Unchartered Territory: Legal, Political and Public Policy Contradictions of Charter Revision in Detroit

The Detroit Charter Revision Commission was elected in 2018. In January 2021 they produced a “discussion draft” of a revised charter for the City of Detroit, a formal requirement of state law for cities in Michigan, colloquially known as the city’s “constitution”. They want to submit their proposal to the city’s voters in August 2021, but they’re being forcefully opposed. Their web site has lots of information.

The document has come under intense attack by the mayor, the city’s corporation counsel and its chief financial officer. The governor refused to approve it under state law, but on May 13 the city election commission voted to put it on the ballot. Litigation, including appeals, may be imminent. The ultimate outcome is impossible to predict.

The issues are very important. Most public discussion of this proposed charter revision so far has been limited to 1) cost; and/or 2) illegality. I will discuss each of these issues in turn, and then turn to a broader discussion.

I should begin by disclosing that it’s been my job for a little more than the last decade to work with the charter on a daily basis as a staff lawyer for city council. I would add that, because this new proposed charter revision has particular features discussed below, trying to constructively address the discussion draft is one of the strangest professional challenges I’ve ever experienced. The document’s combination of strong progressive policy, with relatively weak strategizing and tactical posture, is certainly common to a lot of what there is of a US “left”. But few documents reflect as many extremes of both visionary, progressive policy substance, and simultaneous critical incapacities – particularly in the strategic employment of available policy tools to institutionally implement those policies – as the charter revision January 2021 Detroit charter discussion draft.

Cost – The Rule of Gold Breaking the Golden Rule

The issue of the cost of revising the charter has predictably sucked 90% of the oxygen out of the whole discussion, which is unfortunate. To claim that the issue of budget costs and deficits is irrelevant to the city charter, especially after the 2013-14 state emergency-mangled bankrupting, would be delusional.

But mainstream discussion of fiscal impacts of the proposed charter is significantly artificial and misleading, in this crucial respect: it projects large costs that really will never be incurred, if only because most of the extremely costly proposed changes in the revision/discussion document will never be implemented, even if the charter is ultimately adopted by the voters. Let me try to explain this based on actual experience with the charter.

Lawyers for the city and state opine that (assuming the provisions in the discussion draft were adopted and implemented) their costs over several years would run into the billions. Accepting this projected cost for discussion purposes, actual government experience for the last couple decades (at least) under the Detroit charter proves a relevant point: provisions of the charter that cannot be implemented (for many reasons including cost, poor drafting, powerful political opposition, apathy, perhaps even corruption which is definitely another discussion!) will not be implemented.

Understand. If these revision changes can’t be implemented, they won’t be. And that means those billions of costs won’t really be incurred. This is obviously not an endorsement of any particular amendment or revision of the charter – quite the contrary. But it should reframe the cost issue to understand that, for example:

  • The charter’s anti-privatization provision, Section 6-307 , which actually pre-dates the most recent 2012 charter revision, is still in the charter, although never implemented (even after a court order, somewhat unusually, stated it had to be followed!);
  • The charter’s provisions regarding community advisory councils, Sections 9-101 thru 9-103 , bodies previously tried and failed many years ago, then re-inserted into the charter in the 2012 revision, are still struggling to launch or achieve institutional expression beyond the most tentative steps; and
  • The charter’s provisions for “green” infrastructure and policies, Section 6-509 , added in 2012 were never implemented, or even much discussed.

There are other examples, each with its own stories and policy contradictions. (DON’T get me started on alternative inter-branch dispute resolution and the multiple roles of corporation counsel!) A comprehensive survey is not my purpose here.[1] I seek expanded discussion and public understanding. The above examples are merely offered as practical lessons from working with the charter on a daily basis.

Cost is marshalled by opponents of progressive policies as a provocative factor, but cost is ultimately not the determinative issue in these debates. In the actual daily running of government, for many reasons related to political power, including cost factors, things that can’t be done won’t be done. If we calculate that reality, as well as the long-tail costs of today’s mistakes, I respectfully submit that repeatedly writing over our city’s charter like this with “requirements” that don’t get implemented has extremely large costs to the credibility of government and democracy, and to general public welfare and development. In my judgement those broad social costs pose real-world risks to self-government that are even more serious than the municipal fiscal issues so loudly publicized.

More than counting estimated costs, there’s telling our stories. Stories about how social change in fact happens, posing real challenges involving everything. Detroit is a world leader in this. The soul force of the “golden rule” (which obviously isn’t really a rule, as the late, great John Trudell pointed out), should be neither discounted in the charter cost discussions, nor overruled for “illegality”. The National Lawyers Guild has been calling for the elevation of human rights over property rights for 85 years, and we’ll keep advocating this until we get it right. Our experiences teach that challenges will continue to arise out of our historic social movements’ actionable and meaningful initiatives, with opportunities for government bodies like the charter revision commission to challenge the mayor’s “rule of gold” strategically!

Illegality – Contested Terrain for Human Rights

Detroit’s corporation counsel and the state’s attorney general have advanced a number of interrelated theories – most of them tracing back to high costs and the obligations of the city’s 2014 bankruptcy “exit” – why they contend the proposed revision would be illegal.

Further exploiting the misleading ways that debt and municipal financial responsibility is manipulated in these public debates, please note that the very fact we’re in this position having these conversations now should call into question the real-world power of bankruptcy law’s artificial “exit” via debt relief. If we “exited” bankruptcy in 2014, how is it not only that we (of course) have to live within our means, but 7 years later policy advocacy well short of social revolution, simply challenging corporate power at the local government level often in sensible ways, and embodied in the official civic document of the “discussion draft”, seemingly can’t be discussed rationally in public, across employer and worker classes and racial barriers, without resorting to misleading tales of future municipal fiscal terror via unrealistic long-tail cost projections? I digress massively here in the interest of repetition, to further emphasize, an important basic point: the self-serving artificiality of the vast majority of our debates – both fiscal and legal – about major municipal governance issues. In the trade it’s becoming known as having been ‘emergency-managed’. Screwed by racial capital. Enough of all that!

The city’s election commission has recently decided that the attorney general’s and the governor’s determinations, that the revised charter would be illegal, should not prevent it from being presented to Detroit’s voters. At this writing the charter revision commission may be considering or discussing further revisions in response to the criticisms, but they have little in the way of time or other resources to overcome the formidable challenges they face (not least the lack of a firm, final version of the text at this late date!). What Michigan courts will ultimately do if confronted with these issues is unknown at this time. It’s obviously a sad picture of democracy.

One important thing that I think People should consider, about both issues of costs of government and the “illegal” label: both money and law are fiercely contested terrain. They have very different meanings to different parties and courts and issues, in different contexts. We don’t take time to straighten all those meanings out, and that’s not good practice! It’s horrifying and confusing to realize that – primarily for reasons rooted in money, power and lies that help obtain them – the fundamental rights and very survival of so many may depend on bizarre, abstract questions like the definition of the word ‘infrastructure’. My point here is ‘law’ operates as a class weapon, and a very dangerous one. I respect progressive social movement advocacy to the extent I personally believe it’s my “real work”. Unfortunately, I have to say with that immense respect, that the charter revision discussion draft doesn’t deserve support.

Life in the Big City[2]

I offer this critique of the charter revision, in critical solidarity with the commission’s evident desire to introduce a progressive new city charter in Detroit. While supporting many of the document’s apparent policy goals, I believe that the theories of chartering municipal government power that it embodies, to the extent there are any such theories (and more significantly their resulting effects on actual city government) are in many fundamental ways self-contradictory, counter-productive and seriously threatening to continued self-government in Detroit.

This charter revision commission process involved a robust outreach to the community – a laudable approach in itself. The current crisis of putting it on the ballot demonstrates that, in addition to transparency and public outreach, a charter revision requires an intentional, substantive purpose. Why revise our charter? What specifically should such revision mean? How (at least conceptually) should we change what parts of the text to do that? And we needed to have some framework of meaningful provisional answers to those questions, before drafting detailed language of our charter, not now after it’s been disapproved by the state’s legal officials, so it could have been drafted to such known ends. With essentially unknown ends and unspecified substantive content-without-values as the only guides for the idea of “revision” (at least until it could be inferred from the discussion draft for the first time in January 2021), we get the problems the proposed charter now faces.

The charter revision process, after never explicitly answering many critical foundational questions, has most recently struggled to timely generate an agreed-upon revised text for the purpose of answering the legal objections. The improvised approach could be sound educational practice for a kind of ‘model city government’ school or table top exercise, but it is not acceptable for government creating an actual charter for a real city that hundreds of thousands of People have to live under. Now we have a brewing legal fight over whether or not multiple innovative reform provisions can be legally put on the ballot. It’s probably too late to “fix” technical legal defects of a still-evolving text into a workable city charter, at least for an election in 2021, or before the commission’s term ends in only a few months.

I hold out some hope that the process could eventually result in greater public education (the point of this discussion) and perhaps even good charter amendments (definitely another point for another discussion!). But I say in all honesty and professional candor, particularly as a long time supporter of the underlying progressive policy initiatives in this discussion draft like water affordability, environmental justice, police oversight, disability, immigration and legislative rights and powers, and other issues, the discussion draft is a mess.

In general, at the so-called ‘thirty thousand foot level’ of analysis, experience demonstrates that city charter provisions with complex, detailed implementation language are counterproductive to the point of being self-defeating. It is a fatal flaw of the discussion draft that it repeatedly and flagrantly runs afoul of this basic guideline derived from recent experience with the charter. When the mayor flogs the cost issue, one of the consequences is to avoid public discussion of the underlying social crisis that progressive policy initiatives are supposed to help resolve. That’s in his class constituents’ interests, not in those of the progressive movement or its constituencies. The document’s overly prescriptive, projected-costly implementation and so-called “government-by-commission” provisions play right into the mayor’s hands.

Every line of a legal document is potential ammunition for clever lawyers like the ones working for the mayor to fight us. Keeping a low profile when you’re trying to advance is often a strategic necessity for survival on the battlefield of local politics, especially when powerful interests oppose you. Without a substantive theory of what “charter revision” means in this case, and without a strategy to navigate corporate and other special interest opposition, why would we not expect to face the kinds of problems that materialized? That’s both a rhetorical question and a sincere request for some explanation from advocates of this revision. That is required in any case like this of fundamental policy reform, as simple accountability.

Watering it Down

The strange and challenging professional paradox about the discussion draft, which I mentioned at the outset, explodes at this point in the analysis: In theory, a half dozen or so experienced municipal lawyers, taking the charter revision commission’s discussion draft as an indication of “legislative intent”, could pretty readily address the whole range of overly costly, prescriptive, detailed and impractical dross of the discussion draft and transform it into the kind of potentially effective governing document that is the sine qua non of a charter revision. To illustrate this point, here’s what I did to slightly modify the commission’s discussion draft language establishing the purpose of the water department:

Section 7-1202. Water is a Human Right.

To ensure the human right to safe, clean, affordable, and accessible water and sanitation to support basic human needs, the Board shall periodically establish, and recommend to City Council for approval, equitable rates for water and sewerage services.

For all residential customers, equitable rates shall be established to ensure affordable water and sewerage services regardless of income, with rates for water and sewerage services combined not to exceed 3% of any household’s monthly income.

The City is prohibited from terminating for nonpayment residential water or sewerage services to customers who because of their poverty are unable to pay any amount for water or sewerage services that exceeds 3% of any household’s monthly income.

Sec. 7-1204. Water Rate and Fee Approval.

The power and authority to set water and sewerage rates and related fees resides with City Council. The Board shall propose water, drainage and sewerage rates, fees and all necessary adjustments in the collection of water, drainage or sewerage charges to City Council for review and approval. At a public hearing and subsequent to receiving public comment, City Council shall approve the rates, fees and adjustments as proposed, or revise and approve them as deemed appropriate.

The above is all lifted directly (with the new title and then modified slightly at the end, of Section 7-1202) from the existing draft document. It doesn’t get us all the way into the end zone, but it’s offered as a model here: I submit that it suggests ways to move the ball forward in other revisions as well. Before it was submitted to the state and disapproved, if given a week or so such a team of qualified lawyers could have reviewed the rest of the discussion draft, and proposed language generally patterned on the above for other issues considered legitimate (by very general criteria to be defined) and consistent with charter purposes, context, and authorities so they make city government more effective, not less. It would arguably better reflect the current policy preferences of the vast majority of Detroit’s People than our repeatedly amended old 1973 charter that underlies this discussion draft. A lost opportunity and hopefully an expensive lesson for future consideration.

The basic political strategy supporting such changes (“watering down” the discussion draft, in a colleague’s inadvertent phrase intended pejoratively, that I am delighted to appropriate, with apologies for the previous military and football analogies!) is to eschew excessive detail and written provisions that experience teaches won’t ever be implemented or enforced, with a simple drafting technique.

First, state the basic principle involved. Forcefully.

Second, clearly describe the agencies of city government charged with addressing the issues, only in as much detail as necessary to stand up the office and articulate who will do what. Be disciplined. Specific mandatory new programs and actions should be imposed only rarely and for weighty reasons. Those included must be clear, specific and legally sound.

Third, stop.

Refrain from adding to inflexible charter language new or expanded commissions, advisors, mandates to city council to pass ordinances, costs, standards for implementation, evaluation, regulation and other excessively prescriptive terminology. Keep your profile too low for them to attack as they have in this case, while offering radical new visions like “Water is a Human Right” for chartering. Continue to push our magnificent social movements and considerably-less-than-magnificent government bodies to implement more detailed policies, not merely as words on paper in the charter, but via their actions under the charter that serve human rights, the commons, sustainable economic development and racial reconciliation as core government values.

The technical legal strategy and consequent drafting challenges here involve balancing the demand to respond to the charter revision commission’s sincere and well-considered intent, without compromising the city charter as a governing document. From the practical, daily operational perspective of this discussion, the charter should perhaps be considered less our “constitution” than our city’s owner’s manual. Simple, clear directives for organizational functions should be prioritized over detailed implementation provisions. So reframed, two or three practical criteria would have to be posited for revising the discussion draft’s reforms; perhaps the issue’s accepted broad social significance, focusing on charter-specific “fit” and an issue-appropriate remedy, clarity of key concepts, avoiding excessive fiscal burdens and other land mines. Ultimately the group charged with harmonizing the key legal decisions to qualify for the ballot with the desired policy goals will have to weigh and determine the relative impacts of a) commission social visions, vs. b) functional charter legal requirements, and c) political realities. While challenging (This is Detroit. Everything is challenging.), it could be done as a technical legal policy-forming and drafting project. There was always going to be a need to strategize from vision to legal embodiment in the charter, and to engage professional legal drafting services to do it.

So why not do it? Because there’s no constituency, directive, effective capacity or other agency at this point for taking such steps to professionally “fix” (or “water down”) the discussion draft document via revisions along the above (or improved) guidelines, to turn its visionary potential into a workable municipal charter actually serving the intended policy goals. It could be done, but for inverted totalitarian reasons it won’t. That’s just bizarre, politically self-defeating and wrong.

Liz Cabot, Peter Hammer and John Philo provided invaluable feedback for this piece. Legislative Policy Division colleagues too numerous to name individually have informed my understanding of the charter and its issues. Errors of fact, analysis or judgement are mine alone.

Notes.

1) Legislative Policy Division staff colleagues provided reasonably comprehensive overviews of the discussion draft document just before it was sent to the governor for disapproval: https://detroitmi.gov/sites/detroitmi.localhost/files/2021-02/Charter%20Discussion%20Draft%20report%202%209%202021%20final.pdf

2) A colleague, whom I respect very much, has suggested that the third section of this piece, “Life in the Big City”, may tend to reinforce the mayor’s implicit narrative: we supposedly need his strong hand because Detroit is allegedly incapable of self-governing. I deeply appreciate this feedback, and therefore I’m stating for the record that I don’t agree with that conveniently self-serving inference at all.

If a reader of this discussion of one selection of current Detroit city charter issues, somehow concludes from it that Detroiters in general are supposedly not able to govern our city without the kinds of authoritarian, state-finagled, white-dominant interventions that have been accelerated especially since the great recession, culminating in the current mayoralty-for-life of a white corporate power broker from a highly segregated suburb, that conclusion would be a misreading. It’s neither what I am saying, nor remotely true. It recycles an ahistorical racist trope, in a city where the state government first tried to take over the water system a century and a half ago, before the ink was even dry on the Fourteenth Amendment, and subsequent generations of the associated special interests wielding state power in Lansing have been whipping Detroit’s African American People with discriminatory policy innovations ever since. To quote the late, great Stevie Ray Vaughn: “I may be white, but I’m not stupid!”.

“Framing” Detroit (Jamie Peck, 2013) with a false narrative of chronic insufficiency is also an artifact of Rick Snyder’s racist innovations in ‘emergency management’. This soft 21st century form of liberal white supremacy, that feeds an imperialist, othering narrative of Detroit’s alleged inherent incapacity, is a lie. Detroit is an African American cultural and social capital and a movement city that changes the world. Whiteness is among the rare dope powerful enough to veil this plain historical and social fact from some eyes – while capital exploits it. To the extent that the discussion document exposes the inequitable policies and acts of politicians like the mayor, developers like Dan Gilbert or others, it serves an important civic function and that – as well as prevalent white fantasies of racial deficit – has everything to do with why it is being so harshly criticized primarily on fiscal grounds.

This whole discussion is submitted in support of the necessary reframing; Jamie Peck sharply observed, at the outset of Detroit’s emergency management in 2013, that “bankruptcy” is being used not strictly as a formal legal debtor’s status in the case of Detroit, but as a brand of moral and political pathology. Detroiters should and will be heard on this. We should not and will not be silenced, for fear of the inevitable whitelash that fomented anti-Detroit bias and racialized attacks on our democracy and human rights in the first place. We will continue to oppose any and all such racist inferences and advance our communities’ rich legacies of human rights struggles!

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