Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  June 11, 2019                                                                    Bridget M. McCormack,
                                                                                                 Chief Justice

                                                                                        David F. Viviano,
                                                                                        Chief Justice Pro Tem
  159725 & (31)
                                                                                      Stephen J. Markman
                                                                                           Brian K. Zahra
                                                                                     Richard H. Bernstein
                                                                                     Elizabeth T. Clement
  CONNOR BERDY,                                                                      Megan K. Cavanagh,
           Plaintiff-Appellant,                                                                       Justices

  v                                                        SC: 159725
                                                           COA: 349171
                                                           Macomb CC: 2019-001802-AW
  SONJA BUFFA, in her capacity as Elected
  City Clerk and WARREN CITY ELECTION
  COMMISSION,
               Defendants-Appellees,
  and
  FRED MILLER, Macomb County Clerk,
           Defendant.

  _________________________________________/

          On order of the Court, the motion to expedite is GRANTED. The application for
  leave to appeal the June 6, 2019 judgment of the Court of Appeals is considered and,
  pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE the
  judgment of the Court of Appeals. We agree with the dissenting Court of Appeals judge
  that the Warren Charter provides for a single class of city council members, subject to the
  term limits of the greater of three complete terms or 12 years in that office. See Warren
  Charter, §§ 4.3(d) and 4.4(d). We also agree that, because it is not disputed that the
  challenged candidates will have served those maximum terms by the time of the 2019
  election, they are ineligible under the Warren Charter to be certified as candidates for that
  election. Further, we agree with the dissenting judge that plaintiff’s ability to show a
  clear legal right or a clear legal duty for purposes of mandamus does not depend upon the
  difficulty of the legal question presented. See Berry v Garrett, 316 Mich App 37, 41
  (2016) (“ ‘In relation to a request for mandamus, 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.’ ”)
  (emphasis added and citation omitted). See also 55 CJS, Mandamus, § 74, p 107 (“[T]he
  requirement that a duty be clearly defined to warrant issuance of a writ does not rule out
  mandamus actions in situations where the interpretation of the controlling statute is in
                                                                                         2

doubt. As long as the statute, once interpreted, creates a peremptory obligation for the
officer to act, a mandamus action will lie.”).

       We disagree, however, with both the Court of Appeals majority and dissent
regarding the proper interpretation and application of § 4.2 of the Warren Charter, which
provides that “[t]he 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.” The Court of Appeals majority concluded that, under § 4.2, “[n]either the
elections 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.” Berdy v Buffa, ___
Mich App ___, ___ (2019) (Docket No. 349171); slip op at 4. The dissent, by contrast,
concluded that § 4.2 may not have any role to play in light of MCL 168.323, which
places on city election commissioners the duty “to prepare the primary ballots . . . .” Id.
at ___ (TUKEL, P.J., dissenting); slip op at 6 n 3. We believe both of these conclusions
are incorrect.

       City charter provisions of this type are not unusual. See 3 McQuillin, Municipal
Corporations (3d rev ed), § 12:148, p 671 (“Municipal charters and laws applicable
usually confer power upon the council or governing legislative body to judge of the
election and qualifications of its own members, and such laws are generally sustained.”).
These provisions have a long lineage, see Naumann v Bd of City Canvassers of Detroit,
73 Mich 252 (1889), and are based on analogous provisions in the federal and state
constitutions, see US Const, art I, § 5 (“Each House shall be the Judge of the Elections,
Returns and Qualifications of its own Members . . . .”); Const 1963, art 4, § 16 (“Each
house shall be the sole judge of the qualifications, elections and returns of its members,
and may, with the concurrence of two-thirds of all the members elected thereto and
serving therein, expel a member.”).

        Our Court has opined in the past about the policies undergirding municipal charter
provisions similar to the one at issue here. In Naumann, 73 Mich at 253-254, we stated
as follows:

             It has been very common in this State, for obvious reasons, to
      prevent delay and litigation, to vest in the legislative boards of municipal
      corporations the same power of determining the claims of persons to belong
      to them that is vested in Congress and the State Legislature. It is always
      important to have as little delay and confusion as possible in the
      organization of such bodies, which directly represent the people, and are
      assumed to have as correct a sense of official duty as any other
      representative bodies. Public policy does not favor needless disturbances in
      the tenure of office, and the practice referred to has commended itself
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       generally, and is probably as little liable to error as any other popular
       administrative machinery.[1]

        Accordingly, Michigan courts have regularly given effect to such provisions,
declining to second-guess a determination made by such a legislative body. See, e.g.,
McLeod v State Bd of Canvassers, 304 Mich 120, 129 (1942) (recognizing “the rule of
law that where constitutional or statutory provisions make a legislative body the sole
judge of the election and qualifications of its own members, the final decision rests in
such body, and courts cannot interfere”); Crossman v Hanson, 4 Mich App 98, 102
(1966) (“[T]he council, by refusing to take affirmative action on the eligibility and
qualifications of [the intervening defendant] has, by this very refusal, acted. It is well
settled that a duty can be performed by a determination to take no action and that such a
determination is not subject to review.”); Houston v McKinlay, 4 Mich App 94, 97 (1966)
(“In the instant case, the city charter gives the power to determine these qualifications to
the council. In such a situation, quo warranto will not issue.”).2

       Importantly, however, Michigan courts applying either Const 1963, art 4, § 16, or
an equivalent municipal charter provision, have consistently done so in the context of a
post-election challenge to the results of an election. In addition to the cases cited above,
every other case we have found (and that the parties have directed us to) applying such a
provision has done so in the context of a challenge to the results of an election. See, e.g.,
People ex rel Cooley v Fitzgerald, 41 Mich 2 (1879); Cooley v Ashley, 43 Mich 458, 458
(1880); Alter v Simpson, 46 Mich 138, 139 (1881); Auditor General v Bd of Supervisors
of Menominee Co, 89 Mich 552, 567 (1891); Belknap v Bd of Canvassers of Ionia Co, 94
Mich 516, 516-517 (1893); Attorney General ex rel Beers v Bd of Canvassers of Seventh
Senatorial Dist, 155 Mich 44, 45 (1908); Sinclair v Common Council of City of Grand
Rapids, 181 Mich 186, 187 (1914).




1
  The provision at issue in that case, contained in the Detroit Charter, provided that “ ‘the
board of aldermen shall be the judges of the election and qualifications of its own
members, and shall have the power to determine contested elections to said board.’ ” Id.
at 254.
2
  We note that § 4.2 of the Warren Charter is arguably distinguishable from the
provisions discussed in the above cases because § 4.2 expressly provides for judicial
review of determinations made by the Warren City Council. See Warren Charter, § 4.2
(“The 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.”)
(emphasis added). We offer no opinion on the effect of such language on a post-election
challenge, since that issue is not before us.
                                                                                           4

        This makes sense—by their plain language, these provisions grant a legislative
body the authority to review the election and qualifications “of its members.”3 See
Warren Charter, § 4.2 (“The council shall be the judge of the election and qualifications
of its members . . . .”) (emphasis added); Const 1963, art 4, § 16 (“Each house shall be the
sole judge of the qualifications, elections and returns of its members . . . .”) (emphasis
added). Until an election is actually completed, and a winner announced, a challenged
individual is merely a candidate, rather than a member, of a legislative body. See
Webster’s New Collegiate Dictionary (1974) (defining “candidate” as “one that aspires to
or is nominated or qualified for an office, membership, or award” and “member” as “one
of the individuals composing a group”). A mere candidate would have no grounds for
claiming membership within a legislative body before an election has occurred. Cf.
Barry v United States ex rel Cunningham, 279 US 597, 614 (1929) (“It is enough to say
of this, that upon the face of the returns he had been elected and had received a certificate
from the Governor of the state to that effect. Upon these returns and with this certificate,
he presented himself to the Senate, claiming all the rights of membership. Thereby the
jurisdiction of the Senate to determine the rightfulness of the claim was invoked and its
power to adjudicate such right immediately attached by virtue of § 5 of Article I of the
Constitution.”) (emphasis added).

       Accordingly, it is no surprise that, as demonstrated above, our caselaw has
consistently applied such provisions in the context of a challenged election result.
Moreover, our understanding is consistent with the purposes of such provisions, which,
as mentioned, are “to have as little delay and confusion as possible in the organization of
such bodies” and to avoid “needless disturbances in the tenure of office . . . .” Naumann,
73 Mich at 254. In the context of a post-election contest, these concerns make sense, as
judicial review of an election leaves the legislative body in limbo. However, in the
context of a pre-election challenge, judicial review can have the opposite effect, avoiding
post-election challenges to an official who was ineligible to have his or her name
included on the ballot in the first place. We conclude, therefore, that § 4.2 does not apply
to a pre-election challenge. As a result, plaintiff was not required under § 4.2 to present
his challenge to the Warren City Council.




3
  When interpreting charter provisions we apply the same principles applicable to other
legal texts. See Barrow v City of Detroit Election Comm, 305 Mich App 649, 663 (2014)
(“When reviewing the provisions of a home rule city charter, we apply the same rules that
we apply to the construction of statutes. The provisions are to be read in context, with
the plain and ordinary meaning given to every word. Judicial construction is not
permitted when the language is clear and unambiguous. Courts apply unambiguous
statutes as written.”) (quotation marks and citation omitted).
                                                                                                               5


       For the reasons articulated by the Court of Appeals dissent, we conclude that the
city elections commission had a clear legal duty to perform the ministerial act of
removing the names of the challenged contestants from the ballots. See Barrow v City of
Detroit Election Comm, 301 Mich App 404, 412-413 (2013). Accordingly, we
REINSTATE the Macomb Circuit Court’s ruling, which correctly granted the requested
mandamus relief.

       MARKMAN, J. (concurring).

       I concur in the result reached by the majority-- that the judgment of the Court of
Appeals be reversed and the Macomb Circuit Court’s grant of plaintiff’s requested
mandamus relief be reinstated. But as observed by the Court of Appeals dissent, I
believe it is only necessary that this Court address the issue of relief in the pre-election
context because the proposition that “the Charter makes the council the sole and
exclusive judge of the qualifications of its members, is inapplicable” in the present pre-
election context. Berdy v Buffa, ___ Mich App ___, ___ (2019) (Docket No. 349171)
(TUKEL, P.J., dissenting); slip op at 6 n 3. Furthermore, I am in agreement with the
analysis of the Court of Appeals dissent that plaintiff is entitled to mandamus relief, in
particular its analysis that the Warren Charter provides for a single class of city council
members subject to the term limits of three terms in office or a total of 12 years’ service.
And it is not disputed that the challenged candidates here will have served those limits by
the time of the 2019 election and thus are ineligible under the Warren Charter, §§ 4.3(d)
and 4.4 (d).

       ZAHRA, J., joins the statement of MARKMAN, J.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         June 11, 2019
       s0611
                                                                             Clerk
