CITY OF PONTIAC RETIRED EMPLOYEES ASSOCIATION; Delmer Anderson; Thomas Hunter; Henry C. Shoemaker; Yvette Talley; Debra Woods; John Claya, Plaintiffs-Appellants, v. Louis SCHIMMEL, Individually and in his capacity as Emergency Manager of the City of Pontiac; Cathy Square, Individually and in her official capacity as the Director of Human Resources and Labor Relations for the City of Pontiac; City of Pontiac, Defendants-Appellees, 726 F.3d 767

GWIN, D.J., delivered the opinion of the court, in which COLE, J., joined. GRIFFIN, J. (pp. 779-89), delivered a separate dissenting opinion. OPINION GWIN, District Judge. Like many Michigan municipalities, the City of Pontiac has experienced significant economic difficulties, especially since the 2008 financial collapse. To address Pontiac’s problems, Michigan’s Governor appointed Louis Schimmel as Pontiac’s emergency manager. Acting under Public Act 4, Michigan’s then-existing emergency manager law, Schimmel modified the collective bargaining agreements of Pontiac’s retired employees.

He also modified severance benefits, including pension benefits, that Pontiac had given to other retirees not covered by collective bargaining agreements. In this case, those retired employees challenge the emergency manager’s power to reduce their retirement benefits. The retired employees say that Schimmel and Pontiac violated their federal constitutional rights, including rights given under the Contracts Clause, the Due Process Clause, and the Bankruptcy Clause. The retired employees do not specifically argue that Schimmel violated Michigan’s Constitution when he changed their pension rights.

But, the Michigan Legislature may have violated the Michigan Constitution when it passed Public Act 4. In addition, Michigan voters rejected Public Act 4 by referendum, and this rejection may have rendered Schimmel’s actions void. Despite the parties’ inadequate briefing of these state-law issues, we decline to decide the case on federal constitutional grounds. Because state law could provide an alternative basis for deciding this case, we VACATE and REMAND to the district court to conduct additional fact-finding and consider these state-law issues.

Specifically, did two-thirds of both houses of the Michigan Legislature vote to make Public Act 4 immediately effective? And, since Michigan voters rejected Public Act 4 in a referendum, do the acts taken under the rejected law have any power? Because similar issues face many Michigan municipalities, we ask the district court to expedite consideration of the remanded case. I. Background A. Michigan’s Emergency Manager Laws Emergency Manager Louis Schimmel (the “Emergency Manager”) changed contractual and pension commitments under Public Act 4.

Public Act 4 is not Michigan’s first law governing emergency managers, but it is the first legislation that allowed emergency managers to break collective bargaining agreements and to ignore retirement commitments. Mich. Comp. Laws §§ 141.1501-1581 (rejected by referendum 2012). In 1990, the Michigan Legislature enacted a predecessor to Public Act 4, the Local Government Fiscal Responsibility Act (“Public Act 72”). Mich. Comp. Laws § 141.1519(1)© (2005).

Public Act 72 established a procedure for Michigan’s Governor to appoint emergency managers, and gave those emergency managers the power to address local governments’ financial crises. But Public Act 72 did not give emergency managers the power to modify collective bargaining agreements or pension rights. Critics of Public Act 72 complained that it did not give emergency managers the powers sometimes necessary to address municipalities’ structural budget problems, especially financial problems flowing from pension commitments. Critics called for a new law, and Public Act 4 was born.

In March 2011, Michigan’s Governor signed Public Act 4 into law. § 141.1503. Unlike Public Act 72, Public Act 4 gave emergency managers the power to temporarily reject, modify, or terminate existing collective bargaining agreements. Id. at §§ 141.1519(1)00, (k)(iv). Public Act 4 also repealed Public Act 72. Id. at § 141.1503 (enacting § 1). As we discuss, Michigan’s Constitution purposely makes it difficult for laws to take immediate effect. Generally, laws do not become effective until ninety days after the end of the legislative session in which they are passed. Mich. Const, art. IV, § 27.

However, this general rule does not apply if two-thirds of each house in the Legislature vote to make the law take immediate effect. Id. Public Act 4 passed by only a narrow margin. Nevertheless, the Michigan Legislature claims that two-thirds of its members voted to make Public Act 4 become immediately effective. Michigan also has a voter rejection procedure that allows citizen-initiated rejection of Michigan legislation. In response to Public Act 4, critics collected enough signatures to have Michigan citizens vote on whether Public Act 4 should be rejected.

On November 6, 2012, Michigan voters rejected Public Act 4 by a fifty-two percent to forty-eight percent margin. Michigan’s citizens cancelled Public Act 4. Apparently unaffected that voters had just rejected Public Act 4, the Michigan Legislature enacted, and the Michigan Governor signed, Public Act 436. Public Act 436 largely reenacted the provisions of Public Act 4, the law that Michigan citizens had just revoked. In enacting Public Act 436, the Michigan Legislature included a minor appropriation provision, apparently to stop Michigan voters from putting Public Act 436 to a referendum. Mich. Comp.

Laws §§ 141.1574, 1575. B. City of Pontiac In March 2009, Michigan’s Governor appointed Schimmel as Pontiac’s emergency manager under Public Act 72, Michigan’s then-controlling emergency manager law. Although Schimmel has managed Pontiac for a number of years, Pontiac continues to struggle. Currently, Pontiac’s liabilities to the benefit plans of its employees is its greatest expense, totaling $302 million. With the passage of Public Act 4 and for the first time, Michigan gave emergency managers the power to change collective bargaining agreements and the power to stop pension benefits.

In December 2011, the Emergency Manager modified Pontiac’s collective bargaining agreements to shift a large portion of the city’s benefits obligations onto its employees. Among the changes, Pontiac cancelled disability, vision, and hearing coverage; increased annual deductibles; and cut pensions. This case resulted. C. Procedural History In June 2012, the City of Pontiac Retired Employees Association and a group of retired employees (collectively the “Retired Employees”) filed this putative class action.

They alleged several federal claims, including the unconstitutional impairment of contract, preemption under federal bankruptcy law, and deprivation of a property interest without due process of law. With the complaint, the Retired Employees filed a motion for a temporary restraining order (“TRO”) and a motion for a preliminary injunction to stop certain Emergency Manager orders from taking effect. In July 2012, the district court denied the TRO motion and denied the motion for a preliminary injunction. The Retired Employees appealed. II.

Law and Analysis As became clear during oral argument, both parties ask this Court to reach the substantive merits of their dispute. But doing so requires us to resolve important federal constitutional issues, which are closer questions than the dissent suggests. Unlike the district court here, another Michigan federal district granted injunctive relief when faced with similar federal questions. Against this backdrop, the better course of action asks the district court to see if state-law issues could avoid the need to rule on the federal claims.

Because state law could provide an alternative basis for deciding this ease, the more prudent approach is to allow the district court to conduct additional fact-finding and to consider the state-law issues. A. Constitutional Avoidance Under the doctrine of constitutional avoidance, we avoid constitutional determinations when a case can be resolved on other grounds. See Ashwander v.

TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”) (internal citation and quotation marks omitted); see also Muller Optical Co. v. EEOC, 743 F.2d 380, 386 (6th Cir.1984) (“The duty to avoid decisions of constitutional questions ... [is] based upon the general policy of judicial restraint.”).

When a case can be resolved on state constitutional grounds, we should decide the state issue so as to avoid rendering a decision under the Federal Constitution. See Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 191, 29 S.Ct. 451, 53 L.Ed. 753 (1909) (“This court has the same right, and can, if it deem it proper, decide the local questions only, and omit to decide the federal questions, or decide them adversely to the party claiming their benefit.”) (citations omitted). The dissent would decide the Retired Employees’ contracts clause and due process claims.

But these federal constitutional issues are closer questions than the dissent suggests. If the Michigan Legislature gave Public Act 4 immediate effect in violation of the Michigan Constitution, or if the voters’ rejection of Public Act 4 by referendum rendered the Emergency Manager’s actions void, we could avoid the federal constitutional issues. Doing otherwise forces us to decide federal constitutional questions and potentially render an advisory opinion. We should avoid this if we can. B. Waiver What should a court do when the parties fail to raise an obvious issue?

Here, neither the Retired Employees nor Schimmel raised the issue of whether the Michigan Legislature’s giving Public Act 4 immediate effect violated the Michigan Constitution. Nor did they raise the issue of whether the voters’ referendum rejection of Public Act 4 rendered the Emergency Manager’s actions void. Both issues are potentially dispositive of this appeal. Generally, we have found that a party waives an issue when they have not raised it or sufficiently addressed it. See, e.g., Marks v.

Newcourt Credit Grp., Inc., 342 F.3d 444, 462 (6th Cir.2003) (holding that a party “waives an issue when he fails to present it in his initial briefs”) (citations omitted). But, the waiver rule is neither jurisdictional nor is it absolute. See, e.g., In re Morris, 260 F.3d 654, 664 (6th Cir.2001) (holding that the waiver rule is “an accepted practice or rule of procedure rather than a jurisdictional bar to hearing issues for the first time on appeal”) (citations omitted). The dissent says that we are bound by the parties’ framing of the issues. But the United States Supreme Court rejects a blanket rule.

In Independent Insurance Agents of America, the Court held that courts of appeals have the discretion to consider issues sua sponte despite the parties’ failure to raise the issue in the district court, the court of appeals, or at oral argument. U.S. Nat. Bank of Or. v. Indep. Ins.

Agents of Am., Inc., 508 U.S. 439, 445-47, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (“The contrary conclusion would permit litigants, by agreeing on the legal issue presented, to extract the opinion of a court on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory.”).

Despite the importance of whether Public Act 4 should have been given immediate effect, or if the voter’s referendum rejection of Public Act 4 rendered the Emergency Manager’s actions void, we should not decide these issues now because the parties failed to develop these issues sufficiently for our review. In Independent Insurance Agents of America, the Supreme Court found that the court of appeals’ sua sponte consideration of the unasserted issue was proper only after “giving the parties ample opportunity to address the issue.” Id. at 448, 113 S.Ct. 2173.

Thus, we return these issues to the district court to develop a factual record and consider the parties’ arguments. We have generally applied the waiver exception where the issue involved a question of law that required no additional factual development. See, e.g., Morris, 260 F.3d at 664. But here, where additional fact-finding is necessary, remand to the district court is more appropriate. See, e.g., City of Mt. Clemens v.

EPA, 917 F.2d 908, 916 n. 7 (6th Cir.1990) (remanding to district court and declining to affirm on alternative grounds “[bjecause these arguments were not addressed by the district court and additional fact finding would be required to resolve the issues raised”). The parties’ failure to brief important state-law questions should not force this Court to decide important federal constitutional questions. A remand is therefore the best course of action. In January 2013, after this Court heard oral argument, Michigan’s Attorney General moved to intervene to brief the referendum rejection issue.

While the Attorney General’s supplemental briefing may aid a fact-finder considering these issues, the district court should conduct that fact-finding. See Birth Control Ctrs., Inc. v. Reizen, 743 F.2d 352, 366 (6th Cir.1984) (“When an appellate court discerns that additional fact findings are necessary, the usual rule is to remand for further proceedings to permit the trial court to make the necessary findings.”). The motion to intervene is therefore denied. Our decision is limited to this proceeding. On remand, the Attorney General may refile its motion with the district court. C.

Immediate Effect On remand, the district court should consider whether the Michigan Legislature violated the Michigan Constitution when it gave Public Act 4 “immediate effect.” There is reason to believe that it did. Generally, the Michigan Constitution makes bills effective ninety days after the end of the legislative session in which they are passed. Mich. Const, art. IV, § 27. That general rule, however, is subject to the immediate effect exception that permits the Legislature to “give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.” Id. (emphasis added).

Discussing the framers’ intent for this provision, the Michigan Supreme Court said: Several delegates expressed concern that granting the Legislature the power to give immediate effect to any law would endanger the referendum because it would not give the people time to gather signatures for petitions to prevent the law from going into effect. Also, there was the danger that statutes would be passed without giving people adequate time to become acquainted with the statutes and adjust to them before they went into effect.

To reduce this danger, the framers decided to maintain the requirement that no act passed by the Legislature could take immediate effect unless passed by a two-thirds vote of the elected members of each house. Frey v. Dep’t of Mgmt. & Budget, 429 Mich. 315, 414 N.W.2d 873, 880-81 (1987) (emphasis added) (footnotes omitted). The Michigan Legislature seems to have ignored the two-thirds vote requirement when it gave Public Act 4 immediate effect. The Michigan Legislature has a Senate with thirty-eight members and a House with 110 members.

Thus, the two-thirds vote requirement is twenty-six votes in the Senate and seventy-four votes in the House. But, Public Act 4 passed in the House with sixty-two votes — twelve short of the two-thirds requirement for an immediate effect motion. Yet, despite the clear absence of the necessary two-thirds vote, the House proceeded to give Public Act 4 immediate effect over the objections of the minority party. To achieve this result, the House used a rule that allows it to conduct a “rising vote,” where the presiding officer examines the chamber to see whether the requisite two-thirds support exists. See Hammel v.

Speaker of House of Representatives, 297 Mich.App. 641, 825 N.W.2d 616, 619 (2012), appeal denied, 493 Mich. 973, 829 N.W.2d 862 (2013). Apparently, a two-thirds vote occurs whenever the presiding officer says it occurs — irrespective of the actual vote. This authority is unchecked and often results in passing motions for immediate effect that could not receive the constitutionally required two-thirds vote. Apparently, the Michigan Legislature believes the Michigan Constitution can be ignored. Public Act 4 exemplifies the farce.

The Michigan House presiding officer refused a request for a roll call vote and made Public Act 4 immediately effective through the obvious fiction that twelve House members immediately changed their positions. This process has been the subject of considerable contention and scrutiny. In effect, the Michigan Legislature has made their “rising vote” rule trump the Michigan Constitution. Despite the Michigan Constitution’s express limitation, the Legislature has perverted the immediate effect exception to swallow the constitutional rule.

Under Republican control of the House, in 2011, the Legislature passed 319 out of 323 bills with immediate effect. In 2010, it passed 345 out of 363 bills with immediate effect. Democrats have also abused the exception. Under Democratic control of the House, in 2006, the Legislature passed 664 out of 682 bills with immediate effect. Plainly, the Legislature will not self-correct its abuse of the immediate effect exception because the majority party controls and benefits from the process. The issue has been examined by Michigan’s lower courts. See Hammel, 825 N.W.2d at 618.

In Hammel, the plaintiffs said that under the Michigan Constitution, “article 4, § 27, motions for immediate effect are required to be resolved by a roll call vote, and that

article 4, § 18 prohibits a requirement that motions for immediate effect and for a roll call vote be made orally.” Id. at 619. The trial court agreed and entered an order for a preliminary injunction. Id. But the Michigan Court of Appeals reversed. Id. at 628. It found that the plaintiffs had failed to demonstrate a likelihood of success on the merits because “[t]he constitutional provisions at issue permit the manner in which they are applied to be determined by adoption of the rules of the House.” Id. at 622. This reasoning make little sense.

The Michigan Constitution expressly limits the Legislature’s power to give laws immediate effect. Yet, the Michigan Court of Appeals says that the Michigan Legislature has the power to decide whether that constitutional limitation applies? Alternatively, the court of appeals also made the illogic finding that the plaintiffs failed to show irreparable harm because the “plaintiffs’ ability to vote and the effectiveness of their vote have not been impaired.” Id. On May 1, 2013, the Michigan Supreme Court denied the plaintiffs’ application for leave to appeal the Hammel case. Hammel v.

Speaker of House of Representatives, 493 Mich. 973, 829 N.W.2d 862 (2013). The dissent here characterizes the Michigan Supreme Court’s review as somehow affirming the Hammel opinion. But the Michigan Supreme Court simply has not spoken on the immediate effect issue and no conclusion can be taken from its declining to review the case. Where “a state’s highest court has spoken to an issue, we are bound by that decision unless we are convinced that the high court would overrule it if confronted with facts similar to those before us.” Kirk v. Hanes Corp. of N.C., 16 F.3d 705, 707 (6th Cir.1994) (citation omitted).

Where a state appellate court has resolved an issue to which the high court has not spoken, the Supreme Court has said that the appellate court decision “is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” West v.

AT&T Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940). “We may refuse to follow intermediate appellate court decisions where we are persuaded that they fail to reflect state law correctly, but we ‘should not reject a state rule just because it was not announced by the highest court of the state,’ even if we believe that the rule is ‘unsound.’ ” Ziebart Int’l Corp. v. CNA Ins. Cos., 78 F.3d 245, 250-51 (6th Cir.1996) (quoting FL Aerospace v. Aetna Cas. & Sur. Co., 897 F.2d 214, 218-19 (6th Cir.1990)). On remand, the district court should consider whether the Michigan Supreme Court would overrule Hammel.

There is reason to believe it would. The Michigan constitutional provision seems obviously directed at restricting its Legislature’s ability to give bills immediate effect unless a real two-thirds of the elected members in each house agree. And the court of appeals’s belief that house members do not need to vote on immediate effect if they have had a chance to vote on the underlying legislation turns Michigan’s Constitution

article IV, § 27 on its head. Michigan courts do not refrain from scrutinizing the Legislature’s determination that a bill is passed with immediate effect. First, before 1963, the Michigan Constitution imposed additional requirements on the Legislature before it could give a bill immediate effect: it said that the bill must be “immediately necessary for the preservation of the public peace, health or safety.” Indus. Bank of Wyandotte v. Reichert, 251 Mich. 396, 232 N.W. 235, 236 (1930).

At that time, when the Legislature said a bill should take immediate effect, courts reviewed the Legislature’s determination to ensure that the bill was immediately necessary for those reasons. See, e.g., Attorney Gen. v. Lindsay, 178 Mich. 524, 145 N.W. 98, 103 (1914) (“The determination of the Legislature by giving [the act] immediate effect is not conclusive upon the courts, and they must decide, as a matter of law, whether the act so declared is ... within this constitutional provision. This is clearly a judicial question.”).

Likewise, courts should review the Legislature’s compliance with the Michigan Constitution’s two-thirds vote requirement to give a bill immediate effect. Second, in the federal system, the Supreme Court has said that courts should review congressional procedural rules to determine if they violate the Constitution. See, e.g., United States v. Baltin, 144 U.S. 1, 5, 12 S.Ct. 507, 36 L.Ed. 321 (1892) (“The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights.”) (emphasis added).

A contrary rule — that the Legislature’s creation of procedural rules is not limited by constitutional restraints — could lead to absurd results. The Michigan Legislature cannot end the Michigan Constitution’s two-thirds requirement by passing a rule saying it will ignore the requirement. To conclude otherwise would effectively allow the Michigan Legislature to unilaterally amend the Michigan Constitution. Because the Legislature gave Public Act 4 immediate effect, the bill purportedly became effective on March 16, 2011, after the governor signed it into law.

In December 2011, the Emergency Manager gave the orders we review in this case. Those orders modified the retirement plans of over 1000 municipal retirees. But, if the Legislature’s attempt to give Public Act 4 immediate effect violated the Michigan Constitution, then Public Act 4 would not have become effective until March 2012, ninety days after the legislative session ended. Consequently, the Emergency Manager would not have possessed the power to modify the employees’ retirement plans when he did.

The district court, after conducting additional fact-finding, could conclude that the immediate effect issue resolves the case because the Emergency Manager did not have the power to modify the employees’ retirement plans at the time he acted. Because the immediate effect issue is potentially dispositive and is a state-law ground, we remand to the district court. D.

Rejection by Referendum, Even if the Michigan Legislature’s passage of Public Act 4 with immediate effect did not violate the Michigan Constitution, remand is also warranted to allow the district court to consider whether the voters’ November 2012 referendum of Public Act 4 voided the Emergency Manager’s actions. After Michigan voters rejected Public Act 4, do actions taken under Public Act 4 continue to have effect?

In an August 6, 2012, opinion (the “Referendum Opinion”), the Michigan Attorney General said that: If 2011 PA 4 [Public Act 4] is disapproved by voters pursuant to the power of referendum under Const 1963, art. 2, § 9, that law will no longer have any effect and the formerly repealed law, 1990 PA 72 [Public Act 72], is permanently revived upon certification of the November 2012 general election results.

Once the effect of 2011 PA 4 [Public Act 4], the Local Government and School District Fiscal Accountability Act, MCL 141.1501 et seq., was suspended under Const 1963, art. 2, § 9 and MCL 168.477(2), the prior repealed law, 1990 PA 72 [Public Act 72], is revived until certification of the November 2012 general election results. Depending on the vote of the electorate, the temporary revival of 1990 PA 72 [Public Act 72] will either cease with the approval of Public Act 4, or become permanent with the Act’s disapproval. 2012 Mich. Op. Att’y Gen. No. 7267 (Aug. 6, 2012) (emphasis added).

On November 6, 2012, Michigan voters rejected Public Act 4 by a 52-pereent to 48-percent margin. Nevertheless, the effect of the referendum on actions that the Emergency Manager took before the rejection is uncertain. First, Proposal 12-1, the referendum on Public Act 4, does not expressly say what effect referendum rejection would have on past Emergency Manager actions. The referendum text did not specifically say whether a rejection would invalidate past Emergency Manager actions. Moreover, the text accompanying the referendum was merely the full text of Public Act 4.

Neither the ballot text nor its accompanying explanatory text stated the effect of rejection on past Emergency Manager actions. Second, the Michigan Constitution does not say what effect a referendum rejection of Public Act 4 would have. The Michigan Constitution gives voters the power to approve or reject laws enacted by the Legislature. It provides, in relevant part: The people reserve to themselves ... the power to approve or reject laws enacted by the legislature, called the referendum....

The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required. Mich. Const, art.

II, § 9. The Michigan Constitution thus merely outlines the referendum process. It does not say what effect a referendum rejection has on action taken under the rejected statute, but before the referendum. While Michigan Compiled Laws § 168.477(2) says that “a law that is the subject of the referendum continues to be effective until the referendum is properly invoked,” § 168.477(2) controls only to suspend operation of. the challenged statute until the voters’ decide the referendum.

Put simply, “properly invoked” more likely describes certification of the referendum for the ballot, and § 168.477(2) does not control after rejection of the statute by the voters. The Michigan Constitution outlines only the procedures for, and not the effect of, referendum. Third, in Public Act 436, the successor to Public Act 4, the Michigan Legislature arguably expressed doubt about the lawfulness of Emergency Manager action taken before the November 2012 referendum.

Specifically, Public Act 436 provides: All proceedings and actions taken ... under former 2011 PA 4 [Public Act 4], former 1988 PA 101, or former 1990 PA 72 [Public Act 72] before the effective date of this act are ratified and are enforceable as if the proceedings and actions were taken under this act. Mich. Comp. Laws § 141.1544. Thus, by making prior Emergency Manager actions taken under Public Act 4 or Public Act 72 enforceable as if they were taken under Public Act 436, the Legislature seems to have anticipated that courts would find past Emergency Manager actions unlawful.

Consequently, it is arguable that even the Legislature expressed doubt about the lawfulness of past Emergency Manager actions in light of the voters’ rejection of Public Act 4. Fourth, in state court filings, the Michigan Attorney General has failed to cite to any authority supporting his position that the Emergency Manager’s actions under Public Act 4 are valid after the referendum. To the contrary, in his brief to the Michigan Supreme Court in Davis v.

Roberts, 491 Mich. 899, 810 N.W.2d 555 (2012), the Michigan Attorney General says that “the rejection of a law by referendum is more powerful than the repeal of a law because the rejection erases the Legislature’s and Governor’s original enactment.” Opposition Brief for Appellee at 16 Davis v. Roberts, 810 N.W.2d 555 (Mich. 2012) (No. 146187) (emphasis added). The Attorney General suggests that the referendum rendered prior Emergency Manager actions void.

Yet, in the same brief, the Attorney General also says “[t]he voters’ rejection does not render [Public Act 4] void ab initio since it was lawfully enacted by the Legisláture in the first instance. Thus the disapproval has no effect on lawful actions taken by the emergency managers during the time [Public Act 4] was effective.” Id. at 21.

Despite recognizing that a “referendum is more powerful than a repeal,” and despite saying that the referendum “erase[d]” Public Act 4, the Michigan Attorney General seems to argue the inconsistent position that the Emergency Manager’s action under Public Act 4 are valid after the referendum. The district court should consider this issue after more specific briefing. Consequently, we remand to the district court so that it can decide if the voters’ referendum rendered the Emergency Manager’s actions void. III. Conclusion We refuse to rush to decide federal constitutional issues.

Because the immediate effect issue and the referendum issue are state-law grounds on which the Court could decide this case, we vacate and remand to the district court to conduct additional fact-finding and consider these issues. .In August 2012, after litigation over the petition, the Michigan Supreme Court ordered the Board of State Canvassers to certify the referendum for the November ballot. Stand Up for Democracy v. Sec’y of State, 492 Mich. 588, 822 N.W.2d 159, 161 (2012). That certification suspended the operation of Public Act 4 pending the outcome of the referendum. Mich. Comp.

Laws § 168.477(2) ("a law that is the subject of the referendum continues to be effective until the referendum is properly invoked”). . See Mich. Const. Art. II, § 9 ("The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds”). . The Pontiac collective bargaining agreements at issue deal primarily with healthcare benefits. . See Welch v. Brown, No. 12-13808, 935 F.Supp.2d 875, 889, 2013 WL 1292373, at *13 (E.D.Mich. March 29, 2013). .

There, the United States Court of Appeals for the District of Columbia Circuit reversed the district court’s judgement based on a theory that neither party argued to the district court or the court of appeals. See Indep. Ins. Agents of Am., Inc. v. Clarke, 955 F.2d 731 (D.C.Cir.1992), rev’d on other grounds sub nom. Indep. Ins. Agents of Am., 508 U.S. at 445-47, 113 S.Ct. 2173. In denying rehearing en banc, Judge Sentelle said: Our colleagues question the “judicial power” of a federal court to decide an issue of law concededly dispositive of the case where parties have not raised the issue.

I think it most apparent that federal courts do possess this power. The alternative is that the parties could force a federal court to render an advisory opinion. What the dissenters in effect argue is that the parties can stipulate to the state of underlying law; frame a law suit, assuming that stipulation; and obtain from the court a ruling as to what the otherwise dispositive law would be if the stipulated case were in fact the law. Clarke, 965 F.2d at 1078 (Sentelle, J., concurring).

After the Supreme Court granted certiorari, the respondents argued that the court of appeals erred in considering the issue sua sponte. Indep. Ins. Agents of Am., 508 U.S. at 445, 113 S.Ct. 2173. Here, the dissent attempts to revive that argument. But, the Supreme Court dismissed the argument made by the dissent, the Clarke dissenters, and the respondents. Id. at 446-47, 113 S.Ct. 2173. . See also Burkholder v. UAW Local No. 12, 299 Fed.Appx. 531, 534 (6th Cir.2008), overruled on other grounds by Chapman v. UAW Local 1005, 670 F.3d 677 (6th Cir.2012); Dandridge v.

Williams, 397 U.S. 471, 476 n. 6, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) ("When attention has been focused on other issues, or when the court from which a case comes has expressed no views on a controlling question, it may be appropriate to remand the case rather than deal with the merits of that question in this Court.”). . The dissent would grant the motion to intervene and direct the Michigan Attorney General to file his brief within twenty-eight days. . Rep.

Kandrevas made the statement: "I vote NO ... and protest the events that transpired on the floor today.... [including] an utter disregard for demands by the requisite number of voting members for a record roll call vote on the question of Immediate Effect.” .

See, e.g., Mark Brush, Michigan Court of Appeals Rejects House Dems Bid to Stop 'Immediate Effect', Michigan Radio (Aug. 16, 2012, 5:28 PM), http://www.michiganradio. org/term/immediate-effect; Paul Egan, Michigan Court of Appeals Debates Republican Legislature's Immediate Effect, Detroit Free Press (Aug. 8, 2012, 12:40 PM), http://www.freep. com/apps/pbcs.dll/article?AID=/ 201208081240/NEWS15/120808051; Libby Spencer, Michigan House Republicans Repeatedly Violated State Constitution, The Detroit News (Apr. 6, 2012, 4:13 PM), http:// blogs.detroitnews.com/politics/2012/04/06/ michigan-house-republicans-repeatedlyviolated-state-constitution/; Jennifer White, Immediate Effect Sheds National Light on Michigan, So What?, Michigan Radio (Apr. 12, 2012, 9:39 PM), http://www. michiganradio.org/posVimmediate-effectsheds-national-light-michigan-so-what; Paul Egan, Michigan House Democrats Lose Challenge to GOP's Voice Votes that Give Laws Immediate Effect (Aug. 17, 2012), http://www. freep.com/article/20120817/NEWS15/ 308170058/Michigan-House-Democrats-lose-challenge-to-GOP-s-voice-votes-that-give-laws-immediate-effect. .

See also People v. Asta, 343 Mich. 507, 72 N.W.2d 282, 287 (1955) ("It may fairly be said that the imposition of the specific tax in question and amendment to the act in question have to do with the public peace, health and safety.”); Newberry v. Starr, 247 Mich. 404, 225 N.W. 885, 887 (1929) ("The act relates to important state agencies having to do with preservation of public health, peace, and safety.”); Mich. Taxpayers United, Inc. v.

Governor, 236 Mich.App. 372, 600 N.W.2d 401, 403 (1999) ("Whether the Legislature properly gave immediate effect to the bill is a question of law that we review de novo.”) (citation omitted). . The record of the 1963 constitutional convention is also unhelpful. See Secretary of the Convention, State of Michigan Constitutional Convention Official Record 2955-56 (Austin C. Knapp ed., 1962). . On remand, the district court should also consider whether the Michigan Legislature possesses the power to retroactively immunize its own acts that the voters rejected by referendum.

Because of the voters' rejection of Public Act 4 by referendum, and because Public Act 4 is substantially similar to Public Act 436, such a power could infringe on the voters' referendum power under the Michigan Constitution

article II, § 9.