Plаintiffs appeal by leave a November 2, 1978, circuit court order denying their request for an injunction prohibiting the Oakland County clerk from placing the question of whether they should be recalled from office on the Nоvember 7, 1978, general election ballot.
The petitions in the case at bar stated the reasons for recall as: Incompetence in administering his/her duties as an elected official and in a manner not conducive to the better interests of the residents of the City of South Lyon.
On October 24, 1978, plaintiffs filed suit, alleging, inter alia, that the petitions were legally insufficient as they merely stated general conclusions in contravention of MCL 168.952; MSA 6.1952, which provides that such petitions "shall state clearly the reason or reasons for the recall.” As a result, they contend, they were unable to effectively respond to the charges, and the electorate was uninformed as to the reаsons for the proposed recall.
A show cause hearing was held on November 1, 1978. The following day the trial court ruled that the petitions satisfied the directive of the recall statute and Const 1963, art 2, § 8. By order en
In pertinent part, Const 1908, art 3, § 8 provided:
"Laws shall be passed to preserve the purity of elections and guard against abuses of the elective franchise, and to provide for the recall of all elective officers.”
As noted, MCL 168.952 presently 2 mаndates that the reasons for recall must be clearly stated in the petition.
The statute received its first interpretation in
Newberg v Donnelly,
"It provides that the petition 'shall state clearly the reason or reasons’ for recall. This statement must be such as will furnish information to the electors on which they may form a judgment on some act or failure to act which, in the absence of a sufficient justification, would warrant the recall.”
People, ex rel Elliot v O’Hara,
"Read in connection with the facts of the case, the ruling was that a petition is insufficient which merely charges an officer with doing what he has the legal right and duty to do, and which fails to set up facts, as distinguished from conclusions, showing misconduct. The statute obviously confines the reasons to conduct in relation to the office, as that is the declared character of the officer’s justification. The reasons, then, must state facts which, if true, would show nonfeasance, misfeasance, оr malfeasance in office.
"The evident purpose of requiring a statement of reasons is to insure deliberate action by the electors and to discourage frequent, vexatious, or ambitious elections. The statute is to be construed in harmony with the reserved power of the people to recall their officers rather than with the requirements of charges to remove an officer.
"It is enough that they [reasons for recall] be set up with sufficient particularity to enable the officer and electors to identify the transaction and know the charges made in connection therewith.”
Two later decisions,
Amberg v Welsh,
A change in the law occurred, hоwever, with the Supreme Court’s decision in
Wallace v Tripp,
"The general rule appears to be that absent specific constitutional or statutory requirements, the sufficiency of reasons in a recall petition is for the determination оf the electorate rather than the courts. State, ex rel.Topping, v. Houston, supra [94 Neb 445, 455, 456; 143 NW 796 (1913)]; Laam v. McLaren, 28 Cal App 632 (153 P 985 ); Conn v. City Council of Richmond, 17 Cal App 705 (121 P 714 ).
"See, also,106 ALR 555 , 564; 28 Am Jur. Initiative, Referendum and Recall, § 51 et seq.
"Michigan’s constitution and statute require a clear statement of reasons for recall based upon an act or acts in the course of conduct in office of the officer whose recall is sought. Beyond this, the Constitution reserves the power of recall to the people.
"The basic power is held by the people in both our nation and our State. Our Statе Constitution as presently drawn places much confidence in the proper functioning of an intelligent and informed electorate. The recall provision is illustrative of that confidence. We feel bound tо uphold its provisions against the aberrátion contained in the Newberg Case and subsequently followed in the cases cited.”
This holding was subsequently incorporated into the 1963 Michigan Constitution:
"Laws shall be enacted to provide for the recall of all elective officers * * *. Thе sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question(Emphasis supplied.) Const 1963, art 2, § 8.
In the aftermath of
Wallace,
only one recent decision has dealt with the matter here in issue. In
Woods v Clerk of Saginaw County,
"(1) That Mr. Woods misled the voters in his campaign for Supervisor by failing to disclose his plan for changing the Township Manager form of government without study and without a vote of the electorate; and/ or
"(2) That the township residents should have been аllowed an opportunity to vote on such an essential matter as changing the existing form of Township government and significantly increasing the powers of the Supervisor.”
In upholding the lower court’s ruling that the charges suffered no deficiency, a panel of this Court reasoned as follows:
"The trial court found that the reasons were stated with sufficient clarity 'to enable the officer and electors to identify the transaction аnd know the charges made in connection therewith’, People, ex rel Elliot v O’Hara,246 Mich 312 ;224 NW 384 (1929). We agree.
"Plaintiffs’ argument on appeal is not that he doés not understand the charges against him; but that the charges are not grounds for recall. This is a challenge, not to the сlarity, but to the sufficiency of the reasons for the recall, and is a matter not within the jurisdiction of this or any other court by the express terms of the constitutional provision quoted above.”
Thus, it appears from the foregoing cases that the reasons set forth in a recall petition need no longer constitute allegations of nonfeasance, misfeasance or malfeasance in office, but that the specificity requirements enunciated in
Newberg
and its progeny reinain extant. Indeed, in holding that the sufficiency of the reasons in a récall petition is an electoral rather than a justiciable question,
Wallace, supra,
at 678, 680, reaffirmed the necessity that the reasons, whatever they may be, must be stated with adequate clarity. We áre in accord, and view such a rule as necessary, oh ohe hand, to prevent abuse of the elective franchise by ensuring deliberate and
inforinéd
action
Viewing the petitions in the present case, we are unable to conclude that "administrative incompetence” meets these requirements. Although we do not consider whether it qualifies as a sufficient justification for recall, Wallace, supra, it is equally clear that, under the principles discussed above, it does little tо fulfill the criteria of the recall statute.
However, our holding that the lower court erred in its determination that the petitions satisfied the guidelines of MCL 168.952 only partially resolves the intant disputes, for plaintiffs allege that nоncompliance with the statute renders the recall election invalid. We disagree.
"Ordinarily, provisions of an election law are mandatory if enforcement is sought before election in a direct prоceeding for that purpose; but after an election such provisions are directory only, in support of the result, unless they are of such a character that their violation would effect an obstruction tо the free and intelligent casting of the vote, or to the ascertainment of theresult, or unless they affect an essential element of the election, or it is expressly declared by statute that compliance with them is essential to the validity of the election.” 29 CJS, Elections, § 67. (Footnotes omitted.)
See
Richey v Monroe County Board of Education,
A recall, as distinguished from the power of removal,
4
is a fundamental right reserved to the people by the Constitution,
5
being premised upon the theory that the right of the peoplе to revoke an official commission which they have granted is coextensive with their original power to confer it.
O’Hara, supra,
at 314. Given that the power of recall is so firmly rooted within the discretion of the electorate, we are disinclined, absent any impropriety in the conduct of the election itself, to extinguish an expression of that will through an executed vote of an official’s constituency. As was stated in
O’Hara, supra,
at 315, "[t]he statute [MCL 168.952; MSA 6.1952] is tо be construed in harmony with the reserved power of the people to recall their officers”. In consequence, therefore, we conclude that prior to election, the provisions of the recall statute are mandatory in nature. An aggrieved official may, during that period, petition for prompt, judicial determination of the clarity, but not the sufficiency, of the stated purposes behind the recall. Once an election is held, how
The lower court’s determination that the petitions satisfied the guidelines of thе recall petition is reversed, however, the results of the recall election are upheld. No costs, a public question being involved.
Notes
Plaintiffs John Noel and Louise Anderson were recalled from office during the election in question.
Although the statute was amended in 1976,
MCL 168.955; MSA 6.1955 requires that the petitions must be signed by registered and qualified voters equal to not less than 25 percent of the number of votes cast for governor at the last general election in the district of the officer sought to be removed.
Proceedings for removal are court oriented, whereas those for recall are within the province of the electors.
Amberg v Welsh,
Const 1963, art 2, § 8.