In Re: University of Michigan, et al. Petitioners.
University of Michigan; University of Michigan Board of Regents, Defendants-Petitioners. John Doe, Plaintiff-Respondent,
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.
PETITION FOR A WRIT OF MANDAMUS AND REPLY:
Stephen J. Cowen, Erin L. Ramamurthy, Andrew J. Clopton,
JONES DAY, Detroit, Michigan, for Petitioners.
Deborah L. Gordon, Elizabeth Marzotto Taylor, DEBORAH GORDON
LAW, Bloomfield Hills, Michigan, for Respondents.
Before: ROGERS, KETHLEDGE, and THAPAR, Circuit Judges.
THAPAR, CIRCUIT JUDGE.
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.
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.
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.
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.
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
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.
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 ...