Proposal 2010-01-- State Con-Con question generates heated opinions

By John Minnis

Legal News

The Michigan Chamber of Commerce and labor have something they agree on: opposition to Proposal 2010-01 on the Nov. 2 ballot calling for a state constitutional convention.

"It must be a good idea," said attorney John Axe, chairman of Citizens for Michigan, a bi-partisan group favoring the ballot proposal. "The Michigan Chamber of Commerce on the right and labor unions on the left have banned together to oppose it."

Every 16 years, Michigan voters get to decide on whether to call for a constitutional convention (Con-Con) to rewrite the state Constitution. And, as in 1978 and 1994, the Michigan Chamber of Commerce is leading the opposition to opening the Constitution at what it calls a "free-for-all" convention.

However, the Michigan Chamber is facing some big-name, bipartisan opposition. Citizens for Michigan includes such polar opposites as Frank Kelley and L. Brooks Patterson. The group has recommended some 63 changes to the state Constitution.

"We assembled a 'Dream Team' of the best minds on government--Republicans and Democrats, elected officials and ordinary citizens--to go through our constitution with a fine comb and see where the snarls are," said Patterson, the Republican Oakland County executive, when the group was formed. "These recommendations offer the entire state a starting point from which to begin discussions on whether and how Michigan's constitution should be improved."

Added Democratic former Attorney General Kelley, "These recommendations are just that, recommendations. It is our hope that the public considers these recommendations in the spirit in which they are offered. Our only agenda here is to see good public policy enacted."

Citizens for Michigan's proposed changes include:

* Recall provisions only for local officials for "non-political" reasons.

* Require only simple majority voting in the Constitution.

* Expand term limits to 12 years.

* Empower a governor to appoint his/her entire cabinet other than elected statewide constitutional officials.

* Change the selection of Supreme Court justices and Court of Appeals judges to longer, single-term gubernatorial appointment, with advice and consent of the Senate, and with partisan balance on each court.

* Change to gubernatorial appointment of all public university trustees, from elections with partisan nomination to gubernatorial appointment, with advice and consent of the Senate, and with partisan balance.

* Eliminate restrictions on local taxation, particularly for transportation purposes.

* Change the Proposal A school foundation allowance floor to the previous year.

* Add a statewide millage for school infrastructure.

* Eliminate the Headlee rollback provision in Article IX, Section 31.

Citizens for Michigan urges voters to vote "Yes" on the Con-Con ballot questions, Proposal 2010-01, in order to have the opportunity to discuss and possibly incorporate some the changes in the proposed constitution for voter ratification.

The Michigan Chamber of Commerce urges voters to vote "No" on Proposal 2010-01.

"The alternative (to a Con-Con)," the chamber maintains, "is to be supportive of constitutional reform and modernization without agreeing to a constitutional free-for-all at a convention. Constitutional change can come about amendment by amendment. Although the present Constitution is not perfect, it contains no fatal flaw."

"They are absolutely scared to death," Axe said of the Chamber's and other special interests' opposition to a constitutional convention. "Their interest in good government is absolutely zero."

The current constitution was approved (barely) by voters in 1963 following George Romney's election as governor in November 1962. Romney, a Republican convention delegate, was joined by Democrats Coleman Young and Richard Austin, among others.

Michigan has had four Constitutions: 1835, 1850, 1908 and 1963.

Michigan's first constitutional convention was held before Michigan became a state. The first constitution invested in the executive branch the authority to appoint the attorney general, secretary and Michigan Supreme Court justices. It also allowed the Legislature to spend and borrow money for state infrastructure improvements, such as roads and canals. The Legislature quickly spent the state into a financial crisis.

The 1850 constitution was twice as long as the 1835 document and called for the statewide election of seven officials. The new constitution also called for the Con-Con question to be put before voters every 16 years.

In 1866, voters approved another constitutional convention but rejected the convention's revised document. They did so again 16 years later.

Prior to 1960, the Con-Con ballot question had to be approved by a majority of those voting in the election. In 1892, 1898, 1904, the Con-Con ballot question received more "Yeses" than "Nos" but failed to be approved by a majority of those casting ballots.

In 1906, the majority of voters approved a constitutional convention and two years later approved Michigan's third constitution. The new document contained many progressive reforms, such as municipal home rule, line item veto, referendum and initiative provisions and child and women labor restrictions.

After 1906, all Con-Con ballot questions failed to be approved by a majority of voters, even though several times more voters approved the measure than not. In 1960, on the coattails of the election of John F. Kennedy as president, Michigan voters approved the Gateway Amendment, which changed the Con-Con ballot requirement to a simple majority of those voting on the question rather than the added hurdle of a majority of all voters casting ballots.

At the next election five months later in 1961, voters approved the call for a constitutional convention under the Gateway Amendment criterion and went on to ratify Michigan's current Constitution in 1963.

The Gateway Amendment was promoted by Romney's Citizens for Michigan, the same name Axe chose for his bipartisan team.

"That's no accident," Axe said. "Citizens for Michigan was formed to get a new constitutional convention called."

The 1963 Michigan Constitution has been amended 30 times. Thirty-seven constitutional amendments have been defeated by voters. Of the approved constitutional amendments, nine were due to petition drives. Of the 37 rejected amendments, 21 were put on the ballot by petition.

Citizens for Michigan seeks to curtail the ability of out-of-state special interests with big pockets from hiring circulators and forcing "some new social experiment they'd like to try out" on the Michigan ballot.

"If you had $1.5 million," Axe said, "You could get a proposal on the ballot."

No Con-Con ballot question has been approved by voters since 1961. Sixteen years ago, voters rejected a constitutional convention by a 72 percent to 28 percent margin. Sixteen years before that, in 1978, voters rejected the Con-Con ballot question by a similar margin.

State Constitution expert Justin Long, an assistant professor at Wayne State University Law School who served as a panelist during a Michigan Constitutional Convention presentation recently, said he is not aware of any burning issues that would motivate voters to approve a Con-Con ballot question on Tuesday.

"The mere absence of that advocacy is a clear indication that it will not pass," he said of Tuesday's ballot Proposal 2010-01.

State constitutional conventions are best for structural changes, he said, such as changing the way judges are selected or the way the Legislature is formed. Going to a unicameral Legislature, for example, would be a good example of what a constitutional convention can do better than an amendment.

Axe, who teaches public finance law as an adjunct professor at WSU, favors gubernatorial appointment of Supreme Court justices and Court of Appeals judges to single, 10-year terms.

"The average person has no clue whether they are electing a good judge or a bad judge," he said. "We ought to at least appoint the Supreme Court justices and the Court of Appeals judges."

Citizens for Michigan also seeks to eliminate the Headlee rollback of tax rates to prevent windfall tax gain due to rising property values. In today's market, where property values are falling, not climbing, Headlee does not make sense, Axe said.

Headlee combined with Proposal A is a disaster, he said.

"Proposal A wrecked the way schools are financed," Axe said.

If voters approve a constitutional convention, a primary and special election will have to be held within six months to select convention delegates, one from each of the 110 representative districts and one from each of the 38 senate districts.

Michigan election laws allow for four elections in a calendar year. So the first election date after November would be in February.

"It's a good opportunity for citizens who haven't been elected before to get their feet wet," said Axe, a Republican who has ran unsuccessfully for Wayne State and University of Michigan regent.

Long said all the delegates would be paid (the amount to be set by the Legislature) and would have the right to hire staff. Necessary expenses, such as office rent and supplies would also have to be covered by taxpayers.

One of the Chamber's leading objections to a constitutional convention is its cost, which would be more than $40 million, Long said.

"They have no idea what it would cost," Axe countered. He pointed out that the entire Legislature costs $42 million, 1 percent of the state budget. He doubted a Con-Con would cost that much.

On the other hand, if a new Constitution resulted in less expensive government, such as a part-time or unicameral Legislature, the cost of a constitutional convention could be repaid many times over, Long said.

"$40 million sounds, of course, sounds like a lot of money we don't have right now," he said, "but a new Constitution could make for a more cost-effective government."

Axe agreed.

"If you spent $42 million to save $42 million every year afterward," he said, "that's a good investment."

The 1963 Constitution stipulates that the Con-Con would convene Oct. 4, 2011, in Lansing.

Once the convention is seated, there is no limit to what it can change, thus the Chamber's fear of a "free-for-all." But, Long points out, whatever document the convention comes up with, it has to be acceptable to voters. Further, the delegates may present the new Constitution piecemeal so voters are not forced to accept or reject all changes in total.

Controversial issues that may arise in a Con-Con include same-sex marriage, affirmative action, gay rights, abortion rights, the death penalty, home rule, school district consolidation, physician-assisted suicide, legalization of marijuana, public funding of private education and stem cell research.

Yet Professor Long does not fear single-issue activists taking over a constitutional convention.

"People who have gone through this," he said, "have said it was one of the most important experiences of their lives. They are well aware of the responsibility of their job. They treat it the same as they would being on a jury."

Published: Mon, Nov 1, 2010