The State Of Michigan And The City Of Ypsilanti Brought Suit Against A Fraternity, Alleging It To Be A Public Nuisance

Tim Burke, Fraternal Law Partners, tburke@manleyburke.com

On January 5, 2022, the prosecutor of Washtenaw County, Michigan, on behalf of the State of Michigan, and the City of Ypsilanti, jointly sued Theta Xi Chapter of Delta Tau Delta at Eastern Michigan University.  The 25- page, 102 paragraph Complaint alleges that the Chapter has created a public nuisance.  It argues that the Chapter has maintained “an environment conducive to sexual assaults through the excessive consumption of alcohol and illegal underage drinking at fraternity parties.” 

The Complaint provides summary descriptions of some 18 alleged sexual assaults over a period dating back to late 2014.  The lawsuit fails to indicate whether or not there have been any criminal charges or convictions related to any of these alleged assaults, only one of which is alleged to have occurred in the last 3 ½ years.  Though, there are reports on www.mlive.com, that “[s]ix people are currently facing criminal charges in connection with activities of the fraternity, said Washtenaw County Prosecutor, Eli Savit, who has spearheaded the effort to use state and local public nuisance laws against the fraternity.”

Savit is quoted as saying, “We are really looking for a way of course, not just to prosecute the people involved in these cases, but also to be proactive and address the conditions that are leading to these sexual assaults in the first place.”

The lawsuit repeatedly makes the point that the underage and excessive consumption of alcohol by guests at fraternity parties create a dangerous environment contributing to the possibility of sexual assault.

The overwhelming majority of the alleged instances of sexual assault are identified as occurring on Chapter controlled property.

In reviewing each of the instances of alleged sexual assault, the Complaint, in many cases, claims that the sexual assault occurred in plain sight of other fraternity members “who did nothing to intervene”. 

Repeating often cited statistics, the Complaint points out that  College-age women – females 18-24 – are more than three times (3x) more likely to experience sexual assault than women in other age brackets and that only 20% of sexual assaults are actually reported.  Those that are, are frequently reported after a substantial delay.

Of course, the alleged facts in the complaint, as with any complaint, remain to be proven in court.  But unlike in a criminal case where proof of guilt must be beyond a reasonable doubt, here the proof required is to the lesser standard of by a preponderance of the evidence.

The Complaint relies on both the Ypsilanti Code of Ordinances, which defines a public nuisance as “whatever annoys, injures or endangers the safety, health, comfort or repose of the public; offends public decency . . .or in any way renders the public insecure in life or property.”^[1]  Michigan State law declares a property to be a nuisance if it is “used for the unlawful. . . furnishing of vinous, malt, brewed, fermented, spirituous or intoxicating liquors or mixed liquors or beverages, any part of which is intoxicating.”^[2]

Under those statutes, the Plaintiffs could have tried to shut down the Chapter entirely.  However, they did not.  Instead, the Complaint asks for very specific relief including:

• No social gatherings “at the Frat House, any ‘Frat Annex’ location or any other proxy location until further order of the court”.
• All members of the Chapter must complete a “state-approved alcohol service training program” within 3 months and continue such training into the future.
• Provide proof of such training.
• All members of the Chapter must also attend sexual assault awareness and prevention education as well as bystander training.
• “Permanently maintain the Frat House without nuisance conditions including by prohibiting underage drinking at the Frat House”, and “Posting Eastern Michigan University’s Title IX Office contact information in a highly visible location in each common area of the Frat House.”
• Finally, “award Plaintiff actual damages, interest, penalties, costs, attorneys’ fees, expert-witness fees and other monetary relief.”

The nuisance action filed by the prosecutor and City attorneys appears to be a matter of first impression.   There are examples of neighbors bringing nuisance actions against chapters related to noise, trash, and similar matters.  But Fraternal Law is unaware of any similar action brought by government attorneys.  If this case is successful, others may use the same tactic.   

Sexual assault is and always has been entirely unacceptable in and beyond the Greek world.  National and international fraternal organizations recognize that and seek to address and eliminate sexual assault.  Many already have in place the kind of training sought in the lawsuit.  The challenge for both those in the position of the plaintiffs and National and International groups and their chapters is to identify and hold accountable those misguided individuals who refuse to recognize that sexual assault is illegal.

[1] Ypsilanti Ordinances Section 42-32 

[2] MCL 600.3801