Mich Court of Appeals rules in favor of zombies, allows PA 72 to be resurrected


This is why we need to be thinking about the 2014 midterm election

Back in August, I wrote about how the repeal of Public Act 4 — Michigan’s anti-democratic Emergency Manager Law — would, by law, leave Michigan without any law creating Emergency Managers or Emergency Financial Managers. I showed pretty clearly how the law prevents PA 72, the predecessor to PA 4, from coming back.

This week, the Michigan Court of Appeals chose to completely disregard the Michigan constitution and, in essence, allow the resurrection of Zombie Law PA 72 anyway.

The state Court of Appeals ruled Friday that Detroit Public Schools Emergency Financial Manager Roy Roberts lawfully holds office because he was appointed under Public Act 72, the state’s weaker emergency manager law.

In a one-page opinion, presiding Judge Kirsten Frank Kelly wrote that no part of Public Act 4 remains in effect as the result of the Nov. 6 election, and the section of P.A. 4 repealing P.A. 72 — Michigan’s prior emergency manager law — did not survive the referendum and has no effect.

“Roberts was appointed under P.A. 72 after P.A. 4 was suspended and lawfully holds office,” Kelly wrote for the court.

Here’s the problem with this continued pretzel logic being used by conservatives to get what they want: the law is VERY clear about what happens to statutes repealed by new laws that are struck down. Section 8.4 of the Michigan Compiled Laws which says:

Revised Statutes of 1846 (EXCERPT)

8.4 Effect of repeal of repealing statute.

Sec. 4.

Whenever a statute, or any part thereof shall be repealed by a subsequent statute, such statute, or any part thereof, so repealed, shall not be revived by the repeal of such subsequent repealing statute.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

You don’t need to be a lawyer, much less an Appeals Court judge, to understand that. But that is exactly what Judge Kelly did. She seems to parse the words “repeal” and “suspend” in such a way that the latter allows PA 72 to come back to life while the former blows it to pieces with a double-barreled shotgun (because anyone who has seen Day of the Living Dead knows that’s the only way to kill a zombie.)

I even created this handy flowchart to help these people to understand the situation. The “Bill” mentioned in the flowchart is uber-conservative Michigan Attorney General Bill Schuette who first made the ruling that PA 72 — the Zombie Law — would rise from the dead with the repeal of PA 4:

It’s pretty astonishing that an Appeals Court justice is so flagrantly disregarding the law. I can only hope the Supreme Court isn’t so cavalier.

[CC zombie image credit: Michael-Chapman.com]

  • John

    MCL 8.4 is not applicable here. MCL 8.4 applies when the
    Legislature repeals laws.

    Please read the key sentence of Article II, Section 9 of the
    Michigan Constitution – “No law as to which the power of referendum properly
    has been invoked shall be effective thereafter unless approved by a majority of
    the electors voting thereon at the next general election.”

    The voters did not “repeal” 2011 PA 4. The voters did not
    approve it. It was as if the millions of voters stood in the shoes of the 110
    Representatives and 38 Senators, and voted on HB 4214.

    Please see the situation as in this manner: PA 72 exists and
    continues to exist for the many years since it was enacted. Then HB 4214 is
    presented to the voters (HB 4214 establishes powerful Emergency Managers AND
    repeals PA 72, eliminating weaker Emergency Financial Managers. The voters do
    not approve of HB 4214. Therefore, PA 72 remains BECAUSE IT WAS NEVER REPEALED IN THE FIRST PLACE.

    The key sentence of Article II, Section 9 “suspended”
    enforcement of 2011 PA 4. In the period between certification of the petitions
    for the November Election and the certification of the November Election
    results, it was as if 2011 PA 4 was never enacted in the first place. If 2011
    PA 4 was never enacted, PA 72 was never repealed – it was a section of PA 4
    that repealed PA 72.

    • Daniel

      “8.4 applies when the legislature appeals laws.”

      OK, assume that’s true. Then the author of this page simply used the wrong argument. But the point still stands, because of a different argument. When the LEGISLATURE passed PA 4, the LEGISLATURE repealed PA 72. Once PA 72 is repealed, by any means, it can NEVER NEVER come back, unless an exact copy is RE-PASSED in the future. That has not since happened.

      The “did not repeal” and “did not approve” dichotomy is a semantic argument, that has the same end result.

      You’re acting like “Well, It was as if the Legislature HAD NEVER PASSED PA 4, and the PEOPLE were deciding whether it passes or doesn’t pass. It didn’t pass. And because it didn’t pass, it can’t repeal PA 72.” No, the people don’t ERASE the previous actions of the Legislature. No one employs a time machine here. They either APPROVE or DISAPPROVE those actions already taken. 1) PA 72 is dead. 2) People disapprove the bill that caused #1 to happen. 3) That doesn’t automatically negate #1. It conditionally negates #1. It simply says “OK, whatever #1 did, is undone.” If its possible to un-do it. But wait, you can’t UN-REPEAL a law. You have to RE-PASS it. Repeal Road is a one-way street. If #1 above was say “Raises taxes from 5% to 7%” then yeah, you could now lower taxes to 5%. Because that’s not a repeal, thats an EDIT that keeps the previous law intact.

      ““suspended” enforcement of 2011 PA 4”

      Yes, suspended enforcement. That’s the Executive Branch. Like Obama has suspended enforcement of the Defense of Marriage Act. Its still on the books for now, he just won’t enforce it. Mitt Romney, if elected, could have made a simple decision to re-enforce it. No legislative act necessary. This doesn’t revive PA 72. PA 72 was eulogized, and is long gone. There has not been ANY EM law in Michigan since PA 4 was suspended. The vote a few weeks ago would have changed that, if it went the other way.