- By Attorney CHARLES BROWN
The Michigan Constitution prohibits the amendment of a city’s charter unless the amendment is approved by the majority of Electors of that City ( Article VII Section 22 and Article IV Section 29 ( local acts by the Legislature). Whether an amendment of a Charter is initiated by initiative or referendum petitions , its City Council or the State Legislature, it cannot take legal effect without approval of the majority of the Electorate in a vote. Article IV Section 29 provides that a 2/3 vote of the Legislature may initiate the amendment of a city’s charter. However, that amendment is not effective if not approved by the majority of the Electorate of the city in question. The recently passed Emergency Manager ("Dictator") law purports to empower a Gubernatorially appointed Emergency Manager to assume and to exercise the charter derived powers of a city’s mayor and city council. However, if an Emergency Manager were to do so, the Legislature and Emergency Manager would amend the charter of the city in question. This act would also be a local law. Such an act of amending a city’s charter is not effective without a 2/3 vote of the Legislature and a vote of approval of a majority of the electorate of the city in question, for a charter amendment is a local act as provided for in Article IV Section 29 of the Michigan State Constitution. An Emergency Financial Manager may not , without violating the Constitution, take and exercise any of a city’s, including Detroit's, executive or legislative or any other charter powers without a vote of approval by a majority of a city’s Electors.
STATE CONSTITUTION (EXCERPT)
CONSTITUTION OF MICHIGAN OF 1963
"Article VII § 22 Charters, resolutions, ordinances; enumeration of powers.
Sec. 22.
Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section."
"Article IV § 29 Local or special acts.
Sec. 29.
The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by two-thirds of the members elected to and serving in each house and by a majority of the electors voting thereon in the district affected. Any act repealing local or special acts shall require only a majority of the members elected to and serving in each house and shall not require submission to the electors of such district." 
Every one of the Emergency Manager's orders is clearly a "local law" which even the state legislature itself could not impose on Detroit without a supporting vote by the electors. The legislature cannot empower the emergency manager to do something that the legislature is constitutionally barred from doing.Article IV § 29 Local or special acts Sec. 29. is basically the "no taxation without representation without representation provision of the Michigan Constitution.
However the Michigan state appellate courts , including the state supreme court, are intellectually corrupt and politically tea Republican biased, meaning they are lawless courts. So, they have prevented this from coming before them.
Chel Talleyrand Charles Brown Do you know of any case I should be following that is challenging the EM law on a basis like you have suggested here?
Chel Talleyrand Charles Brown Yes, I have seen a lot of back and forth crap on the part of the courts. But, how have they prevented this from coming before them?***********
Charles Brown Here is a rough outline of an argument for the _Baker v Carr_/ _Bush v
Gore_ count of the _federal_ complaint.
.
Is equal protection of the law denied to plaintiffs by the State of
Michigan, its agents, the defendants, and PA 436 ? Yes
I Equal protection of the law is denied Plaintiffs by Defendants and PA 436
A) Plaintiffs , like all other municipal eligible voters in Michigan,
are given the right to vote on their municipal Charter, including
amending it, by the Michigan State Constitution, Article VII Section
22 which provides as follows:
§ 22 Charters, resolutions, ordinances; enumeration of powers.
Sec. 22.
Under general laws the electors of each city and village shall have
the power and authority to frame, adopt and amend its charter, and to
amend an existing charter of the city or village heretofore granted or
enacted by the legislature for the government of the city or village.
Each such city and village shall have power to adopt resolutions and
ordinances relating to its municipal concerns, property and
government, subject to the constitution and law. No enumeration of
powers granted to cities and villages in this constitution shall limit
or restrict the general grant of authority conferred by this section.
All Plaintiffs have had their right to vote on amendments to their
City’s charter taken away by imposition of PA 436 and predecessor
emergency management laws, on their face and as applied to the various
Plaintiffs’ municipalities.
In MCLA Sections 141.1549 through 141.1552 on its face PA 436
denies Equal Protection under the 14th Amendment
of the US Constitution to voters in municipalities under PA 436
relative to voters in municipalities not under PA 436. It denies Equal
Protection to electors in municipalities under PA 436 by completely
depriving them of their right to vote on amendments to their
municipal charters; and by diluting the full effect of votes for the
elected officials in municipalities under PA 436. Electors in
municipalities not under PA 436 retain the exclusive power to amend
their charters:
B) Once the franchise is granted to the electorate, lines which
determine who may vote may not be drawn so as to cause invidious
discrimination Harper vs Virginia Pp. 383 U. S. 665-667.; Bush v Gore
Once the franchise with respect to framing, adopting and amending a
charter is given to all municipal electorates in Michigan, lines which
determine who may vote may not be drawn so as to cause invidious
discrimination. PA 436 and its predecessor statutes
II) Voting is a fundamental right and discrimination among classes of
voters is subject to strict scrutiny
Voting is a fundamental right. See e.g., Reynolds v. Sims, 377 U.S.
533, 561-62 (1964); See Yick Wo v. Hopkins, 118 U.S. 356, 371 (1886) ;
Harper vs Virginia
“Especially since the right to exercise the franchise in
a free and unimpaired manner is preservative of other basic civil and
political rights, any alleged
infringement of the right of citizens to vote must be carefully and
meticulously scrutinized.”
Reynolds, 377 U.S. at 562. Careful and meticulous scrutiny is
necessary because even minor
infringements on the franchise can have reverberations in other
contexts and throughout democratic
society. “A consistent line of decisions by [the Supreme] Court in
cases involving attempts to deny
or restrict the right of suffrage has made this indelibly clear.” Id. at 554
(“Undeniably the
Constitution of the United States protects the right of all qualified
citizens to vote, in state as well
as in federal elections.” _Reynolds_); see also U.S. Const. amends.
XV, XVII, XIX, XXIV, XXVI
For example,
all qualified voters have a constitutionally protected right to vote.
Ex parte Yarbrough, 110 U.S.
651, 656 (1884). Citizens cannot be denied the right to vote outright.
Guinn v. United States, 238
U.S. 347, 362 (1915); Lane v. Wilson, 307 U.S. 268, 274-75 (“The
Fifteenth Amendment secures
freedom from discrimination on account of race in matters affecting
the franchise,” and “nullifies
sophisticated as well as simple-minded modes of discrimination.”).
Dilution of the right to vote may
not be accomplished by stuffing the ballot-boxes. Ex parte Siebold,
100 U.S. 371 (1879).
. What is clear from all of the Supreme
Court’s voting rights cases is that “[t]he right to vote freely for
the candidate of one’s choice is of
the essence of a democratic society, and any restrictions on that
right strike at the heart of
representative government.” Reynolds, 377 U.S. at 555.
III The State of Michigan has a compelling interest in Detroit having
an adequate and sufficient workforce to provide public services and
City owned capital for services to the public health, safety and
welfare; PA 436 on its face and as applied is not narrowly tailored
or the least restrictive means , nor in some cases rationally related
to compelling State interests in providing and protecting the health,
safety and welfare of Detroit’s citizens nor balancing Detroit’s
budget.
Because voting is a fundamental right and PA 436 discriminates among
classes of voters, PA 436 is subject to strict scrutiny under the long
line of cases defining strict scrutiny beginning with Carolene.
PA 436 declares that
(a) That the health, safety, and welfare of the citizens of this state
would be materially and adversely affected by the insolvency of local
governments and that the fiscal accountability of local governments is
vitally necessary to the interests of the citizens of this state to
assure the provision of necessary governmental services essential to
public health, safety, and welfare.
(b) That it is vitally necessary to protect the credit of this state
and its political subdivisions and that it is necessary for the public
good and it is a valid public purpose for this state to take action
and to assist a local government in a financial emergency so as to
remedy the financial emergency by requiring prudent fiscal management
and efficient provision of services, permitting the restructuring of
contractual obligations, and prescribing the powers and duties of
state and local government officials and emergency managers.c) That the fiscal stability of local governments is necessary to the
health, safety, and welfare of the citizens of this state and it is a
valid public purpose for this state to assist a local government in a
condition of financial emergency by providing for procedures of
alternative dispute resolution between a local government and its
creditors to resolve disputes, to determine criteria for establishing
the existence of a financial emergency, and to set forth the
conditions for a local government to exercise powers under federal
bankruptcy law.
However, PA 436 is not narrowly tailored nor the least restrictive
means to achieve municipal fiscal stability, avoid municipal
insolvency and protect the credit of the state. It is not necessary to
usurp all powers of the elected officials of a municipality to avoid
insolvency and achieve fiscal stability.
Furthermore, cuts in municipal personnel and cuts to wages and
benefits of municipal personnel harms the public health, safety and
welfare of the People of the cities under emergency management. The
State of Michigan has a compelling interest in protecting and
promoting municipal services to the public. It violates its duty to
the People of these municipalities by placing a higher priority on
paying municipal bond debts.
balancing the compelling state interest in providing public services
to the health, safety and welfare of citizens of cities against the
"compelling" state interest in paying municipal bondholders and
supposedly protecting the state's bond rating. It is not clear that
municipal bankruptcy harms the state's bondrating and even more
attenuatedly harms the public health , safety and welfare of the
people of Michigan. whereas personnel and other cuts to the city's
workforce directly harms public health, safety and welfare of Michigan
citizens in municipalities under EM's
Wabi-Sabi Way Chel Talleyrand I am trying to understand the status of Public Act 72after Public Act 4 passed legislation. Did Public Act 4 replace Public Act 72? Isn't the central question whether the repeal of Public Act 4 automatically reinstated Public Act 72?
The constitutional flaw I describe above is in all forms of the emergency manager laws, going back to PA 72 from the late 1980's.
Charles Brown Isn't the central question whether the repeal of Public Act 4 automatically reinstated Public Act 72?//// Actually, the central question is the legislature violated the mandate of the People's vote to repeal the emergency manager law IN ANY FORM. The law the legislature enacted was not different on the essential principle of an emergency manager forced on the electors of a municipality, enacting local laws without the local electors' approval. All of the statutes enacted after the referendum are invalid. But the state appellate courts are intellectually and jurisprudentially corrupt, including especially the Michigan Supreme Court.Previous blog on unAmerican Michigan Republicans
take10charles.blogspot.com
Tuesday, July 22, 2014
WHY THE EM- DICTATOR LAW VIOLATES THE MICHIGAN CONSTITUTION
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