Berry v. Garrett, Docket No. 333225.
| Decision Date | 17 June 2016 |
| Docket Number | Docket No. 333225. |
| Citation | 316 Mich.App. 37,890 N.W.2d 882 |
| Parties | BERRY v. GARRETT. |
| Court | Court of Appeal of Michigan — District of US |
Warner Norcross & Judd LLP, Grand Rapids (by John J. Bursch ) and Kirk, Huth, Lange & Badalamenti, PLC, Clinton Township (by Robert S. Huth, Jr., and Scott M. Sierzenga ), for Carl Berry.
Zenna Elhasan and Janet Anderson–Davis, Detroit, for Wayne County Election Commission.
Zausmer, August & Caldwell, PC, Farmington Hills (by Gary K. August and Matthew G. McNaughton ), for Plymouth Township Clerk and Plymouth Township Election Commission.
Honigman Miller Schwartz and Cohn LLP (by John D. Pirich, Andrea L. Hansen, Lansing, Arthur T. O'Reilly, and Andrew M. Pauwels, Detroit) for Kurt L. Heise.
Before: WILDER, P.J., and K.F. KELLY and FORT HOOD, JJ.
Plaintiff appeals as of right the circuit court's order denying his requested writ of mandamus against defendants.1 We affirm in part and reverse in part.
This case arises out of affidavits of identity filed by intervening defendants Donald F. Schnettler and Kurt L. Heise regarding the August 2, 2016 primary election in Plymouth Township (Plymouth). Schnettler and Heise sought, respectively, the positions of township trustee and township supervisor. It is undisputed that, in their affidavits of identity, neither Schnettler nor Heise provided a precinct number as required by MCL 168.558(2), nor did either timely cure that defect.
Plaintiff is a registered voter and a resident of Plymouth. He instituted this action on May 13, 2016, by filing a three-count complaint. In relevant part, the complaint sought a writ of mandamus against defendants. Plaintiff also filed an ex parte motion to show cause why a writ of mandamus should not issue. Plaintiff alleged that, because of the defect in Schnettler's and Heise's affidavits of identity, defendants had a clear legal duty not to place Schnettler's and Heise's names on the ballot for the August 2, 2016 primary election. Plaintiff further alleged that he had a clear legal right to performance of defendants' statutory duties regarding the primary election. Defendants responded, arguing that they had no clear legal duty to "investigate" the accuracy of the information in the affidavits at issue. Defendants further argued that, in any event, the relief sought by plaintiff was inappropriate because (1) even assuming that he could demonstratethe existence of a clear legal duty on behalf of defendants, plaintiff had no clear legal right to performance of that duty, (2) plaintiff was barred from seeking mandamus because he had an adequate remedy at law in quo warranto, and (3) plaintiff lacked standing. Ultimately, the trial court agreed with defendants that plaintiff "ha[d] not shown he has a clear legal right to the performance of the alleged duty...." Thus, the trial court denied plaintiff's request for a writ of mandamus and dismissed the case.
On appeal, plaintiff argues that the trial court erred by so ruling. We agree.
We review de novo, as questions of law, whether defendants have a clear legal duty to perform and whether plaintiff has a clear legal right to performance of any such duty. Rental Props. Owners Ass'n of Kent Co. v. Kent Co. Treasurer, 308 Mich.App. 498, 518, 866 N.W.2d 817 (2014). Related issues of statutory interpretation are also reviewed de novo. Beach v. Lima Twp., 489 Mich. 99, 105–106, 802 N.W.2d 1 (2011). Contrastingly, because mandamus is a "discretionary writ," Owen v. Detroit, 259 Mich. 176, 177, 242 N.W. 878 (1932), we review for an abuse of discretion a trial court's decision regarding whether to grant mandamus relief, Rental Props., 308 Mich.App. at 518, 866 N.W.2d 817.
To obtain the extraordinary remedy of a writ of mandamus, the plaintiff must show that (1) the plaintiff has a clear, legal right to performance of the specific duty sought, (2) the defendant has a clear legal duty to perform, (3) the act is ministerial, and (4) no other adequate legal or equitable remedy exists that might achieve the same result. In relation to a request for mandamus, 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. [Id. at 518–519, 866 N.W.2d 817 (quotation marks and citations omitted).]
"A ministerial act is one in which the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." Hillsdale Co. Senior Servs., Inc. v. Hillsdale Co., 494 Mich. 46, 58 n. 11, 832 N.W.2d 728 (2013) (quotation marks and citation omitted).
Several provisions of Michigan election law are at issue here. In pertinent part, MCL 168.558 provides:
Thereafter, as stated in MCL 168.349(2) :
Within 4 days after the last day for filing nominating petitions, the township clerk shall deliver to the county clerk a list setting forth the name, address, and political affiliation and office sought of each candidate who has qualified for a position on the primary ballot.
The county clerk then certifies to the proper board(s) of election the name and address "of each party candidate whose petitions meet the requirements of this act, together with the name of the political party and the office for which he or she is a candidate." MCL 168.552(1). Section 552 includes detailed procedures for investigating and resolving complaints about nominating petitions, but the resolution of challenges to affidavits of identity is not addressed.
Pursuant to MCL 168.559, the county election commission prepares and furnishes the official primary ballots. Notably, MCL 168.550 provides:
No candidate shall have his name printed upon any official primary election ballot of any political party in any voting precinct in this state unless he shall have filed nominating petitions according to the provisions of this act, and all other requirements of this act have been complied with in his behalf, except in those counties qualifying candidates upon the payment of fees.
Further, MCL 168.567 provides:
The 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.
In this case, contrary to defendants' arguments both below and on appeal, we conclude that the pertinent statutory provisions create a clear legal duty on behalf of the Wayne County defendants.2 Under MCL 168.558(4), those defendants had a clear legal duty to "not certify to the board of election commissioners the name of a candidate who [had] fail[ed] to comply" with the requirement, under § 558(2), of duly including the precinct number where the candidate was registered to vote.3 It is undisputed that Schnettler and Heise failed to comply with § 558(2). Hence, the Wayne County defendants had a clear legal duty not to certify Schnettler and Heise's names. The language in § 550—"[n]o candidate shall have his name printed upon any official primary election ballot ... unless he shall have filed nominating petitions according to the provisions of this act"—underscores the existence of such a clear legal duty on behalf of the Wayne County defendants. Finally, § 567 demonstrates that, because the Wayne County defendants failed to perform their clear legal duty under § 558(4), they now have a clear legal duty to "correct" such errors as may be found in the resulting, improper ballots. Thus, the "clear legal duty" element for mandamus is plainly met.
Moreover, the action that plaintiff now seeks to compel is decidedly "ministerial" in nature. The duty to correct the ballots under § 567 is set forth "with such precision and certainty as to leave nothing to the exercise of discretion or judgment." See Hillsdale, 494 Mich. at 58 n. 11, 832 N.W.2d 728. Because the affidavits of identity filed with the Plymouth Township defendants and delivered by the Plymouth Township defendants to the Wayne County defendants4 were defective on their face, defendants' assertion that they had no authority to review the affidavits is misplaced. Rather, by doing nothing more than the ministerial task of completing a facial review of the affidavits, defendants would undertake to perform their clear legal duty under § 558(4) to "not certify to the board of election commissioners the name of a candidate who [had] fail[ed] to comply" with § 558(2).
We further conclude that pl...
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