Hanlin v. Saugatuck Twp., Docket No. 300415.

• Decision Date: 15 January 2013
• Docket Number: Docket No. 300415.
• Citation: 299 Mich.App. 233,829 N.W.2d 335
• Parties: HANLIN v. SAUGATUCK TOWNSHIP.
• Court: Court of Appeal of Michigan — District of US

299 Mich.App. 233

829 N.W.2d 335

HANLIN

v.SAUGATUCK TOWNSHIP.

Docket No. 300415.

Court of Appeals of Michigan.

Submitted Nov. 15, 2012, at Grand Rapids.

Decided Jan. 15, 2013, at 9:00 a.m.

Honigman, Miller Schwartz & Cohn LLP, Lansing (by John D. Pirich and Andrea L. Hansen), for Walter L. Hanlin and John Latini.

Scholten Fant, Grand Haven (by Bradford W. Springer) for Saugatuck Township and the Saugatuck Township Board.

Miller Johnson, Grand Rapids (by Gregory P. Ripple) for the Allegan County Board of Canvassers.

Robert S. LaBrant, for Amici Curiae the Michigan Chamber of Commerce.

Bauckham, Sparks, Lohrstorfer, Thall & Seeber, P.C., Kalamazoo (by John K. Lohrstorfer), for Amici Curiae the Michigan Townships Association.

Before: SERVITTO, P.J., and MARKEY and MURRAY, JJ.

PER CURIAM.

Plaintiffs appeal as of right the trial court order granting summary disposition in favor of defendants, Saugatuck Township, the Saugatuck Township Board (hereafter referred to as “the township defendants”), and the Allegan County Board of Canvassers (the board), and denying summary disposition in plaintiffs' favor, in this action premised upon election irregularities. We affirm.

Plaintiffs initiated this action for declaratory and injunctive relief, mandamus and/or for permission to proceed by quo warranto in relation to a proposed millage that was approved in the May 4, 2010 Saugatuck Township special election by a margin of only two votes. According to plaintiffs, the county board certified the election results on May 6, 2010, and plaintiff Hanlin petitioned for a recount of the election results on May 11, 2010. Plaintiffs alleged that irregularities in the election procedure occurred, essentially surrounding the township clerk's mishandling of the ballot container and its seals. Specifically, plaintiffs asserted that the township clerk cut the security seal on the township ballot container after the election but before a recount could be performed. The ballots were then handled and transferred to unapproved canvas bags. Additionally, the seal on the transfer case for the ballots did not match the seal recorded in the poll book and the original seal that had been cut could not be located. According to plaintiffs, the board elected not to proceed with the recount because the seal number recorded in the poll book did not match the seal number on the certificate to the bags containing the ballots and the original seal was not found in either of the ballot bags, contrary to the township clerk's assertion that she had placed said seal in one of the bags. Plaintiffs thus sued the township defendants and the board, seeking to void the election results.

The parties filed cross-motions for summary disposition, with plaintiffs arguing that those irregularities, as well as others, supported an action for quo warranto on the basis of “fraud or gross error” pursuant to MCL 600.4545 and on the basis of “fraudulent or illegal voting, or tampering with ballots or ballot boxes before a recount” pursuant to MCL 168.861. Plaintiffs also argued that quo warranto was justified because voters were misled regarding the millage proposal, and that the township defendants violated the Election Law in other critical aspects, including the fact that the township clerk, despite not being authorized to act as an election inspector, ran the election and signed the poll book as an election inspector. Plaintiffs further argued that mandamus was the appropriate remedy against the board because it failed to verify that the poll book was signed by two election inspectors and that the seal numbers were recorded in the statement of votes, thereby failing to comply with its ministerial duties.

Defendants moved for summary disposition on their own respective behalves. The township defendants sought summary disposition on the basis of their assertion that plaintiffs' complaint failed to contain a single factual allegation that any fraud or error occurred at the election itself. The township defendants further asserted that MCL 168.861 is a saving clause and does not serve as the basis for an independent claim for quo warranto. The board moved for summary disposition on plaintiffs' claim for mandamus because plaintiffs, in the complaint, failed to identify any ministerial duty of the board that plaintiffs had a legal right to see performed. The trial court ultimately denied plaintiffs' motion for summary disposition and granted summary disposition to the board under MCR 2.116(C)(8), and to the township defendants under MCR 2.116(C)(8) and (C)(10). This appeal followed.

To proceed with a claim for quo warranto, a citizen must obtain leave of the trial court. MCR 3.306(B)(2). A trial court's decision whether to grant a citizen's application for leave to proceed by quo warranto is reviewed for an abuse of discretion. Barrow v. Detroit Mayor, 290 Mich.App. 530, 539, 802 N.W.2d 658 (2010). An abuse of discretion occurs when the trial court's decision falls outside the range of reasonable and principled outcomes. Id. A trial court properly denies an application to proceed by quo warranto when the application fails to disclose sufficient facts and grounds and sufficient apparent merit to justify further inquiry. Id. at 546, 802 N.W.2d 658.

In this case, rather than determining whether plaintiffs should be granted leave to proceed by quo warranto, the trial court decided plaintiffs' claim for quo warranto under summary disposition standards. While the court did not did not specify under which subrule it was granting summary disposition to the township defendants,it does not appear that the trial court limited its analysis to the pleadings alone. This Court will thus construe the motion as having been granted pursuant to MCR 2.116(C)(10). See, e.g., Hughes v. Region VII Area Agency on Aging, 277 Mich.App. 268, 273, 744 N.W.2d 10 (2007).

This Court reviews de novo a trial court's decision on a motion for summary disposition. Moser v. Detroit, 284 Mich.App. 536, 538, 772 N.W.2d 823 (2009). Summary disposition is proper under MCR 2.116(C)(8) if “[t]he opposing party has failed to state a claim on which relief can be granted.” A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the allegations of the pleadings alone. Feyz v. Mercy Mem. Hosp., 475 Mich. 663, 672, 719 N.W.2d 1 (2006). All well-pleaded allegations must be accepted as true and construed in the light most favorable to the nonmoving party. Cummins v. Robinson Twp., 283 Mich.App. 677, 689, 770 N.W.2d 421 (2009). Only when no factual development could possibly justify recovery, should the motion be granted. Feyz, 475 Mich. at 672, 719 N.W.2d 1.

Summary disposition is proper under MCR 2.116(C)(10) if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment ... as a matter of law.” A motion under MCR 2.116(C)(10) tests the factual support of a complaint. Liparoto Constr., Inc. v. Gen. Shale Brick, Inc., 284 Mich.App. 25, 29, 772 N.W.2d 801 (2009). A court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence in the light most favorable to the nonmoving party. Id. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).

The issues presented involve questions of statutory interpretation. This Court reviews de novo issues of statutory interpretation. Ward v. Mich. State Univ. (On Remand), 287 Mich.App. 76, 79, 782 N.W.2d 514 (2010).

On appeal, plaintiffs first contend that the trial court erred by granting summary disposition to the township defendants on plaintiffs' claim of quo warranto because there was, at a minimum, a question of fact as to whether the township clerk tampered with the ballots, because the township clerk committed gross error sufficient to warrant quo warranto relief, and because the voters were misled by the township defendants with respect to the need for the millage funds. We disagree.

Quo warranto is a “ ‘common-law writ used to inquire into the authority by which a public office is held or a franchise is claimed.’ ” Davis v. Chatman, 292 Mich.App. 603, 612, 808 N.W.2d 555 (2011), quoting Black's Law Dictionary (9th ed.). As previously indicated, MCR 3.306(B)(2) allows a citizen to proceed with an action for quo warranto only by special leave of the court. Generally such actions are brought pursuant to MCL 600.4505—which echoes the procedure of MCR 3.306(B)(2)—and are pursued against a person in public office by one who seeks to challenge that person's right to hold office, but no assertions are made of fraud or error. Barrow, 290 Mich.App. at 541, 802 N.W.2d 658.MCL 600.4545(1), on the other hand, provides for an action in the nature of quo warranto “whenever it appears that material fraud or error has been committed at any election in such county at which there has been submitted any constitutional amendment, question, or proposition to the electors of the state or any county, township, or municipality thereof.” This type of action is brought to challenge the validity of the election itself. Barrow, 290 Mich.App. at 543, 802 N.W.2d 658. Thus, to pursue an action for quo warranto to challenge the validity of the election, plaintiffs must establish that a material fraud or error was committed at the election.

Plaintiff, however, asserts that MCL 168.861 expressly provides a remedy by quo warranto, and thus a voiding of the election results, for tampering with the ballots or ballot boxes before a recount. MCL 168.861 directs that “[f]or fraudulent or illegal voting, or tampering with the ballots or ballot boxes before a recount by the board of county canvassers, the remedy by quo warranto shall remain in full force, together with any other remedies now existing.”

Whether MCL 168.861...