Stand UP for Democracy v. Sec'y of State
| Decision Date | 08 June 2012 |
| Docket Number | Docket No. 310047. |
| Citation | 297 Mich.App. 45,824 N.W.2d 220 |
| Parties | STAND UP FOR DEMOCRACY v. SECRETARY OF STATE. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
The Sanders Law Firm P.C., Detroit (by Herbert A. Sanders), Melvin Butch Hollowell, John C. Philo, and Goodman & Hurwitz PC (by William H. Goodman and Julie Hurwitz) 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, Lansing (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 Amici Curiae the Governor and the Attorney General.
Mark P. Fancher, Detroit, Michael J. Steinberg, and Kary L. Moss, Detroit, for Amici Curiae the American Civil Liberties Union Fund of Michigan.
Before: WILDER, P.J., and KIRSTEN FRANK KELLY and RIORDAN, JJ.
In this original action, plaintiff, Stand Up For Democracy, seeks a writ of mandamus against defendants, the Michigan Secretary of State and the Michigan Board of State Canvassers (the board). Plaintiff urges this Court to direct that defendants certify for placement on the November 2012 general election ballot a referendum of 2011 PA 4, MCL 141.1501 et seq., the Local Government and School District Accountability Act, commonly known as the “emergency financial manager law.” Under this Court's decision in Bloomfield Charter Twp. v. Oakland Co. Clerk, 253 Mich.App. 1, 654 N.W.2d 610 (2002), which controls the outcome in this case, plaintiff's request for a writ of mandamus is warranted. However, for the reasons stated later in this opinion, we conclude that Bloomfield was wrongly decided, and we apply and follow it only because we are required to do so under MCR 7.215(J) (1). Therefore, in accordance with MCR 7.215(J)(2), we call for the convening of a special panel of this Court pursuant to MCR 7.215(J)(3). This judgment is issued pursuant to MCR 7.215(F)(1), and execution is stayed pending a poll of the judges of this Court pursuant to MCR 7.215(J)(3)(a).
In early 2011, the Michigan Legislature passed, and the Governor signed into law, 2011 PA 4 (the act). The act, which has the purpose of assuring the fiscal accountability of local governments, including school districts, provides for the management and control of local governments' finances in financial emergencies. Among other things, the act sets forth the duties of various officials, including the powers and duties of an emergency manager. The act became effective on March 16, 2011. See MCL 141.1501 et seq.
The act repealed 1990 PA 72, MCL 141.1201 et seq., which also described the duties of emergency managers. It is undisputed that the act grants broader powers to emergency managers than did 1990 PA 72.
The Michigan Constitution reserves to Michigan voters the power of referendum to approve or reject a newly enacted law:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.
* * *
The Legislature shall implement the provisions of this section. [Const. 1963, art. 2, § 9.]
As instructed by our Constitution,1 the Legislature prescribed the form of referendum and other petitions, which is located in MCL 168.544d and provides the following:
Nominating petitions for the offices under this act and petitions for a constitutional amendment, initiation of legislation, or referendum of legislation or a local proposal may be circulated on a countywide form. Petitions circulated countywide shall be on a form prescribed by the secretary of state, which form shall be substantially as provided in [MCL 168.482, 168.544a, or 168.544c] whichever is applicable. The secretary of state may provide for a petition form larger than 8–1/2 inches by 13 inches and shall provide for identification of the city or township in which the person signing the petition is registered. The certificate of the circulator may be on the reverse side of the petition. This section does not prohibit the circulation of petitions on another form prescribed by this act. [Emphasis added.]
MCL 168.482(2), in turn, provides:
If the measure to be submitted proposes a ... referendum of legislation, the heading of each part of the petition shall be prepared in the following form and printed in capital letters in 14–point boldfaced type:
* * *
REFERENDUM OF LEGISLATION
PROPOSED BY INITIATIVE PETITION
[Emphasis added.] 2
Pursuant to MCL 168.544d, the Secretary of State issued a memorandum in January 2011 prescribing the requirements for initiative and referendum petitions, including the proper format, the applicable deadlines for submission, as well as signature and circulation requirements. The memorandum provided that for referendum petitions, 161,305 valid signatures 3 were required to be filed no more than 90 days after the final adjournment of the legislative session at which the law was enacted, and that upon the certification of the filing of sufficient valid signatures, the law involved is suspended pending the outcome of the referendum at the next general election. 4 The Secretary of State's memorandum also stated, in relevant part:
Michigan election law, MCL 168.544d, grants the Secretary of State the authorityto prescribe a petition form for the countywide circulation of initiative and referendum petitions. MCL 168.544d further provides that the prescribed form must be in substantial compliance with MCL 168.544c and MCL 168.482—two additional provisions of Michigan election law which address the formatting of petitions.
As a service to those interested in launching an initiative or referendum petition drive, the Michigan Department of State's Bureau of Elections offers its staff for consultations on the various petition formatting requirements. Upon determining through the consultation process that an initiative or referendum petition is properly formatted, it is submitted to the Board of State Canvassers for approval as to form. While Michigan election law does not require the pre-approval of an initiative or referendum petition form, such approval greatly reduces the risk that signatures collected on the form will be ruled invalid due to formatting defects.
* * *
Under Board of State Canvassers' policy, the attached “ Printer's Affidavit” must accompany an initiative or referendum petition submitted for Board approval. The petition sponsor is responsible for having the affidavit completed.
A description of the prescribed initiative and referendum petition format and the pertinent provisions of the State Constitution and Michigan election law are included with this informational packet for your reference. [Emphasis added.]
In June 2011, the Secretary of State issued a follow-up memorandum, which described in detail the “PRESCRIBED FORMAT” for initiative and referendum petitions. Part I of the June 2011 document states, in pertinent part, that referendum petitions “shall” contain “[t]he full text of the legislation which would be affected by the referendum.” This full text is to appear “at the top of the signature side of the petition sheet after an introduction which identifies the legislation involved.” However,
[i]f there is not sufficient space at the top of the signature side of the petition sheet to print the legislation which would be affected by the referendum, the introduction shall be followed by a brief synopsis of the legislation involved and reference shall be made to the reverse side of the sheet for the full text of the legislation. The full text of the legislation which would be affected by the referendum shall appear on the reverse side of the petition sheet after an introduction which identifies the legislation involved.
In addition, the Secretary of State's standard prescribed format, under the subheading “Identification of Petition Type,” specifies that the words “REFERENDUM OF LEGISLATION PROPOSED BY INITIATIVE PETITION” (Emphasis added.) Significantly, while § 544d permits the Secretary of State to prescribe a form that is in substantial compliance with § 482, in this instance, the Secretary of State's prescribed format did not permit petition type size or text that was in substantial compliance with MCL 168.482(2). Rather, the format prescribed by the Secretary of State mandated the use of the exact type size and text format as mandated by MCL 168.482(2).
As previously noted, the Secretary of State also required a “Printer's Affidavit” to accompany referendum petitions submitted for board approval. A sample printer's affidavit was attached to the Secretary of State's January 2011 memorandum, dictating the manner in which the printer should aver that the text of a proposed...
To continue reading
Request your trial