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STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF KENT

______________________________

GRAND RAPIDS TAXPAYERS

ASSOCIATION and MICHAEL FARAGE,

Plaintiffs,

v

CITY OF GRAND RAPIDS, GRAND

RAPIDS BOARD OF CITY ELECTION

COMMISSIONERS, and DARLENE

O’NEAL, in her capacity as Grand Rapids

City Clerk and chair of the Board of Election

Commissioners,

Defendants.

Case No.: 14-01988-AW

Hon.: George S. Buth

Jeff Steinport (P76401)

Steinport Law PLC

Attorney for Plaintiffs

538 Bond Ave NW Ste 812

Grand Rapids, MI 49503

(616) 730-1401

jeff.steinport@steinportlaw.com

Dennis Kolenda (P16129)

Scott Smith (P31966)

Dickinson Wright PLLC

Attorneys for Defendants

200 Ottawa Ave NW, Ste 1000

Grand Rapids, MI 49503

(616) 458-1300

PLAINTIFFS’ REPLY AND SUPPLEMENTAL PRE-HEARING BRIEF

This matter is set for hearing on Tuesday, March 18, 2014. Since filing this action,

Plaintiffs have received additional documents and information requiring supplemental briefing.

Defendants filed their reply brief after 4:00 pm on Monday, March 17. Given the time-sensitive

nature of this matter and the need for immediate resolution—ballots may be distributed within a

week—Plaintiffs offer this brief.

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ARGUMENT

I. SUMMARY OF LEGAL ISSUES BEFORE THE COURT

The issues in this case are, in fact, quite simple. The Defendants violated an election statute,

and Plaintiffs are allowed to enforce that statute by a writ of mandamus. There are only two legal

issues for the Court to decide: whether Plaintiffs can bring this suit and whether MCL 168.646a

applies to this election.

A. Plaintiffs are using the proper procedure to address a violation of the Michigan

Election Law.

Plaintiffs have standing as private citizens (and their ballot question committee) to

enforce the election law. See, e.g., Protect Michigan’s Constitution v Secretary of State,

297 Mich App 553, 566-567; 824 NW2d 299, 306 (2012) (“The general interest of ordinary

citizens to enforce the law in election cases is sufficient to confer standing to seek

mandamus relief.”); Deleeuw v Bd of State Canvassers, 263 Mich App 497, 505-506; 688

NW2d 847 (2004) (“Election cases are special, however, because with the process of

elections, citizens lack their ordinary recourse. For this reason, we have found that ordinary

citizens have standing to enforce the law in election cases.”); Helmkamp v Livonia, 160

Mich App 442, 445; 408 NW2d 470, 472 (1987) (private party “may enforce by mandamus

a public right or duty relating to elections without showing a special interest distinct from

the interest of the public. . . . plaintiffs were not required to show a substantial injury

distinct from that suffered by the public in general.”). Defendants ignore this clear line of

precedent in election cases.

A writ of mandamus is the proper procedure here. See Citizens Protecting Michigan’s

Constitution v Secretary of State, 280 Mich App 273, 283; 761 NW2d 210, 216 (2008)

(“Mandamus is the appropriate remedy for a party seeking to compel action by elected

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officials.”). A pre-election writ is an appropriate method to remove an issue from the ballot.

See id. (Dickinson Wright law firm securing writ of mandamus, on behalf of a ballot

question committee, removing an issue from the ballot); see also Barrow v City of Detroit

Election Commission, 301 Mich App 404; 836 NW2d 498 (2013) (removing candidate

from ballot). Defendants’ arguments about injunctions before elections are red herrings.

The underlying issue here is a writ of mandamus to remove an unlawful ballot question;

the issue here is not about injunctive relief against an election itself. As the issue at hand

is the only thing to be voted on at the May 6 election, the result of a writ here is that there

would be no election, but that does not change the propriety of a writ of mandamus to

remove something unlawful from the ballot. Defendants’ “injunction” cases do not prohibit

pre-election writs of mandamus.

Defendants violated the Michigan Election Law. The plain language of MCL 168.646a

applies to local ballot questions. The statute always imposes a certification requirement on

city ballot questions. Language creating a separate standard for “purely” local elections

(without state and federal issues) was removed by the legislature.

There is no conflict between this statute and the others cited by Defendants. The

certification requirement in Section 646a is in addition to the other election requirements,

such as ballot printing. Even if a city prints the ballots, it must still follow other

requirements, such as state approval and county certification. The statutes relied on by

Defendants say nothing about certification.

Even if there were a conflict, Section 646a would still apply. This statute explicitly

applies “notwithstanding” another election provisions. It is also the more specific and more

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recent provisions. Defendants’ arguments about special rules that apply only to townships

does not change this.

Because the plain statutory language is against Defendants, they hope to offer a

parade of election officials to say that the law does not apply to Grand Rapids. These

witnesses cannot testify as to the law; the Court decides the law. Moreover, no deference

is owed to agencies where a statute or rule is unambiguous. See, e.g., Koontz v. Ameritech

Services, Inc., 466 Mich. 304, 323-324, 645 N.W.2d 34 (2002), and no deference is owed

here where, up until recently, the government officials recognized that the certification

deadline in Section 646a applied. See Exhibits A (Bureau of Elections deadline), B (County

Clerk’s deadline listing), and C (city attorney instructing city clerk to certify to county).

These issues are simple. The facts are undisputed. Defendants no longer claim that they

complied with Section 646a. If that statute applies, they lose. There are no facts that need

development. The time is right for the Court to decide these purely legal issues and issue a writ.

II. PLAINTIFFS ARE PROPERLY BEFORE THE COURT TO CHALLENGE THIS

UNLAWFUL ELECTION

Defendants’ standing arguments completely ignore the election-specific jurisprudence.

Michigan courts have recognized over and over that the standing rules are different when it comes

to an action for mandamus in the context of an election. In fact, Defendants spend eight pages

outlining arguments and case law that don’t even apply to this case.

It is well settled that mandamus is the proper remedy to resolve violations of election law,

and the Plaintiffs, as a voter and a ballot question committee, have standing to pursue this remedy.

As explained in a case brought by another ballot question committee: “Mandamus is the

appropriate remedy for a party seeking to compel action by elected officials.” Citizens Protecting

Michigan’s Constitution v Secretary of State, 280 Mich App 273, 283; 761 NW2d 210, 216 (2008).

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It is well established that ordinary citizens and persons have standing to seek a writ of

mandamus against election officials in election-related cases. “It is generally held, in the absence

of a statute to the contrary, that a private person as relator may enforce by mandamus a public right

or duty relating to elections without showing a special interest distinct from the interest of the

public. . . . Consequently, defendants’ assertions and citations to the contrary, plaintiffs were not

required to show a substantial injury distinct from that suffered by the public in general.”

Helmkamp v Livonia, 160 Mich App 442, 445; 408 NW2d 470, 472 (1987) (citation and quotations

omitted).

The rights of an ordinary citizen or private person to enforce by mandamus a public right

or duty relating to elections without showing a special interest distinct from the interest of the

public was recently upheld by the Michigan Court of Appeals in Deleeuw v Bd of State Canvassers,

263 Mich App 497; 688 NW2d 847 (2004) where the Court of Appeals said: “Election cases are

special, however, because with the process of elections, citizens lack their ordinary recourse. For

this reason, we have found that ordinary citizens have standing to enforce the law in election

cases.” Id. at 505-506.

“The general interest of ordinary citizens to enforce the law in election cases is sufficient

to confer standing to seek mandamus relief.” Protect MI Constitution v Secretary of State, 297

Mich App 553, 566-567; 824 NW2d 299, 306 (2012).

Plaintiff Farage is a registered voter in the State of Michigan, more than meeting the

requirement to be a plaintiff with standing under Protect MI Constitution, supra.1 Plaintiff GRTA

is an officially recognized ballot question committee specifically formed for the opposition of the

1 See Verified Complaint, ¶ 3.

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proposed Streets Tax question, pursuant to Michigan’s campaign finance statutes.2 (See also

Exhibit D – GRTA Statement of Organization). In Protect MI Constitution the plaintiff, Protect

MI Constitution (PMC), was a ballot question committee formed to oppose the ballot question at

contention in that case and PMC was found to have standing to challenge an election, exactly as

is the position Plaintiff GRTA in this case.

Plaintiffs additionally have standing for an action for declaratory relief because a legal

cause of action exists, in the form of a writ of mandamus. “[A] litigant has standing whenever

there is a legal cause of action. Further, whenever a litigant meets the requirements of 2.605, it is

sufficient to establish standing to seek a declaratory judgment.” Lansing Schools Education Ass’n

v Lansing School District Bd of Ed, 487 Mich 349, 372; 792 NW2d 686, 699 (2010).

As Plaintiffs meet the standing requirements under Michigan’s mandamus jurisprudence

in the context of an election, consequently they have standing for a declaratory relief action.

Furthermore, accepting or rejecting a ballot issue is a ministerial task once the certifying body

determines the qualification for the ballot issue to be on the ballot. See Protect MI Constitution,

supra, at 824 NW2d 307. See also Barrow v City of Detroit Election Commission, 301 Mich App

404; 836 NW2d 498 (2013).

III. THE MICHIGAN ELECTION LAW’S PROVISIONS ARE CRYSTAL CLEAR

A. Section 646a clearly applies to Defendants

The proposed Streets Tax ballot question is an amendment to a city ordinance while the

proposed Sidewalk Issue is an amendment to the city’s charter.

2 See Verified Complaint, ¶ 2.

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The issues in this case are governed by the Home Rule City Act, MCL 117.1 et seq, which

the City of Grand Rapids operates pursuant to, and the Michigan Election Law, MCL 168.1 et seq,

which governs all elections in Michigan.3

The primary goal of statutory interpretation is to give effect to the intent of the Legislature.

In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164, 174 (1999). This determination

is accomplished by examining the plain language of the statute itself. Id. If the statutory language

is unambiguous, the courts presume that the Legislature intended the meaning plainly expressed

and further judicial construction is neither permitted nor required. DiBenedetto v West Shore Hosp,

461 Mich 394, 402; 605 NW2d 300, 304 (2000). Under the plain-meaning rule, courts must give

the ordinary and accepted meaning to the mandatory word "shall" and the permissive word "may"

unless to do so would frustrate the legislative intent as evidenced by other statutory language or

by reading the statute as a whole. Browder v Int'l Fidelity Ins Co, 413 Mich 603, 612; 321 NW2d

668, 673 (1982). As far as possible, effect should be given to every phrase, clause, and word in the

statute. Gebhardt v O'Rourke, 444 Mich 535, 542; 510 NW2d 900, 903 (1994).

Chapter XXVIII of the Election Law, titled “Holding of Elections,” contains MCL

168.646a(2), and states as follows:

(2) If a local, school district, or county ballot question is to be voted on at a

regular election date or special election, the ballot wording of the ballot

question shall be certified to the local or county clerk at least 70 days 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 68 days

before the election. Petitions to place a county or local ballot question on the ballot

3 The City, in its resolutions on the Streets Tax question cites the Uniform City Income Tax Act, specifically MCL

141.503c, as its authority for passing an income tax question and placing it on the ballot. This Act only permits a

city to have an income tax and has no provisions for placing a question on the ballot by the city commission. The

Act does have a provision for a referendum petition to adopt an income tax at MCL 141.503, but this section does

not refer to a question placed on a ballot by a city commission.

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at the election shall be filed with the clerk at least 14 days before the date the ballot

wording must be certified to the local clerk. (emphasis added)

This section unambiguously applies to all local, school district, or county ballot questions

and uses the mandatory language of shall.

MCL 168.646a(3) further modifies and clarifies the situation: “(3) The 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 the earlier filing date is controlling.” (emphasis added)

In other words, MCL 168.646a(3) recognizes that some earlier filing dates may be required

by another law or city charter than outlined in MCL 168.646a(2), and in that case those earlier

dates apply. In all other cases and all other law notwithstanding, the deadlines in 168.646a(2) are

mandatory, including the date of certification to the county clerk of local ballot wording.

Defendants cite Charter Township of Meridian v Ingham County Clerk, 285 Mich App

581; 777 NW2d 452 (2009), claiming that the Court of Appeals ruled that 138.646a only applies

to some elections. This is not the case. The court in Meridian ruled that the Charter Township Act

controls because it has a separate and specific certification requirement to the County Clerk that

clearly conflicts with the Election Law. Additionally, the court was interpreting the CTA in the

context of an initiatory petition. The CTA contains provisions in its initiatory petition section

relating to certification deadlines, and the court determined that the CTA’s deadlines were

applicable notwithstanding the Election Law because the CTA’s plain language made the

application of the election law subject to an “or” in its language. Id. at 599. No similar provision

is to be found in the Home Rule City Act’s provisions on ballot questions submitted by the city

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commission—it does not have a conflicting certification provision.4 It’s also important to note that

the CTA additionally requires that citizen petitions be certified directly to the county clerk. Again,

no similar provision is present in the Home Rule City Act. There is no conflict between the Home

Rule City Act and the Election Law. To put it simply, Meridian does not apply to this case.

Meridian is the only case that interprets 168.646a as not being applicable to an election, despite

Defendants’ claims that Meridian stands for the idea that 168.646a “does not apply to all

elections.”

The Legislature’s intent to have the Elections Law’s provisions apply to local ballot issues,

in addition to the statute’s plain language, is evidenced by the fact that the Election Law was

amended last year (2013) to make these deadlines even longer – at least 84 days (these changes

take effect in April of this year, see Exhibit E). The Defendants’ position is that both the current

and amended forms of the Election Law are meaningless as it relates to local ballot questions,

despite the plain and unambiguous language that applies the Election Law’s deadlines

notwithstanding any other earlier deadlines.

The Legislature’s further intent is shown by the recent amendment of the Election Law to

remove a shorter 60 day certification requirement that was present before 2006. Attached as

4 The Charter Township Act section referenced in Meridian states, in relevant part:

(5) Notwithstanding subsections (1) and (3), a portion of a charter township contiguous to a city or

village may be annexed to that city or village upon the filing of a petition with the county clerk

which petition is signed by 20% of the registered electors in the area to be annexed and approval by

a majority of the qualified and registered electors voting on the question in the city or village to

which the portion is to be annexed, and the portion of the township which is to be annexed, with the

vote in each unit to be counted separately.

(6) If a petition is filed as provided in subsection (5), the county clerk, after determining the validity

of the petition, shall order a referendum on the question of annexation. This referendum shall occur

within 1 year after the validation of the petitions. The referendum shall be held at the first primary

or general election held in that county not less than 60 days after the validation of the petition, or in

compliance with the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992.

MCL 42.34. (emphasis added). There is no such language referring to certification to the county clerk, nor an “or”

reference to the Election Law in the Home Rule City Act’s section relating to ballot questions.

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Exhibit F is the final version of HB 5704, as passed by the Legislature, which became Public Act

647 of 2006. Paragraph 2 had an entire sentence removed which allowed for a shorter 60 day

certification date that only applied to elections where there was no state or federal offices to be

voted on the ballot. The remaining language in the statute, as it stands today, mandates the 70 day

certification requirement for all ballot questions, without exception. Any other reading would

make the Legislature’s repeal of the removed sentence meaningless. The Legislative Analysis that

accompanied the bill is attached as Exhibit G, for the Court’s reference. The Legislative Analysis

states, in part:

Lacking a standardized rule for certifying local, school district, and county ballot

questions, local clerks report they are unable to reliably estimate the likely voter

turnout in time to consolidate the number of precinct locations within their

jurisdictions. As a result, extra costs to staff underutilized precincts are sometimes

born by the taxpayers.

The analysis goes on to state:

Currently the law specifies that if a local, school district, or county ballot question

is to be voted on at a regular election date or a special election, the wording of the

ballot question must be certified to the local or county clerk at least 70 days before

the election. House Bill 5704 would retain this provision. However, current law

also says that if a local, school district, or county ballot question is to be voted on

at a regular or special election at which no state or federal offices are to be voted

for, then the wording of the ballot question needs to be certified to the local or

county clerk responsible for printing the ballots at least 60 days before the

election date. House Bill 5704 would eliminate this second provision, leaving

only the 70-day deadline provision. (emphasis added)

The intent of the Legislature then becomes crystal clear. The provision for certification to the local

clerk responsible for printing the ballots was removed, leaving the mandatory certification to the

county clerk. The Defendants’ position that the Election Law contradicts itself is laid bare. The

analysis even states that “[l]ocal clerks have requested this change in the Election Law. . . .”

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In summary, MCL 168.646a has been amended twice since 2006 and both amendments

make clear that the 70 day deadline for certification to the county clerk matters, regardless of who

is printing the ballots.

B. Section 646a is consistent with the rest of the Election Law

Strangely, Defendants claim that MCL 168.646a(2) does not apply to them because MCL

168.690 sets a deadline for the delivery of ballots at least 10 days before the election. This section

does not at all conflict with 168.646a(2) because there is no mention of certification. In fact,

according to Defendants’ logic, the City Commission could pass a ballot issue 11 days before the

election and still comply with Section 690 of the Election Law. This result is absurd and runs

contrary to the plain language of the statute.

Defendants also claim that MCL 168.646a(2) does not apply because of the language in

Section 689 of the Election Law. This a section that applies to the preparation, printing, and

delivery of official ballots. MCL 168.689 states as follows:

The board of election commissioners of each county shall prepare the official

ballots for use at any state, district or county election held therein, and shall have

printed a sufficient number of ballots containing the names of all candidates

properly certified to said board of election commissioners, and ballots for all

proposed constitutional amendments or other questions to be submitted at such

election . . . . (emphasis added)

Additionally, Section 719 of the Election Law places the city’s board of election

commissioners in the shoes of the county board of election commissioners named in MCL 168.689

only as it relates to the preparation, printing, and delivery of ballots.

The Court of Appeals in Southeastern Michigan Fair Budget Coalition v Killeen

interpreted MCL 168.689 by ruling that “[w]hile the language of the statute is not entirely clear,

we see no reason for the Legislature to distinguish between candidates who are to be ‘properly

certified’ and constitutional amendments, and other questions which have to be so certified. We

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therefore construe the statute [MCL 168.689] to require that candidates, constitutional

amendments, and questions for use at any state, district or county election to be ‘properly’ certified

before they are entitled to placement on the ballot. Since this statute is directed to the board of

election commissioners, the use of the word ‘properly’ evidences an intent of the Legislature that

the board of county election commissioners not only determine that a proposed question is

certified, but that it indeed is ‘properly’ certified.” (italic emphasis in original, bold emphasis

added) Id. at 377-378.

The wording of the statute, combined with the Court of Appeals’ ruling in Southeastern,

join to conclude that the ballot language isn’t simply certified to the board of election

commissioners, but require that the board of election commissioners confirm that it is properly

certified. This must mean that something more than simple certification alone is required. Indeed,

it must be read in concert with the rest of the Election Law and is consistent with the requirement

in MCL 168.646a(2) that the ballot wording be certified to the county clerk at least 70 days before

the election. Michigan’s Supreme Court has ruled that courts cannot assume the Legislature

inadvertently omitted language that it employed in other parts of the statute. Farrington v Total

Petroleum, 442 Mich 201, 210; 501 NW2d 76, 80 (1993).

The term ‘properly’ as a modifier to ‘certified’ occurs in only four other provisions in the

Election Law, and all four are in the context of properly certifying the results of an election.5 All

other certifications of candidates and ballot issues are listed as simply being certified.

Defendants did not certify the Streets Tax ballot wording to the county clerk at least 70

days before the election. Defendants did, however, certify the Sidewalk Issue language to the

5 See MCL 168.202, MCL 168.233, MCL 168.826, and MCL 168.841.

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county clerk at least 70 days before the election.6 Defendants attempted to argue, according to

media reports7, that an email8 regarding the Streets Tax from the city attorney to the county clerk’s

office before the city commission voted on the language is akin to certification. Defendants no

longer make this argument and seem to recognize that their conduct does not meet the certification

requirement. They instead argue that they are not subject to that requirement. But up until recently,

Defendants recognized that they were required to certify ballot question wording to the county

clerk.

According to an Email from City Attorney Catherine Mish to City Clerk Darlene O’Neal

on February 27, Mish said to O’Neal that “I believe you can now certify the ballot language to

the County Clerk, if you haven’t already done so.” (Exhibit C). This email is in reference to the

Sidewalk Issue and not the Streets Tax issue. Defendants, in their reply brief, claim that the County

Director of Elections, Sue DeSteiguer, gave them the go ahead for the election without her

approval by stating (apparently not in writing) that “the entire ballot is yours to approve.” The

context of this comment is not provided. The context implied by Defendants’ brief is contradicted

by the Grand Rapids City Attorney’s own written words. The idea that Defendants are not required

to certify ballot questions only arose as an excuse to justify blowing a deadline.

When Defendants realized that they had not properly certified the ballot wording to the

county clerk by the deadline, they then changed their method of operation to have the city board

of election commissioners print the ballots, something the city admittedly has never done, or at

least not done in recent memory. In previous elections, ballot issues were certified to the county

6 See Exhibit H, a copy of the certification received by the county clerk’s office for the Sidewalk Issue. No such

certification was produced for the Streets Tax issue pursuant to a subpoena to the county clerk’s office because no

such documents exists. 7 See Verified Complaint, Ex. A. 8 See Exhibit I.

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clerk before the appropriate deadline. Apparently the Defendants, after realizing their error in early

March, decided to finally comply with MCL 168.689 with the hope that it would exempt them

from the certification to the county clerk requirement, unequivocally contained in MCL 168.646a.

Since Defendants have made no showing that they properly certified the question to the

county clerk, indeed they are arguing that they don’t even have to, they have not properly certified

the question to the City Board of Election Commissioners, as is required by Section 689 of the

Election Law.

C. The ballot question framework is straight forward and clear

To summarize the process, the statutory framework for a city commission to place an issue

on the ballot is as follows:

A. Pass the proposed ballot language by the city commission at least 60 days before

the election (Home Rule City Act, MCL 117.21(1), (5));

B. Designate the ballot question in not more than 100 words (Home Rule City Act,

MCL 117.21(2));

C. Ensure ballot language is impartial (Home Rule City Act, MCL 117.21(2));

D. Submit charter amendment question to attorney general for approval as to

compliance with the 100 word and impartial language requirement (Home Rule

City Act, MCL 117.21(2), (5));

E. Submit charter amendment question to governor for approval (Home Rule City Act,

MCL 117.22);

F. Certify ballot language to the county clerk at least 70 days before the election

(Election Law, MCL 168.646a(2));

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G. Properly certify proposition to the city board of election commissioners (Election

Law, MCL 168.689); and

H. The board of city election commissioners prints ballots (Election Law, MCL

168.689).

D. The framework of the Election Law revolves around the county clerk and

deadlines, and the courts strictly enforce deadlines.

The framework of the Election Law has two threads running through it: the county clerk

and deadlines.9 For instance, the term “county clerk” appears 367 times in the statute. It’s clear

that no election is held in a county without the county clerk’s involvement. The clerk serves an

important role by ensuring that someone supervises all elections in the county. The county clerk

even posts a list of election deadlines on her web site, including one for “ballot issues” to be held

in May.10 This web site calendar aligns with the one published by the State Election Commissioner,

published to local and county clerks.11 In spite of this critical role, the Defendants hope that this

court would conclude that they could hold an election without so much letting the county clerk

know.

The second thread running through the election law is that of deadlines.

The importance of deadlines in elections is well highlighted in the recent Court of Appeals

case Barrow v City of Detroit Election Commission, 301 Mich App 404; 836 NW2d 498 (2013),

which is attached to this brief as Exhibit J. In Barrow, the current mayor of Detroit, Michael

9 Following the Defendants’ logic, the City of Grand Rapids could pass a resolution to place an issue on the ballot

after the 70 day Election Law deadline for certification to the county clerk and still have the item appear on the ballot.

This runs utterly contrary to an Election Law riddled with deadlines and requirements for certification to the county

clerk. Indeed, Defendants will have this court believe that they do not need to notify the county clerk at all of an

impending election, despite the county clerk being involved in every single other election authorized in the Election

Law. 10 See Exhibit B. 11 See Exhibit A.

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Duggan, was removed from the August primary ballot because he did not comply with either the

residency requirement or filing deadlines under both the Detroit city charter and the Election Law.

The City of Detroit imposes a one year residency requirement before one may be a candidate for

a city office. This deadline applies as being one year of residency before filing of nomination

petitions of the candidate.

Barrow outlines three very important dates that are similarly critical to this case: April 2,

2013, April 12, 2013, and May 14, 2013. April 2 is the date on which Mr. Duggan filed his

nominating petitions. April 12 is the date on which his one year residency requirement would have

been met. May 2 was the deadline by which the nominating petitions had to be filed. Both the

Circuit Court and the Court of Appeals agreed that Mr. Duggan did not meet the residency

requirement on the date that he filed his petitions. But Mr. Duggan could have filed his petitions

just two weeks after he did and he would have still met the filing deadline of May 2 and qualified

for the ballot. The courts in that case did not decide that the technical deadline was unimportant –

the letter of the law was enforced as written through a mandamus action directed at the city. Mr.

Duggan could have complied with the law, but he did not. The statute, Detroit City Charter, and

case law are clear: deadlines matter and they are to be enforced by the courts.

The failure to comply with the legal deadlines means that the law was enforced, but

political options remained—Mr. Duggan later was able to be elected by engaging in a successful

and historic write-in campaign to become the mayor of Detroit. The same situation is presented

here. The City failed to comply with an election-law deadline. Its proposed Streets Tax, as a matter

of law, cannot be placed on the ballot. But Just like Mr. Duggan, the City is not without options.

It can follow the proper procedures and place the Streets Tax on the ballot for the next election, a

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mere three months after the May 6 election. The proposed Streets Tax issue, by its own language,

doesn’t even take effect until July 1, 2015.

E. Barrow further vitiates the Defendants’ “deference” argument

In Barrow, supra, the Detroit Board of Election Commissioners made the decision that

Duggan had complied with the City’s residency requirement, despite the plain language of the City

Charter. Despite the Defendant in that case also making the argument that it should defer to the

Board of Election Commissioners’ decision, the court no more deferred to the Board’s decision

than any court should. Id. at 409-410. When the text of the statute is clear, the court is in no way

bound to defer to an administrative body that simply engages in a ministerial duty, as boards of

elections commissioners do.

While Defendants elude to the argument, there is no room for “substantial compliance”

with the election statute either. Also from Barrow:

The “substantial compliance” doctrine as enunciated in Meridian Charter Twp v

East Lansing, 101 Mich App 805, 810, 300 NW2d 703 (1980), does not affect our

analysis of the charter provision. Under the substantial compliance doctrine, "`[a]s

a general principle, all doubts as to technical deficiencies or failure to comply with

the exact letter of procedural requirements are resolved in favor of permitting the

people to vote and express their will on any proposal subject to election.'"

Bloomfield Charter Twp v Oakland Co. Clerk, 253 Mich App 1, 21, 654 NW2d 610

(2002), quoting Meridian Twp, 101 Mich App at 810, 300 NW2d 703. However, in

Stand Up For Democracy v Secretary of State, 492 Mich 588, 594, 822 NW2d 159

(2012), our Supreme Court overruled Bloomfield Charter Twp. In Stand Up, the

Court reviewed the certification of petitions under a statute that used the mandatory

term "shall." The Court decided that, where the statute did not, by its plain

terms, permit the certification of deficient petitions, the doctrine of substantial

compliance did not apply. Here, the charter provision's use of the term "must,"

like the term "shall," denotes that the conditions following it are mandatory. See In

re Kostin Estate, 278 Mich App 47, 57, 748 NW2d 583 (2008).

Id. at 415-416. (emphasis added).

So not only does the substantial compliance test not apply, the Defendants’ use of Meridian

Twp as their only example of Section 646a of the Election Law being “in conflict” with the rest of

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the Election Law is inapposite to the Supreme Court’s overruling of Bloomfield Twp, which the

court relied upon in Meridian.

F. The county clerk is not a necessary party for a writ of mandamus to issue

Finally, the county clerk is not a necessary party because the Defendants aren’t even

arguing that they did in fact certify the language to the county clerk. The documentary evidence

obtained from the county clerk shows that no such certification occurred. It is the Board of City

Election Commissioners that prints ballots and holds the election. The county clerk would be

involved in the certification of the election, but if the election is prevented from being on the ballot,

the county clerk has no additional role to play. Again referring to Barrow, the County Clerk was

not a party in that case either, despite it being a countywide August primary election. The City

Board of Election Commissioners was the only necessary party.

CONCLUSION

In this case, the Defendants failed to certify the ballot wording as required by the Election

Law. They were required to do so by February 25. The deadline was not met. The statute is clear

and not in conflict. The wording of the statute is unambiguous. The Streets Tax ballot question

must not appear on the ballot because the Defendants did not comply with the law.

Dated: March 18, 2014

__________________________

Jeff Steinport (P76401)

Steinport Law PLC

Attorney for Plaintiffs

538 Bond Ave NW Ste 812

Grand Rapids, MI 49503

(616) 730-1401