Davis et al v. Snyder et al

Filing 25

ORDER GRANTING IN PART DEFENDANTS MOTION TO DISMISS [#19] AND DENYING PLAINTIFFS EMERGENCY MOTION FOR DECLARATORY JUDGMENT FOR COUNT I [#3] AND DISMISSING ACTION. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT DAVIS, et al.,
Plaintiffs,
v.

Case No. 13-cv-14709
Hon. Gershwin A. Drain

GOVERNOR RICK SYNDER, et al.,
Defendants.
______________________________/
ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS [#19] AND
DENYING PLAINTIFFS’ EMERGENCY MOTION FOR DECLARATORY
JUDGMENT FOR COUNT I [#3] AND DISMISSING ACTION
I.

INTRODUCTION
The instant action stems from the recent enactment of Michigan Public Act 164 (2013) (“PA

164"), which enlarged the jurisdiction and organization of the Michigan Court of Claims. Pursuant
to this recent legislation, the Court of Claims no longer operates as a function of the Circuit Court
for Ingham County and any actions initiated against the State must be filed in the Michigan Court
of Appeals. The Court of Claims now consists of four Michigan Court of Appeals judges, who are
assigned by the Michigan Supreme Court pursuant to the new law.
Plaintiffs, Robert Davis and Citizens United Against Corrupt Government, bring their claims
against Michigan Governor Rick Snyder, Michigan Attorney General Bill Schuette, the Michigan
Senate, the Michigan House of Representatives and the Clerk of the Michigan Court of Appeals.
Plaintiffs allege that the enactment and implementation of PA 164 violates their rights under the
Fourteenth Amendment’s Equal Protection Clause and art. VI, §§1 and 27 of the Michigan
-1-

Constitution.
Presently before the Court is Plaintiffs’ Emergency Motion for Declaratory Judgment for
Count I, filed on November 15, 2013. Defendants filed a Response in Opposition on December 13,
2013. Also, before the Court is Defendants’ Motion to Dismiss, filed on December 9, 2013.
Plaintiffs have failed to file a Response to Defendants’ Motion to Dismiss, and the time for filing
a Response has expired. See E.D. Mich. L.R. 7.1(e)(1)(B)(“A response to a dispositive motion must
be filed within 21 days after service of the motion.”). Upon review of the parties’ submissions, the
Court concludes that oral argument will not aid in the resolution of the matters before the Court.
Accordingly, the motions will be decided on the briefs submitted. See E.D. Mich. L.R. 7.1(f)(2).
II.

FACTUAL BACKGROUND
The speed within which PA 164 was introduced and passed by the Michigan legislature and

signed by Governor Snyder was remarkable considering the absence of any serious study on the
impact and the potential burden the legislation might engender to the Michigan Court of Appeals
and litigants alike. As such, it is worth documenting the history of the bill. On October 24, 2013,
State Senator Rick Jones introduced Senate Bill 652 to the Michigan Senate. On October 29, 2013,
the bill passed the Senate Judiciary Committee with testimony provided in favor by Robert LaBrant,
senior counsel for the Sterling Corporation, and opposed by former House Representative Bruce A.
Timmons.
On October 30, 2013, Senator Meekhof moved for the suspension of the Senate rules so that
Bill 652 could be placed on the General Orders calendar for consideration that day. The motion
prevailed, the bill was passed and given immediate effect with twenty-six (26) voting in favor and
eleven (11) voting against its passage. The next day, the bill was referred to the House Government

-2-

Operations Committee which recommended passage of the bill without amendment on November
5, 2013. While the Committee recommend no changes to the bill, numerous individuals and entities
submitted their positions in opposition to the Committee, including the Appellate Practice Section
of the State Bar, the Ingham County Commissioner, the Michigan Association of Justice, four judges
of the Macomb County Circuit Court, the Board of Directors of the Ingham County Bar Association,
the Oakland County Bar Association, and two judges of the Ingham County Circuit Court. Much
of the opposition stemmed from the speed of the legislation coupled with the lack of investigation
into the impact the legislation would have on the Michigan Court of Appeals, which is not equipped
to handle trial matters, as well as the numerous questions left unanswered by the legislation, such
as how appeals from the Court of Claims would be taken.
Despite requests for additional hearings to allow for input from the legal community, on
November 6, 2013, the House passed the bill, effective immediately, with fifty-seven (57) voting
in favor of the bill and fifty-two (52) voting against passing the bill. Governor Snyder signed the
bill on November 12, 2013.
At the time PA 164 became effective, Plaintiffs had a state court action pending in the
Ingham County Circuit Court, which sought declaratory and injunctive relief against several state
entities. This case has since been transferred to the Michigan Court of Appeals pursuant to PA 164.
Plaintiffs brought the instant action on November 14, 2013 pursuant to 42 U.S.C. § 1983.
They assert two claims and seek declaratory and injunctive relief. Count I alleges violations of the
Equal Protection Clause and art. VI, §1 of the Michigan Constitution. Count II alleges violations
of the Equal Protection Clause and art. VI, § 27 of the Michigan Constitution.
On December 12, 2013, this Court denied the Plaintiffs’ Emergency Motion for Temporary

-3-

Restraining Order and Preliminary Injunction and denied the Defendants’ Motion to Transfer Venue.
See Dkt. No. 22. In this Court’s December 12, 2013 Order, the Court concluded that Plaintiffs
failed to demonstrate a likelihood of success on the merits of their federal equal protection claim,
finding that:
As an initial matter, the Court is not convinced that Plaintiff’s federal claim, as
currently pled, states a viable claim under Twombly and Iqbal, thus subject matter
jurisdiction over this matter may be lacking requiring dismissal. To state a claim
under 42 U.S.C. § 1983, Plaintiffs must set forth facts showing the deprivation of a
right secured by the Constitution or the laws of the United States and that the
deprivation was caused by someone acting under color of state law. Conclusory
allegations of unconstitutional conduct without specific factual allegations fail to
state a claim under § 1983.
*
*
*
Plaintiff’s Complaint is devoid of any factual allegations demonstrating that PA 164
targets a suspect class nor that PA 164 treats others similarly situated differently than
the Plaintiffs. Moreover, Plaintiffs do not identify any fundamental rights implicated
by the enactment of PA 164. The Court further finds that the Defendants’ arguments
concerning standing and abstention are compelling and suggest a very weak
likelihood of success on the merits of Plaintiffs’ claims.

Id. at 4-5 (internal citations omitted).
III.

LAW & ANALYSIS
The Equal Protection clause of the Fourteenth Amendment commands that “no State shall

. . . deny any person within its jurisdiction the equal protection of the laws.” U.S. CONST., amend.
XIV, §1. “The guarantee of equal protection of the law directs that all persons similarly
circumstanced shall be treated alike.” Disabled American Veterans v. Dep’t of Veterans Affairs,
962 F.2d 136, 141 (2d Cir. 1992) (internal quotations omitted). “To state an equal protection claim,
a plaintiff must adequately plead that the government treated the plaintiff ‘disparately as compared
to similarly situated persons and that such disparate treatment either burdens a fundamental right,
targets a suspect class, or has no rational basis.’” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano,
-4-

648 F.3d 365, 379 (6th Cir. 2011) (citing Club Italia Soccer & Sports Org., Inc. v. Charter Twp.
of Shelby, Mich., 470 F.3d 286, 299 (6th Cir. 2006)). “[T]he threshold element of an equal
protection claim is disparate treatment; once disparate treatment is shown, the equal protection
analysis to be applied is determined by the classification used by government decision-makers.” Id.
“If no fundamental right or suspect classification is at issue, then the state need only
demonstrate that its action bears some rational relationship to some legitimate governmental
interest.” Breck v. Michigan, 47 F. Supp.2d 880, 886 (E.D. Mich. 1999) (citing Zielasko v. State
of Ohio, 873 F.2d 957, 959 (6th Cir. 1989)). Rational basis review “is the most relaxed and tolerant
form of judicial scrutiny” under the equal protection clause. Dallas v. Stanglin, 490 U.S. 19, 26
(1989). Under this least demanding form of judicial review, classifications may only be set aside
as constitutionally infirm “if they are based solely on reasons totally unrelated to the pursuit of the
state’s goals and only if no grounds can be conceived to justify them.” San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).
As an initial matter, Defendants raise several procedural challenges to Plaintiffs’ Complaint.
First, Defendants argue that this Court lacks subject matter jurisdiction because Plaintiffs fail to
allege valid claims under the Equal Protection Clause. Defendants maintain that Plaintiffs’ Equal
Protection claims are “nothing more than thinly disguised state-law challenges to PA 164 grounded
in the Michigan Constitution.” Defs.’ Mot. at 15. Defendants further argue that Plaintiffs lack
standing to bring this action because they cannot show a concrete and particularized injury or that
there is a substantial likelihood that they will be the unique target of future harm. Defendants
House, Senate and Governor Snyder also assert that they are entitled to legislative immunity. Lastly,
Defendants maintain that this Court should abstain from reviewing Plaintiffs’ claims until the state

-5-

courts have had an opportunity to review the legality of PA 164.
In regard to the merits of Plaintiffs’ Equal Protection claims, Defendants argue that PA 164
passes rational basis review because Defendants have a legitimate government interest in changing
the Court of Claims’ jurisdiction so that judges who represent citizens from all over the State of
Michigan will preside over cases against the State, rather than judges who represent roughly three
percent (3%) of the Michigan population. Moreover, Defendants argue that Plaintiffs cannot
demonstrate they are entitled to declaratory relief because they cannot demonstrate the third and fifth
factors required by Grand Trunk Western R.R. Co. v. Consolidated Rail Corp., 746 F.2d 323, 326
(6th Cir. 1984).
Here, the Court concludes that Plaintiffs have failed to allege the essential elements of an
Equal Protection claim. To survive a Rule 12(b)(6) motion to dismiss, plaintiff’s pleading for relief
must provide “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545,
548 (6th Cir. 2007) (quoting Bell Atlantic, 550 U.S. at 555). “[T]he tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft
v. Iqbal, 556 U.S. 662, 668 (2009). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id. “[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. The plausibility standard
requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged–but it has not ‘show[n]’– ‘that the pleader is entitled to relief.’” Id.
Plaintiffs’ Complaint alleges that “the enforcement of Public Act 164 against the Plaintiffs’

-6-

State Court Action violates Plaintiffs’ rights afforded them under the Fourteenth Amendment of the
United States Constitution” and “Plaintiffs have suffered and will continue to suffer a loss of their
constitutionally protected rights to proceed with their State Court Action.” Compl., ¶¶47, 66. These
allegations are wholly inadequate for this Court to plausibly infer an Equal Protection violation. The
Complaint is devoid of any factual allegations that Plaintiffs are members of an identifiable group
that have been disparately treated or that they are similarly situated in all material respects to another
group that received more favorable treatment than the Plaintiffs. “[T]he threshold element of an
equal protection claim is disparate treatment; once disparate treatment is shown, the equal protection
analysis to be applied is determined by the classification used by government decision-makers.”
Ctr. for Bio-Ethical Reform, Inc., 648 F.3d at 379.
Moreover, Plaintiffs failed to file a Response to Defendants’ Motion to Dismiss, nor have
Plaintiffs moved to amend their pleading. Plaintiffs were put on notice concerning the paucity of
their Equal Protection factual allegations when this Court denied their Request for a Temporary
Restraining Order. See Dkt. No. 22 at 4-5. Accordingly, the Court concludes that Plaintiffs’ Equal
Protection claim must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.
Plaintiffs have also advanced a state law claim asserting that PA 164 violates art. VI, § 1 of
the Michigan Constitution because it was not passed by two-thirds of the voting members of the
House of Representatives. Plaintiffs further allege that PA 164 violates art. VI, § 27 because the
bill was not passed with two-thirds vote by both houses, which is required for a bill to be given
immediate effect. Because the Court finds that Plaintiffs’ Equal Protection claims are subject to
Rule 12(b)(6) dismissal, the Court declines to exercise supplemental jurisdiction over Plaintiffs’

-7-

remaining state law claims. “The exercise of jurisdiction solely over state-law claims is particularly
inappropriate when the district court is called upon to rule upon the validity of a State’s law under
its own constitution.” Field v. County of Alcona, 255 F. Supp.2d 708, 714 (E.D. Mich. 2003)
(citing Castellano v. Bd. of Trustees of Police Officers’ Variable Supplements Fund, 937 F.2d 752,
758 (2d Cir. 1991)); see also, United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless
decisions of state law should be avoided both as a matter of comity and to promote justice between
the parties, by procuring for them a surer-footed reading of applicable law.”). As such, the Court
declines to consider the parties’ arguments concerning Plaintiffs’ state law claims and will dismiss
these claims without prejudice.
IV.

CONCLUSION
For the reasons stated above, Plaintiffs’ Emergency Motion for Declaratory Judgment for

Count I [#3] is DENIED with respect to Plaintiffs’ Equal Protection claim only.
Defendants’ Motion to Dismiss [#19] is GRANTED IN PART. Plaintiffs’ Equal Protection
claims are dismissed. Plaintiffs’ state law claims are dismissed without prejudice.
SO ORDERED.

Dated: February 26, 2014

s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

-8-