If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

CLIO YES 2024,

Plaintiff

- Appell ant

, UNPUBLISHED September 6, 2024

v No. 372312

Genesee Circuit Court KELLY SPROUL, in her capacity as

the City Clerk for the City of Clio

, and

THE CITY COMMISSION OF THE CITY OF CLIO, LC No. 24

- 121378

- CZ

Defendant s

- Appellees.

Before: Y ATES

, P .J., and M URRAY and F EENEY , JJ.

P ER C URIAM

.

Plaintiff Clio Yes 2024 appeal s by right the August 29, 2024 circuit court order denying its motion to show cause why a writ of mandamus sh ould not issue and dismiss ing its complaint for declaratory relief to compel defendants to place its initiative amendment on the November

2024 ballot. We granted plaintiff’s mot ion to expedite, 1 and now affirm , albeit for reasons other than those provided by the trial court

.

Plaintiff is a ballot question committee promoting a proposed initiative petition for the November 2024 ballot that would amend the City of Clio’s Charter to end the city’s prohibition of recreational marijuana establishments, allow for no more than two such establishments to operate within the City, and set forth various requirements, including but not limited to, application scoring procedures , timelines, provisional licensing , and renewal fees. This appeal arises out of the refusal of defendant Kelly Sproul, the City Clerk for the City of Clio, to certify plaintiff’s ballot initiati ve because plaintiff failed to obtain sufficient signatures for its initiative petition and did not properly identify the City of Clio electors on the face of the petition.

1 Clio Yes 2024 v Sproul, unpublished order of the Court of Appeals

, entered September 3, 2024 (Dock et No. 372312 ).- 2

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This Court reviews de novo questions of law in declaratory actions, and the court’s denial
or grant of declaratory relief is subject to an abuse of discretion standard of review. Reed

- Pratt v Detroit City Clerk , 339 Mich App 510, 516; 984 NW2d 794 (2021). This Court also applies the

abuse of discretion standard to review a trial court’ s decision regarding a writ of mandamus. Citizens Protecting Michigan’s Constitution v Sec retary of State , 503 Mich 42, 59; 921 NW2d 247 (2018). However, whether a plaintiff has a clear legal right, and a defendant has a clear legal duty to perform, are questions of law subject to de novo review. Berry v Garrett , 316 Mich App 37, 41; 890 NW2d 882 (2016) (citation omitted). The interpretation of a municipal charter presents a question of law that this Court likewise reviews de novo. Warren City Council v Fouts , 345 Mich App 105, 116; 4 NW3d 79 (2022).

Mandamus is the proper remedy for a party seeking to compel election officials to carry out their duties. See, e.g., Wolverine Golf Club v Sec retary of State , 24 Mich App 711, 716; 180 NW2d 820 (1970), aff’d 384 Mich 461 (1971). Mandamus is an extraordinary remedy

, O’Connell v Dir of Elections

, 316 Mich App 91, 100; 891 NW2d 240 (2016) , and w hether a writ issues is

within the discretion of the court. Moore v Genesee C o , 337 Mich App 723, 731; 976 NW2d 921 (2021). Specifically, to obtain relief the plaintiff has the burden to show:

(1) a clear legal right to the act sought to be compelled; (2) a clear legal duty by the defendant to perform the act; (3) that the act is ministerial, leaving nothing to t he judgment or discretion of the defendant; and (4) that no other adequate remedy exists. [ Twp of Casco v Secretary of State , 472 Mich 566, 621; 701 NW2d 102 (2005) ( Y OUNG , J

. , concurring in part ) (citations omitted) .]

To meet the first element, a clear legal right, plaintiff must show that it met the threshold number of signatures for an initiative petition to amend the Clio City Charter. In making this argument to the trial court and this Court, plaintiff exclusively argues that Section 5.10 of the

Cha rter does not govern the number of signatures required for petitions , and instead the proper number of signatures is provided in the Home Rule Cities Act (HRCA) , MCL 117. 1 et seq . The

difference between the two is the Charter provision requires signatures of at least 15% of the registered electors of the city , while the HRCA requires only 5% of the number who voted in the prior gubernatorial election in the city

. MCL 117.25(1). The trial court ruled that the Charter provision applied, as the issue of whether the city should have marijuana dispensaries was a local

matter. See Utica State Savings Bank v Oak Park , 279 Mich 568, 579; 273 NW 271 (1937) ( when a city charter provision conflicts with a state statute, the statute controls in ma tters that are not of “purely local character.” )

.

Were we to rule on the issue as presented by pla intiff, we would agree with the trial court

that t he petition , which concerns the establishment and location of marijuana retailers in the City

of Clio , is a local matter and subject to the Charter requirements . The question here is not whether

those proposed establishments would conform to the state law governing these establishments , the Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL 333.2 7951 et seq

. , as argued by plaintiff. Rather, the question raised by the petition is whether Clio’s City Charter should be amended to allow for marijuana retailers with in the city borders at all . Th e question of whether a city will allow the operation of marijuana retailers within the city does not impact any entity other than the city, does not impact anyone outside the city borders, and is a matter of purely

local concern

. This is evidence d by th e fact that the MRTMA provides cities with the authority to- 3

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decide whether to establish or prohibit marijuana retailers within their city limits. See MCL 333.27956(1) ( provid ing in part that “[e]xcept as provided in [MCL 333.27954], a municipality may completely prohibit or limit the number of mar ihuana establishments within its boundaries.” ). And, of course, Clio had already exercised that authority by enact ing the ordinance precluding

such establishments.

But we need not make a definitive ruling on that issue, for neither party has raised the fa ct
that the MRTMA contains a 5% signature requirement for petitions to initiate an ordinance like

the amendment petition at issue here. See MCL 333.27956(1). This is, of course, the same statutory subsection that contains the provision allowing cities to determine whether to have marijuana establishments , and how to do so through an initiative petition. Id . It would seem plain that this provision controls, and supports plaintiff ’ s position that the petitions had a sufficient threshold of signatures (pri or to any review).

However, even if that legal conclusion is correct, plaintiff was still not entitled to a writ of mandamus. For, after we granted plaintiff’ s motion for an expedited appeal, this Court issued City of Farmington v Farmington Survey Comm

,

___ Mich App _

__ ;

___ NW3d _

__ (2024) ( Docket

No. 372022 )

, which held that under the MRTMA “individuals may petition for an ordinance to completely prohibit or set the number of marijuana establishments. This is the only voter

- initiated power given to individuals with regard to the local regulation of marijuana, and a petition that exceeds this authority should not be placed on the ballot.” City of Farmington

, ___ Mich App at

___; slip op at 9 (emphasis in original). Se e also id

. at ___; slip op at 10 (“individuals of the

electorate are afforded one nar r ow power of initiative: to seek an ordinance prohibiting or setting the number of marijuana retail establishments.”). In City of Farmington

, the petition s sought to

amen d the four cities’ charters to allow and regulate two marijuana establishments. Id

. at ___; slip

op at 2 . Some of the regulations in the proposed amendments covered the same matters in plaintiff’ s proposed amendment here , i.e., establishing an applicatio n process, selection criteria, licenses and fees, while still giving the city councils some power to regulate the establishments.

Id

. This Court, like the trial court, held that because the proposed amendment s contained regulations beyond simply declarin g whether, and if so how many, establishments would be permitted in the cities, they exceeded what was permitted under the MRTMA. A s here, the petition s in City of Farmington were attempted amendment s to the existing charters , rather than a proposed initi al ordinance, and the petition s were held improper because of their attempt to provide regulations that were, as a matter of statute, relegated to the discretion of city council s

. Id

. at ___; slip op at 9

- 10. Because the proposed amendments exceeded what was permissible under the MRTMA, they could not be placed on the ballot s

. Id

.

Likewise, plaintiff’s proposed amendment exceeds what the MRTMA allows ; thus

, it is not eligible to be placed on the ballot. 2 As noted earlier, the proposed amend ments to the existing

Charter contain regulations for the approval of marijuana establishments, well beyond simply indicating that such establishments are approved to do business in the city, and how many. This

2 In light of that conclusion, we need not address the issue of whether the petition properly identified the City of Clio electors on its face.- 4

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case falls squarely within the holding of Ci ty of Farmington

. For this reason, the circuit court did not abuse its discretion in determining that a writ of mandamus should not enter.

Affirmed.

/s/ Christopher P. Yates /s/ Christopher M. Murray /s/ Kathleen A. Feeney