Guy Gordon (00:00.77)
Hello and welcome once again to another edition of the hashtag Facts Matter Podcast. I’m Guy Gordon, joined by Eric Lufer, president of the Citizens Research Council of Michigan, as we continue our deep dive into the issue of a constitutional convention. We know November of 26. Michigan voters will be asked, as they are every decade and a half or so, whether or not they want to hold a constitutional convention and undertake reforms to Michigan’s constitution.

And today we’re gonna look at Article seven, which covers a lot of ground, Eric, in terms of local governments. And this could be a fertile area for reform.

Eric Lupher (00:37.728)
You know, this is one of the few articles of our current constitution that hasn’t been amended, hasn’t even had proposals for amendment that have made it to the ballot. and yet there’s a lot of meat there. There’s a lot of

substantive issues that a constitutional convention might tackle. And I really think it speaks to why not everything can be done through the amendment process that in in this case there are no champions for some of the issues we’re gonna discuss that will go out and circulate petitions or bring those issues to the legislature. And so having the citizens look at this in a holistic way and ask what we want of our local government structure.

Guy Gordon (01:05.868)
Right.

Eric Lupher (01:24.212)
is something that’s really gonna happen through a con process and not through tinkering around the edges.

Guy Gordon (01:29.918)
Right. And and whether we while there have been no wholesale amendments to to Article Seven, there have been a lot of niggling statutory changes, court cases that have come down that have impacted these, especially in relation to home rule. And we’ll get to that in a moment, but let’s just start with the the structure of local government. We can trace the roots to how our townships, counties, municipalities have been structured.

I mean back to seventeen eighty seven.

Eric Lupher (02:01.449)
Yeah, that’s the interesting part. the Northwest Ordinance back in the Thomas Jefferson as our third president.

being a surveyor himself, somebody who tinkered with that, set surveyors to say, now that we have this territory, go figure out what’s there, and do so by marking it off in you know, in in square areas that are easily recognizable. And today we call those townships. we have cities that have developed usually close to water, sort of

where commerce is w was most possible back in the day. as areas of township grew bigger, they created villages to provide it higher amounts of service than a township was inclined to or for un until today, now townships and cities are are remarkably the same. But back then townships did the bare minimum. All right.

Guy Gordon (03:03.042)
Well and how many townships are larger than cities now? You look at West Bloomfield down here in Oakland County. I mean, we’ve got Canton Township that you know g dwarf the surrounding areas.

Eric Lupher (03:14.997)
There are, yeah. So we we’ve lost some of the nuance that was once in our statutory definition of what local government should look like. But our constitution provides for counties, townships, cities. we statutorily provide for villages. and we have both constitutionally and statutorily

the authority to create special authorities to provide services as a standalone unit of government. And w today we have over eighteen hundred local units of government. the good news is that’s

Guy Gordon (03:56.611)
Is that more or less? Are are are are are the numbers shrinking or are they growing? As ’cause we’ve seen some in corporations and mergers and things like that, regional efforts, efforts to regionalize.

Eric Lupher (04:07.082)
Y yeah, our our pap our paper documents that in nineteen sixty two we had one thousand eight hundred and fifty one counties, townships, cities and villages, and ninety-nine special authorities. And in twenty twenty we had one thousand eight hundred and fifty six, so five more general purpose local governments and four hundred and thirty seven special authorities, so three hundred and thirty eight more

special authority. So while there has been consolidation of in of some governments, we’ve had townships become cities, Southfield, Livonia, places like that, have just taken the township and become a city, for the most part, we’re just changing the names of them, the the status of township or city. We’re not

shrinking them. So I I started to say the good news is that’s government close to the people, right? As a as a state that values democracy and and home rule and and the ability to make your own decisions. you have small government that people have a strong voice in. The bad news is that it’s inefficient. We have a lot of duplication of service provision, of decision makers.

Guy Gordon (05:07.491)
Mm-hmm.

Guy Gordon (05:12.257)
Right.

Guy Gordon (05:18.894)
Accountability.

Eric Lupher (05:37.307)
And as you’re trying to attract business, if they come in and they have to deal with one set of decision makers on one side of the road and a different set on another side of the road and the the nuance and building code and regulatory issues and things like that, it has become to some extent a detriment as we try to do economic development and peop bring people into the state based on little dotted lines on a map that mean nothing.

in the business community.

Guy Gordon (06:09.086)
Right. So will we see an attempt to clarify some of the power dynamics here and to kind of reinvent some of these local governments?

Eric Lupher (06:17.728)
You know, that depends on what a constitutional convention, sort of what the body looks like. There was clearly an effort in the nineteen sixties with our nineteen sixty one constitutional convention to do something about that, to look at townships, but the structure, how we elected delegates back then and a very strong

lobby by the Township Association meant that we kept townships. In fact, we strengthened them in some ways. And so I would suppose if we had a constitutional convention in night in twenty twenty seven, again townships would put up their defenses and do what they can to maintain those units of government. it re it requires a a a strong look and and a

vested look to try to figure this out. But I don’t think just by having a constitutional convention we can assume that there would be change.

Guy Gordon (07:26.616)
Well, not necessarily change because you talk about they they’re going to defend some of their territory. Let’s be clear about w what they’re defending. Would it be control over elections, tax assessments? what what powers will would they be seeking to provert preserve?

Eric Lupher (07:44.67)
Yeah. So the constitution provides that the townships should exist in

Provides some minimum assignment of powers, but most of that is done statutorily and and could be changed statutorily. So right now townships are vested with running elections, assessing property for the purposes of property taxation, and collecting property taxes to distribute them to the counties, the schools, the state, everyone else that levies taxes on the properties within the township.

Guy Gordon (08:01.122)
Mm-hmm.

Guy Gordon (08:20.301)
Uh-huh.

Eric Lupher (08:25.46)
And they have a broad set of powers beyond that, you know, to the extent that we can say that we have townships now bigger than cities and and they quack like a city and walk like a city and don’t call themselves a city. so th we could do a whole lot statutorily. The question is should a constitutional convention look at that and say, Listen,

Having cities and counties is maybe enough. Maybe we need to do away with villages. most villages are about two square miles and two thousand people or so. And and living in Livonia or think a lot of urban places around us, that’s my subdivision. it’s you know not really big and so th there’s a whole lot of inefficiency built into that. It’s

Guy Gordon (08:56.974)
Mm-hmm.

Guy Gordon (09:13.144)
Right.

Eric Lupher (09:20.502)
Power close to the people, but there’s inefficiencies by having that.

Guy Gordon (09:24.568)
For the uninitiated, explain what a what a a special authority is and what its role is.

Eric Lupher (09:34.751)
Right. So there are services that the economies and the expense of providing them are bigger than a city. And when I say that I’m not talking about a Detroit city, but an a a a Manisty you know, the typical city in Michigan, very small, bigger than your typical township. fire protection libraries

swimming pool districts, ambulance provision, a whole bunch of services. So the special authority laws allow local governments to get together and say, we think this is important. Our citizens have indicated a desire to have this service provided. We can’t do it alone. Will you, my neighboring township or city, collaborate with us and together we will pitch in for the

Guy Gordon (10:09.934)
Parks and rec. Yeah.

Eric Lupher (10:33.608)
expense of providing that or sometimes levy a tax on the citizens to provide that, and then that becomes a standalone unit of government for the sole purpose of providing that service for running a library district, for providing fire protection, for you know whatever it is. so the good news is that the services are being provided, being done typically in an economic way.

Guy Gordon (11:02.136)
Mm-hmm.

Eric Lupher (11:04.224)
Bad news is when we think about government and the trying to create economies, if you have a multi-purpose unit of government, then they can say we have all of these needs and a limited amount of money. How are we going to distribute those those scarce resources and prioritize them? These standalone services,

Guy Gordon (11:27.374)
Mm-hmm.

Eric Lupher (11:31.658)
You know, they they sort of set their own budget and and go forward within reason, right? They whatever the tax base is, whatever. but that there isn’t the the balance of fire protection against you know, refuse collection or running elections or other things that it becomes its own standalone service.

Guy Gordon (11:37.73)
Right.

Guy Gordon (11:54.531)
I guess one of the other you know, I the key question if if delegates were to approach something like this would be efficiency and effectiveness, would those be the two key questions that they would be asking as they look to reform this?

Eric Lupher (12:08.078)
those two things, but baling it balancing that against accountability and having government close to the people.

Guy Gordon (12:14.19)
Okay. So the the one of the other interesting pieces in your paper was this section twenty-nine that would control municipal control of highways and right-of ways. There have been some erosions of the just compensation that, for instance, if a utility were to take or use some of these right-of-ways, how is how might that be a source of tension going forward?

Eric Lupher (12:44.874)
Yeah, this fits into the bigger conversation on home rule. so again for the uninitiated, we have among the different states different levels of discretion provided by state constitutions and state law to the local governments. In some states, many of our southern states, for example, there’s almost no home rule.

Guy Gordon (13:06.476)
Mm-hmm.

Eric Lupher (13:13.226)
The state legislature decides for every city in

how much power the mayor will have, whether the city clerk shall be appointed or elected independently, what the laws are, to the extent, if you can think back, this is a little dated, but it’s a great example. when there was the pushback done in some of the southern states on undoing the celebration of the Confederacy

and and empowering people and they wanted to tear down the statutes of civil war generals in many of the cities. The cities couldn’t decide to do that on their own. They had to go to the legislature to get the authority to do that. And you contrast that against a state like Michigan, with a constitution that would seem to provide very strong home rule powers, where every city decides on its own whether to have a

independently elected mayor or choose the mayor from city council, whether to elect the city clerk and the treasurer or have those people appointed to create your own ordinances to decide what services are provided in what way and what level of taxation within a limit. Our constitution, many scholars would say, many academics that have looked at the different states, Michigan

Guy Gordon (14:44.142)
Mm-hmm.

Eric Lupher (14:46.218)
least constitutionally, has a very strong home rule state. But what’s happened over time is the legislature has basically said, I don’t care, you know, speaking as one unit, one entity. The the legislature continues to enact laws that just usurp the authority of local governments to make their own decisions, to do things that they want. And the issue that you raise with the

rents, for those only listening on online, sort of air quotes around the word rents, but when you have right of way, the roadways, the space set aside, the constitution would suggest that those utilities or the businesses using those right of ways should compensate the local government.

Guy Gordon (15:25.262)
Mm-hmm.

Eric Lupher (15:45.879)
for that use. There’s a public use and and some sort of rents would help the local governments to maintain that area and balance the utilities versus the other uses in that right of way. And the legislature has just sort of squashed that and say the economic interest of the businesses are greater than the individual interest of the local governments.

Guy Gordon (16:12.066)
And we’ve seen that especially when it comes to conversations over data centers, windmills. yeah, and you know, I go back to the maybe the Goshen plant up in Big Rapids where there was a lot of tension between economic development officials from the state and and the township officials who said, you know, we’re concerned about this.

Eric Lupher (16:30.388)
Y yeah, I mean so what you describe is more on the home rule side, these rents are more like the cable television back when that was a thing and and their ability to put the cable along the the phone lines, you know, the p the power pools, should should they have to pay the township or the city some sort of fee?

Guy Gordon (16:37.772)
Right.

Guy Gordon (16:52.632)
Right.

Eric Lupher (16:59.494)
to to be able to do that and the state laws are written in a way that the need to s connect the consumers to the internet and and provide television and telephone services sort of trump the the will of the local governments.

Guy Gordon (17:12.899)
Right.

Guy Gordon (17:17.954)
Well in the example that you used was the city of Taylor wanted to remove some power poles along a troublesome sp four mile stretch of road, put underground so that there was less likelihood of a collision with a power pole, and they wanted the utilities to pay for that. And they came away with an unsatisfactory result.

Eric Lupher (17:37.011)
Again, because the state legislature and and the courts in looking at those decisions have decided that the economic interest of the businesses was greater than the the interest of the local governments, even though they were trying to do something for the public safety of all residents of the state.

Guy Gordon (17:56.247)
Right.

Guy Gordon (18:02.392)
So let’s let’s widen the lens a little bit here. We were talking about section twenty nine, and that was probably my mistake by going s so narrow early in this home rule conversation, but let’s take a look at this and and the way it’s manifesting itself when we talk about data centers, windmills, auto plants that may be sited in areas that want to keep their rural character. Who wins those arguments and could that be decided in a constitutional convention?

Eric Lupher (18:29.602)
Yeah, it goes on many, many issues. Ann Arbor tried to outlaw the use of plastic bags and grocery stores. it’s just many issues and the issue whether you agree with that or not, the the issue is should local governments dis try to decide what’s in their best interest as they hear from their constituencies, or should those decisions be made in Lansing?

one entity and and you think about the differences ranging from Detroit, a city of six hundred thousand people, to you know, the tip of the key on a peninsula with a couple thousand people, very different between urban and rural, and one would argue a one size fits all approach to local government just isn’t appropriate. so

The legislature has repeatedly say said that the state interest, the economic interest of economic development

is greater than that home rule desire of local governments to be making their own decisions. Now, the the tension, you’ll recall early in our series, that our advice to anybody taking on the role of being a constitutional convention delegate is to create the structure upon which l laws could be written. We see this here in our 63 constitution that the

Constitution very clearly says that cities and counties should have home rule authority and be able to make their own decisions. Would we want a constitutional convention coming in in 2027 and saying we have to beef that up in some way? If that’s the way they want to go, they could say, you know, we could weaken it. But assuming that they say we want to maintain Michigan as a home rule state, in what ways do you put

Guy Gordon (20:25.996)
Mm-hmm.

Eric Lupher (20:37.746)
more language in to say we really mean it without getting so detailed that it becomes less of an evergreen document that will be pertinent fifty, seventy, a hundred years from now. do you put in some language that say local governments to get to decide there where to put data centers when data centers might be a passing fra phase, you know. In nineteen sixty three we didn’t even know what a data center was.

Guy Gordon (20:44.952)
Right.

Guy Gordon (21:02.22)
Right.

Eric Lupher (21:07.208)
So th there’s a real tension there that the delegates will have to navigate if there is a convention.

Guy Gordon (21:15.256)
So we’re kind of reaching the end of our allotted time here, but is there we have seen with every article there is kind of a clean up and aisle five task that needs to be done where our constitution, or at least this article seven, may be in conflict with our federal constitution. There’s s some of those things here. Is there a need for cleanup to to tidy up where those conflicts arise?

Eric Lupher (21:43.667)
I there’s a need to do that just to make the constitution consistent with practice so that any citizen could pick up their state constitution and understand how government works. The example in the local government article is the governance of county government. You’ll recall back in the election section we talked about

At the time the delegates were meeting in Lansing to create our nineteen sixty three constitution, there were issues playing out st nationwide on how deleg how elected officials could be selected. And that ended up in the US Supreme Court saying one man, one vote is necessary. Proportional election.

Guy Gordon (22:33.654)
Exactly.

Eric Lupher (22:36.436)
Well, we didn’t know that when we were voting on the nineteen sixty three constitution or or when they were drafting it. And they carried forward provisions from earlier constitutions that said that the counties would be governed by what was called a board of supervisors. And those board of supervisors would be made up of one delegate, one supervisor. F every township has a supervisor and they become part of the

Board of supervisors at the county level, and a number of representatives from every city proportional to the size of the city. Well, right away you can look at any county in Michigan and see there’s one small, lightly populated township of a thousand people, and and then you know, down the road, one of a hundred thousand people or or you know, more than that, maybe.

And for them to have equal representation would be contrary to that one man one vote. So there was a Michigan Supreme Court decision saying, yeah, that doesn’t work. It’s in conflict with the one man-one vote. The legislature enacted a law saying we’re going to create a county board of commissioners with equal representation of the county commissioners. We have to apportion the

The county population after each census and make sure it’s equal. So in law, we are doing one thing, it’s working. The Constitution says something different that we’re just ignoring. Do we need a constitutional convention to fix it? Well, the law says we already fixed it. but again, if that’s the best way to do it, let’s put it in the constitution, let’s clean it up. The other part with the counties,

Guy Gordon (24:09.356)
Right.

Eric Lupher (24:26.848)
We have independently elected sheriff, prosecuting attorney, treasurer, register of deeds, all these independently elected and you know officers, each with their own fiefdoms.

Each one then at the time of creating a county budget coming in saying my service is the most important service the county does and you should give me the most amount of money. And to to work around that, we created charter counties and and try to create some order to it, but it’s not clear that having a county administrator

We have several counties that have adopted that charter county s but have that county administrator that their powers are greater than those independently elected officials. So I think a constitutional convention will wanna try to make sense of that. If there is a charter county, should those

officials be chosen in a different way. Should we be clear that the county administrator has has some supervisor auth authority over there and the ability to offer budgets. Ultimately it’s the county commission that sets the budget. but the ability to work through those types of issues. So you know not grand in scale, but county government is

has the potential to be one of our most significant

Eric Lupher (26:20.362)
local government levels of government, what I’m trying to say here. And and we sort of handicapped it and and we shackle it with its ability to do that. So a constitutional convention might be able to take off some of those shackles and make it better able to serve the people.

Guy Gordon (26:40.674)
Yeah. There’s also the issue that we’ve discussed frequently about the giving more power to local units of government to raise revenues. Right now they’re handcuffed, but that would be a a discussion for a later time when we tackle Article Nine and we’ll look forward to that later on this summer. Any final thoughts, Eric, on Article seven before we wrap it up?

Eric Lupher (27:03.04)
We covered a lot of ground. we encourage everyone to come and look at these papers. They’re on our website and we’re gonna continue to work on it. We’re gonna take a little bit of time in the heat of the summer to enjoy the outdoors and some of the staff gonna take some downtime, but we’ll be back at the end of July with our education article and think about our universities and public schools and libraries and all that kind of fun stuff.

Guy Gordon (27:31.092)
All right. and you can find all of that at CRCMish dot org. Until next time, Eric, thanks very much. And we and we thank you for joining us here. And we want you to recommend our Facts Matter podcast to your friends, either through Spotify, Apple. Tell them that there is an unbiased discussion of actual policy going on with the Facts Matter podcast from the CRC, and perhaps they would appreciate it as you do. Until next time, take care. I’m Guy Gordon.

Eric Lupher (27:37.792)
Thank you. We’ll see everyone soon.