20221229_C361288_30_361288.Opn.Pdf ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
WARREN CITY COUNCIL, FOR PUBLICATION
December 29, 2022
Plaintiff-Counterdefendant-Appellee, 9:05 a.m.
v No. 361288
Macomb Circuit Court
JAMES R. FOUTS, LC No. 2022-000923-AW
Defendant-Counterplaintiff-Appellant.
Before: CAVANAGH, P.J., and K. F. KELLY and GARRETT, JJ.
PER CURIAM.
In this budget dispute between plaintiff Warren City Council and its mayor, defendant
James R. Fouts, defendant appeals by right the trial court’s stipulated order of final judgment in
favor of plaintiff. The core issue presented is whether the Warren City Charter (“Charter”) permits
plaintiff to unilaterally amend the recommended budget from defendant when passing a general
appropriations resolution, or whether plaintiff is limited to simply affirming or rejecting the
recommended budget as a whole. The trial court concluded that the Charter allowed plaintiff to
make amendments to the budget and granted preliminary injunctive and declaratory relief in
plaintiff’s favor. We affirm those orders, and hold that under normal principles of statutory
construction, the Charter does not limit plaintiff to merely affirming or rejecting defendant’s
recommended budget. Rather, under the Charter, plaintiff may enact any budget so long as it
otherwise complies with the law.
I. BASIC FACTS AND PROCEDURAL HISTORY
In April 2021, in his capacity as mayor, defendant submitted a recommended budget to
plaintiff for approval, which included a line item of $615,000 for the City of Warren Downtown
Development Authority (“DDA”) for “Contractual Services” and a line item of $75,000 for DDA
for “Community Promotions.” In addition to being mayor, defendant is also the chairperson of
the DDA’s Board, and the money for the “Contractual Services” line item was for an advertisement
campaign called “MI Warren” featuring defendant. Plaintiff met to consider defendant’s
recommended budget and decided it would revise the budget to allocate $0 for DDA “Contractual
Services” and $10,000 for DDA “Community Promotions.”
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On May 11, 2021, plaintiff adopted a General Appropriations Resolution (“Resolution”)
for fiscal year 2021-2022 that included the revisions to the DDA projects, as well as a salary
increase for the Deputy Council Secretary. Defendant vetoed the resolution, stating that plaintiff
did not have the authority to “propose and adopt its own budget” but could only “act upon the
budget proposed by the Mayor.” Plaintiff unanimously overrode the veto. Defendant nevertheless
instructed finance staff to fund the DDA projects in the amounts he originally requested.
On September 15, 2021, the DDA Board approved an expenditure of $310,000 for the “MI
Warren” advertising campaign, which was to be funded from the “Contractual Services” and
“Community Promotions” budget line items. During the September 15 meeting, the DDA Board
discussed the budget dispute and the following exchange was memorialized in the meeting
minutes:
Mr. Fox then stated how council eliminated funding for the recently
proposed budget immensely and how once again there is a conflict. The Mayor
proposed a budget of $615,000.00 in contractual services for DDA and council cut
it to zero. He also proposed $75,000.00 for community promotion and council cut
it to $10,000.00.
The Mayor has decided that we are going to move forward with his budget
until a compromise is agreed upon. Mayor Fouts stated that he met with Ms. Moore
to try and avoid costly litigation. This is the first time in history that City Council
has sued the mayor & clerk. This is also the first time in history that council has
fired the city attorney on their own accord and hired an outside law firm to act as
the city attorney, both of which are a violation of the city charter.
Mr. Vicari asked if any of the line items on the proposed budget were the
same as past budgets. Mr. Fox stated that most of them are the same or similar. An
example would be contractual services, last year the budget was $500,000.00 and
this year we are requesting $615,000.00. Community promotion was $75,000.00
last year and the same amount was requested for this year. There is nothing strange
or out of the ordinary in the new proposed budget.
The Mayor stated that he is willing to compromise, but unfortunately
council is not willing to do so. Some members refuse to even meet with him to
discuss the matter.
According to plaintiff, as of January 31, 2022, the DDA “spent $180,266.90 in unappropriated
funds and a total of $302,593.98 had been encumbered for ‘Contractual Services’ and $60,000 for
‘Community Promotions.’ ”
On March 3, 2022, plaintiff filed a verified complaint seeking a writ of mandamus,
declaratory judgment, and injunctive relief. Plaintiff alleged defendant’s actions violated the
Charter, the Uniform Budgeting and Accounting Act, MCL 141.421a et seq. (“UBAA”), and the
recodified tax increment financing act, MCL 125.4101 et seq. (“RTIFA”). Plaintiff sought a ruling
in its favor regarding its powers under the Charter and an order enjoining defendant’s further
expenditure of unappropriated money.
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Plaintiff also moved for a temporary restraining order and preliminary injunction. Plaintiff
claimed it would suffer irreparable harm in the absence of an injunction because it was likely no
money already expended could ever be recouped, thereby causing injury to plaintiff and residents
of the City of Warren. Plaintiff also argued that the public interest would be served by granting
an injunction because the public had a “fundamental interest in having its elected officials operate
within the confines of the law . . . .” In response, defendant argued that injunctive relief was not
warranted because plaintiff was unlikely to prevail on its claims because under the Charter,
plaintiff’s role in the budget process was limited to reviewing and then approving or disapproving
defendant’s recommended budget. According to defendant, under Detroit City Council v Stecher,
430 Mich 74; 421 NW2d 544 (1988), the Charter did not grant plaintiff the authority to amend the
budget. Defendant also argued that plaintiff was unlikely to succeed on its mandamus claim
because plaintiff did not identify a clear legal right it possessed different from that owed to the
citizenry at large and did not identify a clear legal duty owed by defendant.
The trial court held a hearing on plaintiff’s motion on March 28, 2022. Plaintiff argued the
case was nearly identical with Zelenko v Burton City Council, unpublished per curiam opinion of
the Court of Appeals, issued May 15, 2018 (Docket No. 339746),1 a case in which this Court sided
with the defendant-city council after a budget dispute with the plaintiff-mayor in which the Court
concluded the defendant could amend the plaintiff’s proposed budget. Defendant argued,
however, that Zelenko was wrongly decided and the language of the charter at issue was different
than the Charter.
On March 31, 2022, the trial court issued a written opinion and order granting plaintiff’s
motion for preliminary injunction. The court found Zelenko to be persuasive, stating:
The procedure for the annual budget in Zalenko [sic] is similar to the
procedure in this case. In Zalenko [sic], the city charter required department heads
to submit statements of financial needs and anticipated revenues to the mayor by
February 1, and the mayor assembles the statements and prepares a proposed
budget. Id. The mayor then submits the proposed annual budget to the city council.
Id. The city council “shall, by resolution, adopt a budget for the ensuing fiscal
year” at a regular meeting. Id. ( emphasis added).
The Zalenko [sic] Court noted that the Burton city charter was silent on the
issue of whether the city council had authority to amend the mayor’s proposed
budget before adopting it. Id. at slip op. 2. However, the Zalenko [sic] Court
looked to the plain language of the charter to determine the drafter’s intention. Id.The Zalenko [sic] Court focused on the language of the charter which directed the
city council to “adopt a budget . . .” Id. (emphasis added). The Zalenko [sic] Court
determined that the use of the word “a” instead of “the” “suggested that the council
is not limited to adopting the budget proposal submitted by the mayor.” Id. “By
the same token, if the city council is authorized to adopt a budget but is not
1
Unpublished opinions are not binding on this Court but may be considered for their persuasive
value. Eddington v Torrez, 311 Mich App 198, 203; 874 NW2d 394 (2015), lv den 498 Mich 951(2015).
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restricted to consideration of the mayor’s budget proposa1, we can infer that the
city council may alter or amend the mayor’s budget proposal as long as the
approved budget otherwise complied with local and state law.” Id.In addition, the trial court found Stecher to be distinguishable because that case dealt with
the issue of “ ‘whether the Detroit City Council had the authority to unilaterally amend a previously
adopted budget in the middle of the fiscal year, rather than a budget proposal that had not yet been
passed.’ ” Thus, the court concluded plaintiff was likely to succeed on the merits of its declaratory
judgment claim because “the clear and unambiguous language of the Charter does not limit the
City Council to adopting the recommended budget of Fouts. Therefore, the City Council may alter
or amend Fouts’ recommended budget as long as the approved budget otherwise complies with
local and state law.”
The trial court also concluded that plaintiff was likely to succeed on the merits of its
mandamus claim:
The Charter requires Fouts to perform all acts required by law and that money is
not to be drawn from the treasury of the city except in accordance with an
appropriation. These acts are ministerial and are not within Fouts [sic] discretion.
Further, the Court finds that the City Council presents sufficient evidence that it
does not have another adequate remedy. Thus, without definitively deciding the
merits of the City Council’s claim for a writ of mandamus, the Court finds that the
City Council has presents [sic] sufficient evidence that it is likely to prevail.
The court determined that plaintiff would suffer irreparable harm in the absence of an
injunction because “[t]he continued spending of funds that are alleged to be improperly
appropriated will result in the funds not being able to be used for other, approved upon, purposes”
and “it is likely that any funds improperly spent will never be recovered.” Lastly, the court
concluded that “balancing the hardships weighs in favor of granting the preliminary injunction”
and “it is in the public interest to grant the injunction.” The court, therefore, enjoined defendant
from authorizing the expenditure of City of Warren funds that have not been appropriated by the
City Council.”
After entering the order, defendant filed an emergency motion for entry of declaratory
judgment under MCR 2.605. In the motion, defendant argued that the Charter did not give plaintiff
the power to unilaterally amend his budget. In the section of the Charter in which it states that
plaintiff is to pass “a” budget, defendant argued that should not be read as the power to pass any
budget. According to defendant, if plaintiff’s interpretation of the Charter were correct, § 8.4 of
the Charter, which governs public notice, would be nugatory. Plaintiff’s interpretation would also
give the council unchecked legislative power, which violates principles of checks and balances.
In response, plaintiff argued that declaratory judgment in its favor was warranted because
the Charter, UBAA, and RTIFA all permitted plaintiff to consider and amend defendant’s proposed
budget. Plaintiff asserted that its interpretation would not violate checks and balances, nor would
its interpretation render the public notice section of the Charter nugatory, because any action
plaintiff took would be done in public at a meeting. Plaintiff urged the trial court to follow the
Court’s reasoning in Zelenko, which it claimed was dispositive of the issues in this case.
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The trial court held a hearing on defendant’s motion on April 13, 2022, and took the motion
under advisement. On April 21, 2022, the court issued a written opinion and order granting
declaratory judgment in plaintiff’s favor. The court stated:
The Court finds that Zalenko [sic] is persuasive authority and the same rationale be
used in this case. Further, while the language contained in the Macomb County
Charter in Macomb Co[2] is not identical to the language in the Charter in this case,
Macomb Co provides further authority for the Court to side with the City Council.
In this case, Fouts argues that the term “a budget” as used in Section 8 5 of the
Charter refers to his recommended budget. However, this argument is
unconvincing. The Charter states “the budget” when referring to the Mayor’s
recommended budget and then switches to “a budget” in Section 8.5. Further, while
Fouts argues that allowing the City Council to amend the budget would make the
public hearing nugatory, the public hearing allows the City Council to take into
consideration the Mayor’s recommended budget and the input from the public to
determine whether amendments should be made. Lastly, this case is differentiated
from Stecher since Stecher involved adopting a budget in the middle of the fiscal
year rather than a budget proposal that has not yet been adopted.
Thus, the Court finds that the language of the Charter is clear and
unambiguous and does not limit the City Council to merely adopt or reject the
budget proposal submitted by the Mayor. Therefore, since the City Council has
authority to adopt a budget but is not restricted to consideration of the Mayor’s
proposed budget, the City Council may alter or amend the Mayor’s budget proposal
as long as the approved budget otherwise complies with local and state law. As in
Macomb Co, the parties do not dispute that Fouts has authority to veto the budget.
Consequently, the Court grants declaratory relief in favor of the City Council.
The trial court ordered that plaintiff “has authority to amend the Mayor’s proposed budget
prior to passing an appropriations resolution”; defendant “must comply with the City Charter and
all other local and state laws”; “must perform all of his duties under the provisions of the Charter”;
and “must take all actions necessary to cease further disbursement of unappropriated funds.” On
May 3, 2022, the trial court entered a stipulated order of final judgment clarifying that the trial
court granted plaintiff “the relief sought in its Verified Complaint for the reasons stated in this
Court’s April 21, 2022 Opinion and Order, resolving the last dispute between the parties in this
action.” This appeal followed.
II. STANDARDS OF REVIEW
“Questions of law relative to declaratory judgment actions are reviewed de novo, but the
trial court’s decision to grant or deny declaratory relief is reviewed for an abuse of discretion.”
Pioneer State Mut Ins Co v Dells, 301 Mich App 368, 376; 836 NW2d 257 (2013). This Court
also reviews the trial court’s decision to grant injunctive relief for an abuse of discretion. Moore
2
Macomb Co Prosecutor v Macomb Co Executive, ___ Mich App ___; ___ NW2d ___ (Docket
No. 359887).
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v Genesee Co, 337 Mich App 723, 731; 976 NW2d 921 (2021). An abuse of discretion occurs
when the trial court’s decision is outside the range of reasonable and principled outcomes.
Komendat v Gifford, 334 Mich App 138, 159 n 10; 964 NW2d 75 (2020).
This Court reviews questions of the proper interpretation of a statute de novo. Grand
Rapids v Brookstone Capital, LLC, 334 Mich App 452, 457; 965 NW2d 232 (2020). The
interpretation of a city charter is also a question of law this Court reviews de novo. Barrow v
Detroit Election Comm, 301 Mich App 404, 411; 836 NW2d 498 (2013).
III. DISCUSSION
Defendant first contends that the trial court erroneously concluded that plaintiff was
entitled to amend his proposed budget. According to defendant, plaintiff may only vote up or
down on the budget. If plaintiff does not approve the budget, defendant contends that he must go
back to the drawing board and submit a new budget until the parties agree. Defendant’s
interpretation of the Charter is without support, and we conclude that plaintiff was entitled to
amend defendant’s budget.
This Court’s goal with respect to statutory interpretation is to determine and give effect to
the intent of the Legislature. Bonner v Brighton, 495 Mich 209, 222; 848 NW2d 380 (2014).
“When the words used in a statute or an ordinance are clear and unambiguous, they express the
intent of the legislative body and must be enforced as written.” Sau-Tuk Indus, Inc v Allegan Co,
316 Mich App 122, 137; 892 NW2d 33 (2016). This Court “must assign every word or phrase its
plain and ordinary meaning unless the Legislature has provided specific definitions or has used
technical terms that have acquired a peculiar and appropriate meaning in the law.” Mayor of
Cadillac v Blackburn, 306 Mich App 512, 516; 857 NW2d 529 (2014). When reviewing a
municipal charter, this Court “appl[ies] the same rules [it] appl[ies] to the construction of statutes.
The provisions are to be read in context, with the plain and ordinary meaning given to every word.
Judicial construction is not permitted when the language is clear and unambiguous.” Barrow v
Detroit Election Comm, 305 Mich App 649, 663; 854 NW2d 489 (2014) (quotation marks and
citation omitted).
Chapter 8 of the Charter governs budgets for the City of Warren. The fiscal year for the
city begins on the first day of July each year. Warren Charter, § 8.1. Under the Charter, “not later
than the second Monday in April of each year [the mayor] shall submit to the council a
recommended budget for the next fiscal year which is within the tax limit and other revenue
sources of the city.” Warren Charter, § 8.2. “The recommended budget of the mayor together
with his supporting schedules, information, and messages, shall be reviewed by the council. The
budget proposal of the mayor, together with his recommendations and its supporting schedules
and information shall become a public record . . . .” Warren Charter, § 8.3.
“A public hearing on the budget shall be held not less than one week before its final
adoption at such time as the council shall direct.” Warren Charter, § 8.4. Once the public hearing
is held, plaintiff may act on the proposed budget:
(a) Not later than the third Monday in May of each year, the council shall,
by resolution, adopt a budget for the ensuing fiscal year and make an appropriation
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of the money needed therefor. Such resolution shall designate the sum to be raised
by taxation for the general purposes of the city and for the payments of principal
and interest on its indebtedness. Failure to adopt such resolution within the time
herein set shall not invalidate either the budget or the tax levy therefor. [Warren
Charter, § 8.5(a) (emphasis added).]
In Zelenko, this Court affirmed the order of the trial court denying the plaintiff-mayor’s
request for a writ of mandamus after the defendant-council amended the plaintiff’s budget before
adopting it. Zelenko, unpub op at 1. The Court described the relevant budget process as follows:
the department heads submit statements of financial need and anticipated revenues
to the mayor by February 1, and the mayor assembles the statements and prepares
a budget proposal. The mayor submits “the annual budget proposal of the city” to
the city council at the council’s first regular meeting in April. The city council
“shall, by resolution, adopt a budget for the ensuing fiscal year” at a regular meeting
held no later than the second Monday in June. [Id. at 2.]
The Court rejected the plaintiff’s argument that because the charter was silent on whether
the defendant could amend the budget, the defendant was without such power. Id. Instead, the
Court analyzed the language of the Charter and concluded that it permitted amendment:
The use of an indefinite article in referring to the city council’s authority to “adopt
a budget” suggests that the council is not limited to adopting the budget proposal
submitted by the mayor. By the same token, if the city council is authorized to
adopt a budget but is not restricted to consideration of the mayor’s budget proposal,
we can infer that the city council may alter or amend the mayor’s budget proposal
as long as the approved budget otherwise complies with local and state law. [Id.]
The Court also rejected the plaintiff’s argument that the case was controlled by Detroit City
Council v Stecher, 430 Mich 74; 421 NW2d 544 (1988), in which the Michigan Supreme Court
rejected the attempt by the city council to make an amendment to the mayor’s budget,
distinguishing that case on the basis that the mid-year amendment was to a previously passed
budget. Id. Thus, the Court concluded that the trial court did not abuse its discretion when it
denied the defendant’s request for writ of mandamus. Id. at 3.
Zelenko is more persuasive than Stecher, despite it being unpublished, because the facts
are nearly identical and it informs the outcome of this case. We therefore adopt the reasoning in
Zelenko as our own. As in Zelenko, the Charter provides that the mayor is to develop and prepare
a budget for presentation to the city council. And like Zelenko, in which the Burton City Charter
authorized the city council to pass “a” budget, the Charter likewise authorizes plaintiff to “adopt
a budget for the ensuing fiscal year and make an appropriation of the money needed therefor.”
Warren Charter, § 8.5(a) (emphasis added). Thus, we find persuasive our reasoning in Zelenko
that the Charter’s use of the indefinite article “a” suggests that plaintiff is not limited to only
approving or disapproving defendant’s proposed budget. Rather, plaintiff is empowered to pass
any budget so long as it otherwise complies with the law. See Zelenko, unpub op at 2.
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Defendant contends, however, that because Zelenko is not binding authority this Court
should follow Stecher and conclude that plaintiff was not permitted to amend defendant’s budget.
In Stecher, the mayor submitted mid-year budget proposals to the plaintiff-council in an effort to
balance the budget in accordance with the UBAA. Stecher, 430 Mich at 78. The plaintiff made
amendments to the budget, which the mayor rejected. Id. Plaintiff then brought suit for a writ of
mandamus against the defendant-budget director to direct him to make the budget amendments.
Id. at 79.
The Michigan Supreme Court reversed this Court’s opinion affirming the trial court’s order
in favor of the plaintiff because the Detroit City Charter did not authorize the plaintiff to make
mid-year budget amendments:
Section 8-211 allows the council to make transfers of appropriations during
the fiscal year “upon written request by the mayor.” This power is distinguished
from that of the council during the initial budget adoption process when the council
has the power to adopt the budget proposals submitted by the mayor “with or
without amendment.” Section 8–207. During the fiscal year the council is limited
to responding to specific written requests from the mayor. There is no authorization
in the charter for the council to initiate its own budget amendment proposals or to
amend those submitted by the mayor. [Stecher, 430 Mich at 83.]
In our view, while Stecher provides some support for defendant’s argument that plaintiff
was not entitled to amend the budget, the reasoning in Zelenko as to why Stecher does not apply
to the case is equally true here. The issue in Stecher was whether the plaintiff could amend a mid-
year budget proposal submitted by the mayor in a circumstance where the city charter vested the
responsibility for such proposal with the mayor. As such, the outcome of that case was dependent
upon the language of the charter at issue and its interplay with the mid-year budget process.
In this case, the Charter requires that defendant prepare and submit a proposed budget to
plaintiff. On the basis of the plain language of the Charter, plaintiff is required only to pass “a”
budget, not “the” budget. As this Court stated in Zelenko, this language strongly suggests that
plaintiff is not limited to approving or rejecting defendant’s budget, but rather is empowered to
pass any budget that otherwise complies with the law.
We find further support for plaintiff’s position from this Court’s recent decision in Macomb
Co Prosecutor v Macomb Co Executive, ___ Mich App ___; ___ NW2d ___ (Docket No. 359887).
There, this Court addressed whether the Macomb County Board of Commissioners had authority
under the County Charter “to appropriate more funds for a line item than that contained in the
[Macomb County] Executive’s proposed budget.” Macomb Co Prosecutor, ___ Mich App at ___;
slip op at 7. In concluding that the Board had authority to adopt an independent budget, this Court
relied on language in the County Charter providing the Executive with authority to submit “a
proposed annual budget” and a budget “recommended by the Executive.” Id. at 9. This Court
summarized the budgetary scheme as follows: “the County Charter creates a scheme whereby the
budgetary process is initiated by the Executive through issuance of a recommended budget, and
then the Board has the final authority to appropriate funds—subject, of course, to the veto power
of the Executive.” Id. The Warren City Charter provides for a similar system. The Charter
describes the budget submitted by defendant to plaintiff as “a recommended budget”, Warren
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Charter § 8.2, and a “budget proposal,” Warren Charter, § 8.3. Plaintiff must review defendant’s
recommended budget and then “adopt a budget” for the next fiscal year. Warren Charter, §§
8.3, 8.5(a) (emphasis added). Consistent with Macomb Co Prosecutor, plaintiff possesses the
authority under the Charter to amend defendant’s recommended budget and adopt an independent
budget.
Because plaintiff was within its rights to reject defendant’s budget and pass its own,
plaintiff acted lawfully when it did not appropriate money to the “Contractual Services” line item,
or when it reduced the “Community Promotions” line item from $75,000 to $10,000. Conversely,
after plaintiff passed the resolution adopting the budget, defendant was not entitled to proceed with
his own budget as if it had been passed by plaintiff. Indeed, during the litigation, defendant has
taken contradictory views on what he was authorized to do after plaintiff rejected his proposed
budget. At times, defendant suggests that once plaintiff rejected his budget, defendant was
obligated to return to plaintiff with a new budget for its consideration. Other times, defendant
suggests that he was entitled to proceed with his budget without having to return to plaintiff. In
any case, neither of defendant’s arguments are persuasive. Defendant was obligated to only
authorize spending money that was appropriated by plaintiff.
In sum, the trial court correctly determined that plaintiff was free to amend defendant’s
proposed budget. Accordingly, the trial court did not abuse its discretion when it granted
declaratory judgment in plaintiff’s favor.
Next, defendant contends that the trial court abused its discretion when it granted plaintiff’s
motion for preliminary injunction because plaintiff was unlikely to prevail on the merits.
Specifically, defendant argues that the Charter does not permit plaintiff to amend the budget, and
asserts that mandamus is improper because plaintiff has not identified a clear legal right or duty
applicable to the parties. We disagree.
As explained above, the trial court did not abuse its discretion because plaintiff was likely
to prevail on the merits of its declaratory judgment claim. The Charter permits plaintiff to amend
defendant’s proposed budget. In addition, the trial court did not abuse its discretion when it
concluded that plaintiff was likely to prevail on its mandamus claim.
A writ of mandamus is an “extraordinary remedy.” Citizens for Protection of Marriage v
Bd of State Canvassers, 263 Mich App 487, 492; 688 NW2d 538 (2004). The purpose of a writ
of mandamus is to compel action by a public official. Attorney General v Bd of State Canvassers,
318 Mich App 242, 248; 896 NW2d 485 (2016), app withdrawn 500 Mich 907 (2016). A writ of
mandamus is proper if the party seeking the writ can meet the following requirements:
(1) the party seeking the writ has a clear legal right to performance of the specific
duty sought, (2) the defendant has the clear legal duty to perform the act requested,
(3) the act is ministerial, and (4) no other remedy exists that might achieve the same
result. [Id. (quotation marks and citation omitted).]
“Within the meaning of the rule of mandamus, a ‘clear, legal right’ is one clearly founded
in, or granted by, law; a right which is inferable as a matter of law from uncontroverted facts
regardless of the difficulty of the legal question to be decided.” O’Connell v Dir of Elections, 317
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Mich App 82, 91; 894 NW2d 113 (2016). A clear legal duty is a statutory obligation imposed on
a public official to perform a specific act. Casco Twp v Secretary of State, 472 Mich 566, 577;
701 NW2d 102 (2005); see also People v Parlovecchio, 319 Mich App 237, 242; 900 NW2d 356(2017) (“[T]he legal duty cannot rest solely on a contractual obligation.”). “A ministerial act is
one in which the law prescribes and defines the duty to be performed with such precision and
certainty as to leave nothing to the exercise of discretion or judgment.” Hillsdale Co Senior Servs,
Inc v Hillsdale Co, 494 Mich 46, 58 n 11; 832 NW2d 728 (2013) (quotation marks and citation
omitted).
Plaintiff alleged it had a clear legal right to have defendant act in accordance with the
Charter and Michigan law. Implicit in this allegation is the right to have plaintiff’s prerogatives
as the legislative body protected from encroachment by the executive. The Charter gives to
plaintiff the power to appropriate money; thus, plaintiff had the clear legal right to be the only
governing entity within Warren that could do so.
Defendant also had a clear legal duty to comply with the law by authorizing only those
expenditures that were first approved by plaintiff. Contrary to defendant’s assertion, this is not a
generalized duty that is held by the public at large. Defendant’s role as mayor is set forth in the
Charter, which provides in relevant part that “no money shall be drawn from the treasury of the
city, except in accordance with an appropriation for such purpose, nor shall any obligation for the
expenditure of money be incurred without an appropriation covering all payments which will be
due under such obligation during the fiscal year.” Warren Charter, § 8.6(a). This is a specific duty
that instructs defendant when he can and cannot spend money.
Lastly, the legal duties that defendant was required to comply with were ministerial in
nature in that they required defendant to follow the expenditure rules in the Charter. Contrary to
defendant’s suggestion, there is no discretion in determining whether money has been appropriated
for a particular program or project. Plaintiff either appropriated the money or it did not. If the
money is appropriated, defendant is authorized to spend it. If the money is not appropriated, he is
not so authorized.
Affirmed. Plaintiff, as the prevailing party, may tax costs. MCR 7.219(A).
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
/s/ Kristina Robinson Garrett
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