The writer was a 52nd District Court judge in Novi and assistant state attorney general. He’s chief financial officer of the Justice Speakers Institute and a Deadline Detroit contributor.
By Brian MacKenzie
Since gerrymandering benefits political insiders, as I pointed out in a recent column, it should come as no surprise that Citizen’s Protecting Michigan’s Constitution (CPMC) challenged placing the initiative on the ballot. Funding for this challenge comes almost entirely from a Michigan Chamber of Commerce political action committee whose largest single contributor is Enbridge Energy. Enbridge is the Canadian owner of Line 5, the pipeline under the Straits of Mackinac. In other words, CPMC is funded by significant political insiders.
More surprising is the actions of Attorney General Bill Schuette. For the first time in modern Michigan history his office refused to defend a ballot initiative before the Court of Appeals. After the Appeals Court ordered the initiative placed on the ballot and the corporate insiders appealed to the Michigan Supreme Court, his office once again, on behalf of the Secretary of State, refused to defend the people’s right to vote. He then took the unprecedented step, in his elected role, of filing a separate brief supporting the insiders.
Why did our Attorney General do this? Well, he’s running for governor and wants the chamber’s political action money, so perhaps that explains his unprecedented actions.
It could also be that he wants to defend an opinion he wrote when he was a judge on the Court of Appeals, which political insiders are using to attack the initiative.
That opinion gave courts the power to reject the people’s right to vote on constitutional ballot initiatives. To justify this conclusion Schuette relied heavily on a California Supreme Court decision entitled McFadden v. Jordan.
It held that the California Constitution limited citizens initiatives when it came to their constitution. They could only amend and not more broadly change it. However, the California Constitution, unlike Michigan’s, has a specific limitation on the right of citizens to change their constitution.
Still, Schuette glossed over that to reach the conclusion that our constitution was similarly limiting. However, California passed an amemdment to the constitution to adopt a citizens commission similar to the one being proposed in Michigan without court challenge
Though Schuette and the political insiders rely on California law to claim that the Michigan Constitution limits citizen initiatives to amend the constitution, they apparently don’t want us to follow California precedents.
Which makes the question posed by Justice Bridget Mary McCormack during oral argument on Michigan’s initiative to Solicitor General Aaron Lindstrom from Schuette’s office all the more important: “Why don’t we get the court out of this business and let the people decide?”
She then asked what provision of the Michigan Constitution gave the Supreme Court a role in deciding what petitions go on the ballot. Justices Richard Bernstein, Brian Zahra and David Viviano also asked where in the text of the Constitution was a role for the court to limit constitutional initiatives spelled out? (You can see the entire argument here.)
Justice McCormack asks a good question — such a good question Bill Schuette himself needs to answer it honestly.