Smeets v. Genesee County Clerk
| Decision Date | 20 April 1992 |
| Docket Number | Docket No. 125978 |
| Citation | 193 Mich.App. 628,484 N.W.2d 770 |
| Parties | James SMEETS, Dan Rust, Ted Goupil, John Schoeppach, and Carl Gabrielson, Petitioners-Appellants, v. GENESEE COUNTY CLERK, John H. Trecha, Respondent-Appellee, and Bertram Culpepper, Intervening Party-Appellee, and Michigan Townships Association, Amicus Curiae. 193 Mich.App. 628, 484 N.W.2d 770 |
| Court | Court of Appeal of Michigan — District of US |
[193 MICHAPP 629] Hicks & Schmidlin, P.C. by David J. Nickola, Flint, for petitioners-appellants.
Nancy K. Dillingham, Asst. Corp. Counsel, Flint, for Genesee County Clerk.
Bauckham, Sparks, Rolfe & Thomsen, P.C. by John H. Bauckham and Lynda E. Thomsen, Kalamazoo, amicus curiae for Michigan Townships Assn.
Before SULLIVAN, P.J., and WAHLS and FITZGERALD, * JJ.
In this case of first impression, petitioners appeal as of right from an order of the Genesee Circuit Court that denied their petition for a writ of mandamus. Petitioners, five members of the Fenton Township Board, had sought the writ to compel respondent, the Genesee County Clerk, to determine that recall petitions filed against them were insufficient because the petitions[193 MICHAPP 630] lacked the minimum number of signatures necessary to call a special election. We affirm.
The facts of this case are unique in reported Michigan law, but not surprising. M.C.L. Sec. 168.955; M.S.A. Sec. 6.1955 1 dictates the number of valid signatures that must be obtained in order to invoke a recall election:
The petitions shall be signed by registered and qualified electors equal to not less than 25% of the number of votes cast for candidates for the office of governor at the last preceding general election in the electoral district of the officer sought to be recalled. Upon written demand, the county clerk, within 5 days, shall certify the minimum number of signatures required for the recall of an officer in the governmental unit in which recall is sought. [Id.]
At the time the petition drive began, the last preceding general election had been held in 1986. In the 1986 election, a total of 3,673 votes had been cast in Fenton Township for gubernatorial candidates. After the 1986 election, however, the boundaries of Fenton Township and its concurrent electoral district changed significantly. By the time of the petition drive, the Village of Linden, a part of Fenton Township in 1986, had become incorporated as a city and was no longer a part of the Fenton Township electoral district.
Five petitions that sought the recall of the five petitioners in this action were filed with respondent's office on January 2, 1990. The petitions [193 MICHAPP 631] were then sent to the Fenton Township Clerk to compare the names and signatures with the township's voter-registration records. 2 The number of valid signatures on the five petitions was then determined to range between 849 and 875.
Respondent faced a problem. If twenty-five percent of the number of gubernatorial votes cast in the electoral district as it was constituted in 1986 was used to determine whether the number of signatures on the petitions was sufficient, then each petition was required to have a minimum of 918 valid signatures. Because of the 1988 incorporation of the Village of Linden, however, Linden voters were no longer in the Fenton Township electoral district. Respondent believed that the proper voter base by which the sufficiency of the petitions should be measured was the number of gubernatorial votes cast in the 1986 election within the current confines of the Fenton Township electoral district. This led to an additional problem. In 1986, the Village of Linden was split between two Fenton Township precincts, Precinct 3 and Precinct 4. Parts of these precincts remained within the Fenton Township electoral district after Linden's incorporation. Not all of the electors in these precincts who had voted in 1986 had cast a vote for the office of governor, and it was the number of gubernatorial votes that had to be determined in order to test the sufficiency of the recall petitions. Although respondent knew the total number of votes cast in each precinct, and also what portions of the total number of votes were cast in the township and the village, he had no way of knowing which voters had not voted for a candidate for governor. The following information on votes cast in 1986 was available to respondent:
Precinct 3 Precinct 4
Total 820 732
Linden 417 184
Fenton Twp 403 548
Gubernatorial votes 793 711
[193 MICHAPP 632] In order to estimate the number of votes cast for governor in Linden, respondent assumed that the number would be in like proportion as that for Precinct 3 and Precinct 4 as a whole. Out of the 1,552 total votes cast in the two precincts, 601 (thirty-nine percent) were cast by Linden voters. Therefore, out of the 1,504 votes cast for governor, respondent estimated that 582 (thirty-nine percent of 1,504) had been cast by Linden voters. Respondent then subtracted 582 votes from the 1986 Fenton Township gubernatorial vote total of 3,673, leaving 3,091 votes cast for governor in Fenton Township's 1990 boundaries. Respondent concluded that 773 signatures (twenty-five percent of 3,091) were required to force a recall election. A special election was subsequently held, and all five of the petitioners in this case were recalled from office.
On appeal, petitioners' argument is straightforward: The electoral district at issue is Fenton Township; 3,673 votes were cast for governor in Fenton Township in 1986, and, under M.C.L. Sec. 168.955; M.S.A. Sec. 6.1955, the petitions were required to have at least 918 signatures. Although this argument is appealing on its face, we must respectfully disagree. We also readily acknowledge that no statutory or case law authority exists for the procedure employed by respondent to determine the number of signatures required. Nonetheless, our understanding of the meaning and purpose 3 of M.C.L. Sec. 168.955; M.S.A. Sec. 6.1955 forces us to [193 MICHAPP 633] conclude that the trial court properly denied petitioners' request for a writ of mandamus. We will review the denial of a writ of mandamus for an abuse of discretion,Delly v. Bureau of State Lottery, 183 Mich.App. 258, 261, 454 N.W.2d 141 (1990), but the interpretation or construction of a statute is a question of law.
The unusual facts of this case require a close reading of M.C.L. Sec. 168.955; M.S.A. Sec. 6.1955. While the statute instructs that the sufficiency of a recall petition is to be measured by reference to the number of votes cast for governor in the preceding election, the votes to be counted are those "in the electoral district of the officer sought to be recalled." Id. The issue is whether "the electoral district of the officer sought to be recalled" refers to Fenton Township as it existed in 1986 or to its configuration on the date of the filing of the petitions. The mere fact that Fenton Township continued to exist as a separate electoral district after Linden incorporated does not compel the conclusion that the sufficiency of the petitions should have been measured by preincorporation standards. Although the statute makes reference to the past, it speaks to the present. Rather, "the electoral district of the officer[s] sought to be recalled" in 1990 did not include the City of Linden. Why then should Linden gubernatorial votes be included in the voting base that determines the sufficiency of a recall petition?
Moreover, M.C.L. Sec. 168.954; M.S.A. Sec. 6.1954 provides that "[t]he petitions shall be signed by registered and qualified electors of the electoral district of the official whose recall is sought." Petitioners do not argue that an electoral district for the purpose of M.C.L. Sec. 168.954; M.S.A. Sec. 6.1954 is any different from [193 MICHAPP 634] an electoral district for the purpose of M.C.L. Sec. 168.955; M.S.A. Sec. 6.1955. Each section of an act is to be read with reference to every other section so as to produce an harmonious whole. Detroit v. Detroit Police Officers Ass'n, 408 Mich. 410, 481, 294 N.W.2d 68 (1980), app dis 450 US 903 (1981) (opinion by Williams, J.); Dep't of Treasury v. Psychological Resources, Inc., 147 Mich.App. 140, 146, 383 N.W.2d 144 (1985). Linden electors were not eligible to sign the 1990 recall petitions; they were not part of the Fenton Township electoral district. We would consider the result anomalous indeed if two identical terms, used in the same act and pertaining to the same...
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