Helmkamp v. Livonia City Council, Docket No. 97439

• Decision Date: 17 July 1987
• Docket Number: Docket No. 97439
• Parties: Alan C. HELMKAMP and David Lee Ducharme, Plaintiffs-Appellees, v. LIVONIA CITY COUNCIL and Election Commission of the City of Livonia, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 470

408 N.W.2d 470

160 Mich.App. 442

Alan C. HELMKAMP and David Lee Ducharme, Plaintiffs-Appellees, v. LIVONIA CITY COUNCIL and Election Commission of the City of

Livonia, Defendants-Appellants.

Docket No. 97439.

Court of Appeals of Michigan.

Submitted March 3, 1987.

Decided May 26, 1987.

Released for Publication July 17, 1987.

Helmkamp, Ellis & Abraham by Alan C. Helmkamp, Livonia, for plaintiffs-appellees.

Harry C. Tatigian, City Atty., Livonia, for defendants-appellants.

Before KELLY, P.J., and SULLIVAN and JOSLYN ^*, JJ.

PER CURIAM.

Defendants, City Council of Livonia and the Election Commission of the City of Livonia, appeal as of right from an order of mandamus, issued by the Wayne Circuit Court, requiring them to hold a special election to fill a vacancy in the position of mayor. We reverse.

The facts are not in dispute. On November 4, 1986, Livonia Mayor Edward H. McNamara was elected Executive of Wayne County. His term in that office commenced January 1, 1987. His term of office as mayor of Livonia, however, was not to expire until December 31, 1987, subsequent to the next regularly scheduled mayoral election on November 3, 1987.

On November 6, 1986, Mayor McNamara submitted his resignation, effective midnight December 31, 1986. On November 10, 1986, the city council voted four to three to adopt a resolution empowering itself to appoint a new mayor from among the senior council members. Mayor McNamara vetoed the resolution, and the council failed to override the veto. Upon the effective date of McNamara's resignation, Robert E. McCann, president of the city council, began serving as mayor pro tem.

On November 19, 1986, the council had rejected a resolution to hold a special election to fill the mayoral vacancy. Subsequently, on November 25, 1986, plaintiffs, residents and electors of the city, filed the instant suit for a declaratory judgment and for an order of mandamus compelling defendants to call a special election. Following a hearing on defendants' motion for summary disposition, the circuit court, on December 18, 1986, issued the order of mandamus. Rejecting defendants' arguments to the contrary, the court concluded that plaintiffs had standing to bring this suit as electors and that a "fair interpretation" of the charter required a special election to fill the vacancy. The court thereafter granted a stay of the proceedings pending the disposition of the present appeal.

The threshold issue raised by defendants on this appeal is whether plaintiffs have standing to maintain this action. Both plaintiffs herein and the court below relied heavily on Amberg v. Welsh, 325 Mich. 285, 38 N.W.2d 304 (1949), to support their respective conclusions that plaintiffs did indeed have standing.

In Amberg, the plaintiffs, as electors and signers of a petition to recall the mayor of Grand Rapids, were held to be proper parties in their suit seeking mandamus to compel the city clerk to conduct a recall election pursuant to the city charter. The Amberg Court, without elaboration, held that plaintiffs' right to bring suit was a matter of the trial court's discretion that had been properly exercised. 325 Mich. at 291, 38 N.W.2d 304.

We agree that the lower court's reliance on Amberg was proper. Amberg is consistent with the following accepted statement of law:

"It is generally held, in the absence of a statute to the contrary, that a private person as relator may enforce by mandamus a public right or duty relating to elections without showing a special interest distinct from the interest of the public." 26 Am.Jur.2d, Elections, Sec. 367, p. 180, see also 52 Am.Jur.2d, Mandamus, Sec. 390, pp. 712-713.

Consequently, defendants' assertions and citations to the contrary, ¹ plaintiffs were not required to show a substantial injury distinct from that suffered by the public in general. The trial court's ruling on the standing issue was not erroneous.

The substantive issue raised on appeal is whether the lower court abused its discretion in granting mandamus. Mandamus may issue where a plaintiff proves a clear legal right to the performance of the specific duty sought to be compelled and that the defendant has a clear legal duty to perform the action. BCS Ins. Co. v. Comm'r of Ins., 154 Mich.App. 373, 377, 397 N.W.2d 552 (1986). The trial court's grant of mandamus is discretionary and will not be reversed absent an abuse of discretion. Carlson v. City of Troy, 90 Mich.App. 543, 547, 282 N.W.2d 387 (1979).

Here, the trial court, although conceding that "the charter does not make a special election mandatory," concluded that a "fair interpretation" of the charter compelled one in this instance. We believe that the court abused its discretion in arriving at this conclusion and in consequently granting mandamus.

In reviewing the charter, we are mindful of the principle that

"When the language of a charter provision is unambiguous and specific it is controlling. In such a case, it is presumed that the framers of the charter, and the people of the city involved, intended that the provision be construed as it reads. That intent must prevail. Kelly v Detroit, 358 Mich 290, 295-296; 100 N.W.2d 269 (1960); Detroit Fire Fighters Ass'n Local No 344, IAFF v Detroit, 55 Mich App 276, 281; 222 N.W.2d 210 (1974), lv den 393 Mich 755 (1974). If a charter provision is ambiguous it must still be interpreted in a manner consistent with reason and with the goal of determining the purpose and intent of the framers and public." Detroit Fire Fighters Ass'n v. Detroit, 127 Mich.App. 673, 677, 339 N.W.2d 230 (1983).

A number of charter provisions are relevant to the consideration of the instant issue. To begin with, the charter provides for a tripartite division of power, i.e. legislative, executive and judicial. Livonia Charter, ch. II, Sec. 3. The charter further provides for the orderly transition of power in the event of a mayoral vacancy. Chapter IV, Sec. 6 reads in pertinent part:

"Section 6. President. At the first regular meeting of the Council following each regular City election, the Council shall elect one of its members as President to hold office until the next regular City election and until his successor has been duly elected. The President shall perform the duties of the Mayor when, on account of absence from the City, disability, or otherwise, the Mayor is temporarily unable to perform the duties of his office, and in case of vacancy in the office of Mayor, until such vacancy is filed by election. Whenever the President shall act as Mayor Pro Tem in excess of thirty (30) days, he shall receive such additional compensation as may be allowed by the Council. The Mayor shall not receive any compensation for any continuous period of absence or disability on his part in excess of ninety (90) days."

Vacancy is defined in Chapter X, Sec. 5:

"Section 5. Vacancy Defined. In addition to other provisions of this Charter, a vacancy shall be deemed to exist in any office when an officer dies, resigns, is removed from office, moves his legal residence from the City, is...