Detroit's Historic Bankruptcy Filing Ruled nconstitutional

4:15 PM, Jul 19, 2013   |    comments
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Lansing, MI--  An Ingham County judge says Thursday's historic Detroit bankruptcy filing violates the Michigan Constitution and state law and must be withdrawn.

But Attorney General Bill Schuette said he will appeal Circuit Judge Rosemarie Aquilina's Friday rulings and seek emergency consideration from the Michigan Court of Appeals. He wants her orders stayed pending the appeals, he said in a news release.

In a spate of orders Friday arising from three separate lawsuits, Aquilina said Gov. Rick Snyder and Detroit emergency manager Kevyn Orr must take no further actions that threaten to diminish the pension benefits of City of Detroit retirees.

"I have some very serious concerns because there was this rush to bankruptcy court that didn't have to occur and shouldn't have occurred," Aquilina said. "Plaintiffs shouldn't have been blindsided," and "this process shouldn't have been ignored."

Lawyers representing pensioners and two city pension funds got an emergency hearing Thursday with Aquilina, and she said she planned to issue an order to block the bankruptcy filing. But lawyers and the judge learned that Orr filed the Detroit bankruptcy petition in Detroit 5 minutes before the hearing began.

Aquilina said the Michigan Constitution prohibits actions that will lessen the pension benefits of public employees, including those in the City of Detroit.

Snyder and Orr violated the constitution by going ahead with the bankruptcy filing because they know reductions in those benefits will result, she said.

"We can't speculate what the bankruptcy court might order," said assistant Attorney General Brian Devlin, representing the governor and other state defendants.

"It's a certainty, sir," Aquilina replied. "That's why you filed for bankruptcy."

Devlin said Snyder has to follow both the Michigan Constitution and the U.S. Constitution.

Schuette's office issued a statement saying an appeal has been filed on behalf of the governor in all three cases before Aquilina.

"In addition, the attorney general filed motions to stay the trial court rulings and any future proceedings while the appeals proceed," spokeswoman Joy Yearout said. "Later today, we expect to file additional motions seeking emergency consideration."

Aquilina issued a declaratory judgment that says the bankruptcy filing violated the Michigan Constitution.

"In order to rectify his unauthorized and unconstitutional actions ... the governor must (1) direct the emergency manager to immediately withdraw the Chapter 9 petition filed on July 18, and (2) not authorize any further Chapter 9 filing which threatens to diminish or impair accrued pension benefits," she said in her order.

John Canzano, a Southfield, Mich., lawyer representing retirees, cautioned that Snyder faces no contempt of court implications if he doesn't follow the judge's instructions. But Canzano said he likely will return to court seeking further relief if Snyder doesn't instruct Orr to withdraw the bankruptcy filing.

Asked what the judge could then do, Canzano said: "I will have to do my homework."

Douglas Bernstein, a partner with Plunkett Cooney law firm in Birmingham, Mich., said Aquilina's ruling is surprising.

"This is generally how bankruptcies occur: You file bankruptcy when there is an impending crisis at the 11th hour," Bernstein said. "You file bankruptcies to stave off litigation."

University of Michigan law professor John Pottow said the issue could travel up the court system, all the way to the Michigan Supreme Court. Or it could be answered decisively and quickly in bankruptcy court.

"There's nothing that precludes a federal judge from adjudicating the constitutionality of the Michigan statute," Pottow said. "The bankruptcy judge can interpret Michigan law."

Aquilina, who like most of the judges on the Ingham court has a Democratic background, appeared prepared for her orders to be appealed.

"Let's get this moving to the Court of Appeals because that's where you all are headed," she said.

She also ordered that a copy of her declaratory judgment be sent to President Barack Obama, saying he "bailed out Detroit" and may want to look into the pension issue.

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