LANSING – With just one dissent, the Michigan Supreme Court upheld the result of the Court of Appeals decision to take the Reform Michigan Government Now! proposal off the November ballot, though with varied reasons.

Supporters of the proposal said they have not yet made a decision on whether to seek federal court action in a last attempt to get the issue on the ballot.

The high court took three separate concurring opinions, with various justices joining each, to explain why the proposal should not be on the ballot (Citizens Protecting Michigan’s Constitution v. Secretary of State, SC docket No. 137136). Justice Marilyn Kelly stood alone in arguing the issue should have been sent back to the Board of State Canvassers to come up with ballot language.

Supporters of the proposal have said they would consider trying to take the issue to federal court, but RMGN spokesperson Dianne Byrum said those decision had not been made late Monday.

“It’s very unfortunate that the court has blocked the people of Michigan from deciding this very important issue for themselves,” Byrum said. “The real losers are the people of Michigan who are hungry for the change this proposal represents.”

Robert LaBrant, a leader of the Citizens Protecting Michigan’s Constitution, the opposition committee, said Monday’s decision was well-founded, though he admitted it could have been clearer in guiding future petition circulators.

“This was a very cynical attempt by Mark Brewer (chair of the Michigan Democratic Party) to change the rules of the game to favor one political party,” LaBrant said. “In his overreaching the courts have kept this proposal off the ballot.”

But he said it was not likely the state would see another amendment attempting to make as many changes as RMGN.

Justice Elizabeth Weaver took the most space to discuss her concurrence in the order, agreeing that the issue should not have been on the ballot, but taking issue with the way the Court of Appeals reached that decision and arguing the case “highlights the need for this Court to have written, clear rules regarding the disqualification of justices.”

In a joint statement with Justice Michael Cavanagh and Justice Stephen Markman, Weaver said the Constitution’s requirement that ballot proposals be summarized in 100 words or less places limits on the subject matter of proposed amendments.

“Because of the exigencies of the present election schedule, and because a proposal of this extraordinary scope and multitude of unrelated provisions clearly cannot be reasonably communicated to the people in ‘not more than 100 words,’ we agree with the Court of Appeals that this proposal cannot be placed on the ballot without violating our constitution,” the three said.

But in her separate concurrence, Weaver said the Court of Appeals went too far in crafting its reasoning for taking the issue off the ballot, particularly in considering California court decisions to interpret the Michigan Constitution.

“The Court of Appeals opinion is an example of judicial activism-of the unrestrained, mistaken use of the power of interpretation,” she said. “Such California law interpreted directly into our Michigan Constitution, or circularly relied on for support, seems harmless in this case because it reaches the correct result, but it is harmful and dangerous for the future. It wrongly creates a ‘judicial veto’ over future voter-initiated proposed amendments by petition even if such a proposed amendment were a one (1)-issue, single purpose amendment whose ‘not more than 100 words’ purpose statement for printing on the ballot would easily be sufficient, understandable, impartial, and true.”

She argued the Court of Appeals should have allowed the Board of State Canvassers to develop its 100-word description and then decide whether that was appropriate.

Weaver, Cavanagh and Markman, in a footnote to their joint concurrence, acknowledged that Kelly was correct in arguing the case should have been remanded to the board for its action first, but argued there was not time, give the ballot printing deadlines, to allow that extra step.

Kelly argued the court had to allow the board to act before it could decide whether the proposal went beyond the scope of a 100-word description. “I believe that the limitation is in the requirement that the initiative be capable of being communicated to the voters in not more than 100 words. I agree, also, that any such statement of purpose must be easily understandable,” she said.

“But, without having the Board of State Canvassers’ proposed language before it, how can this Court determine that a legally acceptable statement of purpose cannot possibly be made in 100 words? It does not follow ‘as the night the day’ from the fact that the initiative is lengthy and complex that it cannot be summarized adequately in 100 words.”

Kelly also argued the Court of Appeals did not support its conclusion that the RMGN proposal was a “general revision” of the Constitution, not an amendment. “The Court of Appeals seems to be saying that, although no clear definition is available, it knows a revision when it sees it,” she said. “I find this reasoning unconvincing.”

Justice Maura Corrigan, in a concurrence joined by Chief Justice Clifford Taylor and Justice Robert Young Jr., agreed with the Court of Appeals that the RMGN proposal constituted a general revision of the Constitution, as opposed to an amendment and so was not appropriate for the ballot. She also questioned the use of the California case law, but said sufficient Michigan cases were cited to support the lower court opinion.

Kelly said Monday’s order essentially leaves nothing decided except that RMGN would not be on the ballot. “Rather than articulate its own analysis of the issues, the majority elects simply to summarily keep the initiative off the ballot while rejecting the reasoning of the Court of Appeals,” she said. “What guidance has this Court offered to individuals and organizations that wish to sponsor ballot initiatives in the future? How are they to know how many constitutional changes in one initiative are too many, or how sweeping is too sweeping?”

Weaver also saw policy left undone with the order. She agreed with the high court’s decision not to allow the appeal on the motions to have judges and justices recuse themselves from the case. And she praised the members of the court for all filing notices that they had potential conflicts (though Taylor and Corrigan did so at the top of Monday’s order), but she said a written policy was still needed to address recusal by the appellate bench.

This story was provided by Gongwer News Service. To subscribe, click on Gongwer.Com

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