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In re University of Michigan

United States Court of Appeals, Sixth Circuit

August 23, 2019

In Re: University of Michigan, et al. Petitioners.
University of Michigan; University of Michigan Board of Regents, Defendants-Petitioners. John Doe, Plaintiff-Respondent,

          On Petition for a Writ of Mandamus. United States District Court for the Eastern District of Michigan at Detroit; No. 2:18-cv-11776-Arthur J. Tarnow, District Judge.


          Stephen J. Cowen, Erin L. Ramamurthy, Andrew J. Clopton, JONES DAY, Detroit, Michigan, for Petitioners.

         ON RESPONSE:

          Deborah L. Gordon, Elizabeth Marzotto Taylor, DEBORAH GORDON LAW, Bloomfield Hills, Michigan, for Respondents.

          Before: ROGERS, KETHLEDGE, and THAPAR, Circuit Judges.



         This case is about power. The power of district courts to manage their cases and our power to review that process. Questions about judicial power are far from new. At the founding, the Anti-Federalists feared that unchecked judges would become tyrants in robes. They warned that judges, "independent of the people, of the legislature, and of every power under heaven," would "soon feel themselves independent of heaven itself." Brutus XV, in 2 The Complete Anti-Federalist 438 (Herbert J. Storing ed. 1981). In response, the Federalists promised that judges would not usurp power because they can exercise neither "force nor will" but merely "judgment." The Federalist No. 78, at 465 (Alexander Hamilton) (J. Cooke ed., 1961). That is the original promise of the judicial branch.

         But courts have not always lived up to that promise. At times, they exercise force or will beyond the mere judgment that our founding principles permit. Those principles lay down a clear rule: federal courts may only act if they have power to do so. And they only have power if Congress or the Constitution so provides. When courts act beyond that power, as the district judge did here, they abuse their discretion. We grant the University of Michigan's petition for mandamus.


         John Doe sued the University of Michigan for violating his due-process rights during a school disciplinary hearing. This court remanded Doe's case in light of a related ruling requiring live hearings and cross-examination in such proceedings. See Doe v. Baum, 903 F.3d 575, 578 (6th Cir. 2018). Upon remand, the district judge took two actions that led to this mandamus petition.

         First, the district judge-frustrated with the University's apparent foot-dragging- scheduled a settlement conference and required the University's president to attend. The University requested that the president be allowed to attend by telephone or send a delegate in his place, but the district judge refused. Next, the University requested permission to send someone with both more knowledge about the sexual assault policy at issue and full settlement authority. While the district judge "100 percent" believed that such a person existed, he again refused. Pet. Exhibit A at 10. Instead, the district judge said he wanted the president to be there even if someone else with full settlement authority attended, and "even if the parties [we]re able to resolve the cross-examination issue as applied to Mr. Doe." Pet. Exhibit D at 3. The district judge made himself clear: "I want the President here. He will be here." Pet. Exhibit A at 10. The University planned for the president to attend.

         But showing up was only half the battle. Two days before the settlement conference, the district judge decided that the conference (which he had assured the University would be private) should be a public event. The district judge reversed course because the case involved "matters of public interest." R. 54, Pg. ID 1805; Pet. Exhibit A at 10.

         The surrounding media attention also grabbed the district judge's interest. "[H]olding a settlement conference is the Court's attempt to protect all parties . . . from unnecessary publicity[.]" Response at 5. While the district judge acknowledged that "the press covered the story . . . fully, and, for the most part, accurately," he worried that "the resulting publicity has neither helped the University's image nor contributed to the resolution of this case." Id. at 6. The "change of heart" was also "prompted, at least in part, by the University's public filing of a Motion to Dismiss . . . . The filing incited confusion amongst the media, . . . ultimately causing the University to issue a statement clarifying its position on the matter." Id. at 7.

         To sum up, the district judge summoned a specific high-ranking state official to attend a settlement conference in person, and then turned that private settlement conference into a public event because "the case concern[ed] matters of public interest" and sparked media attention. R. 54 at ...

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