Burdick v. Hare, No. 31

CourtSupreme Court of Michigan
Writing for the CourtBefore the Entire Bench, except DETHMERS; KAVANAGH; SOURIS, SMITH and ADAMS, JJ., concurred with KAVANAGH; BLACK; KELLY; Believing that Hon. Marvin J. Salmon; O'HARA
Citation130 N.W.2d 380,373 Mich. 578
Decision Date05 October 1964
Docket NumberNo. 31
PartiesBenjamin D. BURDICK, Plaintiff-Appellee, v. James M. HARE, as Secretary of State, Board to Canvass Nomination Petitions, and Wayne County Election Commission, Defendants-Appellants.

Page 380

130 N.W.2d 380
373 Mich. 578
Benjamin D. BURDICK, Plaintiff-Appellee,
v.
James M. HARE, as Secretary of State, Board to Canvass
Nomination Petitions, and Wayne County Election
Commission, Defendants-Appellants.
No. 31.
Supreme Court of Michigan.
Oct. 5, 1964.

[373 Mich. 579] David J. Dykhouse, Detroit, for plaintiff.

Frank J. Kelley, Atty. Gen., and Samuel Olsen, Wayne County Pro. Atty., for defendants.

Before the Entire Bench, except DETHMERS, J.

KAVANAGH, Chief Justice.

Plaintiff brought an action in the Ingham county circuit court seeking a declaratory judgment and an order of superintending control to obtain adjudication of his right to the incumbency [373 Mich. 580] designation on the ballot in the primary and general elections of 1964.

Plaintiff is a Wayne county circuit judge, having been appointed to the office by the Governor in 1963. On July 2, 1964, he filed the required petitions for nomination and election to the office which he holds by appointment. His right to the incumbency designation on the ballot was contested by defendants secretary of State and the board to canvass nomination petitions.

The trial court disposed of the action by ruling on 2 issues of law.

On the first question as to the constitutionality of the proviso portion of section 646* of the general election law, as last amended by P.A.1963 (2d Ex.Sess.) No. 56, the trial court held that the limitations of

Page 381

section 24 of Article 6 of the 1963 Constitution did not prohibit the Legislature from granting the designation of incumbency to other than an elected justice or judge. The court concluded that the language of the Constitution, being affirmative in form, constituted no prohibition to the granting of an incumbency designation to an appointed judge; therefore the Legislature, having acted, was within its prerogative in granting the right to such to such designation.

The trial court was of the opinion that he had no right to examine extrinsic evidence to arrive at [373 Mich. 581] the intent of the Constitutional Convention, since the section before the court was clear and unambiguous.

The second issue decided by the trial court is the contention that the proviso portion of section 646 does not apply to circuit judges but applies only to judges elected in cities and villages. The trial court held that the proviso portion of this section did apply to circuit judges.

Judgment was entered July 22, 1964, granting plaintiff the designation of his office as circuit judge printed beneath his name on the nonpartisan election ballot for the primary election in September 1964 and, if nominated, for the general election in November 1964; and the defendants were ordered in the performance of their duty with reference to the aforesaid elections, to comply with the right granted the plaintiff.

Defendants James M. Hare as secretary of State and the board to canvass nomination petitions filed their motion for an immediate stay of proceedings as to the effectiveness of the order dated July 22, 1964, or, in the alternative, that the Supreme Court hold an immediate hearing in this case and issue its order or process not later than July 28, 1964.

On July 28, 1964, this Court entered an order which read in part as follows:

'Pursuant to GCR 1963, 806.7 the Court treats the application as a granted application for leave to appeal and orders the opinion and judgment heretofore entered by the trial court in said cause on the 22nd day of July, 1964, stayed until the further order of this Court.'

On July 19, 1964, this Court entered the following order:

'By Order dated July 28, 1964, pursuant to GCR 806.7, this Court treated the application of defendants James M. Hare, as secretary of State, [373 Mich. 582] and the board to canvass nomination petitions, as a granted application for leave to appeal and ordered the opinion and judgment heretofore entered by the Ingham county circuit court in said cause on the 22nd day of July, 1964, stayed until the further order of this Court.

'This Court, having been fully advised in the premises and briefs having been filed in said cause, orders the opinion and judgment heretofore entered by the Ingham county circuit court in said cause on the 22nd day of July, 1964, reversed and the cause remanded to the trial court for entry forthwith of an order dismissing the action with prejudice.

'Justice Kelly dissents. Justice Dethmers did not participate.

'Justice O'Hara concurs in the vacation of the judgment and the dismissal of the writ of superintending control of the circuit judge on the sole ground of lack of jurisdiction of the circuit court to issue a superintending control writ in the nature of mandamus against a State officer.

'Opinions to follow.'

This Court deals only with the question of whether plaintiff, a non-elected incumbent circuit judge should receive the incumbency designation on the ballot pursuant to the provisions of section 646 of the general election law, as amended.

Page 382

Article 6, § 24 of the Constitution...

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16 practice notes
  • People v. Collins, Docket No. 86690
    • United States
    • Supreme Court of Michigan
    • 22 Agosto 1991
    ...that we determine the intent of the framers of the Constitution and of the people adopting it." See also Burdick v. Secretary of State, 373 Mich. 578, 584, 130 N.W.2d 380 We believe that compelling reason for an independent state construction might be found if there were significant textual......
  • People v. Neumayer, Docket No. 59093
    • United States
    • Supreme Court of Michigan
    • 1 Junio 1978
    ...may be consulted. Regents Of The University Of Michigan v. Michigan, 395 Mich. 52, 235 N.W.2d 1 (1975); Burdick v. Secretary of State, 373 Mich. 578, 130 N.W.2d 380 It should not be overlooked that even a display of "specifically defined" obscene material under the Miller standard would not......
  • Doe v. Director of Dept. of Social Services, Docket No. 116069
    • United States
    • Court of Appeal of Michigan (US)
    • 19 Febrero 1991
    ...community at the present day. [Pfeiffer v. Detroit Bd of Ed., 118 Mich 560, 564; 77 NW 250 (1898); see also Burdick v. Secretary of State, 373 Mich 578, 584; 130 NW2d 380 (1964) We also recognize that our conclusion appears inconsistent with the following remarks by our Supreme Court in Bri......
  • Chamberlin v. Detroit Edison Co., Docket No. 3613
    • United States
    • Court of Appeal of Michigan (US)
    • 2 Diciembre 1968
    ...Convention debates and addresses to the people to decide the meaning of the Constitution.' Burdick v. Secretary of State (1964), 373 Mich. 578, 584, 130 N.W.2d 380, The 1963 constitution was adopted by a vote of the people April 1, 1963, after its adoption August 1, 1962, by the constitutio......
  • Request a trial to view additional results
15 cases
  • People v. Neumayer, Docket No. 59093
    • United States
    • Supreme Court of Michigan
    • 1 Junio 1978
    ...may be consulted. Regents Of The University Of Michigan v. Michigan, 395 Mich. 52, 235 N.W.2d 1 (1975); Burdick v. Secretary of State, 373 Mich. 578, 130 N.W.2d 380 It should not be overlooked that even a display of "specifically defined" obscene material under the Miller standard would not......
  • People v. Collins, Docket No. 86690
    • United States
    • Supreme Court of Michigan
    • 22 Agosto 1991
    ...that we determine the intent of the framers of the Constitution and of the people adopting it." See also Burdick v. Secretary of State, 373 Mich. 578, 584, 130 N.W.2d 380 We believe that compelling reason for an independent state construction might be found if there were significant textual......
  • League of Women Voters of Mich. v. Sec'y of State, 163711
    • United States
    • Supreme Court of Michigan
    • 24 Enero 2022
    ...People are useful interpretive tools that aid in ascertaining the common understanding of the ratifiers. Burdick v Secretary of State, 373 Mich. 578, 584; 130 N.W.2d 380 (1964). Nonetheless, these records, while relevant, are not controlling. People v Tanner, 496 Mich. 199, 226; 853 N.W.2d ......
  • Chamberlin v. Detroit Edison Co., Docket No. 3613
    • United States
    • Court of Appeal of Michigan (US)
    • 2 Diciembre 1968
    ...Convention debates and addresses to the people to decide the meaning of the Constitution.' Burdick v. Secretary of State (1964), 373 Mich. 578, 584, 130 N.W.2d 380, The 1963 constitution was adopted by a vote of the people April 1, 1963, after its adoption August 1, 1962, by the constitutio......
  • Request a trial to view additional results

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