Lawsuits over charter proposal seek to halt Detroit from printing August ballot

Sarah Rahal
The Detroit News

Detroit — Two lawsuits have been filed against the Detroit city clerk claiming she improperly certified a question that seeks to ask voters in August to approve changes to the city charter.

The separate suits were filed Monday in Wayne County's Circuit Court on behalf of four plaintiffs, including three Detroit residents and pastor Rev. Horace Sheffield III. 

The lawsuits seek a temporary restraining order to prevent the Detroit Election Commission from printing ballots that include Proposal P, which makes permanent changes to the city charter. 

Carol Weaver, chair of the Detroit Charter Revision Commission, speaks during a press conference with community members in front of Coleman A. Young Municipal Center in Detroit on Wednesday, April 28, 2021.

Detroit-based law firm Dykema Gosset is representing Allen Lewis, a former employee of the city's Labor Relations Department and president of the Detroit Retired City Employees Association, along with Ingrid White, a retired program manager of DTE Energy who owns a consulting business.

Honigman LLP, another Detroit-based law firm, filed its suit late Monday representing Sheffield and Detroit resident Rodrick Harbin.

The proposal has faced criticism from the Duggan administration and Gov. Gretchen Whitmer, who have warned that costs of implementing the charter provisions would send the city back into bankruptcy and prompt active oversight by its Financial Review Commission.

In April, the governor sent a letter to charter commissioners flagging concerns with the plan and concluding that she could not support it. Officials have offered dueling takes on whether it's lawful to put the measure before voters without Whitmer's support. 

The Detroit Election Commission on May 13 in a split vote advanced Proposal P to the ballot, with City Council president Brenda Jones and Winfrey voting to move it, and Lawrence Garcia, the city's corporation counsel, voted against it.

The next day, the Charter Revision Commission submitted new revisions of its proposal to the governor for review, according to the lawsuit filed by Dykema.

Charter Revision Commission Chairwoman Carol Weaver issued a statement Thursday calling the lawsuits "attempts by Mayor Duggan and his circle to prevent Detroiters from having a say and voting on the revised charter that so many residents and community groups have been involved in crafting."

"The Mayor has gone to great lengths to suppress the vote of Detroiters and keep citizens from voting on their Charter," Weaver contends. "The Charter Commission is currently exploring our options to ensure that the revised charter appears on the Aug. 3rd ballot."

In response to Weaver's claims, John Roach, a spokesman for Duggan, said: "It's the governor's fault, it's the mayor's fault, it's the attorney general's fault. Every time the Charter Commission runs into problems with their own ineptitude, all they can ever do is blame somebody else."

Roach and Lamont Satchel, an attorney for the charter commission, declined to further comment on pending litigation.

Satchel previously has noted that the charter commission could make changes to address the governor's objections and then resubmit a modified plan for her approval. The charter commission also could opt to submit its proposed charter to city voters for approval notwithstanding Whitmer's objections, Satchel and an analysis of the plan by Attorney General Dana Nessel's office concluded. 

But Garcia has disagreed, stressing Whitmer must support the plan for it to go before voters. 

The charter proposal is the product of three years of work by the nine-member charter commission, which was impaneled in 2018 by Detroit voters to address quality-of-life issues such as water access, affordable transit, affordable housing and responsible contracting.

The Detroit Charter Revision Commission adopted its charter plan on Feb. 27. On March 5, the proposal was sent to Whitmer and Nessel for review. Whitmer issued her letter rejecting the plan on April 30.

Sheffield told The Detroit News on Wednesday he doesn't want to see changes to the city charter.

"I think most of what they're proposing could be addressed by the City Council," Sheffield said. "I think it's a fiscal crisis in the making.

Honigman attorney Mark Burton argues under the Home Rule City Act, charter revisions need to be submitted to the governor for approval or disapproval before being certified. While the act provides three methods for charter amendments and revisions, there's no way to override in the event of a governor's disapproval, Burton contends. 

"Rather than follow the plain language of the act, the Detroit City Clerk and Detroit Elections Commission chose instead to invent their own method of override given the governor's express disapproval," Burton said Wednesday. 

Burton said it was surprising to see two lawsuits filed back-to-back Monday, and it's rare that this act is challenged in court.

"I think that is extremely unique and presents the court an opportunity to grant relief to the plaintiffs who are residents of the city because the authority to do that does not exist here," he said, referring to the Election Commission's authority to put the language on the ballot despite Whitmer's disapproval.

There's nothing that can be done, Burton said, after the certification deadline other than preventing the proposal from being presented on fliers, distributed to residents and printed on ballots for absentee voters on June 19.

Late last month, the charter commission convened a news conference to argue that the city has failed to properly fund the distribution of materials explaining the sweeping set of proposed government reforms to voters ahead of the election. The move, they say, is a form of "voter suppression."

Detroit Deputy Mayor Conrad Mallett has said the charter commission was given $300,000 in the current fiscal budget, a figure adopted by Detroit's City Council and less than $576,000 proposed by Duggan.

The city later approved a supplemental allocation of $129,000 to fund the work of the commission, and Detroit's Office of the Chief Financial Officer proposed, and council later approved, directing another $159,000 toward the panel.

In February, the city CFO's office said revisions proposed at that time would spur an "imminent fiscal crisis" that would plunge Detroit $3.4 billion into debt within four years.

The city, under the terms of its bankruptcy agreement, must maintain a balanced budget. If it is unable to meet that requirement, Detroit can't sign off on its budget plan, nor can the state.

If approved, the charter would go into effect in 2022. 

The August primary is the final election during the Detroit Charter Commission's term.

"The Michigan Supreme Court has explained that by passing the Home Rule City Act, 'it was the intention of the legislature to provide for orderly change of the charter, not to encourage or sanction confusion in city government," according to Dykema's suit.