Opinion and Order
In an opinion and order issued this afternoon, Chief Judge Timothy M. Kenney of the Third Judicial Circuit of Michigan, Civil Division, granted a petition for mandamus
by plaintiffs in two lawsuits
seeking to block a proposed Detroit charter revision from being brought before voters during an Aug. 3 election. Judge Kenney ordered the Detroit city clerk and the Detroit Election Commission, or DEC, to remove the charter question, known as Proposal P, from the ballot.
In finding that the plaintiffs’ burden of proof for mandamus
has been met, the court determined that the Home Rule City Act, or HRCA, requires the revision of a city charter to have the approval of the governor before it can go on the ballot. Judge Kenney also ruled that in light of the court granting mandamus
, there is no need for the court to rule on the plaintiffs’ motion for injunctive relief or the defendant's motion for summary disposition. To read more of our Americas Municipals' coverage of the petition for mandamus filing as well as our coverage of other timely, objective and actionable intelligence covering higher yielding and liquid municipal issuers request a trial here.
The ruling comes after hearings on Friday, May 21
, and Monday, May 25
, on the matter during which Judge Kenney anticipated that his decision would likely be appealed. The two lawsuits were filed on behalf of four Detroit residents and named Detroit City Clerk Janice Winfrey and the DEC as defendants. Both the state of Michigan’s Detroit Financial Review Commission, or FRC, and the administration of Detroit Mayor Mike Duggan have raised concerns
about the fiscal impact of the revised charter.
Judge Kenney underlined that his opinion and order does not consider the political and policy issues arising from Proposal P but focused on the "fundamental question" regarding whether it should be placed on the ballot. The opinion states that the court considered the plaintiffs’ request for mandamus
and injunctive relief as well as the defendants' motion for summary disposition relative to the placement of Proposal P on the ballot.
The opinion characterizes as “unconvincing” the defendants’ claim that the governor's failure to approve a charter revision is not essential to Proposal P being placed on the ballot. Contending that a governor's approval is not necessary makes the HRCA provision requiring the submission of the draft to the governor "an empty and useless gesture," the opinion states.
The court likewise finds "untenable" the defendants’ position that the Detroit Charter Revision Commission, or DCRC, can “continually redraft” the content of the revised charter beyond the May 11 filing deadline for the ballot question. Under that theory, absentee voters could vote on a different version of the proposed charter revision than voters voting on the day of the election. "No Michigan law authorizes such power to a Charter Revision Commission," the opinion states.
The opinion ultimately finds that the DCRC has sought to place on the ballot a proposal that has not received the approval of Michigan Gov. Gretchen Whitmer and therefore cannot be submitted to voters in the Aug. 3 election. Further, the time to submit issues for ballot consideration for the Aug. 3 election has passed and any revisions now submitted would be deemed late and could not be certified by the city clerk or DEC, according to the order. In granting the petition for mandamus
, Judge Kenney also finds that the only legal remedy available to plaintiffs is for the DCRC revisions to be kept off the ballot.
Judge Kenney’s opinion comes after Whitmer informed DCRC Chairwoman Carol Weaver in a May 24 letter
that she would not review additional amendments to its charter revision proposal. In the letter, Whitmer noted that the new version of the charter was delivered after her April 30 disapproval of the original proposed charter revision and the May 11 deadline to submit ballot language to the Detroit city clerk. "I decline to conduct further review because of the legal questions doing so at this time could raise and because of the practical difficulties that could follow," the governor said.
Whitmer also said her decision was consistent with her past practice. "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," the letter states.
The governor also told Weaver that her April 30 letter disapproving of the original charter revision proposal complies with the mandate of the HRCA, which calls on the governor either to approve and sign the revised charter or to return it with objections. "The conclusion I reached in my April 30, 2021 letter stands. As to the legal effect of that decision on whether the City of Detroit Proposed 2021 Revised Charter can appear on the ballot for the August 3, 2021 election, I have not taken a position," Whitmer’s letter concludes.