Fillmore Twp v. Secretary of State ( 2005 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 14, 2005
TOWNSHIP OF CASCO, TOWNSHIP OF
COLUMBUS, PATRICIA ISELER, and
JAMES P. HOLK,
Plaintiffs/Counter-
Defendants-Appellants,
v o. 126120
N
SECRETARY OF STATE, DIRECTOR OF
THE BUREAU OF ELECTIONS, and CITY
OF RICHMOND,
and
WALTER K. WINKLE and PATRICIA A.
WINKLE,
Intervening Defendants/
Counter-Plaintiffs-Appellees.
FILLMORE TOWNSHIP, SHIRLEY GREVING,
ANDREA STAM, LARRY SYBESMA, JODY
TENBRINK, and JAMES RIETVELD,
Plaintiffs-Appellants,
v No. 126369
SECRETARY OF STATE and BUREAU OF
ELECTIONS DIRECTOR,
and
CITY OF HOLLAND,
Intervenor-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
These consolidated appeals present two issues. First,
we must address whether a single detachment petition and a
single vote on that petition, pursuant to the terms of the
Home Rule City Act, MCL 117.1 et seq., may encompass
territory to be detached from one city and added to more
than one township.1 Second, if a single detachment petition
and a single vote may encompass territory to be added to
more than one township, we must determine whether a writ of
mandamus compels the Secretary of State to issue a notice
directing an election on the change of boundaries sought by
plaintiffs in each case. Because we conclude that the Home
Rule City Act does not allow a single detachment petition
and a single vote on detachment for adding territory to
multiple townships, mandamus is not proper in these cases.
Accordingly, the decisions of the Court of Appeals are
affirmed.
1
While the Home Rule City Act, MCL 117.1 et seq.,
addresses various processes, the issue before this Court
pertains solely to the process of detachment.
2
I. STATEMENT OF FACTS AND PROCEEDINGS
Casco Twp v Secretary of State
Plaintiffs in this case are two adjacent townships—
Casco Township and Columbus Township—and residents of those
townships who seek to detach territory from defendant city
of Richmond. The territory sought to be detached is
territory that was previously annexed to the city of
Richmond.
Plaintiffs seek to present the ballot issue covering
both townships in a single petition. This would result in
a single vote about whether to detach territory from the
city of Richmond and add the territory to Casco Township
and Columbus Township. The residents of one township would
be voting on the return of property to their township, as
well as the return of property to a township in which they
do not reside. The Secretary of State refused to approve
an election on plaintiffs’ petition because an election on
the petition would allow residents of one township to vote
on, and possibly determine, a change in the boundaries of
another township in which they do not reside.
Plaintiffs filed a complaint for mandamus and
declaratory relief. The circuit court dismissed
plaintiffs’ complaint for mandamus to compel the Secretary
of State to act because it was not clear that a single
3
petition seeking detachment from a city and addition of the
territory to two townships was permitted by the Home Rule
City Act. The Court of Appeals affirmed the decision of
the circuit court. Casco Twp v Secretary of State, 261
Mich. App. 386; 682 NW2d 546 (2004). We granted plaintiffs’
application for leave to appeal and ordered that the case
be argued and submitted with Fillmore Twp v Secretary of
State, 471 Mich. 890 (2004).
Fillmore Twp v Secretary of State
Plaintiffs are Fillmore Township and electors from
four townships—Fillmore Township, Holland Charter Township,
Park Township, and Laketown Township-and the city of
Holland who want to detach territory from the city of
Holland and add the territory to the four townships.
Plaintiffs filed a joint detachment petition with the
Secretary of State, asking that the petition be certified
and that a single election be held regarding the territory
that was proposed to be detached from the city of Holland.
The Secretary of State refused to certify the petition
because the petition involved an effort to detach territory
for addition to more than one township.
Plaintiffs filed a complaint for mandamus in the Court
of Appeals, and the complaint was held in abeyance pending
the decision in the Casco Twp case. Unpublished order,
4
entered May 19, 2003 (Docket No. 245640). Plaintiffs’
complaint was subsequently denied by the Court of Appeals
on the basis of the Casco Twp decision. Unpublished order,
entered May 6, 2004 (Docket No. 245640). We granted
plaintiffs’ application for leave to appeal and ordered
that the case be argued and submitted with the Casco Twp
case. 471 Mich. 890 (2004).2
II. STANDARD OF REVIEW
The proper interpretation of a statutory provision is
a question of law that this Court reviews de novo. Lincoln
v Gen Motors Corp, 461 Mich. 483, 489-490; 607 NW2d 73
(2000). A trial court’s decision regarding a writ of
mandamus is reviewed for an abuse of discretion. In re MCI
Telecom Complaint, 460 Mich. 396, 443; 596 NW2d 164 (1999).
III. ANALYSIS
These cases involve an issue of statutory
interpretation. The primary goal of statutory
interpretation is to give effect to the intent of the
Legislature. Id. at 411. The first step is to review the
2
Justice Young states that the majority “fails to
convey adequately the true character of the boundary
disputes at issue.” Post at 4. Yet the relevant facts are
conveyed, and it is of no import if the history of these
cases was contentious or of a calculated nature. The
statutory analysis is the same whether the parties were
friends, foes, or something in between.
5
language of the statute. If the statutory language is
unambiguous, the Legislature is presumed to have intended
the meaning expressed in the statute and judicial
construction is not permissible.
The Home Rule City Act, MCL 117.1 et seq., addresses
four processes—incorporation, consolidation, annexation,
and detachment.3 The issue before this Court pertains only
to the process of detachment. Detachment means that
territory is taken from an existing city and added to an
existing township.
Section 6 of the Home Rule City Act, MCL 117.6,
provides that a detachment be initiated by “proceedings
originating by petition therefor signed by qualified
electors who are freeholders residing within the cities,
villages, or townships to be affected thereby . . . .”
(Emphasis added.) Notably, MCL 117.8 and MCL 117.11
delineate the procedure for submitting a petition for a
change of boundaries. MCL 117.8(1) provides in relevant
part that “the board shall, by resolution, provide that the
question of making the proposed incorporation,
consolidation, or change of boundaries be submitted to the
qualified electors of the district to be affected at the
3
Recent amendments to the act do not affect the issue
in this case.
6
next general election or at a special election before the
next general election.” (Emphasis added.) Likewise, MCL
117.11(2) provides that “the question of making the
incorporation, consolidation, or change of boundaries
petitioned for shall be submitted to the electors of the
district to be affected.” (Emphasis added.) Michigan
election law defines a qualified elector as “any person who
possesses the qualifications of an elector as prescribed in
section 1 of article 2 of the state constitution and who
has resided in the city or township 30 days.”4 MCL 168.10.
Because Casco Township voters do not reside in
Columbus Township, they are not “qualified electors” of
Columbus Township who can sign a petition and vote on the
detachment of territory from the city of Richmond for
addition of the territory to Columbus Township. Likewise,
because Columbus Township voters do not reside in Casco
4
Const 1963, art 2, § 1 provides the following:
Every citizen of the United States who has
attained the age of 21 years, who has resided in
this state six months, and who meets the
requirements of local residence provided by law,
shall be an elector and qualified to vote in any
election except as otherwise provided in this
constitution. The legislature shall define
residence for voting purposes.
Pursuant to US Const, Am XVI, the minimum voting age
is now eighteen years.
7
Township, they are not “qualified electors” of Casco
Township who can sign a petition and vote on the detachment
of territory from the city of Richmond for addition of the
territory to Casco Township. Therefore, a single petition
and a single vote on multiple detachments violate the
statutory language of the Home Rule City Act.
Additional support for this position is found in the
statutory language used in other parts of the Home Rule
City Act. MCL 117.9(1) defines the “district to be
affected” as the following: “The district to be affected
by every such proposed incorporation, consolidation, or
change of boundaries shall be deemed to include the whole
of each city, village, or township from which territory is
to be taken or to which territory is to be annexed.”
(Emphasis added.)
A change of boundaries for the district to be affected
encompasses only one city and one township because a
township’s voters can be qualified electors only in
relation to their own township’s proposed change of
boundaries and are affected only by their own township’s
proposed change of boundaries. Therefore, it is only
plausible that the “district to be affected” encompasses
one city and one township. Accordingly, a single
8
detachment petition and a single vote may only encompass
territory to be added to one township.5
Language in MCL 117.13, which sets forth the procedure
following an election, further supports the principle that
each township is considered a separate entity and there
must be separate votes with respect to the territory to be
detached from one city and added to each township. MCL
117.13 states, “Territory detached from any city shall
thereupon become a part of the township or village from
which it was originally taken . . . .” This indicates that
the “district to be affected” is limited to the city in
which the territory is located and the single township that
seeks the return of the territory.
Further, interpreting the “district to be affected” in
detachment proceedings as the city from which the territory
is to be detached and the township to which the territory
is to be added recognizes that the consequences of
detachment may be quite different for each township that
5
Other jurisdictions have held similarly. See, e.g.,
City of Lake Wales v Florida Citrus Canners Coop, 191 So 2d
453, 457 (Fla App, 1966) (A qualified elector in area 1
cannot vote for the annexation in area 2 because the area 1
voter is not within the territory affected.); People ex rel
Smith v City of San Jose, 100 Cal App 2d 57, 60; 222 P2d
947 (1950) (An annexation election was improperly held
because voters had to vote for the annexation of two
parcels and could not vote separately for the annexation of
each parcel.).
9
seeks to gain property. For example, property rights and
liabilities must be adjusted between the city and the
township when there is a detachment. MCL 123.1. Debts
must be apportioned and land may need to be sold. MCL
123.2; MCL 123.3. The potential for dramatically different
consequences of detachment are clearly indicated in the
Fillmore Twp case. Four townships seek to detach land from
the city of Holland. The Fillmore Township parcel is 1,054
acres, the Holland Charter Township parcel is 3.33 acres,
the Park Township parcel is 1.27 acres, and the Laketown
Township parcel is 0.77 acres. It is reasonable to
conclude that the effect of detachment will be quite
different when one parcel is 1,054 acres and one parcel is
a mere 0.77 acres.
Moreover, allowing a single petition and a single vote
on detachment from one city for the addition of territory
to multiple townships does not allow voters to render a
vote in support of the addition of territory to only one
township. MCL 168.643a requires, in relevant part, the
following:
A question submitted to the electors of this
state or the electors of a subdivision of this
state shall, to the extent that it will not
confuse the electorate, be worded so that a “yes”
vote will be a vote in favor of the subject
matter of the proposal or issue and a “no” vote
10
will be a vote against the subject matter of the
proposal or issue.
However, a single vote on detaching territory from one
city and adding the territory to multiple townships does
not allow a voter who may only favor one of the multiple
additions of territory to cast a “yes” vote. As stated by
this Court in Muskegon Pub Schools v Vander Laan, 211 Mich.
85, 87; 178 N.W. 424 (1920), “Separate subjects, separate
purposes, or independent propositions should not be
combined so that one may gather votes for the other.” In
Vander Laan, this Court noted that the erection of three
new school buildings showed a common purpose and were part
of a comprehensive plan to meet the educational needs of
the city. In contrast, we find that detaching territory
from one city and adding the territory to multiple
townships does not indicate a common purpose because the
needs and consequences of the additions to various
townships may differ remarkably. Combining multiple
additions of territory in a single detachment petition so
that there is only a single vote indeed combines
independent propositions “so that one may gather votes for
the other.”
When put into context, the text of the Home Rule City
Act is unambiguous—a petition and a vote about detachment
11
must involve only one city and one township. A contrary
reading of the statutory language belies the fact that
there will always be two parties to a detachment—the city
and the township. Justice Young’s focus on the word “each”
in the statute ignores that the provisions must be read in
context. Interpreting the word “each” to mean that a
detachment petition can encompass more than one township is
contrary to the statutory language that relates to
qualified electors and ignores the fact that the Home Rule
City Act encompasses four distinct procedures–
incorporation, consolidation, annexation, and detachment.
Language in the statute that at first may appear to
indicate that multiple townships may be involved in a
single detachment petition and a single vote must be read
in context and in consideration of the statutory language
regarding qualified electors. Significantly, residents of
one township are not qualified electors in a detachment
proceeding when it comes to determining a change of
boundaries for another township, and the statute cannot
properly be interpreted in this manner.6
6
This is consistent with principles espoused in past
cases from this Court. See, e.g., Robertson v Baxter, 57
Mich. 127, 129; 23 N.W. 711 (1885) (“No person not living in
the township has any voice in its affairs.”).
12
Further, Justice Young’s reliance on this Court’s
decision in Walsh v Secretary of State, 355 Mich. 570, 574;
95 NW2d 511 (1959), is misplaced. Walsh dealt with
annexation, not detachment. Notably, in the multiple­
township annexation at issue in Walsh, the votes of each
territory were considered separately. In essence, a single
township could “veto” the annexation from taking place, no
matter how many voters approved of the annexation in other
townships. In contrast, in the detachment procedure at
issue in these cases, the voters in a township have no
“veto” power. The wishes of an entire township could
effectively be ignored because voters in other townships
believe that a detachment would be in their best interests.
The “package” proposal in Walsh is hardly analogous to the
detachment proceedings at issue in these cases.
Our conclusion that a single detachment petition and a
single vote on that petition may only encompass territory
to be added to one township is in accord with the
unambiguous statutory language. Thus, the Legislature is
presumed to have intended the meaning expressed in the
statute and judicial construction is not permissible.
Finally, a writ of mandamus could be properly issued
in these cases only if plaintiffs proved that (1) they had
a clear legal right to the performance of the specific duty
13
that they sought to be compelled, and (2) the Secretary of
State had a clear legal duty to perform the act. In re
MCI, supra at 442-443. Because the Home Rule City Act does
not allow a single detachment petition and a single vote on
that petition to encompass territory to be detached from
one city and added to more than one township, there was no
clear legal right to have the Secretary of State authorize
each petition for a single vote. Therefore, there was no
clear legal duty that required the Secretary of State to
act, and the writs of mandamus were properly denied in both
cases before this Court.
IV. CONCLUSION
The Home Rule City Act, MCL 117.1 et seq., does not
allow a single petition and a single vote to encompass
detachment of territory from a city for the addition of
that territory to multiple townships; thus, the Secretary
of State did not have a clear legal duty to act.
Therefore, mandamus was not an appropriate remedy.
Accordingly, the decisions of the Court of Appeals are
affirmed.
Michael F. Cavanagh
Clifford W. Taylor
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Stephen J. Markman
14
STATE OF MICHIGAN
SUPREME COURT
TOWNSHIP OF CASCO, TOWNSHIP OF COLUMBUS,
PATRICIA ISELER, and JAMES P. HOLK,
Plaintiffs/Counter-Defendants-Appellants,
V No. 126120
SECRETARY OF STATE,
DIRECTOR OF THE BUREAU OF ELECTIONS,
and CITY OF RICHMOND,
Defendants-Appellees,
and
WALTER K. WINKLE and
PATRICIA A. WINKLE,
Intervening Defendants/ Counter-Plaintiffs-Appellees.
FILLMORE TOWNSHIP, SHIRLEY GREVING,
ANDREA STAM, LARRY SYBESMA,
JODY TENBRINK, and JAMES RIETVELD,
Plaintiffs-Appellants,
v No. 126369
SECRETARY OF STATE and
BUREAU OF ELECTIONS DIRECTOR,
Defendants-Appellees,
and
CITY OF HOLLAND,
Intervenor-Appellee.
________________________
YOUNG, J. (concurring in part and dissenting in part).
We granted leave to appeal in these consolidated cases
to determine whether (1) the Home Rule City Act (HRCA)1
permits the use of a single detachment petition and
election when the territory to be detached from a city is
to be transferred to more than one township and, (2) if
such a procedure is allowed under the HRCA, whether
plaintiffs2 are entitled to mandamus relief. I agree with
the majority that plaintiffs are not entitled to writs of
mandamus because I believe that any request for mandamus
relief is premature at this time. I disagree, however,
with the majority’s conclusion that the HRCA does not
permit the use of a single detachment petition and vote
thereon when transferring land to multiple townships.
The Legislature was well aware of the political
gamesmanship that occurs between municipalities in the
context of boundary disputes. Indeed, our Constitution was
changed to free the Legislature from this political
1
MCL 117.1 et seq.
2
Unless otherwise indicated, “plaintiffs” will be used
to refer collectively to the plaintiffs in both of the
cases that were consolidated. Similarly, “defendants” will
be used to refer to the defendants in both cases
collectively, unless otherwise noted.
2
quagmire.3 By enacting the HRCA, the Legislature
established a standardized procedure to effectuate such
changes in a manner that it viewed as fair and reasonable.
A plain reading of all relevant language in the HRCA
demonstrates that the use of a single detachment petition
when transferring land to multiple townships is permitted.
The Court of Appeals focused only on select text in the
HRCA and thereby gave the statute a particular meaning that
is insupportable when one considers all the language used
by the Legislature in the HRCA. Its exercise in selective
statutory interpretation not only undermines the
Legislature’s intent in passing the HRCA, but also injects
the judiciary—armed only with ill-defined notions of
“fairness” and “justice”—as a referee in the inherently
political, contentious, and tactical process of altering
municipal boundaries. The majority opinion, while avoiding
explicit reliance on extra-textual policy justifications,
does not, in my view, give full meaning to all the relevant
words in the statute.
Accordingly, I respectfully dissent from the
majority’s conclusion that a single detachment petition
involving multiple townships is not permitted under the
3
See the discussion in part III(A)(1) of this opinion.
3
HRCA. In Casco Twp, I would grant the plaintiffs’ request
for declaratory relief and deny their claim for a writ of
mandamus. In Fillmore Twp, because the plaintiffs only
sought a writ of mandamus, I would deny entirely their
request for relief.
I. FACTS AND PROCEDURAL HISTORY
The majority fails to convey adequately the true
character of the boundary disputes at issue. By glossing
over much of the relevant history, the majority understates
the inherently political and calculated nature of the
disputes.4
A. CASCO TWP V SECRETARY OF STATE
The land at issue in this case has a long, contentious
history. In July 1996, intervening defendants, Walter and
Patricia Winkle, filed a petition with the State Boundary
Commission (SBC) seeking to annex to the city of Richmond
approximately 157 acres of land that they and other
4
Contrary to the majority's assertion, I do not
contend that the factual background of these cases should
alter the statutory analysis. Ante at 5 n 2. Instead, I
simply point out that the majority opinion, in my view,
inadequately describes the true tactical and strategic
character of these ongoing territorial disputes. Moreover,
the lower courts clearly believed that the ability of
villages and townships to use the HRCA to their advantage
was unfair. Providing the full history of these
territorial disputes helps to reveal the lower courts’
policy views.
4
residents owned in Casco Township and Columbus Township.
The Winkles hoped to develop their land for commercial use,
but believed that commercial development could not occur
unless their property was connected to the water and sewer
lines offered by the city of Richmond.
Before the Winkles’ July 1996 petition, however,
Columbus Township and neighboring Lenox Township had
entered into an agreement pursuant to 1984 PA 425 to
transfer land from Columbus Township to Lenox Township.5 A
similar 425 agreement was reached between Casco Township
and Lenox Township. These 425 agreements were designed to
prevent future annexations, such as the one initiated by
the Winkles in July 1996. In November 1997, the SBC
determined that the 425 agreements were invalid and decided
instead to approve the annexation petition filed by the
Winkles.6 After protracted litigation, the SBC’s decision
was eventually upheld by the Court of Appeals.7 The Court
5
1984 PA 425 provides a detailed mechanism by which
municipal entities may transfer land to one another by
contract. MCL 124.21 et seq. Such intergovernmental
transfers are commonly referred to as “425 agreements.”
6
A referendum is not required for an annexation if the
territory to be affected includes one hundred or fewer
residents. MCL 117.9(4).
7
Casco Twp v State Boundary Comm, 243 Mich. App. 392;
622 NW2d 332 (2000).
5
of Appeals found that the 425 agreements between the
townships of Columbus, Casco, and Lenox were “sham[s]” and
“essentially an attempt to avoid annexation,” and upheld
the SBC’s decision approving the annexation initiated by
the Winkles.8 In July 2001, this Court denied leave to
appeal.9
In December 2001, plaintiffs filed a single detachment
petition with the Secretary of State, seeking to transfer
from the city of Richmond to Casco Township and Columbus
Township the same land that was involved in the prior
annexation.10 The disputed territory consisted of
8
Id. at 402.
9
465 Mich. 855 (2001).
10
Under the HRCA, a detachment petition is normally
submitted to the county for certification. MCL 117.6
However, if the territory to be affected is situated in
more than one county, certification must be sought from the
Secretary of State. At the time that plaintiffs filed
their petitions, § 11 of the HRCA provided:
When the territory to be affected by any
proposed incorporation, consolidation or change
is situated in more than 1 county the petition
hereinbefore provided shall be addressed and
presented to the secretary of state . . . . [MCL
117.11.]
Because the city of Richmond is located in both St. Clair
County and Macomb County, the plaintiffs filed the
detachment petition with the Secretary of State pursuant to
§ 11.
6
approximately eighty-seven acres in Casco Township and
seventy acres in Columbus Township.
Unsure whether the HRCA permitted the use of a single
detachment petition to transfer land to multiple townships,
the Secretary of State requested an official opinion from
the Attorney General interpreting the HRCA. Citing a
pending lawsuit in Eaton County, Michigan, involving a
factually similar dispute,11 and the Attorney General’s
policy of declining to issue opinions that might affect
ongoing litigation, the Attorney General refused to issue a
formal opinion construing the HRCA. However, in a May 2002
memorandum to the Department of State, Bureau of Elections,
the Attorney General's Office provided “informal advice”
regarding the use of a single detachment petition.
Recognizing that there were “no cases directly on point
that specifically address the issue,” the memorandum
informed the Department of State that it was “reasonable to
11
In City of Eaton Rapids v Eaton Co Bd of Comm'rs,
(Eaton Circuit Court, Docket No. 02-235-AZ 2002), residents
of Eaton Rapids Township and Hamlin Township filed a single
detachment petition to detach land from the city of Eaton
Rapids. Unlike the present case, however, the territory
involved in Eaton Rapids was situated in only one county,
thus eliminating the need for involvement by the Secretary
of State. In Eaton Rapids, the trial court upheld the use
of a single detachment petition. The Court of Appeals
subsequently denied leave to appeal in an unpublished
order, entered April 16, 2002. (Docket No. 240215).
7
refuse to certify” the petition.12 The Secretary of State
subsequently notified the plaintiffs that she would not
certify the detachment petition.
The following month, the plaintiffs filed a complaint
in the Ingham Circuit Court, seeking declaratory and
mandamus relief against the defendants. After holding a
hearing, the circuit court denied the plaintiffs’ request
for mandamus relief, ruling that the HRCA was not “patently
clear” regarding whether a single detachment petition may
be used to transfer land to more than one township. The
circuit court then dismissed the plaintiffs’ lawsuit
without having addressed their request for declaratory
relief.
The plaintiffs appealed to the Court of Appeals,
claiming that the circuit court erred in denying their
request for mandamus relief and in dismissing their lawsuit
without deciding their request for declaratory relief. In
divided opinions, the Court of Appeals affirmed the
judgment of the circuit court.13 The Court of Appeals
majority held that the HRCA was ambiguous as to whether a
12
Memorandum from the Attorney General's Office to the
Department of State, Bureau of Elections (May 14, 2002).
13
Casco Twp v Secretary of State, 261 Mich. App. 386;
682 NW2d 546 (2004).
8
single detachment petition was permitted. Given the
ambiguity, the majority decided that it “must consider the
object of the statute and apply a reasonable construction
that is logical and best accomplishes the HRCA’s purpose.”14
Acknowledging that there was “no case law that
directly addresse[d] the current situation,”15 the majority
concluded that it was “clearly unfair” to allow the use of
a single detachment petition when transferring land to
multiple townships.16 Accordingly, the Court of Appeals
denied the plaintiffs’ request for mandamus relief. The
Court of Appeals further held that the circuit court had
“implicitly” denied the plaintiffs’ request for declaratory
relief and affirmed the circuit court’s ruling denying
declaratory relief.17 The dissent disagreed with the
majority’s conclusion that the HRCA was ambiguous and noted
that the plain text of the HRCA permitted the use of a
single detachment petition to transfer land to multiple
14
Id. at 392-393.
15
Id. at 393.
16
Id. at 394.
17
Id. at 395.
9
townships. We granted leave to appeal and consolidated the
case with Fillmore Twp v Secretary of State.18
B. FILLMORE TWP V SECRETARY OF STATE
As with the territory involved in the companion case
of Casco Twp v Secretary of State, the disputed territory
in this case also has a complex history. In 1997, Fillmore
Township and the city of Holland entered into a 425
agreement through which land in Fillmore Township was to be
transferred to Holland. Pursuant to the referendum
provision in 1984 PA 425, qualified electors in Fillmore
Township filed a petition calling for a referendum on the
425 agreement with the city of Holland. The voters
ultimately defeated the 425 agreement in the referendum.
Several months after the 425 agreement was defeated,
in late 1998, landowners in Fillmore Township filed
petitions with the SBC to annex approximately 1,100 acres
to the city of Holland. The SBC approved the annexation,
thereby transferring approximately 1,100 acres from
Fillmore Township to Holland. Seeking to reverse the
annexation effected by the SBC’s decision, in February
2000, electors in Fillmore Township filed a petition with
the Secretary of State to detach the land that was
18
471 Mich. 890 (2004).
10
previously annexed. In August 2000, voters in Fillmore and
Holland defeated the detachment proposal by a vote of 3,917
to 2,614.
In October 2002, the plaintiffs submitted a single
detachment petition to the Secretary of State,19 again
hoping to detach from the city of Holland the territory
that was previously annexed from Fillmore Township. In
addition to the Fillmore Township-city of Holland
detachment, however, the petition also included three
smaller detachments by which land would be detached from
the city of Holland and added to Laketown Township, Park
Township, and Holland Charter Township. Because the HRCA
provides that “the whole of each city, village, or
township” to be affected by the detachment is entitled to
vote,20 by adding the additional three townships to the
single detachment petition, the voting base for the
detachment election was greatly expanded.
The following table summarizes the acreage to be
transferred by the detachment and the number of voters that
19
Certification by the Secretary of State was required
under § 11 of the HRCA because the city of Holland is
situated in both Ottawa County and Allegan County.
20
MCL 117.9 (emphasis added).
11
would be added to the voting base by including each
additional township in the single detachment petition:21
Municipality Acres To Be Registered Voters
Received from (as of November
the Detachment 2002)
City of Holland ----- 19,771
Fillmore Township 1,054 1,854
Laketown Township 0.77 4,166
Holland Charter Township 3.33 15,221
Park Township 1.27 11,989
Thus, by including the three additional townships and
detaching only an extra 5.37 acres, the voting base of the
district to be affected would be expanded by an additional
31,376 voters over what the voting base would be if only
Fillmore Township and the city of Holland were involved.
In November 2002, the Secretary of State refused to
certify the detachment petition, relying on the September
2002 decision by the circuit court disallowing the use of a
single detachment petition in Casco Twp. In response to
21
See brief of city of Holland at 9-10.
12
the Secretary of State’s refusal to certify the petition,
the plaintiffs filed an original mandamus action in the
Court of Appeals seeking to have the Court order the
Secretary of State to certify the petition and schedule an
election. The Court of Appeals ordered that the
plaintiffs’ case be held in abeyance pending its resolution
of Casco Twp. In March 2004, the Court of Appeals issued
its opinion in Casco Twp, affirming the circuit court’s
decision disallowing the use of a single detachment
petition. Citing its opinion in Casco Twp, the Court of
Appeals then denied the plaintiffs mandamus relief by order
in May 2004.22 We granted leave to appeal and consolidated
the case with Casco Twp v Secretary of State.23
II. Standard of Review
Whether the HRCA permits the use of a single
detachment petition to transfer land to multiple townships
is a matter of statutory interpretation, which is a
question of law that is reviewed by this Court de novo.24
22
Fillmore Twp v Secretary of State, unpublished order
of the Court of Appeals, entered May 6, 2004 (Docket No.
245640).
23
471 Mich. 890 (2004).
24
Mann v St Clair Co Rd Comm, 470 Mich. 347, 350; 681
NW2d 653 (2004); Peden v Detroit, 470 Mich. 195, 200; 680
NW2d 857 (2004); Gladych v New Family Homes, Inc, 468 Mich
(continued…)
13
The constitutionality of the HRCA’s detachment procedure is
also a question of law that is subject to review de novo.25
This Court reviews a lower court’s decision regarding a
request for mandamus relief for an abuse of discretion.26
III. ANALYSIS
A. THE HRCA AND THE SINGLE DETACHMENT PROCEDURE
1.HISTORY OF THE HRCA
The HRCA, enacted in 1909, is an intricate statute
that has been amended in piecemeal fashion numerous times
over the past century. Before the enactment of the HRCA,
the Legislature directly enacted municipal boundary changes
on a case-by-case basis through special legislation.
Delegates to the 1907-1908 constitutional convention
recognized the substantial burden this process imposed, as
well as the confusion that resulted from hundreds of pieces
(…continued)
594, 597; 664 NW2d 705 (2003); Silver Creek Drain Dist v
Extrusions Div, Inc, 468 Mich. 367, 373; 663 NW2d 436
(2003).
25
Taxpayers of Michigan Against Casinos v Michigan,
471 Mich. 306, 317-318; 685 NW2d 221 (2004); Wayne Co v
Hathcock, 471 Mich. 445, 455; 684 NW2d 765 (2004); DeRose v
DeRose, 469 Mich. 320, 326; 666 NW2d 636 (2003).
26
Baraga Co v State Tax Comm, 466 Mich. 264, 268-269;
645 NW2d 13 (2002); In re MCI Telecom Complaint, 460 Mich.
396, 443; 596 NW2d 164 (1999).
14
of such special legislation. The convention’s Address to
the People stated:
One of the greatest evils brought to the
attention of the Convention was the abuse
practiced under local and special
legislation. The number of local and special
bills passed by the last legislature was four
hundred fourteen, not including joint and
concurrent resolutions. The time devoted to
the consideration of these measures and the
time required in their passage through the
two houses imposed a serious burden upon the
state. This section [prohibiting the
enactment of special acts when a general act
can be made applicable], taken in connection
with the increased powers of local self­
government granted to cities and villages in
the revision, seeks to effectively remedy
such condition. . . . The evils of local and
special legislation have grown to be almost
intolerable, introducing uncertainty and
confusion into the laws, and consuming the
time and energy of the legislature which
should be devoted to the consideration of
measures of a general character. By
eliminating this mass of legislation, the
work of the legislature will be greatly
simplified and improved.[27]
27
2 Proceedings & Debates, Constitutional Convention
1907, pp 1422-1423 (emphasis in original). In their
Address to the People, the delegates were referring to
Const 1908, art 5, § 30, which provided:
The legislature shall pass no local or
special act in any case where a general act can
be made applicable, and whether a general act can
be made applicable shall be a judicial question.
No local or special act, excepting acts repealing
local or special acts in effect January 1, 1909
and receiving a 2/3 vote of the legislature shall
take effect until approved by a majority of the
electors voting thereon in the district to be
affected.
15
Based on this overwhelming dissatisfaction with
special legislation as a means to adjust municipal
boundaries, delegates to the 1907-1908 constitutional
convention debated whether to direct the Legislature to
enact a general municipal boundary statute that would
provide a framework for all future municipal boundary
changes. The delegates proposed, and the people of
Michigan eventually ratified, Const 1908, art 8, § 20,
which provided:
The legislature shall provide by a general
law for the incorporation of cities, and by a
general law for the incorporation of villages
. . . .
With art 8, § 20 as a constitutional mandate, the
Legislature enacted the HRCA the following year in order to
establish a comprehensive, standardized procedure for
initiating and approving all changes to municipal
boundaries, including incorporations, annexations,
detachments, and consolidations.28
2. RELEVANT PROVISIONS OF THE HRCA
As the majority correctly notes, three provisions of
the HRCA are directly relevant in the present case. The
28
The substance of Const 1908, art 8, § 20 was carried
forward into our current Constitution as Const 1963, art 7,
§ 21.
16
detachment process is specifically authorized by § 6 of the
HRCA, which provides:
Cities may be incorporated or territory
detached therefrom or added thereto, or
consolidation made of 2 or more cities or
villages into 1 city, or of a city and 1 or
more villages into 1 city, or of 1 or more
cities or villages together with additional
territory not included within any
incorporated city or village into 1 city, by
proceedings originating by petition therefor
signed by qualified electors who are
freeholders residing within the cities,
villages, or townships to be affected thereby
. . . .[29]
However, because both the city of Richmond and the city of
Holland are located in more than one county, rather than
filing their detachment petitions with the county under §
6, plaintiffs in both cases were required to file their
petitions with the Secretary of State pursuant to § 11 of
the HRCA. At the time of the present lawsuits, § 11
provided:
When the territory to be affected by any
proposed incorporation, consolidation, or
change is situated in more than 1 county the
petition hereinbefore provided shall be
addressed and presented to the secretary of
state, with 1 or more affidavits attached
thereto sworn to by 1 or more of the signers
of said petition, showing that the statements
contained in said petition are true, that
each signature affixed thereto is the genuine
signature of a qualified elector residing in
a city, village, or township to be affected
29
MCL 117.6 (emphasis added).
17
by the carrying out of the purposes of the
petition and that not less than 25 or such
signers reside in each city, village or
township to be affected thereby. The
secretary of state shall examine such
petition and the affidavit or affidavits
annexed, and if he shall find that the same
conforms to the provisions of this act he
shall so certify, and transmit a certified
copy of said petition and the accompanying
affidavit or affidavits to the clerk of each
city, village or township to be affected by
the carrying out of the purposes of such
petition, together with his certificate as
above provided, and a notice directing that
at the next general election occurring not
less than 40 days thereafter the question of
making the incorporation, consolidation or
change of boundaries petitioned for, shall be
submitted to the electors of the district to
be affected, and if no general election is to
be held within 90 days the resolution may fix
a date preceding the next general election
for a special election on the question. If he
shall find that said petition and the
affidavit or affidavits annexed thereto do
not conform to the provisions of this act he
shall certify to that fact, and return said
petition and affidavits to the person from
whom they were received, together with such
certificate. The several city, village and
township clerks who shall receive from the
secretary of state the copies and
certificates above provided for shall give
notice of the election to be held on the
question of making the proposed
incorporation, consolidation or change of
boundaries as provided for in section 10 of
this act.[30]
30
MCL 117.11 (emphasis added). Effective January 1,
2005, § 11 was amended. None of the amendments is material
to the resolution of the present cases.
18
Lastly, the phrase “district to be affected,” as used
in § 11, is defined by § 9 of the HRCA:
The district to be affected by the
proposed incorporation, consolidation, or
change of boundaries is considered to include
the whole of each city, village, or township
from which territory is to be taken or to
which territory is to be annexed.[31]
3. PRINCIPLES OF STATUTORY INTERPRETATION
When interpreting a statute, a court’s duty is to give
effect to the intent of the Legislature based on the actual
words used in the statute.32 If the statutory language is
clear and unambiguous, no further construction is necessary
or permitted.33 The statute is enforced as written.34 It
is the duty of the judiciary to interpret, not write, the
law.35
31
MCL 117.9(1) (emphasis added).
32
Shinholster v Annapolis Hosp, 471 Mich. 540, 548-549;
685 NW2d 275 (2004).
33
Lansing Mayor v Pub Service Comm, 470 Mich. 154, 157;
680 NW2d 840 (2004); In re MCI, supra at 411.
34
Stanton v Battle Creek, 466 Mich. 611, 615; 647 NW2d
508 (2002); Huggett v Dep’t of Natural Resources, 464 Mich.
711, 717; 629 NW2d 915 (2001); Anzaldua v Band, 457 Mich.
530, 535; 578 NW2d 306 (1998); Sanders v Delton Kellogg
Schools, 453 Mich. 483, 487; 556 NW2d 467 (1996).
35
Koontz v Ameritech Services, Inc, 466 Mich. 304, 312;
645 NW2d 34 (2002); State Farm Fire & Cas Co v Old Republic
Ins Co, 466 Mich. 142, 146; 644 NW2d 715 (2002).
19
In Lansing Mayor v Pub Service Comm, this Court
repudiated prior case law that held that a statute is
ambiguous if it is susceptible to more than one meaning or
if “reasonable minds can differ” regarding the statute’s
meaning.36 Instead, as this Court stated in Lansing Mayor,
a statutory provision is ambiguous only if it
“‘irreconcilably conflict[s]’ with another provision, or
when it is equally susceptible to more than a single
meaning.”37 In ascertaining whether an ambiguity exists,
therefore, a court must employ conventional rules of
construction and “give effect to every word, phrase, and
clause in a statute.”38
4. THE PLAIN TEXT OF THE HRCA PERMITS THE USE
OF ASINGLE DETACHMENT PETITION TO TRANSFER LAND TO
MULTIPLE TOWNSHIPS
At its core, the Court of Appeals opinion in Casco Twp
represents a deliberate decision to subordinate the actual
text of the HRCA in favor of the Court of Appeals’ own
abstract notions of fairness and justice. By choosing to
give meaning to only some of the words in the HRCA and
ignoring others, the Court of Appeals substituted its
36
Lansing Mayor, supra at 165.
37
Id. at 166 (emphasis in original; citation omitted).
38
Id. at 165, 168; Koontz, supra at 312.
20
conception of “fairness” for the policy determination made
by the Legislature in writing the HRCA.39 While this à la
carte method of statutory interpretation that focuses only
on certain words in a statute is extraordinarily effective
at allowing a court to reach a conclusion that it views as
“fair” or “just,” it is an affront to the separation of
powers principle. As this Court has stated numerous times,
it is the duty of the judiciary to effectuate the intent of
the Legislature by giving effect to every “word, phrase,
and clause in a statute.”40
39
The Court of Appeals opinion is replete with
references to “fairness,” “injustice,” “prejudice,” and
“absurd results.” Casco Twp, supra, 261 Mich App at 391,
394. The Court of Appeals stated, “In simple terms, it is
clearly unfair that citizens of one township be allowed to
vote on issues that affect another township. Indeed, the
townships’ combined voting strength could be used to
overwhelm the city’s voting strength.” Id. at 394.
Appellees also rely on vague notions of “fairness” and
“justice” in support of their position. See Winkle brief
at 17 (permitting a multiple-township detachment would lead
to “absurd results which create injustice”); Secretary of
State brief at 35 (“‘[p]ublic policy requires that statutes
controlling the manner in which elections are conducted be
construed as fair as possible’”); City of Holland brief at
20 (a multiple-township detachment is “one of the most
egregious examples of . . . inherent mischief”).
40
Lansing Mayor, supra at 168; Koontz, supra at 312;
Wickens v Oakwood Healthcare Sys, 465 Mich. 53, 60; 631 NW2d
686 (2001).
21
A close analysis of the text of the HRCA demonstrates
that the statute is not ambiguous and that a single
detachment petition may be used to detach land from a city
and add it to multiple townships. Although the majority
focuses extensively on § 9 of the HRCA,41 the majority
notably fails to give full effect to the Legislature’s use
of the word “each” in § 9.
The section of the HRCA under which plaintiffs filed
their petitions, § 11, provides that “the question of
making the incorporation, consolidation or change of
boundaries petitioned for, shall be submitted to the
electors of the district to be affected . . . .”42 Under
§ 9, the HRCA defines “the district to be affected” as
“includ[ing] the whole of each city, village, or township
from which territory is to be taken or to which territory
is to be annexed.”43 By defining “the district to be
affected” as including the whole of “each” city, village,
or township, the Legislature contemplated that “the
district to be affected” could include multiple townships
in a detachment proceeding.
41
Ante at 8.
42
MCL 117.11 (emphasis added).
43
MCL 117.9 (emphasis added).
22
The word “each” is not defined in the HRCA. Pursuant
to MCL 8.3a, undefined statutory terms are to be given
their plain and ordinary meaning, unless, of course, the
undefined word is a term of art.44 Because “each” is not a
term of art, this Court must therefore give the word its
plain meaning. As this Court stated in Horace v City of
Pontiac,45 “[w]hen considering a nonlegal word or phrase
that is not defined within a statute, resort to a layman's
dictionary . . . is appropriate.”46 Moreover, it is
appropriate to use a dictionary from the period
contemporaneous to the statute’s enactment in order to give
44
MCL 8.3a provides:
All words and phrases shall be construed and
understood according to the common and approved
usage of the language; but technical words and
phrases, and such as may have acquired a peculiar
and appropriate meaning in the law, shall be
construed and understood according to such
peculiar and appropriate meaning.
See also Cox v Flint Bd of Hosp Managers, 467 Mich. 1, 18;
651 NW2d 356 (2002); Koontz, supra at 312; Donajkowski v
Alpena Power Co, 460 Mich. 243, 248-249; 596 NW2d 574
(1999).
45
456 Mich. 744; 575 NW2d 762 (1998).
46
Id. at 756; see also Halloran v Bhan, 470 Mich. 572,
578; 683 NW2d 129 (2004); People v Jones, 467 Mich. 301,
304; 651 NW2d 906 (2002); Stokes v Millen Roofing Co, 466
Mich. 660, 665; 649 NW2d 371 (2002); Robinson v Detroit, 462
Mich. 439, 456 n 13; 613 NW2d 307 (2000); Consumers Power Co
v Pub Service Comm, 460 Mich. 148, 163; 596 NW2d 126 (1999).
23
full effect to the intent of the Legislature that enacted
the statute.47
Although the HRCA has been amended frequently over the
past century, the relevant provisions of §§ 9 and 11 have
remained unchanged in the HRCA since 1909, the year the
HRCA was originally enacted. The word “each” is defined by
The New American Encyclopedic Dictionary as “every one of a
number considered separately, all.”48 The Century
Dictionary defines “each” as “Being either or any unit of a
numerical aggregate consisting of two or more,
indefinitely.”49 Funk & Wagnalls New Standard Dictionary of
the English Language defines “each” as “Being one of two or
more . . . Every one of any number or aggregation. . . .”50
47
Cain v Waste Management, Inc (After Remand), 472
Mich. 236, 247; ____ NW2d ____ (2005); see also Title
Office, Inc v Van Buren Co Treasurer, 469 Mich. 516, 522;
676 NW2d 207 (2004). Writing for the Court in Title
Office, Justice Cavanagh noted that, in construing the word
“transcript” in the 1895 Transcripts and Abstracts of
Records Act (TARA), it was proper for the Court to consult
a dictionary in use “[a]t the time of enactment of [the]
TARA.” Id. (emphasis added).
48
The New American Encyclopedic Dictionary, p 1575
(1907) (emphasis added).
49
The Century Dictionary: An Encyclopedic Lexicon of
the English Language, p 1813 (1906) (emphasis added).
50
Funk & Wagnalls New Standard Dictionary of the
English Language, p 779 (1913) (emphasis added).
24
It is clear, therefore, that the word “each,” as used
in 1909, means “all” and “every,” and plainly encompasses
multiple entities. Indeed, by using “each” in § 9, the
Legislature effectively said, as a definitional matter,
that “the district to be affected” is to be comprised of
“all” or “every” city, village, or township affected by the
boundary change. The “district” is not limited to a
predetermined number, but rather includes every municipal
entity from which territory is to be taken or to which
territory is to be added. Thus, while “the district to be
affected” can certainly contain just two municipal
entities, it can also include more than two entities.51
Defendants argue that the Legislature’s use of the
word “each” is not determinative because, by using “each,”
the Legislature was simply referring to the two municipal
entities that necessarily must be involved in any
detachment proceeding: the city that will lose the land
51
The Legislature’s use of the word “each” was not
limited solely to § 9 and the definition of “the district
to be affected.” For example, the same provision under
which plaintiffs filed their petitions, § 11, directly
states that the Secretary of State shall transmit a
certified copy of the petition to “each city, village or
township to be affected by the carrying out of the purposes
of such petition . . . .” MCL 117.11 (emphasis added).
25
and the township that will gain the land.52 Defendants’
argument is unpersuasive. Had the Legislature intended
“each” to refer only to the two sides involved in a typical
detachment proceeding—the donor city and the recipient
township—and not to multiple recipient townships, the
Legislature would have used the word “both,” not “each.”53
The Legislature, however, did not limit “the district to be
affected” to only two municipal entities by using the word
“both.” Instead, it deliberately used the distributive
adjective “each,” thereby referring to every municipality
affected. It is only by assuming that “each” refers
exclusively to the donor and recipient municipalities in a
conventional detachment proceeding that the majority
position may be sustained. There is no textual basis for
52
The majority makes a similar, though more general,
argument. It notes that a reading of the HRCA “contrary”
to its own “belies the fact that there will always be two
parties to a detachment—the city and the township.” Ante
at 12 (emphasis in original). Conspicuously, the majority
neglects to give meaning to the Legislature’s use of the
word “each.”
53
The New American Encyclopedic Dictionary, p 580
(1907) defines “both” as “two taken together” and The
Century Dictionary: An Encyclopedic Lexicon of the English
Language, p 636 (1906) defines “both” as “The one and the
other; the two; the pair or the couple, in reference to two
persons or things . . . .”
26
making this assumption or otherwise limiting the customary
meaning of “each.”54
54
Further examination of the text of § 11 demonstrates
that a single detachment petition may be used to transfer
land to multiple townships. For example, § 11 states, “The
several city, village and township clerks who shall receive
from the secretary of state the copies and certificates
above provided shall give notice of the election to be held
. . . .” The word “several” is defined by The New American
Encyclopedic Dictionary (1907) as “Consisting of a number;
more than two.” The use of “several,” therefore, also
indicates that the Legislature envisioned a situation under
which a single detachment petition could be used to
transfer land to multiple townships. While it is true that
“several” can also mean “separate” or “individual”—e.g.,
“they go their several ways”—such a meaning exists only in
the context of a plurality. “Several” only indicates
“individual” or “separate” if there is a larger collective
whole to begin with.
At oral argument, defense counsel conceded that the
word “several,” as used in the HRCA, means “more than a
couple.”
Justice Young: I’m asking you to look at
section 11 that refers near the end: “The
several city, village and township clerks who
shall receive from the Secretary of State copies
of the certificates.” I’m looking at the term
“several” there. Does that not indicate at least
the potential for multiple—
Counsel: Well again we go to kind of the
dictionary look at the definition and “several”
can mean one individual.
Justice Young: Really?
Counsel: I’m sorry, you’re talking about a
city, village or –
Justice Young: Doesn’t “several” mean more
than a couple?
(continued…)
27
This construction of the HRCA is bolstered by the fact
that, throughout § 11, the words “petition” and “election”
are used in the singular even though the words “each” and
“several” are used in the same sentences when modifying
“city, village or township.” For example, § 11 states that
the Secretary of State must transmit “a certified copy of
said petition . . . to the clerk of each city, village or
township to be affected by the carrying out of the purposes
of such petition . . . .”55 Section 11 further provides
that “[t]he several city, village and township clerks . . .
shall give notice of the election to be held . . . .”56
While it is true that MCL 8.3b states that, in construing
statutes, “[e]very word importing the singular number only
(…continued)
Counsel: Yes.
55
MCL 117.11 (emphasis added). The word “petition” is
used in the singular three other times in § 11:
The secretary of state shall examine such
petition and the affidavit or affidavits annexed
. . . . If he shall find that said petition and
the affidavit or affidavits annexed thereto do
not conform to the provisions of this act he
shall certify to that fact, and return said
petition and affidavits to the person from whom
they were received . . . . [Id. (emphasis
added).]
56
Id. (emphasis added).
28
may extend to and embrace the plural number,” it is
important to remember that MCL 8.3b is permissive, not
mandatory. MCL 8.3b states only that the singular “may”
extend to the plural.
This Court addressed MCL 8.3b in Robinson, in which we
construed the phrase “the proximate cause” within the
context of the governmental immunity statute.57 As we noted
in Robinson, MCL 8.3b "only states that a word importing
the singular number ‘may extend’ to the plural. The
statute does not say that such an automatic understanding
is required.”58 We went on to hold that MCL 8.3 “provides
that the rule stated in § 3b shall be observed ‘unless such
57
MCL 691.1407(2) provides:
Except as otherwise provided in this
section, and without regard to the
discretionary or ministerial nature of the
conduct in question, each officer and
employee of a governmental agency . . . is
immune from tort liability for an injury to a
person or damage to property caused by the
officer, employee, or member while in the
course of employment or service . . . if all
of the following are met:
* * *
(c) The officer's, employee's, member's,
or volunteer's conduct does not amount to
gross negligence that is the proximate cause
of the injury or damage. [Emphasis added.]
58
Robinson, supra at 461 n 18.
29
construction would be inconsistent with the manifest intent
of the Legislature.’”59 This Court concluded that because
the Legislature chose to use the definite article “the”
within the phrase “the proximate cause,” it “clearly
evince[d] an intent to focus on one cause.”60
The same is true in the present case. In § 11, the
Legislature consistently referred to “petition” in the
singular and used the phrase “the election.” There is no
principled basis by which to say that “the” means “one” in
Robinson, but “the” does not mean “one” when referring to
“the election” mandated by § 11.
Taken together, all of these textual clues demonstrate
that the HRCA permits the use of a single detachment
petition and election when transferring land to more than
one township. Unlike the majority, which focuses only on
select words in the HRCA, I believe that this Court is
obligated to give effect to every word the Legislature used
in writing the HRCA. I would hold, therefore, that the
Court of Appeals erred in finding that the HRCA is
ambiguous. No provision of the HRCA conflicts,
irreconcilably or otherwise, with any other provision of
59
Id.
60
Id. at 458-459 (emphasis added).
30
the HRCA. Nor is the HRCA equally susceptible to more than
a single meaning. A plain reading of §§ 9 and 11
demonstrates that the procedure used by plaintiffs in the
present cases is permissible under the HRCA.
The majority casually dismisses this Court’s decision
in Walsh v Secretary of State,61 which explicitly recognized
and permitted a single petition for a multiple–municipality
annexation under the HRCA. In Walsh, we examined §§ 9 and
11 of the HRCA. The case involved an annexation by the
city of Lansing in which it sought to acquire four parcels
of land from Lansing Township and one parcel situated in
both Lansing Township and Delta Township. A single
petition was filed with the Secretary of State for this
multiple-township annexation. Although voters in the city
of Lansing and Lansing Township approved the annexation,
voters in Delta Township did not.
The plaintiffs in Walsh argued that the annexation
attempt was divisible and that we should approve the
annexation of the parcels in Lansing Township, given that
the Lansing Township voters approved the annexation. This
Court disagreed. We held that the annexation was a
“package proposition” and that, under the vote tabulation
61
355 Mich. 570; 95 NW2d 511 (1959).
31
provisions of § 9 in effect at the time, if any one of the
“voting units” voted against the proposal, the whole
proposal failed.62
While it is true that Walsh involved an analogous
annexation rather than a detachment, and that the primary
focus in Walsh was on the vote tabulation provisions of the
HRCA, not the definition of “district to be affected,” this
Court accepted the use of a single “package” petition even
though the land that was to be annexed consisted of five
distinct parcels in two separate townships. Accordingly,
the single petition procedure used by plaintiffs in the
present cases is not “novel” as defendants contend.
Indeed, as Walsh demonstrates, this Court’s own case law
has countenanced the use of such a procedure under the HRCA
in the closely analogous annexation context.
5. THE MAJORITY’S RELIANCE ON THE HRCA’S “QUALIFIED
ELECTOR” REQUIREMENT AND THE ELECTION CODE IS MISPLACED
The majority bases its holding primarily on the
“qualified elector” requirement in §§ 6 and 11 of the
HRCA.63 Section 6 provides that detachment proceedings must
be initiated by
62
Id. at 574.
63
Ante at 6-7.
32
proceedings originating by petition therefor
signed by qualified electors who are
freeholders residing within the cities,
villages, or townships to be affected thereby
. . . .[64]
Section 11 requires affidavits showing that
each signature affixed [to the petition] is
the genuine signature of a qualified elector
residing in a city, village or township to be
affected by the carrying out of the purposes
of the petition and that not less than 25 of
such signers reside in each city, village or
township to be affected thereby.[65]
The majority concludes that any multiple-township petition
always violates the “qualified elector" rule because a
signatory who is a qualified elector of township A is
obviously not a qualified elector of township B, in that
the signatory is not a resident of the territory “to be
affected” in township B.
The majority’s analysis is flawed. The “qualified
elector” provision of § 11 merely requires that each
signatory be a qualified elector of “a” city, village, or
township affected by the detachment and that there be at
least twenty-five signatures from “each” municipality
affected. It is uncontested in the present cases that at
least twenty-five qualified electors from each city and
64
MCL 117.6 (emphasis added).
65
MCL 117.11 (emphasis added).
33
township involved signed the petitions.66 What the
majority’s argument is actually advancing is the unstated
predicate point that the “district to be affected” cannot
encompass more than one township. However, because the
Legislature has permitted the “district to be affected” to
include multiple townships, as the textual analysis above
and the Walsh case demonstrate, then every township that is
bundled into the single petition is necessarily “affected”
within the meaning of the “qualified voter” provision in §
11.67
The majority’s reliance on § 643a in the Michigan
Election Law, MCL 168.643a, is also misplaced.68 While it
is true that § 643a requires electoral questions to be
submitted to voters in a “yes or no” format, there is no
66
Similarly, § 6 simply requires that the signatories
be qualified electors of “the cities, villages, or
townships to be affected thereby.” The Legislature
conspicuously referred to the municipalities in the plural.
67
The majority also relies on MCL 117.13, which
states, “Territory detached from any city shall thereupon
become a part of the township or village from which it was
originally taken . . . .” Ante at 9. Contrary to the
majority’s assertion, this language does not prohibit the
use of a single detachment petition involving multiple
townships. It merely delineates which municipality will
control the territory after the detachment is effectuated.
The language of § 13 applies with equal force if multiple
townships are involved in a single detachment proceeding.
68
Ante at 10-11.
34
reason why a single detachment petition and referendum
involving multiple townships violates this requirement.
Indeed, that was the exact situation in Walsh, which held
that the multiple-township annexation was a “package”
proposition and not divisible.
In fact, the precise case that the majority cites for
its § 643a rationale–Muskegon Pub Schools v Vander Laan69–
involved a multiple-issue proposal that was put to the
voters in a single “yes or no” format and upheld by this
Court. In Vander Laan, a school district bundled bonding
proposals for three separate school buildings into a single
question to be submitted to the voters. This Court
unanimously approved the use of the multiple-issue
proposal.70 Although the Vander Laan Court acknowledged the
rule established in other jurisdictions that “[s]eparate
subjects, separate purposes, or independent propositions
should not be combined [in a single electoral question] so
that one may gather votes for the other,” it noted that
there was no statutory basis for the rule in Michigan.71
Nevertheless, the Vander Laan Court still imposed a
69
211 Mich. 85; 178 N.W. 424 (1920).
70
Id. at 88-89.
71
Id. at 87.
35
“separate subjects” rule and ultimately upheld the
multiple-issue proposal because it “was characterized by
one common purpose . . . .”72
I question the majority’s reliance on Vander Laan when
the Vander Laan Court itself noted that there was no
statutory basis for the “separate subjects” electoral rule
that it recognized. Rather than rely on a judicially
created rule that was premised on policy concerns in an
unrelated area, I prefer to base my analysis of the
multiple-township detachment procedure on the actual text
of the HRCA. However, to the extent that Vander Laan—a
case that did not even involve the HRCA—is controlling in
the present cases, I believe that the multiple-township
detachments are in accord with its holding because the
detachments are united by a “common purpose.”
6. DEFENDANTS’ REMAINING ARGUMENTS
Defendants argue that to construe the HRCA so as to
permit a single, multiple-township petition would lead to
“absurd results.” However, in People v McIntire,73 this
Court rejected the absurd results “rule” of construction,
noting that its invocation is usually “‘an invitation to
72
Id. at 88.
73
461 Mich. 147; 599 NW2d 102 (1999).
36
judicial lawmaking.’”74 It is not the role of this Court to
rewrite the law so that its resulting policy is more
“logical,” or perhaps palatable, to a particular party or
the Court. It is our constitutional role to give effect to
the intent of the Legislature by enforcing the statute as
written.75 What defendants in these cases (or any other
case) may view as “absurd” reflects an actual policy choice
adopted by a majority of the Legislature and approved by
the Governor. If defendants prefer an alternative policy
choice, the proper forum is the Legislature, not this
Court. After all, the Legislature has shown little
reluctance in amending the HRCA over the past century.
The defendants in Fillmore Twp also argue that if the
detachment of 1.27 acres from the city of Holland for
addition to Park Township is permitted, it would violate
the “contiguity” rule articulated by this Court in Genesee
Twp v Genesee Co,76 a case involving an annexation of land
74
McIntire, supra at 156 n 2, quoting Scalia, A Matter
of Interpretation: Federal Courts and the Law (New Jersey:
Princeton University Press, 1997), p 21.
75
See People v Javens, 469 Mich. 1032, 1033 (2004)
(Young, J., concurring). The exception, of course, is if
the statute is unconstitutional.
76
369 Mich. 592; 120 NW2d 759 (1963).
37
from Genesee Township to the city of Mt. Morris. In
Genesee Twp, this Court stated:
“So, as to territorial extent, the idea of
a city is one of unity, not of plurality; of
compactness or contiguity, not separation or
segregation. Contiguity is generally required
even in the absence of statutory requirement
to that effect, and where the annexation is
left in the discretion of a judicial
tribunal, contiguity will be required as a
matter of law.”[77]
Recognizing that the requirement of contiguity was not
“covered by any specific provision of the [HRCA],” the
Court in Genesee Twp instead based its holding on non­
textual policy grounds: “the purpose sought to be served
[by the HRCA] and the practical aspects of annexation
. . . .”78
However, this Court revisited the contiguity rule
eight years later in Owosso Twp v City of Owosso.79 We
specifically stated in Owosso that “the judicial
requirement of ‘contiguity’” articulated in Genesee Twp had
been “superseded” when the Legislature amended § 9 of the
77
Id. at 603, quoting 37 Am Jur, Municipal
Corporations, § 27, pp 644-645.
78
Id. at 602.
79
385 Mich. 587; 189 NW2d 421 (1971).
38
HRCA in 1970.80 We found that the “substantive standards”
established by the Legislature when it amended § 9 clearly
displaced the court-made contiguity rule.81 Defendants in
the present cases would apparently have this Court ignore
the legislative intent of § 9 and resuscitate the
judicially created contiguity rule in the HRCA context. I
would decline the invitation.
7. CONSTITUTIONALITY OF THE HRCA
Because I believe that the HRCA permits the use of a
single detachment petition involving multiple townships, it
is necessary to determine whether the HRCA’s authorization
of such a procedure is constitutional. Defendants,
particularly those in Fillmore Twp, contend that bundling
numerous townships into a single petition and referendum
unconstitutionally dilutes the vote of city residents.82
80
Id. at 588-590.
81
Id. at 590. The Court of Appeals elaborated on this
point in Bloomfield Charter Twp v Oakland Co Clerk, 253
Mich. App. 1, 34; 654 NW2d 610 (2002).
82
It is worth noting that these consolidated cases do
not involve any allegations of discrimination, or the
impairment of voting rights, on the basis of race or any
other suspect classification. See, e.g., Gerken,
Understanding the right to an undiluted vote, 114 Harv L R
1663 (2001). The sole issue of contention here is one of
pure numerical vote dilution. Defendants claim that too
many township voters would be included in the voting base
(continued…)
39
Defendants argue that such vote dilution is prohibited
under the Equal Protection Clause of US Const, Am XIV.83
(…continued)
if these referenda are allowed to proceed, to the extent
that city voters would no longer have a meaningful vote.
83
While defendants allege violations of both the
federal and state equal protection clauses, they base their
vote dilution argument almost entirely on federal case law.
They cite no Michigan cases analyzing vote dilution under
Const 1963, art 1, § 2. Instead, defendants simply state
in their brief that “Michigan courts interpret the state
equal protection clause similarly to the Fourteenth
Amendment.” City of Holland brief at 39.
It is important to note that the text of our state
Equal Protection Clause is not entirely the same as its
federal counterpart:
US Const, Am XIV provides in pertinent part:
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws. [Emphasis added.]
Const 1963, art 1, § 2 provides:
No person shall be denied the equal
protection of the laws; nor shall any person be
denied the enjoyment of his civil or political
rights or be discriminated against in the
exercise thereof because of religion, race, color
or national origin. The legislature shall
implement this section by appropriate
legislation.
See also Lind v Battle Creek, 470 Mich. 230, 234-235; 681
NW2d 334 (2004) (Young, J., concurring).
(continued…)
40
Given the facts surrounding defendants’ vote dilution
claim, it is easy to understand their argument. As
discussed in part I(B) of this opinion, it is obvious, for
example, that the plaintiffs in Fillmore Twp deliberately
included the three additional townships—Laketown, Holland
Charter, and Park—as a means to equalize the voting
disparity between the city of Holland and Fillmore
(…continued)
Therefore, it is insufficient for defendants to rely
solely on federal case law regarding vote dilution, or
Michigan cases interpreting the federal Equal Protection
Clause, and then boldly announce that Const 1963, art 1, §
2 provides the same protections against vote dilution as US
Const, Am XIV.
Because defendants have failed to address vote
dilution directly under Const 1963, art 1, § 2, I decline
to examine the issue. As this Court stated in Mitcham v
Detroit, 355 Mich. 182, 203; 94 NW2d 388 (1959):
It is not enough for an appellant in his
brief simply to announce a position or assert an
error and then leave it up to this Court to
discover and rationalize the basis for his
claims, or unravel and elaborate for him his
arguments, and then search for authority either
to sustain or reject his position. The appellant
himself must first adequately prime the pump;
only then does the appellate well begin to flow.
Moreover, the constitutional provision upon which
defendants base their argument, Const 1963, art 1, § 2, was
not relied on by the Court of Appeals. It was Const 1963,
art 1, § 1 that the Court of Appeals referenced in its
opinion. Casco Twp, supra, 261 Mich App at 394 n 27.
Accordingly, I analyze defendants’ vote dilution
argument solely under US Const, Am XIV—the issue that was
fully briefed by the parties.
41
Township. In the initial August 2000 detachment vote that
included only the city of Holland and Fillmore Township,
voters rejected the detachment by a vote of 3,917 to 2,614
(approximately sixty percent against, forty percent in
favor). Recognizing that the number of voters in the city
of Holland exceeded the number of voters in Fillmore
Township by 19,771 to 1,854, almost a 10.7 to 1 margin, the
plaintiffs bundled the three additional townships into the
petition by seeking to detach an additional 5.37 acres
(0.77 acres for Laketown Township, 3.33 acres for Holland
Charter Township, and 1.27 acres for Park Township). By
doing so, the plaintiffs were able to add an additional
31,376 township voters to the voting base of the “district
to be affected” and thereby exceed the voting base of the
city of Holland. In order to evaluate defendants’ claims
of unconstitutional vote dilution—an issue on which
Michigan courts have been relatively silent—it is necessary
to explore briefly the history of federal vote dilution law
under the Equal Protection Clause of the Fourteenth
Amendment.84
84
As an initial matter, it is important to note that
the state action requirement under Fourteenth Amendment
jurisprudence is satisfied here. Although the detachment
petitions in both cases were circulated and signed by
private citizens, the involvement of the Secretary of State
(continued…)
42
The idea of “vote dilution”85 as a cognizable
constitutional harm originated in the context of
congressional and state legislative apportionment cases.
Initially, courts refused to get involved in claims
regarding vote dilution. The issue was viewed as best left
for the political process and considered nonjusticiable.
The leading case establishing this view was the United
States Supreme Court’s decision in Colegrove v Green,86 in
(…continued)
in certifying the petitions and ordering local authorities
to hold elections is sufficient to constitute state action.
See, e.g. Ellison v Garbarino, 48 F3d 192, 195 (CA 6, 1995)
(“running elections” is a “typical example[ ]” of state
action).
85
Professor Melvyn R. Durchslag has noted:
Voter dilution cases fall into two broad
categories. First, there are those in which
dilution occurs because (1) some persons are
given votes weighted more heavily than others
similarly situated merely on the basis of
residence, (2) votes are weighted according to a
factor which the state determines is reflective
of “interest,” or (3) persons are excluded
altogether from voting because the state deems
them to be “uninterested.” Second, there are
those in which dilution occurs because equal
franchise is granted to persons allegedly without
interest, or with significantly less interest
than other voters. [Durchslag, Salyer, Ball, and
Holt: Reappraising the right to vote in terms of
political “interest” and vote dilution, 33 Case W
Res L R 1, 38-39 (1982) (emphasis in original).]
86
328 U.S. 549; 66 S. Ct. 1198; 90 L. Ed. 1432 (1946).
43
which voters challenged the Illinois congressional
districting scheme because several of the districts were
comprised of larger populations than others. Stating that
the harm was one to “Illinois as a polity” and not a
private wrong, the Court refused to intervene.87 In
rejecting the notion that the Court should get involved in
what it viewed as a political question, Justice Frankfurter
wrote that “[c]ourts ought not to enter this political
thicket.”88 He went on to note:
The remedy for unfairness in districting
is to secure State legislatures that will
apportion properly, or to invoke the ample
powers of Congress. . . . The Constitution
has left the performance of many duties in
our governmental scheme to depend on the
fidelity of the executive and legislative
action and, ultimately, on the vigilance of
the people in exercising their political
rights.[89]
However, approximately fifteen years after Colegrove,
the Supreme Court reversed course in the landmark case of
Baker v Carr.90 In Baker, the Court was presented with a
constitutional challenge to the apportionment of the
87
Id. at 552.
88
Id. at 556.
89
Id.
90
369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d 663 (1962).
44
Tennessee General Assembly. Despite significant
demographic shifts that occurred within Tennessee, the
state had not reapportioned its legislative districts in
over sixty years. Voters filed suit and claimed that, in
light of the drastic change in population, the state’s
failure to reapportion the General Assembly amounted to a
violation of their equal protection rights under the
Fourteenth Amendment.
The Court rejected the “political question” rationale
used in Colegrove and held that the issue presented by the
voters was justiciable. Justice Brennan, writing for the
Court, stated that “the mere fact that the suit seeks
protection of a political right does not mean it presents a
political question.”91 The Court went on to hold that the
Equal Protection Clause provided a proper vehicle by which
to challenge the Tennessee apportionment system.92 In its
91
Id. at 209.
92
Id. at 237. Commentators have questioned the
Supreme Court’s reliance on the Equal Protection Clause in
Baker, suggesting, instead, that the Republican Form of
Government Clause, US Const, art IV, § 4, would have been
more appropriate. As Judge Michael W. McConnell has
written:
A districting scheme so malapportioned that
a minority faction is in complete control,
without regard to democratic sentiment, violates
the basic norms of republican government. It
(continued…)
45
sweeping holding, the Court did not provide any guidelines
regarding how the Equal Protection Clause should be applied
to voting rights cases nor establish any standards by which
(…continued)
would thus appear to raise a constitutional
question under Article IV, Section 4, which
states that “the United States shall guarantee to
every State in this Union a Republican Form of
Government.” Constitutional standards under the
Republican Form of Government Clause are ill­
developed, but surely a government is not
“republican” if a minority faction maintains
control, and the majority has no means of
overturning it. [McConnell, The redistricting
cases: Original mistakes and current
consequences, 24 Harv J L & Pub Policy 103, 105­
106 (2000).]
Professor Pamela S. Karlan has noted:
[T]he doctrinal move to one person, one vote
was in no sense compelled, either by precedent or
by the absence of any alternative avenues to
judicial oversight. The decision to rely on the
Equal Protection Clause, rather than on the
Guaranty Clause, has always puzzled me. Justice
William Brennan’s explanation—that there was
precedent suggesting the general
nonjusticiability of the Guaranty Clause—would
make more sense if not for the fact that there
was also absolutely square precedent refusing to
entertain malapportionment claims under the
Fourteenth Amendment [citing Colegrove]. If the
Court had to overrule some precedent to review
apportionment and the refusal to reapportion,
then why was overruling Fourteenth Amendment
precedent—and developing a unique set of equal
protection principles that apply nowhere else in
constitutional law—the superior alternative?
[Karlan, Politics by other means, 85 Va L R 1697,
1717-1718 (1999).]
46
to implement the new role for the judiciary in such cases.
Instead, the Court simply stated, “Nor need the [voters
challenging the apportionment], in order to succeed in this
action, ask the Court to enter upon policy determinations
for which judicially manageable standards are lacking.
Judicial standards under the Equal Protection Clause are
well developed and familiar . . . .”93
With Baker creating the opening, courts soon began to
wade head-high into the thicket of vote dilution claims.
93
Baker, supra at 226. In dissent, Justice
Frankfurter sharply criticized the Court for casting aside
the “political question” rationale of Colegrove. He
challenged the majority’s conclusion that courts were
equipped to handle such voting rights cases. Justice
Frankfurter stated:
The Framers carefully and with deliberate
forethought refused . . . to enthrone the
judiciary. In this situation, as in others of
like nature, appeal for relief does not belong
here. Appeal must be to an informed, civically
militant electorate. . . .
* * *
Unless judges, the judges of this Court, are
to make their private views of political wisdom
the measure of the Constitution—views which in
all honesty cannot but give the appearance, if
not reflect the reality, of involvement with the
business of partisan politics so inescapably a
part of apportionment controversies—the
Fourteenth Amendment, “itself a historical
product,” provides no guide for judicial
oversight of the representation problem. [Id. at
270, 301-302 (citation omitted).]
47
Two years after Baker, the Supreme Court decided Wesberry v
Sanders94 and Reynolds v Sims,95 which established, as a
fundamental tenet of equal protection jurisprudence, the
“one-person, one-vote” standard for congressional districts
and state legislative districts, respectively. In
Reynolds, the Court stated that “the overriding objective
must be substantial equality of population among the
various districts, so that the vote of any citizen is
approximately equal in weight to that of any other citizen
in the State.”96
The Court later made the one-person, one-vote standard
applicable to local governments in Avery v Midland Co.97 In
Avery, the Court invalidated the apportionment system for
the Commissioners Court of Midland County, Texas, because
it consisted of “single-member districts of substantially
unequal population,” which favored rural voters over city
voters.98 The Court reasoned that, because the
Commissioners Court exercised “general governmental
94
376 U.S. 1; 84 S. Ct. 526; 11 L. Ed. 2d 481 (1964).
95
377 U.S. 533; 84 S. Ct. 1362; 12 L. Ed. 2d 506 (1964).
96
Id. at 579.
97
390 U.S. 474; 88 S. Ct. 1114; 20 L. Ed. 2d 45 (1968).
98
Id. at 475-476.
48
powers”99 and its actions had a “broad range of impacts on
all the citizens of the county,”100 the one-person, one vote
standard should apply.101
As Wesberry, Reynolds, Avery, and their progeny
demonstrate, the one-person, one-vote standard has become a
well-established principle in equal protection
jurisprudence. At the same time, two notable exceptions to
99
Id. at 476, 484-485. Under Texas law, the
Commissioners Court possessed wide-ranging powers,
including the authority to appoint officials and fill
vacancies in county offices, contract on behalf of the
county, build roads, administer welfare programs, run
elections, issue bonds, set tax rates, and adopt the county
budget. Id. at 476.
100
Id. at 483.
101
Id. at 484-485. After Avery, the Supreme Court
struck down numerous other local voting arrangements. See
Kramer v Union Free School Dist No 15, 395 U.S. 621; 89 S. Ct.
1886; 23 L. Ed. 2d 583 (1969) (invalidating a New York law
that restricted voting in school district elections to
owners and lessees of taxable property within the school
district and to parents of children attending the schools);
Cipriano v City of Houma, 395 U.S. 701; 89 S. Ct. 1897; 23 L. Ed.
2d 647 (1969) (invalidating a state law that limited the
vote in a municipal bond election to taxpayers); City of
Phoenix v Kolodziejski, 399 U.S. 204; 90 S. Ct. 1990; 26 L. Ed.
2d 523 (1970) (same); Hadley v Junior College Dist of Metro
Kansas City, 397 U.S. 50; 90 S. Ct. 791; 25 L. Ed. 2d 45 (1970)
(applying the one-person, one-vote standard to a junior
college electoral district); Bd of Estimate of New York
City v Morris, 489 U.S. 688; 109 S. Ct. 1433; 103 L. Ed. 2d 717(1989) (invalidating the city of New York’s Board of
Estimate because each of the five New York City borough
presidents possessed an equal vote on the Board, even
though the boroughs had “widely disparate populations”).
49
the one-person, one-vote rule are just as firmly entrenched
in equal protection analysis. The first involves so-called
“special purpose districts.” Under this exception,
electoral districts that serve a specialized purpose, such
as a water storage district, are exempt from strict
scrutiny and the rigid one-person, one-vote standard
because they perform functions that “‘so disproportionately
affect different groups that a popular election’” is not
warranted.102
The second, and more relevant, exception to the one­
person, one-vote standard involves changes to municipal
boundaries. Indeed, the Supreme Court recognized the
unique nature of boundary changes as early as 1907 in the
seminal case of Hunter v Pittsburgh,103 nearly sixty years
before the one-person, one-vote standard was established.
In Hunter, the city of Allegheny was annexed to the city of
102
Salyer Land Co v Tulare Lake Basin Water Storage
Dist, 410 U.S. 719, 728-729; 93 S. Ct. 1224; 35 L. Ed. 2d 659(1973), quoting Hadley, supra at 56. Nearly a decade after
Salyer, in Ball v James, 451 U.S. 355; 101 S. Ct. 1811; 68 L. Ed.
2d 150 (1981), the Supreme Court extended the Salyer
“special purpose district” exception to a water district
that served many urban customers (including the city of
Phoenix), unlike the district in Salyer, which served
mostly agricultural users. See also Briffault, Who rules
at home?: One person/One vote and local governments, 60 U
Chi L R 339, 359-360 (1993).
103
207 U.S. 161; 28 S. Ct. 40; 52 L. Ed. 151 (1907).
50
Pittsburgh. Under state law, the votes in both cities on
the annexation were aggregated. Voters in Allegheny, who
were greatly outnumbered by voters in Pittsburgh, claimed
that their votes were unconstitutionally diluted. The
Supreme Court rejected the dilution claim and held that
states have complete control over municipalities:
The State, therefore, at its pleasure may
modify or withdraw all such powers, may take
without compensation such property, hold it
itself, or vest it in other agencies, expand
or contract the territorial area, unite the
whole or a part of it with another
municipality, repeal the charter and destroy
the corporation. All this may be done,
conditionally or unconditionally, with or
without the consent of the citizens, or even
against their protest. In all these respects
the State is supreme, and its legislative
body, conforming its action to the state
constitution, may do as it will, unrestrained
by any provision of the Constitution of the
United States. Although the inhabitants and
property owners may by such changes suffer
inconvenience, and their property may be
lessened in value by the burden of increased
taxation, or for any other reason, they have
no right by contract or otherwise in the
unaltered or continued existence of the
corporation or its powers, and there is
nothing in the Federal Constitution which
protects them from these injurious
consequences. The power is in the State and
those who legislate for the State are alone
responsible for any unjust or oppressive
exercise of it.[104]
104
Id. at 178-179.
51
This Court fully embraced the rationale of Hunter in
Midland Twp v State Boundary Comm.105 The case involved an
equal protection challenge to provisions of the HRCA that
provided for a referendum if the area to be affected
included more than one hundred persons, but excluded the
possibility of a referendum when one hundred or fewer
persons were affected. In rejecting the equal protection
argument, Justice Levin, writing for the Court, directly
relied on Hunter and held, “No city, village, township or
person has any vested right or legally protected interest
in the boundaries of such governmental units.”106
Although Hunter preceded the establishment of the one­
person, one-vote standard by half a century, its holding
has endured throughout modern equal protection
jurisprudence.107 Indeed, municipal boundary changes have
105
401 Mich. 641, 664-666; 259 NW2d 326 (1977).
106
Id. at 664 (emphasis added). See also Rudolph
Steiner School of Ann Arbor v Ann Arbor Charter Twp, 237
Mich. App. 721, 736; 605 NW2d 18 (1999) (“‘No . . . person
has any vested right or legally protected interest in the
boundaries of . . . governmental units.’ Changing the
boundaries of political subdivisions is a legislative
question. The Legislature is free to change city, village,
and township boundaries at will.” [citations omitted].).
107
Holt Civic Club v City of Tuscaloosa, 439 U.S. 60,
71; 99 S. Ct. 383; 58 L. Ed. 2d 292 (1978) (“[W]e think that
[Hunter] continues to have substantial constitutional
significance in emphasizing the extraordinarily wide
(continued…)
52
traditionally been exempted from the one-person, one-vote
rule and strict scrutiny review.108 This issue was
addressed in detail by the Supreme Court in the leading
case of Town of Lockport v Citizens for Community Action at
the Local Level, Inc,109 which involved a claim by city
voters that their votes were unconstitutionally diluted by
rural voters.
(…continued)
latitude that States have in creating various types of
political subdivisions and conferring authority upon
them.”).
108
Note, Interest exceptions to one-resident, one-
vote: Better results from the Voting Rights Act?, 74 Tex L
R 1153, 1168-1169 (1996) (“Even after political questions
like that in Hunter were found to be justiciable, the Court
has generally adhered to the rule of Hunter to decide equal
protection challenges to jurisdictional boundary changes.
Defining residency is a matter of state discretion subject
only to rational basis review.”). See also Briffault,
supra at 342-343 (“Boundary change[s] . . . have been
defined as largely outside the scope of constitutional
protection. This has limited the impact of one person/one
vote on many traditional state-authorized local
arrangements, preserving considerable flexibility for state
regulation of governance at the local level.”).
In 1992, the California Supreme Court held that
rational basis review applies to limitations on the right
to vote when a municipal boundary change is at issue.
Sacramento Co Bd of Supervisors v Sacramento Co Local
Agency Formation Comm, 3 Cal 4th 903; 838 P2d 1198; 13 Cal
Rptr 2d 245 (1992). In doing so, the California Supreme
Court reversed precedent that held that strict scrutiny was
applicable. Id. at 917-922.
109
430 U.S. 259; 97 S. Ct. 1047; 51 L. Ed. 2d 313 (1977).
53
In Lockport, Niagara County, New York, sought to amend
its charter in order to provide for a strong form of county
government headed by a county executive. New York law
provided that such an amendment could only become effective
upon approval by separate majorities of the voters who
lived in the cities within the county and of the voters who
lived outside the cities. The amendment to the charter
failed both times that it was put to a vote. Although a
majority of the city voters and a majority of the overall
votes cast were in favor of the amendment, a separate
majority of non-city voters in favor of the amendment was
never achieved in either election. Residents of the cities
filed suit, claiming that the concurrent-majority voting
scheme unconstitutionally diluted their voting strength
because it gave a small number of rural voters
disproportionate voting strength.
The Supreme Court unanimously rejected the equal
protection challenge.110 In upholding the New York voting
scheme, the Court focused on two points. First, it found
that the Reynolds line of cases dealing with one person,
one vote in the context of legislative representation were
110
Chief Justice Burger concurred in the judgment,
but did not write a separate opinion.
54
of “limited relevance” in analyzing the “single-shot” type
of referendum facing the voters in Niagara County because
the “expression of voter will is direct” in a referendum.111
Second, the Court found significant the fact that the
voters within the cities and those outside the cities would
be affected differently if the county were to adopt a
county executive model of government.112 The Court directly
compared the situation at hand to one involving an
annexation of land by municipalities and the distinct
interests that would exist in such a context.113 Applying
rational basis review, the Court went on to hold that the
statute’s concurrent-majority voting provision merely
recognized “substantially differing electoral interests”
and that it did not amount to a violation of the Equal
Protection Clause.114
Lockport is particularly instructive in resolving
defendants’ equal protection claims. Similar to the
111
Lockport, supra at 266.
112
Id. at 269-272.
113
Id. at 271. See Briffault, Voting rights, home
rule, and metropolitan governance: The secession of Staten
Island as a case study in the dilemmas of local self-
determination, 92 Colum L R 775, 797-798 (1992).
114
Lockport, supra at 272-273.
55
Niagara County referendum in Lockport, the detachment
elections in the present cases are also “single-shot”
referenda, thus marginalizing much of the rationale
surrounding the Reynolds line of cases pertaining to
legislative representation. The expressed will of the
voters in the detachment elections will be direct and
unfiltered.
Like the Supreme Court in Lockport, I also find
significant the existence of disparate electoral interests
between city and township residents. In the present cases,
it is undisputed that the voters in the townships and those
in the cities have “substantially differing electoral
interests.” If the detachments are approved, one
municipality will lose land and others will gain land,
thereby implicating divergent interests in the city and the
townships on a wide range of issues, including police and
fire protection, school districts, taxes, sewer systems,
road construction, commercial development, garbage
collection, etc.115 Indeed, the majority itself recognizes
this fact by noting the “potential for dramatically
115
See, e.g., Lockport, supra at 269-271.
56
different consequences” among municipalities if the
detachments are permitted.116
Given these differing electoral interests, I believe
it is rational for the Legislature to permit the use of a
single detachment petition to transfer land to multiple
townships and that such a procedure does not violate the
Equal Protection Clause. As the parties noted in their
briefs and at oral argument, boundary disputes between
townships and cities are nothing new. Indeed, such
gamesmanship is not only commonplace, but to be expected
given the inherently valuable nature of land in our
society. For example, cities often craft annexation
proposals with surgical precision so that the territory to
be acquired from a township contains one hundred or fewer
inhabitants and is thus exempt from a public referendum.117
116
Ante at 10.
117
Amicus brief of the Michigan Townships Association
at 2-3. As discussed in n 6 of this opinion, an annexation
of territory that contains one hundred or fewer residents
is subject only to approval by the SBC. MCL 117.9(4).
Justice Levin recognized the gamesmanship that occurs
between cities and townships in Midland Twp, supra at 679,
stating that “[c]ity and township strategies based on [the
one hundred-resident referendum threshold] are unavoidable.
In general, the city will seek to limit the area proposed
for annexation so that there are insufficient residents for
a referendum and the township will seek to extend the area
to require a referendum. The motive or purpose of the city
(continued…)
57
By repeating this process numerous times, a city may be
able to acquire large amounts of land without ever seeking
approval from voters.
In light of such tactical territorial disputes between
cities and townships, it is not irrational for the
Legislature to permit several townships to amplify their
voting strength by combining several different parcels into
a single detachment petition. In fact, with the
significant population disparities that exist between large
cities and small townships, such a bundled petition may be
the only way that certain detachments could ever be
effectuated. By permitting several townships to combine
efforts in a single petition, the Legislature has simply
recognized that differing electoral interests exist and
that, occasionally, similar entities will need to combine
forces in order to have any meaningful opportunity at
advancing their interests and achieving the various
boundary changes authorized under the HRCA.118 I believe
(…continued)
or township in drawing the proposed boundaries or in
requesting a revision of boundaries is not material.”
118
In addition to minimizing the effects of population
disparities between cities and townships, there are
numerous other reasons why the Legislature may have
permitted the use of a single petition to transfer land to
multiple townships. For example, it is possible that the
(continued…)
58
that such a view by the Legislature is entirely
reasonable.119
Lockport and Hunter demonstrate that the one-person,
one-vote standard does not apply in cases involving
municipal boundary changes as it does, for example, in the
context of legislative representation.120 Instead, states
(…continued)
Legislature recognized the substantial financial expense
that townships and cities face when holding elections and
that, by combining numerous detachments in one election, it
would be less expensive for the taxpayers to have a single
election than to have several separate detachment
elections.
119
I find the cases on which defendants rely
unpersuasive. In Hayward v Clay, 573 F2d 187 (CA 4, 1978),
the Fourth Circuit Court of Appeals applied strict scrutiny
to an annexation proceeding that required separate majority
approval by freeholders. Hayward is easily distinguishable
from the present cases. Hayward involved a grant of
disproportionate voting strength to freeholders. No such
land-based distinction in voting strength exists in the
present cases. Instead, the franchise is extended to all
registered voters in the affected municipalities,
regardless of land ownership status. Defendants also cite
Carlyn v City of Akron, 726 F2d 287 (CA 6, 1984), in which
the Sixth Circuit Court of Appeals refused to apply strict
scrutiny to an annexation proceeding. While I appreciate
the dicta that defendants cite from Carlyn regarding when
strict scrutiny is to apply, I would choose instead to base
our resolution of this federal law question on clear
precedent from the United States Supreme Court.
120
Indeed, Lockport and Hunter, taken together,
illustrate that any claim of vote dilution in the municipal
boundary change context will be difficult to sustain,
absent dilution based on some suspect category such as
race. The Supreme Court explicitly rejected “dilution by
aggregation” in Hunter and “dilution by disproportionate
(continued…)
59
maintain broad discretion over municipal boundary changes—
discretion that is subject to rational basis review.121 The
fact that the state has chosen to exercise this power
partially through mechanisms provided under the HRCA, which
includes public referenda on privately initiated boundary
changes, in no way diminishes the state’s plenary control
over municipal boundaries. Therefore, considering the
differing electoral interests that undoubtedly exist
(…continued)
weight” in Lockport. With both types of dilution having
been flatly rejected by the Supreme Court, it seems quite
clear that such cases are not viewed as traditional vote
dilution matters, but as matters involving a state’s
absolute authority over municipal boundaries.
121
As Professor Briffault has written in discussing
the effect of Lockport:
To apply strict scrutiny to the distribution
of the vote concerning boundary changes would
inevitably entail a constitutional review of the
states’ municipal formation and boundary change
policies. But there are no generally accepted
principles for determining whether a particular
local government ought to exist, what that unit’s
geographic dimensions ought to be, or whether a
particular territory ought to be in that or
another local unit. Thus, deference to the states
is consistent with both the lack of a
constitutional vantage point for examining state
municipal formation and boundary change policies
and the traditional jurisprudence of federalism
that treats local governments as state
instrumentalities and leaves the creation and
structure of local governments to the states.
[Briffault, supra, 60 U Chi L R at 395-396.]
60
between municipalities in a detachment proceeding and the
gross disparities in population that arise, I believe that
the Legislature acted rationally in permitting, under the
HRCA, the use of a single detachment petition when
transferring land to more than one municipality.
While the wisdom of such a policy choice by the
Legislature might be debated, this Court is not the proper
forum for such an undertaking. Our role is limited to
determining whether the HRCA conforms to the Constitution.
For the foregoing reasons, I believe that it does.
B. MANDAMUS RELIEF
1. NATURE OF THE REMEDY
A writ of mandamus is an extraordinary remedy used to
enforce duties mandated by law.122 It is entirely
discretionary in nature.123 Before seeking mandamus relief,
122
State Bd of Ed v Houghton Lake Community Schools,
430 Mich. 658, 666; 425 NW2d 80 (1988); Teasel v Dep’t of
Mental Health, 419 Mich. 390, 409; 355 NW2d 75 (1984);
Howard Pore, Inc v Revenue Comm’r, 322 Mich. 49, 75; 33 NW2d
657 (1948); Sumeracki v Stack, 269 Mich. 169, 171; 256 N.W.
843 (1934); Gowan v Smith, 157 Mich. 443, 470; 122 N.W. 286(1909).
123
Donovan v Guy, 344 Mich. 187, 192; 73 NW2d 471
(1955); Fellinger v Wayne Circuit Judge, 313 Mich. 289, 291­
292; 21 NW2d 133 (1946); Geib v Kent Circuit Judge, 311
Mich. 631, 636; 19 NW2d 124 (1945); Toan v McGinn, 271 Mich.
28, 33; 260 N.W. 108 (1935); Sumeracki, supra at 171;
Industrial Bank of Wyandotte v Reichert, 251 Mich. 396, 401;
232 N.W. 235 (1930); Miller v Detroit, 250 Mich. 633, 636; 230
(continued…)
61
a plaintiff must complete all conditions precedent to the
act that the plaintiff seeks to compel,124 including a
demand of performance made on the official charged with
performing the act.125 Once this threshold is met, the
plaintiff, bearing the burden of proof,126 must demonstrate:
(1) a clear legal right to the act sought to be compelled;
(2) a clear legal duty by the defendant to perform the act;
(3) that the act is ministerial, leaving nothing to the
judgment or discretion of the defendant; and (4) that no
other adequate remedy exists.127
(…continued)
NW 936 (1930); Taylor v Isabella Circuit Judge, 209 Mich.
97, 99; 176 N.W. 550 (1920); Stinton v Kent Circuit Judge, 37
Mich. 286, 287 (1877).
124
Cook v Jackson, 264 Mich. 186, 188; 249 N.W. 619(1933); Hickey v Oakland Co Bd of Supervisors, 62 Mich. 94,
99-101; 28 N.W. 771 (1886).
125
Stack v Picard, 266 Mich. 673, 673-674; 254 N.W. 245(1934); Owen v Detroit, 259 Mich. 176, 177; 242 N.W. 878(1932) (“[T]he discretionary writ of mandamus will not
issue to compel action by public officers without prior
demand for such action.”); People ex rel Butler v Saginaw
Co Bd of Supervisors, 26 Mich. 22, 26 (1872).
126
Baraga Co, supra at 268; In re MCI, supra at 442­
443.
127
Baraga Co, supra at 268; In re MCI, supra at 442­
443; Houghton Lake Community Schools, supra at 666; Pillon
v Attorney General, 345 Mich. 536, 539; 77 NW2d 257 (1956);
Janigian v Dearborn, 336 Mich. 261, 264; 57 NW2d 876 (1953);
Howard Pore, Inc, supra at 75; McLeod v State Bd of
Canvassers, 304 Mich. 120, 125; 7 NW2d 240 (1942); Rupert v
(continued…)
62
2. PLAINTIFFS ARE NOT ENTITLED TO MANDAMUS RELIEF
While I agree with the majority that plaintiffs are
not entitled to mandamus relief, I disagree with the
majority’s rationale. The majority concludes that mandamus
relief is improper because the HRCA does not permit the use
of a single detachment petition involving multiple
townships and, therefore, plaintiffs have no “clear legal
right” to the relief they seek.128 For the reasons stated,
I disagree with that conclusion. However, I believe that
plaintiffs are not entitled to writs of mandamus because a
request for such relief is premature at this time.
As already discussed, before a writ of mandamus will
be issued, a plaintiff must complete all conditions
precedent to the act that the plaintiff seeks to compel.129
While it is possible that plaintiffs may have already
satisfied all requirements imposed by the HRCA, the
Secretary of State has yet to make such a determination.
The Secretary of State deferred her examination of the
(…continued)
Van Buren Co Clerk, 290 Mich. 180, 183-184; 287 N.W. 425(1939); Toan, supra at 34; Sumeracki, supra at 171; Gowan,
supra at 470-473.
128
Ante at 13.
129
See n 124 of this opinion.
63
petitions until the antecedent question of whether the HRCA
permits the use of a single petition involving multiple
townships was resolved. The Secretary of State has not yet
examined the petitions to determine whether they comply
with all the other requirements of the HRCA. Therefore,
plaintiffs’ requests for mandamus relief are premature.
IV. CONCLUSION
The HRCA is not ambiguous. A plain reading of §§ 9
and 11 demonstrates that the use of a single detachment
petition is permitted when seeking to transfer land to
multiple townships. Moreover, such a procedure comports
with the Equal Protection Clause of the Fourteenth
Amendment. Plaintiffs are not entitled to mandamus
relief, however, because the Secretary of State has yet to
examine the petitions to determine whether all the
conditions mandated by the HRCA have been satisfied.
Accordingly, in Casco Twp, I would reverse the decisions of
the Court of Appeals and the trial court and grant
declaratory relief. Because the plaintiffs in Fillmore Twp
did not seek declaratory relief, I would affirm the
dismissal of their mandamus action.
For the foregoing reasons, I respectfully concur in
part and dissent in part.
Robert P. Young, Jr.
64