Appeals Court denies any right of discovery in Emergency Manager litigation
Representatives of several Michigan cities and the Detroit Public School System have sued the Governor and Treasurer of the State, arguing that the Emergency Financial Manager Act is unconstitutional. Under the Act, the governmental entities have been taken over by an appointed or designated financial manager who has usurped the powers and duties of elected representatives. The affected local governmental entities argue that both in design and by application, the EFMA denies the municipal voters' civil rights and is inconsistent with our republican form of government.
After the Plaintiffs filed discovery requests seeking communications between the Governor and the Emergency Managers and expense records of the appointed managing representatives, the Defendants asked the Court to deny the Plaintiffs' right to discovery. They argued that since the lawsuit was an attack on the constitutionality of the Act, and not on its application, no discovery should be allowed. It was at this point that the Plaintiffs amended to allege that the Act was illegal both by design AND in application. The trial judge refused to limit discovery, noting Michigan's public policy of broad and far-reaching discovery in civil litigation, and the Defendants appealed.
The Court of Appeals noted that the Governor had requested of the Supreme Court that the litigation be granted expedited consideration. It also ruled that the discovery sought by the Plaintiffs was irrelevant to the constitutionality claim the Plaintiffs had raised. On that basis, it overruled the trial judge and refused the Plaintiffs any right of discovery. So this important case testing the legality and propriety of the denial of a fundamental right of citizenship and republican government will be decided without allowing access to the foundational data that would support or undermine the parties' various claims. This is the kind of legal decision that results from one party control of three branches of government.