Michigan Supreme Court Suspends Decertification of Proposal P, Allowing Detroit Charter Question on August Ballot

The Michigan Supreme Court is ordering the Court of Appeals to rush a hearing on the validity of Detroit’s Proposal P, allowing the charter ballot question to be printed for the August primary by suspending a decision by the Wayne County Circuit Court.

The Detroit Charter Revision Commission filed dual emergency appeals last week, seeking to reverse Wayne County Circuit Judge Timothy Kenny’s decision to decertify the charter revision question. The Court of Appeals denied the group’s stay last week, but the state Supreme Court’s order will supersede that decision, requiring the appellate courts to hear the case. The Supreme Court is denying the Charter Revision Commission’s attempt to bypass the lower courts.

“It would appear that the Supreme Court’s ruling is a bit unprecedented. The Supreme Court understood the constitutional significance of this case.” –Lamont Satchel, attorney for the Detroit Charter Revision Commission

“The motion to expedite, motions for immediate consideration, and the motion for stay are GRANTED. The May 26, 2021 order and opinion of the Wayne Circuit Court granting mandamus is stayed,” the Court wrote in its order.

Justices approved the order 6-1, with Justice David Viviano concurring in part and dissenting in part.

“I concur in the majority’s decision to deny the application for leave to appeal prior to decision by the Court of Appeals, but dissent from its decision to grant the motion for stay,” Viviano wrote. “In light of this Court’s decision to deny the application, I would not grant the motion for stay and would instead leave the decision of whether to enter a stay to be resolved by the Court of Appeals in conjunction with the pending claim of appeal.”

The suspension of Kenny’s decision would allow for the Detroit election department to print Proposal P on the August ballot until a final judgment is rendered. 

“It Sounds Like It’s On”

“It sounds like it’s on,” said Detroit City Clerk Janice Winfrey, as she waits to confirm the order with the city’s law department. The clerk says her office has until June 4 to finalize the August primary ballots.

The legal team representing the Detroit Charter Revision Commission is preparing to go before the Court of Appeals, which is expected to deliver a judgment by June 3.

“It would appear that the Supreme Court’s ruling is a bit unprecedented,” said Lamont Satchel, attorney for the Detroit Charter Revision Commission. “The Supreme Court understood the constitutional significance of this case.”

Satchel and charter revision commissioners have pointed to statements by the Michigan Attorney General’s office, which support their argument that Gov. Gretchen Whitmer’s approval of the charter is not required to proceed with the vote. Whitmer rejected a version of the charter in April, citing “legal deficiencies” amid financial concerns.

“We hope that governor and attorney general will stand by their opinion that her approval is not necessary for Detroiters to vote on their charter,” Satchel said. 

“We would hope that the attorney general would intervene on our behalf,” he added.

Scholars Support Putting Question Before Voters

A group of legal scholars from Wayne State University is writing in support of putting the charter question forward to voters. The group includes John Mogk, Chair of the Levin Center at Wayne Law Faculty Committee, and Peter Hammer, Director of the Damon J. Keith Center for Civil Rights. Along with professors Khaled Beydoun and Justin Long, the group argues that the Michigan Constitution positions statutes “in favor of the voters” and the previous judgments on the charter lawsuit “stifles the voices of the Detroit electorate as well as the constitutionally protected political process.”

“The people of Detroit have faced many attempts — some successful, like the state takeovers of the city finances and city schools — to inhibit their democratic control of those who govern them,” the group wrote in an amicus brief filed with the Court of Appeals. “In this case, the Governor’s failure to approve the proposed charter should be treated as the political act it clearly was intended to be, not as a democracy-blocking veto. The voters of Detroit are constitutionally and statutorily the only proper authority to decide whether to accept the proposed charter or reject it.”

City of Detroit/Flickr

Mayor Mike Duggan and others in his administration have stood against the charter effort. Corporation Counsel Lawrence Garcia voted against Proposal P’s placement on the ballot as a member of the Detroit election commission. The city attorney contends that the effort was nullified by Whitmer’s rejection of the document, an argument also used by plaintiffs in the current litigation.

While city officials have distanced themselves from the lawsuit proceedings brought on by Detroit residents represented by Honigman and Dykema law firms, Garcia’s role in the case is multifaceted. 

As Detroit’s top lawyer, Garcia directs the defense of public officials, including the city clerk. Winfrey is receiving outside counsel from the Perkins Law Group. 

Garcia has also provided insight on Detroit’s election processes to both sides of the courtroom. Garcia offered his views of when the August primary ballots would be printed in a May 21 email directed to a Third Circuit County Court law clerk and attorneys for both plaintiffs and the defense.

“You, and perhaps the Court, should know that yesterday, the Director of the Detroit Election Commission, Gina Avery-Walker, informed me that the ballot will need to be sent to the printer on or before June 1. Previously, I had been told it would be June 4,” Garcia wrote in the email.

Garcia has since backtracked on the previous timeline he provided the lower courts.

“The Detroit city clerk received today’s Michigan Supreme Court order in time to adjust the ballots as directed by the court,” Garcia said in a statement.