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Michigan Supreme Court will decide whether Detroiters vote on new city charter

The Detroit skyline as seen from across the Detroit River.
Lester Graham
/
Michigan Radio

The Michigan Supreme Court will hear arguments Wednesday on whether a proposal to revise Detroit’s city charter should appear on the August ballot.

It’s the final stage in a long political and legal battle over the question, which has pitted Detroit Mayor Mike Duggan and some city officials against the elected charter commission.

Michigan Radio’s Sarah Cwiek spoke with Doug Tribou about exactly what’s going on, and what’s at stake.

Q: The commission came out with its proposed changes earlier this year after years of work and input from residents. What would it change about the city charter?

The proposed charter would make some sweeping changes to city government. It includes among many other things: a task force to look into reparations for historically overtaxed Detroit property owners, some of whose properties were wildly over-assessed for years and fell into tax foreclosure; an advisory commission on addressing the digital divide in Detroit; a big revamp of the police department, including more training and yearly physical/psychological evaluations for police officers; and an elected fire commission (you can find a full version of the charter changes, including revisions and commentary, here).

Q: How did this end up becoming such a contentious issue?

Mayor Mike Duggan opposes the charter revisions. The main issue he’s stated publicly has to do with cost. Dugan has said the new charter will impose all sorts of “unfunded mandates” the city can’t afford without triggering renewed state financial control, and violating the terms of Detroit’s court-ordered post-bankruptcy plan of adjustment. A Duggan administration fiscal analysis predicts that charter mandates will end up costing the city $2 billion dollars over four years.

Charter commissioners dispute that price tag, calling it overblown and a scare tactic. Lamont Satchel, an attorney for the commission, said the Duggan administration’s analysis is based on a lot of assumptions that are either faulty or obscure. “No one has been given any of the background information that would give them an opportunity to really test the mayor’s numbers,” Satchel said.

Satchel said the real price tag will depend on how the charter is implemented. The charter commission also retained a Michigan State University professor to do a cost-projection analysis, which suggested the Duggan estimate is significantly inflated. But the basic situation is that the mayor and the charter commission are completely at odds here.

Q: The Michigan Supreme Court will hear arguments on Wednesday, and then make a ruling about whether Detroit voters will get to decide on this new charter. How did this end up in court?

Earlier this year, the charter commission submitted its proposed revisions to Governor Gretchen Whitmer, as required by state law. Whitmer came back with a Michigan Attorney General’s opinion outlining a number of what they called “legal deficiencies” in the document, and Whitmer declined to approve it.

The charter commission made some changes and sent it to the Governor again, who declined to review it. After a lot of arguments and back-and-forth about whether the charter commission met certain deadlines and followed proper procedure, the Detroit Election Commission voted 2-1 in June to put “Proposal P” on the ballot. Detroit corporation counsel Lawrence Garcia voted no, while Clerk Janice Winfrey and City Council President Brenda Jones voted yes.

Just days after that, two lawsuits were filed by Detroit citizens against the city clerk and Election Commission, saying they erred in putting it on the ballot because state law requires the Governor’s approval for charter revisions. The charter commission contends that’s not true, and the Michigan Attorney General’s office appeared to admit that in its letter that outlined the charter’s supposed legal deficiencies.

The case first went to Wayne County Circuit court, which ruled in favor of the plaintiffs and against the charter commission’s position. Since then the case has bounced around the state courts, with the Michigan Court of Appeals also ruling against the charter commission’s position. But the Michigan Supreme Court has put a stay on those rulings, and agreed to take the case and make a final decision.

In the meantime, August primary ballots with Proposal P on them have already been printed and sent to some voters. However, if the Supreme Court rules against the charter commission, the vote will be moot.

Q: What are the legal questions the Supreme Court will consider here?

The heart of the issue is different interpretations of Section 22 of the Michigan Home Rule City Act, which generally gives cities broad powers to govern themselves.

Section 22 deals with city charter revisions. It says those revisions need to be submitted to the governor. If the governor doesn’t approve, she “shall return the charter to the commission” outlining her objections.

“The basic issue is, do the citizens, the electors, have a constitutional right to frame, adopt, and amend their charter, even if the governor objects to certain language in it?” charter commission attorney Lamont Satchel said.

The plain language of Section 22 doesn’t explicitly say the governor needs to approve charter revisions for voters to decide on them. But the plaintiffs argue the law clearly implies that such approval is necessary; otherwise, it wouldn’t set up a whole review process that involves the governor in the first place.

In their most recent brief arguing the case, the plaintiffs pointed out that “The Circuit Court found that “[t]o contend that the Governor’s approval is not necessary for a revision of the Charter rather than an amendment makes submission of the draft to the Governor an empty and useless gesture if the failure to gain approval of the revision is of no consequence.” Likewise, the Court of Appeals held that “the use of the word ‘approve’ clearly denotes that the Governor is to exercise judgment as to the quality of the proposal as opposed to merely provide gratuitous support of the proposed charter or amendment.”

The brief also states that “The Legislature’s choice to vest the Governor with the power to review and approve charters was intentional and this case demonstrates the necessity of that power—to direct a Charter Commission to fix charter revisions that are, as the Attorney General described the revised charter here “illegal,” “unenforceable,” of “no legal effect,” or "specifically prohibited.”

The charter commission and their allies point out that in the Michigan constitution, the “’power and authority to frame, adopt and amend’ a City Charter is granted solely to the electors of the City.” They go on to argue that “an interpretation of [the law] that grants the governor absolute veto power is contrary to the power granted to home rule cities under the 1963 Constitution and thus must be rejected by this Court.”

Q: What’s at stake here depending on how the Supreme Court rules?

Lamont Satchel and charter commission members say not allowing Detroit voters to decide on the charter would amount to “voter suppression” in a majority-Black city. And a ruling in favor of the plaintiffs would shift more power from local governments to the state.

The new charter would also be a blueprint for Detroit’s future if passed. It would dilute mayoral power, giving more power to independent commissions, and change the city’s role in everything from policing to guaranteeing water affordability. It would address a number of “sore thumbs” that Satchel and others say are chronic problems in the city, like internet access, housing affordability, and a lack of community input on major development projects.

But if the Michigan Supreme Court rules in favor of the charter commission and Detroit voters approve it, it could potentially open the city up to more lawsuits—particularly ones challenging aspects of the charter that the state believes violate the law, or Detroit’s post-bankruptcy plan. And if implementing the new charter costs as much as the Duggan administration suggests it will, that could trigger the now-dormant Detroit Financial Review Commission to again take control over the city’s finances.

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