Connor Berdy v. Sonya Buffa ( 2019 )


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  •             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
    revision until final publication in the Michigan Appeals Reports.
    STATE OF MICHIGAN
    COURT OF APPEALS
    CONNOR BERDY,                                                         FOR PUBLICATION
    June 6, 2019
    Plaintiff-Appellee,
    v                                                                     No. 349171
    Macomb Circuit Court
    SONYA BURDA, in her capacity as Elected City                          LC No. 2019-001802-AW
    Clerk, and WARREN CITY ELECTION
    COMMISSION,
    Defendant-Appellants,
    and
    FRED MILLER, in his capacity as Macomb
    County Clerk,
    Defendant.
    Before: TUKEL, P.J., and CAVANAUGH and GLEICHER, JJ.
    TUKEL, P.J. (dissenting).
    I respectfully dissent.
    Defendants argue that mandamus is not an available remedy in this case. “Although this
    Court reviews a trial court’s decision to issue or deny a writ of mandamus for an abuse of
    discretion, this Court reviews de novo as questions of law whether a defendant has a clear legal
    duty to perform and whether a plaintiff has a clear legal right to performance.” Wilcoxon v City
    of Detroit Elec Comm, 
    301 Mich. App. 619
    , 630; 838 NW2d 183 (2013) (quotation marks and
    citations omitted).
    As a general matter, in order to justify a writ of mandamus,
    [t]he plaintiff must show that (1) the plaintiff has a clear legal right to the
    performance of the duty sought to be compelled, (2) the defendant has a clear
    legal duty to perform such act, (3) the act is ministerial in nature such that it
    -1-
    involves no discretion or judgment, and (4) the plaintiff has no other adequate
    legal or equitable remedy. [Barrow v City of Detroit Elec Comm, 
    301 Mich. App. 404
    , 412; 836 NW2d 498 (2013).]
    “[T]his Court has held that where the duty of the public official is certain, the Court cannot in its
    discretion deny the writ.” Romulus City Treasurer v Wayne Co Drain Comm’r, 
    413 Mich. 728
    ,
    744; 322 NW2d 152 (1982).
    Barrow is controlling in this case as to the potential availability of mandamus. Barrow
    involved a claim that a candidate was ineligible for the August primary ballot; the plaintiff in
    Barrow argued that then-candidate Michael Duggan was not eligible for the ballot because he
    had not been a resident and a qualified and registered voter for the requisite time period, as
    mandated by the city charter. 
    Barrow, 301 Mich. App. at 407
    . Here, similarly, the allegation is
    that four candidates are not eligible for the August primary ballot (for Warren City Council)
    because they have served the maximum terms permitted by the city charter. In Barrow, the
    defendants were the City of Detroit Election Commission and the Detroit City Clerk. 
    Id. Here, the
    defendants are the Warren City Election Commission and the Warren City Clerk. Moreover,
    although not mentioned by the Barrow Court, “[t]he boards of election commissioners shall
    correct such errors as may be found in said ballots, and a copy of such corrected ballots shall be
    sent to the secretary of state by the county clerk.” MCL 168.567. That section refers to “official
    primary ballots,” the election at issue here. Thus, defendant Warren City Election Commission
    had a duty to correct any error on the ballots, which necessarily required that it not list an
    ineligible candidate.
    In Barrow, we determined that “mandamus is the proper method of raising [the
    plaintiff’s] legal challenge” to the candidacy. 
    Barrow, 301 Mich. App. at 412
    . In so doing, we
    relied on various provisions of the Michigan Election Law, MCL 168.1 et seq. Under the
    Michigan Election Law, “[i]t is the duty of the board of city election commissioners to prepare
    the primary ballots to be used by the electors.” MCL 168.323. In addition, “[t]he election
    commission of each city and township shall perform those duties relative to the preparation,
    printing, and delivery of ballots as are required by law of the boards of county election
    commissioners.” MCL 168.719. Thus, the Barrow Court held that “[i]t is undisputed that
    defendants have the statutory duty to submit the names of the eligible candidates for the primary
    election, see MCL 168.323 and MCL 168.719.” 
    Barrow, 301 Mich. App. at 412
    (emphasis
    added). Further, “[u]pon review, if we in turn likewise determine that Duggan did not meet the
    qualifications to be a candidate for elected office under the charter, plaintiff would have a clear
    legal right to have Duggan’s name removed from the list of candidates, the Election Commission
    would have a clear legal duty to remove Duggan’s name, the act would be ministerial because it
    would not require the exercise of judgment or discretion, and plaintiff would have no other legal
    or equitable remedy.” 
    Id. at 412-413.
    I. PLAINTIFF HAS A RIGHT TO THE PERFORMANCE OF THE SOUGHT ACTION
    I disagree with the majority’s view that plaintiff has failed to show that he had a right to
    the performance of the duty sought to be compelled.
    -2-
    First, the majority’s interpretation of the Charter is contrary to the Charter’s plain and
    unambiguous language. As already noted, we review the interpretation of a city charter de novo.
    Trahey v City of Inkster, 
    311 Mich. App. 582
    , 593; 876 NW2d 582 (2015). Thus, we give no
    deference to any other interpretations, Buchanan v City Council of Flint, 
    231 Mich. App. 536
    , 542
    n 3; 586 NW2d 573 (1998), including those of the city attorney.
    “When reviewing the provisions of a home rule city charter, we apply the same
    rules that we apply to the construction of statutes. The provisions are to be read
    in context, with the plain and ordinary meaning given to every word. Judicial
    construction is not permitted when the language is clear and unambiguous.
    Courts apply unambiguous statutes as written.” 
    [Barrow, 305 Mich. App. at 663
           (citation omitted).]
    The Charter provides for seven members, two elected at-large and five who represent
    districts. Charter, § 5.1(a). There are no differences in the powers or authorities of council
    members; any combination of five members, irrespective of whether at-large or elected-district
    members, constitute a quorum and can conduct all business of the council. Charter, § 5.3(e).
    The majority quotes the city attorney’s conclusion that “the two groups had different
    election rules and responsibilities, such as different residency requirements and separate
    campaigning and fundraising rules.” But that statement from the city attorney actually is
    incorrect. Those provisions relate to election matters, which of course are different for an at-
    large representation as opposed to an elected-district representation. But they draw no
    distinction regarding the authorities of serving council members to assemble a quorum or to
    conduct business. Importantly, if there were two different classes of council members, it would
    not be a legal irrelevancy under the Charter which of the five were present on any given occasion
    to constitute a quorum in order to conduct business. See Charter, § 5.3(e).
    And while the majority soft-peddles the city attorney’s incongruous statement that the
    council is “bicameral” by stating that it “may not be a true bicameral legislature,” there is no
    doubt on this issue. A bicameral legislature literally means “two houses” and thus requires two
    houses. See Merriam-Webster’s Collegiate Dictionary (11th ed) (defining “bicameral” as
    “having, consisting of, or based on two legislative chambers”).1 Additionally, if there really
    were a “bicameral” council, it certainly would be of great significance to spell that out, since a
    quorum in one house would not constitute a quorum in the other. Nevertheless, the Charter treats
    the seven council members interchangeably for official purposes and only provides a single
    mechanism for determining a single quorum. Of course, none of what the city attorney opined
    matters at all, given that our review on this matter, as an issue of law, is de novo; but even under
    a more deferential standard of review, the city attorney’s position would have to be rejected.
    1
    The city attorney and majority also note that only an at-large city council member can serve as
    mayor pro tem. However, that is an eligibility provision for the position of mayor pro tem, not
    for city council members; and as it only applies to one of the two at-large members in any event,
    it could not create a separate class for the at-large members as a whole.
    -3-
    Sections 4.3(d) and 4.4(d) govern how many terms or how long a person may serve as an
    elected official. Section 4.3 states,
    A person shall not be eligible to hold the office of mayor for more than the greater
    of five (5) complete terms or twenty (20) years. A person shall not be eligible to
    hold the position of city council, city clerk or city treasurer for more than the
    greater of three (3) complete terms or twelve (12) years in that office.
    And § 4.4(d) provides,
    A person shall not be eligible to hold the office of mayor for more than the greater
    of five (5) complete terms or twenty (20) years. A person shall not be eligible to
    hold the position of city council, city clerk or city treasurer for more than the
    greater of three (3) complete terms or twelve (12) years in that particular office.
    The only difference between these two provisions is the addition of the word “particular” toward
    the end of § 4.4(d).
    The only reasonable reading of the Charter provisions for three-term or 12-year
    maximum periods of service is that they each apply separately to anyone elected to “the position
    of city council.” The Charter’s use of the definite article “the” and the singular “position”
    indicate that there is only one class of city council members. See Robinson v City of Lansing,
    
    486 Mich. 1
    , 14-15; 782 NW2d 171 (2010) (stating that the use of “the” indicates a “specific or
    particular” thing). Any reliance on “that particular office” to somehow indicate that it applies to
    multiple city council positions is without merit. The clear meaning of the last sentence in
    § 4.4(d), “A person shall not be eligible to hold the position of city council, city clerk or city
    treasurer for more than the greater of three (3) complete terms or twelve (12) years in that
    particular office,” is that “particular office” refers to the previously mentioned positions of city
    council, city clerk, and city treasurer. Indeed, it is likely that no one who voted on those sections
    of the Charter, whether for or against, would have fathomed that what was being voted on were
    not provisions for three complete terms or 12-year maximums, but rather six complete terms and
    24-year maximums. That is so for the reason that there is not a single word in the Charter stating
    that there are two different classes of city council members, as to whom the maximum term
    provisions would apply separately. See, e.g., Wayne Co v Hathcock, 
    471 Mich. 445
    , 460; 684
    NW2d 765 (2004) (“This Court typically discerns the common understanding of constitutional
    text by applying each term’s plain meaning at the time of ratification.”).
    Defendants argue in their reply brief that the Charter has received a settled judicial
    construction which cannot be lightly abandoned under the rules for stare decisis. However, as to
    this issue, no rule set forth by a lower court was previously “settled.” As noted, this Court
    reviews whether plaintiff has a clear legal right and whether defendants have a clear legal duty
    de novo. We owe no deference whatsoever to previous rulings by a circuit court, either in the
    2015 case, Olejniczak v City of Warren Elec Bd, or in this case presently; and the unpublished
    order of this Court in Olejniczak is not of precedential value to us. See MCR 7.215(C). What
    would be a settled rule would be a definitive construction from this Court of the meaning of the
    Charter; as we held in Barrow, “Upon review, if we in turn likewise determine that Duggan did
    not meet the qualifications to be a candidate for elected office under the charter, plaintiff would
    -4-
    have a clear legal right to have Duggan’s name removed from the list of candidates, the Election
    Commission would have a clear legal duty to remove Duggan’s name, the act would be
    ministerial because it would not require the exercise of judgment or discretion, and plaintiff
    would have no other legal or equitable remedy.” 
    Barrow, 301 Mich. App. at 412
    -413 (emphasis
    added). Thus, even if defendants had simply been relying on the city attorney’s interpretation of
    the City Charter and such an interpretation could be considered “difficult,” “a clear, legal right is
    one clearly founded in, or granted by, law; a right which is inferable as a matter of law from
    uncontroverted facts regardless of the difficulty of the legal question to be decided.” Berry v
    Garrett, 
    316 Mich. App. 37
    , 41; 890 NW2d 882 (2016) (quotation marks and citation omitted;
    emphasis added). And here, the plain language of the Charter reveals that a person is limited to
    serve a total of three terms or 12 years in the position of city council.
    Therefore, I would hold that the trial court did not err in determining that plaintiff had a
    clear legal right to the performance of the duty sought to be compelled, i.e., the removal of the
    four individuals on the ballot for city council. See 
    Barrow, 301 Mich. App. at 412
    (stating that if
    the Court determines that a person is not qualified to be a candidate, “plaintiff would have a clear
    legal right” to have the person’s name removed from the list of candidates).
    II. DEFENDANTS HAD A CLEAR LEGAL DUTY TO REMOVE THE NAMES FROM THE
    BALLOT AND THE ACT WAS MINISTERIAL
    I also disagree with the majority’s view that defendants did not have a clear legal duty to
    remove the names from the ballot. Defendants argue that the duty of determining eligibility for
    the ballot is vested in the Warren City Council, pursuant to the Charter. The charter provides in
    relevant part that “[t]he council shall be the judge of the election and qualifications of its
    members, subject to the general election laws of the state and review by the courts, upon
    appeal.” Charter, § 4.2 (emphasis added). The Charter thus does not give unlimited discretion
    to the council; rather, it gives council such discretion as is not limited by the “general election
    laws of the state.”2 Such “general election laws of the state” are precisely what we construed in
    Barrow, and under which “[i]t is undisputed that defendants have the statutory duty to submit the
    names of the eligible candidates for the primary election.” 
    Barrow, 301 Mich. App. at 412
    (emphasis added); see also MCL 168.719 (“The election commission of each city and township
    shall perform those duties relative to the preparation, printing, and delivery of ballots as are
    required by law of the boards of county election commissioners.”). Consequently, and
    notwithstanding the Charter, the courts have a duty to apply the “general election laws of the
    state” regarding a candidate’s eligibility for office, even where that eligibility is limited by a
    provision of a city charter. See MCL 168.321(1).
    Moreover, as we held in 
    Barrow, 301 Mich. App. at 412
    , once a court determines that a
    candidate is legally ineligible to run for office, “the Election Commission would have a clear
    2
    Nor could the charter grant unlimited discretion to the council. “No provision of any city
    charter shall conflict with or contravene the provisions of any general law of the state.” MCL
    117.36.
    -5-
    legal duty to remove [the candidate’s] name.” This holding is supported by § 13.15(2) of the
    Charter, which provides that one of the duties of the election commission is “[t]o prepare and
    print election ballots . . . for all city officers for whom the electors are entitled to vote . . . .”
    (Emphasis added.) Contrary to the majority, the Election Commission makes that determination
    for the primary purpose in the first instance, not after certification by the County Board of
    Canvassers. Further, “the act would be ministerial because it would not require the exercise of
    judgment or discretion,” as the law leaves no discretion once a candidate’s ineligibility is clear,
    “and plaintiff would have no other legal or equitable remedy.” 
    Id. at 412-413;
    see also Romulus
    City 
    Treasurer, 413 Mich. at 744
    (“[W]here the duty of the public official is certain, the Court
    cannot in its discretion deny the writ.”).3
    III. CONCLUSION
    Thus, none of defendants’ arguments is persuasive on the question of whether there is
    more than one class of council member; rather, there is only a single class of city council
    member, as to whom the Charter provides for a maximum of three terms in office or a total of 12
    years. It is undisputed that the four defendants here who are council members have served or
    will have served those maximum terms by the time of the 2019 elections; they are thus ineligible
    under the Charter. Therefore, the City Elections Commission was duty-bound to remove the
    names of the individuals from the ballot. Because the trial court properly ordered mandamus
    requiring the City Elections Commission to do so, I would affirm the trial court’s judgment.
    /s/ Jonathan Tukel
    3
    McLeod v State Bd of Canvassers, 
    304 Mich. 120
    ; 7 NW2d 240 (1942), and the line of cases the
    majority cites arguably have been supplanted by MCL 168.323, which imposed on city election
    commissioners the duty to prepare the primary ballots; that provision was enacted as § 323 of
    
    2013 PA 53
    , after McLeod had been decided, and thereby may have implicitly overruled it. If
    two statutes are incapable of harmonious construction, then there may be a repeal by implication
    or a sub silentio repeal, such that “a more recently enacted statute takes precedence over an
    earlier one, especially if the more recent one is also more specific,” City of Kalamazoo v KTS
    Indus, 
    263 Mich. App. 23
    , 34; 687 NW2d 319 (2004), although “repeals by implication are
    disfavored.” Int’l Business Machines Corp v Dep’t of Treasury, 
    496 Mich. 642
    , 651 852 NW2d
    865 (2014). If so, then the cited cases would no longer be good law. See Associated Builders &
    Contractors v City of Lansing, 
    499 Mich. 177
    , 191 n 32; 880 NW2d 765 (2016) (stating that
    while the Court of Appeals normally is bound to follow decisions of the Supreme Court, “lower
    courts have the power to make decisions without being bound by prior cases that were decided
    under the now-repudiated previous positive law”). We need not decide that issue here, and I
    express no opinion as to it because the premise of the majority’s citation of McLeod, that the
    Charter makes the council the sole and exclusive judge of the qualifications of its members, is
    inapplicable.
    -6-