976 N.W.2d 75
Mich. Ct. App.2021Background:
- Seven consolidated appeals by Governor Gretchen Whitmer and Lieutenant Governor Garlin Gilchrist II challenging Board of State Canvassers approval of recall-petition forms; most petitions cited executive orders issued during the COVID-19 pandemic; one cited 2019 HB 4044 (enacted as 2019 PA 124).
- Petitions were reviewed under MCL 168.951a (2012 PA 417), which requires each stated reason to be factual and clear and gives the Board authority to reject petitions that fail that test.
- The Court clarified the appellate standard: review of clarity is de novo; review of alleged misrepresentation of textual authorities (e.g., legislation) is for clear error.
- Key recurring legal questions: whether MCL 168.951a(1)(c) applies to executive orders, whether a single official act can constitute a valid basis for recall, and whether typographical, date, or quotation errors defeat a petition.
- Disposition: the Court affirmed the Board in all seven appeals except it remanded one (LaChappelle) for a ministerial correction of a misstated signing date (scrivener’s error).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for recalling Board approvals | Gov urged a more searching review and sought clarification of the applicable standard | Board argued appellate review should be limited | Court held clarity review is de novo; misrepresentation of legislation/text is reviewed for clear error (MCR 2.613(C)) |
| Does MCL 168.951a(1)(c) (no misrepresentation of 'legislation') apply to executive orders? | Gov: statute should control descriptions of executive orders cited in petitions | Board/sponsors: statute applies to legislation, not ordinary executive orders | Court held the statutory anti-misrepresentation rule applies to legislation, not to ordinary executive orders (except narrow categories that effectively create or transfer statutory power) |
| Must a ‘course of conduct’ be multiple acts (i.e., single act insufficient)? | Gov: statute requires a course of conduct; a single signed order is not enough | Board/sponsors: single official acts can be factual bases for recall | Court held a single action may constitute sufficient 'conduct'; statute does not require multiple acts |
| Do minor errors (wrong date, typographical defects, imperfect quotations) invalidate a petition? | Gov: misdated signing, gibberish/typographical errors, and misquotes render reasons unclear and petition invalid | Board/sponsors: minor/scrivener or typographical errors do not defeat factual/clear requirement; truth and weight are for voters | Court held minor errors generally are not fatal; remanded one petition for ministerial correction of a misstated date, and rejected broader challenges to typographical quirks or contested quotations (truthfulness is for the electorate) |
| Must each reason independently name the officer whose recall is sought? | Gov: each reason must identify the officer by name/title | Board/sponsors: the approved petition form names the officer; repetition within each reason is unnecessary | Court held it is not required to repeat the officer’s name in each reason; the form as a whole is read together |
| Must a petition fully describe the substance of the cited legislation or order (vs. bare citation)? | Gov: bare citation without descriptive content misleads electors | Board/sponsors: statute requires factual and clear reasons but not exhaustive explanations; voters decide sufficiency | Court held petitioners need not fully explain the substance; bare citations or brief descriptions may satisfy MCL 168.951a(1)(c) as applied (for legislation the anti-misrepresentation rule applies; for EOs the rule does not) |
Key Cases Cited
- Wallace v. Tripp, 358 Mich. 668 (discusses electoral vs. judicial role in assessing recall-reason sufficiency)
- Noel v. Oakland County Clerk, 92 Mich. App. 181 (reasons must be stated with adequate clarity to inform electors and afford minimal due process)
- Dimas v. Macomb County Election Comm., 248 Mich. App. 624 (recall-review standard described as lenient; courts should be limited)
- Donigan v. Oakland County Election Comm., 279 Mich. App. 80 (truth of reasons and adequacy of legislative explanation are political questions for voters)
- Hooker v. Moore, 326 Mich. App. 552 (statute requires reasons be factual; factuality means stated as factual occurrence but not necessarily truthful)
- Barton-Spencer v. Farm Bureau Life Ins. Co. of Mich., 500 Mich. 32 (de novo review principles for interpreting ambiguous language)
- Ally Financial Inc. v. State Treasurer, 502 Mich. 484 (statutory interpretation requires reading statute as a whole)
- Aguirre v. Michigan, 315 Mich. App. 706 (limited instances when an executive order may operate as legislation)