Thousands demonstrate outside the State Capitol on March 16, 2011. The protest was against the new draconian legislation designed to bust unions. (Photo: Abayomi Azikiwe), a photo by Pan-African News Wire File Photos on Flickr.
August 9, 2013 at 2:37 pm
U.S. court: Michigan Legislature 'ignores' constitution in fast-tracking bills
David Shepardson
The Detroit News
Washington — A federal appeals court ruled Friday the Michigan Legislature may have violated the state Constitution when it allowed the state’s emergency manager law to take immediate effect, calling the procedure used “a farce” and “obvious fiction.”
In a 2-1 decision, a U.S. Court of Appeals panel said Pontiac retirees who sued a state-appointed emergency manager for cutting their benefits will get a new hearing in federal court and ordered a review of the state Legislature’s approval of Public Act 4 in 2011. The benefit cuts affected more than 1,000 retirees.
The appeals court ordered a new hearing to determine if two-thirds of the Michigan Legislature voted to make Public Act 4 — the law allowing state emergency financial managers — immediately effective. Typically laws in Michigan become effective 90 days after they are signed by the governor, unless they get two-thirds approval of both houses of the state Legislature.
When Public Act 4 was approved by the Michigan House, it passed with 62 votes — 12 short of the two-thirds requirement, the court said. The House used a rule that allows it to conduct a “rising vote” where the presiding officer examines the chamber to see whether the requisite two-thirds support exists, the appeals court said.
“Apparently a two-thirds vote occurs whenever the presiding officer says it occurs — irrespective of the actual vote. This authority is unchecked and often results in passing motions for immediate effect that could not receive the constitutionally required two-thirds vote. Apparently the Michigan Legislature believes the Michigan Constitution can be ignored,” wrote Judge James Gwin, an appointee of President Bill Clinton, who was joined by Judge R. Guy Cole, another Clinton appointee. “Public Act 4 exemplifies this farce. The Michigan House presiding officer refused a request for a roll call vote and Public Act 4 immediately effective through the obvious fiction that 12 House members immediately changed their positions.”
The court said the Legislature has “perverted the immediate effect exception to swallow the constitutional rule.”
The court said that under GOP control of the House, 319 of 323 bills were passed with immediate effect in 2011; and in 2010, it approved 345 out of 363 bills with immediate effect. The court said Democrats have also abused the exception. In 2006, when Democrats controlled the House, 664 out of 682 bills were approved with immediate effect.
“Plainly the Legislature will not self-correct its abuse of the immediate effect exception because the majority party controls and benefits from the process,” the court said.
The Michigan Court of Appeals has previously allowed the procedure to remain, but the federal court said its ruling made “little sense” and is “illogical.”
“The Michigan Constitution expressly limits the legislature’s power to give laws immediate effect. Yet the Michigan Court of Appeals says the Michigan Legislature has the power to decide whether the constitutional limitation applies.”
The 2011 Public Act 4 allowed emergency financial managers to break collective bargaining agreements and set aside retiree commitments. Voters threw out the law in a November 2012 referendum.
The state Legislature then approved Public Act 436 that “largely reenacted the provisions of Public Act 4, the law that Michigan citizens had just revoked,” the appeals court noted. But the Legislature inserted a minor spending provision “apparently to stop Michigan voters from putting Public Act 436 to a referendum,” the court said.
From The Detroit News: http://www.detroitnews.com/article/20130809/METRO06/308090106#ixzz2bW00Un45
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