State appeals court rules Detroit charter revisions should stay off ballot
Detroit — The Court of Appeals on Thursday affirmed a Wayne County Circuit Court judge's decision to remove a city charter revision proposal from Detroit's primary ballot.
The opinion comes after the Michigan Supreme Court on Tuesday ordered the appeals court to expedite an emergency challenge to Wayne County Circuit Court Chief Judge Timothy Kenny's ruling to keep revisions of Detroit's charter off the Aug. 3 ballot.
Detroit's Charter Revision Commission filed a set of emergency appeals last week in a bid to get the measure, called Proposal P, before voters.
Charter Commission Chair Carol Weaver argued in a Thursday statement after the appeals court order that Detroiters "should have the final say" on the plan at the ballot box.
Weaver added the commission is "extremely disappointed" and will seek to have its appeal heard by the high court.
Kenny decertified the ballot proposal May 26, noting Gov. Gretchen Whitmer 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 Court of Appeals agreed with Kenny's position that Proposal P was illegally placed on the ballot in violation of the act.
"The statute contains no provisions for overriding or ignoring the Governor’s veto where the voters approve a general, unspecified revision of a charter and subsequently select a commission to draft a new charter," the appeals court opinion reads.
"We agree with the trial court that defendants' interpretation would make submission of the draft revision to the Governor for approval an 'empty and useless gesture.'"
Judge Karen Fort Hood, in a dissenting opinion, wrote she believes the Detroit Charter Revision Commission has the authority to place Proposal P on the ballot and that voters have a right to consider it.
"These provisions clearly indicate that the authority of a city to revise or amend its charter may be constrained to some extent by statute, including statutes such as the Home Rule City Act,” Fort Hood wrote. "However, I do not read DCRC’s argument as suggesting otherwise; rather, DCRC argues that although a city’s authority may be constrained, the HRCA does not constrain it in the manner plaintiffs have suggested in this case. I agree with that position."
The charter commission's attorneys, in their appeals, sought quick action in the high court and appeals court in order for absentee voter ballots to be available by June 19.
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 Thursday for comment.
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, told The News Thursday his clients are very pleased.
"While they appreciate the hard work that goes into revising a city charter, that work needs to be done correctly and according to law, and in this case, it wasn’t," Burton said.
The proposal 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 in support. Detroit Corporation Counsel Lawrence Garcia voted no.
Days later and after the ballot submission deadline, the charter commission sent revisions of its plan back to the governor for further review, but she declined.
Attorneys for the charter commission have noted Detroit voters impaneled the commission in 2018 to address quality-of-life issues and the August election is the last chance for voters to act due to the expiring term of the Charter Revision Commission.
Detroit Branch NAACP President Rev. Dr. Wendell Anthony said Thursday the branch opposes any attempt to impede the right of the people to cast their vote.
"We believe that the people of Detroit should have the opportunity to vote on the proposed revisions or maintain the current status of the Detroit City Charter," he said.