STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE
DETROIT PREP,

Case No. 17-015227-CZ

Plaintiff,

Hon. David J. Allen

v.
DETROIT PUBLIC SCHOOLS COMMUNITY
DISTRICT,
Defendant.
BODMAN PLC
By:
Jason R. Gourley (P69065)
6th Floor at Ford Field
1901 St. Antoine
Detroit, Michigan 48226
(313) 259-7777
Attorneys for Plaintiff

BRIEF IN SUPPORT OF PLAINTIFF
DETROIT PREP’S MOTIONTO STAY
PROCEEDINGS PENDING
LEGISLATIVE AMENDMENT

DETROIT PUBLIC SCHOOLS
COMMUNITY DISTRICT
OFFICE OF GENERAL COUNSEL
Theophilus E. Clemons (P47991)
theophilus.clemons@detroitk12.org
Jenice C. Mitchell Ford (P61511)
Jenice.mitchellford@detroitk12.org
3011 West Grand Blvd., Suite 1002
Detroit, Michigan 48202
(313) 873-4528
Attorneys for Defendant

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 INTRODUCTION
Detroit Prep moves this Court for a stay of all proceedings pending the Michigan
legislature’s amendment of the Michigan Educational Instruction Access Act, MCL 123.1041 et.
seq. (the “Act”).

On December 13, 2017, the Michigan Senate passed SB 702 (the

“Amendment”) to amend section 5 of the Act (MCL 123.1045). A copy of the Amendment is
attached as Exhibit A. A stay of proceedings is both necessary and appropriate because the
Amendment directly bears on every claim in this action as well as Detroit Prep’s pending motion
for writ of mandamus and preliminary injunction. Moreover, every claim in this action derives
specifically from the Act and would be directly impacted by the Amendment.
The Amendment is of utmost importance in this action because it specifically bars the
affirmative use deed restriction at issue in this case:
A local governmental body shall not impose, enforce, or apply any deed
restriction that expressly, or by its operation, prohibits property sold, leased, or
transferred by the local governmental body from being used for any lawful
educational purpose by an educational institution or private school. Any deed
restriction or affirmative use deed restriction that affirmatively allows for
only 1 or more specified uses or purposes that do not include an educational
use or purpose is prohibited under this subsection. Any deed restriction or
affirmative use deed restriction in effect on the effective date of the
amendatory act that amended this section that prohibits or does not permit
property previously used for an educational purpose from being used for any
future educational purpose is void.
SB 702, Sec. 5(2), emphasis added. Exhibit A (SB 702).
A stay of proceedings until the Michigan House of Representatives votes on the
Amendment is appropriate to save judicial resources and avoid potential re-litigation of all
claims and pending motions that could be directly impacted by passage of the Amendment.
STATEMENT OF FACTS
A.

Procedural Background.
Detroit Prep was forced to initiate this action under the Act (MCL 123.1041 et seq.) to

compel Defendant to comply with Michigan law specifically barring the use or imposition of any
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 deed restriction that prohibits property from being used for educational purposes.

MCL

123.1045(2). See, Exhibit B (Educational Instruction Access Act). The Act also bars any
ordinance, policy, or resolution that prohibits property from being used for any lawful
educational purpose. MCL 123.1045(1). Id. The Act includes a specific right of action to
compel a governmental entity to comply with the requirements of the Act. MCL 123.1047(1).
Id. Pursuant to the Act, Detroit Prep asserted claims for (I) mandamus; (II) declaratory relief;
and (III) injunctive relief to force Defendant to follow its requirements under Michigan law. See,
Exhibit C (Complaint). Each of Detroit Prep’s claims derive from, and rely upon, application of
the requirements articulated in the Act.
Concurrent with its complaint, Detroit Prep filed a motion for writ of mandamus and
preliminary injunction seeking judicial interpretation and application of the Act to bar
Defendant’s attempts to enforce a deed restriction that does not allow any purchaser to use the
Property for educational use. See, Exhibit D (Motion for Writ of Mandamus and Preliminary
Injunction).
Prior to oral argument, Defendant filed a specious motion for summary disposition
alleging that Detroit Prep does not have standing despite the fact that the Act specifically
provides educational institutions with a cause of action to compel compliance with the Act.
Each of Detroit Prep’s claims as well as all pending motions in this action rely upon
interpretation and application of the requirements of the Act. Therefore, final passage (or denial)
of the Amendment by the Michigan House of Representatives would directly impact resolution
of all pending motions and the case, itself. Accordingly, a stay of proceedings will preserve
judicial economy, stop unnecessary litigation costs, and avoid the potential for inconsistent
rulings or the need to re-litigate issues to comply with the Amendment.
B.

The Amendment Bars DPSCD’s Deed Restriction.
On December 13, 2017, the Michigan Senate passed SB 702, amending the Act to
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 specifically bar governmental entities from using or imposing affirmative use deed restrictions
that do not allow use of property for educational purposes. The Amendment states, in pertinent
part:
A local governmental body shall not impose, enforce, or apply any deed
restriction that expressly, or by its operation, prohibits property sold, leased, or
transferred by the local governmental body from being used for any lawful
educational purpose by an educational institution or private school. Any deed
restriction or affirmative use deed restriction that affirmatively allows for
only 1 or more specified uses or purposes that do not include an educational
use or purpose is prohibited under this subsection. Any deed restriction or
affirmative use deed restriction in effect on the effective date of the
amendatory act that amended this section that prohibits or does not permit
property previously used for an educational purpose from being used for any
future educational purpose is void.
SB 702, Sec. 5(2), Exhibit A (SB 702).
The deed restriction at issue in this case is prohibited and void under the Amendment.
Defendant relies upon an affirmative use deed restriction (the “Deed Restriction”) it placed on
the former Joyce Elementary School (the “Property”) to support its position that Detroit Prep
cannot take title to the Property. The Deed Restriction states, in pertinent, part:
And further subject to the restriction that, until June 25, 2024, Grantee shall
develop the property for use as residential units (“Intended Use”). In the event
that the Grantee fails to use the property for the Intended Use, the interest and title
hereby created in said Grantee shall forthwith cease and determine [sic], and the
lands, premises and real estate hereby conveyed shall immediately, together with
the title hereto, without demand and without notice, be vested wholly and
unconditionally in the Grantor, its successors or assigns.
See, Exhibit B.

Defendant’s Deed Restriction only allows for one use of the Property:

development for use as residential units. The Deed Restriction is thus void under the plain
language of the Amendment because use for educational purposes is not included as an allowable
use of the Property.
ARGUMENT
A stay of proceedings pending a final vote and enactment of the Amendment by the
Michigan House of Representatives is appropriate and necessary because it will save judicial
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 resources, reduce potentially unnecessary litigation costs for both parties, and avoid inconsistent
rulings or duplicative litigation. This Court has the inherent power to control its docket, which
includes the power to stay proceedings. Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)
(“[T]he power to stay proceedings is incidental to the power inherent in every court to control the
disposition of the causes on its docket with economy of time and effort for itself, for counsel, and
for litigants”); see also FTC v. EMA Nationwide, Inc., 767 F.3d 611, 626 (6th Cir. 2014) (same);
Ohio Envtl. Council v. US Dist. Court, S. DIst. Of Ohio, E. Div., 565 F.2d 393, 396 (6th Cir.
1977) (“the District Court has broad discretion to stay proceedings as an incident to its power to
control its own docket”).
The requirements of the Act, along with the proper application of those requirements,
form the basis for both Detroit Prep’s claims in this action and the ultimate resolution of this case
as well as all pending motions. Detroit Prep strictly seeks declaratory relief in this action
requiring Defendant to comply with the requirements of the Act. Any amendment to the Act –
and its resulting impact on Defendant’s obligations – is integral to this action. Passage of the
Amendment could be material to the proper application of the Act in this action. The language
of the Amendment is clear and unambiguous. In particular, the Amendment specifically bars
affirmative use deed restrictions – like the Deed Restriction in this case – that do not allow use of
property for educational purposes.
Without a stay, the parties and the Court run the risk of continued motion practice and
rulings that might contradict the clear language of the Amendment if passed by the House of
Representatives.

Such an outcome would be a waste of judicial economy and induce

unnecessary litigation costs and additional motion practice to avoid inconsistent rulings. Neither
party will be prejudiced by waiting for the Michigan Legislature to vote on the Amendment. The
House of Representatives is expected to vote on the Amendment in January of 2018. As a result,
the parties would only be required to wait for a month for final resolution of a statute that
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 directly impacts the claims in this action.
CONCLUSION
The Michigan Senate has passed SB 702 specifically amending the Act that underlies
every claim and pending motion in this action. Final passage of the Amendment would directly
bear on resolution of this action. Accordingly, a stay of proceedings is appropriate to preserve
judicial economy and avoid unnecessary litigation in the interim.

December 15, 2017

Respectfully submitted,
BODMAN PLC
By: /s/Jason R. Gourley
Jason R. Gourley (P69065)
6th Floor at Ford Field
Detroit, Michigan 48226
(313) 259-7777
Attorneys for Plaintiff

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 CERTIFICATE OF SERVICE
I hereby certify that on December 14, 2017, I electronically filed the foregoing Reply in
Support of Plaintiff Detroit Prep’s Motion to Stay Proceedings Pending Legislative
Amendment, with the Clerk of the Court using the Odyssey E-File and Serve system which will
send notification of such filing to all counsel of record.
/s/Jason R. Gourley
Jason R. Gourley (P69065)
6th Floor at Ford Field
Detroit, Michigan 48226
(313) 259-7777
Attorneys for Plaintiff

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