MARK JANER V JENNIFER CASS BARNES
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STATE OF MICHIGAN
COURT OF APPEALS
MARK JANER and STEVEN J. JACOBS,
FOR PUBLICATION
June 17, 2010
9:00 a.m.
Plaintiffs-Appellants,
v
JENNIFER CASS BARNES, SECRETARY OF
STATE, DEPARTMENT OF STATE BUREAU
OF ELECTIONS, and BAY COUNTY CLERK,
Defendants-Appellees.
No. 298401
Bay Circuit Court
LC No. 10-003352-AW
Advance Sheets Version
Before: O’CONNELL, P.J., and OWENS and BORRELLO, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s order denying their request for a declaratory
judgment, mandamus, and injunctive relief in this election case. We affirm.
In April 2010, plaintiffs and defendant Jennifer Cass Barnes timely filed nominating
petitions to become candidates on the ballot for the position of 74th District Court Judge in the
August 3, 2010, primary election. The position was designated a nonincumbent position,
because incumbent Judge Scott J. Newcombe had announced his intention to resign on May 31,
2010. On April 23, 2010, Governor Jennifer M. Granholm appointed Barnes to replace Judge
Newcombe and serve the remainder of his term. Barnes assumed the duties of her office on June
1, 2010.
Plaintiffs filed a complaint for a declaratory judgment, seeking a writ of mandamus and
injunctive relief to prevent Barnes from receiving an incumbency designation on the primary
election ballot. They argued that because Barnes filed nominating petitions to access the ballot
as a nonincumbent, and because her appointment occurred after the deadline for incumbent
judges to access the ballot, she is not entitled to the incumbency designation on the ballot. The
trial court denied the requested relief, ruled that Barnes will have the incumbency designation on
the August primary election ballot, and dismissed the complaint with prejudice.
This Court reviews de novo a trial court’s ruling in a declaratory judgment action. Toll
Northville Ltd v Northville Twp, 480 Mich 6, 10; 743 NW2d 902 (2008). This Court also
reviews de novo issues of constitutional and statutory law. Wayne Co v Hathcock, 471 Mich
445, 455; 684 NW2d 765 (2004).
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Incumbent judges must be given the incumbency designation on the ballot as a matter of
constitutional and statutory law. Const 1963, art 6, § 24, provides: “There shall be printed upon
the ballot under the name of each incumbent justice or judge who is a candidate for nomination
or election to the same office the designation of that office.” The Legislature codified this
provision to require the incumbency designation on the ballot for incumbent district court judges:
“There shall be printed upon the ballot under the name of each incumbent district judge who is a
candidate for nomination or election to the same office the designation of that office.” MCL
168.467c(2). The word “shall” . . . denotes mandatory conduct. See Hughes v Almena Twp, 284
Mich App 50, 62; 771 NW2d 453 (2009) (“The word ‘shall’ as used in a statute is considered to
require mandatory conduct.”); Goldstone v Bloomfield Twp Pub Library, 268 Mich App 642,
657; 708 NW2d 740 (2005) (“[T]he term ‘shall’ is universally recognized as requiring
mandatory adherence.”), aff’d 479 Mich 554 (2007).
Const 1963, art 6, § 24, and MCL 168.467c(2) are unqualified mandates. They do not
impose a time within which an incumbent candidate must act in order to qualify for the
incumbency designation. Because the language is clear and unambiguous, judicial interpretation
is not permitted, and the provisions must be enforced as written. Huggett v Dep’t of Natural
Resources, 464 Mich 711, 717; 629 NW2d 915 (2001). The only requirement for the
incumbency designation on the ballot is the incumbent status of the judge, which it is undisputed
that Barnes attained on June 1, 2010. Accordingly, she is entitled to the incumbency
designation.
Lastly, we note that our affirmance of the trial court’s decision in this matter does not
alter the ballot language and, accordingly, the issues presented by defendant Bay County Clerk
are moot.
Affirmed. No costs are to be assessed, a public question being involved. This opinion
shall have immediate effect pursuant to MCR 7.215(F)(2).
/s/ Peter D. O’Connell
/s/ Donald S. Owens
/s/ Stephen L. Borrello
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