An “October surprise” is a time-honored underhanded political maneuver to try to influence an election by unveiling something new at the last minute. It’s also a sign of desperation.
In the waning days of the campaign season, the “Charming” group is circulating a July letter from an assistant attorney general that claims there is a conflict between the Historic District Commission (HDC) charter proposal and state law. And, after rushing to design and print yet another flyer, the “Charming” group sent their minions out to breathlessly blanket the city with it on a cold, 40-degree October 24th evening. Their latest effort even includes a dramatic photo of a gavel and the scary text that has become their hallmark.
One wonders why they’ve waited for less than two weeks before the election to use this months-old letter, especially after spending almost $4,000 on their campaign so far (and that’s just as of October 20).
Oh, you didn’t get your copy of the latest missive from the “Charming” group? Well, here you go:
Well, I’ll be darned. The “Charming” group thinks they’ve found a “real” fact, which if true, would be the first actual fact they’ve offered since forming their ballot committee last month.
You know, there are occasions when it’s a good idea to ask a lawyer friend what something really means before making a fool of yourself. Oops! This was one of those times. It’s also amusing the “Charming” group appears to be very excited about the Home Rule Cities Act, a statute they’ve probably never heard of before and undoubtedly have never read.
Let’s look at:
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- Where this letter came from: The city attorney procured it as part of the city’s efforts to keep the proposal off the ballot.
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- How the “Charming” group got it: They must have gotten it from someone in the city administration who is still working against the ballot proposal since it was copied only to the clerk and city attorney. (I doubt the city attorney is stupid enough to work with the “Charming” group, especially since he objectively knows the letter was produced to provide a talking point but carries no legal weight. That likely limits it to people with access to the clerk’s email box, which would be our city manager, who is acting as the clerk, and the deputy clerk.)
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- What the letter really says: It’s not an opinion. It’s not from the attorney general. It goes well beyond what the attorney general is legally authorized to do for ballot proposals. It contains no reasons for its conclusions because there is no conflict with state law. Even if there were a conflict, that doesn’t invalidate the entire proposal. It’s not binding and didn’t prevent the proposal from being on the ballot.
To borrow the “Charming” group’s phrase, “uh-oh.” Unfortunately for them, they are the ones who don’t have the “real facts.”
Where did this letter come from? The city has used a lot of resources to oppose the ballot proposal in violation of the Michigan Campaign Finance Act, which requires cities to be neutral on ballot proposals. The city’s obstruction started with the former city clerk’s refusal to reveal the status of her canvass of the petitions, necessitating a lawsuit against the city. When the city refused to stipulate to an order to certify the proposal to the Oakland County clerk for placement on the November ballot, the city clerk abruptly quit her job rather than sign something stating that she would do her duty to timely certify the proposal to the county clerk. In the midst of that lawsuit, the city attorney sent the proposal to the attorney general’s office, supposedly for “review.” Any guess on whether there was some discussion between the city attorney and the staff attorney he sent the proposal to before he sent the proposal? You don’t have to guess; the city attorney’s billing entries show he called the attorney general’s office right after reviewing the charter proposal. And, among the over 250 assistant attorney generals who work for the state, how did the city attorney know where to send his letter? Our politically well-connected city attorney somehow knew exactly where to go and exactly what he wanted, consistent with the city’s efforts to keep the question off the ballot. And the assistant attorney general who got the city attorney’s letter could read between the lines and know that the city attorney wanted. And surprise, surprise. About two weeks later the city attorney got what he wanted: A letter saying that the proposal conflicts with state law. So, the city, which obstructed putting the proposal on the ballot, procured a short letter saying the proposal was bad, but even then, the final letter was so legally lightweight that the city attorney didn’t even bother to bring it up at a city council meeting so the public could be informed of this ostensibly momentous conclusion.
How did the “Charming” group get the letter? The exchange of letters between the city attorney and the assistant attorney general occurred in July. The letters were from, to, and copied to the former city clerk, the city manager, and the city attorney. How did the “Charming” group get the letter? It must have come from someone in city administration, which is where the letter was kept. The letter was otherwise not publicized. That wasn’t because it was a secret; it’s because the letter didn’t mean anything for the ballot proposal. The fact that someone in the city administration gave this letter out and suggested it in any way provided “ammunition” against the charter proposal is just another part of the city’s continuing efforts to oppose the proposal. Those efforts include requiring a lawsuit to get the proposal on the ballot, refusing to be open about what it was doing, city officials soliciting opposition material from the state, inserting opposition material in HDC minutes, and setting up a city council meeting to provide a forum for those opposing the proposal. It is notable that three of the five sitting HDC commissioners and the chair of the Historic District Study Committee are all financial contributors to the “Charming” group’s opposition campaign. So, whoever in the city administration sent the letter to the “Charming” group well knew that it would be used in the campaign against the proposal. That was the point, after all. It’s just part of what the city has been doing to thwart this amendment for months. (Honestly, it would be a lot of fun to put city employees and officials under oath and find out which of them continue to use city resources to oppose the ballot proposal. We have no current plan to do that, but that doesn’t mean the Secretary of State won’t as part of a campaign finance act investigation. Just sayin’. 😉)
Let’s look at what the letter actually says. The letter really means nothing for several reasons. First, it isn’t an attorney general opinion. Here is a real attorney general opinion. An attorney general opinion is a very methodical analysis of facts and law that goes through a rigorous vetting process. And, for local issues such as a city charter question, the attorney general’s policy says she “typically does not issue opinions concerning the interpretation of local charters, local ordinances, locally negotiated collective bargaining agreements, and other uniquely local issues” and she will reject a request for an opinion when, as here, “the request seeks an interpretation of proposed legislation that may never become law” or “the request involves the operation of … a local unit of government.”
The issuance of an official attorney general opinion may take several months. Even then, attorney general opinions are “advisory” and only bind state agencies until they are challenged in court, because guess what? Attorney general opinions don’t bind a court either. My colleagues and I used to abbreviate attorney general opinions as “AGO.” Actual attorney general opinions (this letter is not one of those) can be interesting reading, but to give you some idea of the weight we gave it in local government, AGO was also jokingly referred to “Another Guy’s Opinion” (meaning it had no effect on us). The “Charming” group’s claim the charter proposal “doesn’t pass legal muster” is baseless (as all the rest of its claims have been).
The assistant attorney general’s letter has none of the hallmarks of an attorney general opinion. It’s not in the form of a formal attorney general opinion. It’s not signed by the attorney general or even copied to the attorney general. It was issued in violation of several provisions of the attorney general’s opinion policy: It involves interpretation of a local issue; it involves interpretation of a proposal that may never become law; and it involves operation of a local unit of government. And this letter didn’t go through the rigorous vetting process for attorney general opinions—review by a high-level assistant attorney general, the chief legal counsel, and the Attorney General’s Opinion Review Board.
Thus, the letter is not a formal opinion. It’s the musings of a staff attorney, unreviewed by anyone, cobbled together for the city attorney of a city that opposes the proposal. Consider that in deciding what weight to give this letter.
Second, the letter goes beyond what the attorney general’s office is authorized to do for ballot proposals. The attorney general’s only formal role is to review the 100-word ballot language. The Home Rule Cities Act, which the letter cites, says: “The purpose of the proposed charter amendment or question shall be designated on the ballot in not more than 100 words, exclusive of caption, that shall consist of a true and impartial statement of the purpose of the amendment or question in language that does not create prejudice for or against the amendment or question.” Michigan Complied Laws sec. 117.21(2). That paragraph goes on to define the attorney general’s role: “The text of the statement shall be submitted to the attorney general for approval as to compliance with this requirement before being printed.” That’s it. The attorney general is to review the ballot question text to assure it is impartial. It doesn’t say she is to review the substance of the proposal or opine on the validity of the proposal itself. And the law is that pre-election substantive review of initiatives is outside the authority of elections officials. The assistant attorney general’s letter goes well beyond what the law provides. But, of course, that’s what the city wanted, the players knew that, and the city got what it wanted—a broad statement alleging that the proposal is invalid.
Third, the letter has no explanation for the blanket conclusion it reaches. It just says, “I’ve reviewed it and there’s a conflict with state law.” Exactly what is the conflict? The letter doesn’t say. It has no reasoning or explanation, only a bald conclusion that does not specify a single actual conflict. That’s not how attorney general opinions work. On the other hand, there is a full analysis of the charter proposal as compared to the state law here. That shows there isn’t any conflict.
Fourth, the letter mischaracterizes the proposal by saying it “seek[s] to rewrite the city’s current historic district ordinance,” but declines to say what part of the charter proposal does that. Why not? Because there’s no “rewrite.” The proposal seeks only to clarify the HDC’s authority and procedures. The state Local Historic Districts Act (which the letter cites) gives broad authority to municipalities to “regulate the construction, addition, alteration, repair, moving, excavation, and demolition of resources in historic districts within the limits of the local unit.” MCL 399.202. A city can “prescribe powers and duties of the historic district commission, in addition to those prescribed in this act ….” MCL 399.213. So, nothing prevents the city from adopting a charter provision that regulates HDC procedures and exercises these broad grants of power. (Though there’s no “rewrite” of the local historic district ordinance involved here, the staff attorney’s letter also strangely seems to suggest the city isn’t allowed to rewrite its historic district ordinance if it wanted to, even though the Local Historic Districts Act: a. expressly allows the city to do that and b. the state can’t forbid the city from rewriting its ordinances.)
Fifth, even if there were a conflict (there isn’t), that wouldn’t invalidate the entire ballot proposal. The proposal has what is known in legal circles as a severability clause. It says: “It is intended that the provisions of this Chapter XVI be severable. If any provision, section, or portion of this Chapter XVI is declared invalid by a court of competent jurisdiction, that shall not affect the validity of this Chapter XVI as a whole or of any remaining provision, section, or portion.” In simpler words, if there’s anything wrong with one provision, everything else in the charter amendment would remain in effect. So, contrary to the assistant attorney general’s letter, the whole proposal is not invalid if discrete (unspecified) sections might conflict with state law (they don’t).
Sixth, if the assistant attorney general’s letter had any weight at all, election officials would have to follow it. Yet it didn’t bind them in any way. They put the proposal on the ballot because that’s what state law requires: The people should be able to vote on citizen-initiated proposals. The city learned that it couldn’t keep a proposal off the ballot because of attorney general review two years ago. It opposed putting the medical marijuana proposal on the ballot in 2022. It lost in two courts. The Michigan Court of Appeals said: “Nothing in the language of [the Home Rule Cities Act] indicates that the certification or submission [of a ballot proposal] is dependent on review by the city council, attorney general, or governor.”
So, you can take this informal, unreasoned, factually and legally unsupported letter from a staff attorney into account when deciding how to vote. But it’s really a nothingburger. And the “October Surprise” is a dud.
The “Charming” group’s latest flyer says, “It’s a lawsuit waiting to happen.” What lawsuit is that? Lawsuits require someone to sue, someone to be sued, and a valid basis for the lawsuit (if the attorney bringing the lawsuit doesn’t want to get punished by the court for signing off on frivolous claims). If the voters approve the proposal, who is going to sue, and for what? Will the “Charming” group sue the city to invalidate the amendment? Will the city council authorize spending thousands of taxpayer dollars to sue to invalidate something a majority of Clarkston voters wanted, and who would the city sue if it wanted to do that? Who is going to stand up in front of a judge to argue that advance notice of enforcement action is wrong and the HDC should be able to act whenever it wants without notice? That the HDC can hold secret meetings and take actions whenever if feels like it? That mediation of disputes is wrong and the HDC can issue orders without trying to resolve matters first? That the HDC can slap fines on you without advance notice and foreclose on your house if you don’t pay up? That the HDC can go to court without city council approval to get an order to come on your property to forcibly make the changes the HDC thinks are nice and make you pay for them? That the HDC can obligate the taxpayers for thousands of dollars of unbudgeted legal fees without city council approval? The HDC is a creation of the city and should be subject to city council budgeting and supervision.
The “Charming” group also bizarrely claims “the historic district is under threat!” Wait, what? I thought their problem was with the charter proposal. Or was it the city ordinance. Or maybe it was the Local Historic Districts Act. Or perhaps it was their newfound friend, the Home Rule Cities Act. Have you noticed they never tell you exactly how the historic district is “under threat” if the HDC is required to act within the law, informally resolve disputes, and get approval for expenses. Why is that?
The flyer also claims the proposed charter amendment is misleading. How so? Not even the staff attorney at the attorney general’s office claimed the charter amendment itself was misleading. That’s just another false claim from the “Charming” group. (Don’t believe me? Go back and read the letter again.)
At the end of the day, you need to decide what kind of HDC you want to have.
Do you want a group of preservation hobbyists with no particular educational or experiential qualifications to operate independently of the city council and spend unbudgeted money on lawsuits that force property owners to do things against their will, or to issue fines on their own accord that could result in the eventual loss of someone’s home if they aren’t paid? Do you want the HDC to be limited to what state law actually requires, or do you prefer being forced to appear before them if you want to replace five clapboards on a painting job (something HDC commissioner Michael Moon said was required, even though it’s outside of what the Local Historic Districts Act or the city’s ordinance requires)? Do you think it’s preferable for the HDC to work with property owners in a collaborative way to resolve issues rather than punishing them with litigation the city can’t afford? Do you support continued violations of the Open Meetings Act, disregard of state record-keeping requirements, and treating city officials with disdain when they ask for something as simple as copies of HDC decisions? Is it OK with you if HDC commissioners trespass on private property? Do you think the HDC should be spending your tax dollars to put restrictions on your property deeds? These are the things the HDC charter proposal addresses.
For years, people have been asking what can be done about the HDC.
If you actually want to do something, then vote “yes” on the charter proposal.
It’s really that simple.
We love questions! Unlike our opponents, we’ll give you honest answers with lots of evidence to back up what we say. Feel free to send questions to: ClarkstonCharterProposal@gmail.com.
(And if you’re tired of HDC abuse and favoritism, then please consider voting yes on the proposed HDC charter amendment on November 5! And because I’ve just said that and even though I haven’t spent any money, I’m going to add the following text though I’m not sure I have to:
Paid for by Susan Bisio, P.O. Box 1303, Clarkston, MI 48347 with regulated funds.)