Michigan Democracy Watch Blog
Michigan’s Emergency Manager Law Finally In Court
In Court - But Will it Stay there?
So many opponents of Michigan’s emergency manager law showed up for a hearing at the federal court in Detroit on Wednesday that U.S. District Judge George Caram Steeh had to move to a larger courtroom.
What was going on?
More than a year ago, a lawsuit was filed challenging the constitutionality of PA 436, the state law that gives extraordinary authority to emergency managers appointed to take control of financially struggling municipalities and school districts. Before the case could be heard, it was put on hold when Detroit filed for bankruptcy.
Now, however, U.S. Bankruptcy Judge Steven Rhodes has lifted the stay he had imposed. That’s because the case isn’t only about what’s going on in Detroit. Residents from across the state – from cities such as Benton Harbor and Pontiac – are plaintiffs in the case, and their lawyers were able to convince Rhodes of the obvious: Detroit’s financial problems shouldn't keep them from having their day in court.
Which is why Steeh heard oral arguments Wednesday as to whether the case should be dismissed or allowed to move forward.
That’s what the state Attorney General’s Office says should happen. Essentially, the argument posed by Assistant Attorney General Michael Murphy is this: Cities are creatures of the state, and because of that they have no “sovereign” rights.
“There is no guarantee of any local government,” Murphy said.
So, if the state has the power to decide whether or not a city even exists, it certainly has the authority to send someone in and take control if there’s a financial emergency under way.
The state’s argument is stripped down and straight forward.
For those hoping to see the law tossed out, however, the arguments are more nuanced and complicated. This may be one reason why a team of attorneys showed up in court to argue their side of the case.
Complicating things even further is the fact that, as Judge Steeh pointed out, PA 436 is “unique.” Because there is nothing else quite like it anywhere in the United States, there is not a lot of precedent to go on when trying to determine whether the law is constitutional.
In the eyes of the law’s opponents, it violates the constitution in a number of ways. Attorney Julie Hurwitz, from the nonprofit National Lawyers Guild, called it a “blatant assault on the democratic process” because it strips elected local officials of their authority.
Instead of the traditional checks and balances inherent in our government, PA 436 gives a single, unelected person the power to “repeal, amend and enact laws” however they choose, Hurwitz pointed out.
John Philo, legal director for the nonprofit Sugar Law Center, contended that whatever power the state has, it must be wielded fairly, and that hasn’t happened. Instead, the cities and school districts that have been taken over are mostly black and largely poor – even though an analysis done by the state in 2009 found other, primarily white, cities in bad financial shape that weren’t subjected to emergency management. In short, the law has been applied in a discriminatory manner.
As for elected representation, Murphy argued that no one is being deprived of the right to vote. This is true. But, as Philo said, “it is a matter of form over substance.”
In other words, what good does it do to go to the polls and elect officials who have no real authority to do anything? Elected officials serve as the voice of the people who put them in office; if those officials have no real power, then the voice of the people has effectively been silenced.
Attorney Herb Sanders contended that the law violated the Voting Rights Act and the 13th Amendment, which abolished slavery.
Because it’s been cities and school districts with a majority of minority residents that have been subjected to takeover by the state, they’ve been subjected to the “stigma of inferiority,” Sanders argued. In addition, the denial of the right to vote is a “badge” of slavery.
Steeh doesn't have to decide whether these and other arguments are completely valid at this point. Instead, he only needs to determine that any one of them is “plausible” for the case to move forward.
He promised to deliver a written opinion “relatively soon.”