Amicus Brief

Oshtemo Charter Township v Michigan Public Service Commission and Michigan Electric Transmission Company

Case Year: 2016
Case Forum: Michigan Supreme Court
Keywords: rights of way, right of way, ROW, Michigan Constitution, Electric Transmission Line Certification Act (PA 30), home rule, Michigan Public Service Commission (MPSC)
Amicus Counsel:

Robert Thall | Bauckman, Sparks, Lohrstorfer, Thall, & Seeber, P.C. | 458 West South Street | Kalamazoo, MI 49007-4621 | [email protected]

CoAmicus Parties:

1. LDF joined the Michigan Townships Association (MTA) brief
2. State Bar Public Corporation Law Section (PCLS)


The importance of this case cannot be overstated as it involves core legal principles regarding interpretation and application of the Michigan Constitution. Specifically, the authority granted by the electorate to local municipalities requiring a public utility to get consent of the local municipality for use of the public rights of way therein, and the separate general right (not just regarding utilities) reserved to local municipalities of reasonable control of such public rights of way. This authority is expressed in Article VII, Section 29 of the Michigan Constitution of 1963. In opposition to this constitutional authority granted to local municipalities regarding public rights of way stands the Michigan Public Service Commission’s (MPSC) statutorily-derived ability to issue a “certificate of public convenience and necessity” pursuant to 1995 PA 306 allowing for the location of an applicant’s electric transmission line in the public rights of way. Quite simply PA 30 does contain any process which requires a public utility to first seek consent from a local municipality’s legislative board or commission before receiving this preemptive permission from the MPSC and thereby functions to disenfranchise a local municipality from its constitutional authority. This cannot happen, as Article VII, Section 29 is a constitutional limitation, placed by the electorate, on the otherwise plenary authority of the State. Article VII, Section 29 was clearly put into place to limit the State’s otherwise unbridled ability to allow public utilities to use the public rights of way without local consent, franchise, or control. It protects local government from the heavy hand of an administrative body and transfers to local municipalities certain protected authority that cannot simply be abrogated by statute. The language clearly allows a municipality the ability to apply local concerns when considering whether to grant consent to a public utilities use of the public rights of way. No State statute can be enacted that is in conflict or inconsistent with Article VII, Section 29. If the Legislature can simply remove or bypass the consent requirement at will, then the limiting language in the Constitution is rendered nugatory. It would serve no purpose.

MSC requested LDF amicus brief? No
Case Number: 2015-12
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