Belcher v. Mayor of City of Ann Arbor, Docket No. 77-3971

• Decision Date: 07 November 1977
• Docket Number: Docket No. 77-3971
• Citation: 79 Mich.App. 387,261 N.W.2d 56
• Parties: Louis D. BELCHER, Plaintiff-Appellee, v. MAYOR OF the CITY OF ANN ARBOR, Defendant-Appellant, and The City Clerk of the City of Ann Arbor, and the Washtenaw County Board of Canvassers, Defendants. 79 Mich.App. 387, 261 N.W.2d 56
• Court: Court of Appeal of Michigan — District of US

Page 56

261 N.W.2d 56

Louis D. BELCHER, Plaintiff-Appellee, v. MAYOR OF the CITY OF ANN ARBOR, Defendant-Appellant and The City Clerk of the City of Ann Arbor, and the Washtenaw County Board of Canvassers, Defendants.

Docket No. 77-3971.

79 Mich.App. 387, 261 N.W.2d 56

Court of Appeals of Michigan.

Nov. 7, 1977.

Released for Publication Jan. 13, 1978.

[79 MICHAPP 388] Laird & Grace by Robert J. Grace, Ann Arbor, for defendant-appellant.

Robert L. Henry, Jr., Ann Arbor, for Belcher.

R. Bruce Laidlaw, Ann Arbor, for City Clerk.

Eliot G. Striar, Ann Arbor, for County Bd. of Canvassers.

[79 MICHAPP 389] Before QUINN, P. J., and ALLEN and CAVANAGH, JJ.

PER CURIAM.

This is a contested election case arising out of the April 4, 1977, regular city election in Ann Arbor, Washtenaw County, Michigan. Defendant Albert H. Wheeler was issued a certificate of election to the office of Mayor of the City of Ann Arbor on the basis of official election returns showing that he had won by a single vote, having received 10,660 votes.

Thereafter, plaintiff Louis D. Belcher, who had received 10,659 votes, began this lawsuit. It is based on allegations that 23 illegal votes were cast at the election. Plaintiff asserted that 20 of the voters did not live within the city boundaries and therefore were unqualified voters because improperly registered. The allegations as to the impropriety of the remaining 3 votes are not presently before this Court.

Visiting Circuit Judge James J. Kelley was assigned to this case. On October 3, 1977, trial commenced, and 17 of the 20 voters alleged to live outside the city testified that although they were registered in Ann Arbor and had voted in the April 4, 1977, Ann Arbor city election they did not live within the city boundaries.

Plaintiff then advised the court that he intended to recall each voter witness and ask for whom each illegal vote was cast. After a brief recess, the trial court ruled, over objection, that testimony as to how each unqualified voter cast his or her vote was admissible.

Plaintiff then began recalling the voter witnesses[79 MICHAPP 390] to the stand. Three of them answered the question, with 2 having voted for Mr. Wheeler and 1 having voted for Mr. Belcher. However, Susan Van Hattum, when recalled to the stand, refused to answer taking the position that she had a legal right not to reveal for whom she voted. After a discussion with her, the trial judge held her in contempt of court. Thereafter, Diane Lazinsky, when recalled to the stand, also refused to answer the question, taking a position similar to that of Ms. Van Hattum. The lower court then ordered a continuance of the trial.

Defendant Mayor filed an application for leave to appeal in this Court together with a motion for immediate consideration and a motion for stay of proceedings. On October 10, 1977 this Court issued an order granting the motion for immediate consideration and the motion for stay of proceedings. Disposition of the application for leave to appeal was reserved so as to give other parties an opportunity to file pleadings with this Court.

Since then a motion for immediate consideration, a motion to intervene, and a motion to quash subpoenas have been filed by Ms. Van Hattum, Ms. Lazinsky, and the American Civil Liberties Union. Additionally, an answer in opposition to the application has been filed by plaintiff, and an answer in support of the application has been filed by the City Clerk of the City of Ann Arbor.

Michigan's earlier state constitutions provided for voting by ballot except for township offices. Const.1850, Art. 7, § 2; Const.1908, Art. 3, § 7. The present constitution provides for voting by secret ballot in all elections. Const.1963, Art. 2, § 4. The use of the word "ballot" has long been construed by the Michigan Supreme Court to mean a secret vote, as distinguished from an announced vote. [79 MICHAPP 391] People v. Cicott, 16 Mich. 283, 97 Am.Dec. 141 (1868), overruled on other grounds,...