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

- 1

- 

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

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

CONNOR BERDY,

Plaintiff

- Appellee, FOR PUBLICATION June 6, 2019
9:00 a.m.

v No. 349171
Macomb Circuit Court SONYA BURDA, in her capacity as Elected City Clerk, and WARREN CITY ELECTION COMMISSION, LC No. 2019

- 001802

- AW

Defendants

- Appellant s. and

FRED MILLER, Macomb County Clerk,

Defendant.

Before: T UKEL
, P .J., and C AVANAGH and G LEICHER , JJ.

GLEICHER, J.

Defendants

- appellants, the Warren City Clerk and Warren City Election Commission, appeal as of right from the circuit court ’ s opinion and order granting plaintiff ’ s complaint for mandamus and ordering defendants to strike the names of four candidates for Warren City
Council from th e list of candidates for the upcoming primary election. We reverse.

I

Plaintiff, a candidate for Warren City Council, sued defendants seeking to bar four other candidates from appearing on the primary ballot for city council, arguing that those candidate s 1

1 Those candidates were incumbent city council members Cecil St. Pierre, Scott Stevens

, Steve Warner, and Robert Boccomino

.- 2

- were term

- limited under §§ 4.3(d) and 4.4(d) of the Warren City Charter . Plaintiff ’ s argument relied up on an interpretation of §§ 4.3(d) and 4.4(d) which was inconsistent with a 2014 opinion from the Warren City Attorney

. In 2014

, the city attorney concluded that separate term limits applied to city council members elected at

- large versus those elected to represent a single
district. The city attorney concluded that by approving those charter amendments, the voters
created a “ bica meral ” legislature of two separate and distinct legislative groups: d istrict c ity

c ouncil members and a t

- l arge c ity c ouncil members. The city attorney noted that the two groups had different election rules and responsibilities, such as different residency requirements and
separate campaigning and fundraising rules. Additionally, only an at

- large city council member

may serve as m ayor p ro t em. The city attorney noted that the language of § 4.4(d) referred to
three terms or 12 years “ in that particular off ice

. ” Since “ a t

- l arge c ity c ouncil members and
d istrict c ity c ouncil members hold separate and distinct offices, ” he concluded that the charter permitted persons to exhaust their term limits in one type of city council office, then run for the other type of office.

T he c ity a ttorney ’ s opinion regarding the application of the term limits was upheld by a
2015 circuit court decision

, Olejniczak v Warren Elections Bd , Macomb Circuit Court docket
number 2015

- 001304

- AW. In Olejniczak

, the circuit court upheld the city attorney ’ s interpretation of §§ 4.3 and 4.4 of the charter as “ an arguably sound position ” and expressed

“ severe reservations whether defendants can reject the City of Warren Attorney ’ s opinion, let
alone [had] a clear le gal duty to do so. ” The plaintiff in Olejniczak sought leave to appeal the
circuit court ’ s decision, and this Court denied leave to appeal for lack of merit in the grounds presented. Olejniczak v Warren Elections Comm , unpublished order of the Court of A ppeals, entered June 11, 2015 (Docket No. 327779).

As previously noted, plaintiff argued that the four candidates at issue were ineligible because they had each served at least three terms or a total of 12 years on the Warren City
Council and so were barr ed from running again despite that none had exhausted the term limits
for the offices they seek . In the instant case the trial court agreed with plaintiff , finding “ that the term limits were not intended to be cumulative in the way d efendants argue ” and that “ a plain reading of the charter shows that there is no differentiation between at

- large councilmembers and
district councilmembers in the term

- limit definition

. ” The trial court found that plaintiff was
entitled to have the four candidates exclu ded from the primary ballot on the basis of the term limitations contained in §§ 4.3 and 4.4 of the c ity c harter, that defendant Warren City Elections
Commission had a clear statutory duty to strike the four candidates ’ names from the ballot , that doing so was a ministerial act, and that plaintiff had no other viable remedy at law

.

Defendants appealed to this Court, arguing that the trial court erred by simply ignoring the prior circuit court decision from 2015, that the trial court erroneously found a c lear legal duty based upon a contested interpretation of the Warren City Charter, and that it erred by exercising jurisdiction to determine the candidate ’ s eligibility under §§ 4.3 and 4.4 of the charter.
Defendants move d to expedite their appeal and for immediate consideration , which we granted. Berdy v Buffa , unpublished order of the Court of Appeals, entered June 5, 2019 (Docket No. 349171). We now reverse the trial court ’ s grant of mandamus relief.- 3

- II

A writ of mandamus is an extraordinary remedy which may be granted only where the plaintiff shows “ (1) the plaintiff has a clear, legal right to performance of the specific duty sought, (2) the defendant has a clear legal duty to perform, (3) the act is ministerial, and (4) no other adequate legal or equitable remedy exists that might achieve the same result

. ” Berry v
Garrett , 316 Mich App 37, 41; 890 NW2d 882 (2016)

, quoting Rental Props Owners Ass ’ n of

Kent Co v Kent Co Treasurer , 308 Mich App 498, 518; 866 NW2d 817 829 (2014)

. A trial

court ’ s decision whether to grant mandamus is reviewed for abuse of discretion. Berry , 316 Mich App at 41. However, whether the defendants have a clear legal right to perform a duty and whether the plaintiff has a clear legal right to the performance of that d uty present questions of law to be reviewed de novo by this Court. Id

.

P laintiff failed to show that he had a clear legal right to have the subject candidates disqualified from running for city council, failed to show that defendants had a clear legal duty to
strike the names from the ballot , and failed to show that the action demanded was purely
ministerial

. Since plaintiff failed to make those sho wings, the trial court abused its discretion by granting plaintiff ’ s complaint for mandamus.

With regard to seeking mandamus relief, “ a clear, legal right is one clearly founded in, or granted by, law; a right which is inferable as a matter of law from uncontroverted facts regardless of the difficulty of the legal question to be decided. ” Id

. ; Rental Props

, 308 Mich App at 519. The rules of statutory construction apply to the interpretation of city ordinances, including city charters. Gora v Ferndale

, 456 Mich 704, 711; 576 NW2d 141 (1998); Barrow v
Detroit Election Comm , 301 Mich App 404, 413; 836 NW2d 498 (2013).

Plaintiff did not show that the four candidates at issue were term

- limited under the plain language of the Warren City Charter or that t he city government was misinterpreting or misapplying the relevant charter provisions. The specific language of § 4.4(d) states “ [a] person shall not be eligible to hold the position of city council, city clerk or city treasurer for more than the greater of three (3) complete terms or twelve (12) years in that particular office

. ” (Emphasis
added

. ) While the words “ that particular office ” in § 4.4 could be interpreted to distinguish
between terms served as city council member, clerk, or treasurer, there is room for reasonable disagreement with regard to whether there should also be a distinction between council members elected by district and at

- large. While the Warren City Council may not be a true bic ameral legislature with an upper and lower house, like the U.S. Senate and Congress, the city charter
does distinguish between council members elected by district and at

- large with regard to their election, fundraising, constituencies, and abilit ies to ser ve as mayor pro tem. Contrary to the
trial court ’ s ruling, the city ’ s interpretation of its term

- limit provisions under §§ 4.3 and 4.4 of the city charter wa s not clearly wrong. Accordingly, plaintiff has not shown a clear legal right to
have the four in cumbents ’ names removed from the primary ballots. 2

2 The dissent , which has designated this case for publication, contends that the “general election laws of the state” must guide us, rather than the language of the Warren City Charter. In support- 4

- Nor has plaintiff shown that either defendant has a clear legal duty to strike the names from the ballot as requested. Warren City Charter § 13.15 (1)

- (8) gives the Warren City

E lections C ommission pure ly administrative duties such as arranging and staffing polling places and supervising the conduct of elections. The charter does not grant the election commission the power to decide whether candidates are eligible or to strike them from the ballot for ineligibility

. While MCL 168.323 and MCL 168.719 give city election commissions the power and duty to prepare and deliver primary ballots, neither statute give s th os e commission s the power to assess
whether a candidate is ine ligible for a particular office on the basis of term limits. In fact, the language of MCL 168.323 limits a city election commission ’ s functions to the purely ministerial tasks of preparing and furnishing ballots on the basis of the results certified by the board of
county canvass ers.

Section 4.2 of the Warren C ity C harter states that the city council “ shall be the judge of the election and qualifications of its members, subject to the general election laws of the state and review by the courts, upon appeal. ” Neither the electi ons commission nor the city clerk has the power to apply the terms of the charter and determine whether candidates are ineligible to run for office. The city charter gives that power solely to the city council, subject to state election law and review by the courts. W here a city charter makes the city council the sole judge of the election and qualifications of its own members, the final decision rests in the city council and the
courts cannot decide the matter unless and until the council reaches its fin al decision on the

matter. McLeod v State Bd of Canvassers , 304 Mich 120, 129; 7 NW2d 240 (1942); Grand Rapids v Harper , 32 Mich App 324, 327; 188 NW2d 668 (1971), lv den 385 Mich 761 (1971); Houston v McKinley , 4 Mich App 94, 98; 143 NW2d 781 (1966). Si nce only the city council had the power to determine the candidate ’ s eligibility, defendants did not have authority to
determine the candidates ’ eligibility under the city charter and so could not strike their names
from the ballot.

of this proposition, the dissent relies heavily on Barrow , 301 Mich App 404. The dissent
misreads Barrow

. That decision flowed directly and solely from the language of Detroit’s charter, which defined the residency requirements for mayoral candidates. This Court stressed, “Michigan statutory law provides that a city’s charter governs qualifications for person s running for office[.]” Id . at 413. In Barrow , the pertinent language of the charter provided that a person seeking elective office must be “a registered voter of the City of Detroit for one (1) year at the time of filing for office

. . . ” Id . We det ermined that the relevant section of the charter was clear and unambiguous, prohibiting a candidate from seeking office unless the candidate had been a registered voter for one year at the time he or she filed a nominating petition. The candidate, (now Ma yor) Duggan, conceded that he was not registered to vote in Detroit one year before he filed his nominating petitions. Id . at 415.

The language of the Warren City Charter is not so easily parsed, and legitimately subject to differing interpretations. Th e Warren City Attorney concluded that the charter permits the four candidates to run for positions on the city council. This determination may prove incorrect, but it is not unreasonable. Accordingly, Barrow is inapposite.- 5

- Additionally, plaint iff failed to show that the action requested was purely ministerial. In Berry , this Court defined a ministerial act as “ one in which the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment. ” Berry

, 316 Mich App 42

, quoting Hillsdale Co Senior Servs, Inc v
Hillsdale Co , 494 Mich 46, 58 n 11; 832 NW2d 728 (2013). While striking the names of clearly ineligible candidates who have not submitted facially adequ ate petitions or neglected to comply with other clear statutory requirements is a ministerial act, Barrow

, 316 Mich App at 412, choosing between competing interpretations of city charter language regarding term limits is not purely ministerial, but instead requires analysis and discretionary decision

- making. Since determining the eligibility of candidates under §§ 4.3 and 4.4 is not within the powers of defendants and was not a ministerial act, plaintiff was not entitled to mandamus relief to compel
defend ants to do those acts. 3

The trial court ’ s opinion and order granting declaratory and mandamus relief to plaintiff is reversed. No costs, as this appeal concerned an issue of public importance. MCR 7.219. This opinion shall have immediate effect pursu ant to MCR 7.215(F)(2).

/s/ Elizabeth L. Gleicher /s/ Mark J. Cavanagh

3 Contrary to the dissent, MCL 168.323 has not supplanted, arguably or otherwise, the mandamus principles set forth in McLeod , 304 Mich App 120. To the contrary, McLeod ’s central teaching remains relevant. Mandamus is an extraordinary remedy. “Mandamus issues only to compel the recog nition of a clear legal right or the performance of a legal duty; it does not issue so long as the right or the duty is disputed or doubtful.” Id . at 125

- 126. This is the law. The enactment of MCL 168.323 has not changed it. If any of the four candidat es win the election, a challenge to the result is certain. The dissent’s position may then prevail. But the cause of action here is for mandamus, and that form of unusual relief is unavailable where serious and compelling legal questions about a legal du ty abound, as here.