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Managing government involves interpreting the complicated world of constitutional, statutory and regulatory laws that control virtually every aspect of operation. Miller Canfield features a roster of lawyers that excels at helping our state and local governmental clients navigate through this regulatory web to help them run as efficiently as possible. From finding financing for operations and infrastructure to litigation, we handle it all, including:

Bolt Reviews

A diversified plan of municipal financial management frequently includes the implementation of user fees to defray the costs of public utilities. In 1998, the Michigan Supreme Court issued its opinion in the case of Bolt v. City of Lansing, which called into question many of the core concepts underlying conventional utility ratemaking, and created the possibility of broad liability for municipalities whose rate systems are out of line with the Court's findings. As a result, municipalities in Michigan have proceeded with caution as they balance the need to defray the costs of critical enterprise systems with the uncertainty resulting from Bolt.

In the wake of Bolt, many municipalities have sought professional review of utility rate systems and user fee formulas—and they call Miller Canfield first. Our attorneys know the intricacies of the Bolt case and the line of subsequent cases interpreting Bolt. More importantly, though, we understand the real-world implications of Bolt and its impact on our municipal clients' capital improvement plans. We recognize that the Supreme Court's decision was not issued in a vacuum. As such, we undertake Bolt reviews with a special focus on our clients' plans of finance and overall revenue structure, reading between the lines of utility ordinances to help our clients understand their exposure while helping them stay on track financially. Bolt's legacy is one of uncertainty for municipalities; our Bolt reviews are designed to provide clients with direction and clarity.

Educational Services

  • Election and campaign finance compliance
  • Arbitrage rebate analysis
  • Tax and securities law analysis, audits and compliance
  • Legislation
  • Investment agreements
  • Review of investment eligibility, dealing with losses
  • Swaps, forward delivery and other derivative arrangements

Elections and Campaigns

Miller Canfield attorneys handle all aspects of elections and campaign finance. Our attorneys provide guidance to governmental and private entities, as well as individuals, on a wide range of election-related matters, including bond, millage and candidate elections, petition-initiated elections, referendums, amendments to city charters and the state constitution, recounts, recalls, voting rights, and the use of public facilities, funds and resources for or against ballot proposals or candidates, as well as compliance with state and federal statutes and regulations with respect to elections, campaign finance and ethics.

Governmental Litigation

Miller Canfield often represents public sector entities to handle their biggest litigation cases, especially when new legislation or the exercise of governmental powers is being tested on constitutional grounds.

These lawsuits brought specifically by or against counties, cities, towns, school districts, authorities, etc., often involve:

  • Zoning and planning board challenges
  • Claims filed under the Open Meetings Act or the Freedom of Information Act
  • Disputes over intergovernmental agreements and relationships
  • General tort claims, including fraud, misconduct and negligence
  • Eminent domain proceedings
  • Code enforcement actions
  • Home rule and government powers disputes
  • Taxpayer disputes and other tax proceedings
  • Election law challenges
  • Emergency Manager appointments and powers based on contract or statute
  • Construction project disputes involving private developers and construction companies
  • Municipal utility rate-setting

We’ve developed a broad collective experience in governmental litigation, which gives us the advantage of familiarity with the scope of governmental powers under constitutional and statutory law and how it applies to each specific set of circumstances. This experience positions us to assist our clients to not only prevail in litigation, but, often times, to avoid litigation in the first place.

Governmental Powers, Open Meetings and FOIA

Miller Canfield attorneys provide clients with advice on all aspects of governmental law. From the state, to counties, cities, villages, townships, school districts, and governmental authorities, Miller Canfield can help. This includes advice relating to general statutory legal authority and home rule powers, charters, the Open Meetings Act, the Freedom of Information Act, elections, taxation, bidding and contracting, construction contracts, municipal utilities, ordinance powers, and inter-governmental cooperation and agreements.

Our attorneys have many years of practical, hands-on experience to successfully guide public agencies through increasingly complex legal issues. Miller Canfield's public law attorneys strive to provide our clients with understandable and workable solutions to the legal challenges they face.

Intergovernmental Cooperation Agreements

Miller Canfield has been at the forefront of innovation and creativity when helping local governments effectively operate and serve their communities in the face of diminishing revenues.  Local governments around throughout Michigan are often turning to intergovernmental cooperation agreements, under which units of government partner to combine services, share costs and create additional resources for their communities which would not be available to a municipality bearing the cost of such services alone. 

Intergovernmental cooperation agreements can also help municipalities qualify for financial benefits under state incentive programs for the consolidation of services. For fiscally stressed local units, they provide a mechanism, through a consent agreement, for state cooperation to remedy the stress as an alternative to the appointment of an emergency manager.

Miller Canfield lawyers regularly advise clients on the range of laws that authorize intergovernmental cooperation agreements for different purposes, and have had a hand in drafting legislation expanding the scope of available intergovernmental arrangements.  We bring this knowledge to drafting and negotiating agreements that carefully address core issues of control, funding, dispute resolution, dissolution and employment and labor matters, to benefit and protect our clients.

IRS Audit Service and Arbitrage

Miller Canfield offers IRS audit and arbitrage compliance services as part of its comprehensive public finance practice. We have decades of experience representing tax-exempt bond issuers faced with IRS audits scrutinizing the tax-exempt status of such bonds, and have successfully defended more than 60 audits for our clients.

As the IRS continues to strengthen its audit program, it is critical that tax-exempt bond issuers focus on compliance with the federal tax rules well after the debt is issued. We have extensive experience in reviewing clients’ compliance with arbitrage yield restrictions and rebate requirements, as well as compliance with the private activity rules applicable to tax-exempt bonds. In the event that either the issuer or counsel identifies a compliance issue, we have also represented countless issuers as they seek to remedy compliance issues through either self-remediation or settlement agreements with the IRS pursuant to the IRS’ Voluntary Closing Agreement Program.

Legislation

Miller Canfield has extensive experience drafting and reviewing legislation on a broad range of legal issues impacting governmental units.  We have been involved with drafting state law provisions on virtually all aspects of public finance, including:

  • Laws authorizing governmental borrowing
  • Creation of new special-purpose municipal authorities
  • Economic development incentives and tools
  • Intergovernmental cooperation
  • Investment of public funds and other governmental powers

We regularly assist our clients in analyzing proposed legislation to keep our clients informed of changes to State laws which may impact their finances and operations.

Local Government Restructuring

Assisting municipalities to restructure takes more than a single lawyer; it takes a team of professionals with years of subject-matter expertise that can efficiently provide advice in a fast-pace, complicated legal environment. 

Miller Canfield is uniquely suited to provide this advice having assisted in drafting the wholesale revisions of the emergency manager statute in Michigan. We have acted as special counsel to communities restructuring their operations, whether it be with its current government structure, through a consent agreement or an emergency manager.

We've used the most challenging financings to enable communities to meet payroll obligations and pay for new infrastructure, including drafting the bond provisions of the Municipal Lighting Authority Act and acting as the Detroit Public Lighting Authority's special bankruptcy and bond counsel for the city's first financing during its bankruptcy.

In the event that the 436 process outside of bankruptcy does not work for a struggling municipality, our extensive public financing experience uniquely positions us to assist municipalities, creditors and other interested parties. Our experience includes serving as co-counsel to the City of Detroit in the largest Chapter 9 bankruptcy case ever filed.

Millage Planning

Miller Canfield’s public law attorneys specialize in municipal finance and regularly advise municipal and school clients on laws governing millage authorization, application, calculation and renewal. Whether you are considering a charter millage, general operating, sinking fund or other special purpose millage, or debt millage, or have new authorization, renewal, or Headlee rollback concerns, Miller Canfield attorneys can provide the advice you need.

Special Assessments and User Fees

Special Assessments

We have extensive experience in all aspects of laws governing special assessment and user fees. Our attorneys assist clients with the detailed procedures necessary to establish a special assessment district and confirm a special assessment roll. This includes providing guidance on types of properties subject to assessment, the methodology of calculating the assessment, collecting special assessments, handling delinquencies and defending appeals in the tax tribunal.

User Fees

Municipal clients often rely on our attorneys for their expertise in the fine distinctions between permissible user fees and those susceptible to challenge as an unauthorized tax. Whether your community is establishing a new user fee system, or desire periodic review of an existing user fee system, our attorneys can help you understand permissible rate structures and methodologies, collection and enforcement options for user fee systems, and equitable cost-based structures.

Swaps and Derivatives Structuring

Miller Canfield represents governmental issuers and non-profit borrowers in interest rate swaps and other debt-related derivatives. We are the principal drafters of several portions of the law that permits local governmental units and state agencies to use swaps and other derivatives as hedges for debt transactions. We regularly represent public and private colleges and universities and hospitals, as well as large governmental utilities such as airports, waste-to-energy projects and cross-unit water and sewer systems.

Clients particularly benefit from our practical familiarity with ISDA document forms and our understanding of the modifications needed to make them comply with Michigan law.

Elections

Ballot Question Lawsuit

Successfully appealed Court of Claims decision upholding the constitutionality of initiated law by ballot question committee related to the hunting of wolves in Michigan. The unanimous Court of Appeals concluded that the initiated law violated Article 4, Section 24 of the Michigan Constitution, known as the Title-Object provision.

Campaign Finance Lawsuit

Obtained a preliminary and permanent injunction against the State of Michigan’s enforcement of a recent change to the Michigan Campaign Finance Act, which was amended to prohibit public bodies or their agents from referencing local ballot questions during the 60-day period leading up to a local election.  The federal district court agreed that the legislation violates the U.S. constitution.

City Clerk Election Law Defense

Successfully defended a city clerk accused of violating state law after rejecting a ballot question committee’s petition sheets for not having the requisite number of valid signatures.

Governmental Litigation

School District Internal Fraud Investigation and Litigation

Represented Detroit Public School District in investigation and highly contested fraud lawsuit seeking to recover millions of dollars in misappropriated funds paid to various vendors without authorized contracts. Persuaded court to issue partial summary disposition on issue of whether wire payments were unauthorized, successfully obtained eight-figure settlement and multi-million dollar judgments for the school district.

Municipal Fraud Investigation and Civil RICO Litigation

On behalf of the Detroit Water and Sewerage Department ("DWSD"), Miller Canfield conducted an investigation of the charges set forth in an indictment returned by a federal grand jury under the auspices of the United States Department of Justice alleging public corruption and other wrongful conduct involving the Kwame Kilpatrick mayoral administration and various DWSD contractors and vendors. As a result of its investigation, Miller Canfield filed in federal court on behalf of the City of Detroit (including DWSD) a civil RICO action against approximately 20 defendant companies and individuals, alleging civil RICO violations, including bribery, extortion, obstruction of justice, mail fraud, wire fraud, money laundering and other charges. After protracted discovery and motion practice, the civil RICO action was eventually settled against a number of the defendants for substantial sums of money. In connection with its work for DWSD, Miller Canfield also drafted the Detroit Water and Sewerage Department Suspension and Debarment Policy, which governs contractual relations between DWSD and its contractors and vendors.  

County Government Constitutional Litigation

Successfully defended county government against a constitutional challenge to capital improvement fees charged by the county to cover costs of increasing water and sewer system capacity for new customers. 

School District Fraud Investigation and Litigation

Successfully represented large school district in investigating multi-million dollar fraud scheme and litigated claims to a successful settlement recognized by local and national publications as one of the largest recoveries of the year, and assisting U.S. Attorney with successful criminal prosecutions.

Municipal Michigan Emergency Manager Law Challenges

Successfully defended municipality in multiple constitutional challenges (brought by activists, unions and individuals) to Michigan’s Emergency Manager law.

Municipal Class Action Litigation

Successfully tried and defended the City of Detroit against a potential class action lawsuit that drew international attention by challenging the City’s program of shutting off water to non-paying customers. 

Department of Human Services Civil Rights Class Action Litigation

  • Appointed Special Assistant Attorney General to serve as lead discovery and trial counsel for a state Department of Human Services in a federal court civil rights class action filed on behalf of the 19,000 children in the state’s foster care system
  • Designed, implemented and defended a discovery data preservation and production strategy that involved the collection of more than 1,000,000 pages of foster care records, policies and procedures from multiple locations across the state
  • Prepared and defended 31 department depositions
  • Briefed and argued motion seeking protective order to protect foster care children’s confidential information
  • Briefed and argued several discovery motions to limit overly broad and burdensome requests for production of documents

Intergovernmental Cooperation Agreements

Water, Sewer and Waste Disposal Services

Developing multi-jurisdictional agreements for the provision of water, sewer and waste disposal services.

Police and Fire Services

Drafting shared services agreements for the joint provision of police and fire services.

Public School District Bus Services

Developing agreements to consolidate bus services, maintenance and programs for public school districts.

Early Childhood Educational Services

Advising an Illinois nonprofit childcare organization on opportunities for collaboration and shared early childhood educational services under State law.

Consent Agreements and Emergency Managers

Drafting legislation and negotiating consent agreements between local units and the State, and advising emergency managers and the local units to which they have been appointed.

Economic Development Incentive Legislation

Drafting legislation and an intergovernmental agreement to create a Next Michigan Development Corporation to provide economic development incentives across multiple cities, townships and counties.

Incorporation of Cities, Annexation, Detachment, and Intergovernmental Boundary Agreements under Act 7 and Act 425

Incorporation of cities, annexation, detachment, and intergovernmental boundary agreements under Act 7 and Act 425 for the cities of Milan, Williamston, Harbor Springs, Tecumseh, Richmond, Hancock, Eaton Rapids, Adrian, Clinton, Roscommon, and Alpena, Chelsea, Dexter, Durand, Monroe, Clare, Roscommon, Gaylord, Cass City, Caseville, Caro, Sebewaing, among others.

IRS Audit Service and Arbitrage

Miller Canfield has broad experience with all types of bond audits:

  • Schools
  • State
  • Pooled financings
  • Cash flow financings
  • Student loan bonds
  • County, city and smaller units of government
  • Universities
  • Building authorities
  • Airports
  • Hospitals
  • Regional authorities
  • Tax increment districts
  • Downtown developmental authorities
  • Private activity bonds
  • State revolving fund

Our VCAP experience is more than 130 separate, closed issues and several private ruling requests. We average more than 150 rebate/yield compliance reviews per year, including very complex student loan computations, pooled deal computations, and integrated swaps. We also assist with Schedule K (Form 990) questions. and advanced refunding escrow compliance. 

Miller Canfield is one of the only firms to have utilized the 97-15 process. 

Legislation

Bond Authorization Legislation

Legislation authorizing the issuance of bonds by local units to finance retiree health care costs and pension liabilities.

Debt Refinancing and Extension Legislation

Legislation permitting refinancing and extension of debt for various reasons relating to fiscal stress.

Economic Development Incentive Legislation

Legislation creating a Next Michigan Development Corporation to provide economic development incentives across multiple cities, townships and counties.

Local Government Restructuring

Miller Canfield serves as local counsel to the City of Detroit in connection with its Chapter 9 bankruptcy case filed in July 2013 and its ongoing restructuring efforts. In connection with this representation, Miller Canfield is (a) handling post-petition financing matters, (b) litigating and negotiating requests for relief from the automatic stay matter, and (c) assisting with the restructuring of various City departments. The City of Detroit has estimated that its total outstanding obligations as of the commencement of its bankruptcy case totaled approximately $18.5 billion.

The bankruptcy concluded with four transactions totaling $1.28 billion to fund revitalization efforts and creditor settlements. All four transactions include structures never before adapted to the municipal market. The City created these first-of-their-kind bond issues to execute its Chapter 9 plan of adjustment approved by U.S. Bankruptcy Judge Steven Rhodes on November 7, 2014. 

The financings include:

• $275,000,000 Financial Recovery Income Tax Revenue and Refunding Bonds, Series 2014A/B (the “Exit Financing Bonds”), to refinance City debt, pay for quality of life projects, and pay for certain other settlement obligations;

• $631,964,145 Financial Recovery Bonds, Series 2014B(1) and B(2) , to fund settlements with FGIC, Syncora, general unsecured creditors, holders and insurers of the City’s limited tax general obligation bonds and fund the City’s General Retirement System VEBA and the Police and Fire Retirement System VEBA;

• $88,430,021 Financial Recovery Bonds, Series 2014C, to satisfy a portion of claims settled respecting the City’s pension obligation certificates; and

• $287,560,790 Unlimited Tax General Obligation Restructured Local Project Bonds, Fourth Lien, delivered to the Michigan Finance Authority to pay for settlements with holders and insurers of the City’s unlimited tax general obligation debt.

The Miller Canfield team is led by Public Law principal Amanda Van Dusen (Detroit); Bankruptcy and Restructuring principals Jon Green and Stephen LaPlante (Detroit); Litigation senior counsel Saul Green (Detroit); and Employment and Labor/Employee Benefits principals John Willems (Detroit) and Ken Sachs (Troy).