Coalition for a Detroit v. Detroit City Clerk
| Decision Date | 09 February 2012 |
| Docket Number | Docket No. 300516. |
| Citation | 820 N.W.2d 208,295 Mich.App. 362 |
| Parties | COALITION FOR A SAFER DETROIT v. DETROIT CITY CLERK. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Honigman Miller Schwartz and Cohn LLP, Lansing (by Timothy Sawyer Knowlton) for Coalition for a Safer Detroit.
Krystal A. Crittendon, Corporation Counsel, and Sheri L. Whyte, Dennis A. Mazurek, Detroit, and Tonja R. Long, Assistant Corporation Counsel, for the Detroit City Clerk and the Detroit Election Commission.
Before: MARKEY, P.J., and SAAD and GLEICHER, JJ.
Plaintiff appeals the trial court's order that denied its request for a writ of mandamus and granted defendants' motion for summary disposition. For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion.
On May 5, 2010, plaintiff filed signed initiative petitions with the Detroit City Clerk to place on the November 2, 2010, ballot a proposed amendment to § 38 of the 1997 Detroit City Code.1 Section 38 addresses controlled substances and contains the following relevant provisions:
[295 Mich.App. 365]38–11–2. Possession, sale, etc., prohibited generally.
It shall be unlawful for any person to possess, sell, offer for sale, distribute, administer, dispense, prescribe or give away any controlled substance for which the unlawful possession, sale, offer for sale, distribution, administration, dispensation, prescription, or giving away is punishable by imprisonment for not more than one (1) year under any of the provisions contained within Part 74 of the Michigan Public Health Code, being MCL 333.7401 through MCL 333.7461; MSA 14.15(7401) through 14.15(7461), provided, that this division shall not be construed to prohibit the possession, sale, offer for sale, distribution, administration, dispensation, or prescription of any controlled substance, or its derivative, in accordance with this division.
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Sec. 38–11–7. Penalties.
(a) Any person who shall be convicted of violating any provision of this division shall be deemed guilty of a misdemeanor and shall be punished by a fine not to exceed five hundred dollars ($500.00), or by imprisonment not to exceed ninety (90) days, or by both in the discretion of the court.
(b) Each day a violation continues shall be considered a separate offense and may be punished accordingly.
The proposed amendment set forth in the initiative would have added § 38–11–50 to the code, which would provide: “None of the provisions of this article shall apply to the use or possession of less than 1 ounce of marihuana, on private property, by a person who has attained the age of 21 years.”
The city clerk reported that the petitions contained sufficient valid signatures. When the signature requirement had been met and verified, 1997 Detroit City Charter permitted the city council to enact the ordinance proposed by the petition or, if it failed to do so, to submit the proposed code amendment to the voters. 1997 Detroit Charter, art 12, § 12–107. The city council did not vote on the proposed amendment, and the matter was forwarded to the Detroit City Election Commission. The election commission asked the Detroit Law Department to provide an opinion about whether the proposed amendment was a valid initiative under Michigan law.
An attorney with the law department drafted a legal memorandum in which she concluded that the initiative conflicted with a state law that prohibits the use and possession of marijuana and that a city may not enact an ordinance that conflicts with state law. As a result the initiative would have been advisory in nature and, under Michigan law, an advisory or “symbolic” initiative may not be placed on the ballot. On August 9, 2010, the election commission voted to not place the initiative on the ballot.
Plaintiff filed a complaint for mandamus requesting the circuit court to order defendants to place the proposed amendment on the ballot. The court denied the writ of mandamus and granted defendants' motion for summary disposition under MCR 2.116(C)(8). The court ruled that the clerk had the discretion to determine whether the proposed amendment was contrary to state law. The court also agreed that the proposed amendment was contrary to state law and that the clerk therefore had no legal duty to place the initiative on the ballot.
A writ of mandamus is an extraordinary remedy that will only be issued if “(1) the party seeking the writ has a clear legal right to the performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial, and (4) no other remedy exists that might achieve the same result.” Citizens Protecting Michigan's Constitution v. Secretary of State, 280 Mich.App. 273, 284, 761 N.W.2d 210 (2008). The party seeking mandamus has the burden of establishing that the official in question has a clear legal duty to perform. Burger King Corp. v. Detroit, 33 Mich.App. 382, 384, 189 N.W.2d 797 (1971).
We review for an abuse of discretion a circuit court's decision on a request for mandamus. Carter v. Ann Arbor City Attorney, 271 Mich.App. 425, 438, 722 N.W.2d 243 (2006). However, we review de novo the first two elements required for issuance of a writ of mandamus—that defendants have a clear legal duty to perform, and plaintiffs have a clear legal right to performance of the act requested—as questions of law. Tuggle v. Mich. Dep't of State Police, 269 Mich.App. 657, 667, 712 N.W.2d 750 (2006). We also review de novo a trial court's decision on a motion for summary disposition. Ligon v. Detroit, 276 Mich.App. 120, 124, 739 N.W.2d 900 (2007). MCR 2.116(C)(8) tests whether a claimant has failed to state a cognizable claim. For purposes of a motion for summary disposition under MCR 2.116(C)(8), this Court accepts all well-pleaded factual allegations as true, and construes them in a light most favorable to the nonmoving party. Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999).
Plaintiff argues that because its petitions had the required number of qualified signatures, the statutory requirements governing initiative proposals were satisfied and, therefore, that the trial court erred by upholdingdefendants' decision to not place the proposed amendment on the ballot. Plaintiff also does not agree that the proposed amendment is contrary to state law.
Article 3, § 3–104 of the 1997 Detroit Charter, provides that: “[e]xcept as otherwise provided by this Charter or ordinance, state law applies to ... the conduct and canvass of city elections.” With regard to initiatives, the Home Rule Cities Act MCL 117.1 et seq., provides:
Each city may provide in its charter for 1 or more of the following:
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(g) The initiative and referendum on all matters within the scope of the powers of that city and the recall of city officials. [MCL 117.4i(g).]
The act also sets forth the following with regard to the handling of local elections in MCL 117.25:
(1) An initiatory petition authorized by this act shall be addressed to and filed with the city clerk. The petition shall state what body, organization, or person is primarily interested in and responsible for the circulation of the petition and the securing of the amendment. Each sheet of the petition shall be verified by the affidavit of the person who obtained the signatures to the petition. The petition shall be signed by at least 5% of the qualified and registered electors of the municipality. Each signer of the petition shall also write, immediately after his or her signature, the date of signing and his or her street address. A signature obtained more than 1 year before the filing of the petition with the city clerk shall not be counted. The petition is subject to the requirements of [MCL 117.25a].
(2) A person who willfully affixes another's signature, or subscribes and swears to a verification that is false in any material particular, is guilty of perjury. A person who takes the oath of another to the petition not knowing him or her to be the same person he or she represents himself or herself to be or knowing that the petition or any part of it is false or fraudulent in any material particular, or who falsely represents that the proposed amendment is proposed by persons other than the true sponsors, is guilty of a felony and is liable for the same punishment as provided for perjury.
(3) Upon receipt of the petition, the city clerk shall canvass it to ascertain if it is signed by the requisite number of registered electors. For the purpose of determining the validity of the petition, the city clerk may check any doubtful signatures against the registration records of the city. Within 45 days from the date of the filing of the petition, the city clerk shall certify the sufficiency or insufficiency of the petition. If the petition contains the requisite number of signatures of registered electors, the clerk shall submit the proposed amendment to the electors of the city at the next regular municipal or general state election held in the city which shall occur not less than 90 days following the filing of the petition.
Article 12 of the 1997 Detroit Charter governs initiatives and referendums in Detroit and provides, in relevant part:
12–104. Duties of the City Clerk.
The petitions shall be filed with the city clerk. The clerk shall, within ten (10) days, canvass the signatures thereonto determine their sufficiency and make a report of the result to the city council. Any signature on an initiative petition obtained more than six (6) months before the filing of the petition with the clerk shall not be counted.
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Upon the report of the clerk that the initiative or referendum petitions are sufficient, and filed within the time limits provided by this Charter, the city may within thirty (30) days:
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