Nick Krieger (@nckrieger):
It should come as no surprise that state lawyers defending Michigan’s emergency manager law have taken the position that residents of local units of government have no constitutional right to choose their own local elected officials. Are they correct?
In the American system of government, the 50 states are sovereign, and local units of government like cities, villages, and school districts have no inherent powers independent of the states. The only powers enjoyed by these local units of government emanate from the state itself—whether from the state constitution, the state legislature, or the state’s common law.
As an initial matter, there is no federal constitutional right to elect local officials. The United States Supreme Court has made this clear on several occasions. But what about under the state constitution?
In Michigan, the powers of local governments come from two places—the Michigan Constitution of 1963, and the statutes enacted by the Michigan Legislature pursuant to the state constitution.
Article 7, section 22 of the Michigan Constitution of 1963 requires the Michigan Legislature to enact generally applicable laws guaranteeing to the electors of cities and villages the right to frame and amend their own charters. Of course, all city and village charters address the election of local officials and the organization of the local government structure. The Michigan Constitution states that the powers granted to cities and villages must be liberally construed in their favor, and that the enumeration of certain constitutional powers for cities and villages must not be construed as otherwise limiting their general authority. These provisions, taken together, have been historically interpreted as conferring significant home rule on Michigan’s cities and villages.
Michigan school districts are different. The Michigan Constitution does not define school districts, confers no home-rule power upon school districts, and does not require the liberal construction of constitutional provisions in favor of school districts. In effect, although cities and villages have at least some limited authority that cannot be usurped or superseded by the Michigan Legislature, school districts are entirely creatures of statute. That which the Legislature has given to the electors of Michigan’s various school districts it may also take away.
Irrespective of the distinctions between cities, villages, and school districts, one thing that is common to all local governments in Michigan is the Legislature’s broad constitutional power to remove and displace local elected officials for any reason prescribed by law. Pursuant to Michigan’s emergency manager law, the Local Financial Stability and Choice Act, 2012 PA 436, as soon as a financial emergency is declared in a local unit of government, the local government enters into a state of “receivership.” During the receivership, all authority of the local elected officials is “suspended and vested in the emergency manager.” At that point, the emergency manager “shall act for and in the place and stead of the governing body and the office of chief administrative officer of the local government,” and “the governing body and the chief administrative officer of the local government shall not exercise any of the powers of those offices except as may be specifically authorized in writing by the emergency manager.” Unfortunately for local units of government, it appears that the Michigan Legislature does have the constitutional power to displace local elected officials in precisely this manner.
In other words, while city and village residents have the constitutional power to frame a charter and choose their own local officials thereunder, this power is subordinate to acts of the Michigan Legislature, which may prescribe the method of choosing, displacing, or removing these local officials. It is just one of the many seeming inconsistencies in our state constitution. In school districts, the power of the voters is still more tenuous, susceptible to even greater erosion by state lawmakers.
This is exactly why I have argued that the emergency manager law can be more effectively challenged at the ballot box than by litigation. It is unlikely that any state court will strike down Michigan’s emergency manager law as beyond the powers of the Michigan Legislature. And I strongly doubt that the federal courts will grant relief on any of the various claims that have been raised. But contrary to popular belief, the people of Michigan still have the power to directly repeal the emergency manager law by way of the initiative process. You can read how here.