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Motion to Stay (COA)

STATE OF MICHIGAN

IN THE COURT OF APPEALS

______________________________________________________________________________

THOMAS R. OKRIE, et al.,

Plaintiffs, COA No. 31955

Court of Claims No. 13-93-MK

v HON. Deborah Servitto

STATE OF MICHIGAN,

GOVERNOR RICK SNYDER,

MICHIGAN DEPARTMENT

OF TECHNOLOGY, MANAGEMENT

AND BUDGET, OFFICE OF

RETIREMENT SERVICES,

STATE EMPLOYEES RETIREMENT

SYSTEM, MICHIGAN PUBLIC

SCHOOL EMPLOYEES RETIREMENT

SYSTEM, and MICHIGAN DEPARTMENT

OF TREASURY,

Defendants.

______________________________________________________________________

Gary P. Supanich (P45547)

LAW OFFICE OF GARY P. SUPANICH

Attorney for Plaintiffs

117 North First Street, Suite 111

Ann Arbor, MI 48104

(734) 276-656

www.michigan-appeal-attorney.com

Patrick M. Fitzgerald (P69964)

Joshua Booth (P53947)

Margaret Nelson (P30342)

MICHIGAN DEPARTMENT OF ATTORNEY GENERAL

State Operations Division

Attorneys for Defendants

P.O. Box 30754

Lansing, MI 48909

(517) 373-1162

_____________________________________________________________________

PLAINTIFFS' MOTION FOR STAY OF PROCEEDINGS IN THE COURT OF CLAIMS PENDING THE DETERMINATION OF THE CONSTITUTIONALITY OF 2013 PA 164 AND BRIEF IN SUPPORT

PROOF OF SERVICE

NOW COME the Plaintiffs, THOMAS R. OKRIE, et al., by and through their attorney, GARY P. SUPANICH, ESQ. (P45547), requesting that this Court grant their Motion for Stay of Proceedings in Okrie et al v State of Michigan et al, No. 13-93-MK, challenging the state taxation of their pensions pursuant to 2011 PA 38 in the Court of Claims pending this Court's determination of the constitutionality of 2013 PA 164 transferring the jurisdiction of the Court of Claims from the 30th Circuit Court to the Court of Appeals.

1. On July 9, 2013, Plaintiff Thomas R. Okrie, on behalf of other similarly situated state and public school employees, filed a Verified Class Action Complaint against the State of Michigan (Okrie et al. v State of Michigan et al., No. 13-93-MK) in the Court of Claims, alleging that, under the doctrine of promissory estoppel, the State breached its contract with them by subjecting their state pensions to taxation pursuant to 2011 PA 38 after they had made irrevocable retirement and employment termination decisions based upon the State's promise that their pensions were exempt from state and local income tax. The case was assigned by blind draw to Ingham Circuit Court Judge Rosemarie Aquilina. Subsequently, on August 14, 2013, Plaintiffs filed a Motion for Class Certification.

2. On October 9, 2014, Plaintiffs filed an Amended Verified Class Action Complaint, adding counts for Unjust Enrichment, Breach of Employment Contract, and Violations of the Contract Clause, Takings Clause, Substantive and Procedural Due Process Clauses under the state and federal constitutions.

3. On November 13, 2013, Governor Snyder signed into law 2013 PA 164 transferring the Court of Claims from the Ingham Circuit Court to the Court of Appeals.

4. On November 14, 2013, Judge Talbot as Chief Judge of the Court of Claims issued an order staying the proceedings in cases pending in the Court of Claims as of November 13, 2013. At no time did Plaintiffs' counsel receive notice of this or any other related action from the Court of Claims.

5. On December 13, 2013, Plaintiffs filed a Petition Challenging the Constitutionality of 2013 PA 164 in the Court of Appeals as required by the Act. Among the relief sought was a request that this Court stay the proceedings in the present case and all pending cases until this Court resolves the constitutional challenges to 2013 PA 164. At that point, Plaintiffs' counsel still had not received any notice from the Court of Claims about the status of the pending case.

6. On January 21, 2013, 2014, upon learning - for the first time - in a phone conversation from the Mr. Gerald Zimmer, Chief Clerk of the Court of Appeals and the Court of Claims that Judge Servitto, acting as a Court of Claims judge, had been assigned to the underlying case, Plaintiffs filed a Motion to Stay the Proceedings in the Court of Claims pending this Court's determination of the constitutionality of 2013 PA 164 transferring the jurisdiction of the Court of Claims from the 30th Circuit Court to the Court of Appeals. In support of their motion, Plaintiffs attached a copy of the Petition filed in this Court showing that 2013 PA 164 as unconstitutional in violation of the separation of powers doctrine under the state constitution and the due process clauses under the state and federal constitutions.

7. On February 24, 2014, Plaintiffs filed a Second Amended Verified Class Action Complaint, adding counts for Breach of an Investment Contract Purchasing Service Credit (Count IX); and Breach of the Michigan Investment Plan (MIP) Contract (Count X). At the same time, Plaintiffs filed an Amended Motion for Class Certification.

8. On February 25, 2014, Judge Deborah A. Servitto, acting as a judge on the Court of Claims, denied Plaintiffs' Motion for Stay of the Proceedings in in Okrie et al v State of Michigan et al, No. 13-93-MK, inexplicably stating that "no constitutional challenge has been raised in the case at bar" and that "[t]o delay this case would be contrary to the interests of justice and could potentially halt all the matters pending in the Court of Claims for several months," even though that is precisely what the Court of Claims did when it stayed the proceedings in all pending cases. (EX. 1).

9. Staying the proceedings in Okrie et al v State of Michigan et al, No. 13-93-MK, in the Court of Claims pending this Court's determination of the constitutionality of 2013 PA 164 is in the interest of justice because it is the jurisdiction of the court that controls the power of a judge to proceed under the Act. If this Court declares 2013 PA 164's transfer of the Court of Claims to the Court of Appeals as unconstitutional in violation of the separation of powers doctrine under the state constitution and the due process clauses under the state and federal constitutions, it will render all rulings by Judge Servitto, acting as a Court of Claims' judge, as constitutionally invalid and without effect, thus further delaying this case. Moreover, absolutely no prejudice would be suffered by the State of Michigan if this Court granted Plaintiffs' Motion for Stay in this matter. After all, it is Plaintiffs - not the State of Michigan - who have been prejudiced by the unconstitutional action of the Legislature, by enacting 2013 PA 164, and Governor Snyder - a party Defendant in this case - for signing it. Thus, any delay to resolve the constitutionality question will not prejudice the State of Michigan. For that reason, it is in the interest of justice for this Court to stay the proceedings in the Court of Claims until this Court has determined the constitutionality of 2013 PA 164.

WHEREFORE, Plaintiffs respectfully request that this Court grant their Motion for Stay of Proceedings in Okrie et al v State of Michigan et al, No. 13-93-MK pending its determination of their Petition challenging the constitutionality of 2013 PA 164. In support of their present motion, Plaintiff has attached a Brief in Support of the Motion to Stay Proceedings, which, together with their Petition, clearly show that 2013 PA 164 unconstitutionally transferred the Court of Claims to the Court of Appeals.

Respectfully Submitted,

LAW OFFICE OF GARY P. SUPANICH

__________________________

Gary P. Supanich (P45547)

Attorney for Plaintiffs

117 N. First St., Suite 111

Ann Arbor, MI 48104

Dated: March 11, 2014 (734) 276-6561

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