We’ve all heard of “judicial overreach,” and executive power in both the federal and state governments has increased dramatically for decades while the legislative branch withers. Now, however, the Empire Strikes Back!
The 98th Michigan Legislature has employed a rarely-used time deadline and an obscure legal doctrine called “conclusive presumption” to ensure that its recent bailout of the Detroit Public School (DPS) system cannot be overturned by a judge, or at least it can’t unless it’s challenged in court by this coming week-end.
Many will remember the 2002 movie, “Catch Me if You Can,” with Leonard DiCaprio in the role of real-life serial imposter Frank W. Abagnale. In a sense, the Legislature is claiming that anyone disagreeing with the way it enacted PA 192 of 2016 (with Gov. Rick Snyder’s cooperation) must file suit against the new statute that purports to rescue the DPS WITHIN 60 DAYS, OR IT CAN NEVER BE CAUGHT BEING “WRONG,” even though it probably is.
Translation: A strong case can be made that, because PA 192 is a “local act,” the Legislature needed to obtain 2/3 majority approval in both the House and the Senate for the statute to be valid, but that’s not what happened — in fact, it passed each chamber only by simple majorities, and only because there were some vacant legislative seats. But no judge or court is likely to consider the question of whether PA 192’s enactment is unconstitutional because the only challenge any court received in the past two months was filed in the wrong court and thrown out (by Court of Claims Judge Michael Talbot). The suit, undertaken by a pro bono attorney on behalf of aggrieved Detroit school board members, could be refiled in the state Court of Appeals, but that must be done by Saturday, Aug. 20. Right now, it doesn’t appear that will happen. Maybe the plaintiffs decided they would rather be elected to the new board than see the panel destroyed in court before they can campaign for it.
Here is what is at the heart of this strange story: Buried in PA 192 is the following provision:
— “MCL 380.389 Formation of Community School District; presumption of validity.
Section 389. The validity of the formation of a community district shall be conclusively presumed unless questioned in an original action filed in the Court of Appeals within 60 days after the community district is created under Section 383. The Court of Appeals has original jurisdiction to hear an action under this section. The court shall hear the action in an expedited manner. The Department of Treasury is a necessary party in any action under this section.”
Interestingly, this section wasn’t in the original DPS bailout bill (HB 5384), introduced by state Rep, Daniela Garcia (R-Holland). It was slipped into a later House substitute for the measure by unknown parties who undoubtedly realized the proposed act would be in trouble in the courts if it was ever litigated.
The other unusual provision found in Section 389 is the introduction of a concept known as “conclusive presumption” in Michigan constitutional law. An example of this concept might be the presumption that it is irrebuttable that a child born to a married couple is considered the child of the husband (that is, you can’t argue with it even if there’s ample evidence that the husband is not the father). The law simply does not allow some presumptions to be disproved, no matter how strong the evidence to the contrary. These are called “conclusive presumptions.”
But how often are “conclusive presumptions” found in Michigan Compiled Law? Hardly ever. The Ballenger Report asked Bob LaBrant, Michigan’s pre-eminent political legal historian, how prevalent “conclusive presumptions” are in state statutes. LaBrant could find only a dozen references to “conclusive presumption” in the MCLs, and none of them rose to the level of Section 389 of PA 192, which hinges on an important clause of the current Constitution (Article IV, Section 29).
“What the Legislature did with PA 192 is extraordinary,” says Labrant. “Uses of conclusive presumption have been few, and historically almost all of them have been on low-level issues like transfers of property.”
In other words, if what is happening with PA 192 raises the stakes and sets a new precedent, there is nothing to prevent the Legislature from putting Section 389-type clauses in many if not all other bills it passes, thus rendering moot any legal challenges to the law’s constitutionality after a certain limited time is passed. Maybe it’s the newest wrinkle on the the latest legislative practice of inserting appropriations into bills that don’t seem to require them in order to forestall ballot proposals from being mounted against the new statutes.
As reported previously in The Ballenger Report, the plaintiffs in Moore v Snyder (the one, unsuccessful suit that has challenged the DPS bailout) claimed the definition of “Qualified School District” found in PA 192 can apply ONLY to one school district in the state (Detroit) now and into the future, and if so it was not properly enacted. Moore & Co. are almost certainly right, but it appears they’ll never get their day in court.
Meanwhile, another part of the $617 million DPS bailout package provided for a Nov. 8 general election to fill the seven seats on the new DPS Community School District board. There was/is/will be no primary. The names of all 72 candidates who filed will appear on the non-partisan 11/8 ballot.The new seats on the board will be filled in an at-large election with staggered terms. The two top vote-getters will win six-year terms. The third, fourth, and fifth-place finishers will each receive four-year terms, and the two candidates finishing sixth and seventh will serve two-year terms.
The new Detroit community school board will be smaller than the old 11-member board, whose powers were suspended when a state-appointed emergency manager took over the district in 2009. These upcoming school board elections remind some observers of the failed state legislative attempt in 2002 to have Detroit hold a referendum whether to bring elections to the Detroit city council, whose membership at the time was nine members elected at large. But the state Supreme Court ruled unanimously (7-0) that the enabling legislation was unconstitutional because it failed to receive a 2/3 majority in the state House, thus running afoul of Article IV, Section 29 of the Constitution. Guess what? The same ruling might be expected today on PA 192 of 2016 except for Section 389 and the deployment of “conclusive presumption.”
Bottom line: Enactment of PA 192 is almost certain to lead to numerous lawsuits in the future. Is the 60-day “window” to raise a constitutional challenge a violation of the separation of powers found in Article III, Section 2, of our constitution? Aren’t constitutional challenges within the purview of Michigan’s “one court of justice” provided for in Article VI of our Constitution?
Is “conclusive presumption” itself unconstitutional? Nationally, a growing number of courts have held conclusive presumptions to be unconstitutional (too unfair, and thus a denial of due process). This has occurred most commonly in the area of paternity, because of blood tests that can exclude paternity with 100% accuracy.
Using “conclusive presumption” to exclude proof of unconstitutionality seems an invitation to test that exclusion of proof.