"Michigan House of Representatives Floor" by Flickr user "lincolnblues." CC BY-NC-ND 2.0.

An MSNBC report by liberal journalist Rachel Maddow strongly condemned the current Republican leadership in Michigan for not following the state constitution. Instead, Republicans have passed bills subject to “immediate effect” without the required constitutionally required two-thirds majority vote in both houses of the legislature.

After more than a year of this, House Democrats have filed for a preliminary injunction and a writ of mandamus in state court, demanding that House Republicans actually count votes (that would be a mandamus order) and demanding an injunction against laws passed for “immediate effect” without the required two-third majority vote. They won. (Remember, this is just preliminary, and the Republicans have already appealed even this. Also note that I am not licensed to practice law in Michigan. Finally, one of the laws at immediate issue deals with graduate students unions — and I am an uneasy member of the graduate student union here in San Diego.)

Should a state legislative body be insulated from judicial scrutiny of its “internal” processes? Is ignoring actual vote counts, and simply declaring something to have “immediate effect” sufficient to make it so in the state of Michigan? What is the relationship between the three branches of government?

The Role of the Courts in the Legislative Process

The extensive Republican appeal (filed by the State Attorney General’s Office, an interesting intervention of the executive branch in the matter) argues that state courts have no business interfering with the legislature at all: “The circuit court’s enjoining of the immediate effect given Public Acts 45 and 53 of 2012 is unprecedented, and was an unprincipled decision barred by separation of powers principles and court precedents.”

Although I am not a Michigan lawyer, I find it hard to believe that the separation of powers principle in Michigan truly prohibits a court from ruling on legislative actions. In fact, in less than five minutes of searching, I found court precedent in favor of my belief — on the Michigan Legislature’s own website, in their own description of Article IV § 27, in case called Frey v. Department of Management and Budget.

First, what does Article IV § 27 of the Michigan Constitution say?

No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.

Frey v. Department of Management and Budget

In 1987, the Supreme Court of Michigan ruled that two-thirds rule of Article IV § 27 must be followed, and then proceeded to delay a law until ninety days had passed (note that this dealt with an initiative combined with legislative action, which is arguably different):

We hold that art 4, § 27, does apply to initiated laws enacted by the Legislature. Therefore, since the initiative was not given immediate effect by a two-thirds vote of each house of the Legislature, 1987 PA 59 may not go into effect until ninety days after the end of the session at which it was enacted. We affirm the decision of the Court of Appeals. Frey v. Department of Management and Budget, 429 Mich 315; 414 NW2d 873 (1987).

The Republican appeal dismisses all of Frey as essentially meaningless to the current fact pattern, focusing on its relevance only to the issue of referendums, and ignoring entirely the core argument above (presumably deciding the referendum language was binding, but the immediate effect language was merely dicta).

I find it difficult to ignore the language in Frey that a “two-thirds vote of each house” is required. Frey assumes the power of the Michigan courts to rule on legislative issues like two-third majorities, and Frey affirms the power of the courts to say when a law goes into effect. The Republican appeal fails to deal effectively with Frey.

Other Cases

Whatever the detailed reasoning of other cases cited by the Democratic response to the Republican appeal, it is at least clear that the circuit judge’s order is not “unprecedented.”

Thus, for example, Michigan Taxpayers United, Inc. v. Governor, 600 NW2d 401 (1999), where the Court of Appeals of Michigan upheld as “proper” the state legislature’s granting “immediate effect” the law in that case — but affirmed the right of the courts to rule on the properness of legislative process:

Whether the Legislature properly gave immediate effect to the bill is a question of law that we review de novo. (403)

The Role of the Courts and the Rule of Law

Marbury v. Madison, 5 U.S. 137 (1803) succinctly stated the role of the judiciary in the American system: “It is emphatically the province and duty of the judicial department to say what the law is.”

Without the check of the judiciary, there would be no true rule of law. The judicial branch exists because the legislative and executive branches — regardless of their own agreement, and regardless of the size of their majorities — must be checked. The solution to a court ruling on the constitutionality of an act is to change the constitution (but it’s hard to do that, unless you’re running an initiative in California).

Arguing the merits of their process before the courts is proper. Telling the courts to “leave us alone,” and accusing a judge of acting “improperly” for interfering with the legislative process — that’s not the rule of law. Violating your own state constitution just because you’re the Republican majority is also not the “republican form of government” guaranteed under Article IV of the United States Constitution, either.

The Elephant in the Room: The Federal Guarantee Clause, Due Process, and Equal Protection

“The United States shall guarantee to every state in this union a republican form of government,” reads Article IV, Section Four. The Supreme Court has held that this guarantee is given to the United States Congress, who affirms a state’s “republican form of government” every time it seats new members from that state. (Note that a “republican form of government” means a representative democracy, not rule by the Republican Party.)

More powerful in practice than Article IV, the Fourteenth Amendment prohibits the denial of individual rights by state governments. If the federal government were to be involved in the Michigan situation, it would likely involve arguments that House Republicans have denied “due process” and “equal protection” of the law to the citizens of Michigan.

Additionally, the Voting Rights Act of 1965 — which considers parts of Michigan to be subject to extra scrutiny due to a history of civil rights violations — would give additional weight to federal intervention in Michigan.

The Justice Department has the power to investigate under the Voting Rights Act. Citizens may also sue in federal court to enforce the Act. So far, this issue seems confined to Michigan state courts — but it may not stay that way.

Conclusions

The Republican appeal — written by the state’s Attorney General — argues that the court’s preliminary injunction ought to be reversed as an “unreasonable and unprincipled decision barred by separation of powers principles and court precedents.”

I argue, instead, that there is nothing “unreasonable” or “unprincipled” in the lower court’s decision, even if a more complete analysis of the law supports the actions of House Republicans.

Each branch of government has its purpose in the American system, and it is, as Marbury stated so long ago, the purpose of the judiciary to rule on law. Thus, a judge doing so is necessary to maintain the rule of law and a republican form of government — it is certainly not “unprincipled.”

Legislatures should not be — even if they sometimes are — insulated from judicial scrutiny. Ignoring one’s own constitution is illegal and morally wrong. A judge ordering a preliminary injunction while a trial investigates that possibility is both reasonable and principled. And an order of mandamus essentially requiring legislators to follow their own constitution does not appear to be much of a burden — unless that isn’t already happening.

More Resources

Some important primary source documents:

• The Democratic request for an injunction and writ
• The preliminary court order
• The Republican appeal
• The Democratic response

Critics say the lawyers left out important, relevant cases that would have pointed to different conclusions.

For example, in 1983, a Texas sheriff was tried for waterboarding prisoners. Justice Department prosecutors called the practice torture. But a 2002 Justice Department memo analyzing whether waterboarding is torture makes no mention of the case.

. . .
Maybe lawyers didn’t intentionally skew the law. Maybe they just missed the Texas case.

Wendel says that points to another ethics rule.

“Ethics rules can require good lawyering, so sloppy lawyering can be a violation of the duty of competence,” he says.

via Did Justice Department Lawyers Violate Ethics? : NPR.

The appellate case following up this Texas sheriff case was United States v. Lee, 744 F.2d 1124 (5th Cir. Tex. 1984). It took me some time to find using LexisNexis, partly because it refers to “waterboarding” as “water torture.” In addition, the appellate case cited above deals more with the severability of defenses rather than with torture itself – that was, apparently, dealt with at the trial court level (trial court decisions are much more difficult to find, and generally carry no precedential value anyway).

Certainly, given the limited information on this particular case, I don’t think it’s a slam-dunk ethical violation not to have cited it – although, that said, this was a case argued and won by the Justice Department itself. Every law firm and organization I’ve been in always has searchable records of their own briefs and cases. I doubt the Justice Department is any different. That fact certainly raises the bar for Justice Department lawyers.

Regardless of this specific instance, I think it’s important that these days, minimum ethical standards require online searching, not just looking in a few indices and printed journals. They may also require maintaining and searching a firm’s own briefs and cases (“knowledge management,” in IT terms) in more detail than merely using Lexis or Westlaw.

Certainly I’ll be interested, even outside of the specific investigation of these lawyers, in what the final report will say about attorney ethics and the importance of effective and comprehensive research.

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