A Constitutional Battle is brewing in Michigan -- regarding the power of Governor to takeover and effectively dissolve local governments, local contracts, and local property ... cherished local community parks and resources. (Also known as the appointment of Emergency Financial Managers, EFM, when Snyder and co. determines there is a "local emergency").
And this battle seems to boil down to which of two legal principles, "State Preeminence" or "Home Rule" will end up being applied the most effectively ... by the legal resources, eventually brought to the matter.
Michigan emergency financial manager law: Is it constitutional?
By Kristin Bien, WSBT-TV -- April 27, 2011
[the video won't embed correctly, sorry.]
Link to Video, of local Michigan News Report
[article snippets, below ...]
[...] Opponents of this [EFM] law say it undermines Democracy and the very reason they vote.
"We believe it is an unprecedented reach and an illegal one which gives one person the power over executive elected officers. Which is anti-constitution," says Representative Fred Durhal, D-Detroit, "Every municipality should be able to elect public officials and hold them accountable for what goes on in their particular location."
Durhal has been outspoken on this issue. He says legal action will be taken against the state because this law violates voter rights and the Constitution of the United States.
But, does it?
Political science professor Sean Savage says while states have a sovereign right to exist, and the federal government could never take that away, that same rule doesn't apply to local governments.
"If congress and the President wanted to, they couldn't make a federal law that would say Michigan no longer exists as a state," says Savage, "But what Dillon's Rule says is that state governments can do that to local governments, even if it is against their will. If they want to change the form of a local government or they want a state takeover, they can do that."
And that's what the state of Michigan did in April of 2010. They used Public Act 72 of 1990 to appoint an EFM to Benton Harbor. [...]
OK, so what is Dillon's Rule, that EFM Advocates are hanging their legal "takeover hats" on? Dillon's rule their legal justification for dissolving Benton Harbor's elected Government ... first of many more "fire sale" communities, slated to follow.
And does this have anything to do with Andy Dillon, Treasurer for the State of Michigan, the guy who must sign off and approve many of the EFM actions? Short answer: No, I don't think so. (Unless there is a long Dillon family history there ... ?)
Michigan Constitutional Issues (pdf)
Citizens Research Council of Michigan
Report No. 313-09 -- Ninth in a series on revising the Michigan Constitution
October 1994
SYSTEM OF LOCAL GOVERNMENT
[Page 3]
Home Rule
The people in the state constitution define the legal relationship between the state and local governments and establish the relative degree of dependence on or independence from state control of local governments. The dichotomy between state control and local self government is illustrated by Dillon's Rule and the Cooley Doctrine. The theory of state preeminence over local governments was expressed as Dillon’s Rule in a 1868 case:
Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.
Clinton v Cedar Rapids and the Missouri River Railroad, (24 Iowa 455; 1868).
As opposed to Dillon's Rule, the Cooley Doctrine expressed the theory of an inherent right to local self determination. In a concurring opinion, Michigan Supreme Court Judge Thomas Cooley in 1871 stated:
“[L]ocal government is a matter of absolute right; and the state cannot take it away.”
People e v Hurlbut, (24 Mich 44, 95; 1871).
The continuing tension between Dillon's Rule and the Cooley Doctrine is the attempt to balance the interests of the state against the rights of communities to determine their own government. Through the state constitution, the people can establish the structure of local government and the distribution and balance of powers between the state government and local governments.
Under home rule, power is granted to local units to deal with local problems and needs. Michigan is considered a strong home rule state. [...]
OK is there anything more current than 1996, that affirms that Michigan IS a "strong Home Rule State"?
Well, there's this Report from 2010, regarding the restoration of polluted areas, known as "Brownfields" ...
Michigan Brownfield Redevelopment Innovation: Two Decades of Success (large pdf)
Html Link to same Report
Department of Geography and Geology
Eastern Michigan University
Final Report -- September, 2010
Robert A. Jones, William F. Welsh
[page 17]
Like many others, Michigan is a strong home rule state that has long relied upon local governments to make decisions that primarily are of local concern, including those related to development and to land use planning. State statutes granting this authority to Michigan cities have existed since the early 1900s.
Over time, much of this same authority has been extended to townships, making Michigan one of only a few states to grant this level of decision-making power and authority to townships. In Michigan, townships, much like cities, have the authority to make a wide range of decisions related to development, taxation, public service provision, and a host of other issues, even in unincorporated and rural areas. State planning enabling statutes reflect this home rule concept, granting to townships the same authority for autonomous land use and zoning decision making as that typically enjoyed by cities.
So it would seem that that Michigan IS indeed a very "strong Home Rule State" -- even going so far as to routinely granting extensive powers to local Townships. Chalk one up to Local Rights Rule argument side.
That was, at least until Public Act 72 of 1990 was recently revised (as Public Act 7 of 2011), and strengthened to empower Emergency Managers, to cast all that 'Home Rule' legal precedence aside, like last year's news:
What Rick Snyder's EFMs are really Allowed To Do -- and How to Prevent it, Michigan. -- by jamess -- Apr 19, 2011
This extensively re-written Michigan Public Law 7, effectively ignores and overrules the century-plus precedence of 'Home Rule' which previously determined and guided Michigan's local growth and local quality of life; This one act of the Legislature, conveniently sidestepped "consulting the people" to "change state constitution" to redefine the "balance of powers between the state government and local governments".
All EXCEPT for one minor clause left in tact, in Public Act 72, that leaves a smidgen of power still in the hands of Local Officials ...
this one clause that is the sole "EFM Escape Clause" still in the hands of Michigan Citizens and NOT yet the State Executives and their Appointees:
-- Authorize the review team to sign a consent agreement with the local government's chief administrative officer, and provide that a consent agreement could include a continuing operations plan or a recovery plan.
(see previous link:
Rick Snyder's EFMs)
The Local Government Administrator "must consent to" the EMF Agreement, before it can proceed.
THERE MUST BE A "CONSENT AGREEMENT" -- with the Local Administrative Officer, in order for the Emergency Financial Manager to get their dismantling show on the road.
SO, Michigan Citizens, I would strongly suggest you Find out who your "local government's chief administrative officer" is -- and then proceed to give that "local elected official" a good piece of your mind, BEFORE they decide to "sign on the EFM dotted line" ...
AFTERWARDS, it will be too late;
It will be all over, but for the shouting. and heartache. and regret. and the local worker pain.
Consenting to this Conservative CEO Power Grab, is the very LAST THING we should be doing.
There is a reason why Americans cherish our Independence, our self-reliance, our Local Home-town communities and social fabric. A reason WHY People band together to rebuild their communities when Disaster strikes -- in a word: Community Matters.
-- We should not easily give that up to this 'faux eminent domain' power grab that Dillon's Rule is trying to impose on Small Town America, overturning generations of local Township, Local Towns, Home Rule self-determination, previously the standard, in the once GREAT, State of Michigan ... (my fond 'alma mater').