Berdy v. Burda, 349171

• Decision Date: 06 June 2019
• Docket Number: No. 349171,349171
• Parties: CONNOR BERDY, Plaintiff-Appellee, v. SONYA BURDA, in her capacity as Elected City Clerk, and WARREN CITY ELECTION COMMISSION, Defendant-Appellants, and FRED MILLER, in his capacity as Macomb County Clerk, Defendant.
• Court: Court of Appeal of Michigan — District of US

CONNOR BERDY, Plaintiff-Appellee,
v.
SONYA BURDA, in her capacity
as Elected City Clerk, and WARREN CITY ELECTION COMMISSION, Defendant-Appellants,
and
FRED MILLER, in his capacity as Macomb County Clerk, Defendant.

No. 349171

STATE OF MICHIGAN COURT OF APPEALS

June 6, 2019

If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports.

FOR PUBLICATION

Macomb Circuit Court
LC No. 2019-001802-AW

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

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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.

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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...