Today the Court filed an opinion and order granting the Michigan Attorney General’s motion for summary judgment and a judgment dismissing the challenge by the plaintiffs in these consolidated cases to the constitutionality of an amendment to Michigan’s constitution, which is generally referred to as Proposal 2. There are several motions before the Court that remain pending, and the Court will address them in this order. The plaintiffs in the Cantrell case move for summary judgment against intervening defendant Eric Russell on the ground that the basis for his interest in the litigation has evaporated following the rejection of his application to the University of Michigan’s law school, which was considered under post-Proposal 2 criteria. Thе Court finds that Mr. Russell no longer has an interest in the subject matter of this case that cannot be protected adequately by the parties before the Court. Therefore, the Court will grant the motion for summary judgment and dismiss Mr. Russell as a party defendant. One Jennifer Gratz has filed a belated motion to intervene. The Court finds that Ms. Gratz fails to satisfy the requirements to permit her to intervene by right or per-missably, and the Court will deny her motion. The Court also finds that its opinion and judgment on the State’s summary judgment motion moots the pending discovery and class certification motions, and consequently those motions will be denied.
I.
As explained in the Court’s opinion and order filed today adjudicating the parties’ other motiоns for summary judgment, this litigation was commenced on November 8, 2006 by a group of organizations and individuals (the Coalition plaintiffs), immediately after the adoption by the Michigan electorate of a state constitutional amendment that effectively banned affirmative action programs by the State and its political subdivisions “in the operation of public employment, public education, or public contracting.” Mich. Const, art. I, § 26(1). Another group of individuals with ties to the University of Michigan (the Cantrell plaintiffs) brought suit on December 19, 2006, contending that Proposal 2 is unconstitutional as it is applied to public colleges and universities.
On December 18, 2006, Eric Russell, who had applied for admission at the University of Michigan’s law sсhool, filed a motion to intervene as a party defendant. Russell was accepted by Wayne State University Law School beforehand, but his application to Michigan’s law school was still pending. Russell argued in his motion to intervene that he had a substantial interest in this case because, as a white male applicant to Michigan, he stood to gain or lose depending on whether Proposal 2 remained in full force and effect, and he was concerned about “both his interest in being
In addition, Russell contended that his interests would not be represented adequately by the then-present parties to the case because the university defendants and Governor Granholm had expressed strong disapproval of Proposal 2. Presciently, Russell also made this argument with respect to Attorney General Cox on the grounds that he might have the inclination to resolve this litigation by permitting the university defendants to temporarily ignore Proposal 2 during the 2006-2007 admissions cycle. Id at 10. Such a resolution, sounding in eventual compliance, “wоuld not do Eric Russell much good at all.” Ibid Unlike some members of the public, Russell represented that his interest was “to have a non-discriminatory and non-preferential system instituted right now, while his application is still under consideration.” Ibid
At around the same time Mr. Russell filed his motion for intervention, several other entities filed motions seeking the same relief. Before ruling on these matters, however, the Court entertained a stipulation requesting entry of a preliminary injunction that would have exempted the university defendants from complying with Proposal 2 through the 2006-2007 admissions cycle. The stipulation was signed by Michigan Attorney General Michael Cox, who had been ordered to intervene in the case. The Court entered an order pursuant to the stipulation, but that оrder was stayed pending appeal by the Sixth Circuit on December 29, 2006. Coalition to Defend Affirm. Action v. Granholm,
On December 27, 2006, the Court issued an opinion and order addressing all of the motions to intervene, denying them all except Russell’s. Coalition to Defend Affirmative Action v. Granholm,
Subsequently, the Court held a scheduling conference with both the Coalition and Cantrell plaintiffs to establish dates and an approach for handling the litigation. The actions were consolidated, and the Court ordered that all of the defendants in one action would be deemed defendants in the other action. The Court then requested the parties to submit joint stipulations of fact with the hope that the issues might be
In mid-May 2007, the Coalition and Cantrell plaintiffs each submitted a motion for class certification. Attorney General Cox and Governor Granholm each opposed the motions for class certification, while Eric Russell concurred in the relief sought. The Court held a hearing on the motions on August 15, 2007 and took them under advisement.
In the meantime, on January 27, 2007 Eric Russell was denied admission to the University of Michigan Law School. It is undisputed that this decision was made in compliance with Proposal 2. Sarah Zear-foss, Assistant Dean and Director of Admissions at the University of Michigan, testified that she initially reviewed Mr. Russell’s application on December 22, 2007 and then placed it on “hold” along with other applications that had been filed before Proposal 2’s effective date. She then “looked at it without taking race into account as a factor.” Mot. for Summ. J as to Russell, Ex. L, Zerfoss dep. at 199. She explained:
Q. And do you recall the reasons, the primary reasons that you decided to deny Eric Russell’s application?
A. Again, it’s really impossible to identify the particular thing that made a decision. I do recall what I thought were weaknesses in the application.
Q. And what were those?
A. Well, there were a lot of them.
Q. And given all those qualities that you’ve just talked about, would you characterize Mr. Russell’s application for admission as a close case for admission.
A. No, it was not.
Q. Would you say that’s the case whether you were applying the pre-Pro-posal 2 policy or the post-Proposal 2 policy?
A. That’s correct.
Id. at 200, 205. It is also undisputed that Michigan did consider race in the initial application process prior to Proposal 2.
Assistant Dean Zearfoss also discussed how Russell would be treated should he submit a transfer application upon completion of his first year at Wayne State University Law School, as well as financiаl aid considerations if he were accepted. Zear-foss testified that race was not a factor, and in fact never had been when transfer applications were considered. As for financial aid, Zearfoss’s testimony was less illuminating, but she did indicate that Proposal 2 has not impacted the process.
Turning to Wayne State University, law school Dean Frank H. Wu testified that race does not and will not affect Eric Russell’s participation in law school activities and, more importantly, his eligibility for financial aid and scholarships. With respect to student activities, including participation in law review, Dean Wu stated that Proposal 2 had changed nothing. Dean Wu’s testimony concerning financial aid was equally unequivocal, stating that he had “no reason to believe that if Proposal 2 were struck down at any point by a court, that any financial aid decision made as to Eric Russell or any other student would turn out differently because of race.” Mot. for Summ. J. as to Russell, Ex. M, Wu dep. at 185-86. Dean Wu also testified that Wayne State was in the process of amending scholarships to ensure conformity with Proposal 2. He stated that thirteen or fourteen scholarships funded in part by private donors contained impermissible criteria, and the school was therefore “systematically approaching donors
The Cantrell plaintiffs filed thе present motion for summary judgment on October 5, 2007. The university defendants and the Coalition plaintiffs concur in the request, and Attorney General Cox takes no position on the matter.
During the litigation, the parties filed various motions to compel discovery. Those motions are rendered moot by this Court’s disposition of the attorney general’s motion for summary judgment, and they will be denied.
Finally, on February 1, 2008, Jennifer Gratz belatedly filed a motion to intervene as a defendant in the consolidated matters through the same attorney that represents intervening defendant Erie Russell. Gratz argues that she has an interest in this litigation because she once lived in Michigan and she might apply to the University of Michigan law school for admission in 2009 or 2010. She explains that she did not move to intervene until after the dis-positive motion deadline passed in this case because it only recently occurred to her that she might want to apply to a law school in Michigan.
II.
A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,
A fact is “material” if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co.,
When a party that has been granted intervention as of right no longer meets the requirements for such intervention, a court properly dismisses that party from the case. See Morgan v. McDonough,
Intervention, both as of right and by permission, is governed by Rule 24 of the Federal Rules of Civil Procedure. With respect to both types of intervention, the Sixth Circuit has stated that “Rule 24 should be ‘broadly construed in favor of potential intervenors,’ ” but has also warned that “this does not mean Rule 24 poses no barrier to intervention at all.” Stupak-Thrall v. Glickman,
Rule 24(a) deals with intervention as a matter of right and states:
On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the mоvant’s ability to protect its interest, unless existing parties adequately represent that interest.
Fed.R.Civ.P. 24(a). “[T]o intervene as of right under Rule 24(a)(2), a proposed in-tervenor must establish the following four elements: (1) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed inter-venor’s ability to protect that interest may be impaired in the absence of intervention; and (4) the parties already before the court may not adequately represent the proposed intervenor’s interest.” United States v. Michigan,
The first criterion is irrelevant since Russell already is a party to the case. The question is whether he should be permitted to remain in light of his changed circumstances. With the benefit of the parties’ briefing on the summary judgment motions, the Court has little trouble concluding that there is no longer a good reason for Russell to remain in the litigation. The main reason undergirding Russell’s presence in this case has evaporated, he has no interest at risk in the matter, and even if he did, it appears that the
The Sixth Circuit has adopted a liberal view of the nature of an interest that supports intervention of right, but it has consistently noted that “[t]he inquiry into the substantiality of the claimed interеst is necessarily fact-specific.” Michigan State AFL-CIO v. Miller,
Intervening defendant Russell argues that the nature of the injury in an equal protection claim of the present variety consists not in denial of the ultimate benefit, but in unequal treatment. Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville,
However, once a substantial legal interest has been established, the Court asks a related question: whether thе “intervenor’s ability to protect that interest may be impaired in the absence of intervention,” or, in this case, in the absence of continued intervention. Michigan,
Assistant Dean Zearfoss’s undisputed testimony establishes that race is not considered in evaluating transfer applications; this was the case even before Proposal 2 (dating back to at least 2001, when Zearfoss took over); and Michigan would not change this policy if Proposal 2 were struck down. Russell makes a valid point that, notwithstanding Zearfoss’s representation, the university could legally consider race in transfer aрplications if the Court invalidated Proposal 2. “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle,
In this case it is inappropriate to second-guess Michigan’s representation when the evidence suggests its historical and future avoidance of consideration of race in transfer applications is not mere lip-service. Where a defendant’s voluntаry cessation of a challenged practice may be inherently suspect, see Aladdin’s Castle,
On a related note, Russell suggests that Zearfoss’s testimony leaves open the possibility that Michigan may consider ethnicity, as opposed to race, in the transfer application process. This argumеnt finds no support in the record. Although the definitions of race and ethnicity may be distinct, when Zearfoss referred to ethnicity, she used the term as if it were interchangeable with race. Whatever ambiguity may exist on this point does not alter Zearfoss’s testimony that Mr. Russell will not be treated differently than others because he is white.
The same conclusion can be made with respect to Russell’s matriculation through Wayne’s law school. Dean Wu testified that “[r]aee will not affect any financial aid decision made as to Eric Russell or any other student at Wayne State University Law School.” Wu dep. at 185. Further, he stated that he has no reason to believe this would change in the event Proposal 2 were invalidated. It is unclear whether race was considered in the context of need-based financial aid before Proposal 2; there is in fact no evidence on the point. However, it is clear that race, ethnicity, or gender were factors in approximately fourteen annual scholarships. Wu dep. at 238. Wu testified that, following the passage of Proposal 2, he or a development officer “systematically approach[ed]” the donors to inform them that such criteria were impermissible. Ibid. Some of the donors—it is unclear how many—agreed to continue funding the scholarships with elimination of the impermissible criteria. Id. at 239. Accordingly, assuming he met the remaining criteria (for instance, one or more of the scholarships have been set aside for people from a particular geographic area), Russell “would be eligible to receive those scholarships.” Ibid. This evidence remains unrebutted.
The Court concludes, therefore, that Eric Russell has failed to establish that impairment of his substantial legal interest with respect to both Michigan and Wayne State is possible if continued intervention is denied. Although proof of impairment need only be “minimal,” Grutter,
Finally, having the benefit of reviewing the summary judgment briefs, it is apparent that Russell’s interest in the litigation now parallels that of the attorney general. At one point in this litigation, the attorney general’s lack of consistency in its acceptance of Proposal 2 was characterized by the court of appeals as “puzzl[ing],” Coalition to Defend Affirm. Action v. Granholm,
The motion for summary judgment as to intervening defendant Eric Russell, therefore, will be granted.
III.
The motion by Jennifer Gratz to intervene as a defendant can be disposed of quite easily based on her failure to satisfy any of the four factors required to establish a right to intervene. First, the motion is untimely. Timeliness is
Second, Ms. Gratz has not identified a substantial legal interest in thе subject matter of the case. She has no application to any Michigan school pending. She represents in her motion that she might apply to Michigan’s law school, but she testified under oath in her deposition in San Francisco in this case that she is a resident of California and has no immediate plans to return to Michigan. The Court finds no credible evidence that Ms. Gratz has an interest in the legal issues in this case that derives from her attempt to situate herself similarly to Russell’s preadmission-decision posture. Of course, Ms. Gratz also directed the activities of the Michigan Civil Rights Initiative Committee, which was the driving force behind the passage of Proposal 2, suggesting that she has an ideological interest in defending the enforcement of the state constitutional amendment. However, the Sixth Circuit has deemed a mere interest in the “subsequent enforcement of the rule after its enactment” an insufficient reason to support intervention by right. Northland Family Planning Clinic, Inc. v. Cox,
[T]he public at large — including public interest groups — has an interest in the procedure by which a given legal requirement is enacted as a matter of democratic legislative process. On the other hand, in a challenge to the constitutionality of an already-enacted statute, as opposed to the process by which it is enacted, the public interest in its enforceability is entrusted for the most part to the governmеnt, and the public’s legal interest in the legislative process becomes less relevant.
Ibid.
Gratz’s ideological interest is no different than that of the organization she directed, the MCRI, to which the Court already denied intervention. Her ability to press these issues is cast into doubt by her apparent “confusion at the evidentiary hearing [on the propriety of MRCI’s conduct in obtaining petition signatures] as to the purpose of the MCRI’s proposal.” Operation King’s Dream v. Connerly,
Fourth, as with Eric Russell, the attorney general will adequately represent Gratz’s interest, such as it is, in matters before the Court.
Gratz also seeks permissive intervention under Rule 24(b). An applicant for permissive intervention “must prove that the motion for intervention is timely, there is at least one common question of law or fact, and the balancing of undue delay, prejudice to the original parties, and any other relevant factors favors intervention.” Coalition to Defend Affirmative Action,
For these reasons, the motion to intervene as a party defendant by Jennifer Gratz will be denied.
IV.
Because the attorney general’s motion for summary judgment was granted, there is no neеd for the Court to address the class certification motions. Rule 23(c) provides: “At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Fed.R.Civ.P. 23(c)(1)(A). Although the Sixth Circuit has not interpreted this language, other courts and commentators have noted that a district court may decide dispositive motions, including motions for summary judgment, prior to entertaining class certification. A district court enjoys discretion in determining whether and when to certify a case, Reeb v. Ohio Dept. of Rehabilitation and Correction,
The Manual for Complex Litigation reflects the basic idea:
The court may rule on motions pursuant to Rule 12, Rule 56, or other threshold issues before deciding on certification; however, such rulings bind only the named parties. Most courts agree, and Rule 23(c)(1)(A) reflects, that such pre-certification rulings on threshold disposi-tive motions are proper, and one study found a substantial rate of precertification rulings on motions to dismiss or for summary judgment. Precertification rulings frequently dispose of all or part of the litigation.
Manual for Complex Litigation (Fourth ed.) § 21.133. As Rule 23 suggests, extensive discovery is often needed to rule on motions for class certification. See Fed. R.Civ.P. 23(a)-(b). Although conceptually distinct, the facts discovered often pertain to the merits. See Oscar Private Equity Investments v. Allegiance Telecom, Inc.,
Dismissal prior to certification is res judicata as to the class representatives, but has no effect on the putative class members. Wright,
The Court’s decision to grant summary judgment in favor of the State moots the class certification motions. Therefore, these motions will be denied.
V.
The Court finds that Eric Russell no longer has a sustainable position to support intervention. Likewise, Jennifer Gratz has failed to demonstrate that she should intervene either by right or by leave. The decision on the merits of the plaintiffs’ claims in the summary judgment proceedings renders a decision on class certification unnecessary. Similarly, the dismissal of the action renders moot the pending discovery motions.
Accordingly, it is ORDERED that the Cantrell plaintiffs’ motion for summary judgment as to intervening defendant Eric Russell [dkt # 172] is GRANTED. Eric Russell is dismissed as a party defendant to these consolidated actions.
It is further ORDERED that intervening defendant Eric Russell’s motion for summary judgment [dkt #202] is DENIED as moot.
It is further ORDERED that the plaintiffs’ respective motions to certify the matters as class actions [dkt # 107, 121] are DENIED as moot.
It is further ORDERED that the Cantrell plaintiffs’ motion to compel discovery [dkt # 156] is DENIED as moot.
It is further ORDERED that intervening defendant Eric Russell’s motion to compel discovery from the university defendants [dkt # 169] is DENIED as moot.
It is further ORDERED that the motion to intervene by Jennifer Gratz [dkt # 241] is DENIED.