Catherine Phillips, et al v. Richard Snyder, et al

Filing

OPINION and JUDGMENT filed : The district court s dismissal of plaintiffs claims is AFFIRMED. Decision for publication. Richard F. Suhrheinrich, John M. Rogers (AUTHORING), and Richard Allen Griffin, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0228p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

CATHERINE PHILLIPS, et al.,
Plaintiffs,
RUSSELL BELLANT; TAWANNA SIMPSON; LAMAR
LEMMONS; ELENA HERRADA; DONALD WATKINS;
KERMIT WILLIAMS; DUANE SEATS; JUANITA HENRY;
MARY ALICE ADAMS; WILLIAM KINCAID; PAUL
JORDAN; BERNADEL JEFFERSON; DENNIS KNOWLES;
JIM HOLLEY; CHARLES E WILLIAMS; MICHAEL A
OWENS; LAWRENCE GLASS; DEEDEE COLEMAN;
ALLYSON ABRAMS,
Plaintiffs-Appellants,
v.
RICHARD D. SNYDER; ANDREW DILLON,
Defendants-Appellees.

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No. 15-2394

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:13-cv-11370—George C. Steeh, District Judge.
Argued: August 4, 2016
Decided and Filed: September 12, 2016
Before: SUHRHEINRICH, ROGERS, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Herbert A. Sanders, THE SANDERS LAW FIRM, P.C., Detroit, Michigan, John C.
Philo, SUGAR LAW CENTER FOR ECONOMIC & SOCIAL JUSTICE, Detroit, Michigan,
Julie H. Hurwitz, GOODMAN AND HURWITZ, P.C., Detroit, Michigan, for Appellants. Ann
M. Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for

1

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Appellees. ON BRIEF: Herbert A. Sanders, THE SANDERS LAW FIRM, P.C., Detroit,
Michigan, John C. Philo, SUGAR LAW CENTER FOR ECONOMIC & SOCIAL JUSTICE,
Detroit, Michigan, Julie H. Hurwitz, William H. Goodman, GOODMAN AND HURWITZ, P.C.,
Detroit, Michigan, Mark P. Fancher, ACLU FUND OF MICHIGAN, Detroit, Michigan, Cynthia
Heenan, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for
Appellants. Ann M. Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellees.
_________________
OPINION
_________________
ROGERS, Circuit Judge. When the finances of a Michigan municipality or public school
system are in jeopardy, a state law allows for the temporary appointment of an emergency
manager to right the ship. An emergency manager’s powers in pursuing this end are extensive
and arguably displace all of those of the local governmental officials. Plaintiffs, voters in areas
with emergency managers and local elected officials in those areas, filed suit and argue that, by
vesting elected officials’ powers in appointed individuals, the law violates their substantive due
process right to elect local legislative officials. Using similar reasoning, they argue that the law
violates the Constitution’s guarantee, in Article IV, § 4, of a republican form of government.
They assert additional claims under the First and Thirteenth amendments as well as a claim
under the Voting Rights Act. Plaintiffs appeal the district court’s dismissal of their claims.
Because the relevant constitutional and statutory provisions do not support relief for plaintiffs,
the district court’s dismissal of the claims was proper.
Michigan has a long history of municipal financial crises following national and global
economic depressions and recessions. According to plaintiffs’ amended complaint, Michigan
had the fourth-highest number of defaulting municipalities among all states during the Great
Depression.
In 1988, Michigan developed its own statutory scheme to deal with municipal insolvency.
Public Act 101 of 1988 allowed the state to appoint emergency financial managers (EFMs) over
cities experiencing a financial emergency.

Two years later, the Local Government Fiscal

Responsibility Act, Public Act 72 (PA 72), replaced Public Act 101. PA 72 provided for a local

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financial emergency review board that would appoint an EFM for a local government only after
the governor declared a financial emergency there.
Under PA 72, the local financial emergency review board appointed several EFMs
throughout the state. The board appointed EFMs in the municipalities of Hamtramck, Highland
Park, Flint, Pontiac, Ecorse, Benton Harbor, and Village of Three Oaks.

The board also

appointed an EFM for the Detroit Public Schools. Furthermore, under a provision in PA 72
allowing for consent agreements rather than the appointment of an EFM, the city of River Rouge
entered into an agreement with the board.
Michigan repealed PA 72 in 2011 when it passed the Local Government and School
District Fiscal Accountability Act, Public Act 4 (PA 4). PA 4 changed the title of EFMs to
“emergency managers” and expanded the scope of their powers to cover all the conduct of local
government. An emergency manager under PA 4 was allowed to act “for and on behalf of” the
municipality’s elected governing body. See PA 4 § 19(2). After the passage of PA 4, what were
PA 72 EFMs in Benton Harbor, Ecorse, Pontiac, and the Detroit Public Schools were converted
to emergency managers under PA 4 and vested with broad power under that statute. There were
also new emergency managers appointed under PA 4 in Flint, the Highland Park Public Schools,
and the Muskegon Heights Public Schools.
Michigan citizens disapproved of PA 4. Over 200,000 citizens signed petitions to place a
referendum on the ballot in 2012 that would reject the law. After an initial challenge to the form
of the petitions, the referendum was placed on the ballot. Pursuant to Michigan law, PA 4 was
suspended as soon as the petitions were certified and placed on the ballot. PA 72 thus sprang
back into effect on August 8, 2012, the day the Michigan Board of Canvassers certified the
petitions. State officials then reappointed all PA 4 emergency managers as PA 72 EFMs. At the
general election in November of 2012, Michigan citizens rejected PA 4.
After the referendum on PA 4, Michigan passed a new law, the Local Financial Stability
and Choice Act, Public Act 436 (PA 436). PA 436, like PA 4, authorizes the appointment of
emergency managers. Mich. Comp. Laws § 141.1549. EFMs under PA 72 and emergency
managers under PA 4 were automatically converted to emergency managers under PA 436 when

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that law took effect. § 141.1549(10). Emergency managers under PA 436 exercise the power of
the local government. § 141.1549(2). PA 436 also allows the state treasurer to oversee the
activities of emergency managers when the governor so chooses. § 141.1549(8).
There are eighteen scenarios contained in PA 436 that act as triggers for the statute.
§ 141.1544(1)(a)–(r). If one of those scenarios occurs, the “state financial authority” (the state
treasurer for a municipality, or the superintendent of public education for a school district,
§ 141.1542(u)(i)–(ii)) conducts a preliminary review to determine whether a given entity is under
“probable financial stress.” § 141.1544(3). The financial authority then turns its final report
over to a local emergency financial assistance loan board, which is a statutory entity established
by § 141.932. This board reviews the authority’s report and makes an official finding of either
probable financial stress or no financial stress. § 141.1544(3). If the board reaches a conclusion
of probable financial stress for an entity, the governor appoints a “review team.” § 141.1544(4),
(5). Within sixty days of a review team’s appointment, it must turn in a report to the governor
that reaches a conclusion on whether a financial emergency exists within the reviewed local
government. § 141.1545(3), (4). Within ten days after receiving the review team’s report, the
governor determines whether a financial emergency exists or not. § 141.1546(1). A local
government is provided an opportunity to appeal this determination to the Michigan court of
claims. § 141.1546(3).
A local government has four options when confronted with a finding of a financial
emergency: the local government can (1) enter into a consent agreement with the state treasurer;
(2) accept the appointment of an emergency manager; (3) undergo a neutral evaluation process,
which is akin to arbitration, with its creditors; or (4) enter into Chapter 9 bankruptcy.
§ 141.1547(1)(a)–(d). Giving local governments these options is one difference between PA 436
and PA 4.
There are other differences between the laws. PA 436 contains provisions for removing
an emergency manager after eighteen months of service, and if a local government wishes to
have an emergency manager removed before that emergency manager has served eighteen
months, the law provides the local government with a mechanism for petitioning the governor to
do so. § 141.1549(11). Another new provision in PA 436 allows the governor to appoint a

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receivership transition advisory board (TAB) once the financial emergency in a given locality
has been rectified. § 141.1563. TABs generally monitor the operations of the local government
and ensure that it is operating in a financially conscious and sound way. Id.
When PA 436 took effect, emergency managers were in place in Allen Park, Benton
Harbor, Ecorse, Flint, Pontiac, Detroit, the Detroit Public Schools, Highland Public Schools, and
Muskegon Heights Public Schools.

The city of Hamtramck has since had an emergency

manager placed in control of it, and the emergency managers in Ecorse and Pontiac have been
replaced by TABs. A TAB replaced Benton Harbor’s emergency manager and subsequently
voted to return the city to local control.
Plaintiffs, voters and elected officials from Detroit, Pontiac, Benton Harbor, Flint, and
Redford, filed suit. They alleged that PA 436 violates their right to elect local legislative
officials under (1) the Due Process Clause of the Fourteenth Amendment to the United States
Constitution; (2) the Guarantee Clause of Article IV, § 4 of the United States Constitution;
(3) the Fourteenth Amendment’s Equal Protection Clause by burdening their right to vote and by
discriminating against African Americans, the poor, and those entities that had emergency
managers under the previous laws; (4) § 2 of the Voting Rights Act (VRA); (5) the First
Amendment by engaging in viewpoint discrimination and infringing on plaintiffs’ freedom of
speech, freedom of association, and right to petition their government; and (6) the Thirteenth
Amendment.
The district court held that plaintiffs had Article III standing, reasoning as follows:
Plaintiffs are residents of cities with [emergency managers], elected officials of
cities or school districts who have actually been displaced by [emergency
managers], voters who intend to vote again in the future, and people who are
actively engaged in the political process at the local level of government. The
harms alleged by plaintiffs are unique as compared to Michigan residents living in
cities without an [emergency manager]. The court notes that the sweeping powers
under PA 436 appear much more expansive than those given to receivers in
Pennsylvania, where standing was not found. See Williams v. Governor of
Pennsylvania, 552 Fed. Appx. 158 (3rd Cir. 2014). Plaintiffs have already
suffered, and continue to suffer, the alleged constitutional deprivations, while the
residents of Michigan communities without an [emergency manager] have
suffered no such harms. In all instances, the alleged deprivations stem directly

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from the application of PA 436, and it is also true that the alleged injuries will be
redressed by a decision favorable to plaintiffs.
Phillips v. Snyder, No. 2:13-cv-11370, 2014 WL 6474344, at *4 (E.D. Mich. Nov. 19, 2014).
The district court proceeded to dismiss almost all of plaintiffs’ claims. Id. First, the
district court held that the Fourteenth Amendment’s Due Process Clause does not contain a
fundamental right to elect local legislators. Id. at *6. With regard to the Guarantee Clause
claim, the court held that the Clause does not apply to local governments. Id. Reasoning that the
Equal Protection Clause protects the right to vote on an equal footing in a particular jurisdiction,
the court dismissed plaintiffs’ first Equal Protection Clause claim because, so limited, the right
was not violated. Id. at *8. The court likewise dismissed the Equal Protection claim based on
wealth discrimination because, according to the court, PA 436 does not restrict plaintiffs’ ability
to vote based on their wealth. Id. at *12. The court also held that the final Equal Protection
claim could not succeed because PA 436 has a rational basis for its differential treatment. Id. at
*13.
The court held that PA 436 imposed no impediment to voting that was required to violate
§ 2 of the VRA, and the court therefore dismissed that claim.

Id. at *14-16.

The First

Amendment Claims failed because there were no infringements on speech rights that resulted
from PA 436. Id. at *16-18. The court also dismissed the Thirteenth Amendment claim, because
plaintiffs still have available to them what the court deemed “every device in the political
arsenal.” Id. at *19.
The only claim to survive dismissal was the Equal Protection claim based on
discrimination against African-Americans. Id. at *10-12. In a move that permitted the instant
appeal to go forward promptly, however, the parties stipulated to a dismissal of this claim
without prejudice.
Plaintiffs filed the present appeal, presenting many of the same arguments rejected by the
district court. The defendants argue that plaintiffs lack standing, that the case is moot, that the
Guarantee Clause claims are not justiciable, and that the district court’s dismissal was correct in
all other respects. Although the district court had jurisdiction under Article III, plaintiffs’

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constitutional claims are without merit, and the district court’s dismissal of the claims was
proper.1
I.
Most of the plaintiffs have alleged that they, as residents or elected officials of cities and
school districts that have been subjected to emergency managers, have already suffered and
continue to suffer unique harms that stem directly from the procedures set forth in PA 436. All
but one of the plaintiffs is a resident or an elected official of Detroit, Pontiac, Benton Harbor,
Flint, or the Detroit Public Schools. These cities and schools were under emergency managers
when the plaintiffs filed their amended complaint. These plaintiffs therefore, at least at that time,
allegedly suffered constitutional deprivations and other harms that residents and elected officials
of cities without emergency managers did not suffer, as explained by the district court.
Accordingly, plaintiffs suffered the “concrete and particularized” injuries required for standing,
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), that affect them in personal and
individualized ways. This removes plaintiffs’ injuries from the realm of generalized grievances.
The injury was ongoing and thus actual and imminent as opposed to conjectural or hypothetical,
therefore satisfying the second part of the injury inquiry outlined in Lujan. Id. Further, these
alleged deprivations stem directly from the application of PA 436 to plaintiffs’ cities or schools
and would be redressed by a decision favorable to plaintiffs.

Most of the plaintiffs have

2

therefore established standing under Article III.

1

Plaintiffs Catherine Phillips, Joseph Valenti, and Michigan AFSCME Council 25 were named in neither
the amended complaint in the district court, nor the notice of appeal. These three plaintiffs—parties to the city of
Detroit’s bankruptcy proceedings—were named in the original complaint in this case, and the district court did not
remove their names from the docket after the amended complaint was filed. Thus, although the three plaintiffs were
originally included in the official caption of this appeal, this appears to have been a mistake.
2

One plaintiff, however, failed to establish standing. Plaintiff Glass is from Redford and is on the Council
of Baptist Pastors of Detroit. Because he is a Redford resident, his votes for his local officials have not been
affected in any way by an emergency manager. However, when one party has standing to bring a claim, the
identical claims brought by other parties to the same lawsuit are justiciable. Department of Commerce v. U.S. House
of Representatives, 525 U.S. 316, 330 (1990); see also Village of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 264 n.9 (1977). To the extent that Glass’s arguments do not differ from those of the other plaintiffs,
his lack of standing does not affect our ability to reach them. To the extent that any of Glass’s arguments are
Redford-specific, his lack of standing prevents us from reaching them.

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It is true that the municipalities where plaintiffs reside or are elected officials are not
currently governed by an emergency manager. However, the municipalities where most of the
plaintiffs reside are currently governed by TABs that have final authority to govern those cities.
Plaintiffs have challenged the constitutionality of PA 436 in its entirety, not only the provisions
that allow the Governor to appoint emergency managers and that prescribe the authority of
emergency managers. This includes the provision that provides for TABs, § 141.1563. Thus,
according to their allegations, plaintiffs are continuing to suffer constitutional deprivations and
other harms as long as PA 436 limits the powers of their local elected officials in any manner.3
The present case is therefore distinguishable from Williams v. Corbett, 552 F. App’x 158 (3d Cir.
2014), in which the Third Circuit held that plaintiffs lacked standing because of the need for a
number of contingent events before a future injury, id. at 161–62.
The claims for equitable relief by the plaintiffs from Benton Harbor and the Detroit
Public Schools may be moot. The defendants point to the fact that the TAB in Benton Harbor
has voted to return the city to local control and was dissolved on July 1, 2016. The defendants
also point out that the Detroit Public Schools will be dissolved pursuant to recently passed
Michigan legislation, and operate under a transition manager as of July 1, 2016, until the school
board for the new community district takes office in January 2017. However, in line with our
resolution of the standing inquiry, whether the claims of these parties are moot is itself a moot
issue, as their claims are not distinguishable from those of nonmoot parties whose claims we
reject today.
II.
Plaintiffs’ substantive due process claim, based on their asserted right to vote for the
individual(s) exercising legislative power at the local level, is contrary to the Supreme Court’s
venerable holding that states have “absolute discretion” in allocating powers to their political
subdivisions (and therefore to the officers running those subdivisions), which are “convenient
agencies” created by the states. City of Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394,
397 (1919); see also Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004); Tennessee v. FCC,
3

This also proves that the case presented by these plaintiffs is a live controversy and not moot as the
defendants attempt to argue.

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No. 15-3291, 2016 WL 4205905, at *10 (6th Cir. Aug. 10, 2016). More particularly, states may
allocate the powers of subsidiary bodies among elected and non-elected leaders and policymakers. This power is squarely supported by Sailors v. Board of Education, 387 U.S. 105
(1967). In that case Michigan had established a system for selecting members of a county school
board that was “basically appointive rather than elective.” 387 U.S. at 109. The Court stated:
Viable local governments may need innovations, numerous combinations of old
and new devices, great flexibility in municipal arrangements to meet changing
urban conditions. We see nothing in the Constitution to prevent experimentation.
At least as respects nonlegislative officers, a State can appoint local officials or
elect them or combine the elective and appointive systems as was done here.
Id. at 110–11. Sailors therefore indicates that, given the need for states to structure their political
subdivisions in innovative ways, there is no fundamental right to have local officials elected.
Plaintiffs in the present case assert that Sailors’s limited holding applies to only “nonlegislative”
officers, and they argue that Sailors is therefore distinguishable. But just a few years after
Sailors, the Court indicated in Hadley v. Junior College District of Metropolitical Kansas City,
397 U.S. 50 (1970), that the Sailors holding would also apply to legislative officers, by
recognizing the untenability of a line between administrative and legislative officers for the
purposes of assessing the constitutionality of a state statute determining which persons are to be
selected by popular election to perform governmental functions. Id. at 55–56. Although Hadley
was an Equal Protection case, the Court rejected the administrative-legislative distinction and
instead characterized the correct constitutional inquiry as whether an individual engages in
“governmental activities.” Id. The Court further stated that the right to vote on an equal basis
with other voters applies “whenever a state or local government decides to select persons by
popular election to perform governmental functions,” id. at 56 (emphasis added), which suggests
that a state has the power to decide not to select local officials by election. Together, the cases of
Sailors and Hadley lead to the conclusion that there is no fundamental right to have local officers
exercising governmental functions selected by popular vote.
Plaintiffs’ main argument supporting its due process claim misinterprets Reynolds v.
Sims, 377 U.S. 533 (1964). Reynolds stated that “each and every citizen has an inalienable right
to full and effective participation in the political processes of his State’s legislative bodies.”

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377 U.S. at 565. Plaintiffs argue that because their local officials derive their power from the
state of Michigan, the local officials compose a “state legislative body,” and Reynolds thus
stands for the proposition that there is a fundamental right to vote for local legislative officials.
With respect, the argument is meritless. American governments, whether state or federal, have
subsidiary agencies that are led by appointed officials, and which make orders and regulations
that may carry the force of law. See, e.g., United States v. Mead Corp., 533 U.S. 218, 226-27
(2001). No federal constitutional provision requires the administrators or boards that run these
agencies to be elected. Suggesting as much would be revolutionary to our way of government,
even assuming that a government under such a constraint could even function. Further, Reynolds
dealt with the election of the state legislature of Alabama. The comment in Reynolds about
“state legislative bodies” obviously applies to state legislatures. Moreover, the issue in Reynolds
was the principle of one person, one vote under the Equal Protection Clause. Any asserted right
in Reynolds was in the context of that Clause. Reynolds thus stands for a right to vote for state
legislators on an equal footing with other voters in the state rather than a stand-alone right to vote
for legislators.4 Equal access to the ballot for an elected official simply does not imply that
certain officials must be elected.
Although this court has expressed, in a case involving the voiding of absentee ballots,
that “[t]he Due Process [C]lause is implicated . . . in the exceptional case where a state’s voting
system is fundamentally unfair,” Warf v. Board of Elections of Green County, 619 F.3d 553, 559
(6th Cir. 2010), we have never held that the Due Process Clause is implicated when a state
decides to appoint local officials instead of having them be elected. Further, the Sixth Circuit
cases that plaintiffs cite in this context all address whether states’ entire election processes
impaired citizens’ abilities to participate in state elections on an equal basis with other qualified
voters. See Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012); Warf, 619 F.3d
553; League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008). These cases
therefore do not imply, much less recognize, a fundamental right to have local legislative officers
be elected.
4

Plaintiffs also cite Williams v. Rhodes, 393 U.S. 23 (1968), but that case dealt with the entirely different
issue of the constitutionality of hurdles facing new parties seeking access to a state gubernatorial ballot. Language
plucked from that decision about the right to vote can be relevant to this case only in the most general and abstract
sense.

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III.
Moreover, the Constitution’s guarantee of a republican form of government in Article IV
does not provide plaintiffs with a basis for invalidating PA 436. Traditionally, the Supreme
Court “has held that claims brought under the Guarantee Clause are nonjusticiable political
questions.” Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996) (citations omitted). The
doctrine goes back to Luther v. Borden, 48 U.S. 1 (1849), and was restated in unqualified fashion
in Colegrove v. Green, 328 U.S. 549, 556 (1946), and City of Rome v. United States, 446 U.S.
156, 182 n.17 (1980). In Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118,
141–48 (1912), the Court held not justiciable a Guarantee Clause challenge to a state
constitutional provision permitting the bypassing of the state legislature by a voter initiative
procedure. In short, it is up to the political branches of the federal government to determine
whether a state has met its federal constitutional obligation to maintain a republican form of
government. Id. at 147. This conclusion disposes of plaintiffs’ Guarantee Clause claim.
The Supreme Court more recently—in a challenge to a federal statute—has expressed
doubt that all Guarantee Clause challenges are not justiciable, but in doing so did not resolve the
issue. New York v. United States, 505 U.S. 144, 185 (1992). Even assuming that a challenge
based on the Guarantee Clause may be justiciable in some circumstances, we are aware of no
case invalidating the structure of political subdivisions of states under the Clause. This is not
surprising in light of the Supreme Court’s repeated indication that states, not federal courts,
should determine the structure of political subdivisions within a state. The Court has recognized
that “[h]ow power shall be distributed by a state among its governmental organs, is commonly, if
not always, a question for the state itself.” Highland Farms Dairy v. Agnew, 300 U.S. 608, 612
(1937).
Plaintiffs cite two cases for the contention that the Guarantee Clause applies to allocation
of powers among political subdivisions, but even if these pre-Pacific States cases can be loosely
read to contemplate justiciability, they strongly support the conclusion that there is no Guarantee
Clause violation here. In Attorney General of Michigan ex rel. Kies v. Lowrey, a Michigan
statute allocating property between old and new school districts was challenged under the

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Contracts Clause, the Due Process Clause, and the Guarantee Clause. 199 U.S. 233, 240 (1905).
The Supreme Court stated flatly:
[T]he grounds all depend ultimately upon the same arguments. If the legislature
of the State has the power to create and alter school districts, and divide and
apportion the property of such district[s], no contract can arise, no property of a
district can be said to be taken, and the action of the legislature is compatible with
a republican form of government even if it be admitted that [Article IV, § 4] of the
Constitution . . . applies to the creation of, or [to] the powers or rights of property
of, the subordinate municipalities of a State. We may omit, therefore, that
[S]ection and [A]rticle from further consideration.
Id. at 239 (emphasis added). Forsyth v. City of Hammond, 166 U.S. 506 (1897), an even earlier
case, concerned an Indiana statute authorizing the annexation of contiguous territory to the limits
of a city by a court rather than the state legislature. Although the case involved a city’s territory,
the Guarantee Clause argument was one of separation of powers between the judiciary and the
legislature of the state government. Id. at 519. The case says nothing about the republican form
of the city. Moreover, with respect to the state separation-of-powers issue, the Court reasoned
that “there is nothing in the federal Constitution to prevent the people of a state from giving, if
they see fit, full jurisdiction over such matters to the courts and taking it entirely away from the
legislature.” Id. These cases provide no support for either the justiciability or the validity of a
Guarantee Clause challenge to the form of government of a political subdivision of a state.
IV.
With regard to the plaintiffs’ claims under the Equal Protection Clause, PA 436 passes
rational basis review. The financial conditions of plaintiffs’ localities are the reasons for the
appointments of the emergency managers. An entity in a distressed financial state can cause
harm to its citizenry and the state in general. Improving the financial situation of a distressed
locality undoubtedly is a legitimate legislative purpose, and PA 436, while perhaps not the
perfect remedy, is one that is rationally related to that purpose. The emergency manager’s
powers may be vast, but so are the problems in financially distressed localities, and the elected
officials of those localities are most often the ones who—through the exercise of their powers—
led the localities into their difficult situations.

A rational relationship to a legitimate

governmental purpose is all that is required for a law to pass this low form of scrutiny. See, e.g.,

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Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012). PA 436 therefore does not violate
the Equal Protection Clause.
Plaintiffs also claim that PA 436 violates the Equal Protection Clause by discriminating
against entities already having EFMs from PA 72, but this claim lacks merit.

Under

§ 141.1549(6)(c), an EFM appointed under PA 72 who was still serving in that capacity at the
time of the Act’s taking effect was deemed to be an emergency manager under PA 436. That
individual would then be subject to the eighteen-month provision in PA 436 and would
effectively remain in place longer than an emergency manager who was appointed for the first
time under the new law. Id. Plaintiffs argue that this treats them in a discriminatory manner.
This different treatment, however, is justified for the reasons stated by the district court: the
eighteen-month limitation on removal is rational, because the managers in place before PA 436
took effect had much less power under PA 72 than they did under PA 436. Giving these
individuals time to adjust to the new, broad powers is a legitimate interest, and giving them the
same eighteen months as other emergency managers to work with these powers is rationally
related to that interest. Although plaintiffs argue that the emergency managers appointed under
PA 4—who became EFMs when PA 72 sprang back into effect—did not change any of their
practices after the referendum, this fact if accurate does not affect the rationality of a distinction
based on their power to change their practices. Whether those managers violated PA 72 by
overstepping their statutory powers is also not relevant to the rationality of the distinction. The
district court’s dismissal of this claim was therefore correct.
There is, moreover, no basis for applying scrutiny stricter than rational basis review. The
plaintiffs argue for stricter scrutiny on the theory that PA 436 violates the Equal Protection
Clause by denying their right to vote and by conditioning their vote on wealth. However, neither
of these theories requires that PA 436 be subjected to higher scrutiny.
Right to Vote. PA 436 does not impair plaintiffs’ right to vote under the Equal Protection
Clause. Plaintiffs are still provided a vote. PA 436 does not remove local elected officials; it
simply vests the powers of the local government in an emergency manager. Plaintiffs argue,
however, that as a practical matter they are unable to elect the people exercising local legislative
power while individuals in areas without emergency managers have the ability to do so. But

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Equal Protection close scrutiny has not been applied beyond the right to vote on an equal footing
with other citizens in a given jurisdiction, in cases such as Dunn v. Blumstein, 405 U.S. 330, 336
(1972), which involved residency duration requirements for voting. In particular, in cases where
the issue is whether an election is required in the first place, the Court has declined to apply close
scrutiny. For instance, in Rodriguez v. Popular Democratic Party, 457 U.S. 1, 10 (1982), the
Court rejected a challenge to a procedure whereby vacancies in the Puerto Rico legislature could
be filled on an interim basis by political parties. The Court reasoned that “[t]he right to vote, per
se, is not a constitutionally protected right,” and that the Constitution does not “compel[] a fixed
method of choosing state or local officers or representatives.” Id. at 9 (citation and internal
quotation marks omitted). The Court further explained:
To be sure, when a state or the Commonwealth of Puerto Rico has provided that
its representatives be elected, “a citizen has a constitutionally protected right to
participate in elections on an equal basis with other citizens in the jurisdiction.”
Dunn v. Blumstein, 405 U.S. 330, 336 (1972). See Kramer v. Union Free School
District, 395 U.S. 621, 626–629 (1969); Gray v. Sanders, 372 U.S. 368, 379–380
(1963). However, the Puerto Rico statute at issue here does not restrict access to
the electoral process or afford unequal treatment to different classes of voters or
political parties. All qualified voters have an equal opportunity to select a district
representative in the general election; and the interim appointment provision
applies uniformly to all legislative vacancies, whenever they arise.
Id. at 10. A similar distinction applies here. Plaintiffs have not shown that they have been
denied the right to vote on equal footing within their respective jurisdictions. Individuals in
jurisdictions without emergency managers are not relevant to the protected right. In short,
geographical or other distinctions regarding the allocation of responsibilities among elected and
appointed bodies must have a rational basis, but if they do, there is no basis for stricter scrutiny if
there is equal access to the ballot with respect to voting for the elected bodies.
Wealth. Plaintiffs claim that the distinctions between communities with and without
emergency managers are based on race, but plaintiffs have voluntarily dismissed that claim.
They instead argue for stricter scrutiny based on wealth discrimination. Such a claim, however,
does not require scrutiny any closer than rational basis scrutiny.

Plaintiffs argue that the

financial condition of a local government—the basis for an emergency manager appointment—is
the same as the wealth of the people who reside in that government’s area. This is factually and

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logically incorrect. The solvency of a local government is the result of the management of the
finances of that government. Although solvency may correlate with the wealth of a locality’s
residents, solvency and wealth are separate concepts. Indeed, it is possible for a locality with
wealthy residents to become insolvent and subject to PA 436.
In any event, a legal distinction among political subdivisions that ultimately affects
people differently based on wealth does not—without the involvement of some other
fundamental right or suspect category—implicate closer scrutiny than rational basis review. This
conclusion is clearly required by the Supreme Court’s holding in San Antonio Independent
School District v. Rodriguez, 411 U.S. 1 (1973). The Supreme Court in that case rejected the
application of strict scrutiny to Texas’s system of local-property-based financing of public
education, and in particular a claim based on “district wealth discrimination,” reasoning in part:
[I]t is clear that appellees’ suit asks this Court to extend its most exacting scrutiny
to review a system that allegedly discriminates against a large, diverse, and
amorphous class, unified only by the common factor of residence in districts that
happen to have less taxable wealth than other districts. The system of alleged
discrimination and the class it defines have none of the traditional indicia of
suspectness: the class is not saddled with such disabilities, or subjected to such a
history of purposeful unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from the majoritarian
political process.
Id. at 28 (footnote omitted).

This reasoning disposes of any wealth-based discrimination

argument for strict scrutiny in this case.
V.
PA 436 also does not violate § 2 of the Voting Rights Act (VRA). In making their VRA
claim, plaintiffs attempt to fit a square peg into a round hole. Section 2 states that “[n]o voting
qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or
applied . . . which results in a denial or abridgement of the right of any citizen . . . to vote on
account of race or color.” 52 U.S.C. § 10301(a). Plaintiffs argue that the emergency manager
provision denies their right to vote. Mixon v. Ohio, however, held that § 2 of the VRA does not
cover appointive systems. 193 F.3d 389, 407–08 (6th Cir. 1999). Mixon involved the Cleveland
School District’s changing the selection of the Cleveland School Board from an elective system

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to an appointive one. Id. at 394. The Court stated that allowing § 2 challenges to states’ choices
between elective and appointive systems would be an interpretation that would “reach[] too far.”
Id. at 408. Mixon is analogous to the present case. In enacting PA 436, Michigan made a choice
between allocating certain powers to appointed individuals rather than elected ones. Thus,
§ 2 does not provide plaintiffs an avenue for recovery, and the district court correctly dismissed
this claim.

Plaintiffs argue that Mixon is distinguishable because, in that case, a statute

changed the process for selecting school board members, while the elective office in the present
case remains intact. It is difficult to see why this distinction should make a Voting Rights Act
difference.
Presley v. Etowah County Commission, 502 U.S. 491, 504 (1992), also supports
dismissing plaintiffs’ claim under VRA § 2. In Presley, the Court employed a “direct relation to
voting” test to determine when a change in a standard, practice, or procedure falls under VRA
§ 5. Id. at 506. “Changes which affect only the distribution of power among officials” and
“delegat[e] . . . authority to an appointed official” fail this test, and the VRA therefore does not
cover them. Id. at 506, 507. Plaintiffs correctly note that there is a difference in scope between
§ 5 and § 2. See Holder v. Hall, 512 U.S. 874, 882 (1994) (plurality opinion). Although Presley
dealt with a § 5 claim, its reasoning applies a fortiori to the § 2 claim here. First, the § 5
language that the Supreme Court focused upon in Presley was “voting qualification or
prerequisite to voting, or standard, practice, or procedure with respect to voting,” language
indistinguishable from that of § 2 (“voting qualification or prerequisite to voting, or standard,
practice, or procedure . . . [resulting] in a denial or abridgement of the right . . . to vote . . .”).
The Holder Court, in distinguishing § 2 and § 5, held that “we do not think that the fact that a
change in a voting practice must be precleared under § 5 necessarily means that the voting
practice is subject to challenge in a dilution suit under § 2.” Id. at 883. In other words, for
purposes of interpreting these words, § 5 if anything is broader than § 2.5 And while Presley did
contemplate that a “de facto replacement of an elective office with an appointive one” was not
within its holding, id. at 508, plaintiffs agree that there was no replacement of an elective office
with an appointive one in this case. Their elected officials still retain some (although limited)
5

We recognize, of course, that in other respects § 5 is narrower than § 2. See Reno v. Bossier Parish
School Bd., 520 U.S. 471, 478–79 (1997).

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powers under PA 436. Presley thus supports the applicability of our Mixon holding in this case:
VRA § 2 does not apply, because this is not a case involving a voting qualification or
prerequisite to voting or standard, practice, or procedure resulting in the denial of a right to vote.
VI.
Turning to the First Amendment claims, the enactment of PA 436 was not an instance of
viewpoint discrimination against plaintiffs.

Plaintiffs, along with a significant number of

Michigan voters, indeed voted to repeal PA 4. The legislature then enacted PA 436, a law that
plaintiffs admit is different from PA 4. Because plaintiffs admit that PA 436 is different, the
analysis need not go any further. Furthermore, Michigan would have been allowed to pass PA
436 even if it were identical to PA 4. See Michigan Farm Bureau v. Hare, 151 N.W.2d 797, 802
(Mich. 1967). In any event, the fact that a legislature passes new legislation similar in import to
legislation previously vetoed by referendum does not restrict the expression of one’s viewpoint.
The legislature either had the power to repass similar legislation or it did not. No one’s ability to
express views was infringed.
Nothing in PA 436 abridges plaintiffs’ rights to freedom of speech and to freedom of
association.

A removal or modification of government power can hardly be equated to a

restriction on speech.

If it were, all reallocations of the legislative powers of political

subdivisions would be subject to heightened scrutiny under the First Amendment—an entirely
unprecedented and anomalous result.
This reasoning would apply regardless of whether the plaintiff elected officials were left
with no governmental power, but that is not even the case. Local officials under PA 436 may, by
a two-thirds vote, petition for removal of an emergency manager before the emergency manager
has served for eighteen months. Mich. Comp. Laws § 141.1549(11). Furthermore, after the
emergency manager has served for eighteen months, the same two-thirds vote of the local
government removes the emergency manager. § 141.1549(6)(c). PA 436 also presents local
government officials in a financial emergency with four options, and only one of those options is
the appointment of an emergency manager. This suggests that local officials are generally still
empowered to act under PA 436. Citizens are still able to advocate for the removal of the

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emergency manager, and the decision to appoint an emergency manager can be appealed under
PA 436. Citizens are also able to vote out their local officials who got them into the financial
emergency, the state legislators who enacted PA 436, and the governor who appointed an
emergency manager.
PA 436 therefore does not abridge plaintiffs’ First Amendment rights.
VII.
Plaintiffs’ final claim, resting on the Thirteenth Amendment, though eloquently presented
at oral argument, is without merit. PA 436’s focus on financial emergencies makes this case
similar to City of Memphis v. Greene, 451 U.S. 100 (1981). That case involved the closure of a
street in Memphis that allegedly had the effect of segregating races within the city. Id. at 102.
However, the Court decided that this action did not violate the Thirteenth Amendment as a
“badge or incident of slavery,” because “a regulation’s adverse impact on a particular
neighborhood will often have a disparate effect on an identifiable ethnic or racial group” due to
urban neighborhoods’ being often “characterized by a common ethnic or racial heritage.” Id. at
128. Similarly here, PA 436 looks to the financial health (or lack thereof) of municipalities.
Plaintiffs do not challenge the label of “financial emergency” being attached to their localities.
There is no sufficiently direct connection to race in PA 436 that could amount to something, in
the words of the Supreme Court in Greene, “comparable to the odious practice the Thirteenth
Amendment was designed to eradicate.” Id. Plaintiffs cite no case law that brings their facts
anywhere near the prohibitions of the Thirteenth Amendment. The state’s remedy for financially
endangered communities—passed by state-elected bodies for which African-Americans have a
constitutionally protected equal right to vote, and facially entirely neutral with respect to race—
are far removed from being a “badge” of the extraordinary evil of slavery.
VIII.
The district court’s dismissal of plaintiffs’ claims is accordingly affirmed.