by Chris Savage

As I have written about before, the Emergency Manager (EM) law in Michigan, now known as Public Act 4 of 2011 (or, more formally the “Local Government and School District Fiscal Accountability Act”), gave sweeping new powers to EMs (formerly known as Emergency Financial Managers or EFMs), powers not envisioned or considered when the law was first passed during the James Blanchard administration. To give you an idea of bad things have gotten in Benton Harbor where EM Joe Harris essentially dismissed the City Commission, consider a recent order he passed. This order, Order 11-21, is titled “Appearance by City Officials, Employees or Agents at Meetings; Keeping of Minutes by City Clerk.” Part of it says the following:

2. Keeping of Minutes by City Clerk. Pursuant to Sections 17(1) and 19(1)(ee) of Public Act 4, the Emergency Manager hereby directs and orders that the City Clerk shall specifically state in any minutes taken at a meeting of the City Commission, to be placed in the minutes immediately before any ordinance or resolution adopted, amended, enforced or modified, any other action taken or decision made by the City Commission, the following statement:

“THE FOLLOWING ACTION TAKEN OR DECISION MADE BY THE CITY COMMISSION WAS NOT AUTHORIZED BY T}M EMERGENCY MANAGER AND IS NULL AND VOID, AND OF NO FORCE OR EFFECT.”

This action is little more than a thumb in the eye of the City Commissioners who were elected by Benton Harbor citizens and then dismissed by Harris. Just another way to rub in the fact that he has stripped away all of their powers except to “call a meeting to order, approve meeting minutes, and adjourn a meeting.”

The group Michigan Forward has begun to fight back against P.A. 4, a law that has become known as The Financial Martial Law Act. Michigan Forward is a Detroit-based non-profit think tank founded by 28-year-old Brandon Jessup (pictured left), a Detroit native. Jessup said in a 2010 interview, “For years political wrangling has dampened the collective voice of Michigan’s cities, and increasing number of underrepresented citizens in Michigan’s urban centers. Michigan Forward is a non-profit think tank I founded to research, educate and empower cities like Detroit and residents on public policy and how it effects them.”

This past weekend, Michigan Forward kicked off a petition drive to put the repeal of P.A. 4 on the 2012 ballot. Unlike the effort to recall governor Rick Snyder which requires over 800,000 petition signatures, this effort requires just a bit over 161,000 valid signatures. Another important point is this: once they have obtained the necessary number of valid signatures, the law becomes void until the vote is held. Finally, signature collectors have six months to obtain the signatures. For these reasons, it is becoming increasingly clear that the Financial Martial Law Act is about to become null and void, and will very likely go down in flames in 2012 when it goes on the ballot.

However, Michigan Forward’s effort to derail P.A. 4 is soon to be joined by another.

Today, the Sugar Law Center for Economic and Social Justice, in conjunction with the Center for Constitutional Rights, filed a lawsuit in Ingham County Circuit Court challenging the constitutionality of P.A. 4. 28 citizens of Michigan are the plaintiffs, including Ann Arbor resident Michael Merriweather (pictured right). When asked why he joined the suit, Merriweather said, “There is not an Emergency Manager in Ann Arbor, the community where I live. Some people might wonder why I care, but when I turn on the television and see local governments in Benton Harbor or Detroit being dismissed, assets and services taken over and sold off, by an unelected, unaccountable, bureaucrat, it is impossible for me not to feel outraged.”

Another of the plaintiffs is Sister Suzanne Sattler, IHM, a Catholic nun who is an attorney. When asked why she had joined the suit as a plaintiff, Sister Suzanne said, “My interest in this lawsuit stems in part from my experiences as a high school teacher of United States history and as an attorney.” She added, “How can we call ourselves a democracy  when a state’s legislators can pass a law that in effect nullifies the voters’ decisions? How do we teach children of the importance of voting in a state when the choice of the majority of voters can be nullified?”

The defendants are Governor Rick Snyder and State Treasurer Andy Dillon. This lawsuit is being rolled out today at a series of press conferences in Lansing, Benton Harbor, Detroit, Grand Rapids, Pontiac and Jackson.

The complaint, which can be found here (pdf), alleges the following:

1. This lawsuit arises from violations of Plaintiffs’ constitutional rights under the Constitution of the State of Michigan of 1963.
2. The Local Government and School District Fiscal Accountability Act, Act No. 4, Public Acts of 2011, MCL §§ 141.1501 et. seq. (the Act) effectively establishes a new form of local government within the State of Michigan. The new form of government allows Michigan cities, villages, townships, and other forms of municipal corporations to be ruled by one unelected official and that this official’s orders, appointments, expenditures, and other decisions are not reviewable by local elected officials or local voters.
3. On its face and in practice, the Act violates the rights of local voters by delegating law-making power and the power to adopt local acts to unelected emergency managers, by suspending the rights of local electors to establish charters and to elect local officials, and by imposing substantial new costs and expenses upon local municipalities without providing new revenue.
4. The Act thereby violates Art. I, § 17, Art. I, § 23, Art. III, § 2, Art. IV, §§ 1 & 29, Art. VII, §§ 21, 22, & 34, and Art. IX, § 29 of the Michigan Constitution.

Some other highlights:

On its face and in practice, the Act flagrantly violates the Constitution of the State of Michigan by:

a) Delegating legislative powers without limiting standards to emergency managers;
b) Granting unelected emergency managers the power to enact local law without the constitutional restraints placed on state and local governments;
c) Usurping the vested rights of local electors to adopt and amend local charters which govern cities and villages within Michigan;
d) Suspending the rights of local electors to a republican form of government and to elect the officials of local government through democratic elections; and
e) Imposing substantial new costs upon local municipal corporations without providing offsets or additional revenue streams to affected communities.

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The provisions of the Local Government and School District Fiscal Accountability Act establish a form of local government that is repugnant to the constitutional liberties of Americans under settled law, as well as the rule of law itself. Under this new form of government, the people become subject to a form of governance where an unelected local official wields absolute power over all aspects of local government and whose decisions are without review by either local elected officials or local voters.

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The Act grants emergency managers greater power than the state legislature possesses regarding the adoption and repeal of local acts.

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The Act violates the exclusive constitutionally mandated rights of local electors to adopt and amend local charters. The Act violates such rights through provisions that seek to vest emergency managers with sole discretionary power to contravene local charter provisions.

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The Act usurps the constitutionally mandated rights of local electors to a republican form of government and to choose the officials of local government by democratic elections. The Act usurps such rights through provisions that seek to vest emergency managers with sole discretionary power and exclusive authority to act for, and in the place of, local government.

The complaint goes on to state five explicit ways in which the Financial Martial Law Act violates the Michigan Constitution. Unlike most lawsuits I have read, this one is fairly easy to read and follow and is eminently interesting. It lays out its case in (mostly) plain language—methodically and compellingly.

After Joe Harris took the audacious step of relegating Benton Harbor’s elected officials to being nothing more than stenographers, prominent politicians and political leaders such as Congressman Fred Durhal, Jr., Lansing Mayor Virg Bernero, Benton Harbor Mayor Wilce Cook stepped up to call the law unconstitutional.

In an April 25, 2011 post, A2Politico reported that U.S. Representative John Conyers, gave an interview on the “7 Days” show in which he alleges that Snyder’s EFM law violates various aspects of the U.S. Constitution’s 14th Amendment, and told the interviewer that he has been working with the NAACP, ACLU and is planning to take the question “directly,” said Conyers, “to the U.S. Attorney General, Eric Holder,” to investigate whether the law can be voided with a court challenge. Conyers said that he intended to speak directly to President Obama on May 2, 2011 about the EFM law.

Conyers told the interviewer on April 22nd: “Not too long ago, when there were certain people and one certain newspaper in particular that said, ‘Why criticize Rick Snyder? He is different. Why not give him a chance?’ And now, we’ve given Rick Snyder a chance. He’s showed us exactly who he is.”

When A2Politico contacted Representative Conyers’s office about whether the Congressman had, indeed, met with President Obama and Attorney General Holder regarding the constitutionality of Michigan’s emergency manager law, his spokesperson, Nicole Triplett, said she had no recollection of Conyers’s appearance on the “7 Days” show.

When I asked the Executive Director of the Sugar Law Center, Tova Perlmutter, why her group had taken this step when Michigan Forward was already moving forward with its referendum, she replied, “In social change movements, all viable strategies have to be pursued in tandem, and they compliment and inform each other. So the hope is that the litigation will help to educate Michigan voters about the blatant unconstitutionality of the emergency manager law, which will then hopefully help the repeal effort.”

Additionally, I would suggest the two-pronged approach has two other important benefits. First, the referendum, if successful, will be over in six months or less. If they are successful, the law comes to an immediate halt. This is a far faster impact than a lawsuit is likely to have. On the other hand, a successful conclusion to the lawsuit will set a powerful precedent for the future, one sure to have a suitably chilling impact that will reduce the likelihood that such a huge overreach of governmental powers will ever happen again. The two approaches together help to ensure the eventual demise of the Financial Martial Law Act while helping to ensure that such a law doesn’t get passed again in the future.

If you are interested in learning more about Michigan Forward’s petition drive to put the Financial Martial Law Act on the 2012 ballot, you can attend an informational townhall this Saturday from 10:30 a.m. to 12:30 p.m. at the Ann Arbor Community Center at 625 N. Main Street. I will be speaking along with representatives from Michigan Forward and other groups. For more information, visit their Facebook page.

For more of Chris Savage’s writing, visit Eclectablog.com.