA with the TIF Acts, specifically, the legislative distinction between the
word disburse in the GPTA and the word transmit in the TIF Acts. The cardinal
rule of statutory construction is to discern and give effect to the intent of the
Legislature. Murphy v. Michigan Bell Tel. Co., 447 Mich. 93, 98; 523 N.W.2d 310
(1994) (citation omitted). Moreover, statutes that relate to the same matter or share
amendment does not result in an unconstitutional diversion of funds from the State
School Aid Fund established by Const 1963, art. 9, ll. Id. at *4.
8
If Plaintiffs strained interpretation of these statutes were correct, a taxing
unit could exempt its taxes from capture simply by drafting ballot language that does
not reference the TIFs. This would allow taxing units to violate the TIF Acts, by
excluding TIR from capture outside of the narrow statutory limitations. See MCL
125.1651 and MCL 125.2652. Furthermore, under Plaintiffs statutory analysis, a
new authority could not capture taxes unless and until the voters approve new or
renewed millages with the ballot language demanded by Plaintiffs. Of course, no
such delay has ever been required of a new TIF in Michigan.
10
a common purpose are considered in pari materia and should be read together as a
whole. People v. Lewis, 302 Mich. App. 338, 342-343; 839 N.W.2d 37 (2013). Each
statute should be given full effect where that is possible without repugnancy,
absurdity, or unreasonableness. People v Rahilly, 247 Mich. App. 108, 118; 635
N.W.2d 227 (2001) (internal citations omitted). Similarly, where a statute can be
construed as consistent or inconsistent with other statutory provisions the courts
should construe the provisions as consistent with one another. People v. Knox, 115
Mich App 508, 513; 321 NW2d 713 (1982).
The TIF Acts and the GPTA are in pari materia because they govern the
allocation of ad valorem taxes. When the GPTA is reconciled with the TIF Acts,
using the applicable rules of construction, there is also no genuine dispute that both
ballot proposals fully identified the taxing jurisdictions to whom revenue from the
millage would be disbursed for purposes of the levy. First, the GPTA requires a
clear statement of the purpose and disclosure of each local unit of government to
which the revenue from that millage will be disbursed. 24f(2)(d) and 24f(1)
respectively. The ballot proposals here inarguably met the first prong - the clear
statement of purpose of the DPS millage renewal was identified as allowing the
continuance of a levy for general operating purposes (Dkt. No. 8-3); the clear
statement of purpose of the Parks millage renewal was: to continue to improve and
operate several parks and related facilities and other improvements to municipal
11
parks in the 43 communities (Dkt. No. 8-4). These statements were accurate the
DPS millage was levied for the identified school operating purposes while the Parks
millage was levied for the identified parks purposes.
Second, the DDA Act states that the municipal and county treasurers shall
transmit to the authority tax increment revenues, while the BRA Act states
treasurers shall transmit tax increment revenues to the authority. MCL 125.1665
and MCL 125.2666. Transmit was chosen in the TIF Acts and disburse was
chosen for the GPTA because the Legislature was drawing a distinction between
capture of TIR and disbursement of revenue. Disburse is to pay out: expend
especially from a fund. Merriam Webster, 2017. Transmit is to send or convey
from one person or place to another: forward. Id. Thus, when the GPTA uses
disburse it is describing an expenditure, a pay-out, of revenue to a local unit of
government. Conversely, when the TIF Acts use transmit, they are referring to the
conveyance of tax increment revenue that is treated as never having been part of the
transmitting treasurers fund, because it is revenue created by the TIF.9 That money
is simply conveyed to the only entity entitled to it.
9
The intent of the Legislature to distinguish between these two actions is
further demonstrated by the fact that the TIF Acts themselves draw the same
distinction internally. When money received by a TIF is required to be spent for
certain purposes, the TIF Acts say that the money is subject to disbursement or
expenditure; when money is to be conveyed to the authority it is subject to
transmittal. See MCL 125.1665 and 125.1661 (Compare [t]he municipal and
county treasurers shall transmit to the authority tax increment revenues with [t]he
12
The Michigan Supreme Court and Attorneys General have explained the
legislative reasoning underpinning the distinction between the statutes (and therefore
the constitutionality of the statutes). In In re Request for Advisory Opinion on
Constitutionality of 1986 PA 281, 430 Mich. 93, 10102; 422 N.W.2d 186 (1988)
(the Advisory Opinion), the Supreme Court held that because a TIF is capturing
tax revenues attributable to the increased value that is assumed to result from the
development plan, tax increment financing has no effect on the total amount of
general ad valorem taxes imposed. Funds are not being distributed, or paid, from
a fund they are being transmitted from one place to another. The funds were created
by the TIF, so the affected taxing unit never had ownership of the funds or any right
to expend them. Thus, a TIF is not taking money that would otherwise belong to the
other taxing unit, it is receiving the money created by increases in land values and
assessments in the project area which are caused by the redevelopment authority's
own construction of economic activity in the district. See Advisory Opinion at 101-
02. The principles underlying tax increment financing were described by the
Michigan Attorney General in a 2014 opinion on the constitutionality of diverting
revenue from a school millage to a TIF:10
authority shall expend the tax increment revenues and [m]oney received by the
authority and not covered under subsection (1) shall immediately be deposited to the
credit of the authority, subject to disbursement pursuant to this act.)
10
The Opinion was rendered with respect to the Detroit DDAs capture of
revenue from the DPS Millage for the Catalyst Development Project.
13
The history of the DDA Act demonstrates that increased school taxes
are subject to capture under certain circumstances. This capture occurs
before the State education tax is transferred to the School Aid Fund or
other school taxes are transferred to local or intermediate school
districts. No money is thus transferred out of the School Aid Fund for
DDA projects, including the Detroit Events Center. Rather, pursuant to
the statutory framework of the DDA Act, those captured school taxes
were never dedicated to the School Aid Fund or local or intermediate
school districts. Indeed, pursuant to the Detroit DDA's TIF Plan, it has
for decades captured incremental tax revenues to finance certain
previous economic development projects.
2014 Mich. Op. Atty Gen. No. 7280 (Dec. 10, 2014).
Plaintiffs claim that City of S. Haven v. Van Buren Cty. Bd. of Comm'rs, 478
Mich. 518; 734 N.W.2d 533 (2007) stands for the proposition that voter approval
is required for spending tax revenue for a different purpose than that previously
approved by the electorate. Dkt. No. 8 at 26; see also FAC at 51, 84. That arises
from dicta in which the court relies on the GPTA requirement that a millage proposal
must state [a] clear statement of the purpose for the millage. Id. at 52627 (see
Cavanagh, J. reference to dicta at p. 535). In South Haven, the court was analyzing
the use of revenue for a purpose forbidden by statute. The unsurprising conclusion:
millage revenue cannot be used for a purpose forbidden by statute. Here, in contrast,
the statutes expressly require the money to be used in exactly the manner that
Defendants have used it. Thus, the GPTA must be read in pari materia with the TIF
Acts; the transmittal of captured TIR does not need to be identified on a ballot.
14
The voters got exactly what they voted for renewal of the DPS millage and
renewal of the Parks millage. Those entities will receive exactly what the voters
approved in the millage elections disbursement of the millage revenue raised. And,
the TIFs will get exactly what Michigan citizens agreed to provide them via policy
decisions made by their elected representatives the receipt of tax increment
revenue created by higher assessments made possible by development stimulated by
the investments of those TIFs.11
IV. COUNT V DOES NOT STATE A CLAIM REGARDING FOIA
In Count V of the FAC, Plaintiff Davis attempts to turn a garden-variety FOIA
denial into a federal constitutional claim. As alleged, Davis sent, via electronic
mail, a request to the Defendant DDA requesting a copy of the DDAs proposed
Amended TIF Plan. FAC 128. His request was denied pursuant to the pending
litigation exemption. FAC 129, and see MCL 15.243 (1)(v). There is no dispute
as to whether the exemption applies. It appears, however, that Davis is arguing that
all FOIA exemptions are unconstitutional as they supposedly run afoul of the
property interest in public documents that he claims to have under Art. 9, 23 of
11
Additionally, the Legislature is free to alter the purposes for which tax
revenues are expended. Advisory Opinion at 115. This means that the Legislature
can decide whether taxes raised under a particular millage may be used for another
purpose. Id. at 194-96 (concluding that TIF Acts are not violative of the Michigan
Constitution because the Legislature is not prohibited from allowing the value-added
capture of revenue from a school millage to be used for purposes of a TIF Act.) Id.
15
the Michigan Constitution. (All financial records, accountings, audit reports and
other reports of public moneys shall be public records and open to inspection.).12
Davis is conflating the language of the FOIA statute, which provides for the
ability to inspect, copy, or receive (MCL 15.233(1)) with Art. 9, 23s
requirement for public records to be made available for inspection. (emphases
added). FOIA permits someone to receive a copy of a public document (unless an
exemption applies) while Art. 9, 23 only gives the citizenry at large the ability to
inspect public records; not the right to a copy as Davis requested. There is no
dispute that the DDAs financial records, accountings, audit reports and other
reports of public moneys, are open to inspection. That is all that is required.13
Further, this is not the first time Davis, and his counsel, Andrew Paterson,
have brought this very issue to this Court. In Davis v. Robert, No. 15-CV-12076,
2016 WL 1084683 (E.D. Mich. Mar. 21, 2016), this court addressed Daviss
allegation that his procedural due process rights were violated also pursuant to Art.
12
Four counts in the FAC are requests for remedies, not causes of action:
Count IV (request for permanent injunction); Count VI (for costs and attorney fees);
and, Count VIII (mandamus compelling a refund) Count X (request for treble
damages). See, e.g., RileyJackson v. Ocwen Loan Servicing, 2013 WL 5676827, at
*5 (E.D. Mich. Oct. 18, 2013) (Rosen, C.J.) A plaintiff cannot advance a request for
remedy without a legally cognizable underlying substantive cause of action. See
Mefaj v. IndyMac FSB, 2015 WL 2343812, at *3 (E.D. Mich. May 14, 2015). Here,
Plaintiffs claims are devoid of merit and cannot entitle them to the requested
remedies. These counts are subject to dismissal with the rest of the lawsuit.
13
It should be noted that the document at issue is not a financial record,
accounting, audit report or other report of public money.
16
9, 23 when his FOIA request was denied pursuant to the exemption related to
prisoners. MCL 15.231(2) and 15.232(c). This Court denied Daviss request
(made in a Motion for Preliminary Injunction) finding that there was a minimal
likelihood of success on the merits. Davis at *2 - 3. The Court explained as follows:
Regarding Daviss [claim of property interest in the public documents],

Davis fails to appreciate that [the FOIA coordinator] is not the cause of
his alleged deprivation. It is the statute not her action that has
deprived him of access to the documents he seeks. Thus his attack is
not properly one for a procedural due process violation; the lack of
adequate process has caused him no harm. Hunter v. Hamilton Cnty.
Bd. of Elections, 850 F. Supp. 2d 795, 846-847 (S.D. Ohio 2012) (in
rejecting procedural due process claim, holding that the harm that
Plaintiffs allege is the direct result of the Ohio statutes in question, not
the lack of process, and explaining [i]t would be superfluous to order
notice and opportunity to be heard when state law prevents the
government from providing the relief the allegedly harmed individual
seeks).
Id. The Courts holding applies equally to the instant matter; it is the FOIA statute
not the DDAs actions which deprive Davis of copies of the documents he seeks.
He chose to pursue litigation, thus subjecting himself to the FOIA exemption.
V. COUNTS I V, VII AND VIII MUST BE DISMISSED BECAUSE

PLAINTIFFS DO NOT HAVE STANDING
Plaintiffs falsely allege that the Detroit City Council and the DDA did not
provide proper notice pursuant to the DDA Act of the Councils public hearing
17
regarding the Catalyst Development Project. FAC 149-161. The lack of merit to
the claim need not be addressed because Plaintiffs do not have standing to proceed.14
A federal court exercising jurisdiction over state law claims sits as a court of
the forum state and is bound to apply its substantive law. Haynes v. Marshall, 887
F.2d 700, 705 (6th Cir. 1989). This includes the state law applicable to standing. See
Walker v. Michigan Pub. Serv. Comm'n, 24 F. Supp. 2d 803, 806 (W.D. Mich. 1998),
aff'd, 201 F.3d 442 (6th Cir. 1999). Under Michigan law, a litigant who is contesting
governmental action, either directly or via declaratory relief, only has standing if
they have a special injury or right, or substantial interest, that will be detrimentally
affected in a manner different from the citizenry at large or if the statutory scheme
implies that the Legislature intended to confer standing on the litigant. Lansing Sch.
Educ. Ass'n v. Lansing Bd. of Educ., 487 Mich. 349, 372; 792 N.W.2d 686 (2010).15
Plaintiffs do not allege nor could they that they satisfy the requirement of
a special injury or right, or substantial interest, different from the citizenry at large.
14
Although this is not a Rule 56 Motion, it should be noted that Plaintiffs are
wrong. Proper notice was provided to each affected taxing unit. In fact, notice has
been provided in similar fashion, to essentially the same distribution group, since
2003. None of the taxing jurisdictions all of whom are subject to TIF capture
have ever claimed that they did not receive proper notice. Further, since the district
boundaries were not being amended the relevant notice was sent pursuant to 18 of
the DDA Act (notice of plan amendment), not 3 (notice of district boundary
amendment or creation). A taxing unit does not have the option of seeking to exempt
its taxes from capture in response to a 18 notice. See Holly 267 Mich. App. at 478.
15
See also Pontiac Police & Fire Retiree Prefunded Grp. Health & Ins. Trust
Bd. of Trustees v. Pontiac No. 2, 309 Mich. App. 611, 622; 873 N.W.2d 783 (2015).
18
They were impacted if at all in precisely the same manner as every other resident
of Wayne County. With respect to the second prong, the GPTA and DDA Act forbid
citizen standing. The DDA Act (like the BRA Act) confers exclusive standing to
[t]he state tax commission [which] may institute proceedings to compel
enforcement of th[e] act. MCL 125.1687. Similarly, the GPTA states that [t]he
attorney general and the prosecuting attorney of each county of this state have
concurrent power to enforce this act. MCL 211.120.16 Where a Michigan statute
confers standing to a particular government agency, that grant is deemed to exclude
citizen standing. See, e.g., White v. Highland Park Election Comm., 312 Mich. App.
571, 878 N.W.2d 491, 492 (2015).
VI. COUNTS IX AND X DO NOT STATE RICO CLAIMS
Plaintiffs assert a preposterous RICO claim, alleging that Mayor Duggan and
Tom Lewand, in their official capacities as Chairman and Alternate Chairman,
respectively, of the DDA, conspired with the DDA to finance the construction costs
of the new Little Caesars Arena without first obtaining approval from the electorate.
FAC 175. There are numerous reasons that the allegations fail as a matter of law
and fact many of which will surely be raised by the newly-named defendants if
16
In contrast, an affected taxing unit may have standing to assert claims
regarding notice, as they have a special right or a substantial interest distinct from
the public at large. Tellingly, the taxing units all of whom are well-aware of the
Catalyst Development Project and its funding have not challenged their notice.
19
necessary. But, the most basic reason that the claims fail is that government entities
and their employees acting in their official capacities are not subject to liability under
RICO. [G]overnmental entities [ ] cannot form the specific intent necessary to
commit the predicate offenses [of a RICO claim]. Anderson v. Collins, No. 2:96-
CV-269, 1998 WL 1031496, at *3 (E.D. Ky. July 14, 1998), affd, 191 F.3d 451 (6th
Cir. 1999). The same RICO bar applies to official capacity suits.17 See Call v.
Watts, 142 F.3d 432 (6th Cir. 1998) (Finding that a plaintiff cannot sue members
of [a governmental entity] in their official capacities [because government entities]
are not persons under RICO because they lack the capability to form the mens rea
requisite to the commission of the predicate acts.) (citations omitted).18
17
The real party in interest in an official-capacity suit is the governmental
entity and not the named official. Hafer v. Melo, 502 U.S. 21, 25; 112 S. Ct. 358
116 L. Ed. 2d 301 (1991).
18
Equally absurd is Plaintiffs allegation that the adoption of the Resolution
Declaring Bond Reimbursement Intent (the Reimbursement Resolution) was an
attempt to defraud the Internal Revenue Service because the DDA has not advanced
the costs associated with the Catalyst Development Project. The Reimbursement
Resolution was adopted by the DDA to comply with the reimbursement rules of 26
U.S.C. 150 of the Internal Revenue Code and 26 C.F.R. 1.150-2 of the United
States Treasury Regulations. It is a routine action regularly taken by bond issuers.
To qualify for reimbursement from tax exempt bond proceeds of project costs paid
for the Catalyst Development Project more than 60 days prior to the date of issuance
of the bonds, it was necessary for the DDA to express its official intent to finance
the project through this reimbursement resolution. As long as the reimbursed items
are eligible for financing under the DDA Act (which they are), it does not matter
that the developer initially advanced the funds.
20
VII. COUNTS I IV AND VIII ARE BARRED BY LACHES AND

THE BIGGER DOCTRINE
Laches will bar a plaintiffs claims if there is: (1) unreasonable delay in
asserting ones rights; and (2) a resulting prejudice to the defending party. Brown-
Graves Co. v. Cent. States, Se. & Sw. Areas Pension Fund, 206 F.3d 680, 684 (6th
Cir. 2000).19 In Michigan, the Bigger doctrine is a corollary to laches specific to
municipal financing cases. In Bigger v. City of Pontiac, the plaintiffs challenged
bond funding and agreements relating to the Silverdome. 390 Mich. 1, 3-4; 210
N.W.2d 1 (1973). With facts strikingly similar to the case at bar, the plaintiffs in
Bigger knew about financing plans, but waited four months to file suit, coming to
court just one month before the bonds were scheduled to be delivered. Id. at 4. The
Michigan Supreme Court refused to reward such gamesmanship, holding that in
municipal financing cases, if the plaintiff fails to resort to the courts without delay
(within the context of the time available for adjudication) the courts may refuse to
entertain the case. Id. at 5. Since that ruling, the Bigger doctrine has been applied
19
A court may consider a laches defense in addressing under FRCP 12(b)(6).
Steinberg v. Fed. Home Loan Mortg. Corp., 901 F. Supp. 2d 945, 948 (E.D. Mich.
2012) (citations omitted). The Court may consider the Complaint and any exhibits
attached thereto, public records, items appearing in the record of the case and
exhibits attached to the defendant's motion to dismiss so long as they are referred to
in the Complaint and central to the claims contained therein. Id. At 951. Here, the
publicly-available documentation of the capture, and when it commenced, are
central to, and referenced by implication in, the FAC. For example, Plaintiffs allege
that Defendants are attempting to capture and use revenue generated from the DPS
levy for purposes other than funding DPS. (FAC 35).
21
repeatedly to dismiss untimely complaints. See, e.g., Walled Lake Consol. Sch. Dist.
v. Charter Twp. of Commerce, 174 Mich. App. 434, 435-436, 438; 437 N.W.2d 16,
17 (1989) (the rule [elucidated in Bigger] was designed to deal with challenges
which could prevent or frustrate public improvements in general.).20
This lawsuit falls squarely within the Bigger doctrine. Plaintiffs delay in
filing the instant case was considerably longer than four months, because Plaintiffs
challenging the challenge capture of any TIR from the two millages at issue. See,
e.g., FAC at 40, 45, 50-51, 77, 84. Thus their claim first accrued when the TIF
Defendants began their (open and public) capture of tax increment revenue from the
millages. The capture from the millages began immediately after they passed;
because the proposals were for renewals, the capture also preceded the election.
There is no question that public records have provided notice of this since the very
first capture. As required by law, the tax increment financing, development plans
and financial reports of the authorities have been publicly available.21 See, e.g., 2013
20
See also Bylinski v. City of Allen Park, 8 F. Supp. 2d 965, 972 (E.D. Mich.
1998), affd, 169 F.3d 1001 (6th Cir. 1999) (in the financing of public projects by
municipalities, if objecting plaintiffs do not resort to the courts within the context of
the time available for adjudication and without delay, courts may refuse to hear the
cases.); Langs v. City of Pontiac, 96 Mich. App. 639; 293 N.W.2d 659 (1980).
21
When individuals have the means of discovery in their power, they
generally are held to have known it. Ruth v. Unifund CCR Partners, 604 F.3d 908,
911 (6th Cir. 2010) (citations omitted); see also Egerer v. Woodland Realty, Inc.,
556 F.3d 415, 424 (6th Cir. 2009) (the plaintiffs could have uncovered inflated title-
insurance fees by consulting publicly available filings).
22
Restated DDA Plan, attached as Exhibit 2. Here, because of the public interest in
this project, the TIR capture and funding methods supporting the revitalization of
this area, has been widely publicized. See, e.g., Exhibit 3, Compendium of Press
Reports; see also Exhibit 4, Catalyst Development Project Significant Public
Meetings/Approvals.
Wilcoxon waited more than four and a half years from the November 2012
DPS millage and Davis waited more than ten months from the August 2016 election
renewing the Parks millage. Plaintiffs timed their emergency filings in an apparent
effort to maximize potential harmful to the City and its residents. And, Moving
Defendants need not rely on an inference that Plaintiffs had constructive knowledge
of project plans. Six months ago, Davis, represented by the same attorney, filed a
lawsuit objecting to the manner of approval of the very project he complains of
today. He had actual knowledge then, but he waited until now to cry emergency.22
Plaintiffs delay threatens to cause massive harm to Defendants and to the City
of Detroit. The loss of tax increment financing at this critical moment could upend
the complex financial package supporting the Pistons move to Detroit, and the
resulting changes could cause the Pistons to reverse their plans. The loss of the
Pistons would cost Detroit millions of dollars in tax revenue and would threaten the
22
See Exhibit 5 (Verified Complaint from Robert Davis v. Detroit DDA et al,
Wayne County Circuit Court Case No. 16-017253-CZ).
23
burgeoning growth of the Citys entertainment district. Unrelated to the 2016
amendments to the project, an adverse ruling could cause a default on $250 million
in outstanding DDA bonds. Because the DDA is a component unit of the City, the
consequences of default would be devastating, threatening the ability of the City to
issue debt or, if debt can be issued, to obtain favorable pricing in the capital markets.
Post-bankruptcy, the City cannot expect lenders to extend unsecured credit at
reasonable rates, so its debt has been limited to secured transactions, tied to specific
revenue streams. The default on any of that debt would significantly affect the ability
of the City to attract investors. The City is currently engaged in a bond offering to
raise funds to rebuild neighborhoods. A default on DDAs debt would certainly
increase the costs and could possibly derail the plan completely. The attached
affidavit of Steven Kantor and the Declaration of F. Thomas Lewand, (Exhibits 6
and 7, respectively) confirm the harm that could befall the City due to Plaintiffs
strategic decision to delay filing. The delay is clear; the prejudice is profound. No
case cries out more clearly for the application of laches and the Bigger doctrine.
24
CONCLUSION AND RELIEF REQUESTED

For the reasons stated in their Motion and accompanying brief, the Moving
Defendants respectfully request that this Court grant their Motion to Dismiss and
dismiss Plaintiffs First Amended Complaint, in its entirety, with prejudice.
Respectfully submitted,
CITY OF DETROIT, LAW DEPT. FINK + ASSOCIATES LAW
By: /s/ Charles N. Raimi (w/ consent) By: /s/ David H. Fink
Charles N. Raimi (P29746) David H. Fink (P28235)
James D. Noseda (P52563) Darryl Bressack (P67820)
Attorneys for Detroit City Council and Nathan J. Fink (P75185)
Christa McClellan Attorneys for Detroit Downtown
2 Woodward Ave., Suite 500 Development Authority and Detroit
Detroit, MI 48226 Brownfield Redevelopment Authority
Tel: (313) 237-5037 38500 Woodward Ave., Ste. 350
raimic@detroitmi.gov Bloomfield Hills, MI 48304
nosej@detroitmi.gov Tel: (248) 971-2500
dfink@finkandassociateslaw.com
KOTZ SANGSTER WYSOCKI P.C. dbressack@finkandassociateslaw.com
Jeffrey M. Sangster (P30791) nfink@finkandassociateslaw.com
R. Edward Boucher (P57251)
Dennis K. Egan (P29116)
Attorneys for Detroit Downtown
Brownfield Redevelopment Authority
Detroit, MI 48243
Tel: (313) 259-8300
jsangster@kotzsangster.com
degan@kotzsangster.com
rboucher@kotzsangster.com
25
CERTIFICATION OF BRIEF REQUIREMENTS

I, David H. Fink, certify that this document complies with Local Rule 5.1(a),
including: double-spaced (except for quoted materials and footnotes); at least one-
inch margins on the top, sides, and bottom; consecutive page numbering; and type
size of all text and footnotes that is no smaller than 10-1/2 characters per inch (for
non-proportional fonts) or 14 point (for proportional fonts). I also certify that it is
the appropriate length. Local Rule 7.1(d)(3).
CERTIFICATE OF SERVICE
I hereby certify that on June 14, 2017, I electronically filed the foregoing
paper with the Clerk of the Court using the ECF system which will send such
notification to all ECF attorneys of record.
FINK + ASSOCIATES LAW
By: /s/ Darryl Bressack

Darryl Bressack (P67820)
38500 Woodward Ave.; Suite 350
Bloomfield Hills, Michigan 48304
Tel: (248) 971-2500
dbressack@finkandassociateslaw.com

Motion To Dismiss

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2:17-cv-11742-MAG-DRG Doc # 32 Filed 06/15/17 Pg 1 of 39 Pg ID 844

UNITED STATES DISTRICT COURT

ROBERT DAVIS and

-v.- Hon. Mark A. Goldsmith

DETROIT DOWNTOWN DEVELOPMENT

Andrew A. Paterson (P18690) David H. Fink (P28235)

Detroit, MI 48243 Charles N. Raimi (P29746)