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Fri January 20, 2012
Trying to sort out Emergency Manager limbo
The group “Michigan Forward” is collecting signatures to repeal the state’s Emergency Manager law.
At last check they we’re up to 180,000.
They only really need about 162,000, but they’re hoping to collect somewhere around 250,000 signatures (I think to prove a point).
And they have time.
They don’t need to turn the signatures in until the end of March to be able to put the repeal question to voters.
Questions, and more questions (I could talk about this all day)
Ever since I realized there was a real possibility voters could have a chance to repeal the Emergency Manager law I’ve been trying to figure out: what in the world would happen in cities and school districts with an Emergency Manager already in place?
Would Emergency Managers automatically become powerless? Would union contracts they signed still be on the books? What about their other ‘orders’ (like one in Benton Harbor that takes away pretty much all authority from elected officials)?
Could elected city councils and school boards who’ve been mad about the state taking over their financially challenged districts laugh heartily as they take back the reins?
Chaos? Riots? (I’m not trying to get anyone worked up here, but there were riots in Benton Harbor in 2003.)
Some answers and assumptions
I talked to officials from the state, Emergency Managers, lawyers, and I refreshed my memory of the Michigan Constitution.
Now, it’s obvious to me that no one knows what will happen for sure.
Fortunately, there are some things that we do know. And for fun, there’s some things that I’m going to assume will happen.
Once the petitions are handed in, the Secretary of State has up to 60 days to certify them. If and when that happens, confusion begins.
Article 3 section 9 of the Michigan Constitution deals with referendums. Here’s an important line, “No law as to which the power of referendum properly has been invoked shall be effective thereafter unless approved by a majority of the electors voting…”
Lawyer after lawyer highlighted the word “thereafter” for me.
They read it like this; thereafter means all of the work Emergency Managers have done so far stays as is. That work was done before the signatures were certified, so the power of referendum wasn’t properly invoked yet.
In the case of Benton Harbor, Emergency Manager Joe Harris issued an order last spring that specifically forbids city commission to do anything but call meetings to order, take meeting minutes, and adjourn meetings.
In that case I am assuming elected leaders in Benton Harbor will still have no authority because Harris’ order was made before the signatures were certified. Some lawyer said it’s possible that a city commissioner could challenge Harris’ order in court, but who knows if that could be resolved before the November election.
So who’s in charge here? And under what state law?
I’ve heard conflicting statements from state government officials about whether or not Public Act 72 of 1990 (the original Emergency Financial Manager law) would automatically be re-enacted.
PA 72 was taken off the books when Public Act 4 of 2011 (the new Emergency Manager law) was signed into law. There is a section in PA 4 that repeals PA 72.
Remember that important line from the Michigan Constitution above?
It says “no law…shall be effective…”.
So if the people properly invoke referendum the whole law, not part of it, would no longer be effective (until the voters decide). As one lawyer put it; “seems like you can’t have it both ways.”
It does present a challenge. Can we have none of PA 4 and ignore that PA 4 repeals PA 72?
Governor Snyder's administration believes that PA 72 would automatically be raised from the legislative grave if PA 4 is put on hold. And his office admits there isn't much clarity on how exactly that would work though.
Meanwhile lawmakers are already talking about a different, more likely option; passing a brand new Emergency Manager law. The law could be identical to PA 4, or PA 72, or a hybrid, OR it could be completely different from both.
Whatever the new law is, it needs to have enough support to quickly pass through the Republican led legislature (during an election year, I might add) and get the governor’s support.
Leading lawmakers are talking about this option because they’re assuming that PA 72 would not automatically come back to life if PA 4 is put on hold. They assume chaos, not PA 72, will reign.
The House Speaker’s press secretary tells me whatever the new emergency manager law may say, it would only be temporary. He says they’d write the new law so that it expires after the November election. That way whatever the voters decide, lawmakers will be able to react to the decision.
Presumably this temporary law would avoid at least some of the chaos that I could see happening between the time the signatures are certified and the November vote on PA 4.
...And so I'm still confused
All of these questions really hit me like a brick wall late last month.
It was after a longer sit-down interview with Benton Harbor Emergency Manager Joe Harris.
But he shook his head back and forth and laughed, “They don’t tell me anything. And I don’t ask.”
But it’s still not any clearer to me what will happen to cities like Benton Harbor if PA 4 is put on hold.
(This post has been updated to clarify the Snyder Administration's position on a possible PA 4 repeal.)