This article also appeared in Bridge Detroit
Detroit’s Charter Revision Commission has been in a legal battle to qualify the proposed revised charter to be placed before voters on August 3 after a Wayne County Circuit judge ordered it off the ballot. Two merged lawsuits sought to block the charter question from the ballot arguing that the charter proposal was improperly submitted for the ballot and the Commission’s attempt to circumvent the statutory prerequisite of gubernatorial approval should be rejected.
Emergency appeals were filed to the Michigan Court of Appeals and the Supreme Court on May 27. The timing of these appeals was important because August primary ballots had to be finalized by June 1. A ruling by the Michigan Court of Appeals on Thursday affirmed the Wayne County Circuit Court order to remove the charter question off the ballot. That ruling is now being appealed to the state Supreme Court.
On August 7, 2018, the revision process started by the slimmest of margins. A mere 184-vote majority (only 15 percent of registered Detroit electors voted on this question) voted to convene a commission to revise the city’s 2012 charter.
Charter revision commissions have a three-year life span to complete their duties. Detroit’s Charter Revision Commission expires on August 6. Thus, the August 3 election is the last opportunity for the Commission to submit its work to voters before it is disbanded. A complete overview of the commission’s major milestones can be found here.
Generally, these commissions leave themselves time to address needed revisions and gain necessary reviews before settling on a final draft and submittal to voters. However, Detroit’s Charter Revision Commission had pushed the three-year window to the brink. Even before the lawsuit, it was the “eleventh hour” for the Commission’s work. This was because of the considerable dysfunction within the Commission’s operations early on.
The previous Charter Revision Commission met 34 times and reviewed 571 proposals. In a transmittal letter sent to Governor Whitmer, the current Commission said it held over 200 community meetings and conversations.
This many local meetings certainly can be explained by increased interest in the issues under consideration. But, many meetings lacked substantive work, especially early on when community members witnessed commissioners disputing procedural matters, including lengthy debates on Robert’s Rules of Order, adoption of bylaws, hiring staff, and approving meeting minutes.
The current legal dispute was a result of different interpretations of a provision in state law governing charter revision. While local residents are involved in drafting their city charter, all revised charters and charter amendments must comply with state and federal laws. Pursuant to this end, the Act requires municipalities to submit their proposed charter for the governor’s approval before submitting it to the voters. In doing so, the commissions must allow ample time for the review process as well as time to review and act upon rejected charter provisions if necessary.
The Commission submitted its proposed charter to Governor Whitmer on March 5 and on April 30 the Governor, based on an opinion from the Attorney General’s office, rejected the revised charter because it had “substantial and extensive legal deficiencies”.
General understanding of the Act, and court opinion thus far, assumes that governor’s approval is needed, however, that Attorney General opinion said that the governor’s approval was not required to submit the proposed charter to the electors. Assistant Attorney General George Elworth wrote, “The text of Section 22 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. I have not found such a requirement elsewhere in the HRCA or in any other statute or case thus far in my research.”
Other legal analysts have disagreed with this interpretation arguing the governor’s approval is necessary. The City’s legal counsel explained that “the law provides no path forward for a commission-proposed revision that lacks the Governor’s approval … Section 22 of the HRCA does not contemplate a path to the ballot for any commission proposed revision that does not have the Governor’s approval.”
The Court of Appeals agreed with this interpretation and affirmed Judge Kenny’s ruling stating, “We are not convinced… that the proposed revised charter can simply proceed to a vote by the electors without the Governor’s approval.”
There was also a lack of clarity around which charter was being submitted to the voters: the amended charter or rejected charter. City Clerk Janice Winfrey stated she received the “true copy” of the charter on May 5 – the charter rejected by the governor. This was the copy that voters would have voted on as understood by Clerk Winfrey.
In response to Governor Whitmer’s objection, the Detroit Charter Revision Commission made efforts to address the legal deficiencies in the evening of May 11. Commissioners submitted their changes hours after the city clerk’s filing deadline. The Detroit Revision Commission alleged that this was the “true amended copy” that electors would be voting on.
The commission and its lawyers have argued that they retain the right to further revise and amend the charter even after the May 11 filing deadline.
Judge Kenny wrote, “No Michigan law authorizes such a power to a Charter Revision Commission. Irreparable harm will come to the voters of Detroit if they do not have sufficient time to review the proposed Charter revisions or know which version they are being asked to review.”
The Detroit Charter Revision Commission was embroiled in this legal battle largely due to the time wasted in the first year of its three-year life span. Pending a state Supreme Court decision on the case, the proposal is now on the ballot. If the Charter Revision Commission followed standard practice, it would have had enough time to propose and submit a finalized charter. However, that does not refute the reality that the Home Rule City Act can be improved for future charter revision processes.