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MailTribune.com
  • Judge challenges Detroit bankruptcy

    She says it violates state constitution, must be withdrawn
  • LANSING, Mich. — An Ingham County, Mich., judge ruled Friday that this week's historic Detroit bankruptcy filing violates the Michigan Constitution and state law and must be withdrawn.
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  • LANSING, Mich. — An Ingham County, Mich., judge ruled Friday that this week's historic Detroit bankruptcy filing violates the Michigan Constitution and state law and must be withdrawn.
    But Michigan Attorney General Bill Schuette said he will appeal Circuit Judge Rosemarie Aquilina's Friday rulings and seek emergency consideration by the Michigan Court of Appeals. He wants her orders stayed pending the appeals, he said in a news release.
    In a spate of orders Friday arising from three separate lawsuits, Aquilina said Michigan 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.
    "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 Michigan Constitution and the U.S. Constitution.
    Schuette's office issued a statement saying an appeal has been filed on behalf of the governor in all three cases before Aquilina.
    "In addition, the attorney general filed motions to stay the trial court rulings and any future proceedings while the appeals proceed," spokeswoman Joy Yearout said. "Later today, we expect to file additional motions seeking emergency consideration."
    Aquilina 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 accrued pension benefits," she said in her order.
    John Canzano, a Southfield, Mich., 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.
    Douglas Bernstein, a partner with Plunkett Cooney in Birmingham, Mich., said Aquilina's ruling is surprising.
    "This is generally how bankruptcies occur: You file bankruptcy when there is an impending crisis at the eleventh hour," Bernstein said. "You file bankruptcies to stave off litigation."
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