2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 1 of 25
Pg ID 4587
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI, DENISE MILLER and MICHELLE JOHNSON, Plaintiffs, v RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, Defendant.
Michael J. Steinberg (P43085) American Civil Liberties Union Fund of Michigan Attorney for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 Margaret A. Nelson (P30342) Mark E. Donnelly (P39281) Rock A. Wood (P41181) Michael F. Murphy (P29213) Attorneys for Defendant Michigan Dept. of Attorney General Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Amanda C. Goad American Civil Liberties Union Foundation Attorney for Plaintiffs 1313 West 8th Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5273 John A. Knight American Civil Liberties Union of IL Attorney for Plaintiffs 180 N. Michigan Ave, Ste. 2300 Chicago, IL 60601 (312) 201-9740
No. 2:12-cv-10038 HON. DAVID M. LAWSON MAG. MICHAEL J. HLUCHANIUK
DEFENDANT’S REPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 2 of 25
Pg ID 4588
Bill Schuette Attorney General Margaret A. Nelson Assistant Attorney General Attorneys for Defendant Public Employment, Elections and Tort Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Nelsonm9@michigan.gov P30342 Dated: March 10, 2014
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 3 of 25
Pg ID 4589
COUNTER STATEMENT OF ISSUES PRESENTED 1. Does P.A. 297 (the “Act”) intentionally discriminate against gay and lesbian public employees and their domestic partners because of their sexual orientation? Defendant answers, “No.” Does the Act violate Plaintiffs’ rights to equal protection in that it is not rationally related to a legitimate government interest? Defendant Answers “No.” Does the Act violate Plaintiffs’ rights to equal protection in that it was motivated by an impermissible purpose to discriminate against gays and lesbians? Defendant Answers “No.” Is Plaintiffs’ equal protection claim entitled to heightened scrutiny? Defendant Answers “No.”
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 4 of 25
Pg ID 4590
INTRODUCTION Michigan’s Legislature relied on three specific relationships as the foundational criteria for a public employer’s provision of medical or other fringe benefits to an individual currently sharing a residence with a public employee. These are identified in the Act’s §3(1), Mich. Comp. Law §15.583(1), and include marriage—a legal relationship recognized and defined by Michigan law; family—a relationship defined by Michigan’s laws of intestate succession; and financial—a dependent relationship defined by the Internal Revenue Code of 1986. The keystone of Plaintiffs’ equal protection challenge to P.A. 297 and the limits imposed by these criteria, continues to rest on the presumption Michigan’s definition of marriage found in Mich. Const. 1963, art. 1, § 25 is itself discriminatory and unconstitutional. Yet, Plaintiffs do not challenge that definition of marriage in this case. And, the presumption is unsound. The provisions of Michigan’s constitution and laws must be presumed constitutional until declared otherwise. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Because the constitutionality of Michigan’s marriage definition is not
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 5 of 25
Pg ID 4591
before this Court and has not been declared unconstitutional by any other court, it is presumed constitutional and legislatively valid. But, Public Act 297 does not rise or fall on how marriage is defined by Michigan. It does not discriminatorily target people of the same-sex for exclusion from benefits. It excludes all domestic partners, same-sex or opposite sex, in committed or platonic relationships. Public Act 297 does promote and foster marriage however that relationship is defined by Michigan law, and the relationships typically associated with marriage—family and dependency. Further demonstrating the absence of discriminatory intent and P.A. 297’s rational basis, is the fact that even were Michigan’s marriage amendment, and thus its definition of marriage, declared unconstitutional in the pending DeBoer v. Snyder, (E.D. Mich. No. 12-cv-10286), the Act remains constitutionally sound and rationally related to its purpose of fostering marriage—whether between opposite sex or same-sex couples— and its related relationships.
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 6 of 25
Pg ID 4592
COUNTER-STATEMENT OF FACTS Defendant incorporates the Statement of Facts from the Brief in support of his Motion for Summary Judgment filed in this case on February 14, 2014. (R. 84, Defendant’s Motion for Summary Judgment and Brief in support, ID## 3120-3127.) Additional facts will be identified as needed in the respective arguments below. ARGUMENT Defendant incorporates the argument presented in the Brief supporting his motion for summary judgment in response to the issues presented. (R. 84, Defendant’s Motion for Summary Judgment and Brief in Support.) Defendant provides additional argument addressing the issues specific to Plaintiffs’ motion. A. The Act does not violate Equal Protection guarantees.
The Equal Protection Clause commands no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Yet, “equal protection is not a license for courts to judge the wisdom, fairness or logic of legislative choices.” TriHealth, Inc. v. Board of Com’rs, Hamilton County, Ohio, 430 F.3d 783, 790-791 (6th Cir. 2005) (citing FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 3133
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 7 of 25
Pg ID 4593
314 (1993). Rather, the clause prevents states from making distinctions that (1) burden a fundamental right; (2) target a suspect class; or (3) intentionally treat individuals differently from others similarly situated without any rational basis. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005); Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). A law that neither implicates a fundamental right nor targets a suspect class is accorded rational basis review. San Antonio Dendep. School Dist. v. Rodriguez, 411 U.S. 1, 29; 93 S. Ct. 1278; 36 L. Ed. 2d 16 (1973). Thus, the law need only be “rationally related to legitimate government interests,” Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 501 (6th Cir. 2007) (internal quotation marks and citation omitted), and “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification” Beach Commc’ns, Inc., 508 U.S. at 313. A law that burdens a fundamental right or targets a suspect class is generally “subject to strict scrutiny, and will be upheld only when [it] [is] narrowly tailored to a compelling governmental interest.” Does v.
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 8 of 25
Pg ID 4594
Munoz, 507 F.3d 961, 964 (6th Cir. 2007) (internal quotation marks omitted). Public Act 297 neither burdens a fundamental right; targets gays or lesbians because of their sexual orientation; or intentionally treats gays or lesbians differently from others similarly situated without any rational basis. 1. The Act does not intentionally target gay and lesbian families for differential treatment on the basis of sexual orientation.
Relying on this Court’s analysis in its opinion and order granting a preliminary injunction in this case, Plaintiffs argue the Act discriminates on the basis of sexual orientation because it: Explicitly incorporates statutes that draw classifications based on sexual orientation and renders access to benefits legally impossible only for gay and lesbian couples; Incorporates the definitions in the Michigan marriage amendment and the intestacy statute distinguishing between opposite-sex couples who are permitted to marry and can inherit under intestacy, and same-sex couples who cannot. Bassett v. Snyder, 951 F. Supp. 2d 939, 963 (E.D. Mich. 2013). Plaintiffs argue the Act is, thus, discriminatory on its face. These conclusions demonstrate the underlying error of the Court’s conclusions and Plaintiffs’ arguments. 5
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 9 of 25
Pg ID 4595
First, the Act prohibits benefits to all domestic partners, same-sex or opposite-sex, whether in committed or other relationships, except those who are married; qualified to inherit under Michigan’s intestacy laws; or are a dependent as defined by the Internal Revenue Code of 1986. It treats all domestic partners the same whatever their sexual orientation. For example, two unrelated male domestic partners who are in a financial relationship only—sharing expenses—may qualify for benefits from the public employer, but not under the Act. They cannot marry. They cannot inherit from each other under the intestacy laws. Second, this argument ignores the Legislature’s “province” to draw lines that reasonably rely on other laws that are presumptively constitutional and relate to the legitimate purpose of the Act. Does, 490 F.3d at 503. No court has declared either Mich. Const. 1963 art. 1, § 25 or Michigan’s intestacy laws, Mich. Comp. Laws § 700.2100, et. seq. to be unconstitutional. This Court must accord them the presumption of constitutionality. City of Cleburne v. Cleburne Living Ctr. 473 U.S. 432, 440 (1985). Third, Plaintiffs’ argument that the Act does not prohibit a public employer from providing medical or other fringe benefits to a broad
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 10 of 25
Pg ID 4596
range of other relatives and dependents. Act 297, § 3(1), Mich. Comp. Laws § 15.583(1). The fact a public employer may extend benefits to other relatives or dependents does not establish an intent to target gays and lesbian families. The beneficiary must be related or dependent by law and must live in the same residence as the public employee. It recognizes and supports a family or dependent relationship recognized by law. Plaintiffs have not established the Act burdens a suspect group or a fundamental interest. Thus, their assertion that the rational basis review to be accorded the Act must be “conducted with closer scrutiny than the deference given other legislative classifications” (R. 88, Plaintiffs’ Brief in Support, ID## 3618, 3619), is incorrect. “[I]n cases where these considerations are absent, courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws.” Vance v. Bradely, 440 U.S. 93, 97 (1979). “The Constitution presumes that, absent some reason to infer antipathy, even an improvident decision will eventually be rectified by the democratic process.” Id.; Cleburne, 473 U.S. at 440. A court should not “overturn such a statute unless the varying treatment of different
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 11 of 25
Pg ID 4597
groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Vance, 440 U.S. at 97. Indeed, the United States Supreme Court has applied rational basis review to hold a law unconstitutional only when the “challenged legislation inhibits personal relationships.” Lawrence v. Kanas, 539 U.S. 558, 580 (2003). Plaintiffs’ personal relationships are not inhibited in any way by the Act. Bassett, 951 F. Supp. 2d 957-958. And, Public Act 297 is a far cry from Colorado’s Amendment 2, which in explicit terms prohibited “all legislative, executive, or judicial action at any level of state or local government designed to protect the named class”— described as homosexual persons or gays and lesbians. Romer v. Evans, 517 U.S. 620, 624 (1996). Thus, P.A. 297 requires no closer scrutiny under the rational basis review required for this equal protection challenge and must be sustained because it advances a legitimate government interest even where the court thinks it unwise or that it works to the disadvantage of a particular group or even if the rationale seems tenuous. Romer, Id. 32 (citations omitted.)
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 12 of 25
Pg ID 4598
P.A. 297 is rationally related to a legitimate government purpose. a. The Act generates cost savings
Defendant incorporates Argument I-D-3 from his brief in support of the State’s motion for summary judgment in response to Plaintiffs’ argument. (R. 84, Defendant’s Brief, ID ## 3136-3138.) Defendant provides the following additional argument in opposition to Plaintiffs’ claim. Plaintiffs’ argument rests on one principle theory, the State has not provided evidence demonstrating either a direct or indirect cost savings. Any cost savings the State can demonstrate is either off-set by potential losses resulting from the Act or so minimal as to be insignificant. But contrary to Plaintiffs’ suggestion, the State’s argument is supported by expert testimony. Plaintiffs’ representation of Dr. Prices’ review, report, and testimony is deceptive. First, the social data and studies are not perfectly aligned or organized to capture the specific categories suggested in Plaintiffs’ inquiry and now argument. Rather, studies typically reflect marital status—married or single. (Ex. 12, Price Transcript at 239.) Use of the broader data set captured by the studies 9
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 13 of 25
Pg ID 4599
relied on by Dr. Price to determine value and costs savings related to marriage is more appropriate. (Id. at 85, 86, 134.) The population that “cohabitates”—a category suggested in counsel’s questioning— is neither static nor stable. Such relationships tend to dissolve more readily with individuals moving between single-cohabitation-single status more frequently. (Id. at 114, 115, 118.) Analyzing data on the entire populations provides a more complete picture of the economic impact and incentives related to legislation that encourages marriage and captures a more accurate economic forecast. (Id.) Dr. Price’s opinion is more grounded in data than Dr. Badgett’s with respect to the potential loss of revenue to the State. Dr. Badgett opines only that some impact would result from the Act because the public employee no longer is taxed on the medical coverage being provided; the non-employee partner might turn to State medical coverage in the form of Medicaid; and it could lead to attrition which costs the local government to recruit and train. Dr. Badgett provides no actual loss figure, though. She cannot because these opinions are mere speculation. There is no attrition, tax loss, or other relevant costs
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 14 of 25
Pg ID 4600
provided. Nor does Dr. Badgett provide any information on the cost to public assistance or that there are even any existing data to review. Further, using Plaintiffs’ argument, that such a small number of public employers provide these benefits and so few employees of each utilize them, the off-set losses to the State and local governments would themselves be so minimal as to be inconsequential. Yet, the cost savings to the State or its local government are not so inconsequential. First, any savings relate directly to a compelling state interest—fiscal stability of its local governments. Second, the Act is one of many legislative actions in 2011 and later directed to the purpose. Third, the de minius standard recognized in Diaz v. Brewer 656 F.3d 1008 (9th Cir. 2011) and relied on by Plaintiffs, has had little or no application outside the Ninth Circuit. It certainly has not been adopted as a meaningful test in the Sixth Circuit. Thus, the Legislature reasonably anticipated costs savings from the Act, a legitimate government purpose. This satisfies the rational basis necessary to sustain the Act as constitutional.
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 15 of 25
Pg ID 4601
The Act promotes traditional marriage and other family relationships.
Defendant incorporates part I-D-1 and I-D-2 of the Brief in support of the State’s motion for summary judgment in response to Plaintiffs’ argument. (R. 84. Defendant’s Brief, ID ## 3133-3136) 3. P.A. 297 was not motivated by a discriminatory purpose.
Plaintiffs assert that the Act violates equal protection principles because its primary purpose and effect is to harm lesbians and gays. But that is untrue. Under Moore v. Detroit Sch. Reform Bd., 293 F.3d 352 (6th Cir. 2002), this Court must examine several factors to determine whether the Act was motivated by a discriminatory purpose or is unexplainable on grounds other than an intent to discriminate against gays and lesbians. a. The Act does not exclusively impact gays and lesbians.
Plaintiffs assert that the Act “falls directly and exclusively on employees with same-sex partners.” (R. 88, Plaintiffs’ Brief, ID# 38). Defendants do not dispute that the Act affects gay and lesbian partners. However, that impact, even if disparate, is insufficient to establish
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 16 of 25
Pg ID 4602
invidious discrimination. Moore, 293 F.3d at 369. Moreover, the Act effects any live-in partner arrangement outside of a traditional marriage, whether it’s homosexual, heterosexual, or platonic. And the Act excludes a wide array of familial members outside of what Plaintiffs term the “nuclear” family. This factor, therefore, does not advance Plaintiffs’ argument. b. The historical background of the Act does not reveal numerous discriminatory acts.
In November 2004, the People of Michigan exercised their state constitutional rights and amended the Constitution to preserve a traditional definition of marriage and the rights and relationships attendant to such marriages. In 2005, Attorney General Mike Cox was asked to provide an opinion under Mich. Comp. Laws § 14.32, regarding whether providing health benefits to same-sex partners on the basis of a relationship similar to marriage violated the plain language of the marriage amendment; he confirmed that it did. Mich. Atty. Gen. Op. 7171 (March 16, 2005). Shortly thereafter, in 2005, a group of unions and individual same-sex partners filed suit seeking a declaration that the provision of
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 17 of 25
Pg ID 4603
such benefits did not violate the marriage amendment. The Michigan Supreme Court disagreed based on the plain language of the marriage amendment. National Pride at Work, Inc. v. Governor, 748 N.W.2d 524 (Mich. 2008). Six years later, in January 2011, the Michigan Civil Service Commission voted to provide benefits to the same-sex partners of state employees, sparking the debate that lead to the passage of PA 297. This history does not reveal any acts taken with a discriminatory purpose, let alone numerous acts. This factor, therefore, does not advance Plaintiffs’ argument. c. The event leading to passage of PA 297 and its legislative history do not reveal that it was motivated by a discriminatory purpose.
As noted above and explained in Defendants’ brief in support of summary judgment, the Civil Service Commission’s policy extending benefits to the live-in partners of state civil service employees and event related events preceded passage of P.A. 297. It is safe to say that the Commission’s action upset numerous legislators because (1) many legislators considered it fiscally irresponsible for the Commission to increase benefits at a time when the State was in a financial crises, and (2) many found the Commission’s decision to be inconsistent with the 14
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 18 of 25
Pg ID 4604
purpose and intent of the marriage amendment itself. These concerns are evident from the face of the press releases issued by 9 of the 90 legislators who voted in favor of the act. (R. 88, Plaintiffs’ Ex. G1-G13, ID## 3670-3696). For example, one release provides that “ ‘[a]t a time when we are making every effort to cut spending and govern with greater accountability, it is utterly irresponsible for the Civil Service Commission to enact this policy[.]’ ” (R. 18-8, Ex. G-1, ID # 273-74). And the formal legislative analyses for P.A. 297 clearly demonstrate that costs were a major concern of the Legislature. See (R. 84, Defendant’s Exs. 3a, 3b; ID## 3176-3182). Moreover, this concern is consistent
with, and supported by, the fact that the Legislature adopted in the same time frame a number of measures seeking to address the financial crises facing numerous local governmental units. (R. 84, Defendant’s Brief, ID ## 3135-3137) To the extent that the Legislature erred or over-estimated the costs associated with providing the additional benefits, which is not proof of discriminatory motive. “Allegations that the Legislature acted with haste and did not engage in extensive fact-finding might be a
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 19 of 25
Pg ID 4605
legitimate and even a valid critique of its behavior, but it does not lead to an inference of [ ] discrimination.” Moore, 293 F.3d at 370. And with respect to the marriage amendment, as an example, one release provides: “The people of this state, the Attorney General and the Michigan Supreme Court have all decided in recent years that marriage is between one man and one woman and to extend health benefits to unions that do not fall into that category is disrespectful to the people. For a state organization such as the [Civil Service Commission] to blithely ignore these mandates is reprehensible.” (R. 18-8, Ex. G-1, ID # 273-74.) Four other releases contain similar expressions. See (R. 18-8, Exs. G-2 to G-5, ID # 276-82). These expressed concerns that the Civil Service Commission’s actions violated the Michigan Constitution do not show “animus” – hostility or antagonism – towards gays and lesbians based on their sexual orientation. On the whole, the press releases do not reveal a “legislative history” of the kind the Supreme Court recently found so troubling in United States v. Windsor, ___ U.S. ___; 133 S. Ct. 2675, 2693-2695; 186 L. Ed. 2d 808 (2013) (holding that federal Defense of Marriage Act was enacted for discriminatory purpose and violated Fifth
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 20 of 25
Pg ID 4606
Amendment). This factor, therefore, does not advance Plaintiffs’ argument. d. The Legislature did not depart from its normal procedural or substantive procedures in enacting PA 297.
Finally, Plaintiffs do not allege that the Legislature deviated from its normal procedural process. Rather, they allege the Legislature departed from its normal substantive process because PA 297 “is a unique departure from the State’s strong tradition of allowing municipalities to govern their own affairs” under “home rule” principles. (R. 88, Plaintiffs’ Brief, ID# 38). Plaintiffs assert that “[n]ever before has the legislature prevented a class of people from bargaining with local public employers (individually or collectively) for benefits.” Id. Yet, all at exclusively represented employees are excluded from bargaining for this benefit. Thus, the “class” affected by P.A. 297 is broader than gay and lesbian partners. And while it’s true that Michigan provides for home rule, local units of government have only those powers granted them by the State, and in this case public employers and public employees are already subject to regulation. For example, the Public Employment Relations Act, Mich. Comp. Law § 17
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 21 of 25
Pg ID 4607
423.201 et seq. imposes numerous requirements on public employers, including categories of prohibited and permissive subjects of bargaining. Mich. Comp. Laws § 423.210. The Michigan Employment Relations Commission oversees or resolves various issues attendant to the public employer/public employee relationship, Mich. Comp. Laws § 423.1 et seq., and the Michigan Employment Security Act, Mich. Comp. Laws § 421.1 et seq., imposes various obligations on employers as well. And as Defendant has noted previously, before enacting P.A. 297, the Legislature enacted 2011 P.A. 152 imposing a cap on public employer contributions for employee health benefits. Given this pre-existing regulatory structure, the Legislature’s decision to limit who may receive health and other fringe benefits from public employers to individuals in relationships recognized by law through P.A. 297 cannot be seen as a significant substantive departure from the Legislature’s normal procedural process. Like the others, this factor, therefore, does not advance Plaintiffs’ argument. As a result, Plaintiffs fail to demonstrate that P.A. 297 was motivated by an impermissible purpose to harm gays and lesbians.
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 22 of 25
Pg ID 4608
Even were Plaintiffs to prevail on the merits, and able to demonstrate they meet the prevailing criteria, they are not entitled to a permanent injunction against the Governor. A major purpose of the Declaratory Judgment Act was “to provide
an alternative [remedy] to injunctions against state officials.” Roark v South Iron R-1 School District , 573 F.3d 556, 562 (8th Cir. 2009) (quoting Steffel v. Thompson, 415 U.S. 452, 466-67 (1974))(emphasis in original.) Here, should Plaintiffs prevail on the merits and a declaratory judgment issue, a permanent injunction would merely provide a duplicative remedy. Putnam v. Davies, 960 F. Supp 1268 (S.D. Ohio, 1997). The practical issue in this case is the determination of the constitutionality of the State’s statute, P.A. 297. The court should assume the Governor will not direct state law enforcement officials, an executive function, to enforce the provisions of P.A. 297 declared to be unconstitutional. To engage in such action could potentially subject the State’s officials to damages under 42 U.S. C. § 1983—a sufficient enough deterrent to obviate the need for a permanent injunction, which itself is a disservice to the public interest and contrary to State’s sovereignty.
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 23 of 25
Pg ID 4609
Finally, abstract injury is not sufficient to support issuance of a permanent injunction. The threat of injury must be real, immediate, and the direct result of the challenged statute or official conduct. O’Shea v Littleton, 414 U.S. 488, 493-94 (1974). Past exposure to illegal conduct does not support issuance of a permanent injunction if unaccompanied by any continuing, present adverse effects. Id. at 49596; Los Angeles v. Lyos, 461 U.S. 95, 101-102 (1983). “[W]here the threat of repeated injury is speculative or tenuous, there is no standing to seek [permanent] injunctive relief.” Grendell v. Ohio Supreme Court, 252 F.3d 828, 833 (6th Cir. 2001). Plaintiffs have not and cannot establish grounds for permanent injunctive relief here. Should they prevail on the merits and a declaratory injunction issue, the likelihood of future harm either from this statute or from official conduct enforcing this statute is nil or speculative at best. Plaintiffs’ claim for permanent injunctive relief should be denied.
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 24 of 25
Pg ID 4610
CONCLUSION AND RELIEF REQUESTED Defendant Governor Snyder asks that the Court deny Plaintiffs’ motion for summary judgment and the requested relief for the reasons stated above; and for the additional reasons set out in State’s Brief in support of its motion for summary judgment. (R. 84.) Respectfully submitted, Bill Schuette Attorney General /s/ Margaret A. Nelson Margaret A. Nelson Assistant Attorney General Attorneys for Defendant Public Employment, Elections and Tort Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Nelsonm9@michigan.gov P30342 Dated: March 10, 2014
2:12-cv-10038-DML-MJH Doc # 95 Filed 03/10/14 Pg 25 of 25
Pg ID 4611
CERTIFICATE OF SERVICE (E-FILE) I hereby certify that on March 10, 2014, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record. A courtesy copy of the aforementioned document was placed in the mail directed to: Hon. David M. Lawson U.S. District Court for Eastern District of Michigan 231 W. Lafayette Blvd., Room 802 Detroit, MI 48226 /s/Margaret A. Nelson Assistant Attorney General Attorneys for Defendant Public Employment, Elections and Tort Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Nelsonm9@michigan.gov P30342
2:12-cv-10038-DML-MJH Doc # 95-1 Filed 03/10/14 Pg 1 of 1
Pg ID 4612
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI, DENISE MILLER and MICHELLE JOHNSON, Plaintiffs, v RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, Defendant. / INDEX OF EXHIBIT TO DEFENDANT’S REPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Exhibit No. 12 Description Joseph Price Deposition Excerpt pages: 85, 86, 114, 115, 118, 134 and 239 No. 2:12-cv-10038 HON. DAVID M. LAWSON MAG. MICHAEL J. HLUCHANIUK
2:12-cv-10038-DML-MJH Doc # 95-2 Filed 03/10/14 Pg 1 of 8
Pg ID 4613
2:12-cv-10038-DML-MJH Doc # 95-2 Filed 03/10/14 Pg 2 of 8
Pg ID 4614
2:12-cv-10038-DML-MJH Doc # 95-2 Filed 03/10/14 Pg 3 of 8
Pg ID 4615
2:12-cv-10038-DML-MJH Doc # 95-2 Filed 03/10/14 Pg 4 of 8
Pg ID 4616
2:12-cv-10038-DML-MJH Doc # 95-2 Filed 03/10/14 Pg 5 of 8
Pg ID 4617
2:12-cv-10038-DML-MJH Doc # 95-2 Filed 03/10/14 Pg 6 of 8
Pg ID 4618
2:12-cv-10038-DML-MJH Doc # 95-2 Filed 03/10/14 Pg 7 of 8
Pg ID 4619
2:12-cv-10038-DML-MJH Doc # 95-2 Filed 03/10/14 Pg 8 of 8
Pg ID 4620