court joshua booth system attorney general for the state of michigan on behalf of the current treasure nick curry and former treasurer kevin clinton i've reserved three minutes for any possible right at all  this is our appeal of the district court's denial of immunity and although each treasurer has asserted a different basis for immunity each basis is immunity from suit so therefore neither one of these treasures should be a party to this action unless the plaintiffs have met their burden to show that they are not immune and it's our position that they have not done that in this case in regard to current treasurer curry's asserted eleventh  in the form of a reinstatement of the retiree health care benefits moving forward but treasurer currie simply has no authority to provide that kind of relief certainly asked the treasurer there is no statutory or other authority that would allow him to essentially go into the city of lincoln park and direct that that be done one question that i had was am i right in remembering that this case involves a number of different parties and the only two issues that we have are the qualified immunity eleventh amendment immunity issues but all the rest of the parties various things are going to happen or have happened that's that's my understanding so what i wonder is whether that would lead us too part of the answer with respect to mr curry which is that although he couldn't do everything himself if he is involved in decisions that others who are also parties to the are involved with it maybe having him remain as a party is it's an important thing here yeah i thought about that but i had in light of what his authority is certainly skirt right now in the city of lincoln park there is a certain degree of local control but there is a receivership transition advisory board that is overseeing and monitoring the finances and the treasurer has a designee on that board it can either be him or his designee but in this case it's his de but even if the treasurer wanted or directed his designee to take certain action such as to reinstate the health care benefits moving forward that wouldn't necessarily happen because the are tab is made up of it's a body of five is the art tab itself still a park still a party below i believe so though and if i'm correct with any of this i'm going to abide by all that so at least in concept if we if we don't have a problem of finding the right party they can get relief  in the remaining proceedings below and for example you know as between lincoln park and the art tab if they are lincoln park the court could order that collective body to do something i mean assuming they went on the yeah yeah i think so yes i mean it's tough to say from a practical standpoint what that kind of order would be i agree with your honor i would just try to distinguish between the treasurer as one of a five member board or his designee and the ability of a court to order the board or the city whoever really has the pen at the moment right to do something which absent some other barrier the court certainly would be able to grow act you wouldn't deny that and i wouldn't deny it but i guess that your question kind get it but my point is that that case proceeded with just the local units involved there was no state involvement in terms of a defendant so to go back to your question there judge bugs i think the promise was could they get relief with the state defendants and my answer to that would be yes and i don't know judge moore if i've answered your question sufficiently here or not i just the what i wanted to say was the treasure treasure curry has no authority to go in out of his own now into the city and say we do this and the way it is set up now with the our tab in place even if treasurer curry wanted to do that he couldn't just because it  vote would be one of five on our tab and if there are four others and those four could be gotten to you in some fashion then his vote would be critical yeah but i guess i don't know i see that when you're raising that question in my head it kind of sets off flags of a hypothetical and i don't know if that would even need to do that at this point it's a if they were if we're throwing him out as you're wanting us to do throw him out of the lawsuit that he would never be able to be part of the remedy what they are to have isn't involved i don't know how you're saying that we can decide at treasurer and former treasurer and so the current treasurer should be entitled to the eleventh amendment immunity because i don't think the prospective injunctive relief exception comes into play in terms of former treasurer clinton he's asserted qualified immunity which shields him from suit for personal damages so long as he didn't violate a clearly established constitutional right but here the problem that i'm having is the plaintiffs have a sort of a more than one occasion that they're not seeking damages from mr clinton or mr curry for that matter they have said that to the extent they're seeking damages they will get that from the city and city officials and since plaintiffs aren't seeking money damages from mr clinton it would seem that the court does need to even need to get into the qualified immunity analysis of whether there was a violation of a constitutional right to counsel for that statement the one you just made i take it in your reply brief i think it is you  page twenty two it's actually page thirteen in my numbered version where they say the following the plaintiffs complaint against the current state treasurer addresses only prospective injun relief all damages and remedies will by law be directed to the city of lincoln park so you read that to be a disclaimer not just about the current state treasurer which is the preceding sentence against the passed one as well that's the way i read it and well obviously i'll ask your adversary whether he says the same thing and i guess my because when that what i read what i read your statement in the reply brief and all that looks pretty good and once i finally re then your quote was accurate but it isn't a paragraph that begins talking about the current treasurer not the former well yeah i can see that interpretation i apologize for the messiah but i guess another reason why i said that is just looking at the title of that section of the discussion is plaintiff's financial claims are asserted against the city and so if i see that and i read below in my mind i'm deducing that it pertains to the city in not just without that's i was that would be a good question because i haven't quite figured it out myself and i know qualified immunity doesn't preclude injunctive relief but if that's what they're seeking against mr clinton in this case i think we run into the same kind of problem even if it's even a bigger really from our point what this case comes down to is one thing to start seeking damages from mr clinton and the injunctive relief that they're seeking isn't the type of relief that can be provided by either of these defendants so we would ask that they would be there wasn't much of a explanation for that it just basically said under the circumstances immunity doesn't apply there really wasn't much of an analysis area but that's all i got out of it i have no further insi not not cheryl we did correct that in the district court corrected me i start by trying to clarify some of the questions that you have because i think it's there very proper and they go to this tangled thicket that's known as a public act for thirty six as far as the injunctive relief there's two parts to this one is the ongoing problem that if the district court orders relief for the plaintiffs in this case and then the state turns around through the our tab and declares another financial emergency in lincoln park we're right back where we started from if the state treasurers are not there then you basically have a hollow remedy if the plaintiffs prevail this goes to section one five six four of the public acts four thirty six where it says that the are to have which is the treasurer's those ignaty and i think it's a split error to determine that there's a difference there if they recommend to the governor that the lincoln park economic condition is worse or at least not changed the governor orders another emergency manager right back into lincoln park again let me phrase it this way  that that sounds like you're attacking the very concept of emergency manager and art rather than the specific thing they did that is presumably if the district court says you can't change those retiree benefits you've got to put them back then you don't know what's going to happen if there's any new emergency they could do hundreds of things all of which might be valid and they could do it within five minutes and that's that's the whole problem it right now well but if the if the ruling is that these particular contracts are lifetime vested that it would seem that ruling would would hold forever now if they wanted to do some other change you're right you'd have to litigate the merits of that one theoretically i agree with you your honor but may i point out that the reality is the other part of this case which is the procedural due process not a court dismissed substantial due process the procedural and this is something that when i talk to a lot of people they tend to miss is that section one five six nine as you know there was a political change in michigan with the incoming elections of two thousand and ten and the debate aside on that the one thing that the current government up there in the legislature has demanded is transparency section one five six nine of the emergency manager act demands that the financial loan authority which is in fact the treasurer by definition must either give wallet ins give guidance as to what they're going to do and why they're going to do it or administrative rules now we all know from both the federal and state system administrative rules have to be public there has to be a com there has to be some kind of legislative oversight five years into this act there is no control from the stage raiser over any guidance as to how anybody is supposed to act under the emergency manager act that's a major part of this complaint how can you have the right to be heard with no appeal that's built into the act and at the same time no guidance from the bulletins or the administrative rules as to how the treasurer is instructing the emergency managers so part of the perspective injunctive relief that you want is to order the treasurer to make certain regulations were published certain things that it was an injunction your honor which would prohibit the treasurer from if you will ignoring the active one five six nine the other thing that i think we need to keep in mind here this is still a state receivership right now the city of lincoln park which which paragraph specifies that i'm sorry of the complaint yes the injunctive relief is is that they were made whole in the procedural due process of the relief would be we stated in the complaint with specificity that it was count four he had to abide by the legislature's command to give notice and also to either issue bulletins all but that's one of the that's one of the evils that's one of the things you say he did wrong i understood you to say that you wanted an injunction  make him follow the law in certain ways and i was asking for a prospect of injunction i was asking where is that in the complaint it's in the relief requested your honor for injunctive relief to make them whole make them whole procedure all means that the state treasurer follows the law like the rest of us do our need for you're saying that there's no specificity of that you're just relying on the the make whole terms and yes your honor because we usually think of make coal as giving me that well and that's is another thicket that we're into in this public at four thirty six no money from the state goes into the city the sate simply came in and took the money out when they took it away from the  retirees and what i was going to say is this is still a state receivership right now lincoln park exists as a boundary it's a state receivership boundary it's no different than a state park you have the r tab that is with the treasurer the treasurer is the right hand authority with the governor the treasurer is the judge accepted our arguments is in over four dozen i'm sorry three dozen areas in public four thirty six where he is directly involved with public act for thirty six and as this court acknowledged in philip's versus snyder the treasurer oversees the emergency manager so you have an ongoing financial relationship and responsibility  treasury clinton was still there are you willing to dismiss him knowing you're on it's looking money damages against clinton weak i think that's possible i know from the case law i was reading last night that if there is a  secondary effect on the state treasury based on it that's true our argument against the treasury former treasury clinton is that there is no qualified immunity he knew that there were contractual rights now this case has been stayed for over a year discovery has continued with the city the state's not been involved we now have exit contracts because there was an early retirement in two thousand and four that both mr kaminski mr mulally head they go above and beyond what was here when we initiated this complaint might suggestion is that the state probably would have been better served to participate in that discovery along with the city and i suggest that the trial judge knew that it would be good at this time not to decide the issue of the case brought before you on the immunity issue so you're saying that you're part of mr both is just wrong when i said you're not seeking any damages from collab we're seeking whatever  discovery and the judge allows your honor in the district court and that could involve damages to be honest i don't know because under public act four thirty six the treasurer does not take back state money the treasurer comes into the city with the emergency manager and alters a city budget to remove local city budget tax dollars ok but if you if you then are you say potentially seeking i mean either you are you're not you're the master of the complaint if you can understand it why he's interested because his checkbook is at risk so the statements that we were focusing on a page thirteen as as you've numbered it in the red brief it really isn't or at least the inference is wrong the inference that's taken that you're only asserting financial claims against the city you really are asserting financial claims against clinton your honor that the only way i can answer this is the thicket with public at four thirty six this goes back to when you wrote the quote you wrote the brief you wrote the complaint either you what you want money from him i understand you don't because the next question would be if you're right on the merits aren't you going to get your money from the conglomeration of lincoln park our tab state wherever that you don't need mr clinton's personal checkbook but according to public acts four thirty six the only way that the are to have now or the emergency manager if he's there gets money is to get a loan from the state and that is another one of the problems with public act four thirty six snyder versus phillips head of facial challenge what you have here is an as applied challenge how does this actually work when people are affected i think everyone will agree you have substantial impairment of a right you then start moving to what happened after that substantial impairment was there a justified public policy for it was there any reasonable alternative to it all of that is still pending before the district court and if you're if you're right on the merits if in the end the judge says on the merits these benefits were vested and therefore lincoln park should pay a million dollars ok why isn't that adequate federal courts you know at the that sort of thing but doesn't that give you all the relief that you could get before i forget the reason your tab is not a party is the emergency manager that's there when the suit was filed the case has been emergency manager is a part yet ok so the are tabs presumably with an appropriate amendment the are tab could fit into the shoes of the emergency manager ok yes i'm glad you asked me for clarification coulter's emergency manager and coulter was there when this litigation was file subsequently he left after eighteen months pursuant to the statute in the our tab came and i'm glad you brought it to my attention your honor because it should have been clarified so you had to have not to this day filed a claim against our ta case that's correct because the cases state you know we are actively carrying on discovery which is now it wrapping up with the city and the depositions with the personnel director who negotiated the contract with the city employees we just did that last week so let's get into the real merits of the case as as far as the merits of the case involving what the city intended those contracts to mean that there's another timeline that the court should be made aware of this was filed in august of two thousand and fifteen october twenty fifteen the state court of appeals released the harper woods retirees association case which got into more detail than tackett now as you know our response to that is that attack opinion doesn't apply because nobody read the contracts they simply eliminated them so in this particular case again it goes back to the power and said nobody read the contracts they just section one five four i'm sorry one five five two subsection one k to eliminate the contracts and also the health insurance contracts of the individuals there's one other aspect here that i think is noticeable and that is that the state has tried to claim that under the buffalo teachers decision which they've tried to parallel to this  there was only a temporary modification of the retiree benefits in lincoln park the average age as we pointed out in lincoln park is over seventy years old the emergency manager as we cited specifically in our complaint said it's going to take twenty years to get the pension system back up if you're seventy one or seventy two years old there's no such thing as temporary when you're saying twenty years it was a legal attempt to try and take a permanent remov benefits and make it look like it was temporary and the that's the practical effect of the emergency manager act as opposed to the theory when the courts are understandably rustling with these issues we're not denying that city of lincoln park is financial problems i mean that's that's never been it what we have here is a case of basically destroying benefits in order to supposedly safe the benefit of the city and that's why we need discovery on both of former and the current state treasurer to find out how much they actually did get involved in this we don't know this we have been able to do discovery on the treasury were in fact their communications that the very first thing emergency manager should go to is health care benefits and get rid of them because they're the biggest legacy cost that goes is this appeal the reason that you're that you can't take their discovery if that's correct your honor was stayed at the scheduling the basis for a damn damages claim against if in fact the relief is awarded and there in the status quo is returned again we're not looking for money damages this is not a tort case we're looking for a may call remedy then that may very well involve the actions that he took and he knew it took impairing the contract and quite frankly there would have to be sorted out but he is not free and clear as far as damages prospect of lee you're correct i don't think this would necessarily be a problem unless that under the federal rule he was automatically substituted when mr kerry came in otherwise i think we probably would be having much of this discussion right now you mention the harper woods case was that appealed to the michigan supreme law of the state i could take you back to this deposition question and maybe i'm missing something usually a person doesn't have to be a defendant in order to take their deposition so is there something about the deposition law that you need him to be a defendant or was it stayed simply as a matter of convenience while this appeal was going on it was staged for all matters related to the state your honor in because of that we need mr clinton's discovery because he was the main actor and the only reason it was stated as to the state because of this appeal that is if you'd said fine we'll get all the money we can from lincoln park now we notice your deposition that or is there something i'm missing about why the state was granted just slightly or honored by the state took a stay automatically i mean there was no discussion as to any reasons behind it we had a scheduling conference with all the parties attorneys and the state said they would take a stay on the case the order was entered so that's why we're here but mr clinton was the active actor to remove the benefits bias issued letter to the emergency manager and section one five five two section one subsection k specifically says that the treasurer and the emergency manager mr colter make the decision to remove those benefits from their retirees health insurance that's a place of defendant thank you your red light that indeed thank you i don't have a whole lot of time to add i just wanted to kind of refocus things a little bit mr porter spent a lot of time on attacking public at four thirty six and its contents and its effect on lincoln park and that's not really what we're here for and certainly public at four thirty six has its flaws and set some unfortunate impacts on its policies all across michigan but the purpose of this appeal here is just whether these defendants these two treasure defendants should be given immunity and for the reasons i previously discussed i think they should and there wasn't really anything in mr porter's presentation that made me think otherwise because it still wasn't really clear to me what kind of damages if any he wanted against mr clinton because it of went back and forth between yes i do but they would come from the treasury which doesn't sound like personal damages and so i'm just not real clear on exactly what he's trying to get from mr clinton so i would just revert back to the argument that we've had before and for the reasons that i set forth in our briefs and here today we would ask that the district court be reversed with respect to this question about deposing the treasurer's other than this state because of this appeal is there anything that would prevent them from deposing clinton and getting the story of why he decided this and me standing here right now judge i don't i can't think of anything as i was reading i read somewhere in the briefing where that was mentioned kind of in passing where they wanted to depose the treasurer's but i don't see how they need to be a party to be deposed you don't just oppose parties you can depose pretty much anybody so i don't think that even if they could be tippin if there was some reason i don't know if that would trump the constitutional munity that they're asserting here so we would ask that the district court be