Herp v. Lansing City Clerk

• Decision Date: 29 January 1988
• Docket Number: I,AFL-CI,Docket No. 98709
• Citation: 164 Mich.App. 150,416 N.W.2d 367
• Parties: Margaret HERP, Theresa Oberst, Gerald Graves, Donna Graves, Robert Stanaway, Maurice J. Dillman and Juanita Hadley, Plaintiffs-Appellants, v. LANSING CITY CLERK and Elections Commission of the City of Lansing, Defendants- Appellees, and Lansing Building Authority, Plumbers and Pipefitters Local 388, Carpenters Local 1449, Lansing 2000, Inc., B & A of Michigan, Inc., and Michigan State Building and Construction Trades Council,ntervening Defendants- Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 367

416 N.W.2d 367

164 Mich.App. 150

Margaret HERP, Theresa Oberst, Gerald Graves, Donna Graves Robert Stanaway, Maurice J. Dillman and Juanita Hadley, Plaintiffs-Appellants, v. LANSING CITY CLERK and Elections Commission of the City of Lansing, Defendants- Appellees and Lansing Building Authority, Plumbers and Pipefitters Local 388, Carpenters Local 1449, Lansing 2000, Inc., B & A of Michigan, Inc., and Michigan State Building and Construction Trades Council, AFL-CIO, Intervening Defendants- Appellees.

Docket No. 98709.

Court of Appeals of Michigan.

Submitted May 14, 1987.

Decided Oct. 27, 1987.

Released for Publication Dec. 22, 1987.

Leave to Appeal Denied Jan. 29, 1988.

[164 MICHAPP 151] Tom Downs, Lansing, and Randall W. Kraker, Grand Rapids (Michael A. Zagaroli and Timothy Downs, Detroit, of counsel), and Varnum, Riddering, Schmidt & Howlett by Robert J. Eleveld, Grand Rapids, and Tim Downs, Detroit, for plaintiffs-appellants.

Miller, Canfield, Paddock & Stone by John D. Pirich, P.C. and Michael J. Hodge, and Alvan P. Knot, Lansing City Attorney, Lansing, for defendants-appellees and intervening defendants-appellees.

Before MacKENZIE, P.J., and J.H. GILLIS and SWALLOW, ^* JJ.

PER CURIAM.

This case involves the sufficiency of certain referendum petitions submitted by plaintiffs to defendant city clerk regarding a proposed bond issue by the City of Lansing Building Authority. Plaintiffs appeal as of right from an order granting summary disposition in favor of defendants and intervening defendants and dismissing plaintiffs' complaint for mandamus to compel Lansing city officials to hold the petitioned-for referendum election. We affirm.

The building authority act, M.C.L. Sec. 123.951 et seq.; M.S.A. Sec. 5.301(1) et seq., authorizes municipalities to incorporate a building authority for the purpose of [164 MICHAPP 152] acquiring building sites, buildings, and appurtenant facilities for any legitimate public purpose. See M.C.L. Sec. 123.951; M.S.A. Sec. 5.301(1). Methods of acquisition include purchase and construction. See M.C.L. Sec. 123.959; M.S.A. Sec. 5.301(9). Essentially, under the act, the authority pays for the acquisition of the site and the construction of the building and facilities and then leases the property to the municipality (referred to in the act as the "incorporating unit"). The authority finances the project by issuing bonds, and the lease proceeds are used to discharge the bonded indebtedness. When the bonds are retired, the authority conveys the property to the incorporating unit.

On September 8, 1986, the City of Lansing, the Lansing Building Authority, and private developer B & A of Michigan entered into an agreement providing for the development of a conference center, parking ramp, urban site, and hotel in downtown Lansing. Under the agreement, and pursuant to the building authority act, the building authority would construct the conference center and parking ramp, financed with bond issues, and lease both to the city. The city would develop the public site with either public sources or building authority bonds. B & A would build the hotel at its sole expense. Hotel construction would be contingent upon the construction of the conference center, parking ramp, and public site. At issue in this case is the building authority's bond issue to finance the conference center portion of the project.

Under the building authority act, one type of bond which an authority may issue to finance the acquisition of buildings is a bond issue backed by the full faith and credit of the incorporating unit. When this type of financing is used, the authority issues bonds upon the execution of a full faith and [164 MICHAPP 153] credit general obligation contract of lease between the incorporating unit and the building authority. See generally, M.C.L. Sec. 123.958a; M.S.A. Sec. 5.301(8a), M.C.L. Sec. 123.958b; M.S.A. Sec. 5.301(8b), and M.C.L. Sec. 123.961; M.S.A. Sec. 5.301(11). In this case, such a contract of lease between the city and the building authority was anticipated to finance the construction of the conference center. Execution of full faith and credit general obligation contracts of lease is governed by Sec. 8b of the building authority act, M.C.L. Sec. 123.958b; M.S.A. Sec. 5.301(8b). Section 8b provides in pertinent part:

"The governing body of an incorporating unit or units may, by a majority vote of its elected members, authorize the execution of a full faith and credit general obligation contract of lease with an authority, and the contract so authorized may be executed and delivered without a vote of the electors thereon. The contract shall not become effective until 45 days after a notice of intention of entering into the contract has been published in a newspaper of general circulation in the incorporating unit or units and no petition for referendum requesting an election on the contract has been filed with the clerk or other recording officer thereof within the 45-day period. The referendum petition, if filed, shall be signed by not less than 10% or 15,000 of the registered electors of the incorporating unit, whichever is less. If a proper petition is filed the contract shall not become effective unless approved by a majority of the electors of the incorporating unit or units voting thereon at a general or special election.... Signatures on the petition shall be verified by the circulator under oath as the actual signatures of the persons whose names are signed thereto and the clerk or other recording officer of the incorporating unit shall have the same power to reject signatures and petitions as city clerks under section 25 of Act No. 279 of the Public Acts of 1909, [164 MICHAPP 154] as amended, being section 117.25 of the Michigan Compiled Laws." (Emphasis added.)

M.C.L. Sec. 117.25; M.S.A. Sec. 5.2104, referred to in Sec. 8b, is part of the home rule cities act, M.C.L. Sec. 117.1 et seq.; M.S.A. Sec. 5.2071 et seq. It provides in relevant part:

"Sec. 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 or organization, if any, or if no body or organization, then what persons are 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.... Each signer of the petition shall inscribe upon it, immediately after his or her signature, the date of signing and his or her street address. Any signatures obtained more than 1 year before the filing of the petition with the city clerk shall not be counted.

"(2) The verification shall state that the petition was circulated at the request of and pursuant to the directions of the association, organization, or persons desiring the amendment and shall also state that the signatures were obtained by the person verifying the petition; that the signatures are the signatures of the persons purporting to sign the same and that each of them signed in his or her presence; and that the person verifying the petition has good reason to believe and verily does believe that the signers of the petition thereof are duly registered electors of the municipality and are the identical persons their signature purport them to be.

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"(4) Upon receipt of the petition, the city clerk shall canvass it to ascertain if it has been signed by the requisite number of registered electors. For [164 MICHAPP 155] the purpose of determining the validity of the petition, the city clerk may cause any doubtful signatures to be checked 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 thereof. If the petition contains the requisite number of signatures of registered electors, the clerk shall cause the proposed amendment to be submitted 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.

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"(8) Any person aggrieved by any action, or failure of action, of the city clerk may bring an action against the clerk in the circuit court for writ of mandamus or for other appropriate relief." (Emphasis added.)

Sometime prior to September 28, 1986, the Lansing City Council approved and executed a full faith and credit general obligation contract of lease with the Lansing Building Authority for the conference center. Pursuant to Sec. 8b of the building authority act, the city clerk placed a notice in the Lansing State Journal on September 28, 1986. The notice informed the public that the contract of lease would become effective in forty-five days unless petitions requesting a referendum were filed within that time period.

On November 12, 1986, the Lansing Taxpayers Association filed petitions signed by 14,887 persons, including plaintiffs, requesting a referendum on the full faith and credit general obligation contract of lease for the conference center. The petitions did not disclose the organization sponsoring their circulation, a requirement under Sec. 25 of [164 MICHAPP 156] the home rule cities act, quoted above. ¹ By letter dated December 17, 1986, the city clerk notified the association's attorney that the petitions would not be certified because, although they contained a sufficient number of signatures, the city attorney had opined that the petitions did not meet the requirement of Sec. 25 that they state the name of the organization or persons responsible for their circulation.

On December 22, 1986, pursuant to subsection 25(8) of the home rule cities act and MCR 3.305(A)(2), plaintiffs filed a complaint for mandamus against defendants city clerk and city election commission requesting the court to compel submission of the full faith...