State of Michigan v. City Council for City of Detroit

• Court: Michigan Supreme Court
• Decided: July 17, 2002
• Docket: 121938
• Status: Published

Opinion

Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________ C hief Justice Justices Maura D. Cor rigan Michael F. Cavanagh

O pinion Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 17, 2002

STATE OF MICHIGAN, et al.,

Plaintiffs-Appellees,

and

CITY COUNCIL FOR THE CITY OF

DETROIT, et al.,

Intervening Counter­ Plaintiffs-Appellees,

v Nos. 121918, 121919

WAYNE COUNTY CLERK, and WAYNE

COUNTY ELECTION COMMISSION,

Defendants-Appellees,

THE DETROIT ELECTION COMMISSION,

Defendant-Appellant.

___________________________________

Intervening Counter-

Plaintiffs-Appellants,

v Nos. 121938, 121939

WAYNE COUNTY CLERK, WAYNE COUNTY

ELECTION COMMISSION, and THE

DETROIT ELECTION COMMISSION,

Defendants-Appellees.

________________________________

MEMORANDUM OPINION

In 2002 PA 432, the Legislature directed the city of

Detroit to place on the August 6, 2002, ballot a proposal to

change from the current at-large system of electing the city

council to a single-member district plan. However, the

Detroit Election Commission declined to certify the measure

for inclusion on the ballot. The plaintiffs brought this

action in circuit court seeking mandamus, and the circuit

court ordered the proposition placed on the ballot. Claims of

appeal were filed by the Election Commission and by the

Detroit City Council and its incumbent members, who had been

permitted to intervene. After the Court of Appeals denied

motions for expedited consideration, they filed applications

for leave to appeal to this Court before decision by the Court

of Appeals.

We conclude that the statute does not validly direct

placement of the proposition on the ballot because it was not

passed by a two-thirds vote in each house of the Legislature,

as required by Const 1963, art 4, § 29. We therefore reverse

the judgment of the circuit court.

Act 432 amends the Home Rule City Act by adding

MCL 117.3a, which includes the following provision:

(1) A city that has a population of not less

than 750,000 as determined by the most recent

federal decennial census and that has a city

council composed of 9 at-large council members

shall place a question in substantially the

following form on the ballot at the general primary

election held on Tuesday, August 6, 2002:

“Shall the existing 9-member at-large council

be abolished, shall the city be reapportioned into

9 single-member election districts, and shall district residency requirements be imposed on candidates for the city council?

“Yes (_____)

“No (_____).”

One of the challenges raised by the appellants is a claim

that the act violates art 4, § 29, which provides:

The legislature shall pass no local or special

act in any case where a general act can be made

applicable and whether a general act can be made

applicable shall be a judicial question. No local

or special act shall take effect until approved by

two-thirds of the members elected to and serving in

each house and by a majority of the electors voting

thereon in the district affected.

The statute does not refer by name to the city of

Detroit, but rather purports to apply to any city with a

population of more than 750,000 that has a nine-member

at-large elected city council. However, at present, only the

city of Detroit meets that population criterion. Such

population-based statutes have been upheld against claims that

they constitute local acts where it is possible that other

municipalities or counties can qualify for inclusion if their

populations change. Dearborn v Wayne Co Bd of Supervisors,

275 Mich 151, 155-157; 266 NW 304 (1936); Irishman’s Lot, Inc

v Secretary of State, 338 Mich 662, 666-668; 62 NW2d 668

(1954). However, where the statute cannot apply to other

units of government, that is fatal to its status as a general

act. See Mulloy v Wayne Co Bd of Supervisors, 246 Mich 632,

637-640; 225 NW 615 (1929); Avis Rent-A-Car System, Inc v

City of Romulus, 400 Mich 337, 345; 254 NW2d 555 (1977).

In this case, the statute plainly fails to qualify as a

general act. Even if another city reaches a population of

750,000, and has a nine-member at-large council, Act 432 would

not apply because of its requirement that the proposition

appear on the ballot at the August 6, 2002, election. No

other city can meet that requirement because there will be no

new census before that date.

The plaintiffs argue that the art 4, § 29 claim is a

substantive challenge to the proposed law, and thus not ripe

for review until after the law is enacted, citing Hamilton v

Secretary of State, 212 Mich 31; 179 NW 553 (1920), Ferency v

Bd of State Canvassers, 198 Mich App 271; 497 NW2d 233 (1993),

and Beechnau v Secretary of State, 42 Mich App 328; 201 NW2d

699 (1972). However, unlike the situations in those cases,

the appellants are not claiming that, if enacted, the statute

proposed by the Legislature would be unconstitutional.

Rather, the challenge is that Act 432 is a local act, which

requires a two-thirds vote in both houses of the Legislature.

It did not receive such a vote in the House of

Representatives.1 Thus, the act does not satisfy the

requirements for placing the proposition on the ballot.2

Accordingly, we reverse the judgment of the Wayne Circuit

Court, and order that the plaintiffs’ complaint for mandamus

be dismissed. The defendants shall take whatever steps they

deem appropriate to inform prospective voters that the

1 The measure did receive a two-thirds vote in the

Senate. 2002 Journal of the Senate 1501 (No. 53, June 5,

2002). However, it was approved by only a 67 to 37 vote in

the House. 2002 Journal of the House 1776 (No. 51, May 29,

2002).

2 In response to the order to show cause that we issued

on July 12, 2002, the plaintiffs essentially concede that Act

432 is a local act. They maintain, however, that Const 1963,

art 4, § 29 does not require that the approval by two-thirds

majorities in each house of the Legislature occur before the

vote of the electors in the affected district. However, we

read art 4, § 29 as requiring a two-thirds vote of each house

of the Legislature to approve the local act for placement on

the ballot in the community affected.

In addition, the state’s interpretation of the

constitution is flawed in at least the following respects: (a)

it would alter the sequence by which local or special acts

take effect under art 4, § 29, a sequence that is expressly

set forth in that provision,(b) it would transform the two­ step process specified in art 4, § 29 into an apparently

three-step process, and (c) it would create an open-ended and

indefinite process under art 4, § 29 by which the Legislature

could “ratify” a local vote many years after the local vote

had occurred within the affected district.

proposition has been removed from the ballot by court order

and that votes on it will not be counted.

Pursuant to MCR 7.317(C)(4), the clerk is directed to

issue the judgment order in this case forthwith.

CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and

MARKMAN , JJ., concurred.