Inside Michigan Supreme Court: Decisions on 4 ballot issues

Court to decide if casino proposal, collective bargaining, 2/3 tax proposal, bridge proposal make Michigan's November ballot

Author: Rod Meloni, Local 4 Business Editor, @RodMeloni
Published On: Aug 30 2012 05:20:53 PM EDT   Updated On: Aug 30 2012 06:48:43 PM EDT
LANSING, Mich. -

Local 4's Rod Meloni is inside the Michigan Supreme Court as the court hears oral arguments on the casino proposal, collective bargaining proposal, 2/3 tax proposal and bridge proposal. Normally, each would be considered one at a time but ballots need to be printed shortly and time is of the essence.

Supreme Court Blog 8-30-12

2 p.m.

The Michigan Supreme Court opened its unique hearing today promptly at 2pm. Six of seven justices are on the bench. Justice Marilyn Kelly is on a vacation away from Michigan and could not make today’s proceedings.  She is expected to read transcripts or information from the court and then rule based on what she reads. Making this day unique is that the Court has agreed to hear four similar cases back to back. The Court knows it must act quickly because the decisions in these cases are going to impact the printing of ballots for the November election in Michigan.

First up is the Protect Our Jobs v. the State Board of Canvassers. This provision would place in the Michigan Constitution language that would give collective bargaining rights to all Michigan Citizens. This is the polar opposite of the so-called “right to work” legislation that has passed in other neighboring states. It is backed by Michigan’s unions. The Governor and the Attorney General have filed briefs asking the Supreme Court not to allow the ballot proposal proceed because the proposal makes so many changes in other Michigan laws it would be destructive. The backers of the proposal obviously disagree.

In the first arguments, Citizens Protecting the Constitution sent attorney Gary Gordon before the justices, The Governor and the Attorney General sent State Solicitor John Bursch to make their arguments. The justices are questioning how the Constitution is altered or “abrogated” by the ballot question. So far, the justices appear inclined to allow the question. Protect our Jobs counsel Andred Nickelhoff is up next.

2:31 p.m.

Chief Justice Robert P. Young Jr. says the questions being asked of the state, why its position of “altering” or “abrogating” the question makes dramatic changes. Andrew Nickelhoff, the Protect our Jobs attorney says the question only changes… by adding a new paragraph to… the state constitution. It does not alter or render inoperative [abrogate] the state’s constitution. Justice Stephen Markman disagreed with Nickelhoff saying the proposal changes the scope of collective bargaining in the constitution. Justice Robert Young very emphatically just forced Nickelhoff to admit that the proposed amendment changes the legislature’s power as it pertains to collective bargaining. Young says if this amendment is allowed it will require “slick lawyering” in the future with changing the Constitution.

2:45 p.m.

Citizens Protecting The Constitution wanted rebuttal time and asked the judges how it is possible to “cut and paste”  creates a “shadow constition” that would do significant harm. AT that the Justices moved on.

2:55 p.m. : Next case:

Alliance for Prosperity v. the board of state canvassers. The case is about whether the petition that would require 2/3 vote of the Legislature to raise taxes. Alliance attorney is Matthew Davis. He told the judges the reason we are here is the Legislature has failed to demarcate exactly what the legislature’s power here is. He says this petition does not alter the Constitution and there is no requirement to explain to voters the impact of the changes. The justices are continually asking whether the proposals merely change the constitution without significant impact on the Constitution or whether it alters or abrogates. If it doesn’t alter or abrogate the, the argument by the attorney for Defend Michigan Democracy John Pirich says it should be allowed.

3:22 p.m.

This is been a very long, drawn out questioning process with extremely precise and miniscule legal details are being argued. Attorney Matthew Davis This court said “the Headlee amendment grew out of a tax revolt of voters.” The Legislature can do everything under our proposal it does now but would have to adjust to the super majority required. Justice Young once again wants to know the overall impact of the proposal, the effect. Does it render ineffective the State Constitution? Almost any change of the Constitution will have impact.

3:39 p.m.

Next case, Citizens for more Michigan Jobs v Secretary of State. Attorney Graham Crabtree is lamenting the fact this unusual proceeding is being called Ballot-palooza in that he says it is too flippant a description for very important hearings. Once again the issue the justices continue pounding home is whether this ballot proposal either alters or abrogates the state constitution. This is a very thin yet important point since the state law regarding changing the constitution requires notice to voters in the petition process that this particular ballot proposal will impact other parts of the constitution. In other words, the justices are trying to figure out with each proposal whether there was sufficient notice to voters the impact of the change. The claim by the Governor and the Secretary of state along with others that these proposals do not meet that standard and therefore should not be allowed on the ballot, no matter how many signatures have been turned in. One of these proposals, the protect our jobs petition turned in nearly seven hundred thousand signatures. Justice Young is asking Crabtree why, if his petition did not meet the standard it should be given any more credence than if they did not turn in enough signatures. Needless to day this is tough going for the attorneys!
4:04 p.m.

 To get a better idea of what is going on here is the Supreme Courts’ order to attorneys presenting today. They asked “At oral argument the parties shall include among the issues addressed whether the republication requirement of Const 1963, art 12, § 2 and MCL 168.482(3), requiring that petitions set forth any other existing provisions of the constitution that would be altered or abrogated by the proposed amendment, has been satisfied.” In effect the judges are paying close attention to what the Governor and Attorney General are asking about. The question is whether those who signed the petitions knew specifically what impact the new ballot proposal will have on the existing constitution. Currently Protect Michigan Constitution Attorney Peter Ellsworth is telling the justices the Citizens for More Michigan Jobs [the casino addition ballot proposal] does not meet the standard. But, the justices aren’t siding with him either. The court keeps asking for the attorneys to define for it “altered” and “abrogated” to help it decide whether the ballot proposals can stand. These are challenging lines of thought for attorneys, much less those of us who merely watch the legal system.

4:36 p.m.

The last group to appear is The People Should Decide v., Board of State Canvassers. This is Matty Moroun’s group trying to prevent the construction of a private bridge in the state of Michigan without the vote of the people. The Attorney for the group Gerald Fisher did what he could to simplify his case. He said the ballot question neither alters nor abrogates the constitution. The Taxpayers Against Monopolies attorney Michael Hodge is now arguing that is not the case at all. He believes the language use in fact does alter or abrogate. This should be winding up soon.