STAND UP FOR DEMOCRACY V SECRETARY OF STATE (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
STAND UP FOR DEMOCRACY,
FOR PUBLICATION
June 8, 2012
9:00 a.m.
Plaintiff,
v
No. 310047
SECRETARY OF STATE and BOARD OF
STATE CANVASSERS,
Defendants,
Advance Sheets Version
and
CITIZENS FOR FISCAL RESPONSIBILITY,
Intervenor-Defendant.
Before: WILDER, P.J., and K. F. KELLY and RIORDAN, JJ.
PER CURIAM.
In this original action, plaintiff, Stand Up For Democracy, seeks a writ of mandamus
against defendants, the Michigan Secretary of State (the 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 NW2d 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).
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I
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The act repealed 1990 PA 72, MCL 141.1201 et seq., which also described the duties of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.
B
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:
1
Whereas the 1963 Constitution dictates that the Legislature shall prescribe the form and other
requirements of initiative and referendum petitions, in the predecessor 1908 Constitution, the
prescribed form of initiative and referendum petitions was governed by the language of the
Constitution itself. See Const 1908, art 5, § 1.
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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:
2
Before it was amended in 1965, § 482 required the petition heading to “be prepared in the
following form and printed in capital letters in type of the approximate size set forth.”
(Emphasis added.) See 1954 PA 116.
3
The Secretary of State’s requirement is consistent with the constitutional mandate that the
minimum number of signatures needed for a referendum petition is five percent of the total
number of votes cast for all candidates for governor at the last preceding general election. Const
1963, art 2, § 9.
4
This requirement is consistent with MCL 168.477(2), which provides:
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Michigan election law, MCL 168.544d, grants the Secretary of State the
authority to 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 preapproval 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
For the purposes of the second paragraph of section 9 of article II of the
state constitution of 1963, a law that is the subject of the referendum continues to
be effective until the referendum is properly invoked, which occurs when the
board of state canvassers makes its official declaration of the sufficiency of the
referendum petition. The board of state canvassers shall complete the canvass of
a referendum petition within 60 days after the petition is filed with the secretary
of state, except that one 15–day extension may be granted by the secretary of state
if necessary to complete the canvass.
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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” “shall be printed in capital letters in 14-point
boldface type on the left margin of the signature side of the sheet or at the top of the signature
side of the sheet. (MCL 168.482(2)).” (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 petition meets the prescribed criteria. The top
of the sample printer’s affidavit contains the following language:
PROPONENTS OF INITIATIVE AND REFERENDUM PETITIONS
ARE URGED TO SUBMIT A PROOF COPY OF THEIR PETITION TO THE
BOARD OF STATE CANVASSERS FOR APPROVAL AS TO FORM PRIOR
TO THE CIRCULATION OF THE PETITION. WHEN SUBMITTING A
PETITION FORM FOR APPROVAL, THE BOARD REQUESTS THAT THIS
AFFIDAVIT BE ATTACHED.
Despite the Secretary of State’s recommendations in the two memoranda and sample printer’s
affidavit that proponents seek preapproval of a petition with regard to form, plaintiff elected not
to do so. Instead, plaintiff circulated its petition without seeking advance assurance that the
format of its petition complied with the Secretary of State’s requirements.
C
On February 29, 2012, plaintiff filed over 24,000 sheets containing 226,339 signatures
for a referendum on the act. The Bureau of Elections ultimately concluded that plaintiff had
submitted over 203,000 valid signatures and reported to the board that the petition contained a
sufficient number of valid signatures.
Despite the Secretary of State’s reference to the board’s requirement that a printer’s
affidavit be submitted at the time the petition is filed, plaintiff submitted a letter from a printer,
which the board rejected. Thereafter, plaintiff submitted a printer’s affidavit on March 14, 2012,
which provided, in pertinent part:
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3. THAT THE HEADING OF THE PETITION IS PRESENTED IN THE
FOLLOWING FORM AND PRINTED IN CAPITAL LETTERS IN 14-POINT
BOLDFACE TYPE:
REFERENDUM OF LEGISLATION
PROPOSED BY INITIATIVE PETITION
On April 9, 2012, intervening defendant, Citizens for Fiscal Responsibility (CFR), a
ballot question committee, timely challenged the petition on several grounds, including the type
size of the heading. CFR asserted that the type size of the petition heading did not comply with
the requirement of MCL 168.482(2) that it be printed in 14-point boldfaced type. CFR also
asserted that plaintiff’s summary of the petition was incomplete and misleading, the petition
omitted the prior law that will be revived if the act is suspended, the petition omitted the
effective date of the act, and the petition omitted reference to 2011 PA 9, a bill related to
collective bargaining that was tie-barred to the act.
CFR submitted two affidavits from commercial printers with its challenge. Each of the
commercial printers asserted that not only did the petition heading submitted by plaintiff fail to
conform to the 14-point-type-size standard, but, in fact, the text was smaller than required.
Plaintiff disputed CFR’s assertion that the petition failed to comply with all the necessary
formatting requirements. In support of its response, plaintiff presented a notarized affidavit from
a printer attesting that the heading of the petition was in 14-point type. Plaintiff further argued
that even if the heading type size was not 14-point, the petition heading substantially complied
with the requirements. Plaintiff added that the remaining challenges by CFR were not within the
jurisdiction of the board.
D
The board heard CFR’s challenge on April 26, 2012. Director of Elections Christopher
Thomas opined that the board’s approval authority did not extend to the substance of the
proposal, but rather was limited to whether the petition’s format satisfied statutory requirements
on a technical basis. Thomas acknowledged that CFR had presented two affidavits asserting that
the heading was not in 14-point boldfaced type and that plaintiff had provided one affidavit
asserting that the heading was compliant. Thomas advised the board that, in the past, it has
reviewed such challenges for compliance with MCL 168.482 of the Michigan Election Law.
Thomas also advised the board that previous caselaw had held that the board’s duties were
limited to determining whether the form of a petition substantially complied with the statutory
requirements.
After statements by counsel for plaintiff and CFR, the board heard statements from two
printers produced by plaintiff who each asserted that the petition’s heading meets the 14-pointsize requirement. Bruce Hack, who holds a Bachelor of Science degree in printing management
from the Rochester Institute of Technology and has decades of experience in the printing field,
stated, in pertinent part:
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Basically when you’re talking about 14-point type, you’re talking about an
area that’s just less than a fifth of an inch, .194. And it becomes a canvas that a
type designer gets to work with, and sometimes they use the whole canvas and
sometimes they use part of the canvas. The particular type that was used for this
petition, called Calibri, was designed by a Lucas DeGroot. He’s probably 50
years old right now. And it became -- as I investigated more, it became the
standard in Microsoft software in 2007.
Hack indicated that he used a computer program, rather than a ruler, to determine whether the
text was in 14-point type:
When I was asked to sign the affidavit, I took the file that we were given,
that we had assembled for printing purposes, and I used a program -- because
we’re in the digital age -- and it’s called PDF Suite. And I went in and I verified
that it was 14-point and it was 12-point and it was 8-point. And just the other day
I did a printout, a print screen, to show how I verified the type sizes. . . . [T]here
is no way that you can just measure a capital letter and determine what the type
size is. So every time you go to your computer and you say, hey, I’m going to use
14-point, you click on it, and depending on what type font you use will determine
the strength [sic] of the letter that you’re going to see; the overall height of the
capital letters, the descenders, et cetera.
Printer Michael Migrin, a 1971 graduate of Ferris State College in the field of graphic
reproduction technology, stated his opinion that the petition heading is in 14-point type. He
indicated that actual type size can vary: “Now if you would look at every one of these
manufacturers, their sizes are a little different and their styles are a little different. It all depends
who the manufacturer is.” Rather than a ruler, Migrin used a printer’s “cell” and a magnifying
glass to measure the type size: “So I would invite anybody to take this cell and have a ten-power
magnifying glass and to lay this cell onto this typeface here and compare if it is 14-point or not.”
He stated that every time something is printed, a slight change occurs from the original, so
minute differences will occur. He demonstrated the differences between two point sizes, one a
12-point and the other a 14-point, and stated, “[I]f you look at it closely, you can see there’s a
slight difference in the shoulder on the type. And if you look at the character, the characters
themselves are almost the same height, yet there’s a shoulder which we refer to as the internal
leading. This will give you a little better example of what I’m talking about as far as how the
difference can vary.”
Board member James Waters moved that the board approve the petition because it
complied with the required number of signatures and with the other statutory requirements. His
motion included a rejection of the challenge. Board Chairperson Julie Matuzak seconded his
motion. Member Norman Shinkle, the board’s vice chairperson, believed that a legitimate
question existed regarding the size of the words and cited Tea Party v Bd of State Canvassers,
unpublished order of the Court of Appeals, entered August 30, 2010 (Docket No. 299805). 5
5
Because Tea Party is an unpublished order, it is not binding precedent under MCR 7.215(C)(1).
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Member Jeffrey Timmer said that he found no wiggle room in the statutory term “shall” so that
the board was bound by that term. Waters and Matuzak voted in favor of certifying the petition;
Shinkle and Timmer voted against certifying the petition. Because of the board’s tie vote, the
petition was not certified. 6
E
Plaintiff thereafter filed the instant complaint for mandamus in this Court. In its brief in
support of expedited consideration, plaintiff argues that “[t]he type size of the petition heading
was in 14 point font . . . in accordance with MCL 168.482(1),” and that, therefore, it has a clear
legal right to certification of the petition and defendants have a clear duty to certify the petition.
Plaintiff argues in the alternative that even if the heading is not 14-point, under the relevant
caselaw, only substantial compliance with the type-size requirement is necessary, and the
petition heading substantially complies with the 14-point-type requirement. Plaintiff also
maintains that the act of certifying the petition is ministerial and states that it has no other legal
or equitable remedy. Plaintiff contends that CFR’s additional challenges were not within the
jurisdiction of the board, which had no authority to review the merits of the referendum, and that
to the extent that the challenges should be reviewed, they are devoid of legal merit.
Defendants, the board and the Secretary of State, together answer that, although the board
has a legal duty to declare the sufficiency or insufficiency of plaintiff’s petition, the board was
unable to pass a motion to do so given the deadlock. Defendants admit that the Constitution, the
Michigan Election Law, and instructions from the Secretary of State do not require a particular
font for petitions, but defendants also assert that these authorities do not indicate how type size
should be measured in the event of a dispute. Defendants further contend that there is
uncertainty in the law with respect to whether the board may review the type size of petitions
under a substantial-compliance standard.
CFR intervened in the mandamus action 7 and argues that the board had a clear legal duty
to deny the certification of the petition, on the basis that the petition heading is “nonconforming
on its face” because it does not meet the 14-point-type-size requirement, a defect that could have
been remedied before circulation of the petition if plaintiff had followed the standard protocol to
obtain preapproval of the petition form. CFR also argues that plaintiff cannot rely on the
substantial-compliance standard because the statute’s mandatory language (“shall”) requires the
heading to be of 14-point type. Additionally, CFR contends that the summary of the proposal is
incomplete and misleading. Finally, CFR states that plaintiff failed to completely republish the
prior act, the effective date of the act, and the public act tie-barred to the act.
6
See MCL 168.22d(2), which provides: “Three members of the board of state canvassers
constitute a quorum of the board. However, an action of the board of state canvassers shall only
be effective upon concurrence of at least 1 member of each major political party appointed to the
board.”
7
We granted CFR’s motion to intervene in Stand Up for Democracy v Secretary of State,
unpublished order of the Court of Appeals, entered May 11, 2012 (Docket No. 310047).
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In their amici curiae brief, the Governor and the Attorney General assert that plaintiff’s
petition does not comply with the mandatory requirements of MCL 168.482 because the heading
is not in 14-point type. They further maintain that modern computer software fonts cannot be
equated to the long-established printer’s standard adopted by the Legislature in 1954 and to
which the statute continues to adhere. In the view of the Governor and the Attorney General,
there is no evidence that the Legislature ever contemplated allowing the measurement standards
established in MCL 168.482 to be flexibly applied because of the variability in text size inherent
in diverse and evolving word-processing technology. Finally, the Governor and the Attorney
General contend that the only way to verify type size is by using an E-scale printer’s ruler and
that plaintiff either should have used such a ruler to ensure that the type met the standard or,
alternatively, that plaintiff should have obtained preapproval from the Secretary of State to
establish compliance with the statute.
The American Civil Liberties Union Fund of Michigan (ACLU) also filed an amicus
curiae brief and argues that plaintiff’s petition is compliant with all statutory requirements.
Alternatively, ACLU claims that even if the petition heading does not strictly comply with the
statutorily mandated type size, the petition heading substantially complies with the statutory
requirements, and certification of the referendum petition should occur without regard to the
substance of the proposed referendum or any technical deficiencies that have little or no effect on
signers of the petition.
II
A
This Court has jurisdiction over an original action for mandamus against a “state officer.”
MCR 7.203(C)(2), citing MCL 600.4401. For purposes of mandamus, the Secretary of State and
the board are “state officers.” Citizens Protecting Michigan’s Constitution v Secretary of State,
280 Mich App 273, 282; 755 NW2d 157 (2008), aff’d in result only 482 Mich 960 (2008).
Further, the Michigan Election Law provides that a person aggrieved by a decision of the board
may seek relief in the form of mandamus. MCL 168.479. 8
B
This Court reviews de novo as questions of law whether a defendant has a clear legal
duty to perform and whether a plaintiff has a clear legal right to the performance sought. See In
re MCI Telecom Complaint, 460 Mich 396, 442-443; 596 NW2d 164 (1999). Issues regarding
the application of a statute are questions of law. Danse Corp v Madison Hts, 466 Mich 175, 178;
644 NW2d 721 (2002). Courts review questions of law under a de novo standard of review.
Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011).
8
MCL 168.479 provides: “Any person or persons, feeling themselves aggrieved by any
determination made by said board, may have such determination reviewed by mandamus,
certiorari, or other appropriate remedy in the supreme court.”
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Additionally, this Court reviews de novo issues of statutory interpretation. Eggleston v Bio-Med
Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003); Robert A Hansen Family
Trust v FGH Indus, LLC, 279 Mich App 468, 474-475; 760 NW2d 526 (2008).
When we interpret a statute, the primary goal must be to ascertain and give effect to the
Legislature’s intent, and the judiciary should presume that the Legislature intended a statute to
have the meaning that it clearly expresses. Mich Ed Ass’n v Secretary of State (On Rehearing),
489 Mich 194, 217-218; 801 NW2d 35 (2011). This Court determines legislative intent by
examining the language used. Casco Twp v Secretary of State, 472 Mich 566, 571; 701 NW2d
102 (2005). Statutory provisions are to be read in the context of the entire act, giving every word
its plain and ordinary meaning. Driver v Naini, 490 Mich 239, 247; 802 NW2d 311 (2011).
Judicial construction is not permitted when the language is clear and unambiguous. Id. Courts
apply unambiguous statutes as written. Id.
C
CFR makes various challenges to the adequacy of plaintiff’s submitted referendum
petition. Plaintiff argues that at least some of these challenges concern the merits of the
referendum petition, which the board had no jurisdiction to consider, and that, accordingly, this
Court should also decline to review the challenges. This Court reviews de novo matters
concerning the threshold question of justiciability, including whether a matter is ripe for review.
Mich Chiropractic Council v Comm’r of the Office of Fin & Ins Servs, 475 Mich 363, 369; 716
NW2d 561 (2006), overruled on other grounds in Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487
Mich 349, 371 n 18 (2010).
While challenges regarding the substance of petitions have historically been viewed as
premature if brought before the initiative legislation comes into effect, see Hamilton v Secretary
of State, 212 Mich 31; 179 NW 553 (1920), such is not the case for challenges regarding the
legality or sufficiency of the form of the petitions themselves, Leininger v Secretary of State, 316
Mich 644; 26 NW2d 348 (1947). In other words, any substantive constitutional challenges
regarding the validity of a ballot proposal are premature when made before the voters adopt the
proposition in question. Citizens Protecting Michigan’s Constitution, 280 Mich App at 288. But
challenges regarding whether a petition meets the necessary constitutional or statutory
requirements are properly brought before the board certifies any petition as valid. Id. at 288-289.
Our Supreme Court has stated that in a referendum context, as we have here, a controversy is
ripe for review when its resolution “is not dependent upon the Board of Canvassers’ counting or
consideration of the petitions but rather involves a threshold determination whether the petitions”
meet the prerequisites for acceptance. Mich United Conservation Clubs v Secretary of State, 463
Mich 1009 (2001). CFR’s challenges probe this “threshold determination” because they contend
that the petitions failed to comply with the form required by law. As a result, all of CFR’s
challenges are ripe for review.
III
A plaintiff has the burden of establishing entitlement to the extraordinary remedy of a
writ of mandamus. Lansing Sch Ed Ass’n v Lansing Bd of Ed (On Remand), 293 Mich App 506,
520; 810 NW2d 95 (2011). The plaintiff must show that “(1) the plaintiff has a clear legal right
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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).
The parties do not dispute that if CFR’s challenges to plaintiff’s petition are rejected,
plaintiff’s entitlement to a writ of mandamus will have been established. If we determine that
the petition qualifies for certification, plaintiff would have a clear legal right to have the board
certify the petition, the board would have a clear legal duty to do so, the act would be ministerial
because it would not require the exercise of judgment or discretion, and plaintiff would have no
other legal or equitable remedy available. See Citizens Protecting Michigan’s Constitution, 280
Mich App at 291-292. Hence, we focus our attention solely on whether the petition meets the
requirements for certification.
IV
A
1
CFR, the Attorney General, and the Governor argue that plaintiff does not have a clear
legal right to the performance of any duty by the board on the basis that the referendum petition
heading does not meet the statutory requirements and, therefore, the petition is defective. We
agree that the petition heading does not comply with the format prescribed by the Secretary of
State or the format required by MCL 168.482(2), but as discussed later in this opinion, under
Bloomfield, this finding is not dispositive in the instant case.
As we noted earlier, MCL 168.544d provides, in part, that “[p]etitions circulated
countywide shall be on a form prescribed by the secretary of state, which form shall be
substantially as provided in” § 482. Here, both the Secretary of State’s January 2011
memorandum and MCL 168.482(2) require that the heading be in all capital letters and that it
shall be prepared in 14-point boldfaced type. The term “shall” denotes mandatory conduct.
Manuel v Gill, 481 Mich 637, 647; 753 NW2d 48 (2008). Importantly, neither the Secretary of
State nor the statute use the term “font.” “Font” is defined as “a complete assortment of type of
one style and size.” Random House Webster’s College Dictionary (2d ed, 1997). “Font”
incorporates all of the characteristics of a particular type, including the font family, 9 its size, and
its style. For example, while they share the same font family, 12-point boldfaced Arial is one
particular font, while 12-point italicized Arial is a different font. The statute specifies that the
heading must be in capital letters and have (1) a particular size (14 points) and (2) a particular
style (boldfaced). Because the heading was properly in bold and in capital letters, the only
dispute is whether the heading was sized appropriately as 14-point type. The affidavits
9
Examples of font families include Times New Roman, Calibri, Arial, and so forth. See
Microsoft typography, <http://www.microsoft.com/typography/fonts/family.aspx> (accessed
June 7, 2012).
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submitted by plaintiff and CFR conflict regarding the type size of the heading and, therefore, do
not resolve the dispute.
The term “14-point” also is not defined by the Secretary of State’s memoranda or by
statute. When construing statutes, technical words that have acquired a peculiar and appropriate
meaning must be construed according to that particular meaning. Ford Motor Co v Woodhaven,
475 Mich 425, 439; 716 NW2d 247 (2006), citing MCL 8.3a. Because there is no statutory
definition for the term “point,” it is proper to consult a dictionary for its common meaning.
Klooster v Charlevoix, 488 Mich 289, 304; 795 NW2d 578 (2011). The Random House
Webster’s College Dictionary (2d ed, 1997) defines “point” in the printing context as “a unit of
type measurement equal to . . . (1/72 inch).” Originally created by French typesetter Pierre
Fournier in 1737, the measurement of a printer’s “point” as 1/72 of an inch is a centuries-old
standard. Saxena, Headline Writing (New Delhi, India: Sage Publications India Pvt Ltd., 2006),
p 206. Therefore, type that is “14-point” is 14/72 of an inch, or as acknowledged by the various
experts in this case, 0.194 inches. 10
It is clear from the record evidence that plaintiff’s petition’s heading is printed in Calibri,
the current default family in Microsoft software. It is further undisputed that the font was
categorized by the Microsoft software as “14-point.” However, as conceded by the printers and
by plaintiff in this case, the actual size of text varies depending on the font family chosen. In
other words, “14-point” Calibri font measures in a different type size than “14-point” Arial font.
Therefore, text in a so-called 14-point font may not necessarily meet the 14-point type standard
of 14/72 inches. 11 Because a heading of 14-point type is plainly and unambiguously prescribed
by the Secretary of State and MCL 168.482(2), text that does not measure 14 points, or 14/72
inches, is insufficient under the statute. Here, the Calibri font utilized in plaintiff’s petition’s
heading is smaller than the prescribed 14-point-type measurement of 14/72 inches. In fact, the
heading on plaintiff’s petition only measures 12 points on an E-scale ruler. Thus, plaintiff’s
petition contains a fatal formatting defect, and the petition is invalid under the Secretary of
State’s prescribed format and MCL 168.482. 12
10
Because 14-point is a unit of measurement easily determined by use of an E-scale ruler,
neither this Court nor the board requires expert testimony to determine whether the correct
measurement has been met.
11
Because “font” is defined as “a complete assortment of type of one style and size,” “font” is
not a unit of measurement.
12
Plaintiff claimed in its motion to supplement the record that before the board’s April 26, 2012,
hearing, Director of Elections Thomas had been provided an expert opinion from Professor Chris
Corneal, Associate Professor of Graphic Design at Michigan State University, that the heading
size was accurate and that he improperly failed to submit that information to the board.
Although we have denied plaintiff’s motion to supplement the record, Stand Up for Democracy v
Secretary of State, unpublished orders of the Court of Appeals, entered May 14, 2012, and June
8, 2012 (Docket No. 310047), we believe that it is important to note here that Director Thomas
was only told what the record already reveals, that the heading was in 14-point Calibri font.
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2
Our inquiry does not end here, however. As we previously noted, plaintiff argues in the
alternative that the form of the petition substantially complies with the statutory requirements
and that under this Court’s decision in Bloomfield certification is warranted. We agree that
Bloomfield compels certification of the referendum petition in this case because the 12-point type
of plaintiff’s petition heading is in substantial compliance with the 14-point-type heading
requirement prescribed by the Secretary of State in the January 2011 memorandum and dictated
in MCL 168.482(2). However, because we conclude that Bloomfield was wrongly decided, we
explain the rationale in Bloomfield and our disagreement with it.
The petition at issue in Bloomfield was for the initiation of an election to decide whether
the intervening defendant, the city of Pontiac, could annex township property. 13 Under MCL
42.2a and MCL 42.34(5), after the circulation and signature of annexation petitions, the petitions
are to be filed with the county clerk. MCL 42.2a provides that such petitions are subject to MCL
168.488. MCL 168.488 explains that these petitions are subject to the requirements of MCL
168.482(1), (4), (5), and (6). In addition, MCL 168.482(6) incorporates the requirements of
MCL 168.544c(1) and (2).
Bloomfield Township asserted, inter alia, that the petition’s warning language was not in
the 12-point boldfaced type required by MCL 168.544c(1) and MCL 168.482(5). The circuit
court denied relief to the township. Bloomfield, 253 Mich App at 4-9, 21. On appeal, the
Bloomfield Court adopted the “substantial compliance” doctrine articulated in Meridian Charter
Twp v East Lansing, 101 Mich App 805, 810; 300 NW2d 703 (1980), and affirmed the circuit
court. Under the substantial-compliance doctrine, “‘[a]s a general principle, all doubts as to
technical deficiencies or failure to comply with the exact letter of procedural requirements are
resolved in favor of permitting the people to vote and express their will on any proposal subject
to election.’” Bloomfield, 253 Mich App at 21, quoting Meridian, 101 Mich App at 810. The
substantial-compliance doctrine also examines whether “the petition language appears ‘in
sufficiently clear terms so that those signing the petition can be assumed to have understood to
what it was they were appending their signatures.’” Bloomfield, 253 Mich App at 21, quoting
Meridian, 101 Mich App at 810.
In affirming the lower court’s conclusion that the petition was valid and that the
annexation election should proceed, the Bloomfield Court acknowledged that “the relevant
Michigan Election Law provisions clearly and unambiguously require that various components
Because the font utilized by plaintiff fails to comply with the required measurement of 14-point
type, plaintiff’s contention that Director Thomas withheld information from the board that was
relevant to and supportive of plaintiff’s request for certification of its petition simply is
inaccurate.
13
The township initially challenged the petition before the special election, but the circuit court
declined to enjoin that election on the ground that the township had the adequate legal remedy of
a postelection quo warranto action. The election occurred, and Pontiac voters approved the
annexation by a vote of 5,879 to 1,086; the township voters in the annexed area voted 14 in favor
and 8 against. Bloomfield, 253 Mich App at 9.
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shall appear within a petition for annexation,” and that the “annexation petition[] undisputedly
contained several variations from the statutorily prescribed language.” Bloomfield, 253 Mich
App at 20, 22. Nevertheless, applying the substantial-compliance doctrine as articulated in
Meridian, the Court found that the petition was properly certified as valid despite the failure of
the petition to strictly comply with statutory petition requirements. Id. at 24-25. In the
Bloomfield Court’s view, “the township has failed to direct our attention to any section of the
Michigan Election Law or any other legislative act suggesting that the filing of a technically
imperfect petition necessarily precludes an election regarding the matter therein addressed.” Id.
at 22. Thus, in contravention of the plain language of MCL 168.482(5) that the petition’s
warning “shall be printed in 12-point type,” the Bloomfield Court applied the substantialcompliance doctrine “in this case involving [an] imperfect petition[], absent the Legislature’s
instruction that a petitioned-for election will be precluded unless the initiating petition[] exactly
match[es] the Michigan Election Law requirements for form and content.” Id. at 23.
In our judgment, Bloomfield was wrongly decided because it failed to apply the clear and
unambiguous statutory language that the petition’s warning language “shall be printed in 12point type immediately above the place for signatures” as required by MCL 168.482(5).
(Emphasis added.) The Legislature’s use of the word “shall” denotes mandatory conduct,
Manuel, 481 Mich at 647, and a court may not ignore the Legislature’s instruction of mandatory
conduct or make a different policy choice than what has already been made by the Legislature,
People v McIntire, 461 Mich 147, 152-153; 599 NW2d 102 (1999) (“‘[O]ur judicial role
precludes imposing different policy choices than those selected by the Legislature . . . . When a
legislature has unambiguously conveyed its intent in a statute, . . . the proper role of a court is
simply to apply the terms of the statute . . . .’”) (citation omitted). The Bloomfield Court’s
conclusion that initiating petitions need not exactly match the Michigan Election Law
requirements for form and content ignored the Legislature’s use of the term “shall,” a clear
expression of its intent that the form of an initiating petition must be in a specified type, and
constituted an improper failure to recognize and defer to a legislative mandate.
In the instant case, the expression of legislative intent is even clearer. As we earlier
mentioned, the Legislature amended MCL 168.482(2) in 1965 by striking the language
permitting the petition heading to be in “type of the approximate size set forth” and replaced it
with the mandatory language, “shall be . . . in 14-point boldfaced type.” The inescapable
conclusion to be derived from this amendment is that the Legislature no longer wished to permit
heading type of an indefinite size, but instead intended to require the heading to be a uniform,
standardized dimension—that of 14-point type, or 14/72 inches.
In sum, under the plain language of MCL 168.544d, petitions being circulated
countywide must strictly comply with the form requirements prescribed by the Secretary of
State. Although the form requirements prescribed by the Secretary of State need only
substantially comply with the sections enumerated in MCL 168.544d, in this instance, the
Secretary of State’s prescribed form requirements are the exact same form requirements as those
mandated by MCL 168.482. Thus, but for MCR 7.215(J)(1), which requires us to follow the
holding in Bloomfield, we would conclude that the petition heading is fatally defective, that
plaintiff has no clear legal right to certification of the referendum for placement on the
November 2012 ballot, and that the board is mandated to reject the petition as invalid.
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B
CFR also argues that the summary in plaintiff’s referendum petition is incomplete and
misleading and that, accordingly, the board was required to deny certification of the petition. We
disagree.
The Secretary of State’s January 2011 memorandum prescribed that the full text of the
affected legislation must appear on a referendum petition. However, it further provided that
[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.
The brief synopsis provided by plaintiff on the petition states:
A PETITION for a referendum election to repeal Public Act 4 of 2011,
which allows the governor to declare a local government or school district in
receivership and appoint an emergency manger to take control with the following
powers, among others: to assume the powers of local elected officials; to take
control of revenue and spending; to terminate, modify and renegotiate contracts;
to refuse to bargain with employee representatives; to take control of employee
pension funds under certain circumstances; and with the governor’s approval, to
sell public assets or dissolve a city, township or county.
We conclude that the synopsis complies with the Secretary of State’s requirements. The
summary accurately states that the emergency manager has particular powers. Contrary to
CFR’s contention, the summary does not state that the emergency manager will exercise all those
powers or suggest that the emergency manager will exercise the granted powers on a whim.
CFR’s argument that the language of a referendum petition must meet similar requirements for
the ballot language used for constitutional amendments is misplaced. There is nothing in the
Michigan Constitution or in the statutory scheme that supports this argument. The constitution
requires the ballot language for constitutional amendments to
contain a statement of the purpose of the proposed amendment, expressed in not
more than 100 words, exclusive of caption. Such statement of purpose and
caption shall be prepared by the person authorized by law, and shall consist of a
true and impartial statement of the purpose of the amendment in such language as
shall create no prejudice for or against the proposed amendment. [Const 1963, art
12, § 2.]
Notably, the Constitution does not identify any such requirements for the petition language for a
constitutional amendment. Instead, the Constitution provides that “[a]ny such petition shall be in
the form, and shall be signed and circulated in such manner, as prescribed by law.” Id.
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(emphasis added). Therefore, CFR’s argument that the “true and impartial” reference in the
Constitution applies to petition language is not persuasive.
CFR does not contend that the emergency manager’s duties summarized in the petition
are not within the emergency manager’s powers. Instead, it argues that certain conditions must
be present before the emergency manager may exercise those powers. Where the summary does
not misstate the powers of the emergency manager under the act, a finding that the synopsis is
adequate must follow. See Coalition to Defend Affirmative Action & Integration v Bd of State
Canvassers, 262 Mich App 395, 406; 686 NW2d 287 (2004) (finding that petition language was
not “propaganda” or misleading because the summaries did not introduce anything that was not
found in the language of the proposed amendment).
C
CFR next argues that the petition is defective because the petition did not republish the
prior emergency financial manager act, 1990 PA 72 (PA 72). We disagree.
CFR contends that because 2011 PA 4, the legislation at issue in the referendum, repealed
1990 PA 72, PA 72 would again govern in the event of the suspension of PA 4 pending the
outcome of the referendum at the election, and that given this effect of the referendum, PA 72
was required to be republished along with PA 4. In asserting this view, CFR relies on the
following provision in the format prescribed by the Secretary of State’s January 2011
memorandum:
If the petition offers a legislative proposal or a referendum of legislation
which involves alterations to existing provisions of Michigan law, the alterations
may be presented by showing any language that would be added to the provision
or provisions in capital letters and any language that would be deleted from the
provision or provisions struck out with a line.
CFR’s reliance on this section is misplaced. First, 1990 PA 72 is not an “existing
provision[] of Michigan law” because it was repealed once 2011 PA 4 became effective in
March 2011. Second, the Secretary of State’s prescribed format states that such alterations to
legislation may be shown by strikeouts and capital letters. The use of the word “may” designates
a permissive provision. Jordan v Jarvis, 200 Mich App 445, 451; 505 NW2d 279 (1993).
Therefore, CFR’s challenge based on the fact that 1990 PA 72 was not republished must be
rejected.
D
CFR next argues that the petition is defective because it failed to republish the effective
date of 2011 PA 4. CFR claims that, although the petition correctly reflects that PA 4 was given
immediate effect, “[p]laintiff’s failure to identify the Effective Date and otherwise comply with
the requirement to fully republish the act sought to be repealed is a fatal error, warranting denial
of certification as to form.” Because CFR failed to provide any authority to support its claim that
an act’s effective date is part of the act itself and therefore must also be published in a
referendum petition, this issue is abandoned. DeGeorge v Warheit, 276 Mich App 587, 596; 741
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NW2d 384 (2007). Moreover, we have failed to locate any authority that requires an act’s
effective date to be published in a referendum petition. As a result, CFR’s argument fails.
E
Finally, CFR argues that the petition should not be certified because it also failed to
publish the contents of Senate Bill 158 (“SB 158”). We disagree.
2011 PA 4 (Enrolled House Bill No. 4214) was tie-barred to 2011 PA 9 (Enrolled Senate
Bill No. 158). As enacted, 2011 PA 4 stated, in part, that “[t]his act does not take effect unless
Senate Bill No. 158 of the 96th Legislature is enacted into law.” Likewise, SB 158 as enacted
stated, in part, that “[t]his amendatory act does not take effect unless House Bill No. 4214 of the
96th Legislature is enacted into law.” CFR claims that the tie-bar of these two bills requires
2011 PA 9 to also have been published on the referendum petition. CFR failed to cite any
authority in support of this contention. Accordingly, we consider the issue abandoned.
DeGeorge, 276 Mich App at 596. Even if we were to consider the argument, however, we
would conclude that the argument lacks merit. The Secretary of State’s June 2011 memorandum
requires “[t]he full text of the legislation which would be affected by the referendum” to appear
in the petition. (Emphasis added.) Notably, publication of “the” legislation affected, not “any”
or “all” legislation affected, is required. The plain reading of the Secretary of State’s
requirement in the context of a referendum petition establishes that “the” refers only to the
subject of the referendum, in this case 2011 PA 4.
Reynolds v Bureau of State Lottery, 240 Mich App 84; 610 NW2d 597 (2000), supports
this interpretation of the Secretary of State’s memorandum. In Reynolds, this Court explained,
“According to the Michigan Constitution, the people reserve the right to refer ‘laws enacted by
the legislature . . . .’ Const 1963, art 2, § 9. The ‘law’ referred to by our constitution can only be
a definite, specific act . . . .” Reynolds, 240 Mich App at 97 (emphasis added). Moreover,
“when a law enacted by the legislature is referred to the people, the reference is of a particular
definite act and not, by implication, the general principle or subject matter at issue in the act.”
Id. (quotation marks, brackets, and citation omitted). Moreover, “‘“[n]owhere in the
Constitution can be found even a suggestion that a referendum petition has any effect except the
nullification of the particular measure referred until its approval by the voters.”’ Id. at 94,
quoting Mich Farm Bureau v Secretary of State, 379 Mich 387, 396; 151 NW2d 797 (1967),
quoting McBride v Kerby, 32 Ariz 515, 523; 260 P 453 (1927) (emphasis added). Thus, given
the prior precedent of this Court and the Supreme Court, we hold that the Secretary of State’s
requirements do not require any other act to be published in the petitions other than the act that is
the direct subject of the referendum.
In addition, the tie-bar language of 2011 PA 9 required only that 2011 PA 4 must have
been enacted into law in order for 2011 PA 9 to “take effect.” Unquestionably, this condition
was satisfied on March 16, 2011, when both 2011 PA 4 and 2011 PA 9 became effective. The
tie-bar language did not state, however, that 2011 PA 9 would “remain” in effect only as long as
2011 PA 4 is effective. In other words, the tie-bar language addressed when the act could come
into existence, but the tie-bar language had no bearing or influence after that incident or
condition occurred, and once both acts became effective, the two acts were no longer contingent
upon each other. See OAG, 1979-1980, No 5478, p 129 (April 4, 1979) (“Tie-barred statutes are
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statutes which do not become operative until the happening of a contingency, the passage of
another statute.”). If the Legislature had intended a more permanent linkage between the two
acts, it could have used more expansive language to make clear that 2011 PA 9 would remain in
effect only as long as 2011 PA 4 remained in effect.
We recognize that two subsections of 2011 PA 9 (subsections 8 and 9) would appear to
be made inoperable if 2011 PA 4 is repealed because these sections both refer to 2011 PA 4 by
its name, “the Local Government and School District Fiscal Accountability Act”:
(8) Collective bargaining agreements under this act may be rejected,
modified, or terminated pursuant to the local government and school district fiscal
accountability act. This act does not confer a right to bargain that would infringe
on the exercise of powers under the local government and school district fiscal
accountability act.
(9) A unit of local government that enters into a consent agreement under
the local government and school district fiscal accountability act is not subject to
subsection (1) for the term of the consent agreement, as provided in the local
government and school district fiscal accountability act. [Emphasis added.]
Regardless, the fact that subsections 8 and 9 of 2011 PA 9 would become inoperable with
the repeal of 2011 PA 4 does not constitute the repeal of these subsections. See Reynolds, 240
Mich App at 94 (the only effect of a referendum is to nullify “the particular measure referred”)
(quotation marks and citations omitted).
Therefore, we reject CFR’s final challenge to the validity of plaintiff’s referendum
petition.
V
In summary, under Bloomfield, plaintiff’s petition substantially complies with the
statutory requirements to the extent that plaintiff has a clear legal right to certification of the
petition. Defendants have a clear duty to certify the petition for the ballot because the petition
has the requisite number of signatures and meets all other statutory requirements. Under all the
circumstances presented here, the act of placing the petition on the ballot is ministerial. Plaintiff
does not have an alternate legal remedy. The elements of mandamus thus have been met and we
direct the board to certify plaintiff’s petition for the ballot. However, as we have indicated, but
for the fact that we are required to follow Bloomfield under MCR 7.215(J)(1), we would rule that
plaintiff’s petition is invalid because the petition heading is noncompliant with the 14-point type
mandated by the Secretary of State and MCL 168.482(2). Furthermore, because of the invalid
petition heading, we would find that plaintiff has no clear legal right to certification of the
referendum for placement on the November 2012 ballot, and therefore, we would direct the
board to not certify plaintiff’s petition for the ballot.
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Because Bloomfield is determinative of the outcome of this case, we follow it as we must
under MCR 7.215(J)(1), and 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 the poll of the judges of this Court pursuant to MCR 7.215(J)(3)(a).
/s/ Kurtis T. Wilder
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
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