Settles v. Detroit City Clerk

• Decision Date: 11 August 1988
• Docket Number: Docket No. 109680
• Citation: 169 Mich.App. 797,427 N.W.2d 188
• Parties: James U. SETTLES, Plaintiff-Appellant, v. DETROIT CITY CLERK.
• Court: Court of Appeal of Michigan — District of US

Page 188

427 N.W.2d 188

169 Mich.App. 797

James U. SETTLES, Plaintiff-Appellant, v. DETROIT CITY CLERK.

Docket No. 109680.

Court of Appeals of Michigan.

Submitted July 5, 1988.

Decided July 8, 1988.

Released for Publication Aug. 11, 1988.

Craig, Farber, Downs & Dise, P.C. by Timothy Downs, Detroit, for James Settles.

Miller, Canfield, Paddock & Stone by Larry J. Saylor and William J. Kohler, Detroit, for James H. Bradley, Jeffrey D. Blaine, and the City of Detroit Election Com'n.

Samuel A. Turner, Corp. Counsel, and William B. McIntyre, Jr., Asst. Corp. Counsel, Detroit, for James R. Killeen and the Wayne County Election Com'n.

Mason, Steinhardt & Jacobs, P.C. by John E. Jacobs and Paul M. Kliger, Southfield, for Citizens for Detroit's Future.

Before SHEPHERD, P.J., and KELLY and BEASLEY, JJ.

PER CURIAM.

Plaintiff, James U. Settles, filed this emergency appeal to challenge Wayne Circuit Judge Richard C. Kaufman's June 21, 1988, order dismissing this action. In that decision, the circuit court refused to order an initiative removed from the August 2, 1988, primary ballot in the City of Detroit. The purported intent of the initiative is to place on the ballot an ordinance to bar "casino gambling" from the City of Detroit, including Belle Isle, in the event that casino gambling is approved by state law. For the reasons stated in this opinion, we affirm the order of the circuit court refusing mandamus or an injunction to bar the issue from the ballot.

Intervening defendant, Citizens for Detroit's Future, circulated initiative petitions seeking passage of an ordinance. The petitions contained the following language:

"WE, THE UNDERSIGNED, WANT TO VOTE ON THE ISSUE OF CASINO GAMBLING AND BEING DULY REGISTERED VOTERS RESIDING IN THE CITY OF DETROIT, MICHIGAN, DUE [sic] HEREBY PETITION THE CITY COUNCIL TO PLACE BEFORE THE VOTERS AT THE NEXT REGULARLY SCHEDULED ELECTION, OR AT THE DISCRETION OF THE CITY COUNCIL AT A SPECIAL ELECTION, THE FOLLOWING BINDING ORDINANCE 'IT IS HEREBY ORDAINED BY THE PEOPLE OF THE CITY OF DETROIT THAT IF AT ANY TIME CASINO GAMBLING IS APPROVED BY STATE LAW, THAT IT SHALL BE PROHIBITED WITHIN THE CORPORATE LIMITS OF THE CITY OF DETROIT INCLUDING BELLE ISLE'."

The petitions were filed with defendant Detroit City Clerk, who determined them to contain more than the required minimum number of valid signatures. The proposed ordinance was transmitted to the Detroit City Council by letter of December 14, 1987, to allow the option of enacting an ordinance within thirty days as provided by Sec. 12-107(1) of the Detroit City Charter. The measure was not enacted, so by letter of June 10, 1988, the city clerk transmitted the proposal to defendant Wayne County Clerk for submission to the voters on the August 2, 1988, primary ballot in Detroit.

On June 15, 1988, plaintiff filed this suit for mandamus and injunctive relief to prohibit the matter from being placed on the ballot. On that same day, Judge Kaufman entered an order to show cause why the requested relief should not be granted. By order dated June 20, 1988, he allowed Citizens for Detroit's Future to intervene. The matter came on for hearing June 20, 1988, and he denied the requested relief, ruling the suit should be dismissed. He entered his order dismissing the case June 21, 1988.

Plaintiff filed his appeal as of right with this Court on June 22, 1988. Accompanying the appeal were motions for peremptory reversal, immediate consideration, and an expedited appeal process. By order of June 28, 1988, this Court granted the motion for immediate consideration, denied the motion for peremptory reversal, granted the motion to expedite, and ordered the matter submitted for oral argument at the earliest possible date. This Court has treated the briefs submitted in connection with the motion for peremptory reversal and the briefs filed with the circuit court as the briefs on appeal. The matter came on for oral argument before this Court on July 5, 1988. At that time, plaintiff's counsel indicated no need to file further briefs and no other party indicated a need to file further briefs.

In Const.1963, art. 2, Sec. 9, the power to propose, enact and reject laws, called the initiative, is reserved to the people. However, this reserved power does not include the power of initiative with respect to local ordinances. Korash v. Livonia, 388 Mich. 737, 742, n. 3, 202 N.W.2d 803 (1972). The power of a home rule city, such as Detroit, to provide for initiative petitions derives from statute. The power is provided in M.C.L. Sec. 117.4i(6); M.S.A. Sec. 5.2082(6), while the procedure is addressed in the last sentence of M.C.L. Sec. 117.21; M.S.A. Sec. 5.2100:

"Propositions and questions shall be proposed, initiated, submitted and canvassed in a manner similar to that provided for charter amendments."

Here, we find that Article 12 of the city charter, Secs. 12-101 through 12-112, meets these requirements; i.e., Article 12 provides for propositions and questions to be proposed, initiated, submitted and canvassed in a manner similar to that provided for home rule city charter amendments. Concomitantly, we find that the city charter, and not the statutory requirements for home rule city charter amendments, governs these local initiatory petitions.

This Court has held that deficiencies amounting to a wholesale exclusion of mandated disclosure information justify removal of an issue from a ballot, while mere technical noncompliance would not prevent the election from going forward, Herp v. Lansing City Clerk, 164 Mich.App. 150, 416 N.W.2d 367 (1987), lv.den. 429 Mich. 899 (1988). In Meridian Twp. v. East Lansing, 101 Mich.App. 805, 300 N.W.2d 703 (1980), lv. den. 411 Mich. 962 (1981), this Court set forth the general principle that all doubts as to technical deficiences or failure to comply with the exact letter of procedural requirements in petitions (generally, although that case involved annexation petitions) are resolved in favor of permitting the people to vote and express a choice on any proposal subject to election. In Newsome v. Bd. of State Canvassers, 69 Mich.App. 725, 729, 245 N.W.2d 374 (1976), lv.den. 397 Mich. 833 (1976), this Court held that "[c]onstitutional and statutory initative and referendum provisions should be liberally construed to effectuate their purposes, to facilitate rather than hamper the exercise by the people of those reserved rights, Kuhn v. Dept of Treasury, 384 Mich 378; 183 NW2d 796 (1971)." Here, these principles are coupled with the high standard for a grant of mandamus, which is an extraordinary remedy and is discretionary with the court, Oakland Co. Bd. of Road Comm'rs v. State Highway Comm., 79 Mich.App. 505, 261 N.W.2d 329 (1977), lv.den. 402 Mich. 907 (1978). This remedy lies only when there is a clear legal duty incumbent on the defendant and a clear legal right in the plaintiff to the discharge of that duty, and the burden of establishing that duty by the defendant is placed on the party seeking mandamus, Burger King Corp. v. Detroit, 33 Mich.App. 382, 384, 189 N.W.2d 797 (1971). Specifically, plaintiff must show that the trial court abused its discretion in failing to find a clear legal duty on the part of the city clerk not to certify the petitions, or a clear legal duty on the part of the county clerk not to place this question on the ballot. Plaintiff has not even attempted the latter, and has not made this showing as to the former.

Several issues raised on appeal may be summarily disposed of at this juncture. First, M.C.L. Sec. 117.25; M.S.A. Sec. 5.2104 directs that the initiatory petitions for home rule city amendments shall be addressed to and filed with the city clerk. However, Sec. 12-104, which requires that the petitions be filed with the city clerk, does not require that the petitions be addressed to the city clerk. The petitions at issue in this matter are not particularly "addressed" to anyone, although the language does "petition the [Detroit] City Council to place ... before the voters [the ordinance in question]." We reject plaintiff's argument that because of this language the petitions here were merely an exercise of the petitioners' right to seek governmental action. These were clearly more than a request by citizens to have the Detroit City Council exercise its discretion and submit a proposed ordinance to the voters under Sec. 12-110 of the city charter. The petitions and their submission to the clerk follow the procedure under Secs. 12-107 and 12-108 of the city charter for submission to the voters if the ordinance is not enacted. The very language of the petitions calling for submission to the voters at the next regularly scheduled election or, at the discretion of the city council, at a special election, tracks exactly the requirement for such submission set forth in Sec. 12-108(1). Attachment F of plaintiff's complaint is a filing document used by Citizens for Detroit's Future to file these petitions. The first sentence begins: "We hereby file initiative petitions ... for the purpose of initiating the following ordinance...." Moreover, from the very beginning of the process, the city clerk treated these petitions as initiatory petitions, and neither plaintiff nor anyone else is shown to have raised any objection in opposition at the time. Therefore, the trial court was well within its discretion in finding no clear legal duty on the clerk's part not to certify the petitions. Plaintiff's arguments to the contrary are not meritorious.

Similarly, plaintiff argues that additional alleged deviations from the requirements for initiatory petitions for home rule city charter amendments set forth in M.C.L. Sec. 117.25; M.S.A. Sec. 5.2104 were present here and were fatal to the petitions, justifying issuance of a writ of mandamus prohibiting submission of the question to the voters. Because we have held that the requirements for these initiatory petitions are set forth in Article 12...