FILED AUGUST 3, 2012

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

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-DefendantAppellant.

BEFORE THE ENTIRE BENCH

M ARY B ETH K ELLY , J.

This case requires that we determine whet her to grant a writ of mandamus in favor of plaintiff, Stand Up For Democracy, to comp el the Board of State Canvassers to certify plaintiff’s referendum petition for inclusion on the November 2012 ballot. Intervening Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra2 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 certific ation, did not apply. The Court of Appeals agreed with both assertions, but conclude d it was required to follow its decision in Bloomfield Charter Township v Oakland County Clerk 1 and conclude that the petition substantially complied with the type-size requirement of MCL 168.482(2) and that certification was required. Consequently, th e 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 cer tification 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 pe titions submitted for certificati on. Therefore, we reverse the Court of Appeals’ judgment in this regard and we overrule Bloomfield Charter Twp

. Three justices of this Court further conc lude that the type-size requirement of MCL 168.482(2) requir es that the “type,” not the “l etters,” of the petition heading measure 14 points. Because the Court of Appeals held that plaintiff failed to actually comply with the type-size requi rement of MCL 168. 482(2) given that the letters did not

1 Bloomfield Charter Tw p 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 c onvene a conflict panel, MCR 7.215(J)(2) and (3), but a majority of the Court declined to co nvene the panel in an order entered June 14, 2012. Stand Up For Democracy v Secretary of State , ___ Mich App ___ (2012).3 measure 14 points, we would also have revers ed 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 direct s the Board of State Canvassers to certify plaintiff’s petition for the ballot. Pursuant to MCR 7.317(C)(3), we direct the Cl erk of the Court to issue the judgment order forthwith.

I. FACTS AND PROCEDURAL HISTORY On February 29, 2012, plaintiff f iled 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 certificati on of the petition from the Board of State Canvassers. 3 The petition contained 20 3,238 valid signatures, we ll exceeding the number

3 The people’s power of refere ndum is a constitutional right. Const 1963, art 2, § 9 provides, in relevant part: The people reserve to th emselves the power to propose laws and to enact and reject laws, called the initia tive, and the powe r to approve or reject laws enacted by the legislatur e, called the referendum. . . . The power of referendum does not extend to acts making appropriations for state institutions or to meet deficienci es 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 percen t for referendum of the total vote cast for all candidates for governor at th e 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.4 necessary to certify the petition and to pl ace the referendum on the November 2012 ballot. On March 14, 2012, plaintiff submitte d its printer’s affidavit attesting that the petition heading was “PRINT ED 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 th e heading, “REFEREN DUM OF LEGISLATION PROPOSED BY INITIATIVE PETITION,” di d 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, interv enor asserted that the form and content requirements of MCL 168.482(2) are mandat ory. Intervenor submitted two a ffidavits of two printers who reviewed the petition and stated that the petiti on was deficient because its heading did not measure 14-point type. Plaintiff countered th at the board should apply the doctrine of substantial compliance and approve the petiti on 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 o fficial declaration of the sufficiency of a referendum petition and certifies the petition, th e law subject to the referendum is no longer effective. See MCL 1 68.477(2) (“[A] law that is the subject of the referendum continues to be effective until the referendum is properly invoked, wh ich occurs when the board of state canvassers makes its official declaration of the sufficiency of the referendum petition.”).5 argument. Plaintiff also critic ized one of intervenor’s expe rt’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 th e size of the words” and reasoning that substantial compliance is insufficient under MCL 168.482(2) given its mandatory language. Conseque ntly, the board did not approv e the motion to certify the petition. Plaintiff then filed a complaint for manda mus 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 N ovember 2012 ballot be cause the board had a clear legal duty to certify the petition, because plaintiff either substantially or actually complied with the 14-point-type statutory requi rement. 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 measur e 14 point, or 14/72 inches, is insufficient under the statute.” 5 The Court of Appeals, howeve r, concluded that it was bound to follow Bloomfield Charter Twp and concluded that plainti ff’s petition had substantially

4 Stand Up For Democracy , ___ Mich App at ___; slip op at 12.

5 Id . at ___; slip op at 12.6 complied with MCL 168.482(2). 6 The Court therefore grante d plaintiff’s complaint for a writ of mandamus, compelling inclusion of the referendum on the ballot. We granted oral argument on the applicatio n 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 w ith the 14-point type requirement in § 482(2) is su fficient 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 substa ntial compliance is insufficient to certify plaintiff’s petitions, and we issue a writ of mandamus, directing the Board of State Canvassers to certify plainti ff’s petition as sufficient.

II. STANDARD OF REVIEW We review for an abuse of discretion a co urt’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 st atute, is to discern and give effect to the intent of the Legislature.” 10 The words of the statute are the most re liable 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).7 of the Legislature’s intent and we must give each word its plain and ordinary meaning. 11 “In interpreting the statute at issue, we c onsider both the plain m eaning 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 i ssue, even though its focus is something as small as 14/72 of an inch. This matter turns on what many citiz ens may regard as a trivial issue: Whether a heading on a petitio n signed by over 200,000 people satisfies the statutory requirement that the petition head ing be in “14-poin t 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 citizen s, elect our representatives to local and state legislative bodies to enact ou r laws. This republican form of government is guaranteed to us in the United States Constitution. 14 In Michigan, we have enac ted into our State Constituti on 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 US 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 Co nstitution states: “The United States shall guarantee to every State in this Union a Re publican Form of Government . . . .”8 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 demo nstrates that tensi on between constitutional interests: the right to a repub lican form of government vers us a constitutional process that allows a small minority to suspend the enactments of that government. In the very constitutional provision crea ting this right of petition by initiative and referendum, the Legislature is required to pr escribe the rules by which such petitions may validly be made. 16 It has done so, and one such provision is the mandatory 14-pointboldfaced-type requirement th at 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 po wer of referendum affects duly enacted laws, these so-called “trivial” requirements protect the citizens of Michig an 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 . . . mu st 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 NW 65 (1916).

19 MCL 168.482(2).9 A. SUBSTANTIAL COMPLIANCE Plaintiff first suggests that the statutor y scheme allows for certification of a referendum petition if that petition substa ntially complies with MCL 168.482. 20 The applicable statutory provision , MCL 168.482(2) provides: If the measure to be submitted pro poses a constitutional amendment, initiation of legislation, or referendum of legislati on, the heading of each part of the petition shall be prepared in the followi ng 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 pr ovision indicate that compliance with the 14-point-type requirement may be achiev ed despite deficiencies. Indeed, other

20 The partial dissent of Justices C AVANAGH , M ARILYN K ELLY , and H ATHAWAY claims that it is “unnecessary,” post at 3, to rule on the issue of substantial compliance. However, the Court of Appeals treated this ca se as one involving substantial compliance and analyzed the doctrine in detail. Indeed, the basis fo r 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 regard ing substantial compliance before analyzing the Court of Appeals’ ruling. Thus, the justices concludi ng that substantial co mpliance is insufficient are not reaching an “unnecessary ” issue, but are instead corr ecting 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).10 provisions of the Michigan Election Law, MCL 168.1 et seq ., demonstrate that the Legislature knows how to construct langua ge specifically permitting substantial compliance with regard to fo rm 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 constituti onal 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 th e mandatory term “shall” in MCL 168.482(2), in the absence of a ny language indicating that substantial compliance with the statute’s requirements suffi ces, 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 petiti on 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 provid ed in section 590h”) ; MCL 168.590h(2) (“the qualifying petition form sh all be substantially as set forth in section 544c”); MCL 168.653a(1) (“notice [of a special election] sh all 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 severa l offices to be voted for shall be placed on the ballot substantially in the following order”); MCL 1 68.759(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 prin ted statement in substa ntially the following form”); MCL 168.952a (“A person may print his or her own reca ll petitions if those petitions comply substantially wi th the form prescrib ed by the secretary of state and the requirements of section 544c(2).”).

24 Compare MCL 168.482, as amended by 19 54 PA 116 (which included the phrase “type of the approximate size set forth”), with MCL 168.482, as ame nded by 1965 PA 312 (which omitted that phrase).11 compliance with MCL 168.482(2) is not perm itted. To certify a petition that does not strictly comply with the requirements of MC L 168.482 on the basis that it substantially complied with the statutory requirements wo uld defeat the Legislature’s intent. However, “our judicial role precludes [us from] imposing different policy choices than those selected by the Legislature”; rath er, we must apply the terms as written. 25 Plaintiff, however, also relies on MCL 168.544d, which provi des that petitions circulated countywide “shall be substantially as provided in [MCL 168.482] . . ..” Plaintiff asserts that this provision adopts the substantial complianc e doctrine and permits certification of nonconforming referendum petitions. Becaus e plaintiff circulated its petition countywide, MCL 168. 544d is applicable. Th at 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 co untywide form. Petitions circulated countywide shall be on a form pr escribed by the secretary of state, which form shall be substantially as provided in sections 482 , 544a, or 544c, whichever is applic able. 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 cer tificate of the circ ulator may be on the reverse side of the petition. This section does not prohibit the circulation of petitions on another form prescrib ed by this act. By its plain language, th is 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 s ubstantial compliance, it only permits the Secretary of State to prescribe petition requir ements that are in substantial compliance

25 People v McIntire , 461 Mich 147, 152; 599 NW2d 102 (1999) (quo tation marks and citation omitted).12 with MCL 168.482, MCL 168. 544a, or MCL 168.544c of the Michigan Election Law. Contrary to plaintiff’s contention, the st atute does not allow a petitioner itself to determine what substantially complies with the applicable election law requirements. The Legislature only provided the Secret ary of State with that discretion. More significantly, the Secretary of Stat e’s prescribed form, as permitted by MCL 168.544d, mandates strict comp liance with the Legislature’ s mandate in MCL 168.482(2) that the heading of a referendum pe tition be printed in 14-point type. 26 Accordingly, MCL 168.544d does not constitute a broad subs tantial compliance provision, as plaintiff would have us interpret it. Because the Se cretary of State’s prescribed form mandates strict compliance with MCL 168.482(2), plaintiff’s re liance on MCL 168.544d is unavailing. In the absence of statutory language supporting the substantial compliance doctrine, plaintiff nevertheless posits th at Michigan caselaw provides a general substantial compliance excepti on 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 substantia l compliance doctrine before an election, we

26 See Memorandum from the Secretary of St ate, Initiative and Referendum Petitions – Prescribed Format (Revised June 2011). The Secretary of State’s prescribed format requires that a referendum pe tition’s heading “shall be prin ted in capital letters in 14- point boldface type on th e 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 typesize requirement of MCL 168.482(2).13 are unwilling to follow this line of case s 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 f iled annexation petitions with the county clerk, who certified the petiti ons and scheduled a referendum election regarding annexation. The township sought to enjoin the election and also alleged, in part, that the annexation petiti ons failed to comply with MCL 168.488, which requires that annexation petitions meet the requirements of MCL 168.48 2(1) and (4) through (6). The circuit court denied the township’s reque st for injunctive relief and concluded that certification of the petitions was proper becau se “‘any technical deficiencies in the petitions are not material . . . .’” 29 Approximately a year late r, after voters had approved the annexation, the Court of Appeals affirm ed the circuit court’ s ruling. The Court

27 Notably, our caselaw has consistently re cognized the availability of substantial compliance if a petition is challeng ed 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-electi on and post-election petition cha llenge cases. For example, in Settles v Detroit City Clerk , 169 Mich App 797; 427 NW2d 188 (1988), a pre-election challenge to an initiative pe tition in a home rule city, the Court cited post-election caselaw to hold that “all doubts as to technical deficiencies or failur e to comply with the exact letter of procedur al requirements in petitions . . . ar e 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-el ection challenges for the same proposition, citing both Meridian Charter Twp and Settles

. 28 Bloomfield Charter Twp , 253 Mich App 1.

29 Id . at 18.14 acknowledged that the annexation petitions were technically deficient under the statute, and reasoned that it would appl y “the doctrine [of substantia l compliance] in this case involving imperfect petitions, absent the Legi slature’s instruction that a petitioned-for election will be precluded unless the initiati ng 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 prop erly 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 th at it stands for the proposition that substantial compliance with mandato ry petition requirements compels the preelection certification of a technica lly deficient petition. Clearly, Bloomfield Charter Twp ’s reasoning is contrary to the plain la nguage of MCL 168.48 2(2), which we have explained contains a manda tory 14-point-type require ment. A nonconforming referendum petition cannot be certified for incl usion on the ballot because that result is contrary to the Legislature’s intent that pe titions strictly conform to the requirements of MCL 168.482. Simply because the Legislat ure has not included an explicit instruction that “a technically imperfect petition necessa rily precludes an election regarding the matter therein addressed,” does not mean th at the Legislature intended inclusion of deficient petitions as Bloomfield Charter Twp reasoned. 32 Bloomfield Charter Twp inferred too much from the legislative sile nce and effectively ignored the mandatory

30 Id . at 23.

31 Id . at 25.

32 Id. at 22.15 language that the Legislature chose to use when stating th e form and content requirements of MCL 168.482. Moreover, while this Court has recogn ized application of the substantial compliance doctrine to mand atory petition requirements post -election, 33 it has not recently sanctioned applicatio n of substantial complianc e to nonconforming petitions before an election. The on ly Michigan Supreme Court ca se 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 comp elling the defendant to certify his nonconforming no minating petitions. Fifty-eight of th e plaintiff’s fifty-nine petitions were not 81⁄2 by 13 inches as required by fo rmer MCL 168.544, but were 21⁄2 to 3 inches shorter than 13 inches because they were miss ing the circulator’s affidavit. This Court unanimously found that former MCL 168.544 had “been complied with by plaintiff according to the rule of ‘substa ntial compliance’” and that the plaintiff was entitled to the writ of mandamus. 35

33 It has long been held that post-electi on challenges substantially relax technical requirements on the grounds that any techni cal 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, 716-7 18; 26 NW2d 569 (1947) (noting that courts should view technical e rrors differently once the electors have voted affirmatively).

34 Kadans v Wayne Co Clerk , 363 Mich 306; 109 NW2d 788 (1961).

35 Id . at 308.16 Kadans ’s broad application of the substan tial compliance standard, however, was repudiated by the Legislature’s subs equent adoption of MCL 168.544d. 36 Before adoption of that provision, the law was silent with respect to agen cy-created or agencyprescribed petitions. The adoption of MC L 168.544d now provid es clear guidance concerning when substantial compliance is a llowed with regard to agency-created or agency-prescribed petitions and essentially dele gates to the Secretary of State the ability (through its prescribed petitions) to determin e what requirements mu st be fully complied with and what requirements need be only subs tantially complied with . Consequently, the only case from this Court applying a gene ral substantial compliance exception to mandatory petition requirements of the Mich igan Election Law has been superseded by

statute. In sum, neither the statutory scheme nor the caselaw plaintiff relies on supports application of the substantia l compliance doctrine in the pe riod before an election. Rather, for substantial complianc e to be sufficient before an election, its use must be rooted in a particular statutory excepti on to the statutory formatting and content requirements. Because no statutory provis ion permitting applica tion of substantial compliance exists in th e instant case, and because interv enor has raised a pre-election challenge, plaintiff must have actually complied with the requirements of MCL 168.482(2) in order for its re ferendum petition to be certified. 37

36 1975 PA 327.

37 The partial dissent of Justices C AVANAGH , M ARILYN K ELLY , and H ATHAWAY 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 to17 B. ACTUAL COMPLIANCE 1. TYPE-SIZE REQUIREMENT OF MCL 168.482(2) To determine whether plaintiff has actu ally complied with MCL 168.482(2), we must first determine the meani ng of the phrase “printed in capital letters in 14-point boldfaced type[.]” The Michig an Election Law does not de fine the terms “point” and “type,” but the parties agree th at the traditional definitions of “point” and “type” have not substantially changed since th e enactment of the statute in 1954. We ag ree with the traditional definitions proposed because they are consistent with those terms’ acquired technical meanings 38 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 1 68.482(2), or the petition mu st substantially comply pursuant to a specific statutory exception or through a form pr escribed by the Secretary of State. Neither of the latter two ci rcumstances exists in this case.

38 MCL 8.3a.

39 Webster’s Third New Interna tional 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 Stat es 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 c onsists of a given number of these points; as, the body of this book is printed in 6- point . The value of the poin t is .013837 inch, or nearly 1/72 inch. For speci mens of sizes, see TYPE.”).18 usually of metal or wood, having its face so shaped as to produce, in printing, a letter, figure, or other character[.]” 40 Multiple dictionary depicti ons of type show that the character, or typeface, does not cover the entir e surface of the type, but rather includes spacing above or below the letters, to prev ent the printed characters from touching. 41 These depictions further demonstrate that th e point size of type measures the entire vertical face of the metal block. The significan ce of these definitions is that the character printed is smaller than th e 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 define d as “Such blocks, or the letters or characters impressed, collectively.” Id . Notably, Justice M ARKMAN prefers this definition, but he doe s not faithfully adhere to it be cause he omits the definition’s reference to “blocks.” Furt her, despite the parties’ agreement regarding the technical meanings of these terms, Justice M ARKMAN nonetheless asserts that because other methods of printing were available in 1954, th at it is more reasonable to interpret “type” as the text or type produced. We reject Justice M ARKMAN ’s preferred definition of “type” based on the availability of other pr inting methods for the well-explained reasons articulated by Chief Justice Y OUNG . These other printing methods are simply irrelevant because to ascertain the Legislature’s intent we must focus on th e language used, not extraneous then-available printing methods. Indeed, the meanings of “point” and “type” were well-established in 19 54, and had the Legislature intended some other unit of measurement to take account of these other printing methods, the Le gislature could have said so, but it did not.

41 See Webster’s Third New International Di ctionary of the English Language, Unabridged Edition (1965), p 2476 (diagram of “type”); Webster’s New International Dictionary of the English Lang uage, Second Ed ition 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 th e English Language, Unabridged Edition (1965), p 1750, and the definition of “p oint system” refers to the “sizes of type bodies,” Webster’s New International Dictionary of the En glish Language, Seco nd Edition Unabridged (1948), p 1904. These referenc es to “type” within the de finition of “point” further support the conclusion that, whether the “type” refers to the printer’s blocks themselves, or whether it refers to the alternative defin ition of the resulting prin ted letters, the point19 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 th e phrase to require that the “letters” measure 14 points. We disagree with this interp retation and conclude that the type must measure 14 points, not the resulting printed lette rs. 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 bloc k. 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 nece ssarily measure 14/72 of an inch. Intervenor claims that becau se “in” means “made of,” th e letters must measure 14 points. However, this argument is specious. The term “14-point” sp ecifically modifies the word “type,” and there is no indication th at 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 meas ure 14 points, it would not have used the term “type” as modified by “14-point” and instead could have specified th at the letters must “measure 14 points.” 43

measurement of type exists by reference to th e actual printer’s blocks, contrary to Justice M ARKMAN ’s claim.

43 Having considered this textual argument, which is substantially the same as that offered by Justice M ARKMAN , his contention that we have not considered this language is clearly incorrect. Rather, it is Justice M ARKMAN 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.20 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 fu ll 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 th ese 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 lette rs. The fact that the other content requirements are not required to be in capital letters, but a combination of uppercase and lowercase letters, necessarily c ontemplates that letters in the required type size may have different heights, since a lowe rcase “x” has a different height than an uppercase “E.” This provides further suppor t 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 in dication in subsections (3) and (5) that the

44 “[W]ords and phrases used in an act shoul d 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 84 9 (2008) (quotation marks and citation omitted). Yet, Justice M ARKMAN , like intervenor, reads MCL 168.482(2) in isolation to conclude that “type” must refer to the point size of the le tters. Were we to adopt intervenor’s and Justice M ARKMAN ’s position, we would essentially a dopt two different definitions of type, requiring petitioners to measure the letters under MC L 168.482(2), but measure the type under MCL 168.482(3) and (5). Indeed, Justice M ARKMAN does not explain how to reconcile the language of MCL 168.483(2) w ith 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,” evin ce a clear intent that the letters measure 14 points and not the type. This view is un persuasive for reasons I, and Chief Justice Y OUNG , have explained in detail.21 required text appear in both uppercase and lowercase letters. Give n the foregoing, it is clear that the reference to “letters” in MCL 16 8.482(2) is intended merely to clarify that the text of the heading app ear 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 th e petition heading and no t the letters must measure 14-points, does not en d the analysis. Rather, it mu st be determined whether plaintiff’s petition heading meas ures 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 Canvasse rs and the Secretary of State conceded at oral argument and in their supplemental brie f concerning intervenor’s application for leave to appeal in this Court, that those “s ame [traditional] concepts [of point and type] are replicated in computer soft ware programs that result in the production of digital type

45 We disagree with intervenor’s and Justice M ARKMAN ’s suggestion that the letter must be measured because otherwise, an illegible 3-point letter in 14-point type would comply with the statute. In tervenor, like Justice M ARKMAN , 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 ma nipulated within a 14- point-type setting does not mean that the Legisl ature intended that the heading’s letters each measure 14 points.22 from an electronic printer.” 46 Counsel for the board and the Secretary of State has also conceded that the same methods of measuremen t 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 Mi crosoft’s glossary of typographical terms defines “poi nt” consistently with that te rm’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 Microsof t’s glossary does not

46 At oral argument, the assistant attorn ey 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 Co mm’rs v Wayne Co Clerk , 293 Mich 229, 235-236; 291 NW 897 (1940), I view th e 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 acknowledgemen t that the meaning of those terms has carried over to computerized printing.

47 With regard to the measurem ent of type, the assi stant attorney genera l at oral argument answered, “That is my understanding, ” in response to Chief Justice Y OUNG ’s inquiry, whether “[e]ven though we now have a differe nt method of produc ing type, has that measurement [from the traditional printing in dustry] been faithfully transcribed to digitized production?” Curious ly, neither Chief Justice Y OUNG nor Justice M ARKMAN attach any significance to defendants’ concessions , despite the fact that the Board of State Canvassers and the Secretary of State are ch arged with implementing Michigan’s election laws, including the approval or denial of re ferendum petitions and are, thus, in the best position to provide expertise regarding th e proper measurement of digital text.

48 People v Goecke , 457 Mich 442, 448 n 2; 579 NW2d 868 (1998) (n oting that this Court may take judicial notice of facts not s ubject to reasonable dispute); MRE 201.

49 Microsoft Support, WD2000: Definitions of Typography Terms in Word <http://support.microsoft.com/kb/192973/e n-us> (accessed August 1, 2012).23 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 entir e “block” because “a little bit [is] added on . . . so that lines of type ‘set solid’ (without any add itional space between them) do not bash into each other.” 51

50 Id . Chief Justice Y OUNG asserts that judicial notice ca nnot 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 judici al notice of terms specifically defined by Microsoft. That Microsoft has adopted certai n definitions of “point,” and “font size,” and acknowledged that the po int size of “type” measures not th e letter but the digital block, is hardly subject to dispute. I fail to see how my acknowledgm ent of Microsoft’s definitions of these terms, made known to th e 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 NW 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 9 17 (1996), or, indeed, this Court’s common practice of relying on dictionary definitions when interpreting a statute. Justice M ARKMAN 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 ackn owledged that the size of ty pe incorporates additional space not covered by the font, or actual letter.

51 Microsoft, The Relationship Between Font Size and Physical Type Size <http://www.microsoft.com/typo graphy/web/designer/face3.ht m> (accessed August 1, 2012). Consistently with Micr osoft’s recognition that digitized type is larger than the actual character, other modern typographical s ources recognize that computer characters are contained within an invisi ble box, or blocking around th e letter, which replicates the metal block used in mechanical t ypesetting. 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 physi cal 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. Th is is why different fonts24 Given the concessions made by counsel fo r the board and the Secretary of State and Microsoft’s definitions of point and type, it is clear that digital t ype is the equivalent of physical type and that computer softwa re continues to use this basic terminology. 52 Further, because digital type and physical t ype are functional equivalents, they are measured in the same manner ex cept in the instance of digital type; in that instance an invisible box, which replicates the printer’s bloc k, is measured and is reflected by the font size selected. 53

3. APPLICATION In the present case, plaintiff used 14-poin t Calibri font for its petition heading, as attested to by plaintiff’s prin ter. Although plaintiff’s printe r’s affidavit did not state the basis for this conclusion, the affiant explai ned at the Board of State Canvassers hearing how he verified the point size: When I was asked to sign the affidav it, I took the file that we were given, that we had assembled fo r 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 sma ller or larger in comparison to one another. This is yet another reason why measurement of the digital lett er will yield an inaccurate type size.

52 Aside from the concessions and Microsoft’s definitions, multiple m odern 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 technica l 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 <http://www.adobe.com/type/topics/info2.html> (accessed August 1, 2012).25 Intervenor filed two competing affidavits , but did not present any expert testimony at the hearing. Both affian ts measured the size of the pe tition 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 vi ew these affidavits as dispositive because, as I have already concluded, measur ing the letters to dete rmine compliance with MCL 168.482(2) is an inappropri ate method of measurement. I also do not view as di spositive the intervenor’s supp lemental affidavit submitted after we granted oral ar gument on the application. 54 In this affidavit, the affiant attested that, using an E-scale ruler, 55 the type of the pe tition heading did not measure 14 points, and that while the E-scale ruler “subtract[s] the space above or be low 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 diffe rent amounts of space within the digital block, an E-scale ruler cannot definitively meas ure whether the actual font selected is in 14-point type. I also find the affiant’s comparison of plai ntiff’s heading with 14-point type metal blocks that were available in 1954 to be unpersuasive. The affi ant avers that this comparison shows that plaintiff’s heading is “clearly a smalle r type size,” yet the spacing between the lines of text in each of the th ree examples appears to be the same. This

54 After intervenor moved for leave to a ppeal and we granted argument on the application, this Court granted interven or’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 fa mily that comprise different type sizes to provide a side-by-si de comparison between the example type size and the printed letter.26 exercise only demonstrates what we already know: Different styles of font will take up different amounts of space on a prin ter’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 ab out 14-point type, you’re talking about an area that’s just less than a fi fth 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 co mparison does not establish th at 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 co mpliance with the 14- point-type requirement. My review of intervenor’s evidence shows that intervenor faile d to establish that plaintiff’s petition’s heading wa s 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-po int Calibri font, which the pr inter verified using Adobe software, and which intervenor simply failed to rebut. B ecause Microsoft defines font size to equal type size, plaintiff presented ev idence establishing th at it actually complied with the type-size requirement of MCL 168. 482(2). There being no evidence to the contrary, I conclude that plaintiff actu ally complied with MC L 168.482(2).

C. MANDAMUS We must next determine whether plaintiff is entitle d to a writ of mandamus requiring certification of the referendum petition. Mandamus is an extraordinary remedy27 and the primary purpose of a writ of mandamus is to en force 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 a nd whether there are su fficient signatures to warrant certification. 58 In this case, there is no question that plaintiff colle cted 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. Becaus e 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 lega l duty to certify the petition as actually compliant with MCL 168.482(2).

IV. CONCLUSION A majority of this Court holds that th e doctrine of substa ntial compliance is inapplicable to referendum petitions subm itted for pre-election certification and we overrule Bloomfield Twp . I and two other jus tices 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 168.477.28 requirement of MCL 168.482(2) requires that the “type,” not the “letters,” of the petition heading measure 14 points. I additionally conc lude that plaintiff actually complied with the type-size requirement. Finally, a majority of this Court holds th at plaintiff is entitled to a new writ of mandamus requiring the Boar d 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 issu e the judgment order forthwith.

SUMMARY (1) A majority of this Co urt holds that the Court of Appeals erred by granting mandamus on the basis of plaintiff’s substantia l compliance with election law. The Court of Appeals opinion and grant of mandamus are reversed. Substantia l compliance with the requirements of MCL 168.482(2) is insufficien t 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 mand amus was not erroneous. Accordingly, a new writ of mandamus shall enter.

Mary Beth KellyS T A T E O F M I C H I G A N

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-DefendantAppellant.

Y OUNG , C.J. ( concurring in part and dissenting in part ). We concur with and jo in parts I, II, III(A), and III(B)(1) of Justice M ARY B ETH K ELLY ’s opinion. We agree with Justices M ARY B ETH K ELLY and M ARKMAN 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 resolv e is whether the “size 14” Calibri font generated by plaintiff’s comput er is a faithful replication of the statutorily required2 heading in 14-point type that would have been generated by usin g traditional movable type. On this question, Justice M ARY B ETH K ELLY believes that it is possible on this record, and with reference to extrarecord ma terials, both to dete rmine how a digitized computer font is produced and that the f ont at issue here meets the statutory size requirement. She does so by invoking judici al notice. We do not share Justice M ARY B ETH K ELLY ’s technical literacy: we la ck the necessary knowledge of printing and, more important, the programming necessary to crea te computer fonts. Therefore, we respectfully dissent from her conclusion that plai ntiff 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 th e stunning transformation of the printing industry since the statutory requirements we re enacted—from movable type to computer generated print—and because we believe th at the historical statutory terms are nonetheless applicable in this new computer era, it is important for this Court to establish a precedent to guide futu re petition efforts. While we re ject her conclusion that actual compliance has been proved here , we believe that Justice M ARY B ETH K ELLY ’s opinion has provided this gu idance on the contro lling legal principles. Important to our resolution of this case, however, is the fact that the legal standards under which the Secretary of Stat e, the Board of State Canvassers, and the parties operated were confused and, as held today, errone ous. As a consequence, we3 would allow plaintiff an opport unity to present proofs to th e Board of State Canvassers under the announced correct legal standards. Accordingly, we would remand this case to the Board of State Canvassers for further pr oceedings to determine whether plaintiff’s petition heading actually complie d with the type size requi rements of MCL 168.482(2). As eloquently stated by Justice M ARY B ETH K ELLY , this appeal concerns a big constitutional issue about an apparently sma ll 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 comp liance with the legal petition requirements is the only means by which a small fractio n of Michigan citizens is permitted to countermand the will of the people as expressed through th e legislation duly enac ted 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 “t he 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 em ergency 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 whethe r this law will remain on the books. As Justice M ARY B ETH K ELLY explains, this is a core issue in a constitutional republic like

ours.4 I. ANALYSIS A. THE JUDGE-MADE “SUBSTANTIAL COMPLIANCE” DOCTRINE, TO THE EXTENT THAT IT REMAINS VIABLE , IS SUPERSEDED HERE BY THE LEGISLATIVELY DEFINED SUBSTANTIA L COMPLIANCE PROVISION OF MCL 168.544d. MCL 168.482(2) requires that the petition head ing “shall be . . . printed in capital letters in 14-point boldfaced type [.]” A majority of the Court agrees that, for the reasons that Justice M ARY B ETH K ELLY ’s and Justice M ARKMAN ’s separate opinions explain, the judge-made doctrine of substantial complian ce 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 stat utory provision specifically allows for substantial compliance. As Justices M ARY B ETH K ELLY and M ARKMAN correctly explain, there is no statutory provision that would allow the Board of State Canvassers to apply the doctrine of substantial complianc e to plaintiff’s petition in this case. In particular, MCL 168.544d incorporates a substantial compli ance 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 actu ally 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 provid e 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-poi nt 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 Re ferendum Petitions – Prescrib ed Format (revised June 2011). Of course, the Secretary of State ha s the authority to dete rmine that “size 14,”5 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 “P OINT” SIZE REQUIREMENTS FOR “TYPE” REFER TO THE SIZE OF A TRADITIONAL MOVABLE TYPE BLOCK , NOT THE SIZE OF THE ACTUAL PRIN TED CHARACTER ON THE PETITION.

We agree with Justice M ARY B ETH K ELLY that the Court of Appeals panel erred to the extent that it conclude d that the petition heading’s printed letters themselves must measure 14 points in height. While the Cour t of Appeals panel correctly recognized that a point is a unit of measurement (approxima ting 1/72 of an inch ), the definitions of “point” and “type” that predominated at th e time the Legislature enacted MCL 168.482 belie the conclusion that the printed letters themselves must measur e 14 points in height. The Legislature enacted MCL 168.482 in 1954 and amende d 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 acco rd these terms their “peculiar and appropriate meaning[ s]” at the time of enactment. 3 Webster’s New International Dictionary of the English Lang uage, Second Edition Unabridged (1948) defines “type” as “[a] rectangul ar 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), a nd (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.6 having its face so shaped as to produce, in printing, a letter, figure, or other character” or, alternatively, as “[s]uch blocks, or the le tters or characters impressed, collectively.” 4 It defines “point system” specifically in rela tion to the blocks th emselves: “A system according to which the various si zes of type bodies, leads, et c., bear a fixed and simple relation to one another. . . . The value of th e point is .013837 inch, or nearly 1/72 inch.” 5

4 Webster’s New International Dictionary of the English Langu age, Second Edition Unabridged (1948), def 17, p 2750. Similarly, Webster’s Third New International Dictionary of the Engl ish Language (Unabridged) defines “type” as “a usu[ally] metal, wood, or plastic rectangular bl ock having on its face a relief character of which an inked impression will produce a printed character” o r, alternatively, as “a printed impression from type[.]” Webster’s Third New Inte rnational Dictionary of the English Language (Unabridged) (1966), defs 3a and 3f, p 2476.

5 Webster’s New International Dictionary of the English Langu age, Second Edition Unabridged (1948), def 3, p 1904.7 Importantly, the dictionary contains a diagram of type th at shows that the type face , or raised portion of the type block that act ually imprints the ink onto the paper, is somewhat smaller than the size of the type block itself. Th e 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 literatur e dating back to the turn of the last century. An early twentie th century technical treatise on type explains: Only a few letters, lik e 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; wh ile 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 a ll these irregular shapes

6 Rosen, Type and Typography (New York: Rein hold Publishing Corp, 1963), p 16, available at <http://babel.hathitrust. org/cgi/pt?id=mdp.390 15047342434> (accessed August 2, 2012).8 must be made to appear in line with each other, the type-body on which they are made is la rger than the letter. [7] Moreover, Webster’s Third New International Di ctionary of the English Language (Unabridged) defines “point” by referri ng to an illustration of “typ e” that refers to the block’s “point size” as the enti re length of the block, not ju st the raised portion that creates the printed character. In short, there does not appear to be an y dispute about the historical understanding of these technical printer’s terms. 8 These dictionary defin itions and technical sources

7 Stewart, Type (Chicago: United Typothetae of America, 1918), pp 7-8.

8 Justice M ARKMAN argues that printers employed ot her 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 statem ent, but it does not gainsay th at the terms “point” and “type” were rooted in the movable type process and have well-known fi xed meanings as we have explained. Thus, Justice M ARKMAN ’s examples of other alternat ive 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 di vorced from the use of movable type, had it been used in a petition and ch allenged on the ground that it did not comply with the 14- point requirement, the same legal question ra ised 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 M ARKMAN may find it hard to understa nd 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 term s of art in the printing field that have a longstanding and undisputed meaning. Justice M ARKMAN 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 measur ed 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 pr inted letters. Justice M ARKMAN 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.9 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 manda ted that the petition ty pe 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 othe r styles in the same point size. Today, a modern Legislature might ma ndate 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 se lected. Accordingly, a “direct measure” approach to sizing the prin ted characters such fonts produce would be no more productive than it is in measuring points. Justice M ARKMAN nevertheless concludes that the st atutory reference to 14-point type means that the actual prin ted character set must measure 14/72 of an inch high when measured from the top of the ascender of a lowe rcase letter (such as “h”) to the bottom of the descender of a lowercase letter (such as “j ”). He asks, how coul d the Legislature have made plainer this intention than by mandating “14-point boldfaced type”? The Legislature used a commonly unders tood term, “point,” which was and is understood to refer not to the size of th e 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 th e underlying block of type, not to the printed “type.” The provenance of this definition is unchalleng ed. The Legislature need not have known precisely how printers designed type in orde r 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 require ments. Those who fre quently used printed materials generated with traditional prin ting methods in 1954—which would have included legislators, given that the Legisl ature had its own prin ting press—would have certainly understood the general notion of poin t 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.10 because different type style families (now colloquially refe rred to as “fonts”) use the available space differently, “[d]ifferent typefa ces 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 so metimes 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, th is argument founders when considering the whole of MCL 168.482. Subsec tions (3) and (5) both contain type size requirements. However, unlike subsection (2), they contemplat e that the required text may appear in both capital and lowercase letter s, 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-scal e ruler provides only an approximation of type size and no t 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 exam ple, the resulting E-scale measurement will not provide a precise de termination of the type size shown. Thus, contrary to the alternative method of measurement that the intervenor and Justice M ARKMAN urge be used for determining ty pe size by directly measuring the printed characters, the Board of State Canva ssers cannot measure the type size of the petition heading simply by comparing the le tters 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 headin gs that had been pr inted 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 M ARKMAN ’s claim that application of the “p rinter’s block” approach would not warrant a remand in this case.11 whole canvas and sometimes they use part of the canvas.’” 11 Because type size incorporates some amount of additional sp ace on the printer’s block, and because different type style families use that space di fferently, different sized letters result even when printed from blocks of the same size.

C. WHEN A PETITION IS PRINTED US ING 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 WH AT A TRADITIONAL TYPE BLOCK WOULD HAVE GENERATED.

While these definitions of “point” and “t ype” are clear based on their customary technical meanings, the confounding issue in th is case is how to apply these historical definitions in an age when digital printing predominates . Contrary to Justice M ARY B ETH K ELLY ’s conclusion, we do not believe that the ev idence available to us is sufficiently clear for this Court to take judicial notice th at Microsoft’s digital fonts replicate the point measure that the Legislature intended. Becaus e 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 M ARKMAN ’s detailed critique of Justice M ARY B ETH K ELLY ’s resort to inconclusive materials outside the record re inforces our belief that this Court has no competency to make the kind of factual determinatio n that was never addressed and certainly not provide d in the record.12 font does not prove that it is equivalent to th e 14-point type standard that the Legislature required when it enacted MCL 168.482. In light of the fact that no one unders tood when the Board of State Canvassers held the hearing that plaintiff was obligated to estab lish this equivalency, it is not hard to understand why its proofs consisted of little mo re than an attestation that its printer faithfully selected “size 14” Calibri font on his computer. Similarly, this is the reason why Justice M ARY B ETH K ELLY 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 wh at a movable type of the required point size would have produced in orde r to satisfy “actual compliance,” we are hard pressed to understand how this equivale ncy could be established with out evidence from Microsoft, the producer of the Calibri font used here, about not only how it pr ogrammed the font but whether it actually replicates what the tr aditional printer’s type block would have produced. I do not believe that the pastiche of extrarecord evidence re lied on by Justice

M ARY B ETH K ELLY establishes these necessary proof s. And if they do, we lack sufficient computer expertise to confirm it. 13

13 Ordinarily, we judges take ju dicial notice of things that ca nnot be disputed, such as the state of the moon on a given da te as reflected in an alman ac. The cycles and phases of the moon are, after all, cons tant and predictable. How Microsoft programmed its font system seems well shy of the certainty level required for th e 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.13 Rather, we believe that the proper a pplication of the statutory type size requirement in the context of a digital font re quires 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 entitle d to have its petition certified as sufficient. Howeve r, 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 pr oven the connection between its “size 14” font and the statutorily required 14-poi nt type size, we do not believe that it is entitled to mandamus. Therefore, we concur in th e 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 accurate ly reproduces what the point system would have produced has never been addressed a nd because a general substantial compliance rule erroneously had been recognized as a m eans of avoiding the actual requirements of

Ordinarily, we judges rely on ex perts, 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 dis pute” and that are either “generally known within the territorial ju risdiction of the trial court or . . . capable of accurate and ready determination by resort to sources whose accu racy cannot reasonably be questioned.” MRE 201(b). The questions presented here clea rly are not of the ki nd that would qualify under MRE 201. More telling, almost no ju stification is offered in support of the application of judicial notice that “size 14” Ca libri font generates the same result that the applicable point system would have yielded. We do not know wh ether the Web sources that Justice M ARY B ETH K ELLY relies on are “capable of accurate and ready determination by resort to sources whose ac curacy cannot reasonably be questioned,” MRE 201, and she does not even assert th at they meet this exacting standard.14 this statute, we would permit a remand to the Board of State Canvassers to give plaintiff an opportunity to present proo fs under the correct legal sta ndard: that the digital font system actually replicates results that the movable type point system would have generated. Only upon such pr oof could plaintiff establish th at the heading of its petition is in fact “14-point boldfaced type” as that phrase is properly understood.

Robert P. Young, Jr. Brian K. ZahraS T A T E O F M I C H I G A N

SUPREME COURT

C AVANAGH , M ARILYN K ELLY , and H ATHAWAY , JJ. ( concurring in part and dissenting in part ). We concur in Justice M ARY B ETH K ELLY ’s holding that a writ of mandamus should issue in this matter. As a result of our concurrence on th is point, Proposition 4 will appear on the ballot. However, we strongly disse nt from the grave actions taken by the justices supporting the position in part III(A) of Justice M ARY B ETH K ELLY ’s opinion. Their decision to depart from 30 years of preceden t 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. 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-DefendantAppellant.2 The holding of these justices that a mere clerical technicality—which has not and cannot be shown to create a ny 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 gravit y 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 Constitu tion provides that “[t]he legislat ure shall enact laws to preserve the purity of elections” and “to guard against abus es of the elective franchise . . . .” Const 1963, art 2, § 4. MCL 168.482(2) is one of these laws, and it was in tended 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 th e 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 j udicial 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 politic al arena and preempt a vote of the people is inconsistent with both the role of the cour ts and the principles of our democracy. We vote to affirm the Court of Appeals an d its issuance of mandamus. As stated, we also concur with Justice M ARY B ETH K ELLY ’s issuance of mandamus. As a result,

1 See, generally, Kadans v Wayne Co Clerk , 363 Mich 306, 308; 109 NW2d 788 (1961).3 Proposition 4 will appear on the ballot. We note that, given Justice M ARY B ETH K ELLY ’s finding of actual compliance—which must necessarily encompass substantial compliance, because act ual compliance is a higher standard than substantial compliance—there are four votes that find at least substantial co mpliance and allow the voters to determine the merits of this propos al. 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. HathawayS T A T E O F M I C H I G A N

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.

M ARKMAN , J. ( concurring in part an d dissenting in part ).

PROLOGUE Although to many the present dispute over font size may seem to be “much ado about nothing much” an d a debate concerning a mere “t echnicality,” in which there may be only a “dime’s width” of difference betw een what is required of petitions by the law and what is actually c ontained in the petitions before th e Court, a considerably larger issue is implicated: how faithful must the bran ch of government that interprets the law be to the language adopted by th e branch of government that enacts that law? It is important to bear in mind that the very same constitutional provision th at provides for the right of2 referendum also provides that it “must be invoked in the manner prescribed by law,” Const 1963, art 2, § 9, and it is the ve ry same Constitution th at provides for a representative form of govern ment in which legislative ma jorities, not the views of a small percentage of the electorat e, generally determine the cour se of public policy. Const 1963, art 4, § 1. As explaine d 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 statut ory 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 provide s 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 lim its the concept of “s ubstantial compliance” to those circumstances in which a petition ha s 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 disti nguish between 10- or 12-point type and 14- point type. Instead, “we the pe ople” of Michigan have determ ined 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 requiring3 200,000 signatures to place a referendum on th e ballot, find that 199,250 signatures is sufficient and constitutes “substantial complian ce”? Should this Court, in reviewing a law establishing a five-year statute of limita tions period, find that a lawsuit or prosecution undertaken five years and two months afte r an event is sufficient and constitutes “substantial compliance”? And shou ld 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”? Pe rhaps 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 discreti on and arbitrariness, less capable of clearly communicating to the people their rights and re sponsibilities, and more the subject matter of new lawsuits. To allow “substantial complia nce” to satisfy the law when this has not been authorized by the Legislature is to acc ord more power to judges, and less power to legislative bodies and the people whom they represent, to say wh at the law “is.” It is the obligation of the ju diciary to interpret the law in reasonable acco rd with its language, and I believe this has been accomp lished when a law requ iring that a printed heading be set forth in “14-point type” is inte rpreted to require “14- point type.” It is

neither a “strict” construction nor a “na rrow” construction to render such an interpretation, but simply a “reasonable” construction-- a construction that ordinary legislators and readers of the law would pla ce upon this language. Had the Legislature

been determined to en sure that certain petition headings would always be set forth in 14- point type, and that no gamesm anship 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 law4 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 mo re and no less”? The issue in this case, as it is in most case s before this Court, is more than the significance of a “dime’s width” of differe nce between “14-point type” and a smaller type on a petition; rather, it is which institu tion of government gets to make decisions regarding what will be provided for in the law-- the branch comprised of pe rsons broadly reflective of the people in their full range of backgrounds, interests, and professions, or the branch comprised exclus ively 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 constitu tionality of this law. Plaintiff is incorrect in its assertion that “the only s ubstantial difference between the petition at bar and the [ones in earlier years that have pla ced matters on the ballot] is the subject matter and viewpoint of the [p laintiff].” Rather, th e 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 “substan tial compliance” with this requirement is tantamount to compliance with the law. Because I wo uld answer both of these questions in the negative, I would revers e 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.5 Pursuant to the clear direction of MCL 1 68.544d, 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 co mply with that law. Therefore, although plaintiff suggests that our interpretation of the 14-point-type requirement in MCL 16 8.482(2) may prevent a number of petitions from reaching the ballot, each of the other petitio ns cited by plaintiff was a pparently preapproved by the Board of State Canvassers, and thus must only “substantially comply ” with the 14-pointtype requirement. Further, as highlighted on page 8 of plaintiff’s own supplemental brief, even a cursory review of the ot her petitions will show that each is printed in visibly larger type than that in the instant petition. (1) Plaintiff seeks a writ of mandamus ag ainst defendants. “Mandamus is an extraordinary remedy . . . .” Musselman v Governor , 448 Mich 503, 521; 533 NW2d 237 (1995). The plaintiff in a mandamus proceedi ng 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 th at 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 Schoo l District Accountability Act, commonly known as the emergency financial ma nager 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 the6 electors of the State may suspend the operation, until the next general election, of any act of the legislature, however important [with cer tain 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 NW 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 resp ected and given timely effect, i.e., the right to a rep ublican form of self-government , see Const 1963, art 4, § 1; US Const, art IV, § 4, and the right of the people under specified ci rcumstances to enjoin the effects of such laws during the referend um process. Const 1963, art 2, § 9. Thompson has properly addressed th is tension by both recogniz ing the importance of the referendum process and insisting that this process, wh ich involves a departure from the ordinary constitutio nal process by which laws are fo rmulated, be undertaken in a “regular” fashion and in complian ce with the law. (4) Const 1963, art 2, § 9 provides that “[ t]he power of refere ndum . . . must be invoked in the manner prescribed by law . . . .” (5) MCL 168.482(2) provides: If the measure to be submitted pro poses a constitutional amendment, initiation of legislation, or referendum of legislation, the heading of each part of the petition shall be prepared in the followi ng 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).7 (6) That the Legislature in 1965 amende d 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 cer tificate of the circ ulator 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 pr escribed by the secretary of state” may “substantially comply” with MCL 168.482(2), a form not “p rescribed by the secretary of state” must actually comply with MCL 168.48 2(2). To the extent that Bloomfield Charter Twp v

Oakland Co Clerk , 253 Mich App 1; 654 NW2d 610 (2 002), an opinion of the Court of Appeals, suggests that all petition forms, rega rdless of whether they were “prescribed by the secretary of state,” need only “subst antially 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.”8 (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 (re vised June 2011), p 2. Theref ore, the form must actually comply with MCL 168. 482(2). As explained in the S ecretary of State’s memorandum, Initiative and Referendum Petitions (January 2011), p 1, “While Mi chigan election law does not require the pre-approval of an initiative or referendum petition form, such approval greatly reduces the ri sk that signatures collected on the form will be ruled invalid due to formatting defects.” (9) Both MCL 168.482(2) and the Secret ary of State’s own rule require the heading on the form to be “p rinted 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 in ch, or nearly 1/72 inch.”), and Spicer v Hartford Fire Ins

Co , 171 Va 428, 432; 199 SE 499 (1938) (“An in ch is the American standard of linear measure. . . . A like standard, while it may not be so generally know n, 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.”).9 (11) The term “type” is defined consisten tly among dictionaries as being “a wood

or metal block with a raised character on it s surface that, when fi xed 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 bl ocks used to produce the lette rs or to the actual printed letters themselves, and, contrary to Justice M ARY B ETH K ELLY ’s contention, which of these definitions is ultimately controlling is hardly undisputed . Indeed, this matter is at the very heart of the dispute between plain tiff and the Governor, th e Attorney General, and the intervening defendant. Also, contra ry to the Chief Jus tice’s and Justice M ARY

B ETH K ELLY ’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 in corporate 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 prin ted impression from type: printed matter <very small type can be hard to read>.”10 (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 “p rinted” and “letters” indicates that the Legislature was referring to the actual printed letters rather th an the blocks used to make these letters. That the Legislature used the wo rd “in” rather than “with” in two relevant places in the statute underscores this interpretation. The Ch ief 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 pur pose 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 me thods of printing in addition to the less11 advanced letter-press method that requires i ndividual 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 requir e moveable letter bloc ks. 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 lett er-press are compliant

with the statute. This underscores that the “block” definition of “type” unnecessarily

focuses on the method of production, ra ther 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 focuse s precisely on what t hose signers will read. (15) Indeed, given that blocks are incr easingly not used in the modern printing industry, it is difficult to conceive of how this Court, or the Secr etary of State, or the Board of State Canvassers, or the parties th emselves could practically and accurately determine whether the “14-poin t 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 wh en 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-poi nt-type requirement of MCL 16 8.482(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

.12 (17) That MCL 168.482(2) re fers to “the heading,” a nd that “type” refers to “printed characters” or “letters or characters impressed, collectively” suggests that the grouping of letters that comprises the head ing 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 whet her the pointsize requirement has been satisfied. Contrary to Justice M ARY B ETH K ELLY ’s contention,

I do not conclude that the act ual printed characters must each measure 14/72 of an inch high, nor do I adopt different ways of me asuring 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 collectivel y 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 th e 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. 31 0047), 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 te xt, the ruler is used to meas ure 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 documen t may be printed in 14-point type, the actual point size of each letter will vary (e.g., a lowe rcase “x” will always be significantly less13 than 14/72 of an inch because it does not contain an asce nder or descender). In fact, all individual letters in 14-point type will meas ure less than 14/72 of an inch because no letter in the English alphabet has both an as cender 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 “f ont” used in the heading in this case was categorized by the Microsoft software as “14-po int,” it is also undis puted that the actual size of the printed “type” varies widely depending upon the pa rticular “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 A ppeals 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 Legisl ature imposed a “14-point type” requirement shows an intent to impose a specific type-s ize requirement, regardless of the particular

font chosen. (20) Justice M ARY B ETH K ELLY ’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. Howe ver, there is simply no evidence for that conclusion. In fact, the full definition of “font size” provided by Microsoft is:14 The size of type, measured in points between the bottom of the descender and the top of the ascender (t he vertical point size of a font). Sometimes referred to as the Type or Point Size. [Microsoft Support, WD2002: Definitions of Typogra phy Terms in Word <http://support.microsoft.com/kb/1929 73/en-us> (accessed August 1, 2012).] This definition supports my ascender/descende r measurement set forth in ¶ 18, and not

Justice M ARY B ETH Kelly’s “invisible box” argument. Indeed, the diagram on the very same Microsoft typography page cited by Justice M ARY B ETH K ELLY further illustrates that it is the height of the letters-- from highest ascender to lowest descender-- that controls, not the invisible box. For these re asons, I respectfully disagree with Justice

M ARY B ETH K ELLY , who concludes that because plain tiff’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 legibili ty would be entirely

frustrated. (21) Because the heading on the form here is smaller th an 14 points as measured by an E-scale ruler (and consid erably so), the form is clea rly not in compliance with either MCL 168.482(2) or the Secretary of Stat e’s rule. Therefore, plaintiff has failed to satisfy its burden of proving that defe ndants have any legal duty, much less a clear legal duty, for purposes of mandamus relief to ce rtify 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 ev en though their headings were also not 1415 points in size, plaintiff acknowledges that a ll of those referendums were preapproved by the Secretary of State. Given this preappr oval, those forms would only have had to “substantially comply” with MC L 168.482(2). Plaintiff, on the other hand, did not seek the Secretary of State’s preappr oval, and thus was required to actually comply with MCL 168.482(2), which it did not do. (23) Further, it is telling th at 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 plainti ff 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 Canvass ers 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 re manding 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 am ong us has correctly identified the proper method of measuring type, all of the informa tion 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 bo ard 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 contem plate. I would not16 remand to the board without first providing it with relevant judicial guidance regarding what the law requires. The board has alrea dy deadlocked on the i ssue 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-poi nt type as measured by an E-scale ruler and the interv ening defendant has s ubmitted an affidavit

that asserts that the h eading 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 po int on an E-scale ruler,” id . at ___, slip op p 12, and no rema nd to an expert b ody is required. Wh at 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 unwa rranted. The intervening de fendant has also submitted an affidavit that provides that plaintiff’s headi ng is clearly smaller than the same heading printed with a variety of 14-po int blocks that it has obtained, and again plaintiff has not argued to the contrary. That is, while the intervening defendant ha s presented evidence that neither the actual printed letters nor the blocks satisfy the 14-point requirement, plaintiff has presented no contra ry evidence. Instead, it ha s been the dominant focus of17 plaintiff’s argument throughout this case that it has “subs tantially complied” with MCL 168.482(2) and that the difference between th e 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 diffe rence.” What possibl e benefit would be

derived from a remand? (27) Third, if one adopts the “font” approach, as do plaintiff and Justice M ARY

B ETH K ELLY , a remand is not warranted given that there is no dispute that plaintiff’s petition was in 14-poi nt Calibri font. What possible benefit would be derived from a

remand? (28) Further, for the same reasons th at 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 Mi crosoft’s 14-point Calibri font are close enough to the letters produced by a 14-point Calibri block, if such a bloc k can even be found, is any different than the “substantial compliance” standa rd 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