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




                           STATE OF MICHIGAN

                           COURT OF APPEALS



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

v                                                                 No. 349171
                                                                  Macomb Circuit Court
SONYA BURDA, in her capacity as Elected City                      LC No. 2019-001802-AW
Clerk, and WARREN CITY ELECTION
COMMISSION,

              Defendants-Appellants.
and

FRED MILLER, Macomb County Clerk,

              Defendant.



Before: TUKEL, P.J., and CAVANAGH and GLEICHER, 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 the 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 candidates1


1
 Those candidates were incumbent city council members Cecil St. Pierre, Scott Stevens, Steve
Warner, and Robert Boccomino.



                                              -1-
were term-limited under §§ 4.3(d) and 4.4(d) of the Warren City Charter. Plaintiff’s argument
relied upon 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 “bicameral” legislature of two separate and distinct legislative groups: district city
council members and at-large city council 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 mayor pro tem. The city attorney noted that the language of § 4.4(d) referred to
three terms or 12 years “in that particular office.” Since “at-large city council members and
district city council 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.

        The city attorney’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 legal 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 Appeals,
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 barred 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 defendants 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 excluded from the primary ballot on the basis of the term
limitations contained in §§ 4.3 and 4.4 of the city charter, 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 clear 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 moved 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.




                                                 -2-
                                                  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 duty present questions of
law to be reviewed de novo by this Court. Id.

        Plaintiff 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 showings, 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 the 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 bicameral
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 abilities to serve 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 was not clearly wrong. Accordingly, plaintiff has not shown a clear legal right to
have the four incumbents’ 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


                                                 -3-
       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
Elections Commission purely 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 gives those commissions the power to assess
whether a candidate is ineligible 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 canvassers.

        Section 4.2 of the Warren City Charter 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 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. The city charter gives that power solely to the city council, subject to state election
law and review by the courts. Where 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 final 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). Since 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 persons 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 determined 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 Mayor) 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. The 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.


                                                -4-
        Additionally, plaintiff 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 adequate 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
defendants 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 pursuant 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 recognition 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 candidates 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 duty abound, as here.


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