by Lauren Fibel

When a city or school district is unable to pay their bills, and a state’s credit rating is in jeopardy as a result, what options do states have? On November 6th,  Michigan voters will decide the fate of Public Act 4, which Governor Rick Snyder signed into law in March of 2011. Public Act 4 allows the state government to appoint emergency managers for those cities or school districts who are in danger of defaulting on their obligations. Controversially, these emergency managers can act in place of the elected government officials and are allowed to act in what they determine is the best manner for the city. Emergency managers are allowed to renegotiate or terminate the school district’s or city’s contracts, sell city or school district property, acquire debt to be paid back by tax payers and even determine what services and expenditures the city will continue to provide. Currently, more than three cities and two school districts in Michigan are governed by emergency managers, yet some citizens feel that this type of appointment is an unconstitutional power grab

Critics of PA 4 argue that PA 4 is unconstitutional for a number of reasons, including that it limits voter rights in regards to local elections. When the state government determines that a city or school district is likely to default on owed obligations, the governor has the power, under PA 4, to appoint an emergency manager. This manager is not an elected official and is not accountable to the voters. John Phillo, Legal Director for the Sugar Law Center explains that, ““PA-4 establishes a new form of local government, unknown anywhere in the United States, where the people in local municipalities are governed by an unelected official who establishes local law by decree.” In fact, in Benton Harbor, Michigan, one of emergency manager Joseph Harris’ first acts after being appointed was to prohibit “all action by all city boards, commissions, authorities and other entities, except as authorized by the emergency manager.” Harris further decreed that, as the elected officials are no longer authorized to exercise the power given to them by the voters, all they are allowed to do is call meetings to order, approve of meeting minutes, and adjourn the meeting.

As the United States House Judiciary Committee noted[T1] , the level of political engagement in Benton Harbor, Michigan has plummeted as a result of the emergency manager laws. Citizens feel that there is no reason to vote for city officials when they will not have the authority to act. Further, critics of PA-4 note that those who are most affected by these emergency manager laws are the poor and minority voters. In fact, if Detroit and Inkster receive appointed emergency managers, over 50% of the state’s African American voters will be subject to the will of an unelected official. Interestingly, the emergency officials are appointed by a governor who may not have received the support of that demographic. Obviously, critics are crying foul over what they see as an imposition of government that they neither voted for nor wanted.

On February 29th, 2012, Stand Up For Democracy Coalition hand delivered 200,000 valid signatures in an attempt to get the question of repealing PA 4 on the November ballot. On August 3rd, the Michigan Supreme Court ruled that the initiative would appear on the ballot and voters would have the final say about whether to allow PA 4 to remain as good law. Republicans are already preparing for the possibility that PA-4 gets struck down by drafting a new, similar law. As debate intensifies on both sides, the repeal of PA-4 will be an interesting initiative to follow in the coming days.

Lauren Fibel is a 3L at William & Mary Law School.

permalink: http://electls.blogs.wm.edu/2012/10/29/emergency-managers-an-unconstitutional-power-grab-or-necessary-evil/

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