Stand Up for Democracy v. State

• Citation: 822 N.W.2d 159,492 Mich. 588
• Decision Date: 03 August 2012
• Docket Number: Docket No. 145387.
• Parties: STAND UP for Democracy v. SECRETARY OF STATE.
• Court: Michigan Supreme Court

492 Mich. 588

822 N.W.2d 159

STAND UP for Democracy

v.SECRETARY OF STATE.

Docket No. 145387.

Supreme Court of Michigan.

Argued July 25, 2012.

Decided Aug. 3, 2012.

The Sanders Law Firm, P.C., Detroit (by Herbert A. Sanders), Goodman & Hurwitz PC, Detroit (by William H. Goodman and Julie Hurwitz), Melvin Butch Hollowell, Esq, PC (by Melvin Butch Hollowell, Jr.), and John C. Philo for Stand Up For Democracy.

Bill Schuette, Attorney General, B. Eric Restuccia, Deputy Solicitor General, and Heather S. Meingast and Denise C. Barton, Assistant Attorneys General, for the Secretary of State and the Board of State Canvassers.

Honigman Miller Schwartz and Cohn LLP, Ann Arbor (by John D. Pirich and Andrea L. Hansen) for Citizens for Fiscal Responsibility.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Laura L. Moody and Mark G. Sands, Assistant Attorneys General, for the Governor and the Attorney General.

Mark P. Fancher, Michael J. Steinberg, and Kary L. Moss, Detroit, for the American Civil Liberties Union Fund of Michigan.

Jocelyn Benson for the Michigan Center for Election Law.

MARY BETH KELLY, J.

This case requires that we determine whether to grant a writ of mandamus in favor of plaintiff, Stand Up For Democracy, to compel the Board of State Canvassers to certify plaintiff's referendum petition for inclusion on the November 2012 ballot. Intervening defendant, Citizens for Fiscal Responsibility, challenged the certification of plaintiff's referendum petition, alleging that it failed to comply with the type-size requirement of MCL 168.482(2) and that the doctrine of substantial compliance, whereby technical deficiencies are resolved in favor of certification, did not apply. The Court of Appeals agreed with both assertions, but concluded it was required to follow its decision in Bloomfield Charter Township v. Oakland County Clerk¹ and conclude that the petition substantially complied with the type-size requirement of MCL 168.482(2) and that certification was required. Consequently, the Court of Appeals directed the board to certify the petition.²

However, because MCL 168.482(2) uses the mandatory term “shall” and does not, by its plain terms, permit certification of deficient petitions with regard to form or content, a majority of this Court holds that the doctrine of substantial compliance is inapplicable to referendum petitions submitted for certification. Therefore, we reverse the Court of Appeals' judgment in this regard and we overrule Bloomfield Charter Twp.

Three justices of this Court further conclude that the type-size requirement of MCL 168.482(2) requires that the “type,” not the “letters,” of the petition heading measure 14 points. Because the Court of Appeals held that plaintiff failed to actually comply with the type-size requirement of MCL 168.482(2) given that the letters did not measure 14 points, we would also have reversed that portion of the Court of Appeals' judgment.

Because a majority of this Court holds that a new writ of mandamus should enter directing the Board of State Canvassers to certify plaintiff's petition as sufficient, a majority of this Court directs the Board of State Canvassers to certify plaintiff's petition for the ballot. Pursuant to MCR 7.317(C)(3), we direct the Clerk of the Court to issue the judgment order forthwith.

I. FACTS AND PROCEDURAL HISTORY

On February 29, 2012, plaintiff filed its referendum petition to invoke a referendum with regard to 2011 PA 4, MCL 141.1501 et seq., the emergency financial manager law, and to request certification of the petition from the Board of State Canvassers.³ The petition contained 203,238 valid signatures, well exceeding the number necessary to certify the petition and to place the referendum on the November 2012 ballot. On March 14, 2012, plaintiff submitted its printer's affidavit attesting that the petition heading was “PRINTED IN CAPITAL LETTERS IN 14–POINT BOLDFACE TYPE[.]”

On April 9, 2012, intervenor filed a challenge to the form of plaintiff's referendum petition, asserting, in part, that the heading, “REFERENDUM OF LEGISLATION PROPOSED BY INITIATIVE PETITION,” did not comply with the requirement of MCL 168.482(2) that the heading be “printed in capital letters in 14–point boldfaced type....”

The Board of State Canvassers considered intervenor's challenge on April 26, 2012. At the hearing, intervenor asserted that the form and content requirements of MCL 168.482(2) are mandatory. Intervenor submitted two affidavits of two printers who reviewed the petition and stated that the petition was deficient because its heading did not measure 14–point type. Plaintiff countered that the board should apply the doctrine of substantial compliance and approve the petition and, alternatively, that its petition actually complied with the type-size requirement of the statute. Plaintiff relied on its printer's affidavit, as well as the expert testimony of two printers, in support of its argument. Plaintiff also criticized one of intervenor's expert's affidavits for simply measuring one of the capital letters in the heading.

At the close of the hearing, two members of the board voted in favor of a motion to certify the petition, reasoning that “there was more than substantial compliance, ... there was total compliance.” The remaining two board members voted to deny the motion, believing there to be a “legitimate question as to the size of the words” and reasoning that substantial compliance is insufficient under MCL 168.482(2) given its mandatory language. Consequently, the board did not approve the motion to certify the petition.

Plaintiff then filed a complaint for mandamus in the Court of Appeals, requesting the Court to order defendants, the Board of State Canvassers and the Secretary of State, to certify the petition for inclusion on the November 2012 ballot because the board had a clear legal duty to certify the petition, because plaintiff either substantially or actually complied with the 14–point–type statutory requirement. The Court of Appeals first ruled that “the Calibri font utilized in plaintiff's petition heading is smaller than the prescribed 14–point type measurement of 14/72 inches.” ⁴ Without defining the term “type,” the panel reasoned that “text that does not measure 14 point, or 14/72 inches, is insufficient under the statute.” ⁵ The Court of Appeals, however, concluded that it was bound to follow Bloomfield Charter Twp. and concluded that plaintiff's petition had substantially complied with MCL 168.482(2).⁶ The Court therefore granted plaintiff's complaint for a writ of mandamus, compelling inclusion of the referendum on the ballot.

We granted oral argument on the application for leave to appeal to consider “(1) whether plaintiff actually complied with the 14–point–type requirement in MCL 168.482(2), specifically given the terms ‘point’ and ‘type’; and (2) if not, whether substantial compliance with the 14–point–type requirement in MCL 168.482(2) is sufficient to give plaintiff a clear legal right to certification of the petition.” ⁷ In lieu of granting leave to appeal, pursuant to MCR 7.302(H)(1) a majority of this Court concludes that the Court of Appeals' judgment is reversed, that substantialcompliance is insufficient to certify plaintiff's petitions, and we issue a writ of mandamus, directing the Board of State Canvassers to certify plaintiff's petition as sufficient.

II. STANDARD OF REVIEW

We review for an abuse of discretion a court's decision to issue or deny a writ of mandamus.⁸ This dispute also involves a question of statutory interpretation, which we review de novo. ⁹ “[O]ur primary task in construing a statute, is to discern and give effect to the intent of the Legislature.” ¹⁰ The words of the statute are the most reliable evidence of the Legislature's intent and we must give each word its plain and ordinary meaning.¹¹ “In interpreting the statute at issue, we consider both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” ¹²

III. ANALYSIS

This appeal concerns a big constitutional issue, even though its focus is something as small as 14/72 of an inch. This matter turns on what many citizens may regard as a trivial issue: Whether a heading on a petition signed by over 200,000 people satisfies the statutory requirement that the petition heading be in “14–point boldfaced type[.]” ¹³ As technical as this appears, the rule of law is implicated here because this issue concerns the constitutional foundation of how we govern ourselves.

Although we colloquially call ourselves a “democracy,” we are not. We are a constitutional republic in which we, as Michigan citizens, elect our representatives to local and state legislative bodies to enact our laws. This republican form of government is guaranteed to us in the United States Constitution.¹⁴

In Michigan, we have enacted into our State Constitution an exception: The right of the people by initiative or referendum directly to enact laws or to repeal those validly enacted by our Legislature.¹⁵ Thus, as plaintiff seeks here, it is possible for a small minority of citizens to suspend a validly enacted law and require that that law be voted on in a general election. This case well demonstrates that tension between constitutional interests: the right to a republican form of government versus a constitutional process that allows a small minority to suspend the enactments of that government.

In the very constitutional provision creating this right of petition by initiative and referendum, the Legislature is required to prescribe the rules by which such petitions may validly be made.¹⁶ It has done so, and one such provision is the mandatory14–point–boldfaced–type requirement that is challenged here.¹⁷ No doubt in most ordinary circumstances whether a heading is in 14–point or 12–point type would be an inconsequential issue. But, because...