High court to decide fate of Detroit charter revision plan

Lawyers argued Wednesday about whether Detroiters should be able to vote next month on wide-ranging revisions to their city charter regardless of Gov. Gretchen Whitmer's opinion on the matter in  a hearing before the Michigan Supreme Court. 

Under lower court rulings so far, judges have found "the power and authority lies with the governor and the governor alone," who rejected the plan on April 30, said Aaron Phelps, a lawyer for the Detroit Charter Revision Commission and Detroit City Clerk Janice Winfrey. 

But, Phelps argued, the 1909 Home Rule City Act includes numerous provisions giving the power over charter revisions to the locals. 

"Nothing in the act requires the governor’s signature before the revision may be submitted for election," Phelps said, arguing that amendments, not revisions, must be submitted to the governor.

Where there are inconsistencies in state statute about the process, the 1963 state constitution requires those questions to be "liberally construed in favor of the city," he  said. 

"We don’t construe it in favor of the governor and give her a right that is not set forth expressly in the statute and which would be totally inconsistent with the theory of home rule," Phelps said. 

The Michigan Supreme Court took the case under advisement at the end of the roughly 30-minute hearing.

The hearing came after the state Court of Appeals affirmed a Wayne County Circuit Court order to remove the charter revision plan, Proposal P, from the Aug. 3 ballot, in part because the initiative did not receive Gov. Gretchen Whitmer's approval. The city has continued printing ballots with the proposal on it while the case is awaiting a decision from the high court. 

The initiative the Detroit Charter Revision Commission crafted seeks permanent charter changes — including ones related to expanded access to public transit and broadband internet, water affordability and increased transparency and policing reforms — after three years of review and drafting by the nine-member commission.

Justice David Viviano on Wednesday questioned whether Phelps' arguments  were inconsistent with the way the commission acted in submitting the proposal to the governor. 

"Your client apparently followed what appears to be the routine that the people have followed for the last 100 years, which is they submit revisions to the governor to receive the governor's input well in advance of the election," Viviano said. 

Jason Hanselman, an attorney for two of the plaintiffs challenging the proposal, echoed Viviano's comments and argued the "plain language" in state law requires the revisions be submitted to the governor for either approval or the return of the proposal.

"The charter commission's actions that we've just heard show that it agreed that those are the only two paths," Hanselman said.  Early confusion about a missed deadline and differing versions of the proposed charter show the need for the governor's involvement to protect voters, he added.

Justice Richard Bernstein questioned the effect of the governor's involvement and whether her intervention was necessary prior to the proposal hitting the ballot box.

"Why shouldn’t the default be to allow for people to have the opportunity and the right to vote?" Bernstein asked. "…If I’m not happy with what the (Detroit Charter Review Commission) did, I can vote accordingly, right?”

Whitmer and Detroit Mayor Mike Duggan have warned the costs of adopting the charter provisions would put the city into bankruptcy again and prompt active oversight by the Financial Review Commission. 

Detroit's top financial officials initially estimated the revisions would cost $3.4 billion over four years, and the forecasted cost was lowered to $2 billion after charter commissioners changed the plan. Michigan Chief Financial Officer Jay Rising's office has said if the revised charter is approved in August, as drafted, the city's four-year financial plan will no longer be balanced.

The plan was developed in part by the Detroiters' Bill of Rights Coalition. The group, featuring environmental, immigrant and disability advocates, along with housing, water and transit experts, seeks to embed "fundamental human and civil rights" in the charter. 

eleblanc@detroitnews.com

Staff writer Mark Hicks contributed.