Update to Earlier Michigan Emergency Manager Law Post

The discussion found in my blog post from November 2012 about the applicability of MCL 8.4 to the rejection by referendum of Michigan's Emergency Manager Law Public Act 4 at http://koehlerlegal.blogspot.com/2012/11/repeal-by-referendum-in-michigan.html will be moot when the newly signed emergency manager law takes affect in a few months. 

The new law was signed today by Governor Snyder.  http://www.detroitnews.com/article/20121227/POLITICS02/212270407/Gov-Snyder-signs-new-Michigan-emergency-manager-bill?odyssey=tab|topnews|text|FRONTPAGE.  If the vote had been an initiative repealing or amending Public Act 4 rather than a referendum on Public Act 4 then the initiative could have only been amended or repealed by another vote of people or a 3/4 majority of both chambers of the state legislature.

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan (MI) 48198 (Washtenaw County)

Michigan Civil Rights Initiative - Proposal 2 on the 2006 Ballot - Federal Lawsuits

Proposal 2, an amendment to the Michigan Constitution banning the use of affirmative action with facially neutral language, passed in the November 2006 general election with 58% support. 

The amendment reads:

1. The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
2. The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
3. For the purposes of this section "state" includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.
4. This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.
5. Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.
6. The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Michigan anti-discrimination law.
7. This section shall be self-executing. If any part or parts of this section are found to be in conflict with the United States Constitution or federal law, the section shall be implemented to the maximum extent that the United States Constitution and federal law permit. Any provision held invalid shall be severable from the remaining portions of this section.
8. This section applies only to action taken after the effective date of this section.
9. This section does not invalidate any court order or consent decree that is in force as of the effective date of this section.

Opponents of the ballot initiative sued in U.S. District Court.  The amendment was upheld as constitutional by Judge David Lawson.  Last year the U.S. Sixth Circuit Court of Appeals 3 judge panel reversed in a 2-1 decision asserting that the constitutional amendment reorders Michigan's political process to place special burdens on minorities.  It appears that the panel was of the opinion that taking the issue to the statewide constitutional ballot initiative level and consequently away from the discretion of the individual college/university administrations was a reordering of the state's political process.  The full Sixth Circuit agreed to consider the case en banc meaning that the ruling of the panel overturning the law was vacated and all the judges on the Sixth Circuit will consider the case and issue a ruling.  A split opinion is certain on this one.  The only question is will one side or the other come out with more votes.  If the judges split evenly the district court ruling that the amendment is constitutional will be affirmed by default.

 Oral arguments were scheduled for today.

News Source:

http://www.detroitnews.com/article/20120307/METRO/203070336/Court-debate-Mich-affirmative-action-ban?odyssey=mod%7Cnewswell%7Ctext%7CFRONTPAGE%7Cs

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)