High court order allows Detroit charter plan to appear on Aug. 3 ballot

Beth LeBlanc Sarah Rahal
The Detroit News

The Michigan Supreme Court on Thursday ordered a proposed revision to Detroit's city charter to appear on the Aug. 3 ballot, overturning the decisions of lower courts on the matter. 

The decision, which remanded the case back to Wayne County Circuit Court, comes as lawyers argued whether Gov. Gretchen Whitmer's silence on the amendment meant it could not proceed to the ballot. Usually, a charter amendment proceeds to the ballot after earning approval from the governor and is rejected for the ballot if the governor vetoes it.

Hayg Oshagan, Wayne State University professor, speaks during a press conference held by The Detroit Charter Revision Commission and community members in front of Coleman A. Young Municipal Center in Detroit, Michigan on Wednesday, April 28, 2021.

But when the governor declined to sign Proposal P for either approval or veto, Detroit Clerk Janice Winfrey certified it for Detroit's primary, prompting a suit from opponents who argued silence was essentially a veto. 

Justices ruled in a 4-3 order Thursday that the law governing charter amendments must be read against the backdrop of state constitutional language vesting locals with control over city charters — a provision of home rule control. 

"When read together these constitutional provisions lead us to conclude that, in the face of the statute's silence as to the effect of the governor's objection to a proposed charter revision, we cannot interpret such silence as requiring gubernatorial approval before a charter revision is submitted to the electors or as granting the governor a veto power that cannot be overridden," the decision said. 

The initiative the Detroit Charter Revision Commission crafted seeks permanent charter changes — including ones related to expanded access to public transit and broadband internet, water affordability and increased transparency and policing reforms — after three years of review and drafting by the nine-member commission. The city continued printing ballots with the proposal on it while the case awaited a decision from the high court. 

Justice Elizabeth Welch in a statement concurring with the majority said the language governing charter amendments and revisions does not give the governor "such unfettered power to prevent the electorate of a city from every having an opportunity to vote on a proposed change to their city's charter.

"Such an interpretation would allow an individual to effectively disenfranchise the political voice and the vote of large portions of the Michigan electorate on matters of local concern, over which the state constitution guarantees them a right to be heard," Welch wrote in a statement joined by Justice Richard Bernstein.

Republican-nominated justices David Viviano, Elizabeth Clement and Brian Zahra dissented from the majority, arguing a full review of applicable laws indicates a charter change cannot go to voters without the governor's signature. 

"...the clear implication of the statute's text, when read in its historical context is that the governor's veto power concerning charters proposed by a charter commission is absolute," Viviano wrote in a statement joined by Zahra. 

Clement in a separate statement, also joined by Zahra, agreed with Viviano and took further issue with the majority's constitutional arguments. 

Whitmer and Detroit Mayor Mike Duggan have warned the costs of adopting the charter provisions would put the city into bankruptcy again and prompt active oversight by the Financial Review Commission. 

Duggan declined to comment Thursday following the ruling through his spokesman John Roach. 

Rev. Horace Sheffield, who initially filed the suit against Proposal P, said they will continue to challenge the proposal one voter at a time.

"We're going ahead with our game plan to win the referendum by vote," Sheffield told The News. "We're not even sure which charter proposal is on the ballot after the back and forth of the revisions and we challenged the clarity of that process.

"The only surprise that I've had is that it's taken (the Supreme Court) so long to do their job," Sheffield added.

City financial officials initially estimated the revisions would cost $3.4 billion over four years, and the forecasted cost was lowered to $2 billion after charter commissioners changed the plan.

Detroit's Chief Financial Officer Jay Rising's office has said if the revised charter is approved in August, as drafted, the city's four-year financial plan will no longer be balanced.

Charter Commissioner Denzel McCampbell, who is running for city clerk, said last month that the charter group members commissioned their own cost analysis of the plan, pegging the financial impact closer to $7 million per year, he contends.

Lamont Satchel, general counsel for the Detroit Charter Commission, has countered the city's financial impact assessment of the charter. On Thursday, he praised the high court for its ruling. 

"The Charter Commission is pleased with the Supreme Court's decision to allow Detroiters to vote on their charter and the citizens of Detroit and cities throughout the state should be relieved that their constitutional right to amend their charter as they see fit has been protected by the Supreme Court," he said in a statement.

District 6 Councilwoman Raquel Castañeda-López said Thursday that the order is a win for a grassroots coalition that has been working to get Proposal P to the ballot.

Castañeda-López said the group is happy that the high court "upheld the right of all residents of Michigan ... to govern themselves and decide what is in their charter whether the governor disagrees or not."

"Not to do so would have basically stripped Michiganders the right to vote on their charter," she added. 

The proposal was crafted in part by the Detroiters' Bill of Rights Coalition, a group of environmental, immigrant and disability advocates, along with housing, water and transit experts, seeks to embed "fundamental human and civil rights" in the charter.

"Prop P is really answering a question about equity in the city of Detroit," said Erada Oleita, the Michigan Environmental Justice Coalition Detroit Organizer. "What does basic human rights look like? It's the right to move, the right to have water, food, access to resources."

The group has said it considered 500 recommendations from 300 organizations in the city including the People’s Platform, Black Lives Matter Detroit, We the People and Detroit Action.

Several other groups have formed to advocate against the proposal.

The Committee to Protect Detroit's Future, an entity formed to oppose Proposal P, has raised more than $85,000, $75,000 of which was from DTE Energy and Blue Cross & Blue Shield of Michigan. Other contributors included the Mechanical Contractors Association of Detroit, The Allen Law Group and the Iconic-Anchor Bar LLC, according to financial statements. 

In a statement Thursday, the Coalition to Protect Detroit's Future, said: "The only people who will benefit from this decision on Proposal P are the lawyers that will litigate this for years to come Proposal P is a problem for people in Detroit."

A separate entity called Detroiters Protecting Our Future advertised against Proposal P using billboards, radio ads and direct mail, which Castañeda-López contends is all "dark money."

"It's ludicrous to say money has no influence," Castañeda-López said. "Today is a great step in the face of opposition that’s spreading misinformation."