Michigan mayor’s term-limit challenge illustrates need to draft charter provisions carefully

A four-term Michigan mayor lost his lengthy battle to seek a fifth term earlier this month when the Sixth Circuit U.S. Court of Appeals, which oversees federal litigation in several states including Ohio, upheld his city’s new charter provision setting mayoral term limits.

In Fouts v. Warren City Council, the court dismissed Mayor James Fouts’ claim that a newly enacted charter provision limiting mayoral terms to three full terms or 12 years of service violated his constitutional rights. The provision read: “A person shall not be eligible to hold the position of mayor, city council, city clerk or city treasurer for more than the greater of three (3) complete terms or twelve (12) years in that office.”

At issue before the case reached the Sixth Circuit was whether the new term limits, which were adopted by voters in the City of Warren in 2020 – when Fouts had already served the past 13 years as mayor – were meant to apply to his prior service or were instead meant only to apply to his as mayor from 2020 forward. Michigan’s state courts issued divided rulings, Fouts was ultimately prevented from running for reelection in 2023, and he then filed a lawsuit in federal court.

In the federal lawsuit, Fouts alleged that his First and Fourteenth Amendment rights were violated by the charter provision. The Sixth Circuit rejected that claim, affirming its earlier precedent that “term-limit laws, which only restrict the class of individuals eligible to run for office, do not burden a fundamental right because there is no fundamental right to run for office.”

The Sixth Circuit case is not groundbreaking and makes clear that term limits are on firm constitutional footing. But the saga of Fouts’ years of litigating against his municipality in order to hang onto his mayorship began with a challenge based on how the charter language was drafted. Was his prior service at the time of the amendment meant to be counted toward the new term limit? Was it meant only to apply prospectively from the date of passage forward?

The question calls to mind how important it is to draft charter provisions carefully so their intent is clear and does not invite needless litigation. With a number of current and former municipal law directors in our ranks, our McDonald Hopkins Public Law team has extensive experience writing charters and advising both legislative bodies and citizen-staffed charter commissions on their work. Feel free to call on any of us for guidance on these kinds of matters.