Hackett v. Kress
| Decision Date | 15 March 1965 |
| Docket Number | No. 2,No. 495,495,2 |
| Parties | Darrel R. HACKETT, Plaintiff-Appellant, v. Lawrence KRESS, City Clerk, City of Ferndale, Henry J. Schiffer, Earl Nash and Montague R. Hunt, Defendants-Appellees. * Cal |
| Court | Court of Appeal of Michigan — District of US |
Robert E. Childs, Detroit, for appellant.
Robert J. Turner, City Atty., Forsythe & Beasley, Henry A. Schiffer, Ferndale, Montague R. Hunt, Royal Oak, Condit, Denison & Devine, Birmingham, for appellees.
Before QUINN, P. J., and KAVANAGH and McGREGOR, JJ.
Although this case was decided at a special session of the Court, held at Flint, Michigan, February 13, 1965, by oral pronouncement and formal order, GCR 1963, 821.1 requires that a written opinion be filed. Only the extreme urgency of the situation with which the Court was faced justifies decision prior to written opinion, and the fact that this case was so decided sets no precedent in this regard. 1 The same urgency is the only justification for hearing oral argument on an incomplete record and before compliance with court rules. The fact that it was done in this case sets no precedent. Except for the cooperation of all counsel in stipulating essential facts, decision would not have been possible.
Plaintiff and defendants Henry J. Schiffer, Earl Nash and Montague R. Hunt appear as candidates for nomination for municipal judges on the primary ballot to be submitted to the electors of the City of Ferndale, Oakland County, Michigan, on February 15, 1965. Plaintiff filed proceedings in Oakland County Circuit Court contesting the right of these defendants to be on the ballot for the following reasons:
1. The nominating petitions of defendants Schiffer and Hunt do not contain the word nonpartisan and the warning to signers thereof not to sign more petitions than there are candidates to be elected as required by P.A.1954, No. 116, § 544a, as added by P.A.1960, No. 23 (C.L.S.1961, § 168.544a, [Stat.Ann.1963 Cum.Supp. § 6,1544(1)]).
2. Defendant Hunt had not filed the affidavit required by P.A.1954, No. 116, § 544b, as added by P.A.1963 (2d Ex.Sess.), No. 57 (C.L.1948, § 168.544b 544b [Stat.Ann.1964 Current Material § 6.1544(2)]).
3. Defendant Nash was over 70 years of age and was disqualified by Const.1963, art. 6, § 19.
Following a hearing February 8, 1965, and on the same day, Judge Stanton Dondero decided all questions against plaintiff. The plaintiff filed claim of appeal February 9, 1965, together with an application for exparte emergency relief in the form of an injunction restraining defendant City Clerk Lawrence Kress from submitting the names of defendants Schiffer, Nash and Hunt to the electors at the election of February 15, 1965. The emergency application was considered by this Court at a conference February 11, 1965, and, without hearing defendants, orders were entered granting the emergency relief sought as to defendants Nash and Hunt and requiring defendant Schiffer to show cause on February 26, 1965, why the relief prayed for against him should not be granted. The Court was in error in acting without affording defendants an opportunity to be heard. The special session of February 13, 1965, was an attempt to correct this error.
At the hearing February 13, 1965, counsel for plaintiff stipulated that the affidavit filed by defendant Hunt on February 12, 1965, placed him in substantial compliance with Act 57 supra, and removed this disqualification. Further discussion of this point is unnecessary.
At the same hearing, all counsel agreed that Ferndale is a home rule city; that is charter prescribes the form of nominating petitions for city office; and that the nominating petitions filed by defendants Schiffer and Hunt complied with the charter provisions. In view of C.L.S. 1961, § 168.321 (Stat.Ann.1956 Rev. § 6.1321), and P.A.1909, No. 279, § 3, as amended (C.L.S.1961, § 117.3 [Stat.Ann.1963 Cum.Supp. § 5.2073]) (mandatory charter provisions of home rule cities regarding nomination and election), it is the opinion of this Court that Act 23 supra does not apply to the petitions here involved and that they are adequate and proper to qualify defendants Schiffer and Hunt for the ballot.
Const.1963, art. 6, § 19, reads as follows:
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