The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.