This is unprecedented
The Michigan Court of Appeals ruled today that the petitions for the repeal of Michigan's Emergency Manager law did NOT comply with the law. This is despite the sworn printer's affidavit and expert analysis proving otherwise.
However, the Court also said that prior rulings relating to "substantial compliance" compel them to allow the petitions and to validate the signatures.
However Part 2, they also said they believe that the prior rulings were in error and that they shouldn't be held to them. In an unprecedented move, they decided to poll all 28 members of the Court of Appeals on whether they should appoint a seven-judge conflict resolution panel to hear the case and stayed its decision ordering the referendum be placed on the ballot until that panel rules.
The petition drive to seek a referendum on Michigan’s controversial emergency financial manager law took another strange twist today as a state appeals court panel ruled that it should go on the ballot, then stayed its own order to poll the entire appellate bench on whether to review the issue further. [...]This delays even further any final ruling. By doing this, they reduce the amount of time opponents of PA 4 will have to get out the vote for the cause and, conceivably could delay a ruling for so long that it might be too late to get on the ballot no matter what the ruling. Keep in mind that, no matter what the final decision is, it will likely go to the state supreme court.
The rarely-used procedure ordered by the court calls for a poll of all 28 members of the Court of Appeals on whether to appoint a special panel of 7 judges to resolve the dispute.
This all smacks of an intentional effort to thwart the repeal without having to actually rule against the petitions. I wouldn't take bets that the seven-judge panel won't be mostly anti-repeal Republicans.
The ruling is HERE.
Here's the salient bit:
In summary, under Bloomfield, plaintiff’s petition substantially complies with the statutory requirements such that plaintiff has a clear legal right to certification of the petition. Defendants have a clear duty to certify the petition for the ballot because the petition has the requisite number of signatures and meets all other statutory requirements. Under all of the circumstances presented here, the act of placing the petition on the ballot is ministerial. Plaintiff does not have an alternate legal remedy. The elements of mandamus thus have been met and we direct the Board to certify plaintiff’s petition for the ballot. However, as we have indicated, but for the fact that we are required to follow Bloomfield under MCR 7.215(J)(1), we would rule that plaintiff’s petition is invalid because the petition heading is noncompliant with the 14-point type mandated by the Secretary and MCL 168.482(2). Furthermore, because of the invalid petition heading, we would find that plaintiff has no clear legal right to certification of the referendum for placement on the November 2012 ballot, and therefore, we would direct the Board to not certify plaintiff’s petition for the ballot.UPDATE: Just as a reminder, the only thing that was in the "wrong" font was the phrase "REFERENDUM OF LEGISLATION" on the petitions.
Because Bloomfield is determinative of the outcome of this case, we follow it as we must under MCR 7.215(J)(1), and we call for the convening of a special panel of this Court pursuant to MCR 7.215(J)(3). This opinion is given routine issuance pursuant to MCR 7.215(F)(1) and execution is stayed pending the poll of the judges of this Court pursuant to MCR 7.215(J)(3)(a).
The rest of the petition is not in dispute. For this, they are attempting to throw out nearly a quarter million valid petition signatures and silence the voice of democracy.
Goddess help us...
UPDATE 2: The three judges involved with this decision were all appointed by Republican governors. One of them even voted IN FAVOR OF THE DECISION HE NOW SAYS WAS "WRONGLY DECIDED".
I'm not kidding:
"This court is now saying that 'Well, we think 30 years of precedent is wrong until hopefully we can get some of our colleagues to agree with us,'" said Herb Sanders, a Detroit attorney representing Stand Up for Democracy. "We are right and the law says we are right."[Cross-posted from Eclectablog.]
A 2002 case involving the city of Pontiac trying to annex land from Bloomfield Township set the most recent legal precedent Appeals Court Judges Kurtis T. Wilder, Kirsten Frank Kelly and Michael J. Riordan argued "was wrongly decided."
All three judges were appointed to the bench by Republican governors. Wilder signed the 2002 opinion he now says was wrong.