Michigan House and Senate Move to Intervene, and Petition for Rehearing En Banc in "Basic Minimum Education Case"

"When the executive branch concedes a ruling that will effectively result in compelled legislative appropriations and court supervision and control of the public-school system, the legislative branch’s exercise of its core appropriation function has been 'completely nullified.'"

|The Volokh Conspiracy |

Two weeks ago, I blogged about Gary et al v. Whitmer et al. A sixth circuit panel found a substantive due process right to "basic minimum education." I agree with Judge Murphy's dissent. Judge Clay's majority opinion, joined by Judge Stranch, is inconsistent with longstanding Supreme Court precedent. (My co-blogger, Jon Adler summarized the decision here.)

In the normal order, the state Attorney General would seek re-hearing en banc. But this case may be different. Michigan Attorney Dana Nessel has praised this decision! Indeed, she tried to file an amicus brief in support of the plaintiffs. Her deadline to appeal is later tonight. By all indications, the state will not appeal. However, two petitions for rehearing en banc were filed.

First, two members of the State Board of Education appealed in their official capacities. (Both are Republicans). The AG's office prepared their petition.

Consistent with their opening brief, the State defendants Tom McMillin and Nikki Snyder ask this Court to rehear this case, reject the panel majority's central legal conclusion finding a fundamental right, and allow the matter to return to whom these critical issues have been principally entrusted under Michigan law, the Detroit Board of Education and its Superintendent.1 As elected members of the State Board of Education named in their official capacities, both McMillin and Snyder are committed to ensuring that children in Michigan have a meaningful opportunity to learn. But it is for the State and its local school board to address these educational issues, not the federal judiciary

The panel majority questioned whether these two defendants can appeal:

It is unclear how McMillin and Snyder have the authority to pursue separate arguments on their own behalf. Both are members of a collegial body—the state board of education—and were sued in their official capacities. In such a case, it is the decision of the body itself, not its individual members, that governs the conduct of litigation….

[T]he board as a whole (along with the other state officers) is the master of how this litigation is defended, and thus can decide which arguments to pursue in its briefs and whether and to what extent it should further press this appeal.

The petition addresses that issue:

While the panel majority opinion questions the ability of defendants McMillin and Snyder to support the district court's opinion, see slip op., p. 16 n.7, the federal appellate rules expressly allow "a party" to file a petition for rehearing en banc. See Fed. R. App. P. 35(b) ("A party may petition for a hearing or rehearing en banc."). In fact, this Court could elect to rehear this case en banc even without these defendants' request based on its internal operating procedures. 6 Cir. I.O.P. 35(e) ("any member of the en banc court may sua sponte request a poll for hearing or rehearing en banc before a party files an en banc petition."). Moreover, the attorneys for the State defendants McMillin and Snyder note that the Department of Attorney General has established a conflict wall in its office, allowing for other attorneys within the Department to represent the remaining State defendants, including the Governor.

I offer no opinion whether, under state law, these two members are proper parties to appeal. (The Supreme Court addressed the complicated structure of Michigan's educational system in Schuette v. BAMN.)

The second rehearing petition is far more significant. It was filed by the Michigan House and Senate, both GOP-controlled. They also moved to intervene. John Bursch, the former Michigan SG, represents the bicameral legislature. (He also argued Schuette.)

The House and Senate explain (accurately) that to this point, the executive brach litigated the case. There was no need to intervene earlier. And the House and Senate note the precarious nature of the appeal filed by the two members.

The problem is that, on information and belief, no Defendant except two—individual members of the Michigan State Board of Educa-tion Tom McMillin and Nikki Snyder—will be filing a petition for rehearing en banc. And the panel opines it is "unclear" how Mr. McMil-lin and Ms. Snyder "have the authority to pursue separate arguments on their own behalf." 4/23/2020 Slip op., p. 16 n.7. Moreover, their ability to continue pursuing rehearing en banc may be subject to the Board of Education's wishes. Id. And the Michigan Attorney General has already sided with Plaintiffs. That leaves no Michigan party in this case to challenge the panel's ruling and defend the public fisc—at a time when the COVID-19 crisis has decimated the State budget.

This appeal is unlike Virginia House of Delegates v. Bethune-Hill. That case concerned only one house of the bicameral legislature. Here, both houses are participating. The legislature sees this case more like Arizona State Legislature v. Arizona Indep. Redistricting Comm'n.

When the executive branch concedes a ruling that will effectively result in compelled legislative appropriations and court supervision and control of the public-school system, the legislative branch's exercise of its core appropriation function has been "completely nullified." Raines v. Byrd (1997). In such a situation, the legislative branch has a "plain, direct and adequate interest in maintaining the effectiveness of" its appropriations power. Coleman v. Miller (1939).

In this respect, the Senate and House's position is similar to that of the Arizona Legislature in the Supreme Court's independent-redistricting case. There, the Arizona Legislature challenged an amendment to the state constitution that removed redistricting authority from the Legislature and vested that authority in an independent body. Arizona State Legislature v. Arizona Indep. Redistricting Comm'n (2015). The Supreme Court emphasized that, since the Legislature had a sufficient number of votes to defeat or enact a provision impacted by the constitutional amendment, the Legislature suffered sufficient harm to its legislative authority to assert Article III standing.

The Legislature also relied on House of Representatives v. Burwell (DDC). (That case only involved one House of Congress):

Here, the Michigan Legislature has the constitutional authority to enact a budget that appropriates money without being directed in those appropriations by a federal court overseeing Michigan's public-school systems. The Michigan Legislature also has the constitutional authority to maintain and support the public-school system. By creating a fundamental right to a minimum basic education that will be determined and enforced by the district court below, the panel majority in this case has invalidated state legislative authority and created Article III standing. E.g., United States House of Representatives v. Burwell, 130 F. Supp. 53, 72–73 (D.D.C. 2015) ("because the House occupies a unique role in the appropriations process prescribed by the Constitution," the U.S. House of Representatives, as an institution, has standing to sue when it alleges its authority to appropriate funds has been usurped).

Stay tuned for more.



NEXT: FISA Surveillance and Possible Reforms Are Back on the Senate's Agenda

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  1. This practice of not adequately defending against court decisions that rule against a state, because the AG politically agrees with the court decision, has to stop.

    Ethically, the AG should do his or her duty and defend the state to the utmost of his or her ability, even if they politically disagree with the decision to do so. That is the ethical obligation a lawyer has for their client. An AG that can or won’t adequately defend the state should resign or be removed from office.

    Besides the clear ethical issues, it essentially cuts the legislature out of the law-making process that is their prerogative.

    1. Ethically, the AG should do his or her duty and defend the state to the utmost of his or her ability, even if they politically disagree with the decision to do so.

      Where is this ethical obligation found in the Rules of Professional Conduct? Because my understanding is the opposite- if an AG knows a case to have no merit, he or she has an ethical obligation to refuse to pursue the case. Just like any other lawyer other than a criminal defense lawyer.

      That is the ethical obligation a lawyer has for their client.

      You are confusing the situation where the client instructs a lawyer with this situation. Here there is no instruction; rather, the AG him- or herself gets to make the call. Without an enforceable instruction saying “pursue this”, the AG can take any action consistent with the AG’s understanding of the facts and the law.


        § 1 Oath of public officers.§ 1 Oath of public officers.
        Sec. 1.

        All officers, legislative, executive and judicial, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of ………. according to the best of my ability. No other oath, affirmation, or any religious test shall be required as a qualification for any office or public trust.

        1. That says nothing about defending laws they believe are unconstitutional, and indeed implies a duty in the other direction.

          1. If the AG believes it is unconstitutional, she needs to recuse herself from any decision making about the court case.

            What the AG shouldn’t do is attempt to write a brief supporting the plaintiffs, have it rejected by the court because of the clear conflict of interest, have her subordinates work diligently defend the case, but still maintain control over it to reject actually defending it.

            Lawyers defend cases all the time that they don’t personally believe in. It’s practically part of the job description. But when a lawyer’s personal beliefs on what should be done take precedence over defending his or her clients, this is a major problem.

            1. Again, you are making up ethical rules you may want to apply, but which aren’t what the actual rules say.

              The actual rules require the AG defend the Constitution. And that means an AG can drop a suit that is inconsistent with the AG’s understanding of the Constitution, and the voters can punish a political party that does this when the public isn’t on board.

        2. A State’s policies are always aligned with the Constitution?

      2. I agree that an AG does not have an obligation to defend a law they believe to be unconstitutional I do think – as I felt was the case with the Obama admin and gay marriage, that it is problematic to just let a lower court decision stand because a new regime likes it, and thus strike down a law whenever a district court judge agrees with the AG’s office. When striking down a law, I want the full judicial process, with no short-circuits.

        Seems to me that the solution is a broad intervention protocol. Which I actually believe is already the case?

        1. It’s harder to intervene on appeal.

          But the doctrine that really deals with this problem is non-mutual issue preclusion. Essentially, only parties and their privies are bound by the results of prior litigation, and only to the extent their interests were aligned.

          So the objecting parties can bring a new suit in a trial court somewhere, and argue they aren’t precluded. So long as they have standing to sue, that should work.

          These folks want to shortcut that.

          1. Hrm. I still find this unsatisfying.

            So the gay marriage imbroligo.
            California, the Feds, and the plantiffs all agreed that Prop 8 was unconstitutional, and so ended the litigation at the district court level.

            As I recall, SCOTUS said no one has standing at that point to defend the proposition. That seems hinky to me, even if I agree with the outcome.

            1. That’s not true forever and for all time. It’s only true for purposes of that appeal and the facial challenge.

              So that happens, and now a Christian conservative employer doesn’t want to pay spousal health care benefits to his gay employee. So he sues for a declaratory judgment that Proposition 8 protects his right not to do so. You’ve got Article III standing right there, injury, causation, and redressibility. And he was not a party to the previous litigation and is not collaterally estopped.

              He doesn’t get to join the ongoing case, but he can certainly challenge the result.

              1. OK, that’s enough of a pressure valve for me.

                Procedure is now Sarcastro approved!

              2. Notwithstanding that Obergefell obviates that argument on the merits, of course.

      3. “a case that has no merit” ≠ “a decision that I agree with politically”

        1. The law is not a brooding omnipresence in the sky. There isn’t some objectively verifiable reality as to what constitutes a valid legal case. We choose attorneys general, in part, to make those calls.

          1. “We choose attorneys general, in part, to make those calls.”

            As I understand it most state AGs are independently elected, not appointed. I rather doubt that voters make any such consideration in choosing who to vote for.

            1. Nonetheless, it’s a relevant qualification for the job.

              An opponent can run on the issue, after all.

          2. Yes but we also choose legislators to write our laws. Nobody should have the right to use sue-and-settle tactics to gain a de facto veto over laws they happen to dislike. That’s not how our government is set up to operate.

            The AG has discretion over criminal prosecutions. The AG has discretion over civil prosecutions involving state agencies. Defending an act of the legislature is different. Absent exceptional circumstances (like the House being granted permission to intervene), the AG is the only person with standing to defend the law. I’ll grant that the AG has some limited discretion if he/she believes the law is unconstitutional. Absent that high bar, however, the AG has an absolute responsibility to defend the legislature’s choices because no one else can.

            Now, if you loosen the rules and let other people defend the law, I’d agree that you could let the AG off the hook. Without that, the AG needs to be a good little lawyer and defend the client to the best of his ability whether he likes the client or not.

            1. Nobody should have the right to use sue-and-settle tactics to gain a de facto veto over laws they happen to dislike.

              Just because the right wing invents a talking point slogan doesn’t mean they are right.

              Nobody’s “settling” in the sense of binding all potential litigants in these constitutional challenges. Conservatives can still find individuals with standing and bring suits. You guys just don’t like that the state isn’t on your side. But that’s a political issue.

      4. The Michigan Attorney General is the lawyer representing the State of Michigan. Like any lawyer, she has a duty to zealously advocate for her client’s interests. (In Michigan, that obligation is set forth at Professional Conduct Rule 1.2(a)). That includes challenging a patently wrong adverse decision. (It also includes not filing an amicus brief asking the court to rule against your client, as the attorney general did here.)

        It is true that in providing zealous advocacy, she may not “bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous.” Mich. R. Prof. Cond. 3.1(a). I see no indication, however, that the attorney general is claiming that an appeal would be frivolous. Indeed, such a claim would strike me as itself frivolous.

        1. That’s fundamentally wrong.

          The client is the State of Michigan. The interests of the State of Michigan are different than a private litigant.

          A private litigant’s interest, in a lawsuit, is to win. In contrast, a state’s interest is sometimes to lose. If a law is unconstitutional, the state should lose. If a criminal defendant is innocent, the state should lose. If the state committed a tort, the state should lose.

          So the AG’s obligation in serving the interest of his or her client is to sometimes lose lawsuits.

          That’s basically fundamental to the entire system. We would NEVER want prosecutors who think their job is to win prosecutions, for instance. That’s a recipe for throwing innocent people in prison.

          1. “a state’s interest is sometimes to lose”

            As a defendant in a lawsuit, how is it ever in the state’s interest to lose like this? We’re not talking about a plaintiff type situation with prosecutors. This is more analogous to the defense here, where the criminal defense attorney is siding with prosecutors, throwing their client (the state) under the bus.

            1. Because the state has an interest in following the law, and upholding the civil rights of its citizens, and seeing that minimal constitutional requirements are upheld.

          2. Yes, of course the party that is in the wrong should lose the lawsuit. But the decision about which side actually is wrong should be made by a judge or jury (as appropriate to the issue and type of case). But when a lawyers is charged with defending a client, it’s grossly inappropriate for the lawyer to decide not to offer a colorable defense, simply because the lawyer personally agrees with the plaintiffs. And that’s true whether the lawyer is representing an individual person, a government official, or a corporate entity.

            1. Yes, of course the party that is in the wrong should lose the lawsuit. But the decision about which side actually is wrong should be made by a judge or jury

              You literally just made that up. And its wrong. Government attorneys have an independent obligation to cause the government to lose lawsuits and court actions where the government is in the wrong. E.g., if a prosecutor comes into a case and determines the defendant is not guilty beyond a reasonable doubt, she has an obligation to cause the case to be dismissed and not let the jury decide.

              1. And where, may I ask, is this obligation found in the Rules of Professional Conduct?

                To save you some time, I’d direct you to Mich. R. Prof. Cond. 3.8(a), which precludes prosecutors from pursuing cases they know are not supported by probable cause. It does not purport to require prosecutors to personally believe in a defendant’s guilt beyond a reasonable doubt, nor does any other jurisdiction to my knowledge. And of course, it contains no other comparable exception for government attorneys—like the attorney general in this case—who are representing defendants in civil lawsuits.

                I note that, while you’ve been eager to accuse your interlocutors of fabrications and to demand citations, you’ve not actually provided any yourself. Can you pint u to something to back up your assertion that a lawyer representing the government is acting appropriately by failing to mount a colorable case in defense of the government’s position simply based on a policy disagreement?

                1. To save you some time, I’d direct you to Mich. R. Prof. Cond. 3.8(a), which precludes prosecutors from pursuing cases they know are not supported by probable cause. It does not purport to require prosecutors to personally believe in a defendant’s guilt beyond a reasonable doubt, nor does any other jurisdiction to my knowledge.

                  1. “Probable cause” does not mean it is ethical to bring a prosecution if the evidence is only enough to support a search warrant. That means “probable cause to believe that the defendant is guilty beyond a reasonable doubt”.

                  2. How exactly is a prosecutor supposed to determine that the defendant should not be tried, other than based on her own belief?

                  3. I don’t need a rule. That which is not prohibited, is ethical. Plus, as noted above, government lawyers take oaths to follow the Constitution. That means if something’s unconstitutional, they have an OBLIGATION to drop the suit, and conservatives who don’t like it can find another plaintiff with standing.

      5. if an AG knows a case to have no merit,

        What does that have to do with the current situation? One might think this decision is correct — though it’s hard to see how — but nobody can think that there are no non-frivolous arguments against it.

  2. I don’t doubt these folks have standing to bring a court case. But that’s a separate question of whether they have standing to take an appeal or petition for review in a case where the Real Party in Interest declines to do so. That’s an issue of appellate standing. I also am not sure the Sixth Circuit’s local rules can grant someone appellate standing who doesn’t have it under Article III or governing legal doctrines of standing.

    As for suggesting a sua sponte en banc, I suspect that runs headlong in to today’s US Supreme Court decision in United States v. Sineneng-Smith, which reprimanded the Ninth Circuit for “taking over a case” so that it could be presented differently than the Real Parties in Interest had presented it.

    I know people hate it when political officials drop cases. But that’s part of their job. The alternative is worse. For instance, imagine if a State AG refuses to drop a criminal prosecution where evidence of innocence emerges, because the victim’s family wants it continued.

    If someone drops a case that shouldn’t be dropped, that’s what elections are for. Vote them out.

    1. The legislature has the power of the purse. If it refuses to obey the court’s power grab, what then?

    2. Can you illustrate the proper application of this principle to the recent developments in the Michael Flynn case?

      1. 1. Biden can make an issue of it in the campaign.

        2. A state can bring a prosecution against Flynn.

        1. So you agree that Judge Sullivan should grant the government’s motion to dismiss?

          1. What would the legal basis to deny it?

            1. Fed. R. Crim. P. 48(a) requires court approval of a motion to dismiss a criminal case by the government.

              1. So what? That approval is ministerial.

                If the government says he was mistreated, it would be a manifest abuse of discretion for the judge to insist on continuing.

                1. False. There’s already a guilty plea. The executive has no more role other than to make a sentencing recommendation, which nobody thinks the judge is bound by.

            2. He already pled guilty?

    3. As for suggesting a sua sponte en banc, I suspect that runs headlong in to today’s US Supreme Court decision in United States v. Sineneng-Smith, which reprimanded the Ninth Circuit for “taking over a case” so that it could be presented differently than the Real Parties in Interest had presented it.

      Yeah, that’s not at all relevant. Re-evaluating the same issue is not the same as making up a new issue. Every circuit, AFAIK, provides for sua sponte en banc review.

      1. You’ll notice that the Supreme Court expressly distinguished the 9th circuit situation from the one where SCOTUS appoints an amicus to defend a judgment below when the government no longer wishes to do so. That’s not hijacking the case. That’s just preventing colluding parties from manufacturing precedent.

  3. Well, since the legislature now has to pony up a magic amount of money, may I suggest they start by cutting the budget of the judiciary to no more than the salary of Judges? No fancy offices, no clerks, no pensions, no nothing but a minimum wage.

    1. You’re suggesting that the state legislature should retaliate against the state judiciary for a federal court’s ruling?

    2. So I’ve been skeptical about the eye-rolling about virtue signaling, but badly thought out radical nonsense like this is bringing me around.

      Super woke, dude. Till some even more woke guy brings up Pinochet yet again!

    3. If they can be ordered to do something, they ought to have had the opportunity to challenge the order — you’d think…

  4. The problem with cases like this is that it can become a race to bankruptcy — one community spends an inordinate amount on education and hence everyone else must as well.

  5. The legislature should refuse to fund the AG’s office next budget.

    She can volunteer without staff or Asst. AGs

    That’s the only way to teach these reckless liberals, and they are almost always liberals, who do this.

    1. I believe the Michigan constitution forbids the reduction of the attorney general’s salary while she is in office.

      1. Fine. Just no staff then.

        She can earn her salary by doing everything.

        1. No office space, either. Or perhaps some unheated abandoned building…

          1. Virtue signaling.

  6. Memo to MI: Never, never, never, ever allow unelected judges to compel expenditures of monies, bypassing a state legislature.

    In the People’s Republic of NJ, we did that. The NJSC decided a series of cases and this is what happens – compelled, judicial directed spending. It has cost billions, and NJ gained little from it.

    1. I would be interested (in a spirit of genuine curiosity) to learn of an educational system that saw notable improvements after a court (state or federal) took over supervision of its operations.

      1. Me too! Maybe I could get my money’s worth. 🙂

  7. If the courts manage to cut the legislature out of the loop, does that mean they can ignore the orders to increase spending? I’m guessing they’ll have to obey anyway.

    1. The losers are poor People’s Republic serfs (e.g. poor, suffering taxpayer).

  8. In this case, there is clear Supreme Court precedent saying education is not a fundamental right.

    The AG’s decision here is political, based on a view of how the constitution should be, not legal, based on an objective view of current supreme court precedent or even current supreme court justices’ views. Current Supreme Court precedent is against the 6th circuit, and in addition the conservative composition of the current supreme court creates a strong probability, certainly a reasonable one, that they will decide not to change that precedent.

    So to extent a state AG is obligated to defend the laws of the state if there is any reasonable defense, the AG has not met this obligation. Defense here is not just reasonable but very reasonable.

  9. Also, I agree that if a legislature can be the subject of a court order, it can be a party to the case when it acts as a whole. And since supreme court precedent permits a legislature to be a party under certain circumstances.

    My view that a legislature can’t be a party is related to my view that a court can’t compel a legislature to do something. Remove the latter, and the former has to go as well.

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