Petrie v. Curtis

• Decision Date: 04 May 1972
• Docket Number: No. 5,5
• Citation: 196 N.W.2d 761,387 Mich. 436
• Parties: Bryce PETRIE, Plaintiff-Appellant, v. Robert CURTIS, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 761

196 N.W.2d 761

387 Mich. 436

Bryce PETRIE, Plaintiff-Appellant, v. Robert CURTIS, Defendant-Appellee.

No. 5.

Supreme Court of Michigan.

May 4, 1972.

Glenn Aylsworth, Richard L. Benedict, Co-Counsel, Traverse City, for plaintiff-appellant.

Zerafa & Zerafa, Elk Rapids, for defendant-appellee.

Before the Entire Bench.

PER CURIAM.

Bryce Petrie, plaintiff, was a write-in candidate for the office of Sheriff o Antrim County in the election of November 5, 1968. He was the sole write-in candidate and opponent to the Republican nominee, Robert Curtis.

Curtis was declared the winner. Upon a subsequent recount, however, Petrie would have been the winner if 132 votes had not been invalidated. These votes had plaintiff's last name, 'Petrie,' written on the ballots but failed to include his given name 'Bryce.'

Petrie filed a complaint for quo warranto in the Antrim County Circuit Court. He later filed a motion for summary judgment. At the hearing on this motion, Curtis admitted the facts in an affidavit submitted by Petrie to the effect that his name was uncommon, that he was well known to the people in the county as a juvenile officer of the Probate Court, and that his campaign for sheriff was well publicized.

The court granted the motion for summary judgment, basing its decision on the fact 'that a voter's intention should not be frustrated by a legal technicality,' and concluded that 'there can be no other logical explanation of those votes.'

This decision was reversed by the Court of Appeals on the basis of three Michigan Supreme Court cases: People ex rel. Attorney General v. Tisdale, 1 Doug. 59 (1843); People ex rel. Lake v. Higgins, 3 Mich. 233 (1854); People ex rel. Williams v. Cicott, 16 Mich. 283 (1868).

The Supreme Court in the Higgins and the Cicott cases felt bound by the precedent of Tisdale to hold invalid write-in votes which did not contain the 'Christian name' of the candidate. The Court of Appeals noted that:

'The rule established by Michigan case law, which may permit the intent of the electorate to be frustrate by a mere technicality, as evidenced by the instant case, appears to be contrary to the rule in every other jurisdiction. See 26 Am.Jur.2d, Elections, § 268 p. 96; 86 A.L.R.2d 1025.' (32 Mich.App. 151, 154, 188 N.W.2d 637, 638 (1971)).

Does Michigan precedent require the exclusion of the 132 ballots because they lacked plaintiff's given name?

Supreme Court cases subsequent to Tisdale, Higgins and Cicott, supra, have clearly indicated that citizens will not be deprived of their votes 'because of technical inaccuracies in the manner of expressing it on the ballot.' Jonkman ex rel. Shaw v. Striplin, 255 Mich. 215, 217, 237 N.W. 375 (1931). See also, Cory v. MacKenzie, 297 Mich. 523, 298 N.W. 120 (1941). This right of the voters would be rendered nugatory in this case if we are bound by the precedent of Tisdale, Higgins and Cicott, supra. This Court need not perpetuate error simply because it reached a wrong result in one of its earlier decisions.

In his dissenting opinion in Cicott, supra, Chief Justice Cooley wrote as follows (pp. 317, 318, 319, 320):

'I regret that my brethren are disposed to still follow the case of People v. Tisdale, 1 Doug.Mich., 59, notwithstanding the majority are of opinion that it is unsound in principle. The case has no support, as I think, either in the authorities or in the analogies of the law, and no court outside the state has ever followed it. It is true, as my brethren have remarked, that it lays down a rule easy of application, and one that is no more unfair to one candidate than to another; but it does not seem to me to be sufficient reason for retaining an unsound rule that it is impartial in its infliction of injustice. In every case where it becomes important to apply the rule at all, it has the effect to defeat the clearly expressed will of the electors, and although, if we were to consider voters only as aggregated in two political parties, there might be no reason to complain of it, because it would be likely to defeat one pa...