Emergency Manager Law — August 3, 2012 at 1:42 pm

BREAKING: Supreme Court orders elections board to certify Emergency Mgr law repeal petitions (Updated)


NOW we’re getting somewhere

This morning the Michigan Supreme Court issued an order directing the Board of State Canvassers to certify the nearly quarter million petition signatures to put repeal of the anti-democratic Emergency Manager Law on the November ballot.

The Michigan Supreme ruled today in a 4-3 opinion that the proposed repeal of the state’s emergency manager should be placed on the Nov. 6 ballot.

The opinion ends a long legal fight and is a victory for opponents of the law toughened by Gov. Rick Snyder and the GOP-controlled Legislature in 2011.

It means the law will be suspended until the election once the question is certified by the State Board of Canvassers.

That last line is the important bit about this and explains, in part, the desire on the part of opponents of the repeal to drag this decision out for as long as possible. It’s unclear to me if PA 4 is on hold NOW or if it must wait until the Board of State Canvassers meets again. What IS clear is they will wait until the last possible minute in order to keep the law in effect for as long as possible.

UPDATE: I just spoke with the Board of State Canvassers’ office and, so far, there is no scheduled meeting for the Board.

It’s also not at all certain that the voters in Michigan will actually vote to repeal the law. Polling suggests that there may not be support for its repeal and much will depend on how effective the forces aligned to do away with the disenfranchising law are at explaining their position and getting out the vote.

Still, this is an important step and one that I am frankly surprised at.

Now the real fight begins: to convince voters that Public Act 4 is NOT what democracy looks like.

UPDATE 2: You can read the Supreme Court decision HERE.

Here are some of the pertinent bits, written for the majority by Justice Mary Beth Kelly. The Court found that the petitions were compliant with the law in terms of size and the Citizens for Fiscal Responsibility had failed to prove that they were deficient.

[A] majority of this Court holds that plaintiff is entitled to a new writ of mandamus requiring the Board of State Canvassers to certify its petition as sufficient. Accordingly, a majority of this Court directs the Board of State Canvassers to certify plaintiff’s petition for the ballot and, pursuant to MCR 7.317(C)(3), we direct the Clerk of the Court to issue the judgment order forthwith. {…}

My review of intervenor’s evidence shows that intervenor failed to establish that plaintiff’s petition’s heading was not in 14-point type and otherwise failed to create a legitimate question of fact regarding the type size used. Plaintiff’s evidence established that its printer used a 14-point Calibri font, which the printer verified using Adobe software, and which intervenor simply failed to rebut. Because Microsoft defines font size to equal type size, plaintiff presented evidence establishing that it actually complied with the type-size requirement of MCL 168.482(2). There being no evidence to the contrary, I conclude that plaintiff actually complied with MCL 168.482(2).

However, they went a bit further and part of their decision may have profound effects going forward. They have overturned Bloomfield Charter Township v Oakland County Clerk, a 2002 Court of Appeals decision that established that “substantial compliance” with the petition law was sufficient. This, apparently, is no longer true:

This case requires that we determine whether to grant a writ of mandamus in favor of plaintiff, Stand Up For Democracy, to compel the Board of State Canvassers to certify plaintiff’s referendum petition for inclusion on the November 2012 ballot. Intervening Michigan Supreme Court defendant, Citizens for Fiscal Responsibility, challenged the certification of plaintiff’s referendum petition, alleging that it failed to comply with the type-size requirement of MCL 168.482(2) and that the doctrine of substantial compliance, whereby technical deficiencies are resolved in favor of certification, did not apply. The Court of Appeals agreed with both assertions, but concluded it was required to follow its decision in Bloomfield Charter Township v Oakland County Clerk and conclude that the petition substantially complied with the type-size requirement of MCL 168.482(2) and that certification was required. Consequently, the Court of Appeals directed the board to certify the petition.

However, because MCL 168.482(2) uses the mandatory term “shall” and does not, by its plain terms, permit certification of deficient petitions with regard to form or content, a majority of this Court holds that the doctrine of substantial compliance is inapplicable to referendum petitions submitted for certification. Therefore, we reverse the Court of Appeals’ judgment in this regard and we overrule Bloomfield Charter Twp.

Three justices of this Court further conclude that the type-size requirement of MCL 168.482(2) requires that the “type,” not the “letters,” of the petition heading measure 14 points. Because the Court of Appeals held that plaintiff failed to actually comply with the type-size requirement of MCL 168.482(2) given that the letters did not measure 14 points, we would also have reversed that portion of the Court of Appeals’ judgment. {…}

Bloomfield Charter Twp is overruled to the extent that it stands for the proposition that substantial compliance with mandatory petition requirements compels the preelection certification of a technically deficient petition. Clearly, Bloomfield Charter Twp’s reasoning is contrary to the plain language of MCL 168.482(2), which we have explained contains a mandatory 14-point-type requirement. A nonconforming referendum petition cannot be certified for inclusion on the ballot because that result is contrary to the Legislature’s intent that petitions strictly conform to the requirements of MCL 168.482. Simply because the Legislature has not included an explicit instruction that “a technically imperfect petition necessarily precludes an election regarding the matter therein addressed,” does not mean that the Legislature intended inclusion of deficient petitions as Bloomfield Charter Twp reasoned. Bloomfield Charter Twp inferred too much from the legislative silence and effectively ignored the mandatory language that the Legislature chose to use when stating the form and content requirements of MCL 168.482.

This, as I have said, is likely to have a major impact on these types of issues going forward and petitioners are going to have to be absolutely precise in their fonts and type sizes or risk having them thrown out on insignificant deficiencies unless the state legislature acts to change the law.

UPDATE 3: Responses are coming in from around the state:

The Reverend D. Alexander Bullock from Rainbow PUSH Detroit has issued the following statement:

We are ecstatic that the high court in Michigan upheld democracy on today. After months of collecting signatures and legal fights that were mere stall tactics, we are thrilled that the people’s right to decide has been protected in Michigan. In a season where voting rights are being trumped around the country, the Michigan Supreme Court has sent a resounding message to those in Michigan and around the country that justice is blind and should not be swayed by partisan politics. All the citizens wanted is the right to decide if emergency manager’s should be allowed to come into their cities and/or school districts and trump the rights of their duly elected officials. Today we celebrate a partial victory, but our full victory is in our vote. Now we will begin the work of voter education and mobilization.

John Philo, Legal Director, issued the following statement on behalf of the Sugar Law Center:

We are pleased that after all is said and done, the will of hundreds of thousands of citizens won out over political wrangling, and now the voters will have their say. Our hope is that democracy will win at the ballot box as well, and this anti-voter law will be struck down once and for all.

David Hecker, President of American Federation of Teachers – Michigan:

The Michigan Supreme Court has listened to reason and the hundreds of thousands of citizens who signed petitions calling for the repeal of PA4. Michigan voters know that the Legislature granted extreme powers to unelected Emergency Managers in this bill, and deserve the right to vote on this issue in November.