Tom Rotta v. City of Ludington ( 2024 )

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
TOM ROTTA, UNPUBLISHED
February 22, 2024
Plaintiff-Appellee,
v No. 364849
Mason Circuit Court
CITY OF LUDINGTON, LC No. 22-000153-AW
Defendant-Appellant.
Before: HOOD, P.J., and MURRAY and MALDONADO, JJ.
PER CURIAM.
Defendant City of Ludington appeals as of right the trial court’s order denying its motion
for summary disposition and granting plaintiff Tom Rotta’s cross-motion for summary disposition.
We reverse and remand for entry of an order granting defendant’s motion for summary disposition.
I. FACTUAL AND PROCEDURAL HISTORY
This action arises out of a challenge to the approval of a ballot proposal to revise defendant
City of Ludington’s charter. At a Ludington city council meeting on June 14, 2021, city manager
Mitch Foster asked council if they had any interest in seeking a charter commission to revise the
city charter, and stated that he would put together information on cost and process to present to
council.
At the November 8, 2021 city council meeting, city manager Foster presented a
memorandum to council which stated, “The registered voters in the city will elect nine electors of
the city to sit on the charter revision commission,” and:
The projected cost for a complete charter revision is being proposed in the
upcoming budget and will cover a two year period of time. The proposed cost for
2022 is $34,000 and for 2023 is $47,300.
City council then passed the resolution attached to the memorandum, which states in pertinent
part:
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WHEREAS, the Section 18 of the Act (MCL §117.18), provides that the legislative
body of a city may declare by a 3/5 vote of its members elect that there shall be a
general revision of the city’s charter, and if so declared, the question of whether to
undertake such a general revision of the city charter shall be submitted to the
electors of the city for adoption or rejection at the next general or municipal
election, or at a special election; and
WHEREAS the next special election for the City will be held on May 3, 2022; and
* * *
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of
Ludington declares for a general revision of the City Charter of the City of
Ludington, as provided and authorized by Public Act 279 of the Public Acts of
1909, State of Michigan, as amended.
BE IT FURTHER RESOLVED, that the question of having a general charter
revision shall be submitted to the electors of the City for adoption or rejection at a
special election, to be held on May 3, 2022.
The agenda for the city council’s November 22, 2021 meeting included presentation of the
2022 Budget and Capital Improvement Plan, and at its December 6, 2021 meeting, city council
held a public hearing on approval of the budget, and voted to approve the budget.
Ludington held an election on May 3, 2022, and asked voters, “Shall there be a general
revision of the charter of the City of Ludington?” Voters approved the ballot proposal, with 667
votes for and 411 against (approximately 62% for and 38% against).
On June 2, 2022, plaintiff applied for leave to file a quo warranto complaint pursuant to
MCL 600.4545, to challenge the May 3, 2022 election. In his attached complaint, plaintiff claimed
election fraud or error, asserting defendant failed to properly “fix” the compensation of and
expenses for the charter commission in accordance with MCL 117.19 of the Home Rule City Act
(HRCA), MCL 117.1a et seq., which affected the outcome of the election because voters were
unaware of the costs associated with revising the city charter. Specifically, plaintiff, a Ludington
resident, alleged: the resolution passed by city council at the November 8, 2021 meeting failed to
fix the compensation or expenses for the proposed revision commission; the line for “professional
services” in the proposed 2022 budget “actually contained the ‘hidden’ proposed budget amount
for the CRC, should the revision ballot question pass,” but the budget passed at the next meeting
with no clarification; “[p]roposed numbers in a budget, votes by councilors who were ignorant of
the expenses allocated for the CRC in a deliberately vague line item of ‘professional services’ does
not qualify as fixing the compensation of the CRC members or the money for the expenses
thereof”; city council never adopted a resolution, ordinance, or motion fixing the costs of the
charter revision commission; and “[n]o costs were assigned to the ballot question, making many if
not most voters to believe that there would be no (or negligible) costs of a charter revision were
they to vote ‘yes.’ ”
Defendant responded in opposition to plaintiff’s application for leave to file a quo warranto
complaint, requesting that the court deny leave because plaintiff did not demonstrate material fraud
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or error, nor that such error affected the outcome of the election. Defendant asserted plaintiff
provided no affidavits or proofs, as is required, to support his claims of material error.
Over four months later, defendant moved for summary disposition pursuant to MCR
2.116(C)(8) and (10), asserting first that it fixed the compensation of commission members and
overall expense of the commission in accordance with MCL 117.19, and that as early as November
8, 2021, the public had the opportunity to attend meetings or access the city manager’s
memorandum, included in the city council packet, which projected the cost for a 2022 and 2023
charter revision commission. According to defendant, it was not required to pass a resolution,
ordinance, or motion to comply with MCL 117.19, and “as of the conclusion of the December 6th
meeting of the City Council, the Council had (a) passed a resolution providing (inter alia) that the
charter revision commission, if approved by the voters, would meet at City Hall, and it had also
passed its official annual budget which (b) fixed the anticipated compensation of the charter
revision commission members, and (c) budgeted monies for the expenses of the commission and
its members’ compensation.” Defendant also argued that even if it failed to properly “fix” the
costs for the charter revision commission, dismissal is required because plaintiff has failed to
establish that a material fraud occurred, such that it affected the outcome of the election, to warrant
leave to file a quo warranto complaint.
Plaintiff responded and also moved for summary disposition pursuant to MCR
2.116(C)(10), acknowledging that defendant fixed by resolution the place of meeting for the
proposed commission, but arguing defendant otherwise failed to comply with MCL 117.19
because “to be totally clear the city council in passing the budget, along with the general public,
did not have access to [the commission compensation and expense], only an unexplained
‘professional services’ line in the city clerk’s budget section.” Defendant replied on December
19, 2022, reiterating its arguments regarding material error and challenging plaintiff’s arguments
that adoption of the budget did not satisfy MCL 117.19.
Further, plaintiff asserted his complaint satisfied the requirements for quo warranto actions
because defendant’s violation of MCL 117.19 left the public unaware of charter revision costs,
which “[m]ost assuredly” altered the outcome of the election. He also argued that the charter
revision ballot proposal was misleading because it did not include the associated costs, and is
therefore void. Thus, plaintiff requested that the court void the May 3, 2022 charter revision
election results.
The court ruled on the record that adoption of the general budget may have been sufficient
to fix the expenses for a revision commission, but was insufficient to fix the compensation in
accordance with MCL 117.19. Additionally, in response to defendant counsel’s inquiry regarding
the materiality of any error, the court stated:
I would say by not—by not complying with the statute, which is required under
MCL 117.19, not putting that out there as far as the compensation, that would be a
material thing that voters should—should’ve been informed of. And so, do I think
that was done intentional? No. But on the other hand, I think that’s—that’s
material for the voters to understand that so.
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In an order entered January 19, 2023, the court codified its ruling, denying defendant’s
motion for summary disposition and granting plaintiff’s counter-motion for summary disposition
under MCR 2.116(C)(10). The court then amended that order on January 23, 2023, adding final
order language.
II. STANDARDS OF REVIEW
Defendant brought its summary-disposition motion under both MCR 2.116(C)(8) and (10),
but the trial court granted plaintiff’s counter-motion under MCR 2.116(C)(10). This Court reviews
de novo a trial court’s grant of summary disposition. Int’l Union UAW v Central Mich Univ
Trustees, 295 Mich App 486, 493; 815 NW2d 132 (2012).
A motion for summary disposition made under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint. In ruling on a motion brought under (C)(10), [t]he
Court considers all affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties in the light most favorable to the party opposing
the motion. [Charter Twp of Pittsfield v Washtenaw Co Treasurer, 338 Mich App
440, 449; 980 NW2d 119 (2021) (quotations marks and citations omitted; alteration
in original).]
“Summary disposition is proper if there is no genuine issue regarding any material fact and the
moving party is entitled to judgment as a matter of law.” Lakeview Commons v Empower Yourself,
290 Mich App 503, 506; 802 NW2d 712 (2010) (quotation marks and citation omitted). “There is
a genuine issue of material fact when reasonable minds could differ on an issue after viewing the
record in the light most favorable to the nonmoving party.” Id. (quotation marks and citation
omitted).
The trial court did not explicitly rule on plaintiff’s quo warranto application. To the extent
the trial court implicitly granted plaintiff leave to proceed quo warranto by granting him summary
disposition, that decision is reviewed for an abuse of discretion. Barrow v Detroit Mayor, 290
Mich App 530, 539; 802 NW2d 658 (2010). “An abuse of discretion occurs only when the trial
court’s decision falls outside the range of ‘reasonable and principled outcome[s].’ ” Id. (citation
omitted; alteration in original).
III. ANALYSIS
Again, plaintiff applied for leave to proceed quo warranto to challenge the approval of the
May 3, 2022 charter revision ballot proposal on the basis that defendant failed to “fix” the
compensation and expenses for the revision commission prior to that election in accordance with
MCL 117.19.
Under MCL 600.4545:
An action may be brought in the circuit court of any county of this state whenever
it appears that material fraud or error has been committed at any election in such
county at which there has been submitted any constitutional amendment, question,
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or proposition to the electors of the state or any county, township, or municipality
thereof. [MCL 600.4545(1).]1
“To proceed with a claim for quo warranto, a citizen must obtain leave of the trial court. MCR
3.306(B)(2).” Hanlin v Saugatuck Twp, 299 Mich App 233, 238; 829 NW2d 335 (2013). “Under
MCL 600.4545, ‘material fraud or error’ means fraud or error that ‘might have affected the
outcome of the election.’ ” Barrow, 290 Mich App at 542 (citation omitted). In other words, “[a]
trial court properly denies an application to proceed by quo warranto when the application fails to
disclose sufficient facts and grounds and sufficient apparent merit to justify further inquiry.”
Hanlin, 299 Mich App at 238. “While a ‘but for’ showing is not necessary, the plaintiff’s ‘proofs
must be sufficient to support a fact finding that enough votes were tainted by the alleged fraud to
affect the outcome.’ ” Barrow, 290 Mich App at 542.
For two separate reasons, plaintiff was not entitled to quo warranto relief. First, the city
committed no error in conducting the election. Second, even if it did, plaintiff produced no
evidence that the error was material to the election results.
A. THE CITY COMPLIED WITH MCL 117.19
The first question is whether the city violated state law when seeking a vote on the charter
commission. Under the HRCA:
Any city desiring to revise its charter shall do so in the following manner, unless
otherwise provided by charter; when its legislative body shall by a 3/5 vote of the
members elect declare for a general revision of the charter, or when an initiatory
petition shall be presented therefor as provided in section 25, the question of having
a general charter revision shall be submitted to the electors for adoption or rejection
at the next general or municipal election, or at a special election. In case the electors
shall, by a majority vote, declare in favor of such revision, a charter commission
shall be elected within 60 days consisting of 9 electors . . . . [MCL 117.18]
Further, under section 19 of the HRCA:
The legislative body of the municipality unless it is otherwise provided, shall fix in
advance of the election of a charter commission the place of its meeting, the
compensation of its members, the money for the expense thereof, and if need be
provide the ballots for election. [MCL 117.19.]
Here, city council passed a resolution in November 2021 declaring for a general revision
of the city charter and resolving to submit the question to electors at a special election held on May
3, 2022. The measure passed on May 3 by a vote of 667 to 411 (approximately 62% for and 38%
against). However, the trial court ultimately considered plaintiff’s quo warranto application and
1
This is the version of MCL 600.4545(1) effective until February 13, 2024. The amendments to
MCL 600.4545(1) do not change our analysis.
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complaint and granted his motion for summary disposition on the basis that defendant failed to fix
at least the compensation for potential revision commission members prior to the election.
On appeal, as below, defendant argues that it complied with the mandates of MCL 117.19
to fix compensation and expenses for the proposed charter revision commission, citing documents
included with its summary-disposition motion that were compiled to assist in drafting the city’s
2022-2024 budgets, as well as the city council’s adoption of the budget on December 6, 2022,
which included the estimated expenses for the charter revision commission.2
As both parties admit, the statute itself does not define “fix.” Plaintiff looks to the
dictionary definition, asserting that to fix means to “agree on,” and argues that MCL 117.19 does
not allow for a city to fix costs and compensation in proposed budgets. But plaintiff cites no
caselaw directly supporting this argument, nor does defendant cite caselaw supporting its argument
that passing a budget fixes compensation and expenses under MCL 117.19. Rather, plaintiff
argues that defendant did not fix the compensation and costs for the proposed charter revision
commission because city council never saw the budget worksheets where the expected revision
costs were covered, no votes or discussion regarding compensation occurred after the November
8, 2021 council meeting, and “the [city] council cannot fix the costs of the charter revision by
having their administrators hide it deep in the budget where nobody else can find, . . . [n]or can
the city council reasonably have been given the power to fix the costs just by their reception of a
memo from the city manager.”
The evidence in the record, however, contradicts plaintiff’s assertions. With its motion for
summary disposition, defendant produced a document entitled “CHARTER REVISION BUDGET
BUDGETED COSTS FOR 2022 AND 2023,” which lists estimated wages for charter commission
members at $13,500 for 2022 and $6,750 for 2023, and adds those wages to projected costs for an
estimated total budget of $34,228.10 for 2022 and $47,264.05 for 2023. Defendant also produced
a document entitled “2022 Expenditure Budget” containing as line items these same total projected
budgets for “Charter Revisions” under a broader category entitled “801 Professional Services,”
with a total budget of $46,725 for 2022 and $63,575 for 2023. And the budget ultimately adopted
by city council includes $46,800 for “professional services” in 2022 and $63,600 in 2023.3
Defendant asserts that these documents along with others were included in city staff’s
efforts to develop the city’s proposed budget. Although it is unclear whether city council as a
whole saw each of these specific documents, at a minimum it appears that at least the finance
and/or personnel committee(s) reviewed and utilized them in formulation of the city’s budget for
2022 and 2023, as the budget ultimately adopted by city council included the totals matching each.
Further, city manager Foster’s memorandum to council included the proposed budget for the
commission, stating:
2
The meeting place requirement in MCL 117.19 is not at issue.
3
Although passed after the May 3, 2022 election, city council’s June 27, 2022 resolution
acknowledging and reaffirming the place of meeting, compensation, and expenses for the charter
revision commission includes the above information.
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The projected cost for a complete charter revision is being proposed in the
upcoming budget and will cover a two year period of time. The proposed cost for
2022 is $34,000 and for 2023 is $47,300.
Considering the above evidence, despite the lack of law regarding how compensation and
expenses are appropriately fixed for charter revision commissions, there is no genuine issue of
material fact as to whether defendant complied with MCL 117.19. Defendant fixed both
compensation and expenses for the proposed charter revision commission through the budget
process that ultimately resulted in the 2022 and 2023 budgets, which incorporated funds
specifically delineated for compensation and expenses of the proposed charter revision
commission. The statute only requires that those figures be “fixed” prior to the election, and the
unrefuted evidence shows that they were.
Plaintiff disputes defendant’s ability to fix compensation and expenses for the charter
revision commission by citing city charter provisions which require fixing the compensation of
certain individuals by resolution, but he does not explicitly argue that these provisions apply
directly to charter revision commission members. And his citation to the Michigan Municipal
League handbook is no more convincing. According to plaintiff, the handbook indicates that no
special procedure for carrying out the directives of MCL 117.19 is prescribed, but normally one
or more resolutions would be adopted. However, at least according to plaintiff’s representation of
the contents of the handbook, resolution is not necessary to comply with MCL 117.19. Rather, it
is simply suggested or often utilized, and there is no indication that the handbook is binding on
defendant.
B. NO MATERIAL ERROR
However, even assuming, arguendo, that defendant did not properly fix the compensation
and expenses for its proposed charter commission prior to the May 3, 2022 election, the trial court
abused its discretion by implicitly granting plaintiff’s application for quo warranto relief. Again,
defendant applied for leave to file a quo warranto complaint pursuant to MCL 600.4545, which
requires in part that a successful plaintiff provide facts showing that any error was “material.”
Here, not only did the trial court fail to make any finding on the basis of plaintiff’s proofs
that the outcome of the election may have been different, but plaintiff failed to disclose facts
sufficient to support a fact finding that any error in fixing the compensation and/or expenses for
the charter revision commission in accordance with MCL 117.19 might have altered the outcome
of the election. In his complaint, plaintiff alleges that through omission of expenses, voters were
led to believe that a vote for a charter commission would impose no additional costs on the citizens
of Ludington, and “[b]ased upon the allegations contained herein, material fraud or error occurred
in Ludington’s special election on May 3, 2022 so that the outcome of the election was affected,
namely voters had a legal right to know what the proposed charter commissions’ compensation
and the money for the expense thereof was fixed at before they cast an up or down vote on whether
to do a charter revision.” These allegations, however, are purely speculative, and no evidence
produced by plaintiff supports a different conclusion. See Hanlin, 299 Mich App at 238 (“A trial
court properly denies an application to proceed by quo warranto when the application fails to
disclose sufficient facts and grounds and sufficient apparent merit to justify further inquiry.”).
And, as provided above, much of the information regarding the costs of a charter revision
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commission—including the total amount budgeted for each year of its operation—were publicly
available. Further, although the trial court found that it was “material” for voters to have
knowledge of compensation for charter revision commission members, that is not a finding that
any error in fixing compensation and expenses under MCL 117.19 was material such that it might
have affected the outcome of the election. Accordingly, the trial court erred by granting plaintiff’s
motion for summary disposition and thereby implicitly abused its discretion in granting his
application to proceed quo warranto.
We reverse and remand for entry of an order granting defendant’s motion for summary
disposition. We do not retain jurisdiction.
/s/ Noah P. Hood
/s/ Christopher M. Murray
/s/ Allie Greenleaf Maldonado
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