Detroit council members say proposal to institute member districts violates charter

DETROIT — A ballot initiative that would have the majority of Detroit City Council members elected by specific districts instead of at large hit a roadblock Tuesday when city lawyers advised council members that such an initiative runs afoul of the city charter and the Home Rule Cities Act. The meeting was initially intended so that council members could make small changes to the language of the controversial ballot proposal in accordance with guidelines set by the Attorney General Mike Cox’ office.

Instead, council members teamed with Law Department representatives and accused proprietors of the initiative of breaking the law. The council members ultimately voted to send legal questions back to Cox, a move that offset Tuesday’s deadline to print November ballots.
Representatives from the city’s Law and Research Departments argued that electing council members by districts would change so many other facets of city government that it would take a charter revision not an amendment. They also said the decision to have an election commission draw the districts if the proposal passed was in contrast to state law, citing the Home Rule Cities act.

But according to election lawyer Mary Ellen Gurewitz, the proposed amendment is legal because it doesn’t call for such a substantial change to the charter. “This is not that fundamental a change. You still have the same number of city council members, they’re doing the same thing, the mayor still has the same power that he had … it just changes the way [council members] are elected.”

Detroit’s Law Department and the attorney general have both offered drastically different opinions on the topic. While city lawyers claim that such an amendment is “butchering the law,” Cox issued a letter last month where he wrote: “I have examined the amendment in light of the Home Rules Cities Act and concluded that it is accordance with the Home Rules Cities Act.’”

“[Cox is] saying it’s OK,” Gurewitz noted. “The Law Department is issuing an opinion saying it’s not.”

Jonathan Kinloch, a candidate for the Charter Revision Commission, thinks the city council stepped out of its role when they decided to question the legality of the amendment. “The law is clear. This was done on a track that did not require approval of the city council or any agency of the city of Detroit. The only reason the city council weighed in on this is because the council was supposed to draft the proposal question and put an explanatory caption on the ballot. They did not do what they were supposed to do.”

Another election expert and advocate of the “districts” ballot initiative said the law department and city council are obstructing the will of the people. Vince Keenan, director of the voter services website Publius.org was at Tuesday’s council meeting defending the ballot proposal. “They’re flat out roadblocks,” he told Michigan Messenger in an interview. “[The council] decided to kick this back to the AG’s office as a way of stretching this out. Today was the deadline to print the ballot.”

According to Keenan, the only change Cox asked the council to make to the language of the proposal was to change the wording of the proposal from a question to a statement. “We can add ‘shall’ and a question mark to this and get it worked out,” Keenan said.

But it was the Detroit Election Commission that initially sought the legal opinion from the Law Department to determine whether Proposal D was in accordance with the city charter. After receiving the Law Department’s legal opinion that it was contrary to the charter, the election commission proceeded to put the initiative on the ballot anyway, taking legal advice from election lawyer Mary Ellen Gurewitz instead.

Gurewtiz, who has shared her legal advice with the coalition to elect council members by district, disagrees with city lawyers. “I think the Law Department is 100 percent wrong on this,” she told the Michigan Messenger. “Their opinion was discussed at the election commission meeting and the election commission voted to put it on the ballot,” Gurewitz said.

Because Cox has already offered his opinion on the issue, it is unlikely he will respond to the council’s request for another opinion. According to Dennis Mazurek, assistant counsel to the Law Department, Cox called to say that any further legal arguments will have to be settled in court.

So far no lawsuits have been filed, though Gurewitz said she would file a counter suit if the council decides to sue to block the proposal.

The council’s role in a decision that affects their own governing body worries Keenan. “It’s a conflict of interest,” Keenan said. “The whole notion that we have to take this petition through the most contentious and political gauntlet possible — right through council — is an invention of council. It is not what the laws says. The only requirement for the external process is to convince a huge number of people that this is a good idea. We met the requirements.”

Despite the controversy, supporters of the amendment are still optimistic that the proposal will end up on the Nov. 3 ballot for voters to decide on. If you ask Keenan, the battle for the ballot proposal was won last month when the coalition Detroiters For Council By Districts turned in 30,287 valid signatures to the city clerk, which surpassed the 30,000 signatures needed for a ballot initiative. “When you win a revolutionary war do you go back to the king and say, ‘Hey, is it OK if we’re independent? Is that all right?’”