Lead Opinion
Intervening defendants-appellants, Michael Duggan and the Michael Duggan for Mayor Committee, appeal as of right an order granting declaratory relief in regard to plaintiffs complaint for mandamus, declaring that Duggan was ineligible to be a candidate for the position of Mayor of Detroit, and directing that defendants, City of Detroit Election Commission and Detroit City Clerk Janice Winfrey, remove his name from the list of eligible names to run in the August 2013 primary election for mayor. We affirm.
I. BACKGROUND
This case concerns whether Michael Duggan is eligible to be placed on the primary ballot for mayor under the City of Detroit’s Charter, which requires that a candidate for mayor be a resident and a registered voter for one year “at the time of filing for office ....” The material facts are undisputed. Duggan, formerly of Livonia, moved to Detroit in March 2012. Duggan registered to vote in Detroit on April 12, 2012. Duggan filed his nominating petitions with the requisite number of signatures for the August mayoral primary on April 2, 2013.
Plaintiff Tom Barrow, himself a candidate for the mayoral election, thereafter contacted Detroit City Clerk Janice Winfrey, challenging whether Duggan met the
A person seeking elective office must be a citizen of the United States, a resident and a qualified and registered voter of the City of Detroit for one (1) year at the time of filing for office, and retain that status throughout their tenure in any such elective office.
The above provision applies to persons seeking election as mayor pursuant to charter provision § 2-105(A)(13) (defining “elective officers” to include the Mayor of Detroit, among others).
Plaintiff contended that Duggan had not been a registered voter in Detroit for one year before the filing of his petitions on April 2, 2013. Duggan countered that he had been a registered voter in Detroit for one year before the mayoral primary filing deadline, which was May 14, 2013. It is undisputed that had Duggan filed his petitions on or after April 12, 2013, he would have met the durational voter registration requirement.
The three-member Detroit Election Commission, comprised of Winfrey, Detroit City Council President Charles Pugh, and Acting Corporation Counsel Edward Keelean, met to certify the names of candidates for placement on the ballot for the August 2013 primary election in accordance with their statutory duties under MCL 168.323
Plaintiff then brought an action for mandamus in circuit court, seeking a declaratory judgment that Duggan was ineligible to appear on the ballot because he did not comply with the charter. Plaintiff argued that because Duggan had not been a registered voter in Detroit for one year at the time he filed his petitions to run for mayor, his name should not be placed on the August ballot. Plaintiff also moved for injunctive relief.
Duggan answered that mandamus was inappropriate. He contended that in instances of technical defects, access to the ballot should be granted, particularly if absurd results would otherwise occur. He also maintained that the durational residency requirement was unconstitutional.
Defendants asserted that the circuit court should give deference to the Detroit Election Commission’s interpretation of the charter. Defendants averred that Michigan caselaw was inconclusive regarding dura-tional residency requirements for candidates. Finally, defendants urged the court to apply the doctrine of substantial compliance.
In a thorough and well-written opinion, the circuit court decided that the language of § 2-101 was plain and unambiguous and, utilizing the common meaning of the
With regard to Duggan’s constitutional arguments, the circuit court ruled that the cases he cited were distinguishable and therefore were not binding. The court cited federal caselaw and observed that rarely has a one-year residency requirement been struck down. The court ruled that the charter’s one-year residency requirement was not unconstitutional per se and concluded that there were multiple bases upon which the provision could be construed as constitutional.
On appeal, Duggan argues that the language of the Detroit City Charter, which he claims is poorly drafted, is ambiguous. Thus, the Election Commission did not have a clear legal duty to conclude that he was not qualified. Duggan calculates his one-year residency requirement from the petitions’ filing deadline, May 14, 2013. He contends that he was a resident of Detroit and a registered voter since at least May 14, 2012, such that the Election Commission was correct in certifying him. Further, any ambiguity on this point should weigh in favor of access to the ballot and letting the electorate decide the issue, particularly where he merely filed his petitions early. Had he waited until the filing deadline, this issue would be moot. He adds that the charter’s durational residency requirements are unconstitutional under a strict scrutiny standard.
Plaintiff answers that the language of § 2-101 is clear and unambiguous and provides that Duggan must have been a registered voter in Detroit for at least one year at the time he filed for office. To accept Duggan’s reading of § 2-101 would require this Court to substitute “by the filing deadline” for “at the time of filing for office,” an unwarranted reading of the plain words of the charter. Further, plaintiff asserts that the circuit court correctly determined that § 2-101 was constitutional.
II. ANALYSIS
A. STANDARD OF REVIEW
The issues presented are subject to review de novo. Courts review questions of law under a de novo standard. Loweke v Ann Arbor Ceiling & Partition Co, LLC,
B. MANDAMUS
Duggan challenges the grant of mandamus to plaintiff. A plaintiff has the burden of establishing entitlement to the extraordinary remedy of a writ of mandamus. Lansing Sch Ed Ass’n v Lansing Bd of Ed (On Remand),
It is undisputed that defendants have the statutory duty to submit the names of the eligible candidates for the primary election, see MCL 168.323 and MCL 168.719. The inclusion or exclusion of a name on a ballot is ministerial in nature. Here, plaintiff himself is a candidate for mayor, as well as a citizen of Detroit. Aside from the instant action, plaintiff has no other adequate legal remedy, particularly given that the election is mere weeks away and the ballot printing deadline is imminent. Plaintiff thus has established that mandamus is the proper method of raising his legal challenge to Duggan’s candidacy. See, generally, Sullivan v Secretary of State,
The circuit court accepted plaintiffs challenges to Duggan’s candidacy, thus, plaintiff established his entitlement to a writ of mandamus. Upon review, if we in turn likewise determine that Duggan did not meet the qualifications to be a candidate for elected office under the charter, plaintiff would have a clear legal right to have Duggan’s name removed from the list of candidates, the Election Commission would have a clear legal duty to remove Duggan’s name, the act would be ministerial because it would not require the exercise of judgment or discretion, and plaintiff would have no other legal or equitable remedy. See Citizens Protecting Michigan’s Constitution v Secretary of State,
C. CHARTER LANGUAGE
Michigan statutory law provides that a city’s charter governs qualifications for persons running for office, MCL 168.321(1).
To support his position, Duggan argues that the phrase “at the time of filing for office” in § 2-101 is ambiguous. When reviewing the provisions of a home rule city charter, we apply the same rules that we apply to the construction of statutes. Detroit v Walker,
Alternately, when we “interpret” a statute, the primary goal must be to ascertain and give effect to the drafter’s intent, and the judiciary should presume that the drafter intended a statute to have the meaning that it clearly expresses. Klooster v City of Charlevoix,
At issue here is the phrase “at the time of filing for office.” Notably, the charter employed the term “the,” rather than the term “a,” to modify the noun “time.” As explained by our Supreme Court, the terms “the” and “a” have distinct functions:
“The” and “a” have different meanings. “The” is defined as “definite article. 1. (used, esp. before a noun, with a specifying or particularizing effect, as opposed to the indefinite or generalizing force of the indefinite article a or an)....” Random House Webster’s College Dictionary, p 1382. [Massey v Mandell,462 Mich 375 , 382 n 5;614 NW2d 70 (2000).]
Where the Legislature wishes to refer to a particular item, not a general item, it uses the word “the,” rather than “a” or “an.” See Johnson v Detroit Edison Co,
Duggan argues, however, that the phrase could be interpreted as referring to the deadline for filing nominating petitions. The difficulty with that argument is the actual language of the charter, which does not contain the term deadline. To accept Duggan’s argument would require this Court to add the word “deadline” to the charter, but we must instead adhere to our limited constitutional role and refrain from adding language that the drafters neither
The “substantial compliance” doctrine as enunciated in Meridian Charter Twp v East Lansing,
We reject the notion that a plain reading of the charter language leads to an absurd result. Under the absurd-results rule, “a statute should be construed to avoid absurd results that are manifestly inconsistent with legislative intent. . ..” Detroit Int'l Bridge Co v Commodities Export Co,
Duggan also raises charter provision § 3-111, “Residency Requirement for Elective Officers,” which requires that candidates must have resided in the city for one year at the time of filing:
1. Elected Officials Generally.
All candidates for elective office and elected officials shall be bona fide residentsof the City of Detroit and must maintain their principal residence in the City of Detroit for one (1) year at the time of filing for office or appointment to office, and throughout their tenure in office.
This residency provision of the charter is not disposi-tive to our analysis or conclusion, though we note that it reinforces the plain language of 2-101 that a candidate be a Detroit resident for one year at the time of filing for office.
For the reasons expressed, the plain and unambiguous language of the charter requires a candidate to be a registered voter of Detroit one year prior to filing for office. As noted, it is undisputed that Duggan was not. Hence, unless there is some independent impediment to enforcing this charter provision against Duggan, he is ineligible to be placed on the ballot for mayor in the August 2013 primary.
D. CONSTITUTIONAL ISSUES
Duggan argues that the durational voter registration requirement of the charter provision violates his equal protection rights under our state Constitution. Const 1963, art 1, § 2. However, the Equal Protection Clauses of the United States and Michigan Constitutions are coextensive. Harvey v Michigan,
At the outset, we observe that the United States Supreme Court has noted that it has “expressly disclaimed” the idea that states cannot impose durational residency requirements. Sosna v Iowa,
In undertaking constitutional analysis, we are mindful—as was the circuit court—that legislation challenged on equal protection grounds is presumed constitutional and the challenger has the burden to rebut that presumption. Boulton v Fenton Twp,
When evaluating an equal protection challenge to a provision, courts apply one of three traditional levels of review.
The most heightened review, strict scrutiny, applies when the provision interferes with a fundamental right or classifies based on factors that are suspect, such as race, national origin, or ethnicity. Rose v Stokely,
In Grano we held that strict scrutiny applied to an equal protection challenge to a two-year durational residency requirement. The decision to employ strict scrutiny was largely premised upon federal caselaw, in particular Green v McKeon, 468 F2d 883 (CA 6, 1972). We are not bound by Grano, a pre-1990 decision, and we conclude it improperly employed the strict scrutiny standard of review.
Caselaw since Grano compels a conclusion that strict scrutiny does not apply to this case.
We find that the charter provision will have a minor effect, if any, on intrastate travel, as it applies only to individuals who wish to run for elected office as described in charter § 2-105(A)(13). It does not prohibit anyone from moving into or out of Detroit, and was not designed to discourage intrastate travel. Rather, according to the charter’s commentary to § 2-101, it was meant to “make[] it more likely that elected officials will be intimately familiar with the unique issues impacting their communities.” We also consider that “the benefit denied is not itself a fundamental right (such as voting) nor a basic necessity of life (such as welfare benefits for the poor)...Bell, 660 F2d at 169. The charter provision thus does not “penalize” the exercise of the right to travel, it merely places an insignificant impediment to running for office once moving into the city. The charter provision does not sufficiently infringe upon the right to travel such that strict scrutiny must be applied. See Mem Hosp v Maricopa Co,
We now turn to the governmental interests asserted in support. Aside from the language in the charter commentary, we consider that durational residency requirements serve three principal state interests: “ ‘first, to ensure that the candidate is familiar with his constituency; second, to ensure that the voters have been thoroughly exposed to the candidate; and third, to prevent political carpetbagging[.]’ ” Lewis v Guadagno,
(1) the interest in exposing candidates to the scrutiny of the electorate, so voters may make informed choices; (2) the interest in protecting the community from outsiders who are interested only in their own selfish ends and not seriously committed to the community; and (3) the interest in having officeholders who are familiar with the problems, interests,and feelings of the community. [Joseph, 510 F Supp at 1336 .]
These justifications—which were in part cited by the city in establishing the provision—support the charter’s requirement that candidates must be registered voters for one year when filing for office. We further observe that the people of Detroit recently considered the dura-tional residency requirement when adopting the latest version of the charter in the November 2011 election and chose to include it.
The substantial interest of the city in prescribing candidate eligibility requirements also weighs in favor of the charter provision. The United States Supreme Court indicated that the interests of the state of Texas in a durational residency requirement for elected officials were sufficient to warrant the “de minimis” interference with the individual’s interests in candidacy. Clements v Fashing,
III. CONCLUSION
We hold that Duggan has not met the qualifications for inclusion of his name of the ballot by the plain terms contained in the charter. We also hold that the dura-tional residency requirement neither implicates, nor violates, the constitutionally based right to travel. Consequently, because
Affirmed. This opinion is given immediate effect pursuant to MCR 7.215(F)(2).
No costs, a public question being involved. MCR 7.219(A). We do not retain jurisdiction.
TALBOT, J., concurred with MURRAY, J.
Notes
MCL 168.323 provides, in relevant part, that “[i]t shall be the duty of the board of city election commissioners to prepare the primary ballots to be used by the electors.”
In pertinent part, MCL 168.719 provides that “[t]he election commission of each city, township and village shall perform such duties relative to the preparation, printing and delivery of ballots as are required by law of the boards of election commissioners of counties.”
See also Rhode v Dep’t of Corrections,
MCL 168.321(l)provides: “Except as provided in subsection (3) and sections 327, 641, 642, and 644g, the qualifications, nomination, election, appointment, term of office, and removal from office of a city officer shall he in accordance with the charter provisions governing the city.”
In other contexts this Court has held that an individual becomes a candidate on the date he or she files for election to office. Okros v Myslakowski,
Duggan also discusses, in passing, infringement on the right to vote and the First Amendment rights of freedom of speech and association. However, he merely mentions those rights in a single footnote. Appellants may not give cursory treatment to issues, VanderWerp v Plainfield Charter Twp,
Those standards include strict scrutiny, intermediate scrutiny, and rational basis. To pass intermediate scrutiny, a law must be substantially related to an important governmental interest. Clark v Jeter,
Under MCR 7.215(J)(1), panels must follow this Court’s published decisions issued on or after November 1, 1990.
Additionally, Green relied on Dunn for its conclusion that the right to travel was penalized, but Dunn involved the right to travel of the voting populace, not a perspective candidate’s right to travel, and, as we have observed, there is no constitutional right to candidacy. The difference between what was involved in Dunn and what was involved in Green is constitutionally significant.
Our decision to question and not follow Grano’s use of a strict scrutiny test under these circumstances does not require prospective application. Court decisions are almost always applied retroactively. In re Hill,
Note that there is no fundamental right to candidacy. Bullock,
Interstate travel is not involved in this case.
This conclusion finds support from the United States Supreme Court, which specifically stated that “insignificant interference” with ballot access need have only a rational predicate to survive an equal protection challenge. Clements v Fashing,
We offer a couple of points to the dissent. First, we do not doubt that there is a right to travel protected by the state Constitution, as was declared in Musto. But, that does not automatically result in a strict scrutiny analysis, as the question to answer is whether the charter penalizes Duggan from exercising a fundamental right, and seeking public office is not one. See Hankins v Hawaii,
No durational residency requirement was contained in the 1997 Detroit City Charter.
MCL 168.737a(l) provides, in pertinent part: “The write-in candidate shall file the declaration of intent to be a write-in candidate with the filing official for that elective office on or before 4 p.m. on the second Friday immediately before the election.” Section 3-106 of the charter allows for state law to apply to the filing for office by candidates except as otherwise provided in the charter. Thus, the voters remain free to “cast their votes effectively.” Williams v Rhodes,
The Hankins court concluded: “The fact that, under the Constitution of the State of Hawaii, an individual must set aside his plans to become Governor for five years after moving to the State cannot seriously he said to constrict the freedom of interstate travel. This court finds that the relationship between the requirement at issue and the right to travel is “ ‘too attenuated to warrant invocation of the strict standard of scrutiny.’ ” Id. at 1555-1556 (citation omitted). The same is true in this case.
We thus decline to adopt a more stringent standard than that adopted by the United States Supreme Court.
Concurrence in Part
(concurring in part and dissenting in part). I concur with the majority in all respects with regard to Duggan’s nonconstitutional arguments. I write separately to respectfully dissent from the majority’s conclusion regarding the constitutionality of the Detroit City Charter’s durational residency requirements.
The right to travel from state to state and from county to county is a fundamental right. Gilson v Dep’t of Treasury,
The constitutional guarantee of equal protection mandates that persons in similar circumstances be treated alike. In order to perform an equal protection analysis, we must first determine which constitutional test applies, strict scrutiny or the rational basis test. Because the right to interstate travel is a fundamental right, we will review a statute that penalizes the right to travel under the strict scrutiny test.... [Gilson,215 Mich App at 49-50 (citations omitted).]
Generally speaking, if a law or regulation is determined to be subject to strict scrutiny, “the government bears the burden of establishing that the classification drawn is narrowly tailored to serve a compelling governmental interest.” Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp,
This Court has held in the past that durational residency requirements infringe on the right to travel and are therefore subject to strict scrutiny. In Grano v Ortisi,
In Grano,
Detroit Police Department be residents of the city for 60 days before applying was subject to strict scrutiny under the Equal Protection Clauses of both the Michigan and the United States Constitutions, because the requirement classified applicants on the basis of their exercise of the right to travel. Grace,
Grano and Musto are not unique. Any number of federal courts have reached the same conclusion—that durational residency requirements infringe on the right to travel and are therefore subject to strict scrutiny. See, e.g., Westenfelder v Ferguson,
On the basis of Grano and Musto alone, I would conclude that §§ 2-101 and 3-111 of the Detroit City Charter are subject to strict scrutiny, rather than some lower standard of constitutional review. First, although I acknowledge that these cases predate November 1, 1990, and we are therefore not bound by them, MCR 7.215(J)(1), these cases have also never been overruled. I would not conclude that merely because these cases are old they are wrong. Rather, I would conclude that we should follow our prior cases, particularly when no contrary Michigan authority has arisen in the intervening years. Two post-1990 cases, Gilson, 215 Mich App at 50, and People v Ghosh,
Because the challenged provisions of the Detroit City Charter are subject to strict scrutiny, it is defendants’ burden to establish that the provisions are narrowly tailored to serve a compelling governmental interest. Shepherd Montessori Ctr,
Even assuming, arguendo, that familiarity with the community and the issues confronting it is a compelling governmental interest; defendants have not established that the charter’s residency and voter registration requirements are narrowly tailored to serve that interest. Indeed, the governmental interest asserted by defendants in this case is not materially different from the governmental interests asserted in Grano, or in Green, the case upon which Grano heavily relied. As the Grano Court correctly held:
“The [residency] restriction is in no way “tailored” to achieve the stated municipal goal [of ensuring familiarity with the community and the problems facing it]. It permits a two year resident of [the city] to hold public office regardless of his lack of knowledge of the governmental problems of the city. On the other hand, it excludes more recent arrivals who have had experience in local government elsewhere or who have made diligent efforts to become well acquainted with the municipality.” [Grano,86 Mich App at 493 , quoting Green, 468 F2d at 885.]
Similarly, there is no reason to believe that the charter’s durational residency requirements are an effective proxy for community familiarity or knowledge of the problems facing the community. Mere presence in a community is no more indicative of civic consciousness than mere presence at a crime scene is indicative of guilt. A person who has been a long term Detroit resident may be politically disengaged, lacking all knowledge of the community and its problems. By contrast, a politically and socially active resident who has lived in the community for only months may learn and know a great deal about the community and its problems in a short period. The durational residency requirements at issue here would permit the former to seek public office, but prevent the latter from doing so.
For the foregoing reasons I would conclude that the charter’s durational residency requirements are unconstitutional, because they impermissibly classify Duggan and other candidates on the basis of the candidate’s exercise of the fundamental right to travel. I would reverse the trial court’s opinion and order that defendants place Duggan’s name on the ballot.
Duggan has challenged the constitutionality of two portions of the Charter: §§ 2-101 and 3-111.1 recognize that strictly speaking, § 2-101 is a voter registration requirement and not a durational residency requirement. However, in order to vote one must be a resident, and by imposing a one-year voter registration requirement, § 2-101 arguably imposes a de facto durational residency requirement. In any event, it is undisputed that § 3-111 by its express terms imposes a durational residency requirement of one year for prospective candidates for elected city office.
I disagree with the majority that Green is no longer good law upon which we can rely. It has never been reversed or vacated.
Ordinarily, if a party bearing the burden of proof declined altogether to file an appellate brief in this Court, I would conclude on that basis alone that it had failed to meet its burden. However, given the unique circumstances of this case, particularly the expedited manner in which it has arrived at this Court; I am willing to conclude that while this Court would benefit from further briefing from defendants on the strict scrutiny issue we can look to the record below which includes the Detroit City Charter and its commentary.
Language such as this is strongly indicative that the drafters of the Detroit City Charter intended for § 2-101 to serve principally as a residency requirement.
Moreover, even if I were to construe § 2-101 as distinguishing between the imposition of a durational voter registration requirement and a durational residency requirement, I would still conclude that § 2-101 is not narrowly tailored to serve the governmental interest most likely advanced by defendants. Perhaps obviously, being a registered voter is not narrowly tailored to community familiarity and engagement. It does not follow that candidates will be familiar with the community simply because they have registered to vote a year before filing for office.