--- Absence of Enabling Legislation Clearly Violates Article III, Section 6 --- 40 Year Lease Period Clearly Violates Article VII, Section 30
Friday, the Great Lakes Water Authority board approved a 40 year duration lease of Detroit Water & Sewerage Department’s assets and operations outside of the city of Detroit. This approval passed by a 5 to 1 vote with only Macomb County’s representative on the GLWA board opposed. The terms of the lease subordinate the DW&SD to the GLWA, a new intergovernmental authority created out of the ashes of the City of Detroit’s bankruptcy by a Memorandum of Understanding.
This deal was constructed as a lease to evade the 1963 Michigan Constitution‘s requirement, under Article VII, Section 25, for a vote of Detroit’s electors to approve the sale of any public utility. However, by constructing the deal as a lease, the City of Detroit is essentially granting a lease franchise covering the DW&SD’s water and sewerage operations to GLWA. The 40 year term of this lease franchise clearly exceeds the 30 year maximum permitted by Article VII, Section 30 of our 1963 Constitution:
Merriam-Webster defines a ‘franchise’ as “ the right to sell a company’s goods or services in a particular area; also, a business that is given such a right”. Exactly the nature of the GLWA lease agreement with the City of Detroit. Should you doubt that the City of Detroit constitutes a ‘company’, Merriam-Webster defines a ‘company’ as “ an association of persons for carrying on a commercial or industrial enterprise”. Exactly what DW&SD has been doing for over 100 years.
State Representative Kurt Heise (R-20th) from Plymouth has challenged the establishment of GLWA under the 1963 Michigan Constitution’s Article VII, Section 28:
Taken together with the 1963 Michigan Constitution’s Article III, Section 5:
it establishes our Legislature’s authority over intergovernmental units. But these two sections do not unambiguously grant the Michigan legislature exclusive authority over intergovernmental units, so there is probably legal wiggle room here. Contrary to Representative Heise’s contention, a good lawyer could make a case that the U.S. Bankruptcy Court could establish the GLWA under Article VII, Section 28 and Article III, Section 5.
However Article III, Section 6 clearly prohibits the State of Michigan from becoming “a party to, nor financially interested in any work of internal improvement….except for public internal improvements provided for by law”:
The State of Michigan has been acting as a voting member of the GLWA since signing the MoU last year. Our constitution requires enabling legislation – according to Article III, Section 6 – authorizing the State to be a party to, and financially interested in the work of the GLWA, which by its very definition is ‘internal improvements’. No such legislation exists.
The GLWA is not legally constituted under the 1963 Constitution of the State of Michigan because there is no enabling legislation allowing the participation of the State of Michigan, the agreement approved on Friday exceeds the temporal limits established by our Constitution for local government franchise agreements, and the State of Michigan’s vote on Friday was invalid.
Rarely does an instrumentality of government so blatantly violate Michigan’s Constitution. Will our Attorney General now enforce our Constitution?