With the approval of the PA 4 repeal ballot initiative imminent, the predictable (and predicted) fight over what happens next is fully underway.
Using a truly astonishing act of mental gymnastics and pretzel logic, Republicans, aided and abetted by Attorney General Bill Schuette, are convinced that we will simply revert to the original statute, Public Act 72. Though this law gave Emergency Financial Managers much less abusive authority than the Emergency Managers under Public Act 4, those municipalities and school districts currently under the thumb of a local dictator beg to differ with this view of things. Why?
Because of this — Section 8.4 of the Michigan Compiled Laws which says:
Revised Statutes of 1846 (EXCERPT)
CHAPTER 1. OF THE STATUTES.
8.4 Effect of repeal of repealing statute.
Whenever a statute, or any part thereof shall be repealed by a subsequent statute, such statute, or any part thereof, so repealed, shall not be revived by the repeal of such subsequent repealing statute.
History: R.S. 1846, Ch. 1 ;– CL 1857, 3 ;– CL 1871, 3 ;– How. 3 ;– CL 1897, 51 ;– CL 1915, 65 ;– CL 1929, 77 ;– CL 1948, 8.4
Seems pretty straightforward. Even Michigan Supreme Court Chief Justice Robert P. Young, Jr. brought it up during the hearing regarding the repeal petitions. Here’s the conversation he had with Citizens for Fiscal Responsibility attorney John Pirich:
Justice Young: There’s one issue that is receded importance, perhaps it isn’t important at all, but one of the assigned claims of deficiency is that the petitions didn’t indicate the effect on the prior law of the emergency manager. It is asserted that the effect of the referendum will cause the prior law to spring into effect. Are you familiar with MCL 8.4?
John Pirich: I am.
Justice Young: And, do you have a position?
John Pirich: I read the Attorney General’s position that said that if this law were suspended that the prior law would go into effect and we provided a copy of that document in the record.
Justice Young: I’m asking about the statute.
John Pirich: Yes, I understand what the statute says, yes.
Justice Young: The statute says, “Whenever a statute, or any part thereof shall be repealed by a subsequent statute, such statute, or any part thereof, so repealed, shall not be revived by the repeal of such subsequent repealing statute.”
John Pirich: And I think it’s a question that does not face this court as to if that would occur in a case like this where you suspend an act does that, in fact, regenerate or reenact (inaudible).
Justice Young: Well, we’re not even dealing with a repeal. If this measure goes on the ballot, it merely suspends the emergency manager law, not repeal it.
John Pirich: That is correct.
Justice Young: OK. So what’s the theory then of reviving a still . . . The law isn’t dead. The emergency manager isn’t dead until the people choose to take it out. So, how does the effect of the repeal created by the EM emergency manager law affect the repealed prior law?
John Pirich: Well, if the law is enacted and repeals the prior law, but then the law is no longer effective, it’s our contention…
Justice Young: It’s suspended, it is not eliminated.
John Pirich: It’s suspended, it’s not eliminated, but then do we have nothing? I mean, we had a prior emergency manager law going back to 1990. It’s been effective in emergency manage . . .
Justice Young: It’s been repealed.
John Pirich: Well, if it’s been repealed then I guess we have a real question about the authority and that’s an issue . . .
Justice Young: I’m asking you to address that issue. I understand it’s still repealed but albeit by a law that might be suspended.
John Pirich: And, based upon the Attorney General’s interpretation, then the prior act would be re‐effective or reenacted based upon that. That’s part of the document . . .
Justice Young: And the logic of that is what?
John Pirich: That if the law that repealed it is no longer in effect, then the repeal of the law isn’t effective.
Justice Young: Really?
John Pirich: Yeah.
Justice Young: Thank you.
You can watch video of the exchange HERE. It starts around the 90:50 mark and lasts about three minutes.
However, AG Schuette is convinced that PA 72 is the law of the land until the repeal is voted on. Here is what he said in an opinion requested by Treasurer Andy Dillon (pdf) and, I’ll warn you, the twisted logic he uses is pretty painful:
In enacting Public Act 4, the Legislature repealed all of the statutory provisions of Public Act 72, MCL 141.1201 et seq. And by operation of art 2, § 9, the repeal of Public Act 72 has been rendered ineffective unless approved by the electors at the next election because the power of the referendum has been properly invoked. Thus, in the absence of law to the contrary, the electors’ decision to eliminate the repeal reinstates Public Act 72.
Michigan’s anti-revival statute, which creates an exception to the revival doctrine, addresses the repeal of a statute by a subsequent statute, not the nullification of a statute by a referendum. MCL 8.4 provides: “Whenever a statute, or any part thereof shall be repealed by a subsequent statute, such statute, or any part thereof, so repealed, shall not be revived by the repeal of such subsequent repealing statute.” (Emphasis added.) When a term is not defined in the statute, with certain exceptions for technical terms, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. MCL 8.3a; Robertson v DaimlerChrysler Corp, 465 Mich 732, 748; 641 NW2d 567 (2002). Giving the word “repeal” its ordinary meaning and in context with MCL 8.4, which concerns legislative action, it means “to revoke or annul (a law, tax, duty, etc) by express legislative enactment.” The American College Dictionary (1961) (emphasis added). The disapproval of an act by referendum does not constitute a “legislative enactment” but rather the “disapproval” of a prior legislative enactment. Accordingly, MCL 8.4, on its face, does not apply to a referendum.
So, according to Bill Schuette, PA 4 won’t be repealed until the voters repeal it, it’s merely suspended. Therefore, according to him MCL 8.4 doesn’t even come into play.
However, as Justice Young points out, PA 72 doesn’t exist anymore. It’s gone. It has already been repealed. It’s dead, Jim. You can’t revive it, particularly by a law that, as Schuette himself contends, is simply suspended.
In other words, Bill Schuette wants to create a Zombie Law that rises from the dead to walk the earth again. And his justification is that he can resurrect the zombie because the law that killed it is still on the books. But if the law is still on the books, then PA 72 is still dead!
The pretzel logic and mental gymnastics required to follow the reasoning behind Schuette’s opinion is off the charts. I’m sure this will end up in the hands of the Supreme Court once again. In the meantime, Governor Snyder, Treasurer Dillon and all of the Emergency Managers will continue on as if nothing has happened because, in their lofty view of the state of Michigan, they can do whatever the hell they want because there is almost nobody in a position of power to stop them.
[NOTE: Special tip of the Eclectahat to my dear friend Rochelle Noel who did the vast majority of the research for this piece.]
[CC zombie image credit: Michael-Chapman.com]