The Extreme Prejudice of a Hearing Under PA72

A copy of the March 8 letter from Chief Deputy Treasurer Mary MacDowell to Acting Detroit Corporation Counsel Edward Keelean regarding a hearing requested on March 7 by City Council through the Law Department can be viewed through this link. It is available in the publications area of the website.

The correspondence indicates the hearing pursuant to section 15(2) of Public Act 72 of 1990 will take place Tuesday, March 12 at 10:00 am in the Richard H Austin Building (Treasury), 430 W Allegan St, Lansing before Chief Deputy Treasurer Mary MacDowell in the Board Room on the 1st floor.

The hearing will allow each side (Detroit City Council and Detroit Review Team) 30 minutes to present, with 20 minutes initial presentation and 10 minutes reserved for rebuttal. According to the letter it is not to be an adversarial proceeding. It is to be a fact finding hearing, reviewing evidence from the Review Team and supplementing with any actions taken or planned since the Review Team's report on February 19.

The interesting thing about this hearing is that none of the laws - Public Act 4, Public Act 72, or Public Act 436 are in effect at this time.

Public Act 72 of 1990

Since Attorney General Bill Schuette issued his opinion on the referendum to repeal Public Act 4 of 2011 on August 6, 2012, Michigan has been acting like this law is still on the books. The referendum addressed Public Act 72 stating that it was repealed when Public Act 4 was passed to law. This was required as the new act had to replace the prior law.

Repeatedly we have said Public Act 72 was repealed and is dead law. Numerous alternative press sources have pointed this out [DailyKos][Eclectablog][VLTP][VoiceOfDetroit]. This is what is written in Section 8.4 of Michigan Compiled Laws:

Revised Statutes of 1846 (EXCERPT)
CHAPTER 1. OF THE STATUTES.
8.4 Effect of repeal of repealing statute.
Sec. 4. 

Whenever a statute, or any part thereof shall be repealed by a subsequent statute, such statute, or any part thereof, so repealed, shall not be revived by the repeal of such subsequent repealing statute. 

History: R.S. 1846, Ch. 1 ;-- CL 1857, 3 ;-- CL 1871, 3 ;-- How. 3 ;-- CL 1897, 51 ;-- CL 1915, 65 ;-- CL 1929, 77 ;-- CL 1948, 8.4

AG Schuette's opinion is entitled "Revival of repealed law where right of referendum is properly invoked as to act that repealed prior law." This is an interesting title in itself saying that there is some hidden right of revival that supplants the right of referendum. That means something is of a higher power than a referendum voted on by a majority of the public. Lets get one more thing straight before stating the assertion of the opinion. These are public servants that have taken an oath of office to serve the interests of the public. Wouldn't the vote of the public on the referendum indicate very clearly the interest of the public? Therefore these public officials are violating their oath of office and conspiring against the people they serve. I believe that amounts to domestic terrorism.

There are several passages in the opinion that pick apart the words of the law. Follow the highlights in this passage from page 12, commentary is provided in italics within.

Const 1963, art 2, § 9 states, in part: “No law as to which the power of referendum properly has been invoked shall be effective thereafter unless approved by a majority of the electors voting thereon at the next general election.” Based on the section’s plain language, “no law” is exempt from the suspension nor is any part or provision of a law exempt. Where a constitutional term is undefined, dictionary definitions may be consulted to determine its meaning. See, e.g., National Pride At Work, Inc v Governor of Michigan, 481 Mich 56, 69-76; 748 NW2d 524 (2008). The term “effective” may be understood to mean “in effect; operative; active.” See Webster’s New World Dictionary, Third College Edition (1988). Thus, when a referendum is properly invoked, no part of the subject law is thereafter operative or active. Applying this interpretation to Public Act 4, once the Board of State Canvassers certified the referendum, no part of the Act remained operative, including the repeal provision. (Holding this logic would mean a repeal provision could not be directly written into the law.)

Are repeal provisions on laws put someplace other than in the law? Where's this magic cache of repeal provisions held? Apparently being the top lawyer in Michigan means you can gerrymander the English language to make it say what you wish. Attorney General Schuette has sliced and diced the intent of referendum to craft intent toward a specific means which undermines the commonly understood intent. A building block of law, the intent, should not be reduced to rubble each time it requires reference.

The people voted to remove Emergency Manager Law, be it Public Act 4 or Public Act 72, which was included in the 3rd from last paragraph of the referendum.

Clinging to creating the case to have Public Act 72 in effect the argument in the opinion is made that there was no replacement law waiting to take its place. This is why there was a scurry to bring the 4 page bill from January 2012 forward and turn it into the law desired in the middle of December 2012. Stay tuned for more on this.

If the people wanted the law removed then both the LOCAL GOVERNMENT AND SCHOOL DISTRICT FISCAL ACCOUNTABILITY ACT [PA4] and LOCAL GOVERNMENT FISCAL RESPONSIBILITY ACT (141.1201 - 141.1291) [PA72] of the Constitution would be removed - yes without a replacement. Note this section of the Constitution does get filled on March 28, 2013 by Public Act 436 of 2012, provided the passage of that law is not contested in federal court and found unconstitutional.

You'll have to see how frustrating it is to the public that the people can't clearly see what laws are governing them. Every court case in Michigan confronting the veracity of PA72 as law at this time has pointed at the AG's opinion and said that is what they were basing the ruling on.

These are the compiler notes in the Constitution of the changes, italics are offered to point out where we are at this time leading up to March 28, 2013. According to these notes there is no act in effect, we are abiding by an opinion of the Attorney General as if that is law.

Act 4 of 2011 was rejected by a majority of the electors at the November 2012 general election. The vote was certified by the state board of canvassers on November 26, 2012. Act 72 of 1990, which had been repealed by Act 4 of 2011, came back into effect while the referendum on Act 4 of 2011 was pending. (NOTE there is a gap in this timeline of what is in effect there is no PA4, no PA72, and no PA436.) Act 436 of 2012, which was approved by the governor December 26, 2012 and filed with the secretary of state December 27, 2012, provided a new act (MCL 141.1541 to 141.1575) known as the local financial stability and choice act, effective March 28, 2013. Act 436 of 2012 repeals Act 72 of 1990, effective March 28, 2013. (Oh by the way PA72 was repealed already!)

In conclusion in observing the above compilation notes Michigan would not have a law supporting any  Emergency Manager or Emergency Financial Manager between November 27, 2012 and March 28, 2013. Given the date and time of this hearing, March 12, 2013, there is no supportive law holding the City of Detroit in a Consent Agreement or any Local Government or School District throughout Michigan under Emergency Manager Law (PA72) until March 28.

Stay tuned for the Miraculous Public Act 436, The New Emergency Manager Law - I'll go through the process of how this bill came to be law and the various violations of Michigan Constitution along the way. This is a law scraped up off the floor of PA4 being savagely ripped apart by the people and shocking it into life during the lame-duck session of 2012. Oh yeah - it isn't supposed to be substantially similar in form to a prior law... well the public isn't looking, or are they?

Sign the petition linked on the button at left. Let the White House and Department of Justice know we are watching and are very concerned. http://wh.gov/wGJK (case sensitive)