Jeremy Hooker v. Brenda M Moore , 326 Mich. App. 552 ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
JEREMY HOOKER, FOR PUBLICATION
December 11, 2018
Appellee, 9:05 a.m.
v No. 343334
Board of State Canvassers
BRENDA M. MOORE,
Appellant.
Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.
GADOLA, J.
Appellant, Brenda M. Moore, appeals as of right the determination of the Board of State
Canvassers (the Board) that the petition for recall submitted by appellee, Jeremy Hooker,
complied with the requirements of MCL 168.951a(1)(c). Because we conclude that the petition
for recall met the requirements of that statutory section, we affirm.
I. FACTS
Appellant has been serving as the Muskegon County Drain Commissioner since
November 2013. She asserts that in her capacity as drain commissioner she has overseen 18
petitions for drainage projects. According to appellant, with regard to each project she complied
with the applicable laws by referring each project to engineers to determine the most cost-
effective option, then submitted each project for bids and accepted the lowest bid for each
project.
On March 16, 2018, appellee submitted a petition for the recall of appellant to the
Secretary of State. The petition stated the following reason for the proposed recall: “Muskegon
County Drain Commissioner, Brenda Moore, elected to undertake the broadest scopes of work
and most expensive options proposed by her engineers for each project assessed during her
current term in office, when less expensive alternatives were proposed to her.”
The Department of State, Bureau of Elections, notified appellant of the recall petition by
letter, indicating that the Board would meet to conduct a “Clarity-Factual Hearing” on April 5,
2018. The parties do not dispute that the Board did not hold the planned hearing on April 5,
2018, and that the Board’s failure to conduct the hearing constituted “a determination that each
reason for the recall stated in the petition is factual and of sufficient clarity to enable the officer
whose recall is being sought and the electors to identify the course of conduct that is the basis for
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the recall.” MCL 168.951a(3). Appellant thereafter appealed the determination of the Board to
this Court. See MCL 168.951a(6).
II. ANALYSIS
Appellant challenges the Board’s determination that the reason stated in the recall
petition met the statutory requirements that the reason be factual and of sufficient clarity. MCL
168.951a(1)(c). Initially, we note that an elected officer whose recall is sought may appeal a
determination by the Board to this Court for a determination concerning whether the reasons
stated in the petition are factual and of sufficient clarity. See MCL 168.951a(6). Resolution of
this appeal involves a question of statutory construction, which this Court reviews de novo.
Hastings Mut Ins Co v Grange Ins Co of Mich, 319 Mich. App. 579, 583; 903 NW2d 400 (2017).
The right to recall an elected official is reserved to the voters of this state by our state
constitution. See Const 1963, art 2, § 8. In that regard, our Legislature enacted MCL 168.951a,
applicable to the attempted recall of a county official other than a county commissioner. See
MCL 168.951a(1) and MCL 168.959. At the times relevant to the appeal, MCL 168.951a(1)1
provided:
(1) A petition for the recall of an officer listed in section 959 [MCL 168.959]
shall meet all of the following requirements:
(a) Comply with section 544(c)(1) and (2) [MCL 168.544c(1) and (2)].
(b) Be printed.
(c) State factually and clearly each reason for the recall. Each reason for
the recall shall be based upon the officer’s conduct during his or her current term
of office. The reason for the recall may be typewritten. If any reason for the
recall is based on the officer’s conduct in connection with specific legislation, the
reason for the recall shall not misrepresent the content of the specific legislation.
(d) Contain a certificate of the circulator. The certificate of the circulator
may be printed on the reverse side of the petition.
(e) Be in a form prescribed by the secretary of state.
Before a petition for recall may be circulated, the petition must be submitted to the
Board. MCL 168.951a(2). The Board must then meet and “determine . . . whether each reason
for the recall stated in the petition is factual and of sufficient clarity to enable the officer whose
recall is sought and the electors to identify the course of conduct that is the basis for the recall.”
MCL 168.951a(3). If the Board determines that “any reason for the recall is not factual or of
sufficient clarity,” it must reject the entire petition. MCL 168.951a(3).
1
MCL 168.951a was amended by 2018 PA 190, effective June 20, 2018.
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In this case, the Board did not meet on the date scheduled to consider whether appellee’s
petition met the statutory criteria. The Board’s failure to meet therefore constituted “a
determination” by the Board “that each reason for the recall stated in the petition is factual and of
sufficient clarity to enable the officer whose recall is being sought and the electors to identify the
course of conduct that is the basis for the recall.” MCL 168.951a(3). Appellant challenges
whether the petition meets the requirements of MCL 168.951a(1)(c) that the petition “[s]tate
factually and clearly each reason for the recall.” Specifically, she argues that appellee’s stated
ground for recall is not factual because he misstates her record, and the term “factual” as used in
the statute must be understood to require that the petition be truthful. 2 In response, appellee
contends that the reason stated in the recall petition is factually accurate.
We have previously held that Const 1963, art 2, § 8, reserving to the voters the right to
recall an elected official, “was intended to preclude judicial or administrative review of the
substantive merit of the reasons alleged in a recall petition,” while recognizing the statutory
requirement that a recall petition must clearly state the reason for the recall attempt, which is
subject to judicial review. In re Wayne Co Election Comm, 150 Mich. App. 427, 437; 388 NW2d
707 (1986). Before the enactment of 2012 PA 417, which added MCL 168.951a and amended
MCL 168.952, this Court was tasked with determining the “clarity” of recall petitions, and we
noted that our review was limited in scope:
The standard of review for clarity of recall petitions has been described as
both “lenient,” and “very lenient.” “Thus, recall review by the courts should be
very, very limited.” A meticulous and detailed statement of the charges against
an officeholder is not required. It is sufficient if an officeholder is apprised of the
course of conduct in office that is the basis of the recall drive, so that a defense
can be mounted regarding that conduct. “Where the clarity of the reasons stated
in the petition is a close question, doubt should be resolved in favor of the
individual formulating the petition.” [Dimas v Macomb Co Election Comm, 248
Mich. App. 624, 627-628; 639 NW2d 850 (2001) (citations omitted).]
We held that under the version of MCL 168.952 then in effect that whether the statements
in a petition are true is not a proper consideration for rejecting the petition on grounds of clarity
because such a determination is a political question that must be left to the electors under Const
1963, art 2, § 8. Donigan v Oakland Co Election Comm, 279 Mich. App. 80, 83-84; 755 NW2d
209 (2008) (discussing MCL 169.952 before the enactment of 2012 PA 417).
2
Appellant also asserts, in conclusory fashion and without citation to supporting legal authority,
that this Court must interpret MCL 168.951a(1)(c) to require truthful statements because to do
otherwise would constitute an unconstitutional taking of her property right to continue in office.
It is well settled that political officers have no property rights in their offices. See Detroit v Div
26 of the Amalgamated Assoc, 332 Mich. 237, 251; 51 NW2d 228 (1952). It is equally well
settled that when a party merely announces her position and fails to cite any supporting legal
authority, the issue is deemed abandoned. Southfield Ed Ass’n v Bd of Ed of Southfield Pub Sch,
320 Mich. App. 353, 379; 909 NW2d 1 (2017).
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Our Legislature has since enacted 2012 PA 417, adding MCL 168.951a, which requires a
recall petition to state “factually and clearly each reason for recall.” If the Board determines that
“any reason for the recall is not factual or of sufficient clarity,” it must reject the entire petition.
MCL 168.951a(3). Upon appeal to this Court, this Court is charged with determining “whether
each reason [stated in the recall petition] is factual and of sufficient clarity.” MCL 168.951a(6).
Accordingly, we now consider whether the addition of the terms “factually” and “factual” to the
requirement of clarity altered the scope of the determination by this Court to include a
determination of “truthfulness.”
When construing a statute, our primary task is to discern and give effect to the intent of
the Legislature. Coldwater v Consumers Energy Co, 500 Mich. 158, 167; 895 NW2d 154 (2017).
We begin by examining the language of the statute as the most reliable evidence of the intent of
the Legislature, and give the language of the statute its plain and ordinary meaning. Tomra of
North America v Dep’t of Treasury, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket
Nos. 336871, 337663); slip op at 4. If the language is unambiguous, we will conclude that the
Legislature intended the meaning clearly expressed and will enforce the statute as written.
Coldwater, 500 Mich. at 167, citing Sun Valley Foods Co v Ward, 460 Mich. 230, 236; 596
NW2d 119 (1999).
In ordinary usage, the word “factual” can mean “restricted to or based on fact,” while the
word “fact” can be understood to mean “an actual occurrence” and “a piece of information
presented as having objective reality.” Merriam Webster’s Collegiate Dictionary (11th ed).
When read in the context of the statute as a whole, the plainest construction is that the
Legislature included the terms “factual” and “factually” in MCL 168.951a to ensure that the
grounds set forth in a recall petition are stated in terms of a factual occurrence. That is, the
ground for recall must be stated in the form of a factual assertion about the official’s conduct that
the proponent believes warrants the recall. The language of MCL 168.951a does not specify,
however, that the reason for the recall stated in the petition must be truthful.
Our state constitution provides that “[t]he sufficiency of any statement of reasons or
grounds procedurally required shall be a political rather than a judicial question.” Const 1963,
art 2, § 8. An assessment of the accuracy or truthfulness of a factual assertion is an inquiry into
the sufficiency of the reason stated in support of recall; our Constitution plainly reserves that
assessment to the electors, and the Legislature could not in any event remove that right from
them. Donigan, 279 Mich. App. at 84, citing Meyers v Patchkowski, 216 Mich. App. 513, 518; 549
NW2d 602 (1996). We therefore conclude that the terms “factually” and “factual,” as used in
MCL 168.951a, require the reason stated in the recall petition to be in the form of a factual
assertion, but does not confer upon the Board or upon this Court the task of determining the
truthfulness of the statement. See Const 1963, art 2, § 8; Donigan, 279 Mich. App. at 84.3
3
Left as an open question by our ruling in this case is whether the statutory requirement that the
stated reason or reasons for recall be “factual” is an unconstitutional limitation on the people’s
right to recall elected officials. This is a question worth pondering in light of the requirement of
Const 1963, art 2, § 8 that the sufficiency of the reasons or grounds stated in a recall petition
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In his petition, appellee stated that appellant “elected to undertake the broadest scopes of
work and most expensive options proposed by her engineers for each project assessed during her
current term in office, when less expensive alternatives were proposed to her.” Regardless of
whether this is true or false, this is a clearly-stated factual assertion. Because the statement is
factually and clearly stated, the petition meets the requirements of MCL 168.951a(1)(c). If the
petition garners the requisite support, it will be for the electorate to determine whether the
assertion is actually true and warrants recall. See Donigan, 279 Mich. App. at 84-85.
Affirmed.
/s/ Michael F. Gadola
/s/ Mark T. Boonstra
/s/ Kathleen Jansen
shall be a political rather than a judicial question. As appellee fails to raise this issue, we decline
to address it.
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