High court lets Appeals Court decide whether to toss Detroit charter plan from ballot

Sarah Rahal
The Detroit News
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Detroit — The Michigan Supreme Court is halting a Wayne County Circuit Court judge's order to remove a charter revision proposal from Detroit's primary ballot until the state Court of Appeals weighs in. 

The high court on Tuesday ordered the appeals court to expedite its consideration of an emergency challenge to Wayne County Circuit Court Chief Judge Timothy Kenny's decision to keep revisions of Detroit's charter off the Aug. 3 ballot.

Nicole Small, vice 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 order comes in response to a set of emergency appeals filed Thursday by Detroit's Charter Revision Commission. The commission challenged Kenny's ruling in the state Court of Appeals and Michigan Supreme Court in a bid to get the measure, called Proposal P, before voters. 

"The citizens of the city of Detroit wanted the charter commission to create and propose a revised charter," attorneys for the charter commission wrote in their Thursday filings. "The charter commission did just that, and to deny the citizens of Detroit the opportunity to vote on their revised charter would be a great injustice and, more to the point, contrary to the law."

The chair of the charter commission said Tuesday after the order was issued: “We are one step closer to giving Detroit voters the opportunity to play an active role in the inner-workings of the city where they resident and pay taxes," Carol Weaver said.

Kenny decertified the ballot proposal last Wednesday, noting Gov. Gretchen Whitmer has declined to approve the charter revisions drafted and that placing them before voters without her blessing would violate the Home Rule City Act.

The Home Rule 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 found.

Charter commissioners have noted Attorney General Dana Nessel’s office and the charter commission's legal counsel have taken the position that Whitmer’s approval isn't needed for Proposal P to go before voters. 

The charter commission's attorneys, in the appeals, were seeking action ahead of Tuesday in order for absentee voter ballots to be available by June 19.

Detroit Corporation Counsel Lawrence Garcia told Detroit council members during the panel's formal session on Tuesday that the high court's ruling means the city should operate in the meantime as if Kenny's ruling doesn't exist. 

The Supreme Court, Garcia said, indicated that they want the appeals court to take up the matter promptly, but  "the ballot could be printed with the question on it and the decision could be overturned while being on the (pre-printed) ballot. In that case, I don't know if that's ever happened before but it could happen here."

Kenny entered the order in response to two lawsuits filed last month against Detroit City Clerk Janice Winfrey seeking to prevent the Detroit Election Commission from printing ballots that include Proposal P. Winfrey could not be reached Tuesday for comment. 

"Late hour election cases often experience twists and turns, but we remain extremely confident that the Court of Appeals will uphold the thoughtful decision of Judge Kenny on the merits and will do so soon," said Mark Burton, an attorney for Honigman, who advocated against Detroit ballots being printed with Proposal P on behalf of the Rev. Horace Sheffield and several residents. 

The charter has faced criticism from the Duggan administration and Whitmer, who have warned that the costs of implementing the charter provisions would send the city back in to 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. 

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 Garcia voting no. 

Days later and after the ballot submission deadline, the charter commission sent revisions of its proposal to the governor for review, Kenny's Wednesday ruling noted. Whitmer declined to review the amended charter plan.

Attorneys for the charter commission contend the Circuit Court incorrectly interpreted the act. The appeal also stressed Detroit voters impaneled the commission in 2018 to address quality-of-life issues.

"This is the citizens' last chance due to the Charter Revision Commissions' expiring term," the attorneys wrote. 

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