Petition for Writ of Certiorari — Bylinski v. City of Allen Park

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Supreme OCowt, U.S.

No. FILLED

VRLTZ4 APR 26M.

OFFICE UF THE CLERK

In the

Supreme Court of the Hnited States

October Term, 1998

GLORIA BYLINSKI, GLORIA BELLMAN, ALLAN COLLINS, DENNIS

COATES, DOUGLAS HAMMAR, ROBIN HAMMAR, SANDRA

HOLIDAY, STEVEN HOLIDAY, ROBERT JARRELL, ANISE PIERCI

RICHARD PRESSEY, JIMMY SEACRIST, and MOLLY SEACRIST, and

all other persons similarly situated,

Petiti mers,

CITY OF ALLEN PARK, a Michigan municipal corporation, CHARTER

TOWNSHIP OF BROWNSTOWN, a Michigan municipal corporation,

CITY OF ECORSE, a Michigan municipal corporation, CITY OI

LINCOLN PARK, a Michigan municipal corporation, CITY OF RIVER

ROUGE, a Michigan municipal corporation, CITY OF ROMULUS, a

Michigan municipal corporation, CITY OF SOUTHGATE, a Michigan

municipal corporation, CITY OF TAYLOR, a Michigan municipal

corporat ion,

Jo nonvieonit

Ke SPOoNUde nis

PETITION FOR WRIT OF CERTIORARI

JOHN D. SWARTZ, ESQUIRI

Counsel of Record

PETER W. MACUGA II, ESQUIRI

615 Griswold Street, Suite 1520

Detroit, Michigan 48226

(313) 965-0045

Attorneys for Petitioners

Curry & Taylor Appellate Service (800) 222-8738 / Appellate@worldlynx.net

QUESTIONS PRESENTED

(here are two questions presented on appeal. First,

whether the Sixth Circuit opinion below is in direct conflict

with the Seventh Circuit regarding the applicetion of the All

Writs Act, 28 U.S.C. 1651(a), to obtain federal jurisdiction

Over non-parties in order to protect the integrity of a federal

consent decree. Second, whether the Sixth Circuit was

without authority when it upheld the finding of federal

jurisdiction over a third party state constitutional law claim

filed in state court so as to protect the integrity of a federal

consent decree, to which the Petitioners were not a party,

absent statutory authority.

PARTIES TO THE PROCEEDING

All of the parties on the caption were before the Court

of Appeals. Those parties were: Gloria Bylinski, Allan

Collins, Dennis Coates, Steven Holiday, Sandra Holiday,

Richard Pressey, Jimmy Seacrist, Molly Seacrist, Gloria

Bellman, Anise Pierce, Douglas Hammar, Robin Hammar,

Robert G. Jarrell, City of Allen Park, Charter Township of

Brownstown, City of Ecorse, City of Lincoln Park, City of

River Rouge, City of Romulus, City of Southgate, and City of

Taylor.

ill

TABLE OF CONTENTS

Page

Questions Presented ...........0ceee eee eee ees Say Gen 4

Parties to the Proceedings ...... ee eae oo oe a ae ae

Ce Oe NR is nk ccesscesoscceceryrosonscenss i]

lable of Authorities ...... SS sy A Py eye ct a

Opinions Below ............+00eeeee eres coaaoawens |

Statement of Jurisdiction ..........---+++005: oe ee

Statutory Provisions Involved .........----++e+eeeeeerees 2

Statement of the Case .......-.-cccccscceceeeecercseeees 2

A. Statement of facts ........ Be ne aie on Sines weg aah 3

B. Course of proceedings and disposition below ......... ©

Reasons for Granting the Writ ...........050+seee eee: ‘coun

1 THE PETITION SHOULD BE GRANTED

BECAUSE THE SIXTH CIRCUIT OPINION

BELOW IS IN DIRECT CONFLICT WITH

THE SEVENTH CIRCUIT REGARDING

THE APPLICATION OF THE ALL WRITS

ACT. 28 U.S.C. § 165l(a), TO OBTAIN

FEDERAL JURISDICTION OVER

NON-PARTIES IN ORDER TO PROTECT

THE INTEGRITY OF A_ FEDERAL

COIS T DUCE. one cs eve seccnsnecewssues ee ae

il. THE PETITION SHOULD BE GRANTED

BECAUSE THE SIXTH CIRCUIT WAS

WITHOUT AUTHORITY WHEN IT

UPHELD THE FINDING OF FEDERAL

JURISDICTION OVER A THIRD PARTY

STATE CONSTITUTIONAL LAW CLAIM

FILED IN STATE COURT SO AS TO

PRUIECT <THE (INTEGRITY OF» A

FEDERAL CONSENT DECREE, TO

WHICH THE PETITIONERS WERE NOT A

PARTY, ABSENT STATUTORY

ith) 44% PRM eRe eee erat Stee pees Psy RFE 13

COMICON > sos wen o0 nc Scanbisecsscneishexveisereets 19

Appendix

Exhibit A - Circuit Court Opinion ................... la

Exhibit B - District Court Opinion ................... 7a

Exhibit C - District Court Opinion .................. 29a

TABLE OF AUTHORITIES

Page

Cases

Agent Orange Product Liability

Litigation, 996 F.2d 1425 (2nd Cir.

ON ca Sues daane tov udew er ne cecenn RVEERES 9, 11

Alemite Mfg. Corp. v Staff, 42 F.2d 832

(2nd Cig, 99D) oc ccccecccccccccscccncetedneseseuenes 15

Application of County ¢ ‘ollector of

Winnebago County, 96 F.3d 890

(Ft Cie. 1996) ccc ccck csc cccnstnasscdeene: 12, 13, 16-18

Auburn Medical Center, Inc. v. Peters,

953 F.Supp. 1518 (M.D. Ala. 1996) ......------0+++) 10

Bylinski v. City of Allen Park, 8

F.Supp.2d 965 (1998) ........--e eee ee eee rere errr eee

Bylinski v. City of Allen Park, 1999

FED App. 0092P (6th Cir.) .....-...seee reeset eres ee es

Chase National Bank vy. City of

Norwalk, 291 U.S. 431 (1934) ..--- eee e reece eer e eee 15

Dunn vy. Carey, 808 F.2d 555 (7th Cir.

SY cc kecedeccdhapacdkeeentesas Re Dyno tr ry 16

Firefighters Local 93 v. City of

Cleveland, 478 U.S. 501 (1986) .....--.--ee eee eee ee 16

Hillman v. Webley, 115 F.3d 1461 (10th

Cie BOOTY icc cauvccueuvcenbrabense ssa nes cen eeanas 10

Martin v. Wilks, 490 U.S. 755 (1989) ....----+-- 15, 16, 17

Mongelli v. Mongelli, 849 F.Supp. 215

(S.D.N.Y. 1994) ....-cccccccccvsccsscecccrscvccecses 10

Pennsylvania Bureau of Correction v.

United States Marshals Serv., 474

Eis LT PD Cas Da baw ares cincwesan eb cekctivnn cone 10

Perkins v. City of Chicago Heights, 47

fe” arg y, Le Al.) DARPA cae ee eptage te Be IE: 16

Swetland vy. Cu-ry, 188 F.2d 841 (6th

Gris ROED. eh ebbevesh abbek bier vads Wakee dcenaheeeteti 15

Taxpayers Allied for Constitutional

Taxation v. Wayne County, 537

IN, Wik SO WENGE. BES CUDRS) cvccccsvccevasceccvens 10

Thompson v. Merrell Dow

Pharmaceuticals Inc., 766 F.2d

Fe SO aD. SSD. Siccw ken cess kacawi ee Ohkenubors 1]

United States v. Wayne County, Civ.

Action No. 87-70992 (E.D. Mich.,

PO IIR iis ds dow vue Uowes doxas ch bkia sc’, Sees

Vanguards of Cleveland v. City of

Cleveland, 23 F.3d 1013 (6th Cir.

POE ar oiee eh'nuye birch Peat TRREL bas Ce Riaae eke 14,18

Williams v. Vukovich, 720 F.2d 909,

ane CO Be, FS i kiss Ci bawawass eedsisechictees 15

Constitutional Provisions

Mich. Const 1965, wt. 9 OS) i Ke rin ew ee

Rem. Comet, T9653, OU DS Be ai os cactccinestnareanvasean 3

Rules and Regulations

PANE. Oss tanan cue tiereesuenensediacinaaueliaoueeten 7

RSC. GSC ics vss exch} i ciodes bata enea enone 15

Statutes

SOUS: 0 MAES oc ees g

S.C § 1251 et seq

‘L.A. § 600.308a

SO. S1SSt, TSS issn

S.C. §§ 1441(a) and (b) and 1446

LG. B FGSUR) ve ccvesveces

Petitioners, Gloria Bylinski, Allan Collins, Dennis

Coates, Steven Holiday, Sandra Holiday, Richard Pressey,

Jimmy Seacrist, Molly Seacrist, Gloria Bellman, Anise

Pierce, Douglas Hammar, Robin Hammar, and Robert G.

Jarrell, (hereinafter Petitioners) respectfully request that a

writ of certiorari be issued to review the judgment of the

United States Court of Appeals for the Sixth Circuit in this

case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit has been recommended for publication and

is reported at Bylinski v. City of Allen Park, 1999 FED App.

0092P (6th Cir.). App. A at la. Of the two opinions of the

United States District Court for the Eastern District of

Michigan, Southern Division, that are at issue, only one has

been published and can be found at Bylinski v. City of Allen

Park, 8 F.Supp.2d 965 (1998). App. B at 7a. The other

opinion of the District Court at issue and is unpublished has

been attached beginning at page 29a of the Appendix. App.

C at 29a.

STATEMENT OF JURISDICTION

The opinion of the United States Court of Appeals for

the Sixth Circuit was entered on January 25, 1999. App. A at

la. This Court is conferred jurisdiction upon this Petition

pursuant to 28 U.S.C. § 1245(1).

STATUTORY PROVISIONS INVOLVED

The All Writs Act, 28 U.S.C. § 1651(a), states:

(a) The Supreme Court and all courts

established by Act of Congress may issue all

writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the

usages and principles of law.

The Headlee Amendment, Mich. Const. 1963, art 9,

§ 31, states in pertinent part that:

Units of Local Government are hereby

prohibited from levying any tax not authorized

by law or Charter when this section is ratified

or from increasing the rate of an existing tax

above that rate authorized by law or Charter

when this section is ratified, without the

approval of a majority of the qualified electors

of that unit of Local Government voting

thereon.

STATEMENT OF THE CASE

The facts of this case are simple, straight forward, and

undisputed. The Respondents, in this case, assessed a local

tax upon real and personal property without a vote of the

qualified electors. In doing so, the Respondents intentionally

violated the Headlee Amendment to the Michigan

Constitution, Mich. Const. 1963, art. 9, § 31 (hereinafter

Headlee Amendment). Pursuant to the Michigan

Constitution and Michigan statutory law, jurisdiction of the

Se LS ee eee

Petitioners’ Headlee Amendment claim is vested exclusively

in the Michigan Court of Appeals or in the Circuit Courts for

the State of Michigan. Mich. Const 1963, art. 9, § 32;

M.C.L.A. § 600.308a.

Although federal jurisdiction, as set forth in 28 U.S.C.

§ 1331, 1332, is admittedly absent, the lower courts upheld

the removal of the Petitioners’ state constitutional law case

from state court because of the perceived interference of the

Petitioners’ case with the District Court's enforcement of a

consent decree in the federal district court case, United States

v. Wayne County, Civ. Action No. 87-70992 (E.D. Mich.,

Feikens, J.). Due to the lower courts use of Wayne County to

obtain jurisdiction over Petitioners’ state constitutional law

case, a review of the facts and procedures surrounding this

case and the Wayne County case is necessary in order to

address the jurisdictional issues raised herein.

A, Statement of facts

The federal case of Wayne County, supra., arose from

the State and Federal governments enforcement of the Clean

Water Act, 33 U.S.C § 1251 et seq. The purpose of the

federal lawsuit was t> ensure that Wayne County and the

downriver !ocal governments in Michigan, which included

the Respondents' in this action, complied with federal

affluent treatment levels. After ten years of litigation, the

government parties (the only litigants in Wayne County were

governments) in the federal case eventually negotiated a

mutually agreed upon Consent Decree and Final Judgment.

; The Respondents in this case are as follows: City of Allen Park,

Charter Township of Brownstown, City of Ecorse, City of Lincoln Park,

City of River Rouge, City of Romulus, City of Southgate, and City of

Taylor.

Pursuant to the Consent Decree and Final Judgment,

Wayne County issued limited tax obligation bonds to finance

the cost Wayne County incurred in its construction and

improvements to Wayne County's waste treatment facilities;

the repayment of Wayne County's limited tax obligation

bonds were solely the responsibility of Wayne County and

not the downriver local governments. The downriver local

governments were to reimburse Wayne County for part of the

cost Wayne County incurred in Wayne County's construction

and improvements to Wayne County's waste treatment

facilities.

In the Wayne County Final Judgment, the

Respondents expressly confessed their intent to violate the

Headlee Amendment to the Michigan Constitution, Mich.

Const. 1963, art. 9, § 31, so as to satisfy their assigned

reimbursement cost to Wayne County. The defendants in

Wayne County, which included the Respondents in this case,

agreed between themselves and "assured" the District Court

that the Respondents would not "contest" the imposition of

the tax; a tax that was in excess of, and in violation of,

applicable charter, statutory and constitutional limitations. In

other words, the Respondents’, agreed to willfully impose

upon the Petitioners, without prior popular vote approval of

the qualified electorate, a new tax, unconstitutional on its

face. To insure the government parties’ complacency

regarding the Respondents’ intent to violate the Headlee

Amendment to the Michigan Constitution, the District Court’

issued the an Injunction on May 12, 1994, whereby the

District Court enjoined any one, including non-parties, from

conducting any type of proceeding that would interfere with

. The same District Court judge presided over both this case and

the Wayne County case.

the implementation of Consent Decree and the Final

Judgment.

In accordance with their intent set forth in the Consent

Decree, the Respondents levied and collected a new tax

(hereinafter Judgment Tax) upon the Petitioners - residents

and taxpayers who reside within one of the Respondents.

Labeled variously as the sewer tax, EPA levy, or Wayne

County Judgment on the Petitioners’ real property tax bill, the

Judgment Tax was never submitted by the Respondents for

popular vote. nor was the Judgment Tax approved by the

Petitioners by popular vote pursuant to the Headlee

Amendment to the Michigan Constitution, Mich. Const.

1963, art. 9, § 31.

In addition, there are several important facts that

should be noted. First, the Petitioners were never parties or

in privity with any of the parties in Wayne County, supra.

Second, the Petitioners’ were never subject to the jurisdiction

of the federal court in Wayne County, supra. Third, the

Petitioners were uever provided notice of the Injunction.

Finally, and most importantly, the Petitioners never consented

to the Respondents levy and collection of the Judgment Tax.

In sum, the Respondents’ taxation of the Judgment Tax

violated the Headlee Amendment to the Michigan

Constitution, and thus, requires the Respondents to refund to

the Petitioners all monies the Respondents unconstitutionally

collected from the Petitioners.

B. Course of proceedings and disposition

below

On March 4, 1998, the Petitioners, on behalf of

themselves and all others similarly situated, filed suit in

Wayne County Circuit Court, State of Michigan, alleging a

sole state constitutional claim against the Respondents as a

result of the Respondents’ violation of the Headlee

Amendment to the Michigan Constitution, Mich. Const.

1963, art. 9, § 31. The unconstitutional tax at issue was

voluntarily levied and collected without consent by vote of

the qualified electorate in order to satisfy the Final Judgment

in Wayne County, supra.

On March 23, 1998, the Respondents, pursuant to 28

U.S.C. §§ 1441(a) and (b) and 1446, filed their Notice of

Removal. Following which, the Petitioners filed a Motion for

Remand, Motion for Recuse and Affidavit for

Disqualification of Judge on April 13, 1998. On April 15,

1998, the Respondents filed a Motion to Incorporate the

entire record of Wayne County, supra., into the record of this

proceeding.

The District Court heard oral arguments on the

Petitioners’ two Motions and Affidavit and on_ the

Respondents’ Motion to Incorporate the Record on May 21,

1998. At the conclusion of the hearing, the District Court

denied the Petitioners’ Motion for Remand, Motion for

Recuse and Affidavit for Disqualification of Judge and

granted the Respondents’ Motion to Incorporate the Record.

On June 9, 1998, the District Court issued a written Opinion

and Order Denying the Petitioners’ Motion to Recuse and a

written Opinion and Order Denying the Petitioners’ Motion

for Remand. In the Remand opinion the District Court held

that removal was proper because of the courts "inherent

power to enforce agreements entered into in settlement of

litigation pending before them." App. C at 30a- 31a (citations

omitted). The District Court also held that removal was

proper based upon the All Writs Act, 28 U.S.C. § 1651(a).

App. C at 3la. It is important to note that the District Court

did not find any independent basis of federal jurisdiction

beyond the perceived interference with the Consent Decree in

Wayne County, supra.

Also on June 9, 1998, the District Court entered in

Order granting the Respondents’ Motion to Incorporate the

Record.

On May 12, 1998, the Respondents tiled their Motion

for Summary Judgment pursuant to F.R.C.P. 56. On May 19,

1998, the Petitioners also filed a Motion for Summary

Judgment pursuant to F.R.C.P. 56. Before oral arguments

were heard on the Petitioners’ and Respondents’ Motions, the

Petitioners filed a Stipulation and proposed Order, in part,

amending the Petitioners’ Complaint as follows: adding the

City of Romulus and the Charter Township of Brownstown

as Defendants; adding Gloria D. Bellman, Anise Pierce,

Douglas Hammer, Robin Hammar and Robert G. Jarrell as

named Plaintiffs; and withdrawing George Coates d/b/a D&A

Collision as a named Plaintiff. On June 9, 1998, the District

Court entered the Petitioners’ aforementioned Stipulation and

proposed Order Amending the Petitioners’ Complaint.

On June 1, 1998, the District Court heard oral

arguments on both the Petitioners’ and the Respondents’

Motions for Summary Judgment. From that hearing, the

District Court issued a written Opinion and Order, on June 9,

1998, granting the Respondents’ Motion for Summary

Judgment dismissing the Petitioners’ case. In doing so, the

District Court significantly overextended the authority of a

federal district court to enforce federal judgments and

misconstrued and misapplied Michigan law regarding the

Headlee Amendment to the Michigan Constitution, laches,

and the Bigger Doctrine. The District Court also ignored the

Respondents’ express admission to violating the Headlee

Amendment.

On appeal to the Sixth Circuit, the Petitioners sought

review of the District Court's denial of the Petitioners’ Motion

for Remand and the District Court's grant of the Respondents’

Motion for Summary Judgment. Upon review, the Sixth

Circuit affirmed the District Court's Order denying

Petitioners’ Motion for Remand. According to the Sixth

Circuit, the federal court was conferred jurisdiction pursuant

to the All Writs Act, 28 U.S.C. § 1245(1), and pursuant to the

court's authority to protect the "integrity" of its consent

decrees.

The Sixth Circuit also affirmed the District Court's

grant of Respondents’ Motion for Summary Judgment.

However, unlike the District Court, the Sixth Circuit declined

to rule upon whether the Petitioners had stated a valid state

constitutional law claim; instead, the Sixth Circuit affirmed

only the District Courts finding that laches barred Petitioners’

Case.

REASONS FOR GRANTING THE WRIT

I. THE PETITION SHOULD BE GRANTED

BECAUSE THE SIXTH CIRCUIT OPINION

BELOW IS IN DIRECT CONFLICT WITH THE

SEVENTH CIRCUIT REGARDING THE

APPLICATION OF THE ALL WRITS ACT, 28

U.S.C. § 165l(a), TO OBTAIN FEDERAL

JURISDICTION OVER NON-PARTIES _ IN

ORDER TO PROTECT THE INTEGRITY OF A

FEDERAL CONSENT DECREE.

Petitioners request this Court to grant this Petition

because the Sixth Circuit opinion below is in direct conflict

with the Seventh Circuit regarding the application of the All

Writs Act, 28 U.S.C. § 1651(a), to obtain federal jurisdiction

over non-parties in order to protect the integrity of a federal

consent decree.

In affirming the’ District Court's denial of the

Petitioners’ Motion for Remand based upon the All Writs

Act, 28 U.S.C. § 1651(a), the Sixth Circuit held that:

We also agree that the district court correctly

invoked 28 U.S.C. § 1651(a), that All Writs

Act, which gives federal court the authority to

remove an otherwise unremovable state court

case in order to effectuate and prevent the

frustration of orders it has previously issued in

its exercise of jurisdiction otherwise obtained.

In re Agent Orange Prod. Liab. Litig., 996

F.2d 1425, 1431 (2nd Cir. 1993) (internal

quotation marks omitted).

App. A at Sa. However, contrary to the District Court's

Opinion and the Sixth Circuit's affirmation, the All Writs Act

is not a vehicle for establishing federal court jurisdiction. As

stated in Mongelli v. Mongelli, 849 F.Supp. 215 (S.D.N-Y.

1994), in declining to rely on the All Writs Act and thereby

holding the court lacked subject matter jurisdiction, the All

Writs Act is not a catch-all statute granting jurisdiction when

all else fails. Mongelli, supra. at 220. Or as this Court has

held:

Although that Act empowers federal

courts to fashion extraordinary remedies when

the need arises, it does not authorize them to

issue ad hoc writs whenever compliance with

statutory procedures appears inconvenient or

less appropriate.

Pennsylvania Bureau of Correction v. United States

Marshals Serv., 474 U.S. 34, 43 (1985). Most importantly,

the All Writs Act does not provide an independent basis of

jurisdiction; it can aid, but it cannot be relied upon as the sole

and singular basis of federal jurisdiction. Hillman v. Webley,

115 F.3d 1461 (10th Cir. 1997); Auburn Medical Center, Inc.

v. Peters, 953 F.Supp. 1518 (M.D. Ala. 1996).

Here, the Petitioners have asserted a s'ngle state

constitutional taxation claim. The state constitutional

provision at issue, the Headlee Amendment, Mich. Const.

1963, art. 9, § 31, was enacted to insure that certain

procedural and constitutional requirements are met before any

tax may be assessed, collected and/or levied against a

Michigan taxpayer. Taxpayers Allied for Constitutional

Taxation v. Wayne County, 537 N.W.2d 596, 450 Mich. 119

(1995). Application of the Headlee Amendment will not

interfere or set aside the District Courts Consent Decree or

i — ee —

Final Judgment. It is the assessment and levy of a municipal

tax by the Respondents to pay the amounts owed under the

Wayne County Final Judgment which is the core of

Petitioners’ claim. As the Petitioners’ Headlee Amendment

claim does not depend upon a question of federal law and a

jury can reach a finding as to the violation of the

constitutional provision without addressing a federal statute,

the Petitioners’ suit is not removable. Thompson v. Merrell

Dow Pharmaceuticals Inc., 766 F.2d 1005 (6th Cir. 1985).

Since there exists no independent basis for federal

court jurisdiction of the Petitioners’ state constitutional law

claim, the All Writs Act cannot be utilized to remove

Petitioners’ case. Briefly, however, the Petitioners’ respond to

the lower court's reliance on /n re Agent Orange Product

Liability Litigation, 996 F.2d 1425 (2nd Cir. 1993), for the

proposition that the All Writs Act supports removal of the

Petitioners’ Complaint.

In re Agent Orange Product Liability Litigation

involved an attempt by the plaintiff, who was an unnamed

class member in a federal court class action, to circumvent

the federal class action court settlement by filing suit in state

court.” The plaintiff, who never opted out of the federal class

action, souvht to re-litigate the same issues that were fully

decided upon by the federal class action.

[he Second Circuit found that "[a] review of the

arguments, orders and judgment in Agent Orange | makes it

crystal clear that the court in fact did determine the central

issue [raised by the plaintiff)". /n re Agent Orange Product

Unlike the plaintiff in /n re Agent Orange Product Liability

Litigation, the Petitioners were not parties or in privity with any of the

parties to the Consent Decree in the Wayne County case

| =)

Liability Litigation, supra. at 1432. Based upon this finding,

the Second Circuit upheld the district court's ruling that

federal jurisdiction was proper under the All Writs Act.

However, the Second Circuit was quick to point out the

limitations associated with the All Writs Act in obtaining

federal jurisdiction over state law claims: "In so holding, we

are not unmindful of the fact that the All Writs Act is not a

jurisdictional blank check which district courts may use

whenever they deem it advisable." /n re Agent Orange

Product Liability Litigation, supra. at 143}.

This case, instead, should be controlled by

Application of County Collector of Winnebago County, 96

F.3d 890 (7th Cir. 1996), as the two cases factually and

legally parallel each other. The plaintiffs in Winnebago

County challenged in state court the constitutional authority

of their local governmental officials who had imposed a local

tax in violation of the state constitution. The funds raised by

the alleged unconstitutional tax were to be applied as

payment on a federal consent decree. Much like in this case,

the enforcement of the plaintiffs’ state constitutional claim

would not set aside the federal consent decree, nor would it

undermine issues previously litigated and decided upon in the

previous federal court case. In reversing the district court's

application of the All Writs Act to obtain jurisdiction over the

plaintiffs’ state constitution case filed in state court, the

Winnebago County court held:

{[I]n a case such as this where a consent

decree was entered without findings of

liability or necessity, the All Writs Act does

not permit the removal of a third-party action

claiming that a party to the consent decree

acted without authority under state law.

Winnebago County, supra. at 901-902.

In contradiction to the express limitations to the All

Writs Act espoused by the Seventh Circuit, the District Court

and the Sixth Circuit utilized the All Writs Act simply to

preclude a collateral attack on a local tax as unconstitutional

pursuant to the Headlee Amendment to the Michigan

Constitution; the All Writs Act should not be used to hide the

Respondents agreement to violate the Michigan Constitution.

Therefore, because of the overwhelming factual similarities

and the divergent legal positions between the Sixth and

Seventh Circuits, this Court must grant this Petition in order

to rectify the conflict.

fl. THE PETITION SHOULD BE GRANTED

BECAUSE THE SIXTH CIRCUIT WAS

WITHOUT AUTHORITY WHEN IT UPHELD

THE FINDING OF FEDERAL JURISDICTION

OVER A THIRD PARTY STATE

CONSTITUTIONAL LAW CLAIM FILED IN

STATE COURT SO AS TO PROTECT THE

INTEGRITY OF A FEDERAL CONSENT

DECREE, TO WHICH THE PETITIONERS

WERE NOT A PARTY, ABSENT STATUTORY

AUTHORITY.

Petitioners request this Court grant their Petition

because the Sixth Circuit was without authority when it

upheld the finding of federal jurisdiction over a third party

state constitutional law claim filed in state court so as to

protect the integrity of a federal consent decree, to which

Petitioners were not a party, absent statutory authority. In

finding federal jurisdiction, the Sixth Circuit held:

The district court correctly noted that

implementation and enforcement of

compliance with the 1994 consent decree gave

it continued jurisdiction over the financing

agreements that constituted an integral part of

the order, citing Vanguards of Cleveland y.

City of Cleveland, 23 F.3d 1013, 1018 (6th

Cir. 1995). The court further found that the

instant lawsuit poses an imminent threat to the

integrity of the Financing Orders because it

could affect the financing mechanism in those

orders. We agree.

App. A at 4a, However, the lower court's reliance on

Vanguards of Cleveland for this proposition as applied in this

case is misplaced and unfounded.

The court in Vanguards of Cleveland never addressed

whether a district court could obtain federal jurisdiction over

a non-party's state constitutional law claim filed in state court

in order to effectuate a federal court consent decree never

agreed to by the state court plaintiffs. Instead, the focus of

Vanguards of Cleveland was on the authority the federal

courts have in modifying consent decrees. By applying the

rules pertaining to modification of consent decrees as

between parties to obtain jurisdiction over non-parties, as

occurred in this case, the Bylinski lower courts excessively

expanded federal court jurisdiction and significantly distorted

the holding in Vanguards of Cleveland.

Notwithstanding the fact that Vanguards of Cleveland

never touched upon the issue at hand. the foundation against

the extension of federal jurisdiction based upon a consent

decree, absent statutory authority, can be found in the

Vanguards of Cleveland opinion. According to the

Vanguards of Cleveland court, "[o]nce approved, the

prospective provisions of the consent decree operate as an

injunction.” Vanguards of Cleveland, supra. at 1018

(quoting Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.

1983)). And, it is because of the "injunctive quality" of the

consent decree that enables the court to retain jurisdiction

over the enforcement of the consent decree. Vanguards of

Cleveland, supra.

However, the courts injunctive authority is not

unlimited. It has long been held that "one is not bound by a

judgment in personam in a litigation in which he is not

designated as a party or to which he has not been made a

party by service of process." Martin v. Wilks, 490 U.S. 755,

761-762 (1989) (citations omitted). Similarly, an injunction

can have no force or effect upon one not a party to a legal

proceeding. F.R.C.P. 65(1)(d); Chase National Bank v. City

of Norwalk, 291 U.S. 431 (1934). The principle of limited

federal jurisdiction was best summarized by Judge Learned

Hand in Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2nd Cir.

1930). According Judge Hand:

[Njo court can make a decree which

will bind any one but a party; ... It cannot

lawfully enjoin the world at large, no matter

how broadly it words it decree. . . . It is not

vested with sovereign powers to declare

conduct unlawful; its jurisdiction is limited to

those over whom it gets personal service, and

who therefore can have their day in court.

Alemite Mfg. Corp., supra. at 832-833 (quoted in Swetland v.

Curry, 188 F.2d 841, 843 (6th Cir. 1981)).

The fact that a consent decree is at issue Joes not alter

this basic principle. "Consent decrees are contracts. Their

force comes from the agreement of the parties, not from the

statute on which the complaint was based." Dunn v. Carey,

808 F.2d 555, 559 (7th Cir. 1986) (citing Firefighters Local

93 v. City of Cleveland, 478 U.S. 501 (1986)). As this Court

held in Martin, supra., "{a] voluntary settlement in the form

of a consent decree between one group... cannot possibly

settle, voluntarily or otherwise, the conflicting claims of

another group . . . who did not join in the agreement."

Martin, supra. at 2188; See also Dunn v. Carey, 808 F.2d

555, 560 (7th Cir. 1986) ("Third parties, not even colorably

bound by the decree, also should be able to challenge the

authority of the person assenting to the decree."). "While

parties can settle their litigation with consent decrees, they

cannot agree to ‘disregard valid state laws’, (citations

omitted), and cannot consent to do something together that

they lack the power to do individually." Perkins v. City of

Chicago Heights, 47 F.3d 212, 216 (7th Cir. 1995)

This limitation of federal jurisdiction, even when the

court is attempting to protect the integrity of a consent decree,

was emphasized in Winnebago County, supra. As previously

noted, the Winnebago County plaintiff tax objectors filed suit

in state court alleging violations of Illinois state constitutional

tax law by the defendant school district, seeking a refund of

all taxes illegally collected by the defendant. "he taxes were

levied by the school district under the direction of a federal

court consent decree, entered in a previous case, which

sought to remedy alleged racial discrimination in the school

district; the plaintiff tax objectors were not a party to the

federal district court case.

The principal argument of the tax objectors was that

the school district did not have the authority to levy the

"consent decree" tax. The school district responded by

removing the plaintiffs’ state case. The federal district court

held that it had jurisdiction over the state law tax case

"because the state tax cases could effectively frustrate the

school district's implementation of the consent decree entered

in the discrimination lawsuit." Winnebago County, supra. at

892. The Seventh Circuit disagreed with the lower court.

According to the Seventh Circuit, "the tax objectors who

were not parties to the consent decree, are not bound by the

consent decree and are entitled to 'their own day in court’ to

challenge actions taken under the decree." Winnebago

Ceunty, supra. at 895 (citing Martin, supra. at 762). Asa

result, the Seventh Circuit held that:

Because a consent decree's force

comes from agreement rather than positive

law, the decree depends on the parties

authority to give assent... . Third parties, not

even colorably bound by the decree, .. .

should be able to challenge the authority of the

person assenting to the decree. Some rules of

law are designed to limit the authority of

public officeholders, to make them return to

other branches of government or to the voters

for permission to engage in certain acts. They

may chafe at these restraints and seek to evade

them; if they do, the people for whose

protection the restraints were created are

entitled to repair to the forums designed to

hear arguments that officeholders have acted

without authority.

Dube ae clean

Winnebago County, supra. at 901.

This extension federal jurisdiction to cover

non-parties when such non-parties conduct "poses an

imminent threat to the integrity of the [Consent Decree]"*

directly conflicts with the "injunctive quality"’ that govern the

court's authority over a consent decree. For this reason, this

Petition should be granted so that this Court can reaffirm the

basic principals of the court's authority over the enforcement

of a consent decree and thereby restrict the expansion of

federal jurisdiction absent statutory authority.

App. A at Sa.

Vanguards of Cleveland, supra. at 1018.

CONCLUSION

(he jurisdiction issues in this case provide the Court

with an excellent opportunity in which to clarify the

jurisdictional limitations placed upon the federal court's

enforcement of federal consent decrees. If the lower court's

opinions are allowed to stand unabridged, the potential for

further abuses by state governmental parties in using a federal

consent decree, and the power of the federal courts, when

compliance with state constitutional and statutory limitations

of their authority is inconvenient, will definitely increase. By

granting this Petition, the Court can not only prevent such

future abuses, but also rectify the direct conflict between the

Sixth and Seventh Circuits as to the application of the All

Writs Act to obtain federal jurisdiction over non-parties in

order to protect the integrity of a federal consent decree. In

doing so, this Court can reaffirm the basic principle of limited

federal jurisdiction. As such, Petitioners respectfully request

that their Petition for writ of certiorari be granted.

Respectfully submitted,

MACUGA, SWARTZ

and LIDDLE, P.C.

JOHN D. SWARTZ

PETER W. MACUGA I

Attorneys for Petitioners

615 Griswold, Suite 1520

Detroit, MI 48226

Dated: April 26, 1999

(313) 965-0045

GLORIA BYLINSKI et al., Plaintiffs-Appellants, v. THE

CITY OF ALLEN PARK et al., Defendants-Appellees.

No. 98-1725

UNITED STATES COURT OF APPEALS FOR THI

SIXTH CIRCUTI

1999 U.S. App. LEXIS 1221

January 25, 1999, Filed*

DISPOSITION: AFFIRMED.

COUNSEL: For GLORIA BYLINSKI, ALLAN COLLINS,

DENNIS COATES, STEVEN HOLIDAY, SANDRA

HOLIDAY, RICHARD PRESSEY, JIMMY SEACRIST,

MOLLY SEACRIST, GLORIA D. BELLMAN, ANISI

PIERCE, DOUGLAS HAMMAR, ROBIN HAMMAR,

ROBERT G. JARRELL, Plaintiffs - Appellants: Peter W

Macuga, Il, Macuga, Swartz & Little, Detroit, MI.

For THE CITY OF ALLEN PARK, CITY OF LINCOLN

PARK, CITY OF RIVER ROUGE, CITY OF SOUTHGATE,

CITY OF TAYLOR, MICHIGAN, Defendants - Appellees

Charles N. Raimi, R. Craig Hupp, Bodman, Longley &

Dahling, Detroit, MI.

* This was originally issued as an “unpublished decision"

filed on January 25, 1999. On March 5, 1999, the court

designated the opinion as one recommended for full-text

publication.

a... ———— sii, i a a

For CIETY OF ECORSE, Defendant - Appellee: R. Craig

Hupp, Bodman, Longley & Dahling, Detroit, MI.

For THE CITY OF ALLEN PARK, Defendant - Appellee:

Kenneth D. Kruse, Allen Park, MI.

For CITY OF ECORSE, Defendant - Appellee: Victor 1.

Mitea, laylor, MIL.

For CITY OF LINCOLN PARK, Defendant - Appellee:

t-dward M. Zelenak. Lincoln Park, MI.

For CITY OF RIVER ROUGE, Defendant - Appellee: David

A. Bower, River Rouge, MI.

For CITY OF SOUTHGATE, Defendant - Appellee: John F.

Gilhool, Southgate, MI.

For CIEY OF TAYLOR, MICHIGAN, Defendant - Appellee:

Carl B. Downing, Sommers, Schwartz. Silver & Schwartz.

Southfield, MI.

JUDGES: BEFORE: NELSON, SILER, and DAUGHTREY,

Circuit Judges

OPINION: PER CURIAM. This class action suit was brought

originally in state court by a group of disgruntled taxpayers

secking a refund of taxes paid and an injunction against

further taxation by the defendant municipalities, based on the

plaintitfs’ claim that the defendants lacked authority to levy

taxes without the referendum required by a recent amendment

to the Michigan state constitution. The defendants removed

the action to federal court, on the ground that the taxes in

question had been levied pursuant to a federal consent decree

entered four years earlier. Because the district court found

that it had continuing jurisdiction under the consent decree,

the court denied the plaintiffs’ motion to remand to state

court and granted summary judgment to the defendants on the

merits. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1994, the district court entered a consent decree in an

action brought by the State of Michigan and the United States

Environmental Protection Agency under the Clean Water

Act, 33 U.S.C. §§ 1251 et seq., to remedy illegal discharges

of raw sewage and other pollutants into Michigan waterways.

Pursuant to that decree, Wayne County and certain

down-river communities were directed to make cash

contributions to a fund to update wastewater treatment

facilities. The decree also effectively provided that

communities unable to make the mandated paymeuts would

be required to increase taxes in order to meet their

assessments. When a number of the municipalities were

forced to levy taxes to ensure compliance with the court

order, the citizen plaintiffs initiated this suit in Michigan state

court for a refund of their increased tax payments and to

enjoin further tax collections. The suit, however, was not

filed until four years after entry of the consent decree in the

federal action and three years after implementation of the

actual tax levies. By that time, the renovation projects were

85 percent completed or contracted, and approximately $ 220

million in bonds had already been sold.

lhe defendant communities successfully removed the suit to

federal court, alleging that the subject matter of the state

court action was inextricably intertwined with the viability of

the district court's 1994 consent decree. The district court

granted summary judgment in favor of the defendants on the

taxpayers’ claims that the tax levies violated provisions of the

Michigan constitution, finding (1) that the challenge to the

constitutionality of the tax levies was barred by laches, (2)

aii ' =

that the court had inherent power to enforce its judgments,

and (3) that the Michigan state constitutional provision

invoked by the plaintiffs was not applicable to the tax levies

in question, because they were authorized under state statutes

that predated the amendment to the state constitution.

ANALYSIS

Before this court, the plaintiffs contend that the district court

erred both in denying their motion for remand and in ordering

the municipalities to raise taxes without a vote of the

citizenry, allegedly in violation of a "tax revolt" provision of

the state constitution.

A. Jurisdiction

The district court correctly noted that implementation and

enforcement of compliance with the 1994 consent decree

gave it continued jurisdiction over the financing agreements

that constituted an integral part of the order, citing Vanguards

of Cleveland v. City of Cleveland, 23 F.3d 1013, 1018 (6th

Cir. 1994). The court further found that the instant suit "poses

an imminent threat to the integrity of the Financing Orders

because it could adversely affect the financing mechanism in

those orders." We agree.

We also agree that the district court correctly invoked 28

U.S.C. § 1651(a), the All Writs Act, which gives federal

courts the "authority to remove an otherwise unremovable

State court case in order to effectuate and prevent the

frustration of orders it has previously issued in its exercise of

jurisdiction otherwise obtained." In re Agent Orange Prod.

Liab. Litig., 996 F.2d 1425, 1431 (2d Cir. 1993) (internal

quotation marks omitted). It follows that the district court did

not err in denying the plaintiffs’ motion to remand to state

court.

B. Application of the Doctrine of Laches

In a detailed and well-reasoned opinion, the district court

ordered summary judgment for the defendants on three

alternative bases. Because we conclude that the challenge to

the consent decree is barred by the doctrine of laches, we find

it unnecessary to reach the question of the district court's

inherent authority to order the levy of taxes in this case, and

we decline to interpret the scope of the Michigan

Constitution, an exercise better left to the Michigan state

courts.

The doctrine of laches is an equitable principle that bars

recovery in circumstances in which a plaintiff's delay in

seeking a judicial remedy prejudices a defendant. To prevail,

a party invoking this equitable principle "must show that

plaintiffs unreasonably delayed in bringing suit and that

[defendants] were prejudiced by this delay." Environmental

Defense Fund v. Tennessee Valley Auth., 468 F.2d 1164,

1182 (6th Cir. 1972). In this case, the district court found that

the plaintiffs had waited to initiate their action until after the

municipal bonds to finance the court-ordered sewer project

had been authorized, issued, and sold. As noted above, by the

time the hearing occurred, the project was 85 percent

complete, at a cost of over $ 200 million. The court further

found that the plaintiffs had had ample notice of the

defendants’ intent to implement the consent decree through

the financing agreements contained in that order and yet did

not file suit until three years after they received their first

assessment. Finally, the court found that the defendants were

obviously prejudiced by the delay, given the outlay of funds

already expended and the near-completeness of the entire

project. With this conclusion, we also agree.

CONCLUSION

After a careful review of the briefs and the record in this case,

and having had the benefit of oral argument, we are not

persuaded that the district court erred in retaining jurisdiction

and in deciding that the action was barred by laches.

Moreover, because the reasons for dismissing the complaint

against the defendants were fully articulated in the district

court's opinions, we conclude that the issuance of another

detailed opinion is unnecessary to the correct determination

of this appeal. We therefore AFFIRM the judgment of the

district court, as provided in its order and opinion denying

plaintiffs’ motion to remand, dated June 9, 1998, and its

opinion and order granting defendants’ motion for summary

judgment of the same date.

GLORIA BYLINSKI, GLORIA BELLMAN, ALLAN

COLLINS, DENNIS COATES, DOUGLAS HAMMAR,

ROBIN HAMMAR, SANDRA HOLIDAY, STEVEN

HOLIDAY, ROBERT JARRELL, ANISE PIERCE,

RICHARD PRESSEY, JIMMY SEACRIST, and MOLLY

SEACRIST, and all other persons similarly situated,

Plaintiffs, v. CITY OF ALLEN PARK, a Michigan municipal

corporation, CHARTER TOWNSHIP OF BROWNSTOWN,

a Michigan municipal corporation, CITY OF ECORSE, a

Michigan municipal corporation, CITY OF LINCOLN

PARK, a Michigan municipal corporation, CITY OF RIVER

ROUGE, a Michigan municipal corporation, CITY OF

ROMULUS, a Michigan municipal corporation, CITY OF

SOUTHGATE, a Michigan municipal corporation, CITY OF

TAYLOR, a Michigan municipal corporation, Defendants.

Civil Action No. 98-71289

UNITED STATES DISTRICT COURT FOR’ THE

EASTERN DISTRICT OF MICHIGAN, SOUTHERN

DIVISION

June 9, 1998, Decided

June 9, 1998, Filed

COUNSEL: For Plaintiffs: Peter W. Macuga, II, Rene S.

Roupinian, Macuga, Swartz and Liddle, Detroit, MI.

For Cities of Allen Park, Ecorse, Lincoln Park, River Rouge,

Romulus, Southgate and Taylor, Defendants: R. Craig Hupp.

Charles N. Raimi, Bodman, Longley & Dahling, Detroit, MI.

For City of Lincoln Park, Defendant: Edward M. Zelenak,

Lincoln Park, MI.

For City of Taylor, Defendant: Patrick B. McCauley,

Sommers, Schwartz. Silver & Schwartz, Southfield, MI.

For City of Ecorse, Defendant: Victor T. Mitea, Taylor, MI.

For City of Southgate, Defendant: John F. Gilhool,

Southgate, MI.

For City of Allen Park, Defendant: Kenneth D. Kruse,

Pagnucco, Kruse & Tamsen, Allen Park, MI.

For City of River Rouge, Defendant: David A. Bower, River

Rouge, MI.

JUDGES: John Feikens, United States District Judge.

OPINIONBY: John Feikens

OPINION: OPINION AND ORDER GRANTING

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

l INTRODUCTION

Plaintiffs Bylinski et al., representative taxpayers in

defendant municipalities, bring this action against defendants

City of Allen Park et al. to obtain a refund of and to enjoin

further collection of property taxes imposed by the

municipalities pursuant to a consent decree entered by me on

May 12, 1994. United States v. Wayne County, 1994 U.S.

Dist. LEXIS 18775, Civil Action No. 87-70992 (E.D. Mich.

1994) ("Wayne County"). The Wayne County consent decree

references the structure of the Downriver Sewage Disposal

System 1994 Financing Plan and Final Judgment Re: 1994

Court-Ordered Improvements ("Plan"). It is a comprehensive

scheme of sewer improvements intended to bring these

defendant municipalities into compliance with the Clean

Water Act, 33 U.S.C. §§ 1251 et seq.

In 1987, the United States Environmental Protection Agency

(EPA) and the Michigan Department of Natural Resources

(now MDEQ) brought the Downriver Sewer Case (Wayne

County) against Wayne County, owner and operator of the

Wyandotte Wastewater Treatment Plant (WWTP). These

regulatory agencies added the local government units of

thirteen municipalities served by the WWTP. the

Southgate-Wyandotte Relief Drainage District, and the

Ecorse Creek Pollution Abatement Drain (collectively the

“Downriver Communities") as defendants in an amended

complaint. Defendant municipalities in the current case are

among the Downriver Communities in Wayne County. nl

The WWTP is operated by Wayne County pursuant to a

contract with the Downriver Communities dated March 1.

1962 (as amended from time to time).

[he EPA and MDEQ alleged that the WWTP violated the

provisions of the Federal Clean Water Act, 33 U.S.C. §§

1251 et seq., and the Michigan Water Resources Commission

Act, M.C.L. §§ 323.1 et seq., and that the wastewater flows

from the Downriver Communities were a major contributing

factor in the failure of the WWTP to comply with these Acts.

[he parties engaged in a court-supervised process to study,

design, construct, and fund sewer system improvements

intended expeditiously to protect public health and to bring

WWTP operations into compliance with the mandates of the

Federal Clean Water Act and the Michigan Water Resources

Commission Act. A monitor and a special master oversaw the

process to insure adequate progress toward achieving project

goals, and to report to the court.

In resolution of the claims in Wayne County, I entered a

Consent Decree (dated February 11, 1994) approving the

10a

agreement between the Wayne County parties. n2 | also

entered an order approving the Plan (dated May 12, 1994,

effective March 14, 1994). The Plan defines the process by

which the improvements constructed pursuant to the Consent

Decree will be financed. In paragraph nine of the Wayne

County judgment I stated:

Need for the Improvements. This Court

specifically finds, based on its review of

applicable law and the Project Plan, that (1) the

improvements are needed to comply with the

Federal Water Pollution Control Act and Act

245; and (ii) the installation, construction,

alteration, improvement and operation of the

Downriver Sewage Disposal System, as

described with the improvemenis, have been

ordered in accordance with the Consent

Decree, Act 320, Act 245, and the Federal

Clean Water Act.

In their complaint in this action, plaintiffs falsely stated:

"There is no other pending or resolved civil action arising out

of the transaction or occurrence alleged in this complaint."

Notwithstanding that statement, plaintiffs seek to enjoin

defendants’ compliance with the Plan. Ignoring the Wayne

County order of May 12, 1994 forbidding litigation of this

type, and ignoring the provisions of the Consent Decree

reserving continuing jurisdiction of this court in all matters

pertaining to the Consent Decree, they brought this action in

state court. Defendants removed the case to this court.

Plaintiffs claim that property taxes imposed by the

municipalities to satisfy the mandates in the Plan are illegal

and unconstitutional because the mandates in the Plan run

counter to the Headlee amendment to the Michigan

Constitution in that the taxes imposed by the defendant

communities exceed limits set by state law. They contend that

lla

because defendants levy these taxes without the approval of a

majority of the qualified voters of the applicable local unit of

government, they are not proper levies.

The Headlee amendment states: "Property taxes and other

local taxes and state taxation and spending may not be

increased above the limitations specified herein without

direct voter approval. . . ." MICH. CONST. of 1963, art. 9, §

25 (amended 1978). Article 9. §§ 26-34 of the Michigan

Constitution implements the Headlee amendment. The key

section states:

Units of Local Government are hereby

prohibited from levying any tax not authorized

by law or charter when this section is ratified

or from increasing the rate of an existing tax

above that rate authorized by law or charter

when this section is ratified, without the

approval of a majority of the qualified electors

of that unit of Local Government voting

thereon... .

MICH. CONST. of 1963, art. 9. § 31 (amended 1978),

Plaintiffs seek enforcement of their contentions by summary

judgment. Defendants reply that plaintiffs' claims are barred

by laches, that the Headlee amendment does not apply

because the taxes at issue are levied pursuant to statutes that

predate that amendment and are levied pursuant to this court's

approval of the Consent Decree, and that this court has

inherent power to enforce the Consent Decree and the Plan by

ordering these local government units to levy taxes, even if

these taxes exceed state Statutory or constitutional limits.

Defendants also move for summary judgment. I address

defendants’ motion for summary judgment first.

l2a

Il. SUMMARY JUDGMENT STANDARD

Summary judgment must issue when there is no genuine

issue as to any material fact, based on the pleadings,

depositions, answers to interrogatories, admissions of the

parties, and any affidavits. FED. R. CIV. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S.

Ct. 2548 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct.

1348 (1986). Movants have the burden of proving there is no

genuine issue of material fact. Id. Once movants meet this

burden, nonmovants "must set forth specific facts showing

that there is a genuine issue for trial." FED. R. CIV. P. 56(e).

Where movants bring a motion for summary judgment,

although the trial court views the evidence in a light most

favorable to nonmovants, Terry Barr Sales Agency, Inc. v.

All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996) (citation

omitted), nonmovants must nonetheless present significant

probative evidence to support their claim. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202.

106 S. Ct. 2505 (1986). "The mere existence of a scintilla of

evidence in support of the [nonmovants'] position will be

insufficient; there must be evidence on which the jury could

reasonably find for [nonmovants]." Anderson, 477 U.S. at

252.

Ill. ANALYSIS

Defendants seek summary judgment based on three legal

premises: (a) laches; (b) the tax levy is not subject to the

provisions of the Headlee amendment because the effective

dates of the statutes pursuant to which the levy is imposed

predate the effective date of that amendment; and (c) federal

courts have inherent power to order local government units to

levy taxes to pay their debt obligations, even if those taxes

l3a

exceed state statutory or constitutional tax limits. | address

this court's inherent power first.

A. Federal court's inherent power to order local government

| unit to levy tax.

In my approval of the Plan, I ordered the Downriver

Communities to pay their share costs in cash. However, the

order also stated that in the event any community failed to

pay in cash, the Plan provides a procedure by which the

community's assessing officer shall assess the judgment

payments in accordance with M.C.L. § 600.6093. The

defendant municipalities in this case did not pay their share

costs in cash. Therefore, under the terms of the Plan pursuant

to court order, these communities were obligated to levy

taxes to pay their share costs.

In City of Detroit v. City of Highland Park, 878 F. Supp. 87

(E.D. Mich. 1995), I held that a local government tax increase

necessitated by a valid federal court judgment is not within

the provisions of the Headlee amendment prohibiting

unauthorized tax increases. Id. at 89. I also held that "state

law cannot prevent a federal judge from enforcing his

judgments." Id.

Plaintiffs' entire case relies on the Michigan Court of

Appeals’ dismissal of these statements in American Axle &

Mfg., Inc. v. City of Hamtramck, 227 Mich. App. 135, 143,

575 N.W.2d 296, 299-300 (1997). In American Axle, the City

of Hamtramck (Hamtramck) appealed from a Michigan Tax

Tribunal order granting summary judgment for American

Axle & Manufacturing, Inc. (American) in American's action

challenging Hamtramck's tax assessment levied under M.C.L.

§ 600.6093. The court in American Axle affirmed the trial

court's decision and stated that despite the ruling in

l4a

Detroit, supra, the lack of analysis of the issue of a judgment

levy raising taxes beyond the constitutionally proscribed

level, along with the [Detroit] court's dismissal of further

analysis with the statement that Michigan law cannot prevent

the enforcement of the federal court's judgment, leads us to

believe that Detroit should be of little persuasive value in this

matter.

American Axle, 227 Mich. App. at 143.

The opinion in American Axle is not controlling and is

inapposite. American Axle refers only to decisions and orders

made by state courts. That court applied state constitutional

limits to the total amount of taxes imposed on property

owners, despite its admission that the Headlee amendment

did not apply to the statute pursuant to which the additional

taxes were imposed. The reasoning in American Axle is

erroneous and clearly inapplicable in cases in which local

government units impose taxes that exceed state

constitutional or statutory limitations, pursuant to federal

court orders. American Axle overlooks and disregards federal

cases that teach thet neither state laws nor state constitutions

control a federal court's application or enforcement of federal

law. In particular, in its dismissal of the reasoning in Detroit,

the court in American Axle failed to address Missouri v.

Jenkins, 495 U.S. 33, 109 L. Ed. 2d 31, 110 S. Ct. 1651

(1990).

In Jenkins, state law authorized the Kansas City, Missouri,

School District to assess local property taxes only up to $

1.25 per $ 100 of property valuation unless a majority of the

voters in the district approved a higher levy, up to a limit of $

3.25 per $ 100. The statute stated that the school district

could assess a levy higher than $ 3.25 only if two-thirds or

more of the voters approved. n3 The United States Supreme

Court held that a federal district court could enjoin the

—..——g——— <i

lSa

operation of state laws or constitutional provisions that

prevented a local government unit from raising property taxes

beyond prescribed limits without an electorate vote, and order

the local government unit to levy taxes adequate to fund its

obligations under a federal court order: "{A] court order

directing a local government body to levy its own taxes is

plainly a judicial act within the power of a federal court."

Jenkins, 495 U.S. at 55 (citing Griffin v. Prince Edward

County Sch. Bd., 377 U.S. 218, 233, 12 L. Ed. 2d 256, 84 S.

Ct. 1226 (1964)). The Court stated:

Griffin followed a long and venerable line of

cases in which this Court held that federal

courts could issue the writ of mandamus to

compel local governmental bodies to levy

taxes adequate to satisfy their debt obligations.

See, e.g., Louisiana ex rel. Hubert v. Mayor

and Council of New Orleans, 215 U.S. 170, 54

L. Ed. 144, 30 S. Ct. 40, . . . (1909); Graham

v. Folsom, 200 U.S. 248, 50 L. Ed. 464, 26 S.

Ct. 245, . . . (1906); Wolff v. New Orleans,

103 U.S. 358, 26 L. Ed. 395, . . . (1881):

United States v. New Orleans, 98 U.S. 381, 25

L. Ed. 225,. . . (1879); Heine v. Levee

Commissioners, 86 U.S. 655, 19 Wall. 655.

657, 22 L. Ed. 223 (1874); City of Galena v.

Amy, 72 U.S. 705, 5 Wall. 705, 18 L. Ed. 560

(1867); Von Hoffman v. City of Quincy, 71

_ U.S. 535, 4 Wall. 535, 18 L. Ed. 403 (186[6});

Board of Commissioners of Knox County v.

Aspinwall, 65 U.S. 376, 24 HOW 376, 16 L.

Ed. 735 (1861).

Jenkins, 495 U.S. at 55-56 (emphasis added). Addressing the

State's argument that even under these cases "the federal

judicial power can go no further than to require local

l6a

governments to levy taxes as authorized under state law." the

Court disagreed and noted that "this argument was rejected as

early as Von Hoffman v. City of Quincy . . . ." Id. at 56: Von

Hoffman v. City of Quincy, 71 U.S. 535, 4 Wall. 535. 18 L.

Ed. 403 (1866)). Finally, the Court stated, "It is . . . clear that

a local government with taxing authority may be ordered to

levy taxes in excess of the limit set by state statute where

there is reason based in the [United States] Constitution for

not observing the statutory limitation." Id. 495 U.S. at 57.

he Consent Decree and orders in Wayne County remedy the

defendant municipalities’ violation of federal law. In oral

argument on the summary judgment motions in this case.

plaintiffs’ counsel asserted that the Headlee amendment must

violate federal law before a federal court may order a

Michigan local government unit to impose taxes that exceed

the limitations imposed by that amendment. That is not

correct. Under Jenkins, when a federal court determines that a

local municipality's actions violate a federal statute that is

based on provisions of the United States Constitution (in this

case defendant municipalities violated the Federal Clean

Water Act, 33 U.S.C. §§ 1251 et seq., enacted by Congress

empowered by provisions in the Constitution), the court may

order a local government unit with taxing authority to levy

taxes adequate to satisfy the municipality's debt obligations

incurred in complying with federal law, even if the taxes

exceed state constitutional and statutory limitations. In other

words, Jenkins permits a federal court to enjoin operation of

state statutes and constitutional provisions prohibiting a local

government unit from levying taxes at a rate above limits set

by state law without majority electorate approval. n4_ Thus.

the defendant municipalities’ tax levies are valid and

enforceable, even if the Headlee amendment would otherwise

apply.

|. Constitutional basis: General health and welfare.

oe —

17a

The United States Constitution grants Congress the power to

provide for the general welfare of the United States. U.S.

Const., art. I, § 8, cl. 1. In H.R. REP. No. 89-215 (1965), the

Committee on Public Works, to whom a bill to amend the

Federal Water Pollution Control Act (now known as the

Clean Water Act, 33 U.S.C. §§ 1251 et seq.) to establish the

Federal Water Pollution Control Administration was referred,

Stated:

No more important single problem faces this

country today than the problem of "good

water." Water is our greatest single natural

resource. The issue of pure water must be

settled now for the benefit not only of this

generation but for untold generations to come.

The need for good quality water for all of our

Nation's _uses--public and private--is a

paramount one.

** *

The Committee on Public Works has been

fully aware of this basic problem and from this

committee came the first legislation that

brought into full focus this problem of water

pollution and water quality.

H.R. REP. No. 89-215, at | (1965) (emphasis added). This

states Congress’ intention that this Act protect, and improve,

the general welfare of the United States. In United States v.

Aluminum Co. of Am., 824 F. Supp. 640 (E.D. Tex. 1993),

the court notes that "the objective of the [Clean Water Act] is

to protect human health, welfare, and the environment. to

eliminate the discharge of all pollutants to waters of "eT

the United States, and to restore the chemical. physical, and

biological integrity of the Nation's waters." Id. at 645 (citing

l8a

33 U.S.C. § 1251(a)). Thus, this court's enforcement of the

consent decree to levy taxes to correct water pollutior

problems pursuant to the provisions of the Clean Water Ac

(despite a state statutory limitation on taxation) has <

Constitutional basis, and is valid under the Missouri v.

Jenkins reasoning.

2. Constitutional basis: Commerce Clause.

Congress may use its power under the Commerce Clause to

regulate interstate commerce and any matter that might

significantly impact on interstate commerce, including

pollution of the navigable waters of the United States. U.S.

Const., art. I, § 8, cl. 3; See, e.g., United States v. Holland.

373 F. Supp. 665, 671-73 (M.D. Fla. 1974) (stating Congress

intended to use the full extent of the commerce power under

the Constitution to protect and improve the waters of the

United States). One commentator notes that "federal authority

under the commerce clause is extensive. Activities can be

regulated under the clause because of their effect on interstate

commerce.” FRANK F. SKILLERN, ENVIRONMENTAL

PROTECTION DESKBOOK § 4.04 (2d ed. 1995). This

includes activities resulting in pollution of the waters of the

United States, such pollution having an effect on, or the

potential to effect, interstate commerce. Congress’ commerce

power is another Constitutional basis for this court's

enforcement of a local government unit tax levy to satisfy the

mandates of the Clean Water Act, despite state statutory or

constitutional limitations on taxation.

B. Laches.

Plaintiffs’ claims are also barred by laches. "To demonstrate

laches, a party must establish (1) lack of diligence by the

party against whom the defense is asserted, and (2) prejudice

to the party asserting the defense.”

Apache Survival

19a

(quoting Costello v. United States, 365 U.S. 265. ad 5 1.

Ed. 2d 551, 81 S. Ct. 534 (1961)); S.E.R.. Jobs For Progress,

Inc. v. United States, 759 F.2d 1, 5 (Fed. Cir. 1985);

Environmental Defense Fund v. Tennessee Valley Auth., 468

F.2d 1164, 1182 (6th Cir. 1972) (stating: "To prevail,

appellants must show that plaintiffs unreasonably delayed in

bringing suit and that appellants were prejudiced by this

delay. ..."). "The application of the laches doctrine is within

the sound discretion of the district court." Azalea Fleet, Inc.

v. Dreyfus Supply & Mach. Corp., 782 F.2d 1455. 1458 (8th

7+ doe Fu JV

96 L. Ed. 31, 72 S. Ct. 12 (1951)).

Here, defendants correctly assert that plaintiffs waited to

institute their suit until after bonds had been issued and sold.

Indeed, the project addressed by the Wayne County consent

decree and related orders is 85% compete. Through

publication and public hearings, plaintiffs had ample notice

of defendants’ intentions to finance the project through bond

sales. Yet plaintiffs did not bring this suit until three years

after first being assessed for the cost of the sewer and waste

water treatment improvements, after more than $ 220 million

in bonds had been sold, and after the improvement project

was 85% completed. Plaintiffs’ delay clearly prejudices

defendant municipalities. For this reason. it is inequitable to

enforce plaintiffs’ claims against defendants: they are barred

by laches.

Notably, although Michigan law does not control in this

action, it does apply to plaintiffs’ Headlee amendment claim

and is consistent with federal case law. Michigan law states

that where a plaintiffs claims are untimely, a court may

"refuse to adjudicate on the merits the claims set forth in the

complaint." Eby v. Lansing Bd. of Water & Light, 417 Mich.

297, 306 n.10, 336 N.W.2d 205 (1983) (citing Bigger v. City

20a

of Pontiac, 390 Mich. 1, 210 N.W.2d 1 (1973)). The doctrine

of laches is an equitable principle that bars recovery in

circumstances in which a plaintiff's delay in seeking judicial

remedy prejudices a defendant. "Laches is not the mere

passage of time, but is rather the passage of time combined

with a change in condition which would make it inequitable

to enforce a claim against the defendant." Tray v. Whitney,

35 Mich. App. 529, 536, 192 N.W.2d 628 (1971). However,

statutes of limitation may apply by analogy to equitable

claims. Taxpayers Allied for Constitutional Taxation v.

Wayne County, 450 Mich. 119, 127 n.9, 537 N.W.2d 596

(1995).

Michigan courts have applied the laches doctrine to bar

Headlee claims. See Bigger v. City of Pontiac, 390 Mich. 1,

4-5, 210 N.W.2d 1 (1973) (stating that in cases holding that

in the financing of public projects by municipalities, if

objecting plaintiffs do not resort to the courts "within the

context of the time available for adjudication" and without

delay, courts may refuse to hear the cases); Sessa v. Macomb

County, 220 Mich. App. 279, 286-88, 559 N.W.2d 70 (1996)

(stating that even though plaintiffs brought suit within an

applicable one year statute of limitations pursuant to M.C.L.

§ 600.308a(3), identical to the statute of limitations for

Headlee-type claims. the suit was barred by laches). As

interpreted by the court in Sessa, the preclusive doctrine of

laches, detailed in Bigger, 390 Mich. at 4-5, "is designed to

deal with challenges that could prevent or frustrate public

improvements in general." Sessa, 220 Mich. App. at 286. The

court in Sessa also noted:

An equally important aspect of the Bigger rule

comes into play here where suit was not begun

until after the bonds had been issued and sold

on the open market. The interests of third

parties, the bondholders, who are bona fide

2la

purchasers for value and who, at the time of

purchase, were not on notice of any such

challenge, represents a vested interest that the

entertaining of such litigation on its merits

could defeat. In this regard, therefore, the

Bigger rule is distinct from the statute of

limitations and simply obligates those who

would challenge such action to move

promptly.

Sessa, 220 Mich. App. at 287 (citing Walled Lake Consol.

Sch. Dist. v. Commerce Charter Township, 174 Mich. App.

434, 436-37, 437 N.W.2d 16 (1989)) (emphasis in original).

Sessa noted that although the Bigger rule predates the 1978

Headlee amendment to the Michigan constitution, it is not

undermined by that amendment.

Nothing in the text of Const 1963, art 9, §§

25-34 addresses the Bigger principle or

purports to limit or abolish it in taxpayers [sic]

suits authorized by Const 1963, art 9, § 32 [the

standing/enforcement provision]. The

Legislature has carefully protected taxpayer

interest in this regard, however, in fulfillment

of the mandate of Const 1963, art 9, § 34, by

requiring notice of intent to bond to be

published, MCL 123.958b(3); MSA

5.301(8b)(3).

Sessa, 220 Mich. App. at 287. Bigger applies even if

plaintiff's claim is legal rather than equitable.

That plaintiff couches part of its claim as legal rather than

equitable does not distinguish this case from Bigger. The

import of Bigger is that where a plaintiff seeks to employ the

22a

judicial process to challenge a project duly adopted by the

appropriate government officials, it must do so in a timely

manner. . . . In this instance, waiting for two years to enjoin

the plan's proposed method of collecting revenue or to

compel the payment of revenue to plaintiff is not justified.

Walled Lake Consol. Sch. Dist., 174 Mich. App. at 438.

Thus, both Federal and Michigan laches doctrine bar

plaintiffs’ claims.

C. Tax ievy not subject to the provisions of the Headlee

amendment.

When laches prevents a suit, the court need not consider

constitutional challenges in that case. Thatcher Enterprises v.

Cache County Corp., 902 F.2d 1472, 1475-76 (10th Cir.

1990) (stating that because plaintiffs waited seventeen years

from the time they should have known, and nine years from

the time they actually knew, of the County's actions to make

chalienges to a zoning ordinance, plaintiffs’ constitutional

challenges were barred by laches); Peter Henderson Oil Co.

v. City of Port Arthur, Texas, 806 F.2d 1273, 1275 (Sth Cir.

1987) (stating that because appellants waited over five years

after the cause of action arose to challenge an

unconstitutional delegation, the challenge was barred by

laches); see also Edel v. Filer Township, 49 Mich. App. 210,

211 N.W.2d 547 (1973). I nevertheless address plaintiffs’

constitutional (Headlee amendment) challenges under

Michigan law. n5

In oral argument, plaintiffs’ counsel began with a

misinterpretation of the Headlee amendment, stating that

"Michigan law is clear, at section thirty-one of the Headlee

amendment to [the] Michigan Constitution, that any tax not

in existence on November 7th, 1978, or authorized to exist by

ordinance or statute is unconstitutional if not approved by the

23a

people before imposition and collection." A correct reading

of the Headlee amendment, MICH. CONST. art. 9, § 31

(ratified Nov. 7, 1978, effective Dec. 23, 1978), is that it

prohibits local government units from levying any tax not

authorized by law or charter, and from increasing the rate of

an existing tax above that rate authorized by law or charter,

existing when the amendment was ratified, without approval

of a majority of the electorate of that local government by

vote.

The Headlee amendment "does not apply to taxes imposed

for the payment of principal and interest on bonds or other

evidence of indebtedness or for the payment of assessments

on contract obligations in anticipation of which bonds are

issued which were authorized prior to the effective date of

this amendment." MICH. CONST. art. 9, § 31. The

requirement that the tax be authorized by law or charter

requires only that "a local government be empowered to levy

the tax on the date that the Headlee Amendment was ratified,

even if the local government had not exercised its authority."

Bailey v. Muskegon County Bd. of Comm'rs. 122 Mich. App.

808, 821, 333 N.W.2d 144 (1983) (emphasis in original).

If Michigan law controlled in this case, the Headlee

amendment would still not apply to the taxes levied because

the levies are authorized by Act 320 (the Court Order Bond

Act), amended and recodified as M.C.L. § 324.4307, and Act

326 (the Judgment Levy Act), amended and codified as

M.C.L. § 600.6093. Both statutes were in effect before

ratification of the Headlee amendment. The 1994 Financing

Order and Final Judgment Plan and Consent Decree in the

Wayne County case make explicit reference to these statutes.

i. Act 320 (M.C.L. § 324.4307) predates the Headlee

amendment.

24a

The Headlee amendment does not apply because Act 320

predates it. The Court Order Bond Act (Act 320), M.C.L. §

324.4307, was originally enacted in 1927, long before

ratification of the Headlee amendment. M.C.L. § 324.4307

empowers the defendants in this case to levy taxes for the

purposes enumerated in the Wayne County 1994 Financing

Plan and Final Judgment (sewage system and water treatment

facilities construction, improvements, and operation). That

defendants did not actually levy taxes until some date after

ratification of the Headlee amendment is irrelevant.

Defendant municipalities were authorized by law to impose

such a tax prior to ratification of that amendment. Thus, by

the terms of both the Headlee amendment and M.C.L. §

324.4307 the taxes levied in this case are not subject to

Headlee amendment restrictions.

The tax assessments levied against property owners in the

defendant municipalities are imposed pursuant to Act 320.

The Plan and Consent Decree make explicit reference to Act

320 as a statute pursuant to which the taxes at issue would be

imposed:

The Court may enter as required an order pursuant to said Act

320 regarding the terms and conditions of the contracts,

bonds and other documents to be executed and delivered by

the legislative bodies of Defendant in accordance with this

paragraph, provided such order in no way alters, modifies, or

conflicts with the deadlines, obligations, or items set forth in

this Decree or set forth by applicable federal or state law.

Wayne County Consent Decree, Section XIV, Funding P 49

(emphasis added). The Wayne County and Downriver

Communities financing resolutions reference this statute.

"WHEREAS, Wayne [County] proposes to authorize the

issuance of the Bonds, pursuant to Act 320 in anticipation of

25a

and secured payments by the Judgment payments . . . and

other things necessary to the authorization [**28] and

issuance of the Bonds under Act 320 having been provided

for... ." Wayne County Resolution 94-81, pp. 3-4 (February

17, 1994).

Act 320, M.C.L. § 324.4307, permits local government units

to issue and sell the necessary bonds to fund "construction,

installation, alteration, operation, or improvement, including

the treatment works, and other facilities" of a "sewage

system, solid waste facility, or waterworks system." M.C.L. §

324.4307(1).

The amount of the bonds either issued or outstanding shall

not be included in the amount of bonds which the local unit

or units of government are authorized to issue under any

statutes of this state or charters. Local units of government

issuing bonds under this section may raise a sum annually by

taxation as the legislative body or respective legislative

bodies consider necessary to pay interest on the bonds, and to

pay the principal as it falls due. The annual amount may be in

excess of the authorized annual tax rate fixed by the statutes

or charters.

M.C.L. § 324.4307(1) (emphasis added). This section also

states: "Court ordered bonds do not require approval of the

electors . . . . Bonds other than court ordered bonds issued

under this part require approval of the electors at a general or

special election only if an appropriate petition is filed in

accordance with the law." M.C.L. § 324.4307(2). Thus, not

only is the funding scheme in the Consent Decree authorized

by this statute, it is also specifically exempted from Headlee

amendment requirements. Voter approval is not required

under circumstances in which local government units,

pursuant to court order and this statute, issued and sold bonds

26a

to fund sewage and water works system improvements to

effectuate compliance with federal law.

2. Act 236 (M.C.L. § 600.6093) predates the Headlee

amendment.

The Headlee amendment does not apply because Act 236

predates it. The Judgment Levy Statute, Act 236. originally

enacted in 1963, and later amended, empowers municipalities

to assess taxes necessary to pay judgments against the

municipalities or officers of the municipalities in their name

of office. M.C.L. § 600.6093. The statute predates the

Headlee amendment, and therefore is not controlled by the

restrictions of that amendment. See City of Detroit v. C ity of

Highland Park, 878 F. Supp. 87, 89 (E.D. Mich. 1995).

Bailey v. Muskegon County Bd. of Comm'rs, 122 Mich. App.

808, 821, 333 N.W.2d 144 (1983), supports exemption of this

statute from the Headlee amendment requiring electorate

approval. "The Headlee Amendmen’ imposes specific

limitations on the authority to impose additional taxes

without voter appzoval. It does not require voter approval of

increased tax levies where the authority to make the levy has

already been approved." Smith v. Scio Township, 173 Mich.

App. 381, 388, 433 N.W.2d 855 (1988) (citing Bailey). As

discussed in section III(A), supra, federal law overrides state

law in the instant case, and supports the defendant

municipalities’ imposition of taxes that exceed Michigan

constitutional limitations, in compliance with my orders.

However, even if Michigan law applied, because the taxes

levied pursuant to the Wayne County 1994 Financing Plan

and Final Judgment were levied pursuant to statutes enacted

prior to ratification of the Headlee amendment, those tax

levies are not subject to voter approval or other limitations

imposed by that amendment, and plaintiffs’ claim must be

denied.

27a

The Plan specifically refers to Act 236 as a statute

authorizing the imposition of taxes on property owners in

resolution of the defendant municipalities’ debt obligations as

determined in Wayne County:

With respect to any Downriver Community

that does not pay its Judgment Payment... in

cash prior to the closing date for the sale of

Wayne's bonds a certified copy of this 1994

Financing Plan and Final Judgment shall be

filed with the assessing officer of each

Downriver Community that is a ear

pursuant to Section 6093 of Act 236... and

this 1994 Financing Plan and Final Judgment.

Wayne County 1994 Financing Plan and Final Judgnient, P 8,

Me ya

In oral argument plaintiffs’ counsel asserted that my order

pursuant to Act 320 and Act 236 must be minimally intrusive.

In Wayne County I did this when I ordered the municipalities

to pay their share costs in cash. I did not restrict the methods

by which they might procure this cash. I could not have given

a less intrusive order.

My order directing defendant municipalities to levy taxes to

pay their costs became effective only if they did not pay their

share costs in cash. Although plaintiffs’ assertions implicitly

assume that I could not order the levy of taxes until after an

actual violation of the minimally intrusive order, nowhere in

Jenkins does the Supreme Court state that a federal court

must wait until a local government unit violates its minimally

intrusive orders to delineate contingent orders to enforce its

judgment. See Missouri v. Jenkins, 495 U.S. 33, 109 L. Ed.

2d 31, 110 S. Ct. 1651 (1990).

28a

CONCLUSION

Defendants are entitled to summary judgment on three legal

premises: (a) the inherent power of federal courts to order

local government units to levy taxes to pay their debt

obligations, to carry out federal court ordered and approved

consent decrees and their financing plans, even if those taxes

exceed state statutory or constitutional tax limits; (b) laches:

and (c) inapplicability of the Headlee amendment.

IT IS SO ORDERED.

John Feikens

United States District Judge

Dated: June 9, 1998

29a

GLORIA BYLINSKI, GLORIA BELLMAN. ALLAN

COLLINS, DENNIS COATES, DOUGLAS HAMMAR,

ROBIN HAMMAR, SANDRA HOLIDAY. STEVEN

HOLIDAY, ROBERT JARRELL. ANISE PIERCE,

RICHARD PRESSEY, JIMMY SEACRIST. and MOLLY

SEACRIST, and all other persons similarly situated,

Plaintiffs, v. CITY OF ALLEN PARK. a Michigan municipal

corporation, CHARTER TOWNSHIP OF BROWNSTOWN,

a Michigan municipal corporation, CITY OF ECORSE, a

Michigan municipal corporation, CITY OF LINCOLN

PARK, a Michigan municipal corporation, CITY OF RIVER

ROUGE, a Michigan municipal corporation, CITY OF

ROMULUS, a Michigan municipal corporation, CITY OF

SOUTHGATE, a Michigan municipal corporation, CITY OF

TAYLOR, a Michigan municipal corporation, Defendants.

Civil Action No. 98-71289

UNITED STATES _ DISTRICT COURT FOR’ THE

EASTERN DISTRICT OF MICHIGAN, SOUTHERN

DIVISION

Filed: June 9, 998

OPINION AND ORDER

DENYING PLAINTIFFS' MOTION TO REMAND

I. INTRODUCTION

Plaintiffs Blinks et al., representative taxpayers in

defendant municipalities, bring this action against defendants

City of Allen Park et al. to obtain a refund of and to enjoin

further collection of property taxes imposed by the

30a

municipalities pursuant to a consent decree entered by moon

May 12, 1994. United States v. Wayne County, Civil Action

No, 87-70992 (E.D. Mich 1994) (Wayne County). The Wayne

County consent decree references the Downriver Sewage

Disposal System 1994 Financing Plan and Final Judgment

Re: 1994 Court Ordered improvements (Plan). The Plan is

part of a comprehensive scheme of sewer improvements

intended to bring the defendant municipalities into

compliance with the Clean Water Act, 33

Before me is plaintiffs’ motion to remand this case to

the Wayne County Circuit Court. This opinion supplements

my findings in the hearing on this motion,

I. ANALYSIS

As stated in defendants’ brief in opposition to

plaintiffs’ motion to remand, implementation and

enforcement of compliance with the 1994 Financing Order

and Final Judgmeut entered by this court in Wayne County

are within this court’s continued jurisdiction and supervision.

[he United States Court of Appeals for the Sixth Circuit

Stated:

Once approved, the prospective provisions of the

consent decree operate as an injunction The

injunctive quality of a consent decree compels the

approving court to: (1) retain jurisdiction over the

decree during the term of its existence, (2) protect the

integrity of the decree with its contempt powers, and

(3) modify the decree if “changed circumstances”

subvert its intended purpose. [I] is well settled that

“courts retain the inherent power to enforce

3la

agreements entered into in settlement of litigation

pending before them.”

Vanguards of Cleveland v. City of Cleveland. 23 F.3d 1013,

1018 (6th Cir. 1994) (citations omitted) (emphasis added),

Defendants correctly assert that this suit poses an imminent

threat to the integrity of the Financing Orders because it

could adversely affect the financing mechanism in those

orders. I appropriately retain jurisdiction of any matters that

might affect the Wayne

County consent decree and its implementation.

My jurisdiction is also appropriate under the All

Writs Act, 28 U.S.C. § 1651(a), which gives federal courts

the “authority to remove an otherwise unremovabie state

court case in order to ‘effectuate and prevent the frustration

of orders it has previously issued in its exercise of

jurisdiction otherwise obtained.” Jn reA gent Orange Product

Liability Litigation, 996 F.2d 1425, 1431 (2d Cir. 1993)

(citations omitted),

CONCLUSION

For the reasons stated herein and in the hearing on the

motion, plaintiffs’ motion to remand is denied.

IT IS SO ORDERED.

John Feikens

United States District Judge

Dated: 6/9/98 °

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.