Political News and Commentary with the Right Perspective. NAVIGATION
  • Front Page
  • News
  • Multimedia
  • Tags
  • RSS Feed

  • Advertise on RightMichigan.com


    Get the RightMighigan.com toolbar!



    Who are the NERD fund donors Mr Snyder?

    Raise the curtain.

    Ballot Access Is A Supreme Concern

    By Kevin Rex Heine, Section News
    Posted on Sat Sep 01, 2012 at 12:14:52 AM EST
    Tags: Michigan Supreme Court, 2012 vacancy nomination, Bob Young, Mary Beth Kelly, Wayne County Circuit Court, Colleen O'Brien, Oakland County Circuit Court, trust but verify . . . always, Colleen Pero, Norm Shinkle, James Waters, Julie Matuzak, Casino Gaming Amendment, International Bridge Initiative, Taxation Amendment, Protect Our Jobs Amendment (all tags)

    The headline on the front page of the Saturday paper was "CHAOS!" in four-inch, boldface, all-caps block type, punctuated by an exclamation point just in case passers-by didn't get the hint.  The article underneath the attention-grabber discussed the previous day's 4-3 ruling by the Michigan Supreme Court in Stand Up For Democracy v Citizens For Fiscal Responsibility, in which Justice Mary Beth Kelly, accomplishing a legal parse worthy of John Roberts, sided with Justices Michael Cavanagh, Marilyn Kelly, and Diane Hathaway and voted to order the Emergency Manager Referendum onto the November 2012 statewide general ballot, and touched off a power struggle involving contradictory claims about the status of municipalities and school districts currently operating under emergency managers.  Also in that same Saturday paper was a statement from Detroit Mayor Dave Bing, a statement from Michigan Governor Rick Snyder, and an op-ed piece from Stephen Henderson urging a rejection of the repeal (which he followed up on in more detail in his Sunday News & Views column).

    Who says a Friday news dump doesn't get much attention?

    And now, because of the actions of the Board of State Canvassers, we have a situation that may involve another Friday news dump . . . on a weekend when both of this state's major political parties have other things to do.

    Earlier this week, both the Detroit News and the Detroit Free Press reported that the Board of State Canvassers denied ballot access to the Casino Gaming Amendment, the International Bridge Initiative, and the Taxation Amendment.  This in spite of the fact that all three petitions were favored by the board by a 2-to-1 vote.  But the funny thing is that, according to the rules for how the Board of Canvassers operate, an approval vote must include at least one "yes" vote from both sides of the political aisle, which is why the board normally consists of four members . . . specifically to avoid the unseemly event of a majority vote being overruled by the lack of bi-partisan consensus.

    Since the two "yes" votes, James Waters and Julie Matuzak, are both democrats, and the lone republican, Colleen Pero, was the "no" vote, you may find yourself wondering where the other republican on that board was back on Monday.  Strangely enough, that's easier to answer than you'd think.  It turns out that Norm Shinkle, vice-chair of the board, was absent from Monday's critical meeting . . . because he was in Tampa this week attending the Republican National Convention, and had to be there early because he's a member of this year's platform committee.  According to his quote in the Freep:

    Reached by telephone, Shinkle said he was a member of the platform committee and had to arrive in Florida on Aug. 19.  He said he inquired about participating in the meeting by telephone but was told that was not allowed.

    Shinkle couldn't say whether his attendance would have made any difference in the outcome because he didn't get to hear the arguments put forward Monday by proposal backers and opponents. But he said he voted earlier to reject the Protect Our Jobs collective-bargaining initiative because he believed it would amend other sections of the constitution. He said he believed the arguments made against the three proposals Monday were "pretty similar."

    That means the three ballot proposals might have been rejected even if Shinkle had attended, in 2-2 votes.

    So Mr. Shinkle, a paid staff member of the Michigan Republican Party, found it more appropriate to be at the national convention in Tampa than in Lansing than fulfilling his constitutional responsibilities to the State of Michigan.  And even if he had been here, he probably would have sided with Pero.  I can see where that might be a good thing on the casino proposal, but it does raise a question with regard to the other two.

    Here's what I mean with regard to the Casino Gaming Amendment.  In the Secretary of State's Staff Review of the "Citizens For More Michigan Jobs" petition, Protect MI Constitution asserts:

    • That the form of the CFMMJ petition suffers from a fatal defect because the petition's sponsors omitted all of the provisions of the Constitution that the proposal alters or abrogates.  The particular reference is to changes that will be made to Article IV, §40, and Article IV, §41, but didn't actually say so in the detailed language portion on the back of the petition

    • That the summary that appears on the signature side of the petition is incomplete and misleading.  The particular reference is that the summary must apprise petition signers that the CFMMJ petition amends the voter-initiated Gaming Act.

    • That the petition fails to include the full text of the statutory provisions of the Gaming Act that are purportedly affected by this proposed constitutional amendment.  Also, the petition illegally combines a constitutional amendment with an amendment to the voter-approved Gaming Act.

    The SOS office took no position on the first assertion, as the office doesn't have the power to determine whether the petition passes constitutional muster.  With regard to the other two assertions, "... the staff recommends that the Board reject these challenges to the extent that PMC relies on the Secretary of State's prescribed format of petitions for legislative proposals as the basis for the challenges."  In other words, the secretary's duties are ministerial and not quasi-judicial.

    The legal appeal resulted in a unanimous opinion by the Court of Appeals granting a writ of mandamus directing that the Secretary of State to reject the CFMMJ ballot question petition.  The core of the opinion is that, not only must Article 12, § 2 be complied with, but that because this deals with a voter-enacted statute, also Article 2, § 9, and Article 4, § 24 also apply.  According to the opinion, because the Casino Gaming Amendment proposal doesn't comply with all three sections, a writ of mandamus was issued, ordering the Secretary of State to reject the proposal from the ballot.  The only issue that Judge Amy Ronayne Krause seemed to have in her partial dissent was that she wasn't convinced that examining an initiative proposal for compliance with Constitutional prerequisites involved discretionary authority outside the ministerial duties of the executive office in question.

    The subsequent appeal to the Michigan Supreme Court resulted in a reversal of the lower court ruling, vacation of the writ of mandamus, and direction to the Board of Canvassers to proceed.  (The Detroit Free Press erroneously reported that this was an order to place the Casino Gaming Amendment on the ballot; it was not, but merely an order for the Board of Canvassers to make its own decision.)  But the reversal was not without objection, from a known rule-of-law justice on the court.  Justice Markman, in a concurring opinion, said:

    "... The petition fails even to alert voters to the fact that they are being asked to amend a law that they themselves previously enacted through the initiative process, a requirement, in my view, that is provided for by both Const 1963, art 2, § 9 and Const 1963, art 4, § 25, the former requiring that a conflict with an existing voter-initiated law be identified and the latter requiring republication of the conflicted law.

    In short, I agree with the Court of Appeals - and not just with the judges in the majority, but also with the dissenting judge, who recognizes that defendant's ballot proposal "does not, in fact, conform to the requirements of our Constitution for presentation to the voters" - that the pending ballot proposal is flawed.  I am not persuaded by defendant's argument that because it "makes no changes in the Gaming Act itself" but only to the Constitution, its ballot proposal need not comply with the requirements of Const 1963, art 2, § 9 or Const 1963, art 4, § 25, despite the fact that, if adopted, the proposal would largely nullify the Gaming Act. ..."

    . . . which, frankly, doesn't sound much like "concurrence" to me.

    So maybe Mrs. Pero had some justification to vote to reject the Casino Gaming Act; apparently it, like the Protect Our Jobs Amendment, is structured so as to hide its true intention until after it has been passed.  Keep in mind that "Protect Our Jobs" is also being appealed to the SCOMI because Citizens Protecting Michigan's Constitution is seeking a reversal of a COA ruling and order placing POJA on the November ballot.  (And I notice that it's the same judicial panel as the CFMMJ petition.)

    Nevertheless, according to the Detroit News, Thursday the Michigan Supreme Court heard oral arguments (well, six of them did anyway) on appeals regarding the Casino Gaming Amendment, the International Bridge Initiative, the Taxation Amendment and the Protect Our Jobs Amendment.  Evidently, the operative question in each matter is whether the proposals are making undisclosed changes to the state constitution without informing voters.  According to the third Detroit News article in as many days on this last-minute legal drama:

    "The justices must decide the fate of the ballot proposals by Sept. 7 so election officials can begin printing and mailing ballots to overseas voters."

    So, sometime in the next seven days, we'll be getting four rulings (or perhaps a consolidated ruling) from the state's high bench that will affect whether we have three proposals on this fall's ballot, or seven, or somewhere in between.  Somewhere in the clutter we'll also perhaps find some guidance as to what the limits are on the Board of Canvassers' authority to rule on citizen initiatives.  And there is definitely potential that the Schuette Precedent (upheld by the Taylor Court) may be partially or completely overturned.

    Except in rare situations specifically listed in the Michigan Constitution, the Michigan Supreme Court has the sole discretion to determine which cases it wants to consider.  In typical practice, there are three reasons that the court will grant leave to hear a case on appeal:

    • If the appeals court has issued a ruling that the SCOMI wants to use as an excuse to reinforce precedent, they will hear an appeal as a way to uphold the lower court decision, effectively providing the COA with an "attaboy" on the record.

    • If the lower court got a decision wrong, though operating within existing precedent, then the SCOMI will hear the case on appeal and reverse the COA without changing precedent.

    • If either social conditions or judicial philosophies (including the prevailing majority philosophy of the high court) have changed in such a way as to effectively obsolete the governing precedent, then the court will take advantage of the first suitable opportunity to accept a case, hear oral arguments, and issue an opinion that changes, or at least modifies, existing precedent.

    As far as I know, the Michigan Supreme Court didn't have to take any of the four ballot proposal cases; they could have simply allowed the lower rulings to stand.  In the case of POJA and CGA, the former would be placed on the ballot while the latter would be denied it because those are the rulings on the record.  Likewise, the other two proposals would be denied ballot access, and the Board of Canvassers' decisions would stand there.

    I can't tell you how much the union threat to commit $58 million to "crashing the court" if they don't get their way may factor into how the rule-of-law justices decide on these four proposals.  But I can tell you that most of the delegates to the Michigan Republican State Convention, who will be voting on the SCOMI vacancy nomination, will be watching to see how the court rules.

    Hell, it wouldn't surprise me if that was part of the plan all along.

    < Protect Our Calculator! | 5 Bucks Ain't Enough But 1 is Too many >

    Share This: Digg! StumbleUpon del.icio.us reddit reddit

    Display: Sort:
    My 2 cents (5.00 / 1) (#1)
    by JGillman on Sat Sep 01, 2012 at 09:50:39 AM EST
    The POJ and casino initiatives are indeed similar.

    If the casino folks wanted to add, then all they had to do was say

    "This initiative nullifies the 'The Michigan Gambling Outlets Amendment' of 2004.
    And it could not have been legally stopped.

    Dummies.  Hell we were dummies to pass that thing anyhow.

    POJ is simply a cluster-foxtrot that one could liken to a 3000 page socialist manifesto of hogwashery passed in DC. Pass it so we could see what is in it. They could simply have used the language

    "This initiative guarantees Union control over your life forever"
    And it might have passed as easily as it has so far.

    As to the bridge thing, my understanding is that the language was approved prior to signature collection.

    Pero has a lot of splainin to do IMO.  That was a wretched abuse of her position, and she should resign if she was simply doing the will of the nerd.  That is NOT HER JOB.

    We'll agree to disagree... (none / 0) (#2)
    by KG One on Sat Sep 01, 2012 at 10:38:31 AM EST
    ...on that first part.

    Using the democrats slight-of hand tactic as a template. I'm seeing a major shakeup coming after the republicans lose the House this fall, and that has to do not with the MI-Supremes, but the State Board of Canvassers itself.

    I wouldn't be very surprised if you see next year a push for some sweeping changes in how the BoC operates.


    • A narrowing/clarification of the definition of what the BoC can and cannot do.

    • A changing of the makeup (which will require a Constitutional Amendment) to make the board not only an odd number to prevent future tie votes, but remove the party affiliations as well. (I know, I know. Good luck with that!)

    • Changing of the process to have the BoC approve petitions before they are actually circulated. Afterwards, they will only fulfill a housekeeping role by only certifying whether of not the number of signatures are valid after the SoS is done with them.

    Filing court cases and appeals costs democrats and unions lots of money.

    Why worry about court and attorney fees when you can just buy the votes and easily change what the courts are supposed to reference?

    Speaking of buying votes, I've got something interesting in store for Monday.

    Stay tuned...

    Display: Sort:


    Make a new account

    Tweet along with RightMichigan by
    following us on Twitter HERE!
    create account | faq | search