The legal and political battle over whether Detroiters will get to vote on new city charter
The court battle over whether proposed changes to the Detroit city charter will stay on the August primary ballot took yet another turn on Friday.
The Michigan Supreme Court granted the Detroit Charter Revision Commission’s request for a stay on lower court rulings that would have taken the measure off the ballot. That means that, for the moment at least, the charter revision question—dubbed Proposal P—will stay on the ballot. It’s not clear yet whether the Supreme Court will make a final decision one way or another on the matter.
But how did things get here? How did efforts to revise the city’s foundational document turn into a protracted political and legal battle? What are the stakes if the question does or doesn’t end up on the ballot? Here’s a summary of events.
Why is Detroit looking to revise its charter in the first place?
In 2018, Detroiters voted by a narrow margin to open the charter up for revisions. A charter is like a city constitution—it outlines the structure of government, how powers are distributed throughout it, and can serve as an outline of a city’s priorities. A group of people were elected to serve as charter commissioners, and members started holding meetings and gathering input on possible changes.
Detroit actually changed its charter fairly recently, in 2012. The changes at that time were mostly concerned with ethical issues, in the wake of former Mayor Kwame Kilpatrick’s trial and conviction for bribery and racketeering.
The current proposed changes to the city’s charter, however, are much more sweeping.
What are some of the changes the charter revision commission has proposed?
Most of the proposed changes in this round of charter revision have to do improving Detroiters’ quality life, and dealing with equity issues that have continued to plague the city as it rebounded from bankruptcy.
The proposed changes include:
· Beefing up city contracting requirements, particularly when it comes to employing Detroiters.
· Lowering the threshold for development projects that would qualify for Detroit’s Community Benefits Ordinance—effectively making more developers participate in a process meant to ensure benefits for impacted Detroit communities.
· A water affordability program that would limit water bills to no more than 3% of a household’s yearly income.
· Yearly physical and psychological exams for police officers
· Efforts to expand broadband access to Detroiters, and reduce the digital divide in the city.
Charter commissioner Denzel McCampbell said three years of meetings and extensive resident input shaped the final version of the charter. “I think we have a forward-thinking document that is also setting up the city government to be reflective of residents’ needs for decades to come,” McCampbell said.
Who’s opposed to the charter revisions?
Detroit Mayor Mike Duggan is opposed to the revised charter, and has put a lot of effort into keeping it off the August ballot.
There are a variety of reasons for this. One is that the revised charter takes some powers away from the Detroit mayor, especially in terms of controlling the Detroit police and fire departments.
But the biggest reason the administration has cited is cost. They argue that the new charter will usher in a series of “unfunded mandates” that would violate Detroit’s court-ordered, post-bankruptcy plan of adjustment, and trigger oversight by the Detroit Financial Review Commission—essentially put the city’s finances back under state control.
A Duggan administration analysis found the revised charter would cost the city $2 billion over four years. The charter commission vigorously disputes that, calling it a baseless, overblown estimate of actual costs.
How did the issue end up in court?
In March, the charter commission submitted their version of the revised charter to Governor Gretchen Whitmer for review, as required by state law. Attorney General Dana Nessel’s office reviewed it, and found “substantial and extensive legal deficiencies” in the document.
That analysis raised concerns about the costs associated with some charter revisions violating Detroit’s plan of adjustment, and triggering renewed state oversight. It also found that some proposed changes—such as regulating city utility rates, and an “overassessment relief program” for Detroit homeowners who paid over-inflated property taxes—appear to violate state law.
The review also found that the law “does not include a requirement for the Governor’s approval of a proposed charter as a prerequisite for a charter commission to submit it for approval by the city’s voters.”
However, the Duggan administration seized on Whitmer’s objections to argue that the charter question should be kept off the ballot. Detroit corporation counsel Lawrence Garcia, one member of the three-member Detroit Election Commission, also argued that the charter commission didn’t submit a finished document to city clerk Janice Winfrey in time for certification. The charter commission’s lawyer argued that the Governor’s approval isn’t necessary to put the question before voters, and that the commission only had to submit a final ballot question, not a fully-revised document, to the clerk by the deadline Garcia cited.
The Detroit Election Commission ultimately voted 2-1 to put the charter proposal on the ballot, with Winfrey and Detroit City Council President Brenda Jones voting for the measure, and Garcia voting against. Lawsuits attempting to overturn that decision immediately ensued. Those lawsuits were not officially filed by the city of Detroit, but they reflected the Duggan administration’s position.
So what’s happened in the courts, and where do things stand now?
Wayne County Circuit Court Judge Timothy Kenny ruled in favor of the lawsuits’ plaintiffs, agreeing that the proposal should be tossed from the ballot because it lacked approval from the governor.
The charter commission immediately appealed to the Michigan Court of Appeals and Supreme Court.
John Philo, an attorney with the Sugar Law Center, helped with an amicus brief that supported the charter commission’s position. He said Michigan’s strong tradition of home (local) rule is supported by the state’s constitution—and even if some charter changes do conflict with state law, that’s a matter for the courts to decide after voters get their say.
“Sometimes the governor thinks it is legal. Sometimes the governor thinks it isn’t legal,” Philo said. “That’s fine. But that’s hashed out in the courts afterwards.”
After the Michigan Supreme Court ordered the Court of Appeals to decide the matter quickly, the court issued a 2-1 decision agreeing with the circuit court, and affirming that the charter proposal shouldn’t be on the ballot. The charter commission once again appealed to the Supreme Court, and on Friday that court issued a stay on the lower court rulings—meaning Proposal P remains on the ballot for now. At this point, it’s not clear whether the Supreme Court will take up the question on appeal, and decide the matter once and for all.
Charter commissioner Denzel McCampbell said the matter should ultimately be decided by Detroit voters. “I don't think you'll find any everyday resident that wants this to end up in the courtroom,” he said. “They want to make their voices heard at the ballot box, and we're going to keep fighting to the end so that that happens.”