CITIZENS FOR PROTECTION OF MARRIAGE V BOARD OF STATE CANVASSERS
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STATE OF MICHIGAN
COURT OF APPEALS
CITIZENS FOR PROTECTION OF MARRIAGE,
Plaintiff,
v
FOR PUBLICATION
September 3, 2004
9:00 a.m.
No. 257542
BOARD OF STATE CANVASSERS and
SECRETARY OF STATE,
Defendant,
and
COALITION FOR A FAIR MICHIGAN,
Official Reported Version
Intervenor.
Before: O'Connell, P.J., Whitbeck, C.J., and Owens, J.
PER CURIAM.
I. Overview
Plaintiff Citizens for Protection of Marriage (CPM) filed a complaint for mandamus
seeking an order of this Court compelling the Board of State Canvassers (Board) to declare
CPM's petition sufficient and certify the petition for inclusion in the November 2, 2004, general
election. We grant mandamus and retain jurisdiction.
II. Basic Facts And Procedural History
On July 5, 2004, CPM filed an initiative petition to amend the Michigan Constitution to
include a new subsection to article 1. The proposed amendment states in its entirety: "To secure
and preserve marriage for our society and for future generations of children, the union of one
man and one woman in marriage shall be the only agreement recognized as a marriage or similar
union for any purpose." There is no dispute that CPM collected 500,000 signatures in support of
the petition, of which only a small percentage (approximately seven percent) were determined to
be invalid. The Secretary of State, through the Director of Elections, estimated that there were
462,243 valid signatures on the petition. The number of valid signatures required is 317,757.
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At its meeting on August 23, 2004, the Board discussed the proposal, after which two
members declined to certify the proposal on the basis of their conclusion that it was unlawful and
unconstitutional. There was no dispute that the Board had previously approved the proposal as
to the form of the petition, although one member questioned whether that meeting complied with
the Open Meetings Act, MCL 15.261 et seq. There was also no dispute that there were a
sufficient number of signatures in support of the proposal. Despite this, the Board deadlocked on
whether the petition was sufficient. CPM filed this complaint for mandamus relief on August 26,
2004.
The Board again met on August 27, 2004, to consider the ballot language for the proposal
if this Court were to order the proposal certified. Under the statutory scheme, the Director of
Elections is charged with drafting a statement of purpose of less than one hundred words that
will appear on the ballot above the language of the proposal. Const 1963, art 12, § 2; MCL
168.32; MCL 168.474. The statement of purpose for the proposal must "consist of a true and
impartial statement of the purpose of the amendment or question in such language as shall create
no prejudice for or against such proposal." MCL 168.474. See also MCL 168.485, which
provides in part:
The question shall be worded so as to apprise the voters of the subject
matter of the proposal or issue, but need not be legally precise. The question shall
be clearly written using words that have a common everyday meaning to the
general public. The language used shall not create a prejudice for or against the
issue or proposal.
The preparing of a statement of purpose is the duty of the Director of Elections with the
approval of the Board. MCL 168.474. In this case, the statement of purpose that the Director of
Elections prepared and proposed read:
A PROPOSAL TO AMEND THE STATE CONSTITUTION TO
SPECIFY WHAT CAN BE RECOGNIZED AS A "MARRIAGE OR SIMILAR
UNION" FOR ANY PURPOSE.
The proposal would amend the state constitution to provide that "the union
of one man and one woman in marriage shall be the only agreement recognized as
a marriage or similar union for any purpose."
Should this proposal be adopted?
Yes [ ]
No [ ]
According to the transcript of the Board's August 27, 2004, meeting, the Board again split
two to two on whether to approve the ballot language proposed by the Director of Elections. The
two Board members who voted against the Director of Elections' proposed ballot language
expressed concern that the description of the proposal did not reflect the fact that it could be
interpreted to prohibit the recognition of existing or future domestic partnerships between a man
and a woman or between a same-sex couple, or to prohibit health insurers from providing a plan
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allowing for benefits to unmarried couples, either opposite sex or same-sex. An assistant
attorney general, acting as counsel for the Board, suggested that speculation regarding the
ultimate interpretation that courts might place on the proposal, and attempts to define those
effects in a ballot summary, would be "fraught with difficulty for the simple reason that by
listing some, you omit others." Because the Board will apparently not be able to come to an
agreement regarding the statement of purpose, CPM has asked this Court to order the Board to
certify the petition and approve the proposed ballot language. On August 31, 2004, the Court
granted a motion to intervene brought by the Coalition for a Fair Michigan.
III. Jurisdiction And Standard Of Review
This Court has jurisdiction to entertain a mandamus action against a state officer. MCR
7.203(C)(2); Comm for Constitutional Reform v Secretary of State, 425 Mich 336, 338 n 2; 389
NW2d 430 (1986); see also MCL 600.4401 (allowing a party to commence a mandamus action
in the Court of Appeals). Whether the defendant had a clear legal duty to perform and whether
the plaintiff had a clear legal right to the performance of that duty are questions of law that we
review de novo. See In re MCI, 460 Mich 396, 442-443; 596 NW2d 164 (1999).
IV. Requirements For Mandamus
"To obtain a writ of mandamus the plaintiff must show that: (1) the plaintiff has a clear
legal right to the performance of the duty sought to be compelled, (2) the defendant has a clear
legal duty to perform, (3) the act is ministerial in nature, and (4) the plaintiff has no other
adequate legal or equitable remedy." White-Bey v Dep't Of Corrections, 239 Mich App 221,
223-224; 608 NW2d 833 (1999), citing In re MCI, supra at 443, and McKeighan v Grass Lake
Twp Supervisor, 234 Mich App 194, 211-212; 593 NW2d 605 (1999). The plaintiff bears the
burden of demonstrating entitlement to the extraordinary remedy of a writ of mandamus. WhiteBey, supra at 223; Herp v Lansing City Clerk, 164 Mich App 150, 161; 416 NW2d 367 (1987).
V. Duties Of The Board
The Board comes within the definition of an "agency" in the Administrative Procedures
Act. MCL 24.203(2). An agency has no inherent power. Any authority it may have is vested by
the Legislature, in statutes, or by the Constitution. Belanger & Sons, Inc v Dep't of State, 176
Mich App 59, 62-63; 438 NW2d 885 (1989); Pharris v Secretary of State, 117 Mich App 202,
204; 323 NW2d 652 (1982). The Board's authority and duties with regard to proposed
constitutional amendments are limited to determining whether the form of the petition
substantially complies with the statutory requirements and whether there are sufficient signatures
to warrant certification of the proposal. MCL 168.476; Ferency v Secretary of State, 409 Mich
569; 297 NW2d 544 (1980); Council About Parochiaid v Secretary of State, 403 Mich 396; 279
NW2d 1 (1978); Leininger v Secretary of State, 316 Mich 644; 26 NW2d 348 (1947). Here, the
Board approved the form of the petition and there is no dispute that there are sufficient
signatures. We conclude, therefore, that the Board was obligated to certify the petition.
We further conclude that the Board erred in considering the merits of the proposal. Not
only did the Board have no authority to consider the lawfulness of the proposal, but it is also well
established that a substantive challenge to the subject matter of a petition is not ripe for review
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until after the law is enacted. Ferency, supra at 609; Hamilton v Secretary of State, 212 Mich
31; 179 NW 553 (1920); Senior Accountants, Analysts & Appraisers Ass'n v Detroit, 218 Mich
App 263, 270 n 5; 553 NW2d 679 (1996); Automotive Club of Michigan Comm For Lower Rates
Now v Secretary of State (On Remand), 195 Mich App 613; 491 NW2d 269 (1992); Ferency v
Bd of State Canvassers, 198 Mich App 271; 497 NW2d 233 (1993); Beechnau v Secretary of
State, 42 Mich App 328; 201 NW2d 699 (1972). Accordingly, we grant the complaint for
mandamus because the Board had a clear legal duty to certify the petition.
VI. The Director Of Elections' Proposed Ballot Language
CPM has also asked this Court to order the Board to adopt the Director of Elections'
proposed ballot language. Mandamus "will not lie for the purpose of reviewing, revising, or
controlling the exercise of discretion reposed in administrative bodies," Teasel v Dep't of Mental
Health, 419 Mich 390, 409-410; 355 NW2d 75 (1984). A remand with directions to approve a
description of the proposal is not an appropriate remedy where it is likely that the Board will
continue its deadlock. As previously noted, the Board's authority is limited. With regard to the
statement of purpose prepared by the Director of Elections, the Board's discretion is limited to
either approving or disapproving the language. MCL 168.32; MCL 168.474. The Director of
Elections has primary responsibility for formulating the language. Const 1963, art 12, § 2; MCL
168.32. MCL 168.32 expressly transferred all the powers or duties of both the Board and the
Secretary of State with regard to the statement of purpose to the Director of Elections. The
objecting members of the Board faulted the Director of Elections' proposed ballot language for
not being sufficiently specific. However, the Board did not find that the Director of Elections'
proposed ballot language was not true and impartial, as required by Const 1963, art 12, § 2 and
MCL 168.474. In our view, the Director of Elections' proposed ballot language was clearly
written using words that have a common, everyday meaning to the general public. Further, the
Director of Elections' proposed ballot language creates no prejudice for or against the proposal.
Thus, the Board should have approved the Director of Elections' proposed ballot
language. Further, as counsel for the Board pointed out, any attempt to determine how courts
might eventually apply the proposed amendment, assuming it won voter approval, would be
entirely speculative. Such speculation would not be a "true" statement of the amendment's
purpose, in violation of Const 1963, art 12, § 2 and MCL 168.474.
As CPM points out, the Michigan Supreme Court has previously ordered the Secretary of
State to place a proposal on the ballot using the statement of purpose prepared by the Director of
Elections. Automobile Club of Michigan Committee for Lower Rates Now v Secretary of State
No 2, 440 Mich 1209 (1992). The fact that this was ordered without the involvement of the
Board is demonstrated by Justice Levin's dissent, in which he stated that he would have directed
the Board to approve a statement of purpose and "would not anticipate their inability to do so."
Id. (Levin, J., dissenting). Here, while we cannot predict the future, our review of the record
before the Board convinces us to a reasonable certainty that there is no reason to believe that the
two Board members who voted against the proposal and the statement of purpose will have a
sudden change of heart, regardless of any order of this Court directing them to approve a
statement of purpose. Accordingly, our order granting the complaint for mandamus also directs
the Secretary of State to take all necessary measures to place the proposal on the November
ballot using the Director of Elections' proposed ballot language.
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Concurrently with the release of this opinion, we have issued an order of mandamus. We
retain jurisdiction.
/s/ Peter D. O'Connell
/s/ William C. Whitbeck
/s/ Donald S. Owens
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