Brandenburg v. Bd. of State Canvassers

Citation974 N.W.2d 552 (Mem)
Decision Date07 June 2022
Docket NumberSC: 164462
Parties Donna BRANDENBURG, Plaintiff, v. BOARD OF STATE CANVASSERS, Secretary of State, and Bureau of Elections Director, Defendants.
CourtSupreme Court of Michigan

On order of the Court, the motion to file a supplemental brief is GRANTED. The complaint for mandamus is considered, and relief is DENIED, because the Court is not persuaded that it should grant the requested relief.

Clement, J. (concurring).

I concur with the Court's order denying plaintiff's complaint. The Michigan Election Law, MCL 168.1 et seq. , provides that "[a] person who filed a nominating petition with the secretary of state and who feels aggrieved by a determination made by the board of state canvassers may have the determination reviewed by mandamus, certiorari, or other appropriate process in the supreme court," MCL 168.552(12). That describes this exact situation, suggesting that this Court is an appropriate forum in which plaintiff can file.

As the dissent notes, two decades ago we held in two peremptory orders that MCR 3.305(A) and MCR 7.203(C)(5) controlled over this statutory provision. See Callahan v. Bd. of State Canvassers , 646 N.W.2d 470 (Mich, 2002) ; Schwarzberg v. Bd. of State Canvassers , 649 N.W.2d 73 (Mich, 2002). However, I believe there is substantial reason to question whether those orders were rightly decided. If MCL 168.552(12) were simply read as a provision conferring jurisdiction on this Court, it would confer a jurisdiction we already possess. See Const 1963, art. 6, § 4 (giving us "power to issue, hear and determine prerogative and remedial writs," such as mandamus and certiorari). This would make the provision nugatory. The alternatives under MCR 3.305(A) and MCR 7.203(C)(5) are to file in either the Court of Appeals or the Court of Claims, and if their jurisdiction is purely a function of statutesee People v. Milton , 393 Mich. 234, 245, 224 N.W.2d 266 (1974) ("[T]he jurisdiction of the Court of Appeals is entirely statutory."); Manion v. State Hwy. Comm'r , 303 Mich. 1, 20, 5 N.W.2d 527 (1942) ("The court of claims’ ... derives its powers only from the act of the legislature and subject to the limitations therein imposed.")—then MCL 168.552(12) could easily be read as depriving them of jurisdiction and leaving this Court as the exclusive forum for litigating such issues. I would not relish such a rule, because "[r]easons of policy dictate that such complaints be directed to the first tribunal within the structure of Michigan's one court of justice having competence to hear and act upon them," People v. Flint Muni. Judge , 383 Mich. 429, 432, 175 N.W.2d 750 (1970), and such a rule would deviate from those "reasons of policy," but that is not plaintiff's fault. While orders of this Court certainly establish precedent binding on both this Court and the lower courts if they "contain[ ] a concise statement of the applicable facts and the reason for the decision," People v. Crall , 444 Mich. 463, 464 n 8, 510 N.W.2d 182 (1993), "[a] short per curiam opinion that summarily [resolves a case] is entitled to less precedential weight than a signed opinion," Garner et al, The Law of Judicial Precedent (St. Paul: Thomson/West, 2016), p. 214. I do not believe my commitment to stare decisis is called into question today when this Court's order does not even overrule Callahan and Schwarzberg , but merely denies plaintiff's complaint without substantive explanation.

Moreover, regardless of whether Callahan and Schwarzberg were rightly or wrongly decided, this Court has been the author of a nontrivial amount of confusion on this topic in recent years. Similarly to disputes over nominating signatures, the Michigan Election Law also uses almost identical language to direct disputes over initiative and referendum petitions to this Court. See MCL 168.479. Yet in recent years, we have entertained original actions relating to initiative and referendum petitions without holding plaintiffs to compliance with MCR 3.305(A), MCR 7.203(C)(5), Callahan , or Schwarzberg . Comm. to Ban Fracking in Mich. v. Bd. of State Canvassers , 505 Mich. 1137, 944 N.W.2d 723 (2020) ; Unlock Mich. v. Bd. of State Canvassers , 506 Mich. 947, 949 N.W.2d 719 (2020) ; Unlock Mich. v. Bd. of State Canvassers , 507 Mich. 1015, 961 N.W.2d 211 (2021) ; Fair & Equal Mich. v. Bd. of State Canvassers , 508 Mich. 967, 965 N.W.2d 535 (2021). Indeed, had this Court cited the dissent's theory in Comm. to Ban Fracking , it is highly unlikely that the Court of Appeals would have held in subsequent litigation that this Court is the exclusive venue for disputes over initiative and referendum petitions—a conclusion in substantial tension with Callahan and Schwarzberg . See Comm. to Ban Fracking in Mich. v. Bd. of State Canvassers , 335 Mich.App. 384, 395-398, 966 N.W.2d 742 (2021).1 I do not support faulting plaintiff for failure to comply with tangled authority that may well have provoked legitimate confusion. At the time she filed, plaintiff of course did not have the benefit of the Court of Appeals’ recent decision in Johnson v. Bd. of State Canvassers , ––– Mich.App. ––––, ––––, ––– N.W.2d ––––, 2022 WL 1787359 (2022) (Docket No. 361564), in which the Court of Appeals did accept jurisdiction over a dispute apparently covered by MCL 168.552(12), and in any event the question of how to juxtapose Johnson against Comm. to Ban Fracking and our orders in Callahan and Schwarzberg has apparently not yet been litigated.2

I am not persuaded that the Court should grant plaintiff the relief she has requested. But in light of my qualms over whether Callahan and Schwarzberg were rightly decided and this Court's complicity in causing confusion over whether we will entertain original actions under statutes like MCL 168.552(12) or MCL 168.479, I do not believe it appropriate to fault her on procedural grounds for noncompliance with MCR 3.305(A), MCR 7.203(C)(5), Callahan , or Schwarzberg . Therefore, I concur with the Court's order.

Viviano, J. (dissenting).

By denying plaintiff relief today without providing any specific legal grounds for doing so rather than dismissing the case based on controlling caselaw, the majority chooses to flatly ignore our Court's precedent. Plaintiff filed her complaint for mandamus under MCL 168.552(12) in this Court rather than the lower courts. In Schwarzberg v. Bd. of State Canvassers , 649 N.W.2d 73 (Mich. 2002), we stated that "[d]espite the language of MCL 168.552(12), a mandamus action against the Board of State Canvassers is properly filed in the Court of Appeals or the circuit court. MCR 7.203(C)(5), MCR 3.305(A)."3 We reached the same result in Callahan v. Bd. of State Canvassers , 646 N.W.2d 470 (Mich. 2002).4 This precedent is binding and on point, and plaintiff has not even mentioned these cases, much less asked us to overrule them. A straightforward application of Schwarzberg and Callahan requires us to dismiss plaintiff's complaint. I would do so and remain faithful to our precedent, rather than simply denying relief without any explanation of why it is not being applied.

From the parties’ standpoint, the technical distinction between dismissal and denial of leave may make little difference because it does not change the outcome. But the distinction is of considerable moment to the institutional integrity of our Court. A court that shows so little respect for its own precedent can hardly expect it to be respected by others. Binding precedent that is on point can be overruled in certain, limited circumstances. But, short of that, it must be followed. The majority's decision to simply ignore our precedent is stunning.5 I therefore dissent.

Bernstein, J., would order oral argument.

1 As the dissent notes, while MCL 168.479(1) parallels MCL 168.552(12) almost verbatim—both providing, in superficially permissive terms, that individuals aggrieved by different actions of the Board of State Canvassers "may have the determination reviewed ... in the supreme court"MCL 168.479(2) provides that a party aggrieved by a decision of the board relating to an initiative or referendum "must file ... in the supreme court" in various time frames, which makes the intended exclusivity of this Court's jurisdiction particularly inescapable. However, I do not think MCL 168.479(2) is necessary to construe MCL 168.479(1) as intending to confer exclusive jurisdiction on this Court, and I therefore do not believe MCL 168.552(12) needs a similar companion to be read as conferring exclusive jurisdiction on this Court. If MCL 168.479(2) is necessary to make jurisdiction in this Court exclusive, then—as noted—MCL 168.552(12) is nugatory, as it would purport to confer jurisdiction on this Court that it already possesses (and much the same could be said of MCL 168.479(1) ). While the Court of Appeals in Comm. to Ban Fracking certainly construed MCL 168.479(1) in light of the presence of MCL 168.479(2), I do not read its analysis as depending on MCL 168.479(2) (the Court certainly did not hold that MCL 168.479(2) was necessary to distinguish the case from Callahan and Schwarzberg ). Rather, the Court construed MCL 168.479 as it found it. Moreover, regardless of what MCL 168.479(2) says, the court rule this Court cited in Callahan and Schwarzberg provides that the Court of Appeals "may entertain an action for ... any original action required by law to be filed in the Court of Appeals or Supreme Court. " MCR 7.203(C)(5) (emphasis added). That is to say, the court rules purport to require that even if a statute requires a case to be originally filed in this Court, it is still to be filed in the Court of Appeals—a principle that is equally applicable (or not) to proceedings under MCL 168.552(12) and MCL 168.479. I do not believe MCL 168.479(2) is different enough to approach cases involving initiative or referendum in some other manner than disputes about candidate signatures under MCL 168.552(12).

2 It also is apparently unresolved whether it...

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