August 9, 2013 at 1:00 am
U.S. court: Michigan Legislature 'ignores' constitution in fast-tracking bills
A federal appeals court ruled Friday the Michigan Legislature may have violated the state Constitution when it allowed a now-defunct 2011 state emergency manager law to take immediate effect, calling the procedure used “a farce” and “obvious fiction.”
The 6th Circuit Court of Appeals panel also instructed a lower court to consider whether the Legislature unlawfully passed a replacement emergency manager law after voters tossed out the previous version of the controversial statute in November.
At issue is whether the Legislature improperly said actions emergency managers took under Public Act 4 before voters repealed the law were valid, but the court didn’t say the remainder of the new emergency manager law known as Public Act 436 was improper.
In a 2-1 decision, the appeals court panel said Pontiac retirees who sued a state-appointed emergency manager for cutting their health care benefits will get a new hearing in federal court and ordered a review of the state Legislature’s approval of Public Act 4 in 2011. The benefit cuts affected more than 1,000 retirees.
PA 4 allowed emergency financial managers to break collective bargaining agreements and set aside retiree commitments. Voters threw out the law in the November referendum.
Peter Henning, a law professor at Wayne State University, said the court’s instruction, which was not directly related to the underlining ruling, could be interpreted as a “signal” that the law Gov. Rick Snyder used to install an emergency manager in Detroit could be challenged in the city’s bankruptcy case.
“All it’s telling the district court is this is important, pay attention to it,” Henning said.
The appeals court ordered a new hearing to determine whether two-thirds of the Michigan Legislature voted to make PA 4 immediately effective. Laws in Michigan typically become effective 90 days after the legislative session ends, unless they get two-thirds approval of both chambers of the Legislature for immediate effect.
The appeals court panel set aside a ruling by U.S. District Judge Lawrence Zatkoff to allow Pontiac Emergency Manager Louis Schimmel in December 2011 to cancel disability, vision and hearing coverage, increase annual deductibles and cut pensions. If PA 4 had not taken immediate effect, the appeals court ruled Schimmel “would not have possessed the power to modify the employees’ retirement plans when he did.”
The Republican-controlled House’s use of a voice vote without taking a formal roll call vote has been contested by Democrats in the minority, even though they used the same procedure when their party was in power.
When PA 4 was approved by the Michigan House in early 2011, it passed with 62 votes — 12 short of the two-thirds requirement, the appeals court said. The House used a rule that allows it to conduct a “rising vote” where the presiding officer examines the chamber to see whether the requisite two-thirds support exists, the court said.
“Apparently a two-thirds vote occurs whenever the presiding officer says it occurs — irrespective of the actual vote. This authority is unchecked and often results in passing motions for immediate effect that could not receive the constitutionally required two-thirds vote. Apparently the Michigan Legislature believes the Michigan Constitution can be ignored,” wrote Judge James Gwin, who was joined by Judge R. Guy Cole. “Public Act 4 exemplifies this farce. The Michigan House presiding officer refused a request for a roll call vote and made Public Act 4 immediately effective through the obvious fiction that 12 House members immediately changed their positions.”
Gwin and Cole, appointees of Democratic President Bill Clinton, added the Legislature has “perverted the immediate effect exception to swallow the constitutional rule.”
Under GOP control of the House, 319 of 323 bills were passed with immediate effect in 2011; in 2010, it approved 345 out of 363 bills with immediate effect, according to the ruling.
The judges said Democrats have also abused the exception. In 2006, when Democrats controlled the House, 664 out of 682 bills were approved with immediate effect.
“Plainly the Legislature will not self-correct its abuse of the immediate effect exception because the majority party controls and benefits from the process,” the court said.
Lawyers for both sides said Friday they were surprised the appeals court waded into the immediate effect issue because it was not part of their legal arguments in opposition or defense of the emergency manager’s actions.
“They veered off from the issues that were presented to them to something that hadn’t been raised,” said Stephen Hitchcock, attorney for Schimmel.
The Michigan Court of Appeals has previously allowed the procedure to remain, but the federal court said its ruling made “little sense” and is “illogical.”
Constitutional attorney Richard McLellan, chairman of the Michigan Law Revision Commission, said it’s “very unusual” for the federal court to dictate to a state Legislature how to operate.
“For the court to step in and start making those kinds of nuanced decisions of what the powers of the Michigan Legislature are under the Michigan Constitution is pretty extreme,” said McLellan, who suggested the use of the immediate effect concept for new laws needed to be changed.
Schimmel was initially appointed to oversee Pontiac’s finances in 2009. The city’s greatest expense is its employee benefit plans — totaling $302 million, the court said. In the last budget year, Pontiac spent $13.5 million on medical and dental coverage — $1.2 million was for active employees, with the rest for retirees.
The retirees filed suit in June 2012 seeking a temporary restraining order to block the cuts, but Zatkoff allowed to cuts to take effect in rejecting the suit.
The third member of the federal appeals panel, Judge Richard Griffin, an appointee of President George W. Bush and former Michigan appeals court judge, said the majority was wrong to weigh in on the “immediate effect” issue or whether PA 4 rulings should be overturned because state courts have spoken — and that the retirees in the suit hadn’t raised the issues. He said he would have upheld Zatkoff’s decision to allow the benefit cuts to take effect.
“The Michigan courts are in a better position to rule on novel questions of Michigan law,” Griffin wrote. “Imprudently, my colleagues have departed from our proper judicial role by becoming advocates in their zeal to create controversies that do not exist.”
dshepardson@detroitnews.com
(202) 662-8735
(202) 662-8735
From The Detroit News: http://www.detroitnews.com/article/20130809/METRO06/308090106#ixzz2cBc0mzH1
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