Posted by AzBlueMeanie:
The petition drive to seek a referendum on Michigan’s emergency financial manager law took another strange twist today as a state appeals court panel ruled that it should go on the ballot, then stayed its own order to poll the entire appellate bench on whether to review the issue further.
The Detroit Free Press reports, Appeals court agrees to put emergency manager law on ballot, then delays its order :
The three-judge panel, in a unanimous decision, said existing case law requires them to support the group Stand Up for Democracy and order the Board of State Canvassers to put the issue on the November ballot. But the court said they believed that, but for the precedent, they would have found against Stand Up for Democracy for failure to comply with a technical type-size requirement.
The rarely-used procedure ordered by the court calls for a poll of all 28 members of the Court of Appeals on whether to appoint a special panel of 7 judges to resolve the dispute.
Resolve what? The court just found that existing case precedent and statutory law -- the substantial compliance doctrine -- requires them to allow the referendum to go to the ballot. Here again is the Memorandum from the Michigan Board of State Canvassers, which advises that Michigan, like almost every other state, follows the "Subtantial Compliance Doctrine" (.pdf), which holds that:
"It is well established by both statute and case law that petitions need only substantially conform to the statutory requirements," and that “constitutional and statutory initiative and referendum provisions should be liberally construed to effectuate their purposes, to facilitate rather than hamper the exercise by the people of these reserved rights.” The general rule is that “all doubts as to technical deficiencies or failure to comply with the exact letter of procedural requirements in petitions . . . are resolved in favor of permitting the people to vote and express a choice on any proposal subject to election.”
Keep in mind that Judges are elected in Michigan. So what, now we have activist Tea-Publican Judges who want to disregard case law and stare decisis and statutory law to impose hyper-technical strict compliance?
Apparently so. From the opinion: "[B]ut for the fact that we are required to follow Bloomfield under MCR 7.215(J)(1), we would rule that plaintiff’s petition is invalid because the petition heading is noncompliant with the 14-point type mandated by the Secretary and MCL 168.482(2)." (emphasis added).
The Michigan Court of Appeals ruled today that the petitions for the repeal of Michigan’s Emergency Manager law did NOT comply with the law. This is despite the sworn printer’s affidavit and expert analysis proving otherwise.
However, the Court also said that prior rulings relating to “substantial compliance” compel them to allow the petitions and to validate the signatures.
However Part 2, they also said they believe that the prior rulings were in error and that they shouldn’t be held to them. In an unprecedented move, they decided to poll all 28 members of the Court of Appeals on whether they should appoint a seven-judge conflict resolution panel to hear the case and stayed its decision ordering the referendum be placed on the ballot until that panel rules.
This delays even further any final ruling. By doing this, they reduce the amount of time opponents of PA 4 will have to get out the vote for the cause and, conceivably could delay a ruling for so long that it might be too late to get on the ballot no matter what the ruling. Keep in mind that, no matter what the final decision is, it will likely go to the state supreme court.
This all smacks of an intentional effort to thwart the repeal without having to actually rule against the petitions. I wouldn’t take bets that the seven-judge panel won’t be mostly anti-repeal Republicans.
UPDATE: The ruling is HERE.
Only the state Supreme Court can overturn prior controlling precedent, which is what the Court of Appeals is requesting. It is a rejection of the democratic principle that “constitutional and statutory initiative and referendum provisions should be liberally construed to effectuate their purposes, to facilitate rather than hamper the exercise by the people of these reserved rights”. . . “all doubts as to technical deficiencies or failure to comply with the exact letter of procedural requirements in petitions . . . are resolved in favor of permitting the people to vote and express a choice on any proposal subject to election.”
They are killing democracy im Michigan. And the last line of defense -- the courts -- are aiding and abetting it.