Progress for Michigan 2020 v. Cyndee Jonseck

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PROGRESS FOR MICHIGAN 2020, UNPUBLISHED
September 8, 2020
Plaintiff-Appellant,
v No. 354726
St. Clair Circuit Court
CYNDEE JONSECK, LC No. 20-001331-AW
Defendant-Appellee.
Before: O’BRIEN, P.J., and CAVANAGH and JANSEN, JJ.
PER CURIAM.
Plaintiff, Progress for Michigan 2020, appeals as of right the September 3, 2020 order of
the St. Clair Circuit Court, which denied plaintiff’s complaint for mandamus. Plaintiff seeks a
writ of mandamus compelling defendant, Cyndee Jonseck, the Port Huron City Clerk, to certify
plaintiff’s ballot initiative language to the county clerk pursuant to MCL 168.646a. We reverse,
and direct defendant to immediately certify the ballot language to the county clerk pursuant to
MCL 168.646a.1
I. FACTS
Plaintiff seeks to have a proposal placed on the ballot in the upcoming November 3, 2020
general election. The initiative, if approved, would enact an ordinance in the City of Port Huron
regarding marijuana-related businesses and the adult use of marijuana. The content of the proposal
is not at issue; rather, at issue in this appeal are two procedures for placing voter-initiated ballot
proposals on the ballot, one provided by statute, and the other by the Port Huron City Charter.
Beginning with the statutory provisions, MCL 168.646a(2) and (3), provisions of the Michigan
election law, MCL 168.1 et seq., provide the following:
1
This Court granted plaintiff’s motion to expedite the appeal. Progress for Michigan 2020 v
Jonseck, unpublished order of the Court of Appeals, entered September 8, 2020 (Docket No.
354726).
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(2) If a ballot question of a political subdivision of this state including, but not
limited to, a . . . city . . . is to be voted on at a regular election date or special
election, the ballot wording of the ballot question must be certified to the proper
local or county clerk not later than 4 p.m. on the twelfth Tuesday before the election.
If the wording is certified to a clerk other than the county clerk, the clerk shall
certify the ballot wording to the county clerk at least 82 days before the election.
Petitions to place a county or local ballot question on the ballot at the election must
be filed with the clerk at least 14 days before the date the ballot wording must be
certified to the local clerk.
(3) The provisions of this section apply to and control the filing deadlines for . . .
all ballot questions of a political subdivision of this state at any regular election . .
. notwithstanding any provisions of law or charter to the contrary. [Emphasis
added.]
There is no dispute that the twelfth Tuesday before the November 3, 2020 general election
is August 11, 2020, and that the day that is 82 days before that election is August 13, 2020. Nor
does anyone dispute that 14 days before August 11, 2020, is July 28, 2020. This aligns with
guidance issued by the Secretary of State:
Filing Deadlines: County and Local Proposals
* * *
By 5:00 p.m., Petitions to place county and local questions on the November general
July 28, 2020 election ballot filed with county and local clerks. (168.646a)
By 4:00 p.m., Ballot wording of county and local proposals to be presented at the
August 11, 2020 November general election certified to county and local clerks; local clerks
receiving ballot wording forward to county clerk within two days.
(168.646a)[2]
The Port Huron City Charter has a detailed section regarding voter initiatives and
referendums. Port Huron City Charter, Section 3-9, gives the electors of the city the “the powers
of initiative and referendum on all matters within the scope of the powers of the City. Initiative
means the power to propose and to enact ordinances.”3 Port Huron City Charter, Section 3-10,
provides the procedures by which initiatory and referendum petitions are governed. Relevant to
2
2020 Michigan Election Date Booklet, p 5, available at
https://www.michigan.gov/documents/sos/2020_Elec-Dates-Booklet_ED-12_10-09-
19_668275_7.pdf.
3
MCL 117.4i(g), a provision of the Home Rule City Act, MCL 117.1 et seq., allows cities to
provide for “[t]he initiative and referendum on all matters within the scope and powers of that city
. . . .”
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this matter, Port Huron City Charter, Section 3-10(5) requires that, before a petition is circulated,
the petition must be submitted to the city clerk, who shall then submit the petition to the city
attorney “for an opinion on the proposal’s compliance with the law.” The city attorney is to
provide his or her opinion, in writing, within 15 days. Port Huron City Charter, Section 3-10(5).
Port Huron City Charter, Section 3-10(6), provides that signed petitions must be filed with
the city clerk. Port Huron City Charter, Section 3-10(7), then provides the city clerk with 15 days
to determine whether the petition is in “proper form” and to determine whether the petition
signatures are valid. Pursuant to Port Huron City Charter, Section 3-10(9), “If the petition is found
sufficient and proper, the City Clerk shall present the petition to the City Council at its next regular
meeting.” Port Huron City Charter, Section 3-11, explains that once submitted to the city council,
the city council must decide whether to adopt the ordinance itself, or alternatively, submit the
proposal to the electors at the next available election date. The charter provides city council with
30 days to reach its decision after its meeting. Port Huron City Charter, Section 3-11(1) and (2).
In the present matter, plaintiff e-mailed a copy of the petition for review by the city’s
attorney on July 15, 2020. Plaintiff submitted to defendant 347 pages of petition signatures on
July 28, 2020, the last day permitted for submission of petition signatures under MCL 168.646a(2).
The city attorney provided an opinion on July 29, 2020, which found no problems with the proposal
itself; the subject of the petition was “permissible under Michigan law and the City Charter[,]” and
the “form and format of the Petition [was] consistent with Michigan law and the City Charter.”
But the city attorney did note that although MCL 168.646a(2) “allows signed petitions to be
submitted to the Clerk up to July 28, 2020, such may not allow sufficient time to complete the
certification process required by the City Charter, which can take up to 45 days (15 days for the
Clerk and 30 days for Council), to be included on the November 3, 2020 ballot.” On July 31,
2020, defendant emailed plaintiff’s representative with a copy of the city attorney’s letter.
Defendant explained that:
Per the City Charter, the City Clerk shall within 15 business days of receiving the
signed petitions (July 28, 2020) determine the validity of the signatures on the
petition in accordance with the law and so certify. I will be in touch on/or before
Monday, August 17, 2020.
And on August 17, 2020, an assistant city clerk emailed plaintiff’s representative to explain that
indeed, a sufficient number of valid signatures were presented. The e-mail explains:
The next step per Section 3-10 & 3-11 of the City of Port Huron Charter is to present
the petition to the City Council at its next regular meeting which is September 14,
2020.
Within thirty (30) days of receiving the petition, the City Council must (a) adopt
the ordinance submitted in the petition; or (b) submit the proposal to the electors at
the next available election date as provided by law.
Realizing that the timeline set by the above e-mail correspondence would almost certainly
mean that the proposal would not be certified in time to be placed on the November 3, 2020 general
election ballot, plaintiff filed suit in the circuit court on August 20, 2020. Plaintiff sought a writ
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of mandamus compelling defendant to immediately certify the ballot proposal pursuant to MCL
168.646a(2). Plaintiff’s complaint alleged that the timeline provided by the city charter was in
clear conflict with MCL 168.646a(2). Plaintiff asserted that defendant had a clear legal duty to
certify the ballot language to the county clerk immediately, notwithstanding the provisions of the
city charter. The trial court heard the matter on August 27, 2020, and on September 3, 2020, the
court entered an order denying the complaint for mandamus and closing the case. Plaintiff now
appeals as of right.
II. DISCUSSION
A. STANDARD OF REVIEW
“A trial court’s decision to deny a writ of mandamus will not be reversed absent an abuse
of discretion.” Keaton v Village of Beverly Hills, 202 Mich. App. 681, 683; 509 NW2d 544 (1993).
To establish entitlement to the writ, a plaintiff must show (1) that the plaintiff “has a clear legal
right to the performance of the specific duty sought, (2) the defendant has the clear legal duty to
perform the act requested, (3) the act is ministerial, and (4) no other remedy exists that might
achieve the same result.” Coalition for a Safer Detroit v Detroit City Clerk, 295 Mich. App. 362,
367; 820 NW2d 208 (2012) (quotation marks and citation omitted). Although the trial court’s
decision whether to issue a writ of mandamus is reviewed for an abuse of discretion, this Court’s
review of the first two elements—i.e., the existence of a clear legal right and a clear legal duty—
de novo, as those are questions of law. Id. To the extent this Court must interpret the relevant
statutes, questions of statutory interpretation are likewise reviewed de novo. PNC Nat’l Bank
Ass’n v Dep’t of Treasury, 285 Mich. App. 504, 505; 778 NW2d 282 (2009).
B. ANALYSIS
The first question that must be answered is whether the Port Huron City Charter’s
provisions are preempted by the statutory procedure created by MCL 168.646a. “[W]here a city
charter conflicts with a state statute, the statute controls in matters that are not solely a local
concern.” Detroit City Council v Detroit Mayor, 283 Mich. App. 442, 454; 770 NW2d 117 (2009).
Pursuant to MCL 117.36, “No provision of any city charter shall conflict with or contravene the
provisions of any general law of the state.” We conclude that MCL 168.646a, in its current form,
preempts the Port Huron City Charter’s provisions.
As background, MCL 168.646a was amended in 2015, in response to this Court’s decision
in Meridian Charter Twp v Ingham City Clerk, 285 Mich. App. 581; 777 NW2d 452 (2009). At the
time Meridian Charter Twp was decided, MCL 168.646a(3) provided that “[t]he provisions of this
section apply notwithstanding any provisions of law or charter to the contrary, unless an earlier
date for the filing of affidavits or petitions, including nominating petitions, is provided in a law or
charter, in which case the earlier filing date is controlling.” MCL 168.646a(3), as enacted by 2013
PA 253 (emphasis added). In response to Meridian Charter Twp, our Legislature amended MCL
168.646a(3) to state that the provisions of MCL 168.646a “apply to and control the filing deadlines
for candidates for local office to be elected at the general November election and for all ballot
questions of a political subdivision of this state at any regular election, primary election, or special
election notwithstanding any provisions of law or charter to the contrary.” MCL 168.646a(3), as
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enacted by 2015 PA 197 (emphasis added). Were there any doubt regarding what that alteration
was intended to accomplish, enacting section 1 of the public act states:
Section 646a of the Michigan election law . . . as amended by this amendatory act
is curative and intended to correct any misinterpretation of legislative intent by the
Michigan court of appeals in Meridian Charter Township v Ingham County Clerk,
285 Mich. App. 581 (2009). It is the intent of the legislature that section 646a of the
Michigan election law . . . as amended by this amendatory act expresses the original
intent of the legislature that MCL 168.646a(3) supersedes any and all conflicting
provisions of law or charter prescribing the filing deadlines for candidates for local
office to be elected at the general November election and for all ballot questions of
a political subdivision of this state at any regular election, primary election, or
special election. [Emphasis added.]
And while the statute was amended again by way of 2018 PA 627, no alterations were made to
MCL 168.646a(3). Thus, the language enacted by 2015 PA 197 remains controlling.
It is thus apparent that, at least as the charter has been applied in this case, MCL 168.646a
and the Port Huron City Charter conflict. Under MCL 168.646a(2), initiatory petitions must be
filed the city clerk “14 days before the date the ballot wording must be certified to the local clerk.”
With reference to the November 3, 2020 general election, that date is July 28, 2020. There is no
question in this case that the initiatory petition was filed on the last day permitted by statute, July
28, 2020. Pursuant to MCL 168.646a(2), no later than “82 days before the election,” the local
clerk “shall certify the ballot wording to the county clerk . . . .” Following the terms of the statute,
defendant had between July 28, 2020, and August 13, 2020, during which it could conduct any
review of the petition before certifying the ballot wording to the county clerk.
In contrast, the city charter gives defendant 15 business days to review the petition to
determine whether it is “in proper form” and to determine whether the signatures are valid. Port
Huron City Charter, Section 3-10(7). Then, presuming the clerk finds the petition to comply with
those requirements, it is to be presented to the city council at the next regular meeting; the city
council may elect to adopt the proposal itself or submit it to the voters. Port Huron City Charter,
Section 3-10(9). The city council may consider the matter for up to 30 days before deciding what
action to take. Port Huron City Charter, Section 3-11. In this case, given the date defendant
approved the ballot signatures and the date of the next regularly scheduled city council meeting at
which the proposal could be considered, the Port Huron City Charter would allow the city council
to wait to decide whether to put the matter on the ballot until mid-October—clearly too late for the
matter to be put to the voters at the November 3, 2020 general election.
It is abundantly clear that the city charter provisions, to the extent those provisions conflict
with MCL 168.646a(2), must give way. The Legislature could not have been more clear in MCL
168.646a(3): “The provisions of this section,” i.e., MCL 168.646a, “apply to and control the filing
deadlines . . . for all ballot questions of a political subdivision of this state at any regular election
. . . notwithstanding any provisions of . . . charter to the contrary.” As plaintiff explains, by strictly
enforcing the city charter provisions, defendant has effectively moved the date for submission of
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petitions to a date earlier than that contemplated by MCL 168.646a(2).4 Defendant’s obligation is
to certify the ballot language pursuant to MCL 168.646a(2), even if that would conflict with the
terms of the city charter.
Defendant argues that there is no conflict because MCL 168.646a(2) only applies if a ballot
issue “is to be voted on at a regular election date . . . .” That is, according to defendant, plaintiff
must first establish that the measure is to be voted on at the November 3, 2020 general election
before the procedures of MCL 168.646a(2) would even apply. According to defendant, before
having a right to put the matter on the November 3, 2020 general election, the procedures of the
city charter would need to be completed, and it is not until those procedures are completed that
plaintiff may have a right to have the matter put on any ballot.5 We disagree. The first sentence
of MCL 168.646a(2), on which defendant relies, states that, “If a ballot question of a political
subdivision of this state . . . is to be voted on at a regular election date . . . the ballot wording of
the ballot question must be certified to the proper local or county clerk not later than 4 p.m. on the
twelfth Tuesday before the election.” The phrase relied on by defendant is stated in a sentence
that sets one deadline for certifying ballot wording to local or county clerks, no more and no less.
And more importantly, the last sentence of MCL 168.646a(2) is clear: “Petitions to place a county
or local ballot question on the ballot at the election must be filed with the clerk at least 14 days
before the date the ballot wording must be certified to the local clerk.” This case undoubtedly
involves a petition to place a local ballot question on the ballot at the November 3, 2020 general
election. As has been explained, plaintiff satisfied MCL 168.646a(2) by filing its petition on July
28, 2020, the date that is “14 days before the date the ballot wording must be certified to the local
clerk.” Because the provisions of MCL 168.646a(2) “apply to and control the filing deadlines . . .
for all ballot questions of a political subdivision of this state at any regular election . . .
notwithstanding any provisions of law or charter to the contrary[,]” MCL 168.646a(3), and because
plaintiff satisfied the deadline for filing its petition established by MCL 168.646a(2), the city
charter’s lengthy approval process cannot be used to effectively keep the proposal off the
November 3, 2020 general election ballot.6
4
Indeed, defendant argues that plaintiff could have avoided the problem by simply filing its
petition signatures 40 days earlier, which would have allowed the matter to be put before the city
council on August 10, 2020. Defendant thus admits that its charter provisions have effectively
moved the filing deadline for this proposal to be put on the November 3, 2020 ballot to a date well
before that contemplated by MCL 168.646a(2).
5
We use the word “may” because, as defendant notes, the city council could choose to enact the
proposal itself.
6
Defendant has asserted that had plaintiff acted more quickly and submitted its petition signatures
a mere 40 days earlier than required by MCL 168.646a(2), the matter could have been submitted
to the city council at its August 10, 2020 regular meeting, which would have obviated the need for
this entire suit. Yet, as explained, MCL 168.646a(2) and (3) gave plaintiff the right to submit its
petition at any point up until July 28, 2020. And by doing so, plaintiff did not prevent defendant
and the City of Port Huron from completing the procedure put forth in the Port Huron City Charter.
Defendant had the signatures in hand on July 28, 2020, and while the city charter provided her
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The question becomes whether plaintiff is entitled to a writ of mandamus compelling
defendant to certify the ballot language to the county clerk. We have little difficulty concluding
that plaintiff is so entitled. For the reasons explained, defendant had a clear legal duty to comply
with MCL 168.646a(2), even if that procedure differs from that stated in the city charter, and
certify the ballot language to the county clerk by August 13, 2020. See Warren City Council v
Buffa, ___ Mich App___, ___; ___NW2d ___ (2020) (Docket No. 354663), slip op at 5-6 (where
the city council complied with the timeline of MCL 168.646a(2), the city clerk had a clear legal
duty to certify the ballot language to the county clerk by August 13, 2020). And plaintiff, as the
organization seeking to put the proposal to the voters, has a right to the performance of that duty.
See id. at ___; slip op at 6 (“And as the body who passed the resolution, we conclude that plaintiff
has a right to the performance of that duty”).
“The third element asks if the duty was ministerial, or instead, involves a measure of
discretion.” Id. In Warren City Council, this Court held that the language of MCL 168.646a(2)
provides “no room for discretion.” Id. This is because the language uses the word, “shall,” to
describe the local clerk’s duty to certify the ballot language to the county clerk. Id. The word
“shall” indicates a mandatory, not discretionary, directive. Id. Given that no concerns have been
raised with any aspect of the initiative—i.e., the requisite number of signatures were obtained, the
language is not objectionable, etc.—defendant’s “obligation was to certify the ballot language to
the county clerk” by August 13, 2020. Id.7
“Finally, before the writ may issue, plaintiff must demonstrate that it has no other legal
remedy.” Id. Mandamus is generally the appropriate legal remedy to “compel the performance of
election-related duties.” Id. A writ of mandamus is necessary to compel defendant to perform her
legal duties and certify the ballot language at issue. Accordingly, it was an abuse of discretion to
refuse to issue the writ.
with 15 business days to review those signatures, nothing required her to wait that long. Rather,
defendant could have completed her review in time to put the matter to the city council on August
10, 2020. At that point, and while the charter provides the city council with up to 30 days to reach
a decision whether to adopt the ordinance itself or submit it to the voters, the city council is not
required to wait that long. Rather, the city council could have made a decision in time such that
defendant could have certified the proposal within the timeframe of MCL 168.646a(2). In other
words, just as plaintiff could have acted earlier to ensure the city council’s consideration at the
August 10, 2020 meeting, so, too, could have defendant.
7
This Court need not decide what, exactly, falls within the scope of a local clerk’s review during
the period provided by MCL 168.646a(2) between the filing of a petition with the local clerk and
the certification of that petition to the county clerk, as in this case, there is no dispute whatsoever
that there are no hurdles to certification other than the fact that the Port Huron City Charter could
force the review process to drag out until mid-October 2020, just weeks before the November 3,
2020 general election.
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III. CONCLUSION
The circuit court’s order is reversed to the extent that court denied plaintiff’s request for a
writ of mandamus compelling defendant to immediately certify plaintiff’s ballot proposal language
to the county clerk. Defendant is hereby ordered to immediately certify the ballot language to the
county clerk pursuant to MCL 168.646a(2). A public question being involved, no costs may be
taxed under MCR 7.219. This opinion shall have immediate effect pursuant to MCR 7.215(F)(2).
/s/ Colleen A. O’Brien
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
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