Judge rules Detroit's charter proposal must be removed from August ballot

Sarah Rahal
The Detroit News

Detroit — A Wayne County Circuit Court judge on Wednesday ruled in favor of decertifying a proposal for the city's August ballot that seeks to ask voters to approve changes to the city charter. 

Wayne County Chief Circuit Judge Timothy Kenny's decision noted Gov. Gretchen Whitmer declined to approve the charter revisions drafted and placing it before voters without her blessing would violate the Home Rule City Act. 

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.

The act states 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, Kenny states.

"To contend that the Governor’s approval is not necessary for a revision of the Charter rather than an amendment makes the submission of the draft to the Governor for approval an empty and useless gesture if the failure to gain approval of the revision is of no consequence," Kenny stated in his ruling.

Kenny entered the order in response to two lawsuits filed last week against Detroit City Clerk Janice Winfrey both seeking to prevent the Detroit Election Commission from printing ballots that include Proposal P, which calls for permanent changes to the city charter. 

The lawsuits filed by Detroit law firms Honigman LLP and Dykema Gossett represented three Detroit residents and pastor Rev. Horace Sheffield III. 

The proposal has faced criticism from the Duggan administration and 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.

Honigman attorney Mark Burton, who represented Sheffield, told The Detroit News Wednesday despite the important work of revising the city charter, there are laws that need to be followed to place those revisions on the ballot.

"They're grateful to the judge for his thoughtfulness and his underscoring that these things can be done, they just need to be done correctly according to law," Burton said.

Winfrey was not immediately available for comment Wednesday. The clerk's office confirmed Wednesday that August ballots have not yet been printed.

Detroit Charter Commission Chair Carol Weaver said the commission is disappointed with Kenny's ruling and an immediate appeal is being prepared.

“His opinion disregards much of the law regarding the right of electors to adopt their charters," Weaver said in a statement. "Both Michigan Governor Gretchen Whitmer and Attorney General Dana Nessel agree that the Governor has absolutely no power to prevent a revised charter from being considered by Detroit voters. This fact was made very clear in the Governor’s April 30, 2021 letter to the Commission."

"Although the Governor has previously objected to the revised charter, she has clearly stated that it could still go on the August 3rd ballot despite her lack of approval," Weaver added. 

In April, Whitmer 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, voting no. 

Days later and after the ballot submission deadline, the Charter Revision Commission sent new revisions of its proposal to the governor for review, Kenny's ruling notes. 

Whitmer on Monday sent a letter to the charter commission saying she would not review the amendments to the proposal. 

"I have never reviewed a charter amendment or revision under these circumstances: where I disapproved a proposal and then received a request to review a new version after the deadline for submitting ballot wording," Whitmer wrote. 

Kenny in his Wednesday opinion noted that the charter commission has said it can continually redraft the proposal, past the May 11 deadline, a position that the judge called "untenable."

"No Michigan law authorizes such a power to a Charter Revision Commission," he wrote. "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 act of the clerk and election commission, he added, are ministerial and in absence of an approval from the governor the proposal cannot be placed on the ballot.

"The only appropriate remedy is for the Charter Commission revisions to be kept off the ballot," he said.