Case: Hile v. Michigan, State of

1:21-cv-00829 | U.S. District Court for the Western District of Michigan

Filed Date: Sept. 23, 2021

Case Ongoing

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Case Summary

This case concerns an effort to challenge the Michigan Constitution's ban on using public funds to support the attendance of any student at any private school, regardless of the school's religious status. On September 23, 2021, five families and the Parent Advocates for Choice in Education Foundation (PACE Foundation) brought a 42 U.S.C. § 1983 action against the state of Michigan in the U.S. District Court for the Western District of Michigan. The plaintiff families all resided in Michigan, with school-age children, and wanted to use Michigan's Education Savings Plan (MESP) to finance their children's private, religious school tuition in Michigan. The MESP, authorized under the Michigan Education Savings Program Act is an investment fund, not dissimilar from a Roth IRA where investments can grow, federal tax-free, and may be withdrawn to be used for "qualified higher education expenses." The term refers to Section 529 of the Internal Revenue Code. The case was assigned to Judge Robert J. Jonker.

In December 2017, the President signed into law the federal Tax Cuts and Jobs Act, which expanded "qualified higher education expense" to finance K-12 education expenses for private-school tuition. 26 U.S.C. § 529(c)(7). However, Michigan's Blaine Amendment prohibiting public monies being used for private school expenses will force plaintiffs to reverse and pay for the Michigan tax deduction they received at the time the plaintiffs made their MESP contributions. The plaintiffs allege that the Blaine Amendment is an unconstitutional violation of the U.S. Constitution's Free Exercise Clause (First Amendment), and the Equal Protection Clause (Fourteenth Amendment). The plaintiffs sought declaratory judgment, injunctive relief, and litigation costs and expenses.

On November 4, 2021, the defendants filed their motion to dismiss for lack of jurisdiction and failure to state a claim. In their defense, the defendants claimed that plaintiffs misunderstood Michigan tax law and that the terms of the MESP program remained the same, meaning no one in Michigan can use tax-advantaged MESP dollars for any grade or secondary school expenses, whether public or private.

On September 30, 2022, the court dismissed the case. In dismissing the case, the court held principles of comity preclude merits consideration of the plaintiffs’ Free Exercise claims because the only way the Court could reach them is by first concluding that Michigan is misinterpreting and misapplying its own tax law. The court went on to state that the proper channels would be for the plaintiffs to take it up with Michigan tax authorities in the ordinary administration of the Michigan income tax collection process. Furthermore, nothing on record showed Michigan approving any tax-advantaged use of MESP funds for any grade or secondary school expense in either private or public education. For the Fourteenth Amendment claim, the court found that while plaintiffs’ challenge, while not barred by comity, rested on a narrow political process theory that had never been applied to a case like this, and that should not be expanded to invalidate a provision of Michigan’s Constitution that was facially neutral on parochial education.

On October 28, 2022, the plaintiffs filed their appeal (No. 22-1986) with the Sixth Circuit Court of Appeals. On November 6, 2023, the Court of Appeals delivered an opinion affirming the lower court's dismissal of the case. The court held that Article VIII, § 2 did not violate the plaintiffs' equal protection rights.

Plaintiffs petitioned for a writ of certiorari in the United States Supreme Court on April 4, 2024 (23-1084). The Supreme Court denied plaintiffs' petition on October 7, 2024.

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Summary Authors

Calvin Kim (12/18/2023)

Sarah Portwood (10/17/2024)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/60657939/parties/hile-v-michigan-state-of/

Judge(s)

Attorney for Plaintiff

Bursch, John J. (Michigan)

Attorney for Defendant

Allen, Christopher M. (Michigan)

Banghart-Linn, Linus Richard (Michigan)

General, Linus Richard (Michigan)

Expert/Monitor/Master/Other

Donahue, Jeffrey S. (Michigan)

Judge(s)

Jonker, Robert James (Michigan)

Attorney for Plaintiff

Bursch, John J. (Michigan)

Wright, Patrick James (Michigan)

Attorney for Defendant

Allen, Christopher M. (Michigan)

Banghart-Linn, Linus Richard (Michigan)

General, Linus Richard (Michigan)

Expert/Monitor/Master/Other

Donahue, Jeffrey S. (Michigan)

Hubbard, Brandon C. (Michigan)

Korobkin, Daniel S. (Michigan)

Pellegrino, Ariana Deskins (Michigan)

Attorney Contact Information via CourtListener

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Documents in the Clearinghouse

	Document
1 1:21-cv-00829	Complaint Hile v. State of Michigan	Sept. 23, 2021	Sept. 23, 2021 Complaint
39 1:21-cv-00829	Opinon and Order Hile v. State of Michigan	Sept. 30, 2022	Sept. 30, 2022 Order/Opinion 2022 WL 21416529
44 1:21-cv-00829	USCA Order Hile v. State of Michigan U.S. Court of Appeals for the Sixth Circuit	Nov. 6, 2023	Nov. 6, 2023 Order/Opinion 86 F.4th 269

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Docket

See docket on RECAP: https://www.courtlistener.com/docket/60657939/hile-v-michigan-state-of/

Last updated Dec. 20, 2025, 4:28 a.m.

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT against All Defendants filed by Phillip Jacokes, Parent Advocates for Choice in Education Foundation, Jessie Bagos, Nicole Leitch, Michelle Lupanoff, Joseph Hile, Jason Leitch, Ryan Bagos, Jill Hile, George Lupanoff, Samantha Jacokes (Bursch, John) Modified text on 9/24/2021 (mg). (Entered: 09/23/2021)	Sept. 23, 2021	Sept. 23, 2021 Clearinghouse
2	CORPORATE DISCLOSURE STATEMENT by Parent Advocates for Choice in Education Foundation (Bursch, John) Modified text on 9/24/2021 (mg). (Entered: 09/23/2021)	Sept. 23, 2021	Sept. 23, 2021
3	PROPOSED SUMMONS to be issued re 1 (Bursch, John) (Entered: 09/23/2021)	Sept. 23, 2021	Sept. 23, 2021
	Filing Fee (Civil Case) - Credit Card Payment	Sept. 23, 2021	Sept. 23, 2021
	FILING FEE PAID re 1 by plaintiffs Phillip Jacokes, Parent Advocates for Choice in Education Foundation, Jessie Bagos, Nicole Leitch, Michelle Lupanoff, Joseph Hile, Jason Leitch, Ryan Bagos, Jill Hile, George Lupanoff, Samantha Jacokes in the amount of $402, receipt number AMIWDC-6550035 (Bursch, John) Modified text on 9/24/2021 (mg).	Sept. 23, 2021	Sept. 23, 2021
4	NOTICE that this case has been assigned Robert J. Jonker (mg) (Entered: 09/27/2021)	Sept. 27, 2021	Sept. 27, 2021
5	SUMMONS ISSUED as to defendants Rachael Eubanks, State of Michigan, Gretchen E. Whitmer (mg) (Entered: 09/27/2021)	Sept. 27, 2021	Sept. 27, 2021
6	ORDER setting Rule 16 scheduling conference: Rule 16 scheduling conference is set for 12/1/2021 at 04:00 PM at 699 Federal Building, Grand Rapids, MI before Chief Judge Robert J. Jonker; status report due by 11/24/2021 ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc) (Entered: 10/19/2021)	Oct. 19, 2021	Oct. 19, 2021
	(NON-DOCUMENT) ATTORNEY APPEARANCE of Linus Richard Banghart-Linn on behalf of defendants Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Banghart-Linn, Linus)	Oct. 19, 2021	Oct. 19, 2021
	Attorney Appearance	Oct. 19, 2021	Oct. 19, 2021
	(NON-DOCUMENT) ATTORNEY APPEARANCE of Christopher M. Allen on behalf of defendants Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Allen, Christopher)	Oct. 19, 2021	Oct. 19, 2021
	Order Setting Rule 16 Scheduling Conference	Oct. 19, 2021	Oct. 19, 2021
7	PROPOSED STIPULATION and ORDER EXTENDING DEFENDANT'S TIME TO RESPOND TO THE COMPLAINT by defendants Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Banghart-Linn, Linus) (Entered: 10/20/2021)	Oct. 20, 2021	Oct. 20, 2021
8	SUMMONS returned executed; Michigan, State of served on 9/30/2021, answer due 10/21/2021 (Bursch, John) (Entered: 10/21/2021)	Oct. 21, 2021	Oct. 21, 2021
9	SUMMONS returned executed; Gretchen E. Whitmer served on 9/30/2021, answer due 10/21/2021 (Bursch, John) (Entered: 10/21/2021)	Oct. 21, 2021	Oct. 21, 2021
10	SUMMONS returned executed; Rachael Eubanks served on 9/30/2021, answer due 10/21/2021 (Bursch, John) (Entered: 10/21/2021)	Oct. 21, 2021	Oct. 21, 2021
11	ORDER granting STIPULATION 7 ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb) (Entered: 10/21/2021)	Oct. 21, 2021	Oct. 21, 2021
12	MOTION to dismiss for lack of jurisdiction and failure to state a claim by defendants Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer; (Banghart-Linn, Linus) (Entered: 11/04/2021)	Nov. 4, 2021	Nov. 4, 2021
13	BRIEF in support of MOTION to dismiss for lack of jurisdiction and failure to state a claim 12 filed by Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Banghart-Linn, Linus) (Entered: 11/04/2021)	Nov. 4, 2021	Nov. 4, 2021
14	CERTIFICATE of compliance re word count for Brief in Support of a Motion 13 filed by Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Banghart-Linn, Linus) (Entered: 11/04/2021)	Nov. 4, 2021	Nov. 4, 2021
15	CERTIFICATE regarding compliance with LCivR 7.1(d) re MOTION to dismiss for lack of jurisdiction and failure to state a claim 12 filed by Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Banghart-Linn, Linus) (Entered: 11/04/2021)	Nov. 4, 2021	Nov. 4, 2021
16	PROPOSED STIPULATION and ORDER to extend time for plaintiffs to respond to motion to dismiss by plaintiffs Jessie Bagos, Ryan Bagos, Jill Hile, Joseph Hile, Phillip Jacokes, Samantha Jacokes, Jason Leitch, Nicole Leitch, George Lupanoff, Michelle Lupanoff, Parent Advocates for Choice in Education Foundation (Bursch, John) (Entered: 11/22/2021)	Nov. 22, 2021	Nov. 22, 2021
17	PROPOSED STIPULATION and ORDER to adjourn scheduling conference until the Court rules on defendants' motion to dismiss by plaintiffs Jessie Bagos, Ryan Bagos, Jill Hile, Joseph Hile, Phillip Jacokes, Samantha Jacokes, Jason Leitch, Nicole Leitch, George Lupanoff, Michelle Lupanoff, Parent Advocates for Choice in Education Foundation (Bursch, John) (Entered: 11/22/2021)	Nov. 22, 2021	Nov. 22, 2021
18	ORDER granting STIPULATION 16 extending Plaintiffs' Time to Respond to Defendants' Motion to Dismiss ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc) (Entered: 11/23/2021)	Nov. 23, 2021	Nov. 23, 2021
19	PROPOSED STIPULATION and ORDER regarding joint status report by defendants Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Banghart-Linn, Linus) (Entered: 11/23/2021)	Nov. 23, 2021	Nov. 23, 2021
20	ORDER granting STIPULATION 17 to adjourn the Rule 16 Scheduling Conference set for 12/1/2021 ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc) (Entered: 11/23/2021)	Nov. 23, 2021	Nov. 23, 2021
21	NOTICE cancelling Rule 16 Scheduling Conference (Chief Judge Robert J. Jonker, sdb) (Entered: 11/24/2021)	Nov. 24, 2021	Nov. 24, 2021
22	RESPONSE IN OPPOSITION to 12 by plaintiffs Jessie Bagos, Ryan Bagos, Jill Hile, Joseph Hile, Phillip Jacokes, Samantha Jacokes, Jason Leitch, Nicole Leitch, George Lupanoff, Michelle Lupanoff, Parent Advocates for Choice in Education Foundation (Bursch, John) Modified text on 1/10/2022 (slk). (Entered: 01/07/2022)	Jan. 7, 2022	Jan. 7, 2022
23	NOTICE to attorney John Bursch regarding recent filing 22 (slk) (Entered: 01/10/2022)	Jan. 10, 2022	Jan. 10, 2022
24	PROPOSED STIPULATION and ORDER to extend time to file reply by defendants Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Allen, Christopher) (Entered: 01/11/2022)	Jan. 11, 2022	Jan. 11, 2022
25	ORDER granting STIPULATION 24 ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb) (Entered: 01/11/2022)	Jan. 11, 2022	Jan. 11, 2022
26	NOTICE OF MOTION HEARING regarding document number 12 : motion hearing is set for 3/2/2022 at 04:00 PM at 699 Federal Building, Grand Rapids, MI before Chief Judge Robert J. Jonker; (Chief Judge Robert J. Jonker, sdb) (Entered: 01/11/2022)	Jan. 11, 2022	Jan. 11, 2022
27	MOTION for leave to file Amicus Curiae Brief by amicus parties Council of Organizations and Others for Education About Parochiaid, American Civil Liberties Union of Michigan, 482Forward, Michigan Association of School Boards, Michigan Association of School Administrators, Public Funds Public Schools; (Donahue, Jeffrey) (Entered: 01/21/2022)	Jan. 21, 2022	Jan. 21, 2022
28	CERTIFICATE regarding compliance with LCivR 7.1(d) re MOTION for leave to file Amicus Curiae Brief 27 filed by 482Forward, American Civil Liberties Union of Michigan, Council of Organizations and Others for Education About Parochiaid, Michigan Association of School Administrators, Michigan Association of School Boards, Public Funds Public Schools (Donahue, Jeffrey) (Entered: 01/21/2022)	Jan. 21, 2022	Jan. 21, 2022
29	AMICUS CURIAE BRIEF in support of MOTION for leave to file Amicus Curiae Brief 27 with certificate of compliance filed by 482Forward, American Civil Liberties Union of Michigan, Council of Organizations and Others for Education About Parochiaid, Michigan Association of School Administrators, Michigan Association of School Boards, Public Funds Public Schools (Attachments: # 1 Index of Exhibits, # 2 Exhibit A-Editorial, Public Schools Threatened by Scare Words Campaign, # 3 Exhibit B-Editorial, 'Yes' on Proposal C, # 4 Exhibit C-Editorial, What A 'Yes' Vote on Proposal 'C' Does - and Does Not - Mean, # 5 Exhibit D-Sheila O'Brien, Senator's Wife Discusses Rewards, Woes of Her Job) (Donahue, Jeffrey) Modified text on 1/24/2022 per Order 27 (pjw) (Entered: 01/21/2022)	Jan. 21, 2022	Jan. 21, 2022
30	PROPOSED ORDER regarding Motion for Leave to File Amicus Curiae Brief by amicus parties 482Forward, American Civil Liberties Union of Michigan, Council of Organizations and Others for Education About Parochiaid, Michigan Association of School Administrators, Michigan Association of School Boards, Public Funds Public Schools (Donahue, Jeffrey) (Entered: 01/21/2022)	Jan. 21, 2022	Jan. 21, 2022
31	ORDER granting 27 motion for leave to file; granting PROPOSED ORDER 30 ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb) (Entered: 01/21/2022)	Jan. 21, 2022	Jan. 21, 2022
	Attorney Appearance	Jan. 21, 2022	Jan. 21, 2022
	(NON-DOCUMENT) ATTORNEY APPEARANCE of Daniel S. Korobkin on behalf of amicus parties 482Forward, American Civil Liberties Union of Michigan, Public Funds Public Schools (Korobkin, Daniel)	Jan. 21, 2022	Jan. 21, 2022
	(NON-DOCUMENT) ATTORNEY APPEARANCE of Ariana Felicia Pellegrino on behalf of amicus parties Michigan Association of School Administrators, Michigan Association of School Boards (Pellegrino, Ariana)	Jan. 24, 2022	Jan. 24, 2022
	Attorney Appearance	Jan. 24, 2022	Jan. 24, 2022
	(NON-DOCUMENT) ATTORNEY APPEARANCE of Brandon C. Hubbard on behalf of amicus parties Michigan Association of School Administrators, Michigan Association of School Boards (Hubbard, Brandon)	Jan. 24, 2022	Jan. 24, 2022
32	REPLY to response to motion 12 filed by Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Banghart-Linn, Linus) (Entered: 01/28/2022)	Jan. 28, 2022	Jan. 28, 2022
33	CERTIFICATE of compliance re word count for Reply to Response to Motion 32 filed by Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Banghart-Linn, Linus) (Entered: 01/28/2022)	Jan. 28, 2022	Jan. 28, 2022
34	NOTICE RESCHEDULING MOTION HEARING regarding document number 12 that was previously set for 3/2/22; motion hearing is set for 3/24/2022 at 03:00 PM at 699 Federal Building, Grand Rapids, MI before Chief Judge Robert J. Jonker; (Chief Judge Robert J. Jonker, sdb) (Entered: 02/28/2022)	Feb. 28, 2022	Feb. 28, 2022
35	MINUTES of motion hearing re 12 MOTION to dismiss for lack of jurisdiction and failure to state a claim filed by Rachael Eubanks, Gretchen E. Whitmer, Michigan, State of held before Chief Judge Robert J. Jonker (Court Reporter: Paul Brandell) (Chief Judge Robert J. Jonker, ymc) (Entered: 03/25/2022)	March 24, 2022	March 24, 2022
36	RESPONSE in opposition to MOTION to dismiss for lack of jurisdiction and failure to state a claim 12 (supplemental brief) filed by Jessie Bagos, Ryan Bagos, Jill Hile, Joseph Hile, Phillip Jacokes, Samantha Jacokes, Jason Leitch, Nicole Leitch, George Lupanoff, Michelle Lupanoff, Parent Advocates for Choice in Education Foundation (Bursch, John) (Entered: 04/07/2022)	April 7, 2022	April 7, 2022
37	BRIEF in support of MOTION to dismiss for lack of jurisdiction and failure to state a claim 12 Supplemental filed by Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Allen, Christopher) (Entered: 04/07/2022)	April 7, 2022	April 7, 2022
38	CERTIFICATE of compliance re word count for Brief in Support of a Motion 37 filed by Rachael Eubanks, Michigan, State of, Gretchen E. Whitmer (Allen, Christopher) (Entered: 04/07/2022)	April 7, 2022	April 7, 2022
	Attorney Appearance	Sept. 8, 2022	Sept. 8, 2022
	(NON-DOCUMENT) ATTORNEY APPEARANCE of Patrick James Wright on behalf of plaintiffs Jessie Bagos, Ryan Bagos, Jill Hile, Joseph Hile, Phillip Jacokes, Samantha Jacokes, Jason Leitch, Nicole Leitch, George Lupanoff, Michelle Lupanoff, Parent Advocates for Choice in Education Foundation (Wright, Patrick)	Sept. 8, 2022	Sept. 8, 2022
39	OPINION AND ORDER granting 12 motion to dismiss; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, sdb) (Entered: 09/30/2022)	Sept. 30, 2022	Sept. 30, 2022 Clearinghouse
40	JUDGMENT in favor of Defendants against Plaintiffs; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, sdb) (Entered: 09/30/2022)	Sept. 30, 2022	Sept. 30, 2022 RECAP
41	NOTICE OF APPEAL re 39, 40 by plaintiffs Jessie Bagos, Ryan Bagos, Jill Hile, Joseph Hile, Phillip Jacokes, Samantha Jacokes, Jason Leitch, Nicole Leitch, George Lupanoff, Michelle Lupanoff, Parent Advocates for Choice in Education Foundation (Bursch, John) (Entered: 10/28/2022)	Oct. 28, 2022	Oct. 28, 2022
42	LETTER FROM CCA regarding appeal 41 indicating case #22-1986 and regarding deadlines. (mg) (Entered: 10/31/2022)	Oct. 28, 2022	Oct. 28, 2022
	Appeal Fee - Credit Card Payment	Oct. 28, 2022	Oct. 28, 2022
	Appellate Court Case Number	Oct. 28, 2022	Oct. 28, 2022
	APPEAL FEE PAID re 41 by plaintiffs Jessie Bagos, Ryan Bagos, Jill Hile, Joseph Hile, Phillip Jacokes, Samantha Jacokes, Jason Leitch, Nicole Leitch, George Lupanoff, Michelle Lupanoff, Parent Advocates for Choice in Education Foundation in the amount of $505, receipt number AMIWDC-6884322 (Bursch, John)	Oct. 28, 2022	Oct. 28, 2022
	CASE NUMBER 22-1986 assigned by the Sixth Circuit to appeal 41 (mkc)	Oct. 28, 2022	Oct. 28, 2022
43	TRANSCRIPT of Oral Argument held 03/24/2022 before Honorable Robert J. Jonker; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 2/27/2023 ; redaction request due 12/19/2022 (Court Reporter-Transcriptionist: Brandell, Paul (517) 230-7507) (Entered: 11/27/2022)	Nov. 27, 2022	Nov. 27, 2022
44	ORDER of USCA (certified copy) re appeal 41 OPINION and JUDGMENT filed : AFFIRMED. Decision for publication. ; mandate to issue (mg) (Entered: 11/07/2023)	Nov. 6, 2023	Nov. 6, 2023 Clearinghouse
45	MANDATE of USCA re appeal 41 (mg) (Entered: 11/29/2023)	Nov. 29, 2023	Nov. 29, 2023
46	LETTER from Supreme Court of the United States that a petition for writ of certiorari was filed on April 4, 2024 and assigned case number 23-1084 re Notice of Appeal, 41 (pjw) (Entered: 04/10/2024)	April 10, 2024	April 10, 2024
47	LETTER from Supreme Court of the United States that the petition for writ of certiorari is denied re Notice of Appeal, 41 (mlc) (Entered: 10/09/2024)	Oct. 9, 2024	Oct. 9, 2024

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Case Details

State / Territory:

Michigan

Case Type(s):

Education

Speech and Religious Freedom

Key Dates

Filing Date: Sept. 23, 2021

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

Parents of school-age children residing in Michigan who have funded a Michigan Education Savings Plan to pay for their children's private, religious-school tuition. Parent Advocates for Choice in Education Foundation - a group of parent advocates seeking associational standing.

Attorney Organizations:

ACLU of Michigan

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Michigan, State

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action: