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Tom BARROW, Plaintiff–Appellee, v. CITY OF DETROIT ELECTION COMMISSION and Detroit City Clerk Janice Winfrey, Defendants, Michael Duggan and Michael Duggan for Mayor Committee, Intervening Defendants–Appellants.
Intervening defendants-appellants Michael Duggan and Michael Duggan for Mayor appeal as of right an order granting declaratory relief in plaintiff's complaint for mandamus, declaring that Duggan was ineligible to be a candidate for the position of Mayor of Detroit, and directing that defendants remove his name from the list of eligible names to run in the August 2013 primary election for mayor. We affirm.
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 residency requirements set forth in the Detroit City Charter to be placed on the ballot. At issue was Detroit City Charter § 2–101, “Qualifications for Elective Officers and Appointive Officers,” which provides in pertinent part:
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 through 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 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 168.3231 and MCL 168.719.2 On May 23, 2013, a divided Commission decided that Duggan fulfilled the charter requirements to file for office. Voting to certify were Winfrey and Keelean, apparently on the basis that Duggan was qualified because he had been a registered voter in Detroit before the filing deadline applicable to all candidates. Pugh dissented.
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 where Duggan had not been a registered voter in Detroit for one year at the time he filed his petitions to run as 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.
The city asserted that the circuit court should give deference to the Detroit Election Commission's interpretation of the charter. The city averred that Michigan case law was inconclusive regarding residency requirements for candidates. Finally, the city 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 terms, opined that the phrase “at the time of filing for office” meant the “specific point in time when the candidate has delivered his or her non-partisan nomination petitions and affidavit of identity to the City Clerk.” The court ruled that defendants had a clear legal duty to determine whether Duggan met the qualifications for elective office on April 2, 2013, the date he filed his nominating petitions, not the date of the filing deadline.
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 case law and observed that rarely has a one-year residency requirement been struck down. The court ruled that the one-year charter 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 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 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 candidacy 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 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.
A. STANDARD OF REVIEW
The issues presented are subject to de novo review. Courts review questions of law under a de novo standard. Loweke v. Ann Arbor Ceiling & Partition Co., LLC, 489 Mich. 157, 162; 809 NW2d 553 (2011). Specifically, in a mandamus action this Court reviews de novo as questions of law whether a defendant has a clear legal duty to perform and whether a plaintiff has a clear legal right to performance. See In re MCI Telecommunications Complaint, 460 Mich. 396, 443–444; 596 NW2d 164 (1999).3 As in other cases, in a declaratory judgment action this Court reviews de novo a trial court's decision regarding a motion for a summary decision. See Michigan Education Employees Mut. Ins. Co. v. Turow, 242 Mich.App 112, 114; 617 NW2d 725 (2000). The interpretation of a city charter provision is a question of law. In re Storm, 204 Mich.App 323, 325; 514 NW2d 538 (1994), overruled in part on other grounds Detroit Police Officers Ass'n v. City of Detroit, 452 Mich. 339; 551 NW2d 349 (1996). Constitutional issues also receive de novo review. Sidun v. Wayne Co. Treasurer, 481 Mich. 503, 508; 751 NW2d 453 (2008).
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), 293 Mich.App 506, 519; 810 NW2d 95 (2011). The plaintiff must show that (1) the plaintiff has a clear legal right to the performance of the duty sought to be compelled, (2) the defendant has a clear legal duty to perform, (3) the act is ministerial in nature such that it involves no discretion or judgment, and (4) the plaintiff has no other adequate legal or equitable remedy. Vorva v. Plymouth–Canton Community Sch. Dist., 230 Mich.App 651, 655–656; 584 NW2d 743 (1998).
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, 373 Mich. 627; 130 NW2d 392 (1964); Wojcinski v. State Bd. of Canvassers, 347 Mich. 573; 81 NW2d 390 (1957).
The circuit court accepted plaintiff's 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 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 Commission would have a clear legal duty to do, 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, 280 Mich.App 273, 291–292; 755 NW2d 157 (2008), aff'd in result only 482 Mich. 960 (2008). Accordingly, we must consider whether Duggan complied with the charter provisions to establish his qualifications to be among the candidates for mayor.
C. CHARTER LANGUAGE
Michigan statutory law provides that a city's charter governs qualifications for persons running for office, MCL 168.321(1).4 As noted, the Detroit City Charter sets forth qualifications to be a candidate for elective office in § 2–101, which specifies 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 ․” (Emphasis supplied.) Plaintiff argues, and the circuit court determined, that the emphasized language means that a candidate must be a registered voter one year prior to filing his or her papers for office, while defendant argues that the phrase refers to the filing deadline applicable to all candidates.
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 charter, we apply the same rules that we apply to the construction of statutes. Detroit v. Walker, 445 Mich. 682, 691; 520 NW2d 135 (1994). Provisions are to be read in context, with the plain and ordinary meaning given to every word. Driver v. Naini, 490 Mich. 239, 247; 802 NW2d 311 (2011). Judicial construction is not permitted when the language is clear and unambiguous. Id. Courts apply unambiguous statutes as written. Id.
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, 488 Mich. 289, 296; 795 NW2d 578 (2011). This Court determines intent by examining the language used. US Fidelity Ins. & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing), 484 Mich. 1, 13; 773 NW2d 243 (2009).
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 n5; 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., 288 Mich.App 688, 699; 795 NW2d 161 (2010). The charter's use of “the time of filing,” with “the” being a definite article and “time” being a singular noun, contemplates only one time. That time is unquestionably the time a particular candidate files for office. The language of the charter could not be any more clear or unambiguous.5 And, Duggan does not dispute that he filed his nominating petitions on April 2, 2013, which was less than one year from the date he registered to vote.
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 included nor intended. Burise v. City of Pontiac, 282 Mich.App 646, 654; 766 NW2d 311 (2009). We may not assume that the drafters inadvertently made use of one word or phrase instead of another. Detroit v. Redford Twp., 253 Mich. 453, 456; 235 NW 217 (1931).
The “substantial compliance” doctrine as enunciated in Meridian Charter Twp. v. East Lansing, 101 Mich.App 805, 810; 300 NW2d 703 (1980) does not affect our analysis of the charter provision. Under the substantial compliance doctrine, “ ‘[a]s a general principle, all doubts as to technical deficiencies or failure to comply with the exact letter of procedural requirements are resolved in favor of permitting the people to vote and express their will on any proposal subject to election.’ “ Bloomfield Charter Twp. v. Oakland Co. Clerk, 253 Mich.App 1, 21; 654 NW2d 610 (2002), quoting Meridian, 101 Mich.App at 810. However, in Stand Up for Democracy v. Secretary of State, 492 Mich. 588, 594; 822 NW2d 159 (2012), our Supreme Court overruled Bloomfield Charter Twp. In Stand Up, the Court reviewed the certification of petitions under a statute that used the mandatory term “shall.” The Court decided that, where the statute did not, by its plain terms, permit the certification of deficient petitions, the doctrine of substantial compliance did not apply. Here, the charter provision's use of the term “must,” like the term “shall,” denotes that the conditions following it are mandatory. See In re Estate of Kostin, 278 Mich.App 47, 57; 748 NW2d 583 (2008). There is also no language within the charter provision at issue that allows for substantial compliance with the time period. We therefore are precluded from applying the doctrine of substantial compliance in this matter.
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 the legislative intent․” Detroit Int'l Bridge Co. v. Commodities Export Co., 279 Mich.App 662, 674; 760 NW2d 565 (2008). Our Supreme Court, however, has commented that the absurd results “rule” of construction typically is merely “ ‘an invitation to judicial lawmaking.’ “ Twp. of Casco v. Secretary of State, 472 Mich. 566, 603; 701 NW2d 102 (2005) (Young, J, concurring in part) (citation omitted). The Court added that its role was not to rewrite the law to obtain a more “logical” or “palatable” result, but instead was to give effect to the Legislature's intent by enforcing the provision as it was written. Id. Enforcing the charter provision as it was drafted does not end in an absurd result. Rather, it is the logical outcome expected from application of the clear, straightforward charter language, and is much like enforcing a statute of limitation when a party has missed the statutory deadline by ten days. It is done not infrequently in Michigan courts because there is no “wiggle room” when applying a clear and definite time period to an undisputed set of facts. Consequently, to be eligible to be placed on the ballot, a candidate must have been a registered voter in Detroit for one year before filing his or her petitions.
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 residents of 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 dispositive 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 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, 469 Mich. 1, 6; 664 NW2d 767 (2003). The right to intra state travel under the Michigan Constitution was abruptly declared in Musto v. Redford Twp., 137 Mich.App 30, 34 n1; 357 NW2d 791 (1984), which cited our State's parallel provision to the United States Constitution: “No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.” Const 1963, art 1, § 2.6
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, 419 U.S. 393, 406; 95 S Ct 553; 42 L.Ed.2d 532 (1974). Indeed, the United States Constitution imposes residency requirements on representatives (seven years), senators (nine years) and Presidents (fourteen years), U.S. Const, art I, § 2, cl 2; art I, § 3, cl 3; and art II, § 1, cl 4. Our own state constitution requires that the governor be “a registered elector in this state for four years.” Const 1963, art 5, § 22. Accordingly, all durational requirements are not unconstitutional, a proposition that was not clear at the time we decided Grano v. Ortisi, 86 Mich.App 482; 272 NW2d 693 (1978).
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., 272 Mich.App 456, 467; 726 NW2d 733 (2006). Courts examine three factors when determining whether a law violates the Equal Protection Clause: “the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.” Dunn v. Blumstein, 405 U.S. 330, 335; 92 S Ct 995; 31 L.Ed.2d 274 (1972).
When evaluating an equal protection challenge to a provision, courts apply one of three traditional levels of review.7 Heidelberg Bldg., LLC v. Dept. of Treasury, 270 Mich.App 12, 18; 714 NW2d 664 (2006). Traditionally, the rational basis test applies where no suspect factors are present or where no fundamental right is implicated. Kyser v. Kasson Twp., 486 Mich. 514, 522 n2; 786 NW2d 543 (2010). Under this test, a statute is constitutional if it furthers a legitimate governmental interest and if the challenged statute is rationally related to achieving that interest. Boulton, 272 Mich.App at 467. Thus, restrictions are set aside only if they are based on reasons unrelated to the State's goals and no grounds can be conceived to justify them.
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. Stokley, 258 Mich.App 283, 300; 673 NW2d 413 (2003). Under a strict scrutiny analysis, the government may not infringe upon a fundamental liberty interest unless the infringement is narrowly tailored to serve a compelling state interest. In re B & J, 279 Mich.App 12, 22; 756 NW2d 234 (2008).
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 case law, in particular Green v. Mckeon, 468 F.2d 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.8 Green was disavowed by the Sixth Circuit long ago, and is no longer considered controlling precedent, see Biel v. City of Akron, 660 F.2d 166, 169 (CA 6, 1981).9 Additionally, for reasons the Court did not explain, Grano chose not to follow the two decisions issued by the United States Supreme Court summarily affirming durational residency requirements, Chimento v. Stark, 353 F Supp 1211 (D NH 1973), aff'd 414 U.S. 802; 94 S Ct 125; 38 L.Ed.2d 39 (1973) and Sununu v. Stark, 383 F Supp 1287 (D NH 1974); aff ‘d 420 U.S. 958; 95 S Ct 1346; 43 L.Ed.2d 435 (1975). Yet it was in large part those Supreme Court decisions, along with Bullock v. Carter, 405 U.S. 134; 92 S Ct 849; 31 L.Ed.2d 92 (1972), that the federal courts took as signifying a change in the legal landscape for these durational residing challenges. See, e.g., Biel, 660 F.2d at 168–169; Joseph v. Birmingham, 510 F Supp 1319, 1329–1330 (ED Mich, 1981); In re Contest of November 8, 2011 General Election, 210 NJ 29, 53; 40 A3d 684 (2012). For those reasons, we do not follow Grano. Duggan also relies on Musto v. Redford Twp., 137 Mich.App 30, 34; 357 NW2d 791 (1984), but that case is distinguishable where it did not involve a durational residency requirement for candidates for elective office.
Case law since Grano compels a conclusion that strict scrutiny does not apply to this case.10 Notably, questions related to ballot access restrictions do not automatically require “heightened” equal protection scrutiny. Erard v. Johnson, 905 F Supp 2d 782, 798 (ED Mich.2012). Residency is also not one of the suspect classifications, Crego v. Coleman, 463 Mich. 248, 259; 615 NW2d 218 (2000), so our review is confined to whether the charter provision impedes a fundamental right.11 With regard to the character of the classification and the individual interests affected, the alleged right to travel infringement in this case relates to Duggan's move from Livonia to Detroit.12 A state law implicates the right to travel when it actually deters travel, when impeding travel is its primary objective, or when it uses a classification that serves to penalize the exercise of the right. Attorney General of New York v. Soto–Lopez, 476 U.S. 898, 903; 106 S Ct 2317; 90 L.Ed.2d 899 (1986).
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 provision 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) and not a basic necessity of life (such as welfare benefits for the poor).” Biel, 660 F.2d 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 Memorial Hospital v. Maricopa County, 415 U.S. 250, 256–262; 94 S Ct 1076, 39 L.Ed.2d 306 (1974) (considering the right to travel in the context of “vital” government benefits).
Accordingly, the compelling state interest test is inappropriate here. See In re Contest of November 8, 2011 General Election, 210 NJ at 53 (“Since the Supreme Court's decision in Bullock, there has been a general consensus that strict scrutiny should not apply to requirements that candidates live in a district or municipality for a particular duration.”). Indeed, since Bullock “courts that have applied strict scrutiny to durational residency requirements have done so only when those requirements imposed a burden on the right to interstate travel and have based the strict scrutiny analysis on that interference, not on the requirement's asserted interference with the right to run for office .” Id., at 54. As such, strict scrutiny does not apply and we must apply either intermediate or rational basis review to the durational voter registration requirement.13 In the end, however, it does not matter which is utilized, for under intermediate scrutiny (and thus rational basis as well) the charter provision survives constitutional scrutiny. See Biel, 660 F.2d at 169 (upholding one year durational provision under intermediate scrutiny); Joseph, 510 F Supp at 1333 (upholding one year durational provision under rational basis); In re Contest of November 8, 2011 General Election, 210 NJ at 53 (collecting cases and upholding a one-year provision under intermediate scrutiny).14
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 carpet bagging.” Lewis v. Guadagno, 837 F Supp 2d 404, 414 (D NJ 2011) (citation omitted). Stated differently, the significant governmental interests include:
(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 v. City of Birmingham, 510 F Supp at 1336 (footnotes omitted) ].
That these justifications—which were in part cited by the city in establishing the provision—support the charter 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 residency requirement when adopting the latest version of the charter in the November of 2011 election and chose to include it.15 The interests of the people in adopting the charter must be balanced with the interest of voters to have their choice of candidates. In this instance, the former need not give way to the latter where Duggan asserts that he may be a write-in candidate under state law, citing MCL 168.737a,16 and there is no constitutional right to vote for an individual who did not meet the eligibility requirements to run for office. Indeed, voters have the right to expect that the candidates appearing on ballot have met the requirements set by the citizens in the charter.
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 requirement for elected officials were sufficient to warrant the “de minimis” interference with the individual's interests in candidacy. Clements, 457 U.S. at 971. The charter does not require a citizen to “choose between travel and the basic right to vote,” see Dunn, 405 U.S. at 342, because no analogous basic right to candidacy exists. Therefore, although Duggan is “penalized” in that he may not run for mayor for a year after registering to vote, his right to travel was not and his candidacy is not a fundamental right.17 See Hankins v. State of Hawaii, 639 F Supp 1552, 1555 (D Hawaii 1986). Duggan points to no specific text in the parallel provisions of the Michigan Constitution to warrant a different result than in the federal cases.18 He has not provided sufficient justification for this Court's intrusion into the charter adopted by the people of Detroit.
We hold that Duggan has not met the qualifications for elected office by the plain terms contained in the charter. We also hold that the durational residency requirement neither implicates, nor violates, the constitutionally based right to travel. Consequently, where Duggan has failed to meet the charter requirements for elective office, his name may not appear on the ballot. Plaintiff thus has a clear legal right to have Duggan's name removed from the list of candidates and the Commission has a clear legal duty to perform this ministerial act.
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.
I concur with the majority in all respects with regard to Duggan's non-constitutional arguments. I write separately to respectfully dissent from the majority's conclusion regarding the constitutionality of the Detroit City Charter provision's residency requirements.1 Consistent with both Michigan and federal case law, on the record that currently exists, I conclude that the residency requirements are unconstitutional. Accordingly, I would reverse the trial court and order that Duggan's name be placed back on the ballot.
The right to travel from state to state and from county to county is a fundamental right. Gilson v. Dept of Treasury, 215 Mich.App 43, 50; 544 NW2d 673 (1996) (interstate travel); Grace v. City of Detroit, 760 F Supp 646, 651 (ED Mich.1991) (intrastate travel). It is well-established that classifications which are based upon the exercise of a fundamental right offend the equal protection clauses of both the federal and Michigan constitutions, Const 1963, art 1 § 2, U.S. Const, Am XIV. See Doe v. Dept. of Soc Services, 439 Mich. 650, 662; 487 NW2d 166, 171 (1992). See also Plyler v. Doe, 457 U.S. 202, 216–217, 102 S Ct 2382, 2394–2395, 72 L.Ed.2d 786 (1982). The case cited by the majority to support their assertion that the Michigan equal protection standard is coextensive with the federal equal protection clause, Harvey v. Michigan, 469 Mich. 1, 6; 664 NW2d 767 (2003), expressly adopted the strict scrutiny analytical framework for cases involving any suspect class or fundamental right. This Court has held that:
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 v. Dept of Treasury, 215 Mich.App 43, 49–50; 544 NW2d 673 (1996) (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 Tp., 486 Mich. 311, 319; 783 NW2d 695 (2010); Gilson, 215 Mich.App at 50.
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, 86 Mich.App 482, 495; 272 NW2d 693 (1978), a case strikingly similar to the one at bar, this court rejected durational residency requirements for candidates seeking elected office. Durational residency requirements for applicants for non-elected public sector employment were rebuffed in Musto v. Redford Tp., 137 Mich.App 30, 34; 357 NW2d 791 (1984). No distinction has been made between inter and intra state travel.
In Grano, 86 Mich.App at 495, this Court concluded that a city's two-year residency requirement for candidates for municipal judgeships “substantially affect[s] the fundamental right of free travel ․ thus requiring [the government] to demonstrate that the provision serves a compelling state interest.” The Grano court noted that durational residency requirements had been declared unconstitutional as they related to candidates for mayor in Pontiac, Alexander v. Kammer, 363 F Supp 324, 327 (ED Mich, 1973), and Warren, Bolankowski v. Raich, 330 F Supp 724, 731 (ED Mich, 1971). The Grano Court relied heavily on Green v. McKeon, 468 F.2d 883, 885 (CA 6, 1972).2 In Green, the Sixth Circuit United States Court of Appeals concluded that a two-year residency requirement in the City of Plymouth's charter was subject to strict scrutiny, and that the residency requirement was not narrowly tailored to a compelling government interest. Id. The Grano Court similarly determined that the city's justification for the municipal judgeship requirement, “to insure that candidates are knowledgeable about local procedures and laws and known to the electorate,” was not compelling, and that even if it were, the flat durational requirement was not narrowly tailored to effectuate that interest. Id. Similarly, in Musto, 137 Mich.App at 34, this Court relied on Grano to conclude that a state statute which imposed a requirement that applicants for local police and fire departments be residents of the locality for one year prior to their applications was subject to strict scrutiny because it imposed “a penalty on the exercise of [the right to travel].” Similarly, in 1991, the United States District Court, relying not only on Grano and Musto, but on a number of federal right to travel cases, concluded that a municipal requirement that applicants to the Detroit Police Department be residents of the city for sixty days prior to applying was subject to strict scrutiny under the equal protection clauses of both the Michigan and federal constitutions, because the requirement classified applicants on the basis of their exercise of the right to travel. Grace, 760 F Supp at 651.
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, 998 F Supp 146, 151 (D RI, 1998) (residency requirement for welfare benefits); Robertson v. Bartels, 150 F Supp 2d 691, 696 (D NJ, 2001), followed 890 F Supp 2d 519 (2012) (residency requirement for elected office); Walsh v. City & Co. of Honolulu, 423 F Supp 2d 1094, 1101 (D Haw, 2006) (residency requirement for public employment). Although I acknowledge that these cases are not binding on us, because the Michigan and federal equal protection clauses are indeed coextensive, Harvey, 469 Mich. at 6, they are nonetheless persuasive.
On the basis of Grano and Musto alone I would conclude that §§ 2–101 and 3–111 of the 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, 188 Mich. app 545, 547; 470 NW2d 497 (1991), reiterated that the application of strict scrutiny to statutes that impede intra and interstate travel is appropriate. Moreover, I find the rationale of Grano and Musto persuasive. In those cases, the courts found that the very creation of separate classifications of persons based solely on whether they had exercised their right to travel either within a state or between states subjected that decision to strict scrutiny because it implicated a fundamental right. In that regard, there is no principled distinction between the residency requirements at issue in Grano, Musto, or Grace, and the provisions of the Charter at issue in this case. The majority opines that the charter provision has only a minor effect on intrastate travel. In Madonado v. Houstoun, 177 FRD 311, 331 (ED Pa 1997), citing Memorial Hospital v. Maricopa Co., 415 U.S. 250, 256–257; 94 S Ct 1076, 1081; 39 L.Ed.2d 306 (1974) the court rejected a durational requirement that deprived persons of some but not all of the welfare benefits noting that the Supreme Court has never made clear the “amount of impact required to give rise to the compelling state interest test.” Even an unjustified minor impingement on a constitutional right is abhorrent in the law. I concede that in a hierarchy of rights and benefits the right to travel may pale against a liberty interest of an accused or need of the critically ill recipient of governmental health insurance. However, the right to travel inter or intrastate remains one of the fundamental rights under the Michigan constitution and is worthy of protection.
Because the challenged provisions of the Charter are subject to strict scrutiny, it is defendant's burden to establish that the provisions are narrowly tailored to serve a compelling government interest. Shepherd Montessori Ctr. Milan, 486 Mich. 311 at 319. However, defendant has not filed an appellate brief in the instant case.3 I am therefore left to look to the record below to glean what compelling interest the City believes justifies the residency requirements here. Defendant cited the Charter Commentary in its circuit court brief. The commentary to § 2–101 states that “[r]equiring that candidates for elective office reside for a specified period of time in a community they seek to serve makes it more likely that elected officials will be intimately familiar with the unique issues impacting their communities.”4 Similarly, the Commentary to § 3–111 states that the residency requirement “is a significant means of assuring that [candidates] have a demonstrable commitment to the City of Detroit and first-hand familiarity with issues confronting the city.” Defendant relied on both these provisions in the circuit court; accordingly, it is reasonable to conclude that these are the government interests defendant believes justify the requirements. I disagree.
Even assuming, arguendo, that familiarity with the community and the issues confronting it is a compelling government interest; defendant has not established that the Charter's residency and registration requirements are narrowly tailored to serve that interest. Indeed, the government interest asserted by defendant in this case is not materially different from the government interests asserted in Grano, or 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 F 2d at 885.]
Similarly, there is no reason to believe that the Charter's 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 multi-year 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 of time. The residency requirements at issue here would permit the former to seek public office, but prevent the latter from doing so.5 As noted in Grano, 86 Mich.App at 495, “[w]e also have confidence, as expressed in our previous opinions, that the normal process of our elective system will sufficiently insure that only qualified and knowledgeable candidates will gain office.” Accordingly, I conclude that the Charter's residency requirements are not narrowly tailored to serve a compelling government interest.
For the foregoing reasons I would conclude that the Charter's residency requirements are unconstitutional, as 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 back on the ballot.
1. MCL 168.323 provides in relevant part that “[i]t is the duty of the board of city election commissioners to prepare the primary ballots to be used by the electors.”
2. 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.”
3. See also Rhode v. Dep't of Corrections, 227 Mich.App 174, 178; 578 NW2d 320 (1997) (ruling that review of a decision on a writ of mandamus is for an abuse of discretion except where the central issue in the appeal involves statutory interpretation, and that question of law is reviewed de novo).
4. MCL 168.321(1)provides: “(1) 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 be in accordance with the charter provisions governing the city.”
5. 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, 67 Mich.App 397, 401; 241 NW2d 223 (1976), citing City of Grand Rapids v. Harper, 32 Mich.App 324, 329–330; 188 NW2d 668 (1971). This Court more recently adopted that precept in Gallagher v. Keefe, 232 Mich.App 363, 373–374; 591 NW2d 297 (1998), when ruling that the defendant's eligibility for county commissioner was “determined as of the date that the candidate files for election to the office ․“
6. 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., 278 Mich.App 624, 633; 752 NW2d 479 (2008), and by doing so, Duggan has abandoned a constitutional challenge under the First Amendment or the right to vote. Yee v. Shiawassee Co. Bd. of Comm'rs, 251 Mich.App 379, 406; 651 NW2d 756 (2002).
7. 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, 486 U.S. 456, 461; 108 S Ct 1910; 100 L.Ed.2d 465 (1988); Phillips v. Mirac, Inc., 470 Mich. 415, 433; 685 NW2d 174 (2004). In other words, the challenged law must be found reasonably necessary to the accomplishment of the State's legitimate election interests.” Lubin v. Panish, 415 U.S. 709, 718; 94 S Ct 1315; 39 L.Ed.2d 702 (1974).
8. Under MCR 7.215(J)(1), panels must follow this Court's published decisions issued on or after November 1, 1990.
9. 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.
10. Our decision to overrule 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, 221 Mich.App 683, 690; 562 NW2d 254 (1997). Additionally, when they are not-or when cases that are wrongly decided are not reversed-it is typically because of reliance factors that are not at issue here. Joseph v. Auto Club Insurance Assoc., 491 Mich. 200, 219–220; 815 NW2d 412 (2012). For one, the charter provision has never been declared unconstitutional, and thus there could be no reliance that the provision would not be applied. Second, the charter provision is crystal clear, and it is the consistency of enforcing that clear language that reinforces reliance on the laws established by the law-making branches of government. Robinson v. Detroit, 462 Mich. 439, 467–468; 613 NW2d 307 (2000). Third, Duggan relied on the charter provisions when filing for office; he did not make a blanket challenge to the provision's constitutionality.
11. Note that there is no fundamental right to candidacy. Bullock v. Carter, 405 U.S. 134; 92 S Ct 849; 31 L.Ed.2d 92 (1972); Carver v. Dennis, 104 F3d 847, 850–851 (CA 6, 1997).
12. Interstate travel is not involved in this case.
13. 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, 457 U.S. 957, 968; 102 S Ct 2836, 2846; 73 L.Ed.2d 508 (1982) (plurality opinion) (the Court referencing its upholding of a seven-year durational requirement in Chimento v. Stark, 414 U.S. 802; 94 S Ct 125; 38 L.Ed.2d 39 (1973), summarily affirming 353 F Supp 1211 (DNH, 1973)).
14. 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, 639 F Supp 1552, 1555 (D Hawaii, 1986); Carver v. Dennis, 104 F3d at 850–851. Thus, the fact that strict scrutiny was applied in cases like Gilson v. Department of Treasury, 215 Mich.App 43; 544 NW2d 673 (1996), which did not involve a durational provision for public office, does not help an analysis of this case. Second, we are not the only court to conclude that the Green decision, though not reversed, is no longer persuasive or valid precedent on which to rely. See Biel, 660 F.2d at 168 (Sixth Circuit called its own decision in Green “no longer controlling precedent”) and Joseph, 510 F Supp at 1327.
15. No durational residency requirement was contained in the 1997 Detroit City Charter.
16. MCL 168.737a(1) 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, 393 U.S. 23, 31; 89 S Ct 5; 21 L.Ed.2d 24 (1968).
17. 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 be 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.
18. We thus decline to adopt a more stringent standard than that adopted by the United States Supreme Court.
1. Duggan has challenged the constitutionality of two portions of the Charter: §§ 2–101 and 3–111. I recognize that strictly speaking, § 2–101 is a voter registration requirement and not a residency requirement. However, in order to vote one must be a resident, and by imposing a yearlong voter registration requirement, § 2–101 arguably imposes a de facto residency requirement. In any event, it is undisputed that § 3–111 by its express terms imposes a yearlong residency requirement for prospective candidates for elected city office.
2. I disagree with the majority that Green is no longer good law upon which we can rely. It has never been reversed or vacated.
3. 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 defendant on the strict scrutiny issue we can look to the record below which includes the Charter and its Commentary.
4. Language such as this is strongly indicative that the drafters of the Charter intended for § 2–101 to serve principally as a residency requirement.
5. Moreover, even if I were to construe § 2–101 as distinguishing between the imposition of a voting registration requirement and a residency requirement, I would still conclude that § 2–101 is not narrowly tailored to serve the government interest most likely advanced by defendant. 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.
Response sent, thank you
Docket No: Docket No. 316695.
Decided: June 18, 2013
Court: Court of Appeals of Michigan.
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