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Attorney
General Opinion Sought on Charter School Bill: Is it Law?
Gongwer News Service, October 1, 2003
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Fifteen charter high schools in Detroit may already be allowed
under a new law because of an obscure legislative technicality,
and a state representative Wednesday asked Attorney General Mike
Cox to rule on the issue.
Democratic Governor Jennifer Granholm and leaders of the
Republican-led Legislature came to an agreement two weeks ago on
a wide-ranging deal that would have expanded the number of
charter schools (including the 15 high schools in Detroit sought
by philanthropist Bob Thompson), added new regulations for
charter schools and restored an elected school board for
Detroit. That deal has since fallen apart.
But before they agreed to place that deal into SB 393,
Republicans already had sent to her desk the original version,
which simply authorized the 15 charter high schools. Under the
constitution, a governor has 14 days from the time the
Legislature formally sends the bill to him or her to sign it,
veto it or let the Legislature recall it. If none of those
scenarios occur while the Legislature is in session, the bill
becomes law.
The Senate recalled the bill within the 14-day window as a deal
neared, but the House did so on the 15th day.
Rep. Jim Howell (R-St. Charles), chair of the House Judiciary
Committee, asked Mr. Cox to rule on whether the House's belated
action means the bill has become law. And Mr. Howell said he
believes it is in fact law.
"If you read the provision in the constitution correctly, you
come to the same conclusion," he said.
Article IV, Section 33 of the Michigan Constitution provides
that any bill "not returned by the governor within such 14-day
period, the legislature continuing in session, it shall become
law as if he had signed it."
Mr. Howell made a point of saying his request is not an attack
on the governor, but the decision to seek such a high-stakes
ruling marks the most serious showdown yet between the
first-year Democratic governor and the GOP-controlled
Legislature.
A Granholm spokesperson said the action represented "revisionist
history" by Republicans, whose own actions after the bill was
returned showed they believed the bill was not law.
House Speaker Rick Johnson (R-LeRoy) said he did not
deliberately prevent the House from holding session, allowing
the 14-day window to lapse. The House returned to session a week
later than the Senate. The speaker indicated that if Mr. Cox
rules the bill is law, then he would want to consult Ms.
Granholm and Mr. Thompson instead of just declaring victory.
"I'm not here to have something come in hogey-fogey or whatever
you want to call it. That's not the intention here at all," he
said. "That was never the intention from myself or this chamber.
Unfortunately, it is where it is. And now we have to adjust
because if indeed it is ruled that it's a public act, obviously
that bill is no longer in conference committee, and we have to
restructure and do something else if we're going to put the
original deal back."
Indeed, Mr. Johnson at a meeting with House Republicans later in
the afternoon was said by one source to have voiced concern
about making sure the Thompson schools have credibility in
Detroit.
Ms. Granholm had called off talks on a charter school deal last
week after asserting Republicans had committed a breach of faith
by including new items in a bill draft. Republicans responded
that the inclusions were accidental and were befuddled why Ms.
Granholm ended negotiations instead of questioning the items in
dispute.
The governor's discontinuation of talks seemed to ebb a bit the
day after when she met with Mr. Johnson, a meeting at which
charter schools were discussed. But in recent days, little new
ground has been made toward a deal.
Now with the old version of SB 393 possibly law, Mr. Johnson
said all talks are on hold, pending Mr. Cox's ruling. He said
the ruling could change the entire situation.
"I have to step back and rethink the whole process as to what we
want to do with it," Mr. Johnson said of what he will do once
the ruling is issued. "It puts a real unique twist on it, that's
for sure."
Cox spokesperson Sage Eastman, noting that former Attorney
General Frank Kelley has dealt with this issue in the past, said
the department's staff is well-versed on the subject. Mr.
Eastman said Mr. Cox would "expedite an answer." Mr. Kelley does
not appear to have issued a binding formal opinion, but rather a
letter opinion on the issue.
Granholm press secretary Liz Boyd said the actions by House and
Senate leaders showed they believed the bill not to be law,
particularly the naming of conference committee members upon the
bill's return. Ms. Boyd also said in the past one house of the
Legislature has requested the return of a bill from the
governor's desk without legal challenge.
"This is revisionist history," she said. "The Senate requested
the bill, according to its own rules. The governor honored that
request, consistent with the past practice of her predecessors.
And the House and Senate appointed conferees because they knew
it wasn't a law."
Ms. Boyd called the tactic "not a legal argument, but a
politically expedient way to make law without the involvement of
the governor."
Further, Ms. Boyd cautioned that an attorney general's ruling
could result in "calling into question countless laws already on
the books" although she declined to specify what laws might fall
into that category.
Asked if the governor and her staff thought they were on sound
legal footing to argue that the bill is not law, Ms. Boyd said
she did not want to speculate "because if people are willing to
engage in revisionist history, who knows what they're capable
of."
David Hecker of the Michigan Federation of Teachers, which has
loudly protested against the deal to which Ms. Granholm agreed
as well as earlier charter expansion proposals, said his
organization has not decided what to do. But Mr. Hecker said if
Mr. Cox rules the bill already is law, "we're not going to sit
idle."
Indeed, expectations Wednesday were that Mr. Cox would rule that
the bill is law and that the Detroit Federation of Teachers
would sue to overturn that ruling. Case law holds that attorney
general opinions are binding unless overturned in court.
Mr. Hecker called arguments by Republicans that the bill is law
"disingenuous" considering their actions. "Everybody on both
sides of the issue knew it was called back," he said.
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House OKs MEAP Bill Extending 2003 Deadline
Gongwer News Service, September 1, 2003
A bill that would give students qualifying for the Merit Award
until November 15, 2003 to apply for the scholarship passed the
House on Wednesday.
SB 701, passed unanimously, would affect just this year, because
of the delays schools and students have endured in getting the
scores on the Michigan Educational Assessment Program tests.
The scholarship is based on a student's score on the test and
typically the student has until September 15 to apply. Because
scores are not expected to be released until October, the bill
would give qualifying students another two months to apply.
The bill now goes to Governor Jennifer Granholm.
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