“Fifty-two percent of African-Americans in the state are under EM rule. The spirit of the Three/Fifths Compromise lives on in Michigan.”–Atty. Sanders
Opponents of “Dictator Act” 436 came from Flint, Detroit, Pontiac, Cincinnati, among other locations
Attorneys: justice will happen not in courts, but by taking it to the streets
Story by Diane Bukowski
Videos by Leona McElvene (except Democracy Now video on Flint water)
August 9, 2016
CINCINNATI, OH—Busloads of angry opponents of Michigan’s Emergency Manager (EM) Law, Public Act 436, descended on the Sixth Circuit Court of Appeals Aug. 4 to hear their attorneys’ oral arguments in front of a three-judge panel appointed by both former Bush Presidents. The 22 plaintiffs in the case, Phillips et al. v. Snyder, are asking the court to find the law broadly unconstitutional.
“This draconian law has only been used on African-American cities,” said long-time Detroit activist Les Little, organizer of one busload. “It’s nothing but Jim Crow in the 21st century. There is a steady flow of fascism creeping into our cities and across America. This is the most important case of our time.”
The Michigan Legislature passed PA 436 in the dead of night over the 2012 Christmas break, recalling Ku Klux Klan members who, torches blazing, galloped through Black communities in the South for decades, lynching, raping, and pillaging. The law allows Michigan Gov. Rick Snyder to remove duly-elected city and school district officials and appoint mini-dictators with full executive and legislative powers instead. He has done so only in majority-Black cities and school districts, which have been stripped of their public assets and even dissolved, in the case of the Detroit Public Schools.
Voters in 83 out of 86 counties repealed PA 436’s identical predecessor PA4 in November, 2012, only to see it replaced with a law made referendum-proof by inserting minor fiscal appropriations clauses.
Video above: Edith Lee Payne, who as a teenager marched with the Rev. Dr. Martin Luther King Jr. in Washington D.C. in 1963, comments on her reasons for going to Cincinnati. She is currently the Executive Director, Lee-Lovett Foundation (LLF).
The new Freedom Riders included city officials and residents of Flint, poisoned by lead-contaminated water under Michigan Gov. Rick Snyder’s EM Darnell Earley, Detroit school board members whose district has just been abolished under the same EM, Detroit city workers and retirees reeling from cuts imposed under an illegal bankruptcy filed by EM Kevyn Orr, and Pontiac city officials whose city has been stripped of its assets under a series of EM’s.
Pontiac City Councilman Kermit Williams, a plaintiff in the case, wore a T-shirt proclaiming: WE CAN LEAD.
“Sixty-thousand people in Pontiac have lost our city,” Williams told VOD during the ride to Cincinnati.
“After six years and three EM’s, 90 percent of the city has been privatized. We lost our Fire Department to Waterford, where EM Schimmel lives. Out of an original 800 city workers, we may have 35 left. They sold our water treatment plant, our golf course and even our cemeteries without the approval of City Council. They privatized the Buildings and Safety department and janitorial services. The EM signed a three-year snow contract with an outfit that had never plowed snow before. They don’t go from curb-to-curb, only down the middle of the street.”
But he said, “The saddest part for me is the 70 and 80 year old ladies who come to my office crying. They have lost any hope for democracy.”
The courtroom was packed with union members wearing green AFSCME T-shirts (Michigan AFSCME Council 25 is also a plaintiff), and others from Michigan’s beleaguered Black majority cities, as well as AFSCME supporters from Cincinnati. Additional chairs had to be set up in the rear to accommodate the overflow.
Senior Judge Richard F. Suhrheinrich, appointed to the bench in 1990 by the first Pres. George Bush, and Judges John M. Rogers and Richard Allen Griffin, appointed by former Pres. George W. Bush, listened to the oral arguments, allowing one-half hour per side.
Attorneys John Philo , Julie Hurwitz and Herbert Sanders argued for the plaintiffs from Detroit, Flint, Pontiac and Benton Harbor, listed below:
Elena Herrada, Russell Bellant, Catherine Phillips, Joseph Valenti, Michigan AFSCME Council 25, Tawanna Simpson, Lamar Lemmons, Donald Watkins, Kermit Williams, Duane Seats, Juanita Henry, Mary Alice Adams, William Kincaid, Paul Jordan, Bernadel Jefferson, Dennis Knowles, Jim Holley, Charles E Williams, Michael A Owens, Lawrence Glass, Deedee Coleman and Allyson Abrams
They are appealing U.S. District Court Judge George Caram Steeh’s ruling of Nov. 19, 2014 in the case. Steeh dismissed eight of nine claims at the state’s request, upholding only the claim based on the Equal Protection Clause of the 14th Amendment, which cited the discriminatory use of Emergency Managers only in Michigan’s majority-Black cities.
Steeh, who heard oral arguments in the case April 29, 2014, clearly waited for U.S. Bankruptcy Judge Steven Rhodes’ approval of the Detroit bankruptcy plan, despite having promised a speedy ruling after the oral argument.
The plaintiffs later had Steeh dismiss their Equal Protection claim without prejudice, meaning it can be brought back, then appealed the case as a whole to the Sixth Circuit, Key arguments from their brief (at ) are at left.
Philo told the Sixth Circuit judges there is no precedent for PA 436 in U.S. history. He noted that both the Sixth Circuit and the U.S. Supreme Court, while allowing states a lot of discretion under the 10th Amendment, have never approved replacing elected legislative representatives with appointed individuals. The plaintiffs argue in their brief that city and school board officials are by definition state legislative representatives.
“The Supreme Court has long held that the Voting Rights Act (VRA) of 1986 protects minority voters from having their votes canceled out,” Hurwitz argued. “PA 436 clearly violates Section 2 of the VRA. Votes end up meaning nothing when an Emergency Manager is appointed. PA 436 is unprecedented. This is not a voting dilution case but a voting elimination case, in which all governmental legislative authority in predominantly African American communities is completely vested in an Emergency Manager.”
Below: “Democracy Now” interview with Flint resident Nayirrah Shariff of the Flint Democracy Defense League
Sanders argued that PA 436 violates both the 1st and the 13th Amendments. He turned and waved his arm at Flint and Detroit residents crowding the court, telling the judges they were there to challenge the catastrophic poisoning of Flint’s water system, and the elimination of the Detroit Public School district under Emergency Managers.
“PA 436 singles out elected officials and deprives them of their right to speak within government on behalf of their electors,” Sanders said. “The right to vote at local levels has a significant impact on voters’ lives. . .For example, at one time the elected Detroit school board determined the curriculum and schoolbooks for Detroit students, but that power was taken away under PA 436.”
He noted that voters do not have an opportunity to take action against PA 436 as Judge Steeh claimed. The state legislature inserted fiscal appropriations clausea into it, making it referendum-proof under the state constitution.
To back up Hurwitz’ VRA claim, Sanders listed some of the 12 predominantly white cities not under EM control, but with similar or identical fiscal scores to majority Black communities that have EM’s. Although the state argued it no longer uses the fiscal scoring system, Sanders said it had been used through 2012.
“They include Crystal Falls, 98 percent white with a ranking of 7, Dearborn Heights, 83 percent white with a ranking of 8-9, and Jackson city, 68 percent white with a ranking as high as 7 at one time,” Sanders said. “Fifty-two percent of African-Americans in the state are under EM rule. The spirit of the Three/Fifths Compromise lives on in Michigan. It’s the same way slaveowners used slaves to enhance their political influence. They now put private profit-seeking corporations in charge of government. Just ask the people of Flint, and the parents of DPS students who are here today.”
Below: Freedom Riders on bus sponsored by AFSCME Council 25.
The crowd had difficulty keeping silent as Attorney Ann M. Sherman, representing defendants Gov. Snyder and former State Treasurer Andy Dillon, spoke.
“The plaintiffs challenge the wisdom of the Michigan legislature in passing PA 436,” Sherman said. “It does not run afoul of the Constitution. It is a restorative, temporary measure for the benefit of the state and its credit ratings. Local governments are a creature of the state. . . .The state does get to govern its municipalities. It has just reorganized local entities.”
Judge Rogers asked why powers like a school board’s authority over curriculum, which do not affect finances, are taken away under PA 436.
Below: Andrea Clark, leader of Mothers of Murdered Children, rode the bus to Cincinnati. Crime rates in cities affected by PA 436 have risen due to increasing poverty (59 percent of Detroit’s children live in poverty) brought about by measures like privatization of city jobs and services.
“Michigan for decades had Emergency Financial Managers who could only act in terms of financial decisions,” he said. “It has had decades of laws that have not fixed the situation. . . Can they just get tired and have everything run by the state?”
Judges Suhrheinrich and Griffin also asked at various points about the racial disparity in the application of PA 436.
Sherman claimed local elected officials are not removed from office, but just have their powers suspended temporarily. She said local governments can appeal the state’s rulings and even vote to remove the EM.
In fact, as noted in the plaintiffs’ brief, the Governor can simply appoint another EM after declaring another financial emergency.
“It’s temporary for a long time,” Bill Davis, President of the Detroit Active and Retired Employee Association (DAREA) said after the hearing. “Slavery lasted for hundreds of years.”
DAREA and other groups appealed the Detroit bankruptcy declaration to the Sixth Circuit Court of Appeals. Oral arguments on that case were held last month. DAREA packed that hearing as well.
AFSCME member Gerald Thompson reacted, “They were so disingenuous—don’t talk about disparate impact, the city is a creature of the state. Evidently the air you breathe, the land you have are creatures of the state as well. EM’s create the friends and families plan; they have a monopoly over citizens’ lives.”
Sayeed Sanders, interviewed by VOD during the bus ride, gave a broad analysis of the situation.
“They knew Detroit was a city with a strong union and Black movement background,” he said. “They couldn’t bring neoliberalism* into the U.S. without taking away the people’s democratic rights here and in Michigan. They are privatizing everything to make a profit.
“For the past 30 years, both Democrats and Republicans have bought into Reaganite policies, market solutions. Even President Obama didn’t move to deal with unemployment and foreclosures. There is no profit in keeping people in their homes. Even Obama’s health care program makes sure the insurance companies make a profit. Bernie Sanders at least signaled that the role of the government was to provide services, but the profit motive is so strong nobody in power cares. During the Democratic Convention, Hillary Clinton brought [retired Marine Corp.] General John Allen on stage. They’re talking about more war—a preview of things to come.”
The PA 436 Freedom Riders rallied on the steps of the Potter J.Stewart courthouse after the hearing, chanting, “No Justice, No Peace,” and listening to their attorneys’ analysis of the events, as heard in the videos in this story, courtesy of Freedom Rider and long-time community activist Leona McElvene.
Below, attorneys speak after hearing. Shown in front of video at the beginning is DAREA President Bill Davis.
Below, Attorney Herb Sanders is interviewed by Sayeed Sanders.
*VOD: Neoliberalism is a global free market economic philosophy that favors austerity for the people, privatization of government functions for profit, the deregulation of markets and industries, and other policies. It has dominated the world scene for the last 30 years, with the financial crisis of 2007-08 being one of its ultimate results.
To hear complete oral arguments, go to http://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=recent/08-04-2016%20-%20Thursday/15-2394%20Catherine%20Phillips%20v%20%20Richard%20Snyder.mp3&name=15-2394%20Catherine%20Phillips%20v%20%20Richard%20Snyder