Attorney Gen. v. Bd. of State Canvassers., Docket Nos. 335947

• Decision Date: 06 December 2016
• Docket Number: 335958.,Docket Nos. 335947
• Citation: 896 N.W.2d 485,318 Mich.App. 242
• Parties: ATTORNEY GENERAL v. BOARD OF STATE CANVASSERS. Trump v. Board Of State Canvassers.
• Court: Court of Appeal of Michigan — District of US

318 Mich.App. 242

896 N.W.2d 485

ATTORNEY GENERAL

v.BOARD OF STATE CANVASSERS.

Trump

v.Board Of State Canvassers.

Docket Nos. 335947

335958.

Court of Appeals of Michigan.

Submitted Dec. 6, 2016, at Lansing.

Decided Dec. 6, 2016, at 6:15 p.m.

Bill Schuette, Attorney General, Carol L. Isaacs, Chief Deputy Attorney General, Matthew Schneider, Chief Legal Counsel, Bursch Law PLLC (by John Bursch ), Special Assistant Attorney General, and Kathryn M. Dalzell, Assistant Solicitor General, for the Attorney General.

Aaron D. Lindstrom, Solicitor General, and Denise C. Barton, Heather S. Meingast, Erik A. Grill, and Adam Fracassi, Assistant Attorneys General, for the Board of State Canvassers and the Director of Elections.

Dykema Gossett, PLLC, Lansing (by Gary P. Gordon and Jason T. Hanselman ), Honigman Miller Schwartz and Cohn LLP, Lansing (by John D. Pirich ), Jones Day (by Chad A. Readler ), and Doster Law Offices, PLLC (by Eric E. Doster ), for Donald J. Trump.

Goodman Acker, PC (by Mark Brewer), and Emery Celli Brinckerhoff & Abady LLP (by Jessica Clarke and Hayley Horowitz ) for Jill Stein.

Before: O'CONNELL, P.J., and MARKEY and MURRAY, JJ.

PER CURIAM.

The Attorney General and President-elect Donald J. Trump have filed separate complaints for mandamus, each asking this Court to compel the Board of State Canvassers (the Board) to reject the November 30, 2016 petition of Green Party presidential candidate Dr. Jill Stein that requested a recount of the votes cast in the November 8, 2016 general election for the office of President of the United States and to cease any and all efforts to conduct the requested recount. Both the Attorney General and President-elect Trump assert, in part, that Dr. Stein's petition failed to meet the requirements of MCL 168. 879(1)(b) because she is not an aggrieved candidate. We agree and issue a writ of mandamus.

I. FACTUAL BACKGROUND

Michigan voters cast their ballots for the office of United States President in the general election of November 8, 2016. On November 28, 2016, the Board certified the results of the presidential election in Michigan. The final vote tallies certified by the Board are as follows: 2,279,543 votes for Republican Party candidate Donald Trump; 2,268,839 votes for Democratic Party candidate Hillary Clinton; 172,136 votes for Libertarian Party candidate Gary Johnson; and 51,463 votes for Green Party candidate Dr. Jill Stein.

Dr. Stein's vote total is approximately 1.07% of the nearly 4.8 million votes cast in Michigan for the office of United States President.

On November 30, 2016, Dr. Stein and ten of her electors petitioned the Board for a manual recount of the votes cast for the office of United States President. The petition reads, in pertinent part, as follows:

I, Jill Stein, a candidate for the office of the President of the United States in an election held on November 8, 2016, petition the Board of State Canvassers for a recount of the votes cast for this office. The undersigned members of my slate of electors join me in this Petition.

I and the undersigned members of my slate of electors, individually and collectively, are aggrieved on account of fraud or mistake in the canvass of the votes by the inspectors of election, and/or the returns made by the inspectors, and/or by the Board of County Canvassers, and/or by the Board of State Canvassers.

I request that all of the precincts and absent voter counting board (AVCB) precincts within the State of Michigan be recounted by hand count.

On December 1, 2016, President-elect Trump filed objections to the recount petition. The President-elect objected, in part, on the basis that Dr. Stein was not "aggrieved" under MCL 168.879(1)(b) because she had no chance of winning Michigan's electoral votes as the result of a recount.

That same day, Dr. Stein filed a response to the objections, asserting that MCL 168.879(1)(b) only required her to allege generally that she was aggrieved. She further asserted that the statute did not require her to meet any particular standard or offer proof to demonstrate her aggrieved status.

The Board met on December 2, 2016, to consider the petition and rule on the objections. The Board deadlocked, voting 2–2 on whether to approve the recount petition. This deadlock resulted in the petition being deemed approved. By order of the United States District Court for the Eastern District of Michigan, the recount began on Monday, December 5, 2016. Stein v. Thomas, 222 F.Supp.3d 539, 2016 WL 7046022 (E.D.Mich., 2016) (Case No. 16–cv–14233).

II. JURISDICTION AND STANDARD OF REVIEW

This Court has original jurisdiction to entertain actions for mandamus against state officers. MCR 7.203(C)(2) ; Citizens Protecting Michigan's Constitution v. Secretary of State, 280 Mich.App. 273, 282, 761 N.W.2d 210 (2008). We consider de novo whether the defendant had a clear legal duty to perform and whether the plaintiff had a clear legal right to performance of that duty. Citizens for Protection of Marriage v. Bd. of State Canvassers, 263 Mich.App. 487, 491–492, 688 N.W.2d 538 (2004).

III. REQUIREMENTS FOR MANDAMUS

"Mandamus is the appropriate remedy for a party seeking to compel action by election officials." Citizens Protecting Michigan's Constitution, 280 Mich.App. at 283, 761 N.W.2d 210. This Court will only issue a writ of mandamus if the party seeking mandamus meets four requirements:

(1) the party seeking the writ has a clear legal right to performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial, and (4) no other remedy exists that might achieve the same result. [Id. at 284, 761 N.W.2d 210.]

This Court may also "enter any judgment or order or grant further or different relief as the case may require[.]" MCR 7.216(A)(7). The issuance of a writ of mandamus rests within the discretion of this Court. Rental Props. Owners Ass'n of Kent. Co. v. Kent Co. Treasurer, 308 Mich.App. 498, 518, 866 N.W.2d 817 (2014). "The plaintiff bears the burden of demonstrating entitlement to the extraordinary remedy of a writ of mandamus." Citizens for Protection of Marriage, 263 Mich.App. at 492, 688 N.W.2d 538.

IV. DUTIES OF THE BOARD OF STATE CANVASSERS AND DIRECTOR OF ELECTIONS

A clear legal right is a right "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." Rental Props. Owners Ass'n, 308 Mich.App. at 519, 866 N.W.2d 817 (quotation marks and citation omitted). The parties do not dispute that the Attorney General or President-elect Trump has a clear legal right to have the Board perform its statutory duties. The question presented is whether the Board has a clear legal duty to perform the acts requested—that is, whether the Board had a clear legal duty to deny Dr. Stein's petition for a recount.

The Board is an agency having no inherent power—"[a]ny authority it may have is vested by the Legislature, in statutes, or by the Constitution." Citizens for Protection of Marriage, 263 Mich.App. at 492, 688 N.W.2d 538. MCL 168.879(1)(b) provides the authority by which a candidate may petition for a recount:

(1) A candidate voted for at a primary or election for an office may petition for a recount of the votes if all of the following requirements are met:

* * *

(b) The petition alleges that the candidate is aggrieved on account of fraud or mistake in the canvass of the votes by the inspectors of election or the returns made by the inspectors, or by a board of county canvassers or the board of state canvassers. The petition shall contain specific allegations of wrongdoing only if evidence of that wrongdoing is available to the petitioner. If evidence of wrongdoing is not available, the petitioner is only required to allege fraud or a mistake in the petition without further specification.

MCL 168.882(2) allows a candidate to file a counterpetition challenging the petition for a recount. MCL 168.882(3) provides, in pertinent part, that "the board of state canvassers shall rule on the objections raised to the recount petition." MCL 168.883 requires the Board to "investigate the facts set forth in said petition and cause a recount of the votes cast...."

The Attorney General and President-elect Trump each allege that the Board had a clear legal duty to deny the petition because the petition was not made by a candidate who was "aggrieved on account of fraud or mistake." We agree.

When interpreting a statute, this Court's primary goal is to ascertain the intent of the Legislature. Rental Props. Owners Ass'n, 308 Mich.App. at 508, 866 N.W.2d 817. We first review the language itself because the words of the statute provide the most reliable evidence of the Legislature's intent. Id. We afford every word and phrase of the statute its plain and ordinary meaning unless otherwise statutorily defined. Id. We may consult a dictionary to give words their common and ordinary meanings. Id. If the statute's language is clear and unambiguous, we may not engage in judicial construction. Id. When interpreting law governing elections, we must construe the statutes "as far as possible in a way which prevents the disenfranchisement of voters through the fraud or mistake of others." Kennedy v. Bd. of State Canvassers, 127 Mich.App. 493, 496–497, 339 N.W.2d 477 (1983).

MCL 168.879(1)(b) does not define the term "aggrieved." Nor has this Court defined "aggrieved" in this specific context. Therefore, we look to dictionary definitions to provide the common and ordinary meaning of the word.

MCL 168.879(1)(b) is clear and unambiguous. It requires that the candidate seeking a recount allege that he or she "is aggrieved on account of fraud or mistake in the canvass of the votes...." "Aggrieved" is defined as "[h]aving suffered loss or injury; damnified; injured." Black's Law Dictionary (2d ed.). Aggrieved also means "suffering from an infringement or denial of legal rights," ...