LANSING — An Ingham County judge says Thursday’s historic Detroit bankruptcy filing violates the Michigan constitution and state law and must be withdrawn.
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, Judge Rosemarie Aquilina said today in a spate of orders arising from three separate lawsuits.
“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 with Aquilina Thursday at which she said she planned to issue an order to block the bankruptcy filing. But lawyers and the judge learned Orr filed the Detroit bankruptcy petition in Detroit five 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, Aquilina 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 state constitution and the U.S. constitution.
The judge 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 accured pension benefits,” she said in her order.
John Canzano, a Southfield attorney representing retirees, cautioned there are no contempt implications for Snyder if he doesn’t follow the judge’s instructions. But he said he will likely 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 in Birmingham, 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 of 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, he said.
“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 the likelihood her orders will be appealed by the state.
“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.
