Pica points vs. democracy before state's high court

Jul 25, 2012 at 6:20 pm
There were two questions at the heart of today’s oral arguments in Lansing before the Michigan Supreme Court, which is being asked to decide whether a referendum on the state’s controversial emergency manager law should be on the November ballot.

The first question: Does the heading on a petition signed by more than 200,000 registered voters comply with a law that says it “shall be” printed using 14-point type.

It would seem that’s an easily answered question.

It’s not.

Here’s the problem: When the current law was written in the mid-1950s, the issue was straightforward. As Chief Justice Robert P. Young Jr. repeatedly pointed out, back when the law was written, this referred to the size of the blocks into which pieces of moveable type were placed.

In other words, if the kind of dispute taking place now had occurred back then, you wouldn’t measure a particular letter as it appeared printed on the page, but rather the size of the block into which it was placed for printing.

And the blocks had to accommodate the full range of lettering, from the top of a capital “A” to the descending tail of a lowercase “g” or “j.”

In modern printing, those blocks no longer exist; font style and size are determined with the click of a computer mouse.

Lawyers for opponents of the proposed referendum — a business-backed group calling itself Citizens for Fiscal Responsibility — argued that the size of computer-generated lettering as it appears on the printed page is what matters these days.

But that flies in the face of the traditional method of calculation Young said was in place when the law was written.

Herbert Sanders — representing the union-backed group Stand Up For Democracy — contended that, if you consider the size of a virtual equivalent of block, from the ascender to the descender, then the font-size used “unequivocally” complies with the law.

John Pirich, lead attorney for Citizens for Fiscal Responsibility, countered that only capital letters were used in the petition heading; lacking descenders none of those letters measured 14 points.

“Obviously, I’ve been struggling with the dilemma,” Young said.

How do you measure something that no longer exists?

The answer, contended Sanders, is that you don’t really have to. He argued that, according to well-established precedent, the state’s courts have decided that a measure need only establish “substantial compliance” with the law.

That would render moot the whole seemingly unsolvable problem of using antiquated standards to adequately measure computer-generated fonts.

It was based on the precedent cited by Sanders that a three-judge panel on the Michigan Court of Appeals based its ruling that the proposed measure should be placed on the ballot. When it issued a temporary stay of its own ruling to determine whether the entire 28 judges on the COA wanted to re-examine that precedent, a majority said “no.”

“We’ve been living more or less in a substantial compliance world since 2001 at least,” Young told Pirich. “Why is it fair to challenge it now?”

Making the question even more difficult to answer (with a straight face, at least) was Justice Michael A. Cavanagh, who read into the record a transcript of Pirich previously making an articulate, passionate argument defending the concept of substantial compliance. How did Pirich explain the180-degree reversal?

Before he could respond, Young jumped in to help him out, saying, “A different day, a different client.”

Pirich happily repeated the line.

The bottom line to all this?

For Pirich, at least on this day with Citizens for Fiscal Responsibility as his client, it’s all about strict compliance with the law. When the statute says a petition heading “shall be” printed using 14-point type, then that’s what it must be, and if its not, then the measure should not be placed on the ballot.

The implications of that position could be far reaching. There are six other measures waiting for Board of Canvasser approval. It is entirely possible that they too could fail to meet the absolute standard Pirich now advocates.

Sanders, on the other hand, seemed to be urging the justices to look beyond the arcana of block print and font size measurements.

Were the people signing those petitions — more than 200,000 of them — able to read and understand what they were signing? That’s what really matters.

It’s a question of philosophy, he argued.

Do the justices want this to be a state where voters are allowed to exercise their constitutionally protected right to decide important issues such as the emergency manager  at the ballot box, or do they want a situation where a dispute over something as small as two measly pica points — a mere 1/36th of an inch — is enough to thwart the democratic process?