You are on page 1of 8

2:17-cv-11742-MAG-DRG Doc # 47 Filed 06/19/17 Pg 1 of 8 Pg ID 1402



Plaintiffs, Case No. 17-cv-11742
Hon. Mark A. Goldsmith

et al.



On June 19, 2017, this Court held a hearing on Plaintiffs’ motion for a temporary

restraining order or, in the alternative, for a preliminary injunction (Dkt. 8). Because Plaintiffs

have not carried their burden to show that the circumstances clearly demand injunctive relief, their

motion is denied.


Plaintiffs are Wayne County residents who claim that the votes they cast in past millage

elections entitle them to halt financing related to the Little Caesar’s arena project in Detroit. See

Am. Compl. ¶¶ 16-17 (Dkt. 15). The defendants named in the motion for preliminary injunction

are the Detroit Downtown Development Authority and the Detroit Brownfield Redevelopment

Authority — entities created by local governments, pursuant to a state statute, for the purpose of

spurring economic growth and revitalization. Id. ¶¶ 18, 20-22.

In the City of Detroit’s November 2012 general election, voters approved the renewal and

2:17-cv-11742-MAG-DRG Doc # 47 Filed 06/19/17 Pg 2 of 8 Pg ID 1403

restoration of the 18-mills Detroit Public Schools Operating Millage. Id. ¶ 31. Plaintiffs argue

that Defendants plan to unlawfully use revenue generated from the school operating millage, as

well as the 2016 Wayne County Parks millage, for a purpose other than the purposes approved by

voters. See id. ¶ 165; Pl. Br. at 22. Specifically, Defendants allegedly will use approximately

$34,500,000 collected pursuant to these millages to fund certain aspects of the relocation of the

Detroit Pistons professional basketball team from Auburn Hills, Michigan, to Detroit. See Am.

Compl. ¶ 170.

According to Plaintiffs, Michigan statutes require that all millage proposals “fully disclose

each local unit of government to which the revenue from that millage will be disbursed,” Mich.

Comp. Laws § 211.24f(1). See Pl. Br. at 14; see also Am. Compl. ¶ 32. Plaintiffs also argue that,

pursuant to Mich. Comp. Laws § 380.1211, revenues levied for school operating purposes, in

particular, may only be used for that purpose. Pl. Br. at 10. Plaintiffs argue that both statutes have

been violated because the millage ballot proposals did not identify that Defendants would receive

the funds, and that the funds would be used for the non-school purpose of supporting the relocation

of the Pistons to Detroit. Am. Compl. ¶¶ 35, 44-45.

Although Plaintiffs’ amended complaint asserts several causes of action, the instant motion

for preliminary relief is only based on Plaintiff’s’ claim that Defendants’ alleged conduct violates

Plaintiffs’ fundamental right to vote.


When deciding whether to issue a preliminary injunction, a district court considers the

following four factors:

(1) whether the movant has a “strong” likelihood of success on the
merits; (2) whether the movant would otherwise suffer irreparable
injury; (3) whether issuance of a preliminary injunction would cause

2:17-cv-11742-MAG-DRG Doc # 47 Filed 06/19/17 Pg 3 of 8 Pg ID 1404

substantial harm to others; and (4) whether the public interest would
be served by issuance of a preliminary injunction.

McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th Cir. 1997) (en banc).

“These factors are to be balanced against one another and should not be considered prerequisites

to the grant of a preliminary injunction,” Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000),

but “[a] finding that there is no likelihood of success on the merits is usually fatal,” Lumpkins-El

v. Dep’t of Corr., 3 F. App’x 401, 402 (6th Cir. 2001). “A preliminary injunction is an

extraordinary remedy which should be granted only if the movant carries his or her burden of

proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Cnty.

Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).

A. Strong Likelihood of Success on the Merits

Plaintiffs have not shown a strong likelihood of success on the merits. The sole basis for

their motion for a TRO or preliminary injunction is that the perceived misuse of funds collected

pursuant to the millages violates their “fundamental right to vote.” See Pl. Br. at 8, 22. But

Plaintiffs have not demonstrated that the right to vote guaranteed by the United States Constitution

is somehow abridged by the violation of state laws regulating government financing that is subject

to voter approval. This is especially true here, where the alleged misconduct only occurred after

the votes had been, by all accounts, properly and fairly cast and counted.

Unquestionably, the right to vote — when the right is properly invoked — is

“fundamental.” Reynolds v. Sims, 377 U.S. 533, 562 (1964). But in determining whether the

federal constitution protects a particular invocation of that right, context is critical, as Reynolds

itself demonstrates. There, the Court found unconstitutional a state reapportionment plan that

diluted votes by drawing state legislative districts with grossly unequal numbers of voters. In

doing so, the Court vindicated the right to vote — not as a substantive right in itself — but only

2:17-cv-11742-MAG-DRG Doc # 47 Filed 06/19/17 Pg 4 of 8 Pg ID 1405

insofar as the state reapportionment plan debased the equality of the voters through unequal

districts. This “equal protection” reading of Reynolds is the view of the Sixth Circuit. See Phillips

v. Snyder, 836 F.3d 707, 716 (6th Cir. 2016) (“[T]he issue in Reynolds was the principle of one

person, one vote under the Equal Protection Clause. Any asserted right in Reynolds was in the

context of that Clause. Reynolds thus stands for a right to vote for state legislators on an equal

footing with other voters in the state rather than a stand-alone right to vote for legislators.”).

Thus the “fundamental” dimension of the right to vote is that citizens not be subjected to

disparate or discriminatory treatment that would bar or degrade the exercise of the franchise. See

Bush v. Gore, 531 U.S. 98, 104 (2000) (“[O]ne source of its fundamental nature lies in the equal

weight accorded to each vote and the equal dignity owed to each voter.”); Dunn v. Blumstein, 405

U.S. 330, 336 (1972) (“[A] citizen has a constitutionally protected right to participate in elections

on an equal basis with other citizens in the jurisdiction.”); Gray v. Sanders, 372 U.S. 368, 380

(1963) (“The idea that every voter is equal to every other voter in his State, when he casts his ballot

in favor of one of several competing candidates, underlies many of our decisions.”); see also

Bennett v. Yoshina, 140 F.3d 1218, 1225 (9th Cir. 1998), as amended on denial of reh’g and reh’g

en banc (June 23, 1998) (“Although federal courts may invalidate state election laws that deny

some voters equal protection of the law, unduly burden free speech, or violate a federal statute, we

must normally defer to the states’ regulatory interests when these federal rights are not


Here, Plaintiffs make no claim of disparate or discriminatory treatment. They were not

turned away from the polls based on some invidious classification. Neither free speech nor a

federal statute is implicated. Their sole claim is that the state laws regulating how government

financing authorization is secured have not been respected. However, simply because one aspect

2:17-cv-11742-MAG-DRG Doc # 47 Filed 06/19/17 Pg 5 of 8 Pg ID 1406

of that authorization process involves voter approval does not transform a disagreement about the

operation of such laws into a federal claim for denial of the right to vote. Otherwise, every dispute

regarding how later government action was taken following a ballot authorization would justify a

federal court lawsuit. The vacuousness of such a position is confirmed by Plaintiffs’ inability to

cite a single case that meaningfully supports their position that the fundamental right to vote

includes a “right” to have government actors implement the results of a referendum in a particular


Plaintiffs’ brief exhaustively recounts Michigan statutory law without citing a single

context-specific case dealing with the right to vote. See Pl. Br. at 19-20; see also Pl. Reply at 6

(Dkt. 27). They principally rely on South Haven v. Van Buren County Board of Commissioners,

734 N.W.2d 533 (Mich. 2007), which involved a state statute that required that proposals for voter-

approved tax levies for roads and bridges conform to a specific formula for distribution among the

county, cities, and villages. While the court held that the enactment of the millage had violated

the statute, it did not find any violation of a right to a vote; in fact, the aggrieved party was the city

that had lost out by virtue of the improper adoption. South Haven is hardly a precedent for finding

a federal constitutional right when millage proceeds are allegedly improperly used.

It is Plaintiffs’ burden to identify a viable legal basis for their claim. By pointing only to

Michigan statutes governing the contents of ballots and the uses of certain revenues, Plaintiffs have

not carried their burden to show that an alleged violation of these statutes implicates the right to


Defendants set forth a lengthy argument about how the Michigan statutes should be interpreted,
claiming that they have complied with the statutes. See Defs. Resp. at 13-20. This Court takes no
position on the correctness of this argument at this time.
2:17-cv-11742-MAG-DRG Doc # 47 Filed 06/19/17 Pg 6 of 8 Pg ID 1407

B. Irreparable Harm

“[P]laintiff’s harm is not irreparable if it is fully compensable by money damages.”

Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992). Here, Plaintiffs “seek the issuance

of a writ of mandamus compelling the Defendants to refund collected taxes to the taxpayers.” Am.

Compl. ¶ 167; see also id. ¶ 164. Plaintiffs only other alleged damages are statutory damages

under 18 U.S.C. § 1964(c) and attorney fees and costs. Id. at 64-66 (prayer for relief). Plaintiffs’

reply brief does not address this argument.

Of course, “when reviewing a motion for preliminary injunction, if it is found that a

constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.”

Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir.2001). As discussed above, however, this Court

does not find that a constitutional right is being threatened or impaired.

Because Plaintiffs complain of the misallocation of a sum certain, which could be

completely remedied by an order compelling the return of that money to the appropriate coffer,

Plaintiffs have not shown irreparable harm. This cuts strongly against the issuance of preliminary


C. Harm to Others

Another relevant consideration is whether issuance of a preliminary injunction would cause

substantial harm to others. Based on the proofs submitted to date, this Court concludes that this

factor, too, weighs against issuance of preliminary relief.

Plaintiffs conclude that “there is simply no conceivable evidence that the issuance of an

injunction in this case would cause any harm to anyone.” Pl. Br. at 32.

Defendants respond that, in fact, the injunction that Plaintiffs seek would cause great harm

to the City of Detroit by making it very likely that the DDA would default on $250 million in bond

2:17-cv-11742-MAG-DRG Doc # 47 Filed 06/19/17 Pg 7 of 8 Pg ID 1408

obligations, which in turn would greatly damage Detroit’s creditworthiness. See Defs. Resp. at 2.

see also Kantor Aff., Ex. 1 to Defs. Resp (Dkt. 24-2); Jensen Aff., Ex. 2 to Defs. Resp. (Dkt. 24-

3). And the Detroit Pistons’ relocation plans would not merely be delayed if an injunction issues;

instead, there is a significant likelihood that the plans would be canceled entirely, causing a ripple

effect of lost business revenue in the district for years to come. Id. at 3. Plaintiffs do not address

these claims in their reply.

Having considered the unrebutted evidence offered by Defendants that an injunction would

cause harm to them, as well as the City of Detroit and those living and working within it, this Court

concludes that this factor cuts against issuing an injunction.

The comparable harm faced by Plaintiffs if an injunction does not issue only highlights

how much is at stake for Defendants: Plaintiffs have not stated a cognizable right-to-vote claim,

suggesting that Defendants’ alleged wrongdoing is a matter of state law and, in any case, fully

compensable by money damages. It is not the type of harm that the extraordinary remedy of a

preliminary injunction is meant, or needed, to avoid.

D. The Public Interest

The fourth prong asks whether the issuance of an injunction would serve the public interest.

Of course, it is always in the public interest to enjoin the violation of citizens’ constitutional rights,

but as discussed above, no such violation is properly alleged here; and, rather than articulating how

those allegedly entitled to the revenues at issue would be harmed by the tax increment finance

plan, Plaintiffs’ allegations concerning the public interest pertain only to the public’s voting rights.

Defendants have submitted unrebutted evidence that, rather than serving the public interest, an

injunction would cause them harm — and most if not all of the harms that would befall Defendants

and the City of Detroit are harms that eventually would be felt by the public at large. The loss of

2:17-cv-11742-MAG-DRG Doc # 47 Filed 06/19/17 Pg 8 of 8 Pg ID 1409

anticipated commercial activity connected to the Detroit Piston’s downtown presence would be

regrettable, but the loss of the City’s hard-won creditworthiness caused by defaulting on existing

bond obligations, see Kantor Aff. ¶ 6(a), (b), would do catastrophic damage to the status quo.


For the reasons stated above, this Court concludes that each of the four preliminary-

injunction factors weigh against the issuance of an injunction at this time. Plaintiffs’ motion (Dkt.

8) is denied.


Dated: June 19, 2017 s/Mark A. Goldsmith
Detroit, Michigan MARK A. GOLDSMITH
United States District Judge


The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on June 19, 2017.

s/Karri Sandusky
Case Manager