Stand Up for Democracy v. Secretary of State

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
FILED AUGUST 3, 2012
STATE OF MICHIGAN
SUPREME COURT
STAND UP FOR DEMOCRACY,
Plaintiff-Appellee,
v No. 145387
SECRETARY OF STATE and BOARD OF
STATE CANVASSERS,
Defendants,
and
CITIZENS FOR FISCAL
RESPONSIBILITY,
Intervenor-Defendant-
Appellant.
BEFORE THE ENTIRE BENCH
MARY BETH KELLY, J.
This case requires that we determine whether to grant a writ of mandamus in favor
of plaintiff, Stand Up For Democracy, to compel the Board of State Canvassers to certify
plaintiff’s referendum petition for inclusion on the November 2012 ballot. Intervening
defendant, Citizens for Fiscal Responsibility, challenged the certification of plaintiff’s
referendum petition, alleging that it failed to comply with the type-size requirement of
MCL 168.482(2) and that the doctrine of substantial compliance, whereby technical
deficiencies are resolved in favor of certification, did not apply. The Court of Appeals
agreed with both assertions, but concluded it was required to follow its decision in
Bloomfield Charter Township v Oakland County Clerk1 and conclude that the petition
substantially complied with the type-size requirement of MCL 168.482(2) and that
certification was required. Consequently, the Court of Appeals directed the board to
certify the petition.2
However, because MCL 168.482(2) uses the mandatory term “shall” and does not,
by its plain terms, permit certification of deficient petitions with regard to form or
content, a majority of this Court holds that the doctrine of substantial compliance is
inapplicable to referendum petitions submitted for certification. Therefore, we reverse
the Court of Appeals’ judgment in this regard and we overrule Bloomfield Charter Twp.
Three justices of this Court further conclude that the type-size requirement of
MCL 168.482(2) requires that the “type,” not the “letters,” of the petition heading
measure 14 points. Because the Court of Appeals held that plaintiff failed to actually
comply with the type-size requirement of MCL 168.482(2) given that the letters did not
1
Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich. App. 1; 654 NW2d 610 (2002).
2
Stand Up For Democracy v Secretary of State, ___ Mich App ___; ___ NW2d ___
(2012). The Court of Appeals sought to convene a conflict panel, MCR 7.215(J)(2) and
(3), but a majority of the Court declined to convene the panel in an order entered June 14,
2012. Stand Up For Democracy v Secretary of State, ___ Mich App ___ (2012).
2
measure 14 points, we would also have reversed that portion of the Court of Appeals’
judgment.
Because a majority of this Court holds that a new writ of mandamus should enter
directing the Board of State Canvassers to certify plaintiff’s petition as sufficient, a
majority of this Court directs the Board of State Canvassers to certify plaintiff’s petition
for the ballot. Pursuant to MCR 7.317(C)(3), we direct the Clerk of the Court to issue the
judgment order forthwith.
I. FACTS AND PROCEDURAL HISTORY
On February 29, 2012, plaintiff filed its referendum petition to invoke a
referendum with regard to 2011 PA 4, MCL 141.1501 et seq., the emergency financial
manager law, and to request certification of the petition from the Board of State
Canvassers.3 The petition contained 203,238 valid signatures, well exceeding the number
3
The people’s power of referendum is a constitutional right. Const 1963, art 2, § 9
provides, in relevant part:
The people reserve to themselves the power to propose laws and to
enact and reject laws, called the initiative, and the power to approve or
reject laws enacted by the legislature, called the referendum. . . . The
power of referendum does not extend to acts making appropriations for
state institutions or to meet deficiencies in state funds and must be invoked
in the manner prescribed by law within 90 days following the final
adjournment of the legislative session at which the law was enacted. To
invoke the . . . referendum, petitions signed by a number of registered
electors, not less than . . . five percent for referendum of the total vote cast
for all candidates for governor at the last preceding general election at
which a governor was elected shall be required.
No law as to which the power of referendum properly has been
invoked shall be effective thereafter unless approved by a majority of the
electors voting thereon at the next general election.
3
necessary to certify the petition and to place the referendum on the November 2012
ballot. On March 14, 2012, plaintiff submitted its printer’s affidavit attesting that the
petition heading was “PRINTED IN CAPITAL LETTERS IN 14-POINT BOLDFACE
TYPE[.]”
On April 9, 2012, intervenor filed a challenge to the form of plaintiff’s referendum
petition, asserting, in part, that the heading, “REFERENDUM OF LEGISLATION
PROPOSED BY INITIATIVE PETITION,” did not comply with the requirement of
MCL 168.482(2) that the heading be “printed in capital letters in 14-point boldfaced
type . . . .”
The Board of State Canvassers considered intervenor’s challenge on April 26,
2012. At the hearing, intervenor asserted that the form and content requirements of MCL
168.482(2) are mandatory. Intervenor submitted two affidavits of two printers who
reviewed the petition and stated that the petition was deficient because its heading did not
measure 14-point type. Plaintiff countered that the board should apply the doctrine of
substantial compliance and approve the petition and, alternatively, that its petition
actually complied with the type-size requirement of the statute. Plaintiff relied on its
printer’s affidavit, as well as the expert testimony of two printers, in support of its
Once the Board of State Canvassers makes its official declaration of the sufficiency of a
referendum petition and certifies the petition, the law subject to the referendum is no
longer effective. See MCL 168.477(2) (“[A] law that is the subject of the referendum
continues to be effective until the referendum is properly invoked, which occurs when the
board of state canvassers makes its official declaration of the sufficiency of the
referendum petition.”).
4
argument. Plaintiff also criticized one of intervenor’s expert’s affidavits for simply
measuring one of the capital letters in the heading.
At the close of the hearing, two members of the board voted in favor of a motion
to certify the petition, reasoning that “there was more than substantial compliance, . . .
there was total compliance.” The remaining two board members voted to deny the
motion, believing there to be a “legitimate question as to the size of the words” and
reasoning that substantial compliance is insufficient under MCL 168.482(2) given its
mandatory language. Consequently, the board did not approve the motion to certify the
petition.
Plaintiff then filed a complaint for mandamus in the Court of Appeals, requesting
the Court to order defendants, the Board of State Canvassers and the Secretary of State,
to certify the petition for inclusion on the November 2012 ballot because the board had a
clear legal duty to certify the petition, because plaintiff either substantially or actually
complied with the 14-point-type statutory requirement. The Court of Appeals first ruled
that “the Calibri font utilized in plaintiff’s petition heading is smaller than the prescribed
14-point type measurement of 14/72 inches.”4 Without defining the term “type,” the
panel reasoned that “text that does not measure 14 point, or 14/72 inches, is insufficient
under the statute.”5 The Court of Appeals, however, concluded that it was bound to
follow Bloomfield Charter Twp and concluded that plaintiff’s petition had substantially
4
Stand Up For Democracy, ___ Mich App at ___; slip op at 12.
5
Id. at ___; slip op at 12.
5
complied with MCL 168.482(2).6 The Court therefore granted plaintiff’s complaint for a
writ of mandamus, compelling inclusion of the referendum on the ballot.
We granted oral argument on the application for leave to appeal to consider “(1)
whether plaintiff actually complied with the 14-point type requirement in MCL
168.482(2), specifically given the terms ‘point’ and ‘type;’ and (2) if not, whether
substantial compliance with the 14-point type requirement in § 482(2) is sufficient to give
plaintiff a clear legal right to certification of the petition.”7 In lieu of granting leave to
appeal, pursuant to MCR 7.302(H)(1) a majority of this Court concludes that the Court of
Appeals’ judgment is reversed, that substantial compliance is insufficient to certify
plaintiff’s petitions, and we issue a writ of mandamus, directing the Board of State
Canvassers to certify plaintiff’s petition as sufficient.
II. STANDARD OF REVIEW
We review for an abuse of discretion a court’s decision to issue or deny a writ of
mandamus.8 This dispute also involves a question of statutory interpretation, which we
review de novo.9 “[O]ur primary task in construing a statute, is to discern and give effect
to the intent of the Legislature.”10 The words of the statute are the most reliable evidence
6
Id. at ___; slip op at 12.
7
Stand Up For Democracy v Secretary of State, 491 Mich. ___ (2012).
8
Casco Twp v Secretary of State, 472 Mich. 566, 571; 701 NW2d 102 (2005).
9
People v Kolanek, 491 Mich. 382, 393; ___ NW2d ___ (2012).
10
Sun Valley Foods Co v Ward, 460 Mich. 230, 236; 596 NW2d 119 (1999).
6
of the Legislature’s intent and we must give each word its plain and ordinary meaning.11
“In interpreting the statute at issue, we consider both the plain meaning of the critical
word or phrase as well as ‘its placement and purpose in the statutory scheme.’”12
III. ANALYSIS
This appeal concerns a big constitutional issue, even though its focus is something
as small as 14/72 of an inch. This matter turns on what many citizens may regard as a
trivial issue: Whether a heading on a petition signed by over 200,000 people satisfies the
statutory requirement that the petition heading be in “14-point boldfaced type[.]”13 As
technical as this appears, the rule of law is implicated here because this issue concerns the
constitutional foundation of how we govern ourselves.
Although we colloquially call ourselves a “democracy,” we are not. We are a
constitutional republic in which we, as Michigan citizens, elect our representatives to
local and state legislative bodies to enact our laws. This republican form of government
is guaranteed to us in the United States Constitution.14
In Michigan, we have enacted into our State Constitution an exception: The right
of the people by initiative or referendum directly to enact laws or to repeal those validly
11
Krohn v Home-Owners Ins Co, 490 Mich. 145, 156; 802 NW2d 281 (2011).
12
Sun Valley Foods Co, 460 Mich at 237, quoting Bailey v United States, 516 U.S. 137,
145; 116 S. Ct. 501; 133 L. Ed. 2d 472 (1995).
13
MCL 168.482(2).
14
Article IV, § 4 of the United States Constitution states: “The United States shall
guarantee to every State in this Union a Republican Form of Government . . . .”
7
enacted by our Legislature.15 Thus, as plaintiff seeks here, it is possible for a small
minority of citizens to suspend a validly enacted law and require that that law be voted on
in a general election. This case well demonstrates that tension between constitutional
interests: the right to a republican form of government versus a constitutional process that
allows a small minority to suspend the enactments of that government.
In the very constitutional provision creating this right of petition by initiative and
referendum, the Legislature is required to prescribe the rules by which such petitions may
validly be made.16 It has done so, and one such provision is the mandatory 14-point-
boldfaced-type requirement that is challenged here.17 No doubt in most ordinary
circumstances whether a heading is in 14-point or 12-point type would be an
inconsequential issue. But, because the power of referendum affects duly enacted laws,
these so-called “trivial” requirements protect the citizens of Michigan from having their
laws suspended by small factions—unless the petitioners satisfy all the requirements for
invoking a referendum.18 With these principles in mind, we turn to the statutory
requirement that the petition heading “shall be . . . printed in capital letters in 14-point
boldfaced type[.]”19
15
Const 1963, art 2, § 9.
16
Const 1963, art 2, § 9 (“The power of referendum . . . must be invoked in the manner
prescribed by law . . . .”).
17
MCL 168.482(2).
18
See Thompson v Secretary of State, 192 Mich. 512, 522-523; 159 N.W. 65 (1916).
19
MCL 168.482(2).
8
A. SUBSTANTIAL COMPLIANCE
Plaintiff first suggests that the statutory scheme allows for certification of a
referendum petition if that petition substantially complies with MCL 168.482.20 The
applicable statutory provision, MCL 168.482(2) provides:
If the measure to be submitted proposes a constitutional amendment,
initiation of legislation, or referendum of legislation, the heading of each
part of the petition shall be prepared in the following form and printed in
capital letters in 14-point boldfaced type:
* * *
REFERENDUM OF LEGISLATION
PROPOSED BY INITIATIVE PETITION[21]
The Legislature’s use of the term “shall” “‘indicates a mandatory and imperative
directive.’”22 Nowhere does the language of this provision indicate that compliance with
the 14-point-type requirement may be achieved despite deficiencies. Indeed, other
20
The partial dissent of Justices CAVANAGH, MARILYN KELLY, and HATHAWAY claims
that it is “unnecessary,” post at 3, to rule on the issue of substantial compliance.
However, the Court of Appeals treated this case as one involving substantial compliance
and analyzed the doctrine in detail. Indeed, the basis for the Court of Appeals’ grant of
mandamus was its conclusion that plaintiff had substantially complied with the type-size
requirement of MCL 168.482(2). This Court, therefore, has the responsibility to obviate
any doctrinal confusion regarding substantial compliance before analyzing the Court of
Appeals’ ruling. Thus, the justices concluding that substantial compliance is insufficient
are not reaching an “unnecessary” issue, but are instead correcting an error of law that
pervaded the Court of Appeals’ decision and was essential to its ruling.
21
Emphasis added.
22
Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich. 194, 218; 801 NW2d 35
(2011), quoting Burton v Reed City Hosp Corp, 471 Mich. 745, 752; 691 NW2d 424
(2005).
9
provisions of the Michigan Election Law, MCL 168.1 et seq., demonstrate that the
Legislature knows how to construct language specifically permitting substantial
compliance with regard to form and content requirements.23 Similar language is
conspicuously absent from MCL 168.482(2) and demonstrates a clear intent that petitions
for referendums, voter initiatives, and constitutional amendments strictly comply with the
form and content requirements of the statute. This conclusion is further supported by the
Legislature’s 1965 amendment of MCL 168.482, which omitted language that
specifically permitted substantial compliance but retained the mandatory requirement that
the petition heading be in 14-point type.24 Indeed, the use of the mandatory term “shall”
in MCL 168.482(2), in the absence of any language indicating that substantial
compliance with the statute’s requirements suffices, indicates a clear intent that such a
petition must strictly comply with the type requirement. Consequently, substantial
23
See MCL 168.303(2) (the “nominating petition shall be substantially in the form
prescribed in section 544c”); MCL 168.546 (“nominating petitions . . . must comply
substantially with the above form”); MCL 168.590a(1) (a “qualifying petition shall be . . .
in substantially the same form as provided in section 590h”); MCL 168.590h(2) (“the
qualifying petition form shall be substantially as set forth in section 544c”); MCL
168.653a(1) (“notice [of a special election] shall be in substantially the following form”);
MCL 168.685(3) (“[new political party] petitions shall be in substantially the following
form”); MCL 168.697 (the “names of the several offices to be voted for shall be placed
on the ballot substantially in the following order”); MCL 168.759(5) (an “absent voter
ballot application shall be in substantially the following form”); MCL 168.761(4) (the
“clerk shall enclose with the ballot . . . a printed statement in substantially the following
form”); MCL 168.952a (“A person may print his or her own recall petitions if those
petitions comply substantially with the form prescribed by the secretary of state and the
requirements of section 544c(2).”).
24
Compare MCL 168.482, as amended by 1954 PA 116 (which included the phrase “type
of the approximate size set forth”), with MCL 168.482, as amended by 1965 PA 312(which omitted that phrase).
10
compliance with MCL 168.482(2) is not permitted. To certify a petition that does not
strictly comply with the requirements of MCL 168.482 on the basis that it substantially
complied with the statutory requirements would defeat the Legislature’s intent.
However, “our judicial role precludes [us from] imposing different policy choices than
those selected by the Legislature”; rather, we must apply the terms as written.25
Plaintiff, however, also relies on MCL 168.544d, which provides that petitions
circulated countywide “shall be substantially as provided in [MCL 168.482] . . ..”
Plaintiff asserts that this provision adopts the substantial compliance doctrine and permits
certification of nonconforming referendum petitions. Because plaintiff circulated its
petition countywide, MCL 168.544d is applicable. That provision provides:
Nominating petitions for the offices under this act and petitions for a
constitutional amendment, initiation of legislation, or referendum of
legislation or a local proposal may be circulated on a countywide form.
Petitions circulated countywide shall be on a form prescribed by the
secretary of state, which form shall be substantially as provided in sections
482, 544a, or 544c, whichever is applicable. The secretary of state may
provide for a petition form larger than 8–1/2 inches by 13 inches and shall
provide for identification of the city or township in which the person
signing the petition is registered. The certificate of the circulator may be on
the reverse side of the petition. This section does not prohibit the
circulation of petitions on another form prescribed by this act.
By its plain language, this provision permits the Secretary of State to prescribe a
form that itself “substantially” complies with the requirements of MCL 168.482. Thus, to
the extent that MCL 168.544d permits substantial compliance, it only permits the
Secretary of State to prescribe petition requirements that are in substantial compliance
25
People v McIntire, 461 Mich. 147, 152; 599 NW2d 102 (1999) (quotation marks and
citation omitted).
11
with MCL 168.482, MCL 168.544a, or MCL 168.544c of the Michigan Election Law.
Contrary to plaintiff’s contention, the statute does not allow a petitioner itself to
determine what substantially complies with the applicable election law requirements.
The Legislature only provided the Secretary of State with that discretion.
More significantly, the Secretary of State’s prescribed form, as permitted by MCL
168.544d, mandates strict compliance with the Legislature’s mandate in MCL 168.482(2)
that the heading of a referendum petition be printed in 14-point type.26 Accordingly,
MCL 168.544d does not constitute a broad substantial compliance provision, as plaintiff
would have us interpret it. Because the Secretary of State’s prescribed form mandates
strict compliance with MCL 168.482(2), plaintiff’s reliance on MCL 168.544d is
unavailing.
In the absence of statutory language supporting the substantial compliance
doctrine, plaintiff nevertheless posits that Michigan caselaw provides a general
substantial compliance exception to the mandatory requirements of the Michigan Election
Law. Plaintiff principally relies on Bloomfield Charter Twp for the proposition that
Michigan courts have allowed issues to be placed on the ballot despite the existence of
technical deficiencies in form and content. Although a lineage of Michigan Court of
Appeals cases exists applying the substantial compliance doctrine before an election, we
26
See Memorandum from the Secretary of State, Initiative and Referendum Petitions –
Prescribed Format (Revised June 2011). The Secretary of State’s prescribed format
requires that a referendum petition’s heading “shall be printed in capital letters in 14-
point boldface type on the left margin of the signature side of the sheet or at the top of the
signature side of the sheet.” Id. Clearly, the Secretary of State has not relaxed the type-
size requirement of MCL 168.482(2).
12
are unwilling to follow this line of cases and adopt a general substantial compliance
exception because such a rule is inconsistent with the statutory scheme as well as our
jurisprudence.27
In Bloomfield Charter Twp,28 a group of developers filed annexation petitions with
the county clerk, who certified the petitions and scheduled a referendum election
regarding annexation. The township sought to enjoin the election and also alleged, in
part, that the annexation petitions failed to comply with MCL 168.488, which requires
that annexation petitions meet the requirements of MCL 168.482(1) and (4) through (6).
The circuit court denied the township’s request for injunctive relief and concluded that
certification of the petitions was proper because “‘any technical deficiencies in the
petitions are not material . . . .’”29 Approximately a year later, after voters had approved
the annexation, the Court of Appeals affirmed the circuit court’s ruling. The Court
27
Notably, our caselaw has consistently recognized the availability of substantial
compliance if a petition is challenged in the post-election context. See footnote 33 of this
opinion. Court of Appeals jurisprudence, however, has ignored the significance of the
distinction between pre-election and post-election petition challenge cases. For example,
in Settles v Detroit City Clerk, 169 Mich. App. 797; 427 NW2d 188 (1988), a pre-election
challenge to an initiative petition in a home rule city, the Court cited post-election
caselaw to hold that “all doubts as to technical deficiencies or failure to comply with the
exact letter of procedural requirements in petitions . . . are resolved in favor of permitting
the people to vote and express a choice on any proposal subject to election.” Id. at 802-
803, citing Meridian Charter Twp v East Lansing, 101 Mich. App. 805; 300 NW2d 703
(1980). Likewise in Bloomfield Charter Twp, technically a post-election case, the Court
cited cases involving both pre- and post-election challenges for the same proposition,
citing both Meridian Charter Twp and Settles.
28
Bloomfield Charter Twp, 253 Mich. App. 1.
29
Id. at 18.
13
acknowledged that the annexation petitions were technically deficient under the statute,
and reasoned that it would apply “the doctrine [of substantial compliance] in this case
involving imperfect petitions, absent the Legislature’s instruction that a petitioned-for
election will be precluded unless the initiating petitions exactly match the Michigan
Election Law requirements for form and content.”30 The Court, therefore, affirmed the
circuit court and concluded that it had properly found substantial compliance and had
correctly refused to permit the minor defects to preclude the election.31
Bloomfield Charter Twp is overruled to the extent that it stands for the proposition
that substantial compliance with mandatory petition requirements compels the pre-
election certification of a technically deficient petition. Clearly, Bloomfield Charter
Twp’s reasoning is contrary to the plain language of MCL 168.482(2), which we have
explained contains a mandatory 14-point-type requirement. A nonconforming
referendum petition cannot be certified for inclusion on the ballot because that result is
contrary to the Legislature’s intent that petitions strictly conform to the requirements of
MCL 168.482. Simply because the Legislature has not included an explicit instruction
that “a technically imperfect petition necessarily precludes an election regarding the
matter therein addressed,” does not mean that the Legislature intended inclusion of
deficient petitions as Bloomfield Charter Twp reasoned.32 Bloomfield Charter Twp
inferred too much from the legislative silence and effectively ignored the mandatory
30
Id. at 23.
31
Id. at 25.
32
Id. at 22.
14
language that the Legislature chose to use when stating the form and content
requirements of MCL 168.482.
Moreover, while this Court has recognized application of the substantial
compliance doctrine to mandatory petition requirements post-election,33 it has not
recently sanctioned application of substantial compliance to nonconforming petitions
before an election. The only Michigan Supreme Court case to apply the substantial
compliance doctrine pre-election is Kadans v Wayne County Clerk.34 In that case, the
plaintiff sought a writ of mandamus compelling the defendant to certify his
nonconforming nominating petitions. Fifty-eight of the plaintiff’s fifty-nine petitions
were not 8½ by 13 inches as required by former MCL 168.544, but were 2½ to 3 inches
shorter than 13 inches because they were missing the circulator’s affidavit. This Court
unanimously found that former MCL 168.544 had “been complied with by plaintiff
according to the rule of ‘substantial compliance’” and that the plaintiff was entitled to the
writ of mandamus.35
33
It has long been held that post-election challenges substantially relax technical
requirements on the grounds that any technical deficiencies are cured by the voters’
affirmative approval of the underlying proposal. See Carmen v Secretary of State, 384
Mich. 443, 454-455; 185 NW2d 1 (1971) (reasoning that the error in noncompliant
initiatory petitions was cured by voters’ adoption of the constitutional amendment
because they were “directly notified” of the omitted information on election day); City of
Jackson v Commissioner of Revenue, 316 Mich. 694, 716-718; 26 NW2d 569 (1947)
(noting that courts should view technical errors differently once the electors have voted
affirmatively).
34
Kadans v Wayne Co Clerk, 363 Mich. 306; 109 NW2d 788 (1961).
35
Id. at 308.
15
Kadans’s broad application of the substantial compliance standard, however, was
repudiated by the Legislature’s subsequent adoption of MCL 168.544d.36 Before
adoption of that provision, the law was silent with respect to agency-created or agency-
prescribed petitions. The adoption of MCL 168.544d now provides clear guidance
concerning when substantial compliance is allowed with regard to agency-created or
agency-prescribed petitions and essentially delegates to the Secretary of State the ability
(through its prescribed petitions) to determine what requirements must be fully complied
with and what requirements need be only substantially complied with. Consequently, the
only case from this Court applying a general substantial compliance exception to
mandatory petition requirements of the Michigan Election Law has been superseded by
statute.
In sum, neither the statutory scheme nor the caselaw plaintiff relies on supports
application of the substantial compliance doctrine in the period before an election.
Rather, for substantial compliance to be sufficient before an election, its use must be
rooted in a particular statutory exception to the statutory formatting and content
requirements. Because no statutory provision permitting application of substantial
compliance exists in the instant case, and because intervenor has raised a pre-election
challenge, plaintiff must have actually complied with the requirements of MCL
168.482(2) in order for its referendum petition to be certified.37
36
1975 PA 327.
37
The partial dissent of Justices CAVANAGH, MARILYN KELLY, and HATHAWAY asserts
that “there are four votes that find at least substantial compliance . . . .” Post at 3. This
assertion is simply untrue. Rather, there are four votes for the elimination of the judicial
expansion of the substantial compliance doctrine, and the partial dissent has refused to
16
B. ACTUAL COMPLIANCE
1. TYPE-SIZE REQUIREMENT OF MCL 168.482(2)
To determine whether plaintiff has actually complied with MCL 168.482(2), we
must first determine the meaning of the phrase “printed in capital letters in 14-point
boldfaced type[.]” The Michigan Election Law does not define the terms “point” and
“type,” but the parties agree that the traditional definitions of “point” and “type” have not
substantially changed since the enactment of the statute in 1954. We agree with the
traditional definitions proposed because they are consistent with those terms’ acquired
technical meanings38 and those definitions have remained constant up to the present day.
“Point” is defined as “a unit that is used to measure the size of type used in printing and
that is equivalent to about 1/72 inch[.]”39 “Type” is defined as “[a] rectangular block,
recognize that we have now eliminated this judicially created doctrine. Accordingly,
when a petition is challenged pre-election, the petition must actually comply with the
statutory mandates of MCL 168.482(2), or the petition must substantially comply
pursuant to a specific statutory exception or through a form prescribed by the Secretary of
State. Neither of the latter two circumstances exists in this case.
38
MCL 8.3a.
39
Webster’s Third New International Dictionary of the English Language, Unabridged
Edition (1965), p 1750. The definition of “point system” before the enactment of the
statute refers to substantially the same unit of measurement used to measure type. See
Webster’s New International Dictionary of the English Language, Second Edition
Unabridged (1948), p 1904 (“A system according to which the various sizes of type
bodies, leads, etc., bear a fixed and simple relation to one another. The point system now
in general use in America was adopted in 1886 by the United States Type Founders’
Association, though many founders were already using it. It is a modification of a French
system, and is based upon the pica body then most used. This body is divided into
twelfths, called “points,” and every type body consists of a given number of these points;
as, the body of this book is printed in 6-point. The value of the point is .013837 inch, or
nearly 1/72 inch. For specimens of sizes, see TYPE.”).
17
usually of metal or wood, having its face so shaped as to produce, in printing, a letter,
figure, or other character[.]”40 Multiple dictionary depictions of type show that the
character, or typeface, does not cover the entire surface of the type, but rather includes
spacing above or below the letters, to prevent the printed characters from touching.41
These depictions further demonstrate that the point size of type measures the entire
vertical face of the metal block. The significance of these definitions is that the character
printed is smaller than the point size of the type.42
40
Webster’s New International Dictionary of the English Language, Second Edition
Unabridged (1948), p 2750. “Type” is also defined as “Such blocks, or the letters or
characters impressed, collectively.” Id. Notably, Justice MARKMAN prefers this
definition, but he does not faithfully adhere to it because he omits the definition’s
reference to “blocks.” Further, despite the parties’ agreement regarding the technical
meanings of these terms, Justice MARKMAN nonetheless asserts that because other
methods of printing were available in 1954, that it is more reasonable to interpret “type”
as the text or type produced. We reject Justice MARKMAN’s preferred definition of
“type” based on the availability of other printing methods for the well-explained reasons
articulated by Chief Justice YOUNG. These other printing methods are simply irrelevant
because to ascertain the Legislature’s intent we must focus on the language used, not
extraneous then-available printing methods. Indeed, the meanings of “point” and “type”
were well-established in 1954, and had the Legislature intended some other unit of
measurement to take account of these other printing methods, the Legislature could have
said so, but it did not.
41
See Webster’s Third New International Dictionary of the English Language,
Unabridged Edition (1965), p 2476 (diagram of “type”); Webster’s New International
Dictionary of the English Language, Second Edition Unabridged (1948), p 2750
(diagram of “type”).
42
Furthermore, the definition of “point” refers to “type used in printing,” Webster’s Third
New International Dictionary of the English Language, Unabridged Edition (1965), p
1750, and the definition of “point system” refers to the “sizes of type bodies,” Webster’s
New International Dictionary of the English Language, Second Edition Unabridged
(1948), p 1904. These references to “type” within the definition of “point” further
support the conclusion that, whether the “type” refers to the printer’s blocks themselves,
or whether it refers to the alternative definition of the resulting printed letters, the point
18
The parties’ views diverge, however, with respect to whether the phrase “printed
in capital letters in 14-point boldfaced type” requires measurement of the “letters” or of
the “type.” Intervenor, like the Court of Appeals, interprets the phrase to require that the
“letters” measure 14 points. We disagree with this interpretation and conclude that the
type must measure 14 points, not the resulting printed letters. This is because the
technical definition of “point” specifically denotes that point measures type size, which is
the entire vertical length of the printer’s block. As explained, the technical meanings of
“point” and “type” necessarily incorporate some amount of blank space so that the capital
letters in 14-point type do not necessarily measure 14/72 of an inch.
Intervenor claims that because “in” means “made of,” the letters must measure 14
points. However, this argument is specious. The term “14-point” specifically modifies
the word “type,” and there is no indication that the Legislature intended to diverge from
the technical meanings of the terms “point” and “type.” Had the Legislature intended
that the physical height of the letters measure 14 points, it would not have used the term
“type” as modified by “14-point” and instead could have specified that the letters must
“measure 14 points.”43
measurement of type exists by reference to the actual printer’s blocks, contrary to Justice
MARKMAN’s claim.
43
Having considered this textual argument, which is substantially the same as that
offered by Justice MARKMAN, his contention that we have not considered this language is
clearly incorrect. Rather, it is Justice MARKMAN that has failed to consider the phrase,
“printed in capital letters in 14-point boldfaced type,” in the context of the entire section
as we explain in footnote 44 of this opinion.
19
Furthermore, intervenor’s argument does not take into account the remaining
subsections within MCL 168.482, which provide additional support for our conclusion.
Subsection (3) states, “The full text of the amendment so proposed shall follow and be
printed in 8-point type,” while subsection (5) states, “The following warning shall be
printed in 12-point type . . . .” Reading these subsections together with subsection (2),
and consistently as a whole as we must,44 it is clear that the point size of all the required
text refers to the size of the type and not the individual letters. The fact that the other
content requirements are not required to be in capital letters, but a combination of
uppercase and lowercase letters, necessarily contemplates that letters in the required type
size may have different heights, since a lowercase “x” has a different height than an
uppercase “E.” This provides further support for the conclusion that the “type,” and not
each individual “letter,” must be measured. Otherwise, if intervenor’s position were
adopted, each of the letters in subsections (3) and (5) would have to be of equal physical
size, contrary to the Legislature’s clear indication in subsections (3) and (5) that the
44
“[W]ords and phrases used in an act should be read in context with the entire act and
assigned such meanings as to harmonize with the act as a whole.” People v Couzens, 480
Mich. 240, 249; 747 NW2d 849 (2008) (quotation marks and citation omitted). Yet,
Justice MARKMAN, like intervenor, reads MCL 168.482(2) in isolation to conclude that
“type” must refer to the point size of the letters. Were we to adopt intervenor’s and
Justice MARKMAN’s position, we would essentially adopt two different definitions of
type, requiring petitioners to measure the letters under MCL 168.482(2), but measure the
type under MCL 168.482(3) and (5). Indeed, Justice MARKMAN does not explain how to
reconcile the language of MCL 168.483(2) with that used in subsections (3) and (5).
Instead, he posits that the language of MCL 168.482(2), specifically the terms “printed”
and “letters,” and “in” instead of “with,” evince a clear intent that the letters measure 14
points and not the type. This view is unpersuasive for reasons I, and Chief Justice
YOUNG, have explained in detail.
20
required text appear in both uppercase and lowercase letters. Given the foregoing, it is
clear that the reference to “letters” in MCL 168.482(2) is intended merely to clarify that
the text of the heading appear in all capital letters.45 We would therefore hold that MCL
168.482(2), by its plain terms, requires that the type of the petition heading measure 14
points, not the individual letters.
2. MEASUREMENT OF DIGITAL TYPE
Having concluded that the “type” of the petition heading and not the letters must
measure 14-points, does not end the analysis. Rather, it must be determined whether
plaintiff’s petition heading measures 14-point type. This question necessarily involves
the preliminary issues whether the traditional meanings of “point” and “type” are
transferrable to digital text and, if so, how digital 14-point type is to be measured.
While plaintiff and intervenor disagree on these points, the assistant attorneys
general representing the Board of State Canvassers and the Secretary of State conceded at
oral argument and in their supplemental brief concerning intervenor’s application for
leave to appeal in this Court, that those “same [traditional] concepts [of point and type]
are replicated in computer software programs that result in the production of digital type
45
We disagree with intervenor’s and Justice MARKMAN’s suggestion that the letter must
be measured because otherwise, an illegible 3-point letter in 14-point type would comply
with the statute. Intervenor, like Justice MARKMAN, thus asserts that measurement of the
type would defeat the purpose of MCL 168.482(2). This situation is not before this
Court. Moreover, simply because the size of letters could be manipulated within a 14-
point-type setting does not mean that the Legislature intended that the heading’s letters
each measure 14 points.
21
from an electronic printer.”46 Counsel for the board and the Secretary of State has also
conceded that the same methods of measurement applicable to metal blocks of type are
applicable to digital type.47 Further, because this Court can take judicial notice of facts
not subject to reasonable dispute,48 I acknowledge that Microsoft’s glossary of
typographical terms defines “point” consistently with that term’s traditional meaning, as
“[a] unit of measurement, often used to measure type size, equal to 0.013837 inch
(approximately equal to 1/72 . . .).”49 And although Microsoft’s glossary does not
46
At oral argument, the assistant attorney general representing the board and the
Secretary of State stated, “Essentially software of the digital era is intended to replicate
what was done in the past.”
Further, although this Court construes the statutory language “in the light of the
circumstances existing at the date of [the statute’s] enactment, not in the light of
subsequent developments” Wayne Co Bd of Rd Comm’rs v Wayne Co Clerk, 293 Mich.
229, 235-236; 291 N.W. 897 (1940), I view the Legislature’s decision not to amend these
technical terms, despite several amendments in the digital age, see 1993 PA 137 and 1998
PA 142, as an acknowledgement that the meaning of those terms has carried over to
computerized printing.
47
With regard to the measurement of type, the assistant attorney general at oral argument
answered, “That is my understanding,” in response to Chief Justice YOUNG’s inquiry,
whether “[e]ven though we now have a different method of producing type, has that
measurement [from the traditional printing industry] been faithfully transcribed to
digitized production?” Curiously, neither Chief Justice YOUNG nor Justice MARKMAN
attach any significance to defendants’ concessions, despite the fact that the Board of State
Canvassers and the Secretary of State are charged with implementing Michigan’s election
laws, including the approval or denial of referendum petitions and are, thus, in the best
position to provide expertise regarding the proper measurement of digital text.
48
People v Goecke, 457 Mich. 442, 448 n 2; 579 NW2d 868 (1998) (noting that this Court
may take judicial notice of facts not subject to reasonable dispute); MRE 201.
49
Microsoft Support, WD2000: Definitions of Typography Terms in Word
(accessed August 1, 2012).
22
include the definition of “type,” it defines “font size” as the “size of type . . . .”50 A
separate Microsoft webpage further indicates that, when measuring the point size of type,
the letter does not cover the entire “block” because “a little bit [is] added on . . . so that
lines of type ‘set solid’ (without any additional space between them) do not bash into
each other.”51
50
Id. Chief Justice YOUNG asserts that judicial notice cannot be taken of how Microsoft
“programmed its font system . . . .” Post at 12 n 13. Yet, I have not taken judicial notice
of such facts and have only taken judicial notice of terms specifically defined by
Microsoft. That Microsoft has adopted certain definitions of “point,” and “font size,” and
acknowledged that the point size of “type” measures not the letter but the digital block, is
hardly subject to dispute. I fail to see how my acknowledgment of Microsoft’s
definitions of these terms, made known to the public, is any different from this Court’s
decisions to take judicial notice of economic conditions, In re Baldwin’s Estate, 311
Mich. 288, 312; 18 NW2d 827 (1945), common human behaviors, Moore v Capital Nat’l
Bank of Lansing, 274 Mich. 56, 66-67; 264 N.W. 288 (1936), or an agency’s decision to
change an historical practice, Grandville Muni Executive Ass’n v City of Grandville, 453
Mich. 428, 442; 553 NW2d 917 (1996), or, indeed, this Court’s common practice of
relying on dictionary definitions when interpreting a statute.
Justice MARKMAN also attempts to discredit my use of judicial notice, asserting
that I have assumed that Microsoft defines type as font size. His assertion that there is
“no evidence” to reach this conclusion, post at 13, is unfounded because, as I explain,
Microsoft has specifically acknowledged that the size of type incorporates additional
space not covered by the font, or actual letter.
51
Microsoft, The Relationship Between Font Size and Physical Type Size
(accessed August 1,
2012). Consistently with Microsoft’s recognition that digitized type is larger than the
actual character, other modern typographical sources recognize that computer characters
are contained within an invisible box, or blocking around the letter, which replicates the
metal block used in mechanical typesetting. See Ambrose & Harris, The Fundamentals
of Typography (Lausanne: AVA Publishing SA, 2d ed, 2011), p 46; Bringhurst, The
Elements of Typographic Style (Vancouver: Hartley & Marks, 1992), p 289. Notably,
just like the characters on physical type, the digital characters within digital type will take
up different amounts of space within the type depending on the font family. See Craig,
Scala, & Bevington, Designing with Type: The Essential Guide to Typography (New
York: Watson-Guptill Publications, 5th ed, 2006), pp 17-18. This is why different fonts
23
Given the concessions made by counsel for the board and the Secretary of State
and Microsoft’s definitions of point and type, it is clear that digital type is the equivalent
of physical type and that computer software continues to use this basic terminology.52
Further, because digital type and physical type are functional equivalents, they are
measured in the same manner except in the instance of digital type; in that instance an
invisible box, which replicates the printer’s block, is measured and is reflected by the font
size selected.53
3. APPLICATION
In the present case, plaintiff used 14-point Calibri font for its petition heading, as
attested to by plaintiff’s printer. Although plaintiff’s printer’s affidavit did not state the
basis for this conclusion, the affiant explained at the Board of State Canvassers hearing
how he verified the point size:
When I was asked to sign the affidavit, I took the file that we were
given, that we had assembled for printing purposes, and I used a
program . . . called PDF Suite. And I went in and I verified that it was 14-
point . . . .
of different point, or font size, appear smaller or larger in comparison to one another.
This is yet another reason why measurement of the digital letter will yield an inaccurate
type size.
52
Aside from the concessions and Microsoft’s definitions, multiple modern typographical
sources also support this conclusion. Ambrose, The Fundamentals of Typography, p 46;
Craig, Designing with Type, pp 17-18.
53
This conclusion is implicit in Microsoft’s adoption of the technical term “point” and its
acknowledgment that digital type is the equivalent of metal type. Adobe also
acknowledges that measurement for metal type is used for the measurement of digital
type. Adobe, Measuring Type (accessed
August 1, 2012).
24
Intervenor filed two competing affidavits, but did not present any expert testimony
at the hearing. Both affiants measured the size of the petition heading’s capital letters
and each concluded that the heading is in “a significantly smaller font than required”
without providing a basis for this conclusion. I do not view these affidavits as dispositive
because, as I have already concluded, measuring the letters to determine compliance with
MCL 168.482(2) is an inappropriate method of measurement.
I also do not view as dispositive the intervenor’s supplemental affidavit submitted
after we granted oral argument on the application.54 In this affidavit, the affiant attested
that, using an E-scale ruler,55 the type of the petition heading did not measure 14 points,
and that while the E-scale ruler “subtract[s] the space above or below the actual letter,”
the E-scale ruler only reflects how characters of a particular font in 14-point type will
appear. Because different fonts take up different amounts of space within the digital
block, an E-scale ruler cannot definitively measure whether the actual font selected is in
14-point type.
I also find the affiant’s comparison of plaintiff’s heading with 14-point type metal
blocks that were available in 1954 to be unpersuasive. The affiant avers that this
comparison shows that plaintiff’s heading is “clearly a smaller type size,” yet the spacing
between the lines of text in each of the three examples appears to be the same. This
54
After intervenor moved for leave to appeal and we granted argument on the
application, this Court granted intervenor’s motion to supplement the record. Stand Up
For Democracy v Secretary of State, 492 Mich ___ (2012).
55
An E-scale ruler reprints various letters “E” of the same font family that comprise
different type sizes to provide a side-by-side comparison between the example type size
and the printed letter.
25
exercise only demonstrates what we already know: Different styles of font will take up
different amounts of space on a printer’s metal or digital block. In fact, plaintiff’s expert
testified with regard to this very fact at the hearing:
Basically when you’re talking about 14-point type, you’re talking
about an area that’s just less than a fifth of an inch, .194. And it becomes a
canvas that a type designer gets to work with, and sometimes they use the
whole canvas and sometimes they use part of the canvas.
Consequently, the affiant’s comparison does not establish that plaintiff’s heading is
noncompliant. Rather, because the spacing between the lines of each example of text
appears to be equal, the comparison tends to demonstrate actual compliance with the 14-
point-type requirement.
My review of intervenor’s evidence shows that intervenor failed to establish that
plaintiff’s petition’s heading was not in 14-point type and otherwise failed to create a
legitimate question of fact regarding the type size used. Plaintiff’s evidence established
that its printer used a 14-point Calibri font, which the printer verified using Adobe
software, and which intervenor simply failed to rebut. Because Microsoft defines font
size to equal type size, plaintiff presented evidence establishing that it actually complied
with the type-size requirement of MCL 168.482(2). There being no evidence to the
contrary, I conclude that plaintiff actually complied with MCL 168.482(2).
C. MANDAMUS
We must next determine whether plaintiff is entitled to a writ of mandamus
requiring certification of the referendum petition. Mandamus is an extraordinary remedy
26
and the primary purpose of a writ of mandamus is to enforce duties required by law.56 To
obtain a writ of mandamus the plaintiff must show that it has a clear legal right to the
performance of the specific duty sought to be compelled and that the defendant has a
clear legal duty to perform the act.57
The board’s duty with respect to referendum petitions is limited to determining the
sufficiency of a petition’s form and content and whether there are sufficient signatures to
warrant certification.58 In this case, there is no question that plaintiff collected more than
enough valid signatures in support of its petition. However, because the board
deadlocked on the issue of compliance with the type-size requirement of MCL
168.482(2), the board did not certify the petition. Because plaintiff’s petition actually
complied with the type-size requirements of MCL 168.482(2), the board is obligated to
certify the petition. Accordingly, I conclude that plaintiff is entitled to a writ of
mandamus because the board has a clear legal duty to certify the petition as actually
compliant with MCL 168.482(2).
IV. CONCLUSION
A majority of this Court holds that the doctrine of substantial compliance is
inapplicable to referendum petitions submitted for pre-election certification and we
overrule Bloomfield Twp. I and two other justices further conclude that the type-size
56
State Bd of Ed v Houghton Lake Community Sch, 430 Mich. 658, 666-667; 425 NW2d
80 (1988).
57
In re MCI Telecom Complaint, 460 Mich. 396, 442-443; 596 NW2d 164 (1999).
58
See MCL 168.476 and MCL 168.477.
27
requirement of MCL 168.482(2) requires that the “type,” not the “letters,” of the petition
heading measure 14 points. I additionally conclude that plaintiff actually complied with
the type-size requirement. Finally, a majority of this Court holds that plaintiff is entitled
to a new writ of mandamus requiring the Board of State Canvassers to certify its petition
as sufficient. Accordingly, a majority of this Court directs the Board of State Canvassers
to certify plaintiff’s petition for the ballot and, pursuant to MCR 7.317(C)(3), we direct
the Clerk of the Court to issue the judgment order forthwith.
SUMMARY
(1) A majority of this Court holds that the Court of Appeals erred by granting
mandamus on the basis of plaintiff’s substantial compliance with election law. The Court
of Appeals opinion and grant of mandamus are reversed. Substantial compliance with the
requirements of MCL 168.482(2) is insufficient to establish that plaintiff’s referendum
petition is entitled to be placed on the ballot. Entitlement to be placed on the ballot
requires a showing of actual compliance with the law.
(2) The Board of State Canvassers shall certify the petition as sufficient because a
majority of the Court concludes that plaintiff either actually complied with the law or that
the Court of Appeals’ original writ of mandamus was not erroneous. Accordingly, a new
writ of mandamus shall enter.
Mary Beth Kelly
28
STATE OF MICHIGAN
SUPREME COURT
STAND UP FOR DEMOCRACY,
Plaintiff-Appellee,
v No. 145387
SECRETARY OF STATE and BOARD OF
STATE CANVASSERS,
Defendants,
and
CITIZENS FOR FISCAL
RESPONSIBILITY,
Intervenor-Defendant-
Appellant.
YOUNG, C.J. (concurring in part and dissenting in part).
We concur with and join parts I, II, III(A), and III(B)(1) of Justice MARY BETH
KELLY’s opinion. We agree with Justices MARY BETH KELLY and MARKMAN that actual
compliance with the statutory type requirements is mandated. In determining how to
measure the type size, we believe that the technical (namely, the customary printer’s)
understanding of the statutory terms “type” and “point” negate the intervernor’s notion
that one can determine the size of “type” by measuring the characters actually printed.
Consequently, the question we must resolve is whether the “size 14” Calibri font
generated by plaintiff’s computer is a faithful replication of the statutorily required
heading in 14-point type that would have been generated by using traditional movable
type.
On this question, Justice MARY BETH KELLY believes that it is possible on this
record, and with reference to extrarecord materials, both to determine how a digitized
computer font is produced and that the font at issue here meets the statutory size
requirement. She does so by invoking judicial notice. We do not share Justice MARY
BETH KELLY’s technical literacy: we lack the necessary knowledge of printing and, more
important, the programming necessary to create computer fonts. Therefore, we
respectfully dissent from her conclusion that plaintiff actually complied with the type size
requirements in MCL 168.482(2).
As a result, we conclude that plaintiff failed to establish that its petition heading
met the statutory type and print requirements. Because of this failure of proofs, we
would deny plaintiff’s claim for mandamus, thus reversing the Court of Appeals’
decision on the merits. However, given the stunning transformation of the printing
industry since the statutory requirements were enacted—from movable type to computer
generated print—and because we believe that the historical statutory terms are
nonetheless applicable in this new computer era, it is important for this Court to establish
a precedent to guide future petition efforts. While we reject her conclusion that actual
compliance has been proved here, we believe that Justice MARY BETH KELLY’s opinion
has provided this guidance on the controlling legal principles.
Important to our resolution of this case, however, is the fact that the legal
standards under which the Secretary of State, the Board of State Canvassers, and the
parties operated were confused and, as held today, erroneous. As a consequence, we
2
would allow plaintiff an opportunity to present proofs to the Board of State Canvassers
under the announced correct legal standards. Accordingly, we would remand this case to
the Board of State Canvassers for further proceedings to determine whether plaintiff’s
petition heading actually complied with the type size requirements of MCL 168.482(2).
As eloquently stated by Justice MARY BETH KELLY, this appeal concerns a big
constitutional issue about an apparently small thing: the size of a heading required for
circulated petitions like the one at issue here. And although a “technical” requirement—
the size of a petition heading—is involved, this is a legally and constitutionally
significant matter because compliance with the legal petition requirements is the only
means by which a small fraction of Michigan citizens is permitted to countermand the
will of the people as expressed through the legislation duly enacted by their elected
representatives.
So this case about a “technicality” is not about the wisdom of the act the plaintiff’s
petition seeks to suspend, nor is it about “the people’s right to vote,” as plaintiff
characterizes the issue. The fact is, the people have voted: they elected the very
Legislature and Governor who enacted the emergency financial manager act, PA 4, MCL
141.1501 et seq., that plaintiff challenges with its petition.
The sole question before us is whether plaintiff has filed a qualifying, legally
compliant petition that permits it to both suspend this validly enacted law and require its
members’ fellow citizens to determine whether this law will remain on the books. As
Justice MARY BETH KELLY explains, this is a core issue in a constitutional republic like
ours.
3
I. ANALYSIS
A. THE JUDGE-MADE “SUBSTANTIAL COMPLIANCE” DOCTRINE, TO THE
EXTENT THAT IT REMAINS VIABLE, IS SUPERSEDED HERE BY THE
LEGISLATIVELY DEFINED SUBSTANTIAL COMPLIANCE PROVISION OF MCL
168.544d.
MCL 168.482(2) requires that the petition heading “shall be . . . printed in capital
letters in 14-point boldfaced type[.]” A majority of the Court agrees that, for the reasons
that Justice MARY BETH KELLY’s and Justice MARKMAN’s separate opinions explain, the
judge-made doctrine of substantial compliance is insufficient to entitle plaintiff to
certification of its petition. Because MCL 168.482(2) uses the mandatory language
“shall” regarding the type size of the petition heading, plaintiff must fully adhere to this
provision unless another statutory provision specifically allows for substantial
compliance. As Justices MARY BETH KELLY and MARKMAN correctly explain, there is
no statutory provision that would allow the Board of State Canvassers to apply the
doctrine of substantial compliance to plaintiff’s petition in this case. In particular, MCL
168.544d incorporates a substantial compliance provision specifying that only the
Secretary of State may prescribe forms that substantially comply with the statutory
requirements for petitions.
In this case, the Secretary of State actually mandated compliance with the required
statutory conditions,1 and plaintiff cannot prevail on the ground that it “substantially
1
The Secretary of State, in its advisory designed to provide guidance to citizens engaged
in the petition process, cited MCL 168.482(2) and explained that the heading “shall be
printed in capital letters in 14-point boldface type on the left margin of the signature side
of the sheet or at the top of the signature side of the sheet.” Secretary of State
memorandum, Initiative and Referendum Petitions – Prescribed Format (revised June
2011). Of course, the Secretary of State has the authority to determine that “size 14,”
4
complied” with the 14-point type requirement. Thus, unless plaintiff actually complied,
there is no clear legal right to have its petition certified.
B. THE MANDATORY STATUTORY “POINT” SIZE REQUIREMENTS FOR
“TYPE” REFER TO THE SIZE OF A TRADITIONAL MOVABLE TYPE BLOCK,
NOT THE SIZE OF THE ACTUAL PRINTED CHARACTER ON THE PETITION.
We agree with Justice MARY BETH KELLY that the Court of Appeals panel erred to
the extent that it concluded that the petition heading’s printed letters themselves must
measure 14 points in height. While the Court of Appeals panel correctly recognized that
a point is a unit of measurement (approximating 1/72 of an inch), the definitions of
“point” and “type” that predominated at the time the Legislature enacted MCL 168.482
belie the conclusion that the printed letters themselves must measure 14 points in height.
The Legislature enacted MCL 168.482 in 1954 and amended it in 1965 to provide
that the heading “shall be . . . printed in capital letters in 14-point bold face type[.]”2 In
determining the meanings of “point” and “type,” this Court must accord these terms their
“peculiar and appropriate meaning[s]” at the time of enactment.3
Webster’s New International Dictionary of the English Language, Second Edition
Unabridged (1948) defines “type” as “[a] rectangular block, usually of metal or wood,
“size 12,” or “size 8” computer fonts comply with the statutory type size requirements of
MCL 168.482(2), (5), and (3), respectively.
2
1954 PA 116; 1965 PA 312. 1993 PA 137 amended MCL 168.482 to divide it into
subsections and substitute “boldface” for “bold face,” while 1998 PA 142 substituted
“boldfaced” for “boldface.” Neither of these subsequent amendments altered the terms
“point” or “type.”
3
MCL 8.3a.
5
having its face so shaped as to produce, in printing, a letter, figure, or other character” or,
alternatively, as “[s]uch blocks, or the letters or characters impressed, collectively.”4 It
defines “point system” specifically in relation to the blocks themselves: “A system
according to which the various sizes of type bodies, leads, etc., bear a fixed and simple
relation to one another. . . . The value of the point is .013837 inch, or nearly 1/72 inch.”5
4
Webster’s New International Dictionary of the English Language, Second Edition
Unabridged (1948), def 17, p 2750. Similarly, Webster’s Third New International
Dictionary of the English Language (Unabridged) defines “type” as “a usu[ally] metal,
wood, or plastic rectangular block having on its face a relief character of which an inked
impression will produce a printed character” or, alternatively, as “a printed impression
from type[.]” Webster’s Third New International Dictionary of the English Language
(Unabridged) (1966), defs 3a and 3f, p 2476.
5
Webster’s New International Dictionary of the English Language, Second Edition
Unabridged (1948), def 3, p 1904.
6
Importantly, the dictionary contains a diagram of type that shows that the type
face, or raised portion of the type block that actually imprints the ink onto the paper, is
somewhat smaller than the size of the type block itself. The following diagram of a type
block, taken from a 1963 treatise on typography, similarly shows how the type face does
not extend to the entire space of the printer’s block. Moreover, it shows that the point
body of the type is measured by reference to the entire printer’s block.6
This is consistent with the print literature dating back to the turn of the last
century. An early twentieth century technical treatise on type explains:
Only a few letters, like J and Q, cover nearly the entire surface on
the end of the type; other letters, like B h l i, cover the upper portion chiefly
and leave a blank space at the bottom; while the small letters, like a e o u v,
occupy only the middle portion of the surface; still others, like g y p, cover
the middle and lower portions of the surface. As all these irregular shapes
6
Rosen, Type and Typography (New York: Reinhold Publishing Corp, 1963), p 16,
available at (accessed
August 2, 2012).
7
must be made to appear in line with each other, the type-body on which
they are made is larger than the letter.[7]
Moreover, Webster’s Third New International Dictionary of the English Language
(Unabridged) defines “point” by referring to an illustration of “type” that refers to the
block’s “point size” as the entire length of the block, not just the raised portion that
creates the printed character.
In short, there does not appear to be any dispute about the historical understanding
of these technical printer’s terms.8 These dictionary definitions and technical sources
7
Stewart, Type (Chicago: United Typothetae of America, 1918), pp 7-8.
8
Justice MARKMAN argues that printers employed other methods of printing in 1954,
when this statute was first enacted, and some of these methods did not use movable type.
This is certainly a true statement, but it does not gainsay that the terms “point” and “type”
were rooted in the movable type process and have well-known fixed meanings as we
have explained.
Thus, Justice MARKMAN’s examples of other alternative printing methods that did
not require movable metal type blocks misses the point. Even if one of the rivals to
letterpress printing methods were entirely divorced from the use of movable type, had it
been used in a petition and challenged on the ground that it did not comply with the 14-
point requirement, the same legal question raised here would have been presented: Did
the alternative printing method satisfy the 14-point requirement as points were commonly
understood in the printing industry?
Justice MARKMAN may find it hard to understand why the Legislature chose an
indirect method of specifying the size of various print in petitions, but that is exactly what
it did. And it did so by using technical terms of art in the printing field that have a
longstanding and undisputed meaning. Justice MARKMAN chooses to rely on some of
those definitional meanings, such as the fact that a “point” measures 1/72 of an inch.
However, he jettisons others (the fact that point size is measured by the printer block, not
the size of the character that rests on top) to advance his “direct measure” theory that one
must measure the actual printed letters. Justice MARKMAN is free to question the wisdom
of this legislative choice, but he may not ignore it, nor may he pick and choose among the
established technical definitions of the statutory terms.
8
show unequivocally that, “although the body size of metal type is consistent, the printed
letters themselves vary in size. Since no individual letter fills the entire body, you can
see why merely measuring the printed letter will not reveal the point size.”9 Moreover,
9
Craig, Scala & Bevington, Designing with Type (New York: Watson-Guptill
Publications, 5th ed, 2006), p 17.
One thing is clear: the Legislature mandated that the petition type used be of a
certain point size, but it did not mandate that a particular style of printed character be
used. And therein lies the problem. It appears that printed characters of a particular style
can be larger or smaller than other styles in the same point size.
Today, a modern Legislature might mandate the size of petition printing by
reference to “fonts” rather than “points.” And as the record in this case demonstrates,
even fonts listed as being of the same size appear to be larger and smaller than one
another depending on the style of font selected. Accordingly, a “direct measure”
approach to sizing the printed characters such fonts produce would be no more
productive than it is in measuring points.
Justice MARKMAN nevertheless concludes that the statutory reference to 14-point
type means that the actual printed character set must measure 14/72 of an inch high when
measured from the top of the ascender of a lowercase letter (such as “h”) to the bottom of
the descender of a lowercase letter (such as “j”). He asks, how could the Legislature have
made plainer this intention than by mandating “14-point boldfaced type”?
The Legislature used a commonly understood term, “point,” which was and is
understood to refer not to the size of the character printed but the block on which the
character that produces the printed image sat. Thus, even though “type” can refer to the
printed characters produced from a block of movable type, the point measurement of
“type” exists by reference to the underlying block of type, not to the printed “type.” The
provenance of this definition is unchallenged. The Legislature need not have known
precisely how printers designed type in order to have understood the general orders of
size in typography and that 14-point type was larger than 12-point or 8-point type. It
used each of these sizes in the petition requirements. Those who frequently used printed
materials generated with traditional printing methods in 1954—which would have
included legislators, given that the Legislature had its own printing press—would have
certainly understood the general notion of point sizing, in much the same way that most
adults today are familiar with computer fonts, even if they know nothing about how those
fonts were created.
9
because different type style families (now colloquially referred to as “fonts”) use the
available space differently, “[d]ifferent typefaces having the same point size may appear
larger or smaller . . . .”10 Therefore, plaintiff’s expert correctly explained at the hearing
before the Board of State Canvassers that the space on the top of a printer’s block
“‘becomes a canvas that a type designer gets to work with, and sometimes they use the
The intervenor posits the claim that each individual letter must measure 14/72 of
an inch. However, if the Legislature wanted more directly to mandate the size of the
actual printed characters, it could easily have stated that “the letters of the petition
heading shall be ‘X’ tall” or, if it wanted to use printer’s jargon, “the letters of the
petition shall be 14 points in height.” It did neither, presumably in reliance on the
printing traditions then extant. Moreover, this argument founders when considering the
whole of MCL 168.482. Subsections (3) and (5) both contain type size requirements.
However, unlike subsection (2), they contemplate that the required text may appear in
both capital and lowercase letters, which by definition have varying physical sizes.
Nevertheless, the Legislature chose to use in subsections (3) and (5) the same terms—
“point” and “type”—that it used in subsection (2).
10
Craig, Designing with Type, p 18. Thus, an E-scale ruler provides only an
approximation of type size and not an exact measurement of type size. This is because an
E-scale ruler only contains an example of one particular type style family among the
multitude of various styles of type in use. To the extent that other type style families
measure slightly differently than the E-scale’s example, the resulting E-scale
measurement will not provide a precise determination of the type size shown.
Thus, contrary to the alternative method of measurement that the intervenor and
Justice MARKMAN urge be used for determining type size by directly measuring the
printed characters, the Board of State Canvassers cannot measure the type size of the
petition heading simply by comparing the letters on the petition heading to a 14-point
capital “E.” Indeed, the most compelling evidence in the record that the E-scale ruler
provides only approximate sizing of type is the affidavit of the intervenor’s own expert,
who indicated that one of the example headings that had been printed using 14-point
metal type measured “slightly larger” than the 14-point capital “E” on an E-scale ruler.
Moreover, the existence of variation between different type style families undermines
Justice MARKMAN’s claim that application of the “printer’s block” approach would not
warrant a remand in this case.
10
whole canvas and sometimes they use part of the canvas.’”11 Because type size
incorporates some amount of additional space on the printer’s block, and because
different type style families use that space differently, different sized letters result even
when printed from blocks of the same size.
C. WHEN A PETITION IS PRINTED USING COMPUTER GENERATED FONTS, IN
ORDER TO ESTABLISH COMPLIANCE WITH THE STATUTORY TYPE SIZE
REQUIREMENT, THE PETITION’S PROPONENT MUST SHOW THAT THE FONT
USED FAITHFULLY REPLICATES WHAT A TRADITIONAL TYPE BLOCK
WOULD HAVE GENERATED.
While these definitions of “point” and “type” are clear based on their customary
technical meanings, the confounding issue in this case is how to apply these historical
definitions in an age when digital printing predominates. Contrary to Justice MARY BETH
KELLY’s conclusion, we do not believe that the evidence available to us is sufficiently
clear for this Court to take judicial notice that Microsoft’s digital fonts replicate the point
measure that the Legislature intended. Because digital fonts do not use physical printer’s
blocks, it is not self-evident that the system of digital fonts accurately replicates the
movable type point system.12 Plaintiff’s Calibri heading may well actually comply with
the statutory 14-point type requirement. However, simply choosing a digital “size 14”
11
Stand Up For Democracy v Bd of State Canvassers, ___ Mich App ___, ___; ___
NW2d ___ (2012) issued June 8, 2012 (Docket No. 310047), slip op at 6.
12
Justice MARKMAN’s detailed critique of Justice MARY BETH KELLY’s resort to
inconclusive materials outside the record reinforces our belief that this Court has no
competency to make the kind of factual determination that was never addressed and
certainly not provided in the record.
11
font does not prove that it is equivalent to the 14-point type standard that the Legislature
required when it enacted MCL 168.482.
In light of the fact that no one understood when the Board of State Canvassers
held the hearing that plaintiff was obligated to establish this equivalency, it is not hard to
understand why its proofs consisted of little more than an attestation that its printer
faithfully selected “size 14” Calibri font on his computer. Similarly, this is the reason
why Justice MARY BETH KELLY must look outside the record and employ “judicial
notice” in order to supply this critical missing set of proofs. Given that the computer font
used in a petition must faithfully replicate what a movable type of the required point size
would have produced in order to satisfy “actual compliance,” we are hard pressed to
understand how this equivalency could be established without evidence from Microsoft,
the producer of the Calibri font used here, about not only how it programmed the font but
whether it actually replicates what the traditional printer’s type block would have
produced.
I do not believe that the pastiche of extrarecord evidence relied on by Justice
MARY BETH KELLY establishes these necessary proofs. And if they do, we lack
sufficient computer expertise to confirm it.13
13
Ordinarily, we judges take judicial notice of things that cannot be disputed, such as the
state of the moon on a given date as reflected in an almanac. The cycles and phases of
the moon are, after all, constant and predictable. How Microsoft programmed its font
system seems well shy of the certainty level required for the application of judicial
notice.
If how Microsoft generated its font system and the question of its relationship to
the sizing of traditional type blocks is not considered “technical”—outside the realm of
common knowledge—then we are not sure what subject matter would qualify.
12
Rather, we believe that the proper application of the statutory type size
requirement in the context of a digital font requires plaintiff to show that a digital font
accurately replicates the results that the point system would have generated. If plaintiff
can show that the digitized font system it used accurately replicates a 14-point sized type
that the point system would have generated, then it would be entitled to have its petition
certified as sufficient. However, only with this showing can we know whether plaintiff’s
“size 14” Calibri font actually satisfied the statutorily mandated 14-point type size under
the traditional movable type point system.
Because plaintiff has not proven the connection between its “size 14” font and the
statutorily required 14-point type size, we do not believe that it is entitled to mandamus.
Therefore, we concur in the decision to reverse the Court of Appeals panel decision on
the merits, but we dissent from the decision to grant mandamus. Nevertheless, because
the question whether the font system accurately reproduces what the point system would
have produced has never been addressed and because a general substantial compliance
rule erroneously had been recognized as a means of avoiding the actual requirements of
Ordinarily, we judges rely on experts, not judicial notice, to resolve technical questions.
For instance, MRE 201 allows a trial court to take judicial notice only of adjudicative
facts that are “not subject to reasonable dispute” and that are either “generally known
within the territorial jurisdiction of the trial court or . . . capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.”
MRE 201(b). The questions presented here clearly are not of the kind that would qualify
under MRE 201. More telling, almost no justification is offered in support of the
application of judicial notice that “size 14” Calibri font generates the same result that the
applicable point system would have yielded. We do not know whether the Web sources
that Justice MARY BETH KELLY relies on are “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned,”
MRE 201, and she does not even assert that they meet this exacting standard.
13
this statute, we would permit a remand to the Board of State Canvassers to give plaintiff
an opportunity to present proofs under the correct legal standard: that the digital font
system actually replicates results that the movable type point system would have
generated. Only upon such proof could plaintiff establish that the heading of its petition
is in fact “14-point boldfaced type” as that phrase is properly understood.
Robert P. Young, Jr.
Brian K. Zahra
14
STATE OF MICHIGAN
SUPREME COURT
STAND UP FOR DEMOCRACY,
Plaintiff-Appellee,
v No. 145387
SECRETARY OF STATE and BOARD OF
STATE CANVASSERS,
Defendants-Appellants,
and
CITIZENS FOR FISCAL
RESPONSIBILITY,
Intervenor-Defendant-
Appellant.
CAVANAGH, MARILYN KELLY, and HATHAWAY, JJ. (concurring in part and dissenting in
part).
We concur in Justice MARY BETH KELLY’s holding that a writ of mandamus
should issue in this matter. As a result of our concurrence on this point, Proposition 4
will appear on the ballot.
However, we strongly dissent from the grave actions taken by the justices
supporting the position in part III(A) of Justice MARY BETH KELLY’s opinion. Their
decision to depart from 30 years of precedent by abandoning the substantial-compliance
doctrine throws Michigan’s electoral process into chaos and disenfranchises citizens from
one of the most basic rights of democracy: the right to vote.
The holding of these justices that a mere clerical technicality—which has not and
cannot be shown to create any harm whatsoever—could have prevented a referendum
vote from taking place, in the face of more than 200,000 citizens who signed the petition
to place the referendum on the ballot, is unprecedented and highly disturbing.
That position lacks any sense of the gravity and importance of democracy. Article
1, § 1 of Michigan’s Constitution states that “[a]ll political power is inherent in the
people. Government is instituted for their equal benefit, security and protection.”
Furthermore, our Constitution provides that “[t]he legislature shall enact laws to preserve
the purity of elections” and “to guard against abuses of the elective franchise . . . .” Const
1963, art 2, § 4. MCL 168.482(2) is one of these laws, and it was intended to protect the
election process,1 but four justices have now turned it into a barrier that could prevent a
vote from even taking place. Their holding will have a chilling effect on core political
speech, and we cannot join this result. As the Court of Appeals so eloquently stated in
Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 218 Mich. App. 263, 270; 553
NW2d 679 (1996):
The wisdom of the principle of judicial restraint expressed by our
Supreme Court in [Attorney General v Ingham Circuit Judge, 347 Mich.
579; 81 NW2d 349 (1957)], is self-evident; the notion that our courts may
precipitously intervene in the political arena and preempt a vote of the
people is inconsistent with both the role of the courts and the principles of
our democracy.
We vote to affirm the Court of Appeals and its issuance of mandamus. As stated,
we also concur with Justice MARY BETH KELLY’s issuance of mandamus. As a result,
1
See, generally, Kadans v Wayne Co Clerk, 363 Mich. 306, 308; 109 NW2d 788 (1961).
2
Proposition 4 will appear on the ballot. We note that, given Justice MARY BETH KELLY’s
finding of actual compliance—which must necessarily encompass substantial
compliance, because actual compliance is a higher standard than substantial
compliance—there are four votes that find at least substantial compliance and allow the
voters to determine the merits of this proposal. The determination of whether actual or
substantial compliance is the proper standard is unnecessary to the decision in this case.
Michael F. Cavanagh
Marilyn Kelly
Diane M. Hathaway
3
STATE OF MICHIGAN
SUPREME COURT
STAND UP FOR DEMOCRACY,
Plaintiff-Appellee,
v No. 145387
SECRETARY OF STATE and BOARD OF
STATE CANVASSERS,
Defendants,
and
CITIZENS FOR FISCAL
RESPONSIBILITY,
Intervenor-Defendant-
Appellant.
MARKMAN, J. (concurring in part and dissenting in part).
PROLOGUE
Although to many the present dispute over font size may seem to be “much ado
about nothing much” and a debate concerning a mere “technicality,” in which there may
be only a “dime’s width” of difference between what is required of petitions by the law
and what is actually contained in the petitions before the Court, a considerably larger
issue is implicated: how faithful must the branch of government that interprets the law be
to the language adopted by the branch of government that enacts that law? It is important
to bear in mind that the very same constitutional provision that provides for the right of
referendum also provides that it “must be invoked in the manner prescribed by law,”
Const 1963, art 2, § 9, and it is the very same Constitution that provides for a
representative form of government in which legislative majorities, not the views of a
small percentage of the electorate, generally determine the course of public policy. Const
1963, art 4, § 1. As explained by Chief Justice Marshall in Marbury v Madison, 5 US (1
Cranch) 137, 177; 2 L. Ed. 60 (1803), which has been the lodestar for generations of
judges in questions of statutory construction, the responsibility of a court of law is to
declare what the law is, and not what it ought to be. This is one of the first principles of
our system of separated constitutional powers.
In this case, the law in dispute provides that a petition heading “shall” be in 14-
point type, the law has been amended by the Legislature to repudiate the idea of
“approximateness,” and the law explicitly limits the concept of “substantial compliance”
to those circumstances in which a petition has been preapproved by the Secretary of
State. The question then becomes whether “14-point type” means 14-point type. It is
not, I believe, whether 10- or 12-point type is “close enough,” or whether 10- or 12-point
type is sufficiently legible, or whether it is “Dickensian,” “crabbed,” “pedantic,”
“hairsplitting,” or “hypertechnical” to distinguish between 10- or 12-point type and 14-
point type. Instead, “we the people” of Michigan have determined that an extraordinary
constitutional procedure-- one enabling a small segment of the people to enjoin a duly
enacted law for up to two years-- “must be invoked in the manner prescribed by
law . . . .” Have the proponents of the present referendum acted “in the manner
prescribed by law”? Should this Court, for example, in reviewing a law requiring
2
200,000 signatures to place a referendum on the ballot, find that 199,250 signatures is
sufficient and constitutes “substantial compliance”? Should this Court, in reviewing a
law establishing a five-year statute of limitations period, find that a lawsuit or prosecution
undertaken five years and two months after an event is sufficient and constitutes
“substantial compliance”? And should this Court, in reviewing a law requiring that a real
estate filing be made within 180 days of some occurrence, find that 185 days is sufficient
and constitutes “substantial compliance”? Perhaps it should, but it should also be
understood that when the law is “relaxed,” or altered, in this manner, the law becomes
less certain, more subject to judicial discretion and arbitrariness, less capable of clearly
communicating to the people their rights and responsibilities, and more the subject matter
of new lawsuits. To allow “substantial compliance” to satisfy the law when this has not
been authorized by the Legislature is to accord more power to judges, and less power to
legislative bodies and the people whom they represent, to say what the law “is.”
It is the obligation of the judiciary to interpret the law in reasonable accord with its
language, and I believe this has been accomplished when a law requiring that a printed
heading be set forth in “14-point type” is interpreted to require “14-point type.” It is
neither a “strict” construction nor a “narrow” construction to render such an
interpretation, but simply a “reasonable” construction-- a construction that ordinary
legislators and readers of the law would place upon this language. Had the Legislature
been determined to ensure that certain petition headings would always be set forth in 14-
point type, and that no gamesmanship would be tolerated in the form of such petitions,
how could the Legislature have made this any more clear than by what it said in the law
3
in dispute in this case? How could the Legislature have been any more straightforward in
its intention to communicate that “this is what we intend, and only this, no more and no
less”? The issue in this case, as it is in most cases before this Court, is more than the
significance of a “dime’s width” of difference between “14-point type” and a smaller
type on a petition; rather, it is which institution of government gets to make decisions
regarding what will be provided for in the law-- the branch comprised of persons broadly
reflective of the people in their full range of backgrounds, interests, and professions, or
the branch comprised exclusively of lawyers?
ANALYSIS
To begin with, it must be emphasized that the issue before this Court has nothing
to do with our own personal beliefs regarding the wisdom, or the lack thereof, of the
emergency financial manager law, or of the constitutionality of this law. Plaintiff is
incorrect in its assertion that “the only substantial difference between the petition at bar
and the [ones in earlier years that have placed matters on the ballot] is the subject matter
and viewpoint of the [plaintiff].” Rather, the only two issues before this Court are (a)
whether plaintiff actually complied with the 14-point-type requirement in MCL
168.482(2), and (b) if it did not comply, whether “substantial compliance” with this
requirement is tantamount to compliance with the law. Because I would answer both of
these questions in the negative, I would reverse that part of the judgment of the Court of
Appeals holding that “substantial compliance” with MCL 168.482(2) is sufficient to
warrant a grant of mandamus, a position with which the judges of that Court disagreed
but nonetheless felt obligated to follow because of an earlier precedent of that Court.
4
Pursuant to the clear direction of MCL 168.544d, while “a form prescribed by the
secretary of state” must substantially comply with MCL 168.482(2), a form not
“prescribed by the secretary of state,” as in this case, must actually comply with that law.
Therefore, although plaintiff suggests that our interpretation of the 14-point-type
requirement in MCL 168.482(2) may prevent a number of petitions from reaching the
ballot, each of the other petitions cited by plaintiff was apparently preapproved by the
Board of State Canvassers, and thus must only “substantially comply” with the 14-point-
type requirement. Further, as highlighted on page 8 of plaintiff’s own supplemental brief,
even a cursory review of the other petitions will show that each is printed in visibly larger
type than that in the instant petition.
(1) Plaintiff seeks a writ of mandamus against defendants. “Mandamus is an
extraordinary remedy . . . .” Musselman v Governor, 448 Mich. 503, 521; 533 NW2d 237
(1995). The plaintiff in a mandamus proceeding has the difficult burden of proving that
the defendant has the clear legal duty to act in the way the plaintiff seeks. Double I Dev
Co v Taylor Twp, 372 Mich. 264, 269; 125 NW2d 862 (1964).
(2) Plaintiff urges this Court to direct that defendants certify for placement on the
November 2012 general election ballot the referendum on Public Act 4 of 2011, MCL
141.1501 et seq., the Local Government and School District Accountability Act,
commonly known as the emergency financial manager law. Generally, it is the right of
the people of Michigan to have public policy determined by a majority of the people’s
democratically elected representatives in the Legislature. However, “[u]nder the
referendum clause of the Constitution [Const 1963, art 2, § 9] one-twentieth of the
5
electors of the State may suspend the operation, until the next general election, of any act
of the legislature, however important [with certain exceptions] . . . . Where a power so
great as this is vested in a minority of the people, every safeguard provided by law
against its irregular . . . exercise should be carefully maintained.” Thompson v Secretary
of State, 192 Mich. 512, 522-523; 159 N.W. 65 (1916).
(3) That is, there are constitutional rights in tension in this case, the constitutional
right of the people to have the enactments of representatives respected and given timely
effect, i.e., the right to a republican form of self-government, see Const 1963, art 4, § 1;
US Const, art IV, § 4, and the right of the people under specified circumstances to enjoin
the effects of such laws during the referendum process. Const 1963, art 2, § 9.
Thompson has properly addressed this tension by both recognizing the importance of the
referendum process and insisting that this process, which involves a departure from the
ordinary constitutional process by which laws are formulated, be undertaken in a
“regular” fashion and in compliance with the law.
(4) Const 1963, art 2, § 9 provides that “[t]he power of referendum . . . must be
invoked in the manner prescribed by law . . . .”
(5) MCL 168.482(2) provides:
If the measure to be submitted proposes a constitutional amendment,
initiation of legislation, or referendum of legislation, the heading of each
part of the petition shall be prepared in the following form and printed in
capital letters in 14-point boldfaced type . . . . [Emphasis added.]
As this Court has stated numerous times, the word “shall” constitutes a mandatory
directive. See, e.g., Manuel v Gill, 481 Mich. 637, 647; 753 NW2d 48 (2008).
6
(6) That the Legislature in 1965 amended MCL 168.482 by striking the language
permitting the heading to be in “type of the approximate size set forth” and replaced it
with the language, “shall be . . . in 14-point bold face type,” underscores that the
Legislature meant “shall be” to constitute a mandatory directive. (Emphasis added.)
(7) MCL 168.544d provides:
Nominating petitions for the offices under this act and petitions for a
constitutional amendment, initiation of legislation, or referendum of
legislation or a local proposal may be circulated on a countywide form.
Petitions circulated countywide shall be on a form prescribed by the
secretary of state, which form shall be substantially as provided in sections
482, 544a, or 544c, whichever is applicable. The secretary of state may
provide for a petition form larger than 8–1/2 inches by 13 inches and shall
provide for identification of the city or township in which the person
signing the petition is registered. The certificate of the circulator may be on
the reverse side of the petition. This section does not prohibit the
circulation of petitions on another form prescribed by this act. [Emphasis
added.]
Accordingly, while “a form prescribed by the secretary of state” may “substantially
comply” with MCL 168.482(2), a form not “prescribed by the secretary of state” must
actually comply with MCL 168.482(2). To the extent that Bloomfield Charter Twp v
Oakland Co Clerk, 253 Mich. App. 1; 654 NW2d 610 (2002), an opinion of the Court of
Appeals, suggests that all petition forms, regardless of whether they were “prescribed by
the secretary of state,” need only “substantially comply” with MCL 168.482(2), it is
wrong, in my judgment, because it is plainly inconsistent with the law. Therefore, I agree
with the three other justices who conclude that the “substantial compliance” standard
does not apply to forms that have not been “prescribed by the secretary of state.”
7
(8) The form at issue in this case was not “prescribed by the secretary of state”
because it was not preapproved by the Secretary of State, and it is not in compliance with
the Secretary of State’s own rule that the heading “shall be printed in capital letters in 14-
point boldface[d] type . . . .” Secretary of State memorandum, Initiative and Referendum
Petitions – Prescribed Format (revised June 2011), p 2. Therefore, the form must actually
comply with MCL 168.482(2). As explained in the Secretary of State’s memorandum,
Initiative and Referendum Petitions (January 2011), p 1, “While Michigan election law
does not require the pre-approval of an initiative or referendum petition form, such
approval greatly reduces the risk that signatures collected on the form will be ruled
invalid due to formatting defects.”
(9) Both MCL 168.482(2) and the Secretary of State’s own rule require the
heading on the form to be “printed in capital letters in 14-point boldfaced type.”
(10) The term “point” in the printing context is defined as “a unit of type
measurement equal to . . . 1/72 inch . . . .” Random House Webster’s College Dictionary
(2d ed, 1997), p 1006; see also Webster’s New Collegiate Dictionary (1960), p 652 (“The
value of the point is .013837 inch, or nearly 1/72 inch.”), and Spicer v Hartford Fire Ins
Co, 171 Va 428, 432; 199 S.E. 499 (1938) (“An inch is the American standard of linear
measure. . . . A like standard, while it may not be so generally known, is now used in
ascertaining the size of type. . . . [T]he point system of measuring type . . . was adopted
in 1886 by the United States Type Founders’ Association, although prior to that time
many founders were using it.”).
8
(11) The term “type” is defined consistently among dictionaries as being “a wood
or metal block with a raised character on its surface that, when fixed into a press and
coated with ink, prints an impression of the character on paper or a similar absorbent
surface” or “a printed character or printed characters.” Random House Webster’s College
Dictionary (2d ed, 1997), p 1391; see also Webster’s New Collegiate Dictionary (1960),
p 921 (“A rectangular block, usually of metal or wood, having its face so shaped as to
produce, in printing, a letter, figure, or other character” or “the letters or characters
impressed, collectively.”). Therefore, we must determine whether the term “type” in
MCL 168.482(2) refers to the blocks used to produce the letters or to the actual printed
letters themselves, and, contrary to Justice MARY BETH KELLY’s contention, which of
these definitions is ultimately controlling is hardly undisputed. Indeed, this matter is at
the very heart of the dispute between plaintiff and the Governor, the Attorney General,
and the intervening defendant. Also, contrary to the Chief Justice’s and Justice MARY
BETH KELLY’s contention, and as is obvious in the language in this very paragraph, I do
not “ignore” these alternative definitions, ante at 8 n 8, or “omit[] the definition’s
reference to blocks,” ante at 18 n 40. Instead, I see fit to explain exactly why I believe
the statute is better understood to incorporate the latter definition. See infra ¶¶ 12-16.
Indeed, it is the Chief Justice who defines “type” as “a printed impression from type,”
ante at 6 n 4, but who “omits” the remainder of that definition that defines type without
reference to letter blocks, to wit, “a printed impression from type: printed matter .”
9
(12) “Individual words and phrases, while important, should be read in the context
of the entire legislative scheme.” Mich Props, LLC v Meridian Twp, 491 Mich. ___, ___;
___ NW2d ___ (2012), issued June 14, 2012 (Docket Nos. 143085-143087 and 143281),
slip op pp 6-7. In the statute at issue here, the term “type” is used in a provision that
states that “the heading of each part of the petition shall be . . . printed in capital letters in
14-point boldfaced type.” MCL 168.482(2) (emphasis added). That the Legislature
specifically used the words “printed” and “letters” indicates that the Legislature was
referring to the actual printed letters rather than the blocks used to make these letters.
That the Legislature used the word “in” rather than “with” in two relevant places in the
statute underscores this interpretation. The Chief Justice gives no consideration at all to
this statutory language.
(13) Interpreting “type” to mean the actual printed letters is also consistent with
the only reasonable legislative purpose that can be served by MCL 168.482(2), to wit,
ensuring that the signers of petitions can easily read what it is that they are signing.
Interpreting “type,” on the other hand, to mean the blocks used in letter-press printing to
produce letters would serve no conceivable purpose because the size of a block says
nothing about the size of the letter produced by that block. Thus, requiring the preparer
to merely use blocks that are physically 14/72 of an inch in size would permit the actual
printed letters on the petition to be of the very smallest and most unreadable size.
(14) It is noteworthy that the Chief Justice, who adopts the block argument, cites a
treatise on printing that was written in 1918, but by 1954, when MCL 168.482(2) was
originally enacted, there were many other methods of printing in addition to the less
10
advanced letter-press method that requires individual blocks. For example, a printing
press can use plates and does not require movable letter blocks; and offset printing uses a
polyester or metal plate and does not require moveable letter blocks. All of these
methods of printing, as well as others, were employed by 1954. Thus, the more
reasonable interpretation of “type” is not “a wood or metal block . . . fixed into a press,”
because this suggests that only printed letters produced by a letter-press are compliant
with the statute. This underscores that the “block” definition of “type” unnecessarily
focuses on the method of production, rather than on the result of production, the text or
type produced. While the former has no bearing on what will actually be read by
potential signers of petitions, the latter focuses precisely on what those signers will read.
(15) Indeed, given that blocks are increasingly not used in the modern printing
industry, it is difficult to conceive of how this Court, or the Secretary of State, or the
Board of State Canvassers, or the parties themselves could practically and accurately
determine whether the “14-point type” requirement of MCL 168.482(2) has been satisfied
in a given instance if “type” means blocks. There are no such blocks in this case because
the 14-point Calibri font that was used on this petition was not produced by blocks.
Indeed, the Calibri font did not even exist when printing blocks were more widely used.
(16) For these reasons, unlike the justices who adopt the printer’s-block argument,
I do not believe that the 14-point-type requirement of MCL 168.482(2) can be reasonably
understood to refer to the size of the blocks used to print the letters; instead, I believe it
must refer to the actual printed letters or characters.
11
(17) That MCL 168.482(2) refers to “the heading,” and that “type” refers to
“printed characters” or “letters or characters impressed, collectively” suggests that the
grouping of letters that comprises the heading should be considered as a whole in
determining the point size of the type. This is buttressed by the statute’s requirement that
“capital letters” must be printed “in 14-point boldfaced type.” (Emphasis added.) That
the statute specifies that the “letters” must be printed in the specified “type” strongly
implies that the “type” must be considered as a whole in evaluating whether the point-
size requirement has been satisfied. Contrary to Justice MARY BETH KELLY’s contention,
I do not conclude that the actual printed characters must each measure 14/72 of an inch
high, nor do I adopt different ways of measuring type under MCL 168.482(2), (3), and
(5). Rather, when measuring type under any of these statutory provisions, I conclude
only that the language must be collectively measured as described in ¶ 18.
(18) As the Court of Appeals explained, the customary practice in the printing
industry is to use a specialized printer’s ruler to determine the type size of printed text.
Stand Up For Democracy v Secretary of State, ___ Mich App ___, ___ n 10; ___ NW2d
___ (2012), issued June 8, 2012 (Docket No. 310047), slip op p 12 n 10. A typical
printer’s ruler has a scale to measure points, as well as the graduated-sized letter “E” in
order to visually represent the range of type size, known as the “E-scale.” To determine
the point size of the printed text, the ruler is used to measure the distance in points
between the ascender height, e.g., the top of the “h,” and the descender height, e.g., the
bottom of the “p.” Thus, although a document may be printed in 14-point type, the actual
point size of each letter will vary (e.g., a lowercase “x” will always be significantly less
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than 14/72 of an inch because it does not contain an ascender or descender). In fact, all
individual letters in 14-point type will measure less than 14/72 of an inch because no
letter in the English alphabet has both an ascender and a descender. If the printed text
does not contain a letter with an ascender and a letter with a descender, the “E-scale” may
still be used by comparing an E (or its nearest equivalent) in the text to the ones printed
on the ruler. If an “E” in the text measures 14 points on the “E-scale,” the type is “in 14-
point.”
(19) Although it is undisputed that the “font” used in the heading in this case was
categorized by the Microsoft software as “14-point,” it is also undisputed that the actual
size of the printed “type” varies widely depending upon the particular “font” chosen. In
other words, a 14-point Calibri font may be of a considerably different type size than a
14-point Arial font. As the Court of Appeals correctly explained, “‘font’ is not a unit of
measurement.” Stand Up For Democracy, ___ Mich App at ___ n 11, slip op p 12 n 11
(emphasis in original). That the Legislature imposed a “14-point type” requirement
shows an intent to impose a specific type-size requirement, regardless of the particular
font chosen.
(20) Justice MARY BETH KELLY’s finding that there is “actual compliance” turns
on the fact that Microsoft “defines ‘font size’ as the ‘size of type . . . .’” Ante at 23.
Although she recognizes that Microsoft does not purport in this definition to define
“type,” she assumes that Microsoft has employed the “printer’s block” definition of
“type” that she has earlier articulated. However, there is simply no evidence for that
conclusion. In fact, the full definition of “font size” provided by Microsoft is:
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The size of type, measured in points between the bottom of the
descender and the top of the ascender (the vertical point size of a font).
Sometimes referred to as the Type or Point Size. [Microsoft Support,
WD2002: Definitions of Typography Terms in Word
(accessed August 1,
2012).]
This definition supports my ascender/descender measurement set forth in ¶ 18, and not
Justice MARY BETH Kelly’s “invisible box” argument. Indeed, the diagram on the very
same Microsoft typography page cited by Justice MARY BETH KELLY further illustrates
that it is the height of the letters-- from highest ascender to lowest descender-- that
controls, not the invisible box. For these reasons, I respectfully disagree with Justice
MARY BETH KELLY, who concludes that because plaintiff’s petition heading is printed in
a 14-point font, it “actually complies” with the 14-point-type requirement in MCL
168.482(2). By this analysis, the Legislature’s ability to ever impose a specific type-size
requirement in order to assure a minimum standard of legibility would be entirely
frustrated.
(21) Because the heading on the form here is smaller than 14 points as measured
by an E-scale ruler (and considerably so), the form is clearly not in compliance with
either MCL 168.482(2) or the Secretary of State’s rule. Therefore, plaintiff has failed to
satisfy its burden of proving that defendants have any legal duty, much less a clear legal
duty, for purposes of mandamus relief to certify the instant referendum for placement on
the ballot.
(22) Although plaintiff argues that in the past 15 years at least 14 referendums
have been placed on the statewide ballot even though their headings were also not 14
14
points in size, plaintiff acknowledges that all of those referendums were preapproved by
the Secretary of State. Given this preapproval, those forms would only have had to
“substantially comply” with MCL 168.482(2). Plaintiff, on the other hand, did not seek
the Secretary of State’s preapproval, and thus was required to actually comply with MCL
168.482(2), which it did not do.
(23) Further, it is telling that on page 8 of plaintiff’s own supplemental brief, of
the six other petition headings set forth in connection with matters that might appear on
this year’s ballot, each is in larger type than plaintiff’s and five of these are in an identical
or nearly identical typeface. While plaintiff may, or may not, be correct that its own
heading “stands out for readability,” it also stands out in the distinctiveness of its type
size. Moreover, as the Board of State Canvassers and the Secretary of State indicate, the
six other petitions this year were each preapproved by the board, and thus subject only to
substantial compliance with MCL 168.482(2).
(24) Concerning the approach of the remanding justices, I see no benefit to be
derived from this approach, and the remanding justices fail to explain what the benefit
might be. That is, no matter which justice among us has correctly identified the proper
method of measuring type, all of the information necessary to assess whether plaintiff’s
petition satisfies the statute is already before us. See infra ¶¶ 25-27. Given existing time
constraints, returning this case to the board would serve no purpose other than to
effectively make the board, not this Court, the court of last resort on this issue. Before
we do that, I would prefer to make the Court of Appeals the court of last resort, because
that is what the Constitution and laws of our state certainly contemplate. I would not
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remand to the board without first providing it with relevant judicial guidance regarding
what the law requires. The board has already deadlocked on the issue of type size and
that is why this case is before the Court in the first place.
(25) First, if one adopts the “character size” approach, as I do, a remand is not
warranted because MCL 168.482(2) requires the heading to be printed in 14-point type as
measured by an E-scale ruler and the intervening defendant has submitted an affidavit
that asserts that the heading in this case is not printed in 14-point type as measured by an
E-scale ruler, and plaintiff has not argued to the contrary. Further, as the Court of
Appeals explained, “[b]ecause 14-point is a unit of measurement easily determined by
use of an E-scale ruler, neither this Court nor the Board requires expert testimony to
determine whether the correct measurement has been met.” Stand Up For Democracy,
___ Mich App at ___ n 10, slip op p 12 n 10. That is, we can determine ourselves that
“the heading on plaintiff’s petition only measures 12 point on an E-scale ruler,” id. at
___, slip op p 12, and no remand to an expert body is required. What possible benefit
would be derived from such a remand?
(26) Second, if one adopts the “printer’s block” approach, as do the remanding
justices, a remand is again unwarranted. The intervening defendant has also submitted an
affidavit that provides that plaintiff’s heading is clearly smaller than the same heading
printed with a variety of 14-point blocks that it has obtained, and again plaintiff has not
argued to the contrary. That is, while the intervening defendant has presented evidence
that neither the actual printed letters nor the blocks satisfy the 14-point requirement,
plaintiff has presented no contrary evidence. Instead, it has been the dominant focus of
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plaintiff’s argument throughout this case that it has “substantially complied” with MCL
168.482(2) and that the difference between the 14-point type required by the statute and
the type used in its petition heading, which measures 12 points on an E-scale ruler,
amounts to merely a “dime’s width of a difference.” What possible benefit would be
derived from a remand?
(27) Third, if one adopts the “font” approach, as do plaintiff and Justice MARY
BETH KELLY, a remand is not warranted given that there is no dispute that plaintiff’s
petition was in 14-point Calibri font. What possible benefit would be derived from a
remand?
(28) Further, for the same reasons that I do not believe that “substantial
compliance” constitutes the appropriate legal standard, it is unclear to me how the
remanding justices’ “faithful replication” standard, in which the board must assess
whether the letters produced by Microsoft’s 14-point Calibri font are close enough to the
letters produced by a 14-point Calibri block, if such a block can even be found, is any
different than the “substantial compliance” standard that these justices themselves reject.
(29) For all these reasons, I would reverse that part of the judgment of the Court of
Appeals holding that “substantial compliance” with MCL 168.482(2) is sufficient to
warrant a grant of mandamus.
Stephen J. Markman
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