Attorney Thomas H. Bleakley (P23892) has to be feeling a lot like Captain John Yossarian, the harried protagonist of Joseph Heller’s great satirical novel Catch-22. Chief Judge Michael J. Talbot of the Michigan Court of Claims dismissed Attorney Bleakley’s Helen Moore et al v. Rick Snyder [16-000153-MM] lawsuit challenging the constitutionality of the Legislature’s passage of the DPS bail out on August 4th, in an order published on August 8th.
The Michigan Court of Claims was moved from the Ingham County Circuit Court to the Michigan Court of Appeals by PA 164 of 2013 to:
MCL 600.6419 Court of claims; exclusive jurisdiction; exceptions; claims less than $1,000.00; powers and jurisdiction; counterclaims; res judicata; setoff, recoupment, or cross declaration; writs of execution or garnishment; judgment as final; no jurisdiction of claim for compensation under MCL 418.101 to 418.941 and MCL 419.101 to 419.104; jurisdiction of circuit court over certain actions and proceedings; “the state or any of its departments or officers” defined.
(a) To hear and determine any claim or demand, statutory or constitutional, liquidated or unliquidated, ex contractu or ex delicto, or any demand for monetary, equitable, or declaratory relief or any demand for an extraordinary writ against the state or any of its departments or officers notwithstanding another law that confers jurisdiction of the case in the circuit court.
But, according to Judge Talbot, not the constitutional claims pleaded in Helen Moore et al v. Rick Snyder
The Catch-22? Judge Talbot dismissed Helen Moore et al v. Rick Snyder citing MCL 380.389, which just happens to be entirely new language created by PA 192 of 2016, one of the six DPS bail out laws whose constitutionality Attorney Bleakley was challenging in Helen Moore et al v. Rick Snyder:
MCL 380.389 Formation of community district; presumption of validity.
The validity of the formation of a community district shall be conclusively presumed unless questioned in an original action filed in the court of appeals within 60 days after the community district is created under section 383. The court of appeals has original jurisdiction to hear an action under this section. The court shall hear the action in an expedited manner. The department of treasury is a necessary party in any action under this section.
Let’s be very clear about what Judge Talbot just did last Thursday. He dismissed a lawsuit challenging the constitutionality of a Legislative statute citing the very language within that same Legislative statute.
Judge Talbot’s order is a spectacular perversion of legal logic. Totally circular reasoning. Attorney Bleakly was challenging six different laws amounting to 53 pages in total. These laws did create one community school district, but they also did far more. Attorney Bleakley was challenging the unconstitutional Legislative rules which were applied to assure their passage. Judge Talbot took it upon himself to reconstruct the the stated goals of Attorney Bleakley’s lawsuit so he could use the very law being challenged to dismiss that same lawsuit.
It gets even better. Judge Talbot is also the Chief Judge of the Michigan Court of Appeals, where Attorney Bleakley’s suit would be headed if the PA 192 60 day window wasn’t just about gone. This statutory time limit expires on the 19th, so Attorney Bleakley will likely have to appeal Judge Talbot’s Catch-22 circular logic to the Michigan Supreme Court. This will probably go no where; Judge Talbot’s legal chutzpah suggests the fix is in.
While we are on this subject; since when do the Legislature and the Governor get to set a 60 day window on constitutional challenges, by statute? Constitutional challenges are the purview of Michigan’s ‘one court of justice’. The Governor and Legislature are specifically prohibited from usurping the authority of this third branch of government by Article III of our 1963 Constitution:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
The Legislature and Governor could establish a one minute time limit for filing constitutional challenges in the future if this usurpation of court powers is allowed to stand. The Michigan Constitution of 1963 is being reduced to the status of toilet paper.
Speaking of which, the Michigan Court of Claims was established in its current form by PA 164 of 2013. Judge Talbot is acting as if it is a distinct court of limited jurisdiction established under Article VI, Section 1 of the Michigan Constitution. Note that this section of our constitution requires a two-thirds vote of the members elected to and serving in each house to establish such courts.
§ 1 Judicial power in court of justice; divisions.
The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.
Senate Bill 652 of 2013, which became PA 164 of 2013, did not receive a two-thirds vote in the Michigan House. The Chair ruled that this was constitutional because SB 652 did not create a new court of limited jurisdiction. Either the Speaker Pro Tempore ruled incorrectly, or else Judge Talbot did not realize that the Michigan Court of Claims is nothing more than the Michigan Court of Appeals acting as a Court of Claims. Either way, Judge Talbot’s dismissal of Helen Moore et al v. Rick Snyder was flat out wrong.
The fix is in. Michigan’s deep state has their DPS bail out. Someone whispered instructions into Judge Talbot’s ear. Articles IV and VI of the 1963 Michigan Constitution be damned. Results are all that matter in today’s Michigan. Rule of law is stone dead in Michigan.
Some men are born mediocre, some men achieve mediocrity, and some men have mediocrity thrust upon them.
Joseph Heller, Catch-22, Chapter 9