Michigan Legislative and Judicial Restructuring Initiative (2008)

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The Michigan Legislative and Judicial Restructuring Initiative did not appear on the November 4, 2008 statewide ballot in Michigan as an initiated constitutional amendment. The measure proposed making about 31 revisions to 24 sections of the Michigan Constitution.

The changes to the state's constitution would have affected a number of different parts of how Michigan's government was structured, including the elimination of two Supreme Court justices and seven appellate judges, adding 10 new local judges, alterations to the state legislature, legislative pay and retirement, and more.

Background

The measure had been described as a sweeping revision of the Michigan Constitution that appeared out of nowhere with a realistic chance of making the November ballot. Michigan was one of the few I&R states where initiative sponsors did not have to clear their wording with the Secretary of State or Attorney General before circulation, although Michigan initiative sponsors are encouraged to do so.

Sponsors of the Legislative and Judicial Restructuring Initiative elected not to submit their 19,503-word document to the Board of Canvassers in advance, which is said to have been one of the reasons the effort was successful in remaining under the political radar until mid-June 2008.[1]

Powerpoint

In mid-July, the Mackinac Center for Public Policy publicized a PowerPoint discovered on a United Auto Workers website titled "Government Reform Proposal: Changing the rules of politics in Michigan to help Democrats."[2] The presentation appeared to explain that the proposal was designed to benefit the state's Democratic party.[3] Several days prior to this, Michigan AFL-CIO president Mark Gaffney acknowledged that "a number of our unions" helped to fund the initiative.[4]

Reaction to PowerPoint

Powerpoint slide found on UAW Web site
In late June, an intern at the Mackinac Center for Public Policy discovered a PowerPoint presentation detailing the proposal's benefits for the Democratic party.[5] According to the UAW Region 1-C Web site where the document was originally found, the presentation was given to local union officials at a leadership conference in late May or early June. The presentation explicitly laid out a budget of nearly $5 million for the initiative, emphasizing the lower cost of such a proposal in contrast to defeating political opponents in legislative and judicial races, and "less than half the cost of trying to beat an incumbent GOP Supreme Court Justice." $1.4 million was indicated for the petition drive, which presumably had already been spent. It candidly described many of the prvisions as being secondary to the real purpose of the measure, added because polling and focus group research indicated that those make it more successful at the polls. Changing term limits was not included for the same reason. The UAW had acknowledged in press reports that the Powerpoint was on their Web site.[6]

Brian Dickerson, a columnist for the Detroit Free Press said that the discovery of the PowerPoint suggested that "What began as a secretive, profoundly cynical initiative effort to reverse years of Democratic losses in Michigan is quickly devolving into a full-blown fiasco."[7]

The date the PowerPoint presentation was created, which showed up in the document properties in PowerPoint, was significant, notes Bob LaBrant, Senior Vice President of Political Affairs & General Counsel for the Michigan Chamber, because that would have required Reform Michigan Government Now! (RMGN) to file as a ballot question committee in 2007 and to file an annual report disclosing their contributors and expenditures.[8]

"If the PowerPoint presentation was the 'smoking gun' that blew away Diane Byrum's and Michigan AFL-CIO President Mark Gaffney's assertion that the ballot initiative was somehow a bi-partisan reform proposal, the creation date of the PowerPoint presentation proves conclusively that RMGN was required to file as a ballot question committee in 2007, not as they did on February 22, 2008 when their statement of organization was filed with the Secretary of State," LaBrant stated. "If RMGN had registered back in 2007 as required, they would have been required to file an annual report that was due January 31, 2008 disclosing their contributors and expenditures."[8]

Details of the measure

The proposal would have:[9]

  • Reduced the Supreme Court from seven members to five and the state court of appeals from 28 to 21 as of Dec. 20, 2008, and added 10 new local judges.
  • Reduced the Senate from 38 to 28 members and the House from 110 to 82 members, requiring new district lines to be drawn, based on "competitive" apportionment.
  • Required disclosure of income and assets.
  • Limited elected officials' retirement benefits to the same level as state employees.
  • Cut two state departments and cap the number of boards and commissions.
  • Made the Bureau of Elections independent of partisanship and banned election officials from campaigning in elections they oversaw.
  • Required post-election audits of procedures and mandated voting systems' paper trail.
  • Established a nonpartisan redistricting commission.

The Supreme Court would have been reduced by eliminating the two justices with the least seniority (Republican nominees Markman and Young), while the state Appeals Court would be reduced using a different methodology, eliminating the seven judges whose terms expire at the close of 2010 (six of whom were nominated by Republicans, with the seventh already departing for the federal bench). The 10 new circuit court judges would be appointed by Democratic Gov. Jennifer Granholm.

Error in amendment language

The amendment contained an error, which would cause legal problems for the measure. The mistake was similar to a drafting error made in a 2002 initiative to relax drug crime laws in Michigan. That proposal was denied a spot on the ballot by state courts because it sought to add a section to the constitution where one already existed. In this case, the amendment called for procedures "as provided for in Article II, Section 11" of the Michigan Constitution, but there was no Section 11 in the current constitution or the proposed amendment.[10]

"The error ... is not a substantive error and it can be cured by executive order," Dianne Byrum, of RMGN, said. "We're confident that this petition will withstand scrutiny, and we believe that the voters should be allowed to consider it."[10]

However, Peter Ellsworth, an attorney for a group opposed to the proposal, said he believed it could be fatal to the proposal being approved by the state Board of Canvassers. Ellsworth said he thought the proposal "[had] several fatal flaws," including its size and intention to make changes in so many areas, complicating it well beyond the legal limit for a constitutional amendment.[10]

Supporters

The effort was being organized by Reform Michigan Government Now (RMGN), a Hastings-based group. Very little information about the measure had been available, as news organizations looked into the effort said they had been unable to get in contact with spokespeople for RMGN.[9][11]

Dianne Byrum, a spokeswoman for the campaign and a former Democratic leader in the state Legislature, admitted that "this is very comprehensive but it boiled down to one word: change. People in Michigan [believed] government [was] broken."[12]

Byrum called the measure a "fair proposal" that didn't give one political party an advantage over the other.[12]

Harland Nye, treasurer of Reform Michigan Government Now and a lifelong Republican, said it was wrong for opponents to call the amendment a wholesale rewrite of the Constitution, pointed out that the amendment's reforms were specifically targeted, affecting only four of the constitution's 13 articles.[13]

Nye argued that Reform Michigan Government Now's proposal is the best way to change "broken government" and notes that many of the ideas in the proposal "have been espoused by prominent Republican leaders for years."[13]

Opponents

The Michigan Republican Party attacked the ballot proposal in a YouTube video, calling it an attempt by liberal Democrats to control the court system and hijack the state constitution. The two Supreme Court justices who would have lost their seats were nominated by Republicans.

Republicans said the proposed changes in the judicial branch were a transparent attempt to reverse GOP gains in the courts from the 1990s. The only judge with Democratic Party roots to lose a seat in the shuffle would have been Appeals Judge Helene White, who was scheduled to be leaving anyway because she was recently confirmed for a seat on the 6th U.S. Circuit Court of Appeals.[1]

Additionally, a provision that would slash pension benefits for judges who stay on the job after the amendment is enacted could trigger a wave of resignations and give Democratic Gov. Jennifer Granholm dozens of vacancies to fill through appointments that usually go to party loyalists.[1]

"This petition completely rewrites Michigan's constitution," state Republican Chairman Saul Anuzis said in the video. "It could take away your state legislator, give more power to unelected bureaucrats putting control of the courts in the hands of ambulance-chasing trial lawyers."[14]

Nick De Leeuw, webmaster of RightMichigan.com, voiced strong opposition to the measure. De Leeuw called the measure "a poorly disguised attempt to blow the Michigan judiciary to pieces, set up massive judicial back logs, do through fiat what Democrats haven't done through judicial elections and pave the way for dozens of new long-term Granholm appointment opportunities."[15]

There had been several reported charges that petitioners for the measure had been misleading signers about what the proposal would do.[9][11][15]

Robert LaBrant, a vice president at the Michigan Chamber of Commerce, said the changes all appeared to create an advantage for Democrats or erase one now held by Republicans. He called the proposal an "outrageous abuse" of the process for changing the state constitution.[1]

"This isn't an amendment; this is a general revision of the Michigan Constitution," LaBrant said. "This proposal covers the waterfront."[1]

Rich Robinson, director of the Michigan Campaign Finance Network, said many aspects of the plan were attractive. "But it's a huge package," Robinson said.[1]

Robinson also pointed out that campaign finance rules allowed a hugely expensive ballot proposal campaign to operate without transparency for months leading up to an election. "It's an absolutely ridiculous system that results in us not knowing anything about who is behind this until a month after they get on the ballot," Robinson said.[1]

An analysis by the Mackinac Center looked at the potential savings from the measure, which it concluded would be minimal.[16]

"The bottom line is that at most RMGN would save each Michigan resident just 4 pennies a week," the analysis by Jack McHugh concluded. "Even if one ignores recently revealed insider documents explaining that the measure’s real purpose is to prevent future 'budget cuts,' these savings amount to little more than a rounding error in the $42.9 billion state budget—a spending reduction of less than one-twentieth of 1 percent."[16]

Democratic opposition

Several top Michigan Democrats held a conference call on July 5, 2008, with Gov. Jennifer Granholm to express worries about the initiative. One source said Democratic officeholders were worried both about the content of the proposal and the secretive way in which it has been prepared and placed before voters.[17]

According to a presentation on the plan put together by Democrats, both Gov. Jennifer Granholm and Lt. Gov. John Cherry reportedly contributed funds to the effort. Neither had publicly endorsed it. The presentation said the petition drive had a budget of more than $1.4 million.[18][19]

Democratic State Sen. Tupac Hunter said he was "diametrically opposed to the initiative," calling it an effort "to totally rewrite the state constitution. It's too sweeping."[17]

Hunter added that the initiative would:

  • Limit the caliber of people in the state Legislature, cutting salaries and benefits.
  • Make service in the legislature attractive mostly to retirees and the independently wealthy. * He also said he was furious that the proposal was developed "behind the scenes in a stealth fashion. As a Democratic senator, I would have liked to have had a heads-up."[17]

Poll statistics

A Michigan Democratic Party poll indicated that about 70% of 600 likely voters surveyed in mid-July 2008 said they would vote for the initiative if it made the November ballot. Strongest support (73%) came from Republicans surveyed. The measure was endorsed by 60% of Democratic voters surveyed.[19][20]

"Did they ask in the question that it would give Democrats control of state government for the next 10 years?" asked GOP spokesman Bill Nowling. "No, I don't think they asked that."[19]

Status

The Michigan Court of Appeals ruled Aug. 20, 2008, that the measure was too broad to be considered as a constitutional amendment, ordering the Board of Canvassers to deny certifying the proposal for the November ballot.[21][22]

Supporters submitted 487,000 signatures on July 7, 2008, to place the measure on the November ballot.[23] At least 380,126 had to be valid in order to earn the measure a ballot spot. Reform Michigan Government Now conducted their petition drive with the help of Progressive Campaigns, Inc., a professional petitioning company.[15] The petition form was never submitted to the Michigan Board of Canvassers for approval. Such approval was not required, but most serious efforts sought the approval to avoid having signatures invalidated due to insufficiencies in the form.[9][11]

Lawsuit filed to strike from ballot

On July 19, a lawsuit, Pirich v. Land, was filed in the Michigan Court of Appeals seeking to have the initiative declared ineligible to appear on the November 4, 2008 ballot. The grounds for the lawsuit were that the initiative attempted to modify too many provisions on the Michigan Constitution simultaneously, not allowing voters to consider each change on its own merits.[24][25]

The Michigan Court of Appeals rejected Aug. 13, 2008, a motion to disqualify judges from deciding the legal challenge to this ballot measure, which would cut judges’ pay and eliminate some of their jobs.[26] Proponents of the proposed amendment argued that seven of the appeals court judges should be disqualified from the case because of conflict of interest. Opponents, led by the Michigan Chamber of Commerce, accused Reform Michigan Government Now of shopping for judges.[26]

A three-judge panel of the Michigan Court of Appeals cited the "rule of necessity" in rejecting the recusal motion. The U.S. Supreme Court, for instance, has decided a case challenging the constitutionality of legislation that repealed salary increases for federal judges.[26] Judges Bill Schuette, William Whitbeck, and Patrick Meter dismissed attempts to distinguish between judges who would lose pay and those who also would be cut from the bench. Whitbeck is one of judges who would lose his job if the measure is approved. Whitbeck said that his economic interest in the case is minimal, as he could earn more in private practice.[26][27]

The three-judge panel ruled unanimously on August 20, 2008, that the proposed ballot measure was an illegal attempt to enact a general revision of the state constitution, something that must be done by calling a constitutional convention. The panel called the number and scope of the proposed changes "overarching" and unprecedented.[21][22] The court ordered a state elections panel scheduled to meet Aug. 21st to deny certification for petition signatures submitted by RMGN.[21]

RMGN spokeswoman Dianne Byrum called the decision a "travesty of justice" by "judges (who) have shown they will do anything to protect the status quo and their perks." The decision will be appealed, she said.[21] Reform Michigan Government Now asked the state Supreme Court on Aug. 22, 2008, to hold an emergency hearing on the proposal to allow county elections officials time to put the measure on their ballots.[28] The group's challenge argues that seven of the Appeals Court judges should be disqualified from the case because they could lose their judgeships if the measure passes in November.[28] The state Supreme Court heard arguments Sept. 3, 2008.[29] In a 6-1 decision on Sept. 8, 2008, Michigan's Supreme Court said it wasn't possible to communicate in a 100-word summary what the 19,000-word ballot proposal would do. Justice Marilyn Kelly dissented.[30][31] RMGN spokeperson Dianne Byrum called the decision "judicial activism at its worst."[30]

Ethics complaint

Michigan Chamber of Commerce Vice President Bob LaBrant filed a complaint with the Secretary of State, charging that Reform Michigan Government Now broke the law by failing to report tens of thousands of dollars spent in 2007 to develop the plan to pass the measure.[32] LaBrant said July 23, 2008, that RMGN "simply and clearly violated the law" when it commissioned polling and focus group research on the proposed constitutional amendment.[32]

See also

External links

Additional reading

References

  1. 1.0 1.1 1.2 1.3 1.4 1.5 1.6 Detroit Free Press: "Voters asked to downsize Lansing," June 25, 2008
  2. Mackinac Center for Public Policy: "UAW-Posted PowerPoint," July 17, 2008
  3. "http://www.mlive.com/newsflash/michigan/index.ssf?/base/news-55/1216311247248960.xml&storylist=newsmichigan," July 17, 2008
  4. [MIRS Capitol Capsule July 14, 2008, "AFL-CIO Unions Helped Bankroll RMGN"]
  5. "Partisan Politics at Its Worst," June 25, 2008
  6. Detroit Free Press, "Democrats' strategy for state control revealed," July 18, 2008
  7. Detroit Free Press, "Is bogus reform initiative organized labor's last gasp?," July 20, 2008
  8. 8.0 8.1 Market Watch: "Funny How PowerPoint Technology Comes Back to Bite You, Says Michigan Chamber of Commerce to Byrum & Fisk Firm," July 21, 2008
  9. 9.0 9.1 9.2 9.3 Jackson Citizen Patriot: "Canvassers seek signatures to amend state constitution," May 30, 2008
  10. 10.0 10.1 10.2 Detroit Free Press: "Mich. Constitution proposal cites nonexistent section," July 11, 2008
  11. 11.0 11.1 11.2 The Morning Sun: "Petition would change Legislature," April 26, 2008
  12. 12.0 12.1 Associated Press: "Broad Michigan ballot proposal worries Republicans," June 15, 2008
  13. 13.0 13.1 Detroit News: Opinion: "Petition drive advances GOP reform ideas," June 25, 2008
  14. Michigan Republican Party YouTube video about this initiative
  15. 15.0 15.1 15.2 RightMichigan.com: "Breaking: Big-money left using fraud in attempt to gut Michigan Courts," June 11, 2008
  16. 16.0 16.1 Mackinac Center: "Savings from 'Reform Government' Initiative: Four Pennies a Week," July 28, 2008
  17. 17.0 17.1 17.2 Detroit News: "Michigan Democrats express concern about government reform proposal," July 5, 2008
  18. WKZO-Radio: "Granholm Undecided on Ballot Initiative," July 25, 2008
  19. 19.0 19.1 19.2 Grand Rapids Press: "GOP says Democratic poll on state constitution change is as misleading as proposal itself," July 22, 2008
  20. Detroit Free Press: "Poll: Michigan voters support proposed state constitution amendment," July 21, 2008
  21. 21.0 21.1 21.2 21.3 Detroit Free Press: "State Court of Appeals: Proposal to reorganize government won’t see November ballot," Aug. 20, 2008
  22. 22.0 22.1 Detroit News: "Reform ballot proposal rejected," Aug. 21, 2008
  23. Associated Press: "Group turns in signatures for controversial amendment to state constitution," July 7, 2008
  24. Reform proposal faces lawsuit
  25. Opponents of political changes to file lawsuit
  26. 26.0 26.1 26.2 26.3 Detroit Free Press: "Michigan court rejects motion to disqualify judges," Aug. 13, 2008
  27. Flint Journal: "Judge will hear case that could eliminate his job, says Flint Journal columnist Peter Luke," Aug. 14, 2008
  28. 28.0 28.1 LegalNewsline.com: "Group asks Mich. government overhaul proposal be allowed on ballot," Aug. 22, 2008
  29. Associated Press: "Michigan high court hears ballot measure case," Sept. 3, 2008
  30. 30.0 30.1 Associated Press: "Michigan high court denies ballot measure access," Sept. 8, 2008
  31. Detroit Free Press: "Court upholds barring proposal to reform government," Sept. 10, 2008
  32. 32.0 32.1 Detroit Free Press: "Complaint: Reform Michigan group failed to report money spent on plan," July 23, 2008