Opinion
No. 357298 No. 357299
06-03-2021
Horace SHEFFIELD III and Rodrick Harbin, Plaintiffs-Appellees, v. DETROIT CITY CLERK and Detroit Election Commission, Defendants, and Detroit Charter Revision Commission, Intervening Defendant-Appellant. Allen A. Lewis and Ingrid D. White, Plaintiffs-Appellees, v. Detroit City Clerk and Detroit Election Commission, Defendants, and Detroit Charter Revision Commission, Intervening Defendant-Appellant.
Honigman, LLP (by Mark A. Burton, Lansing and Andrew M. Pauwels, Detroit) for plaintiffs. Varnum, LLP (by Aaron M. Phelps, Kyle P. Konwinski, Regan A. Gibson, Grand Rapids, and Jailah D. Emerson) and Lamont D. Satchel for the Detroit Charter Revision Commission. Sugar Law Center for Economic & Social Justice (by John C. Philo, Detroit and Tonya Myers Phillips) for legal scholars, Amici Curiae.
Honigman, LLP (by Mark A. Burton, Lansing and Andrew M. Pauwels, Detroit) for plaintiffs.
Varnum, LLP (by Aaron M. Phelps, Kyle P. Konwinski, Regan A. Gibson, Grand Rapids, and Jailah D. Emerson) and Lamont D. Satchel for the Detroit Charter Revision Commission.
Sugar Law Center for Economic & Social Justice (by John C. Philo, Detroit and Tonya Myers Phillips) for legal scholars, Amici Curiae.
Before: Cameron, P.J., and Karen M. Fort Hood and Letica, JJ.
Cameron, P.J. In these consolidated appeals, intervening defendant-appellant, the Detroit Charter Revision Commission, appeals as of right the trial court's opinion and order granting mandamus relief to plaintiffs and compelling defendants, the Detroit City Clerk and the Detroit Election Commission, to remove Proposal P from the ballot for the upcoming primary election. We affirm.
Consideration of this appeal has been expedited pursuant to the Michigan Supreme Court's order of June 1, 2021.
I
In 2018, Detroit voters approved a ballot proposal to create a Charter Review Commission to consider revising the 2012 Detroit City Charter, and they subsequently elected the original nine members of the Detroit Charter Revision Commission (DCRC). The DCRC started meeting in November 2018 and, on March 5, 2021, presented its proposed revised charter to the Governor for review under MCL 117.22. Following an expedited review assisted by the Attorney General, the Governor informed the DCRC in writing on April 30, 2021, that "the current draft has substantial and extensive legal deficiencies" and that given those defects, she did not approve the proposed revised charter. The Governor notified the DCRC of her objections and included the Attorney General review explaining the legal deficiencies in detail. The DCRC made some revisions based on the Governor's objections but did not submit the new draft of the proposed revised charter to the Governor for approval.
On May 6, 2021, the DCRC resolved to submit adoption of the proposed revised charter to the voters designated as Proposal P, which read "Shall the City of Detroit Home Rule Charter proposed by the Detroit Charter Revision Commission be adopted? " The DCRC then submitted Proposal P to the Detroit City Clerk, who twice refused to place it on the ballot because "Section 22 of the HRCA (Home Rule City Act) does not contemplate a path to the ballot for any commission proposed revision that does not have the Governor's approval." Despite that rejection, on May 11, 2021, the deadline for placing Proposal P on the ballot, the Detroit Election Commission voted to place the proposal on the ballot. Two days after the deadline, on May 13, 2021, the DCRC submitted the new draft of the proposed revised charter to the Governor for approval. The Governor declined to conduct further review, pointing out that this new version of the proposed revised charter was presented to her after her prior disapproval—and after the May 11, 2021 deadline to submit ballot wording to the Detroit City Clerk under MCL 168.646a(2). In two complaints filed the same day, plaintiffs sued defendants for declaratory, injunctive, and mandamus relief, arguing that because the proposed revised charter had not been approved by the Governor as required by MCL 117.22, it could not be placed on the ballot for voter approval. Plaintiffs argued that since the deadline for placing approval of the proposed revised charter on the August 3, 2021 primary ballot had passed, the DCRC could not put Proposal P on the ballot even if it were to obtain the Governor's approval of its latest version of the proposed revised charter. Thus, plaintiffs argued that Proposal P must be stricken from the ballot.
The trial court granted the DCRC's motion to intervene, held two hearings on the matter, and issued a written opinion and order that granted plaintiffs the requested mandamus relief. The court explained that "[a] writ of mandamus is an extraordinary remedy that will only issue if 1) the party seeking the writ has a clear legal right to the performance of the duties sought to be compelled 2) the defendant has a clear legal duty to perform the act requested 3) the act is ministerial, that is it does not involve discretion of judgment and 4) no other legal or equitable remedy exists that might achieve the same result." The main question before the trial court was whether defendants improperly authorized placement of Proposal P on the ballot for the upcoming primary. The court rejected the DCRC's argument that the Michigan Constitution allowed it to present a charter revision to Detroit voters without the Governor's approval, noting that while Const. 1963, art. 7, § 22 gave city electors the power to adopt and amend their charters, the same section stated that those powers were "subject to the constitution and law." That is, while § 22 gave home-rule cities full power over their property and government, the court found that they still had to abide by statutes and caselaw. Citing Northrup v. City of Jackson , 273 Mich. 20, 26, 262 N.W. 641 (1935), the court noted that since at least 1935, home-rule cities had to obtain the Governor's approval of a charter provision before it could be enacted into law. Under MCL 117.22, which is a provision of the HRCA, MCL 117.1 et seq. , a revised city charter must have the Governor's approval before it can be presented to the voters. The HRCA and caselaw distinguish between charter revisions—which involve major changes—and charter amendments that involve fewer substantive changes. The trial court concluded that while MCL 117.22 contained language providing for a means to submit an amendment to the voters despite the Governor's rejection, "MCL 117.22 does not provide for a mechanism whereby a revision of the Charter can be submitted to the voters without the approval of the Governor." (Emphasis added.)
The trial court rejected the DCRC's argument that it could continually revise the content of the proposed revised charter beyond the filing deadline, finding that position untenable because "absentee voters could vote on a proposed revision containing one version and voters who went to the poll on August 3, 2021 would be voting on a different substantive proposed revision to the Detroit City Charter." The court determined that "[n]o Michigan law authorizes such power to a Charter Revision Commission" and "that plaintiffs have a clear legal right to performance of the duty sought to be compelled." MCL 117.23 requires the language of the proposed charter revision to be published before the election so the voters can examine the proposed revision before they vote. The DCRC had two versions of the proposed revised charter, and it had not provided the voting public with a clear understanding of which proposed charter revision they were being asked to approve. The court concluded that "[i]rreparable harm will come to the voters of Detroit if they do not have sufficient time to review the proposed Charter revision or know which version they are being asked to review." The trial court concluded that because the DCRC's proposed revised charter had not been approved by the Governor under MCL 117.22, it could not properly be placed on the ballot and submitted to the voters at the August 3, 2021 primary.
The court concluded that plaintiffs had a clear legal right to have the Detroit City Clerk and the Detroit Election Commission comply with the requirements of MCL 117.22, that the clerk and the commission had a clear legal duty not to place Proposal P on the ballot, and that it was a ministerial act for them to refuse to submit Proposal P for placement on the ballot for the upcoming primary. The court granted plaintiffs’ petition for mandamus and ordered the Detroit City Clerk and the Detroit Election Commission to remove Proposal P from the August 3, 2021 ballot. Because the court was granting mandamus relief, it declined to address plaintiffs’ motion for injunctive relief or the Detroit City Clerk's motion for summary disposition.
II
The DCRC asserts that the trial court erred by granting plaintiffs the requested mandamus relief, raising the following arguments: (1) that the city has the constitutional power to place the charter to a popular vote; (2) that MCL 117.22 allows it to present the proposed revised charter to the voters for approval regardless of the Governor's rejection of the proposed charter revision; (3) that the proposed charter revision did not need to be complete before its approval was placed on the ballot by Proposal P; (4) that the trial court had no basis to enter a final judgment granting mandamus relief; (5) that removal of Proposal P from the ballot was not a ministerial act; (6) that the trial court correctly denied injunctive relief; and (7) that the substance of the revised charter cannot be at issue. We find no errors of legal interpretation or abuse of discretion and so affirm the trial court.
A trial court's decision whether to grant mandamus relief is reviewed for an abuse of discretion. Berry v. Garrett, 316 Mich. App. 37, 41, 890 N.W.2d 882 (2016). Whether a plaintiff has a clear legal right to performance of a duty and whether the defendant has a clear legal duty to perform present questions of law that are reviewed de novo. Id. Questions of constitutional and statutory interpretation also present issues of law that are reviewed de novo. Makowski v. Governor , 495 Mich. 465, 470, 852 N.W.2d 61 (2014).
Mandamus is an extraordinary remedy used to enforce duties required of governmental actors by law. Stand Up for Democracy v. Secretary of State , 492 Mich. 588, 618, 822 N.W.2d 159 (2012) ; Mercer v. Lansing , 274 Mich. App. 329, 333, 733 N.W.2d 89 (2007). The plaintiff seeking a writ of mandamus has the burden to establish four requirements
(1) the party seeking the writ 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 the act requested, (3) the act is ministerial, that is, it does not involve discretion or judgment, and (4) no other legal or equitable remedy exists that might achieve the same result. [ Southfield Ed. Ass'n v. Bd. of Ed. of the Southfield Pub. Sch. , 320 Mich. App. 353, 378, 909 N.W.2d 1 (2017) (quotation marks and citation omitted).]
III
We first reject the DCRC's argument that the Michigan Constitution grants it the power to submit a proposed charter revision to the voters regardless of statutory restrictions. The DCRC relies on Const. 1963, art. 7, § 22, which reads:
Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section. [Emphasis added.]
Furthermore, the first sentence of Const. 1963, art. 7, § 34 states "[t]he provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor." Constitutional language is analyzed consistently with the rules of statutory interpretation. In re Boynton , 302 Mich. App. 632, 639, 840 N.W.2d 762 (2013). When interpreting provisions of the Michigan Constitution, this Court should give constitutional language "the meaning that reasonable minds, the great mass of people themselves, would give it." Aguirre v. Dept. of Corrections , 307 Mich. App. 315, 320, 859 N.W.2d 267 (2014) (citation and quotation marks omitted). But this Court must also consider "the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished ...." Id . (citation and quotation marks omitted). The language of art 7, §§ 22 and 34 clearly shows an intent to give cities broad powers to conduct their government affairs. See Associated Builders & Contractors v. Lansing , 499 Mich. 177, 185-188, 880 N.W.2d 765 (2016). However, § 22 expressly states that a city's power to adopt resolutions and ordinances relating to its government is "subject to the constitution and law. " More significantly, the first sentence of § 22 states that the electors of each city have the power and authority to adopt and amend its charter "[u ]nder general laws. " Reasonable minds would interpret the phrases "under general laws" and "subject to the constitution and law" to mean that city voters have the power to adopt a new charter or amend its charter within the prescriptions of Michigan law, including the HRCA. See Detroit v. Walker , 445 Mich. 682, 688-689, 520 N.W.2d 135 (1994).
IV
We also reject the DCRC's argument that it can submit the proposed revision to the voters regardless of whether the Governor approved the revision. Section 22 of the HRCA, MCL 117.22, states:
Every amendment to a city charter whether passed pursuant to the provisions of this act or heretofore granted or passed by the state legislature for the government of such city, before its submission to the electors, and every charter before the final adjournment of the commission, shall be transmitted to the governor of the state. If he shall approve it, he shall sign it; if not, he shall return the charter to the commission and the amendment to the legislative body of the city, with his objections thereto, which shall be spread at large on the journal of the body receiving them, and if it be an amendment proposed by the legislative body, such body shall re-consider it, and if < frax; 2, 3> of the members-elect agree to pass it, it shall be submitted to the electors. If it be an amendment proposed by initiatory petition, it shall be submitted to the electors notwithstanding such objections. [Emphasis added.]
"The primary goal of statutory interpretation is to ascertain the legislative intent that may be reasonably inferred from the words expressed in the statute." Epps v. 4 Quarters Restoration LLC, 498 Mich. 518, 529, 872 N.W.2d 412 (2015) (quotation marks and citations omitted). Courts " ‘must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.’ " Johnson v. Recca , 492 Mich. 169, 177, 821 N.W.2d 520 (2012), quoting State Farm Fire & Cas. Co. v. Old Republic Ins. Co. , 466 Mich. 142, 146, 644 N.W.2d 715 (2002). Courts should not supply provisions omitted by the Legislature, because " ‘[i]t is to be assumed that the legislature ... had full knowledge of the provisions ... and we have no right to enter the legislative field and, upon assumption of unintentional omission ... supply what we may think might well have been incorporated.’ " Johnson , 492 Mich. at 187, 821 N.W.2d 520, quoting Reichert v. People's State Bank, 265 Mich. 668, 672, 252 N.W. 484 (1934). "The use of the word ‘shall’ denotes mandatory action." Wolfenbarger v. Wright , 336 Mich. App. 1, 30, 969 N.W.2d 518 (2021).
The language of HRCA § 22 states that before an amendment to a city charter or new or revised city charter is submitted to the voters for approval, it must be presented to the Governor, who can either approve it by signing it or decline to approve it while stating specific objections. The use of the word "approve" clearly denotes that the Governor is to exercise judgment as to the quality of the proposal, as opposed to merely providing gratuitous support of the proposed charter or amendment. See Merriam-Webster's Collegiate Dictionary (11th ed) (defining "approve" as "to give formal or official sanction to").
The DCRC does not take issue with the trial court's conclusion that the HRCA and Michigan law distinguish between amendments to city charters and revisions presenting a new charter for adoption. While MCL 117.22 requires that both amendments to city charters and charter revisions proposed by charter commissions be presented to the Governor for approval and provides a way for certain amendments to be presented to the voters despite the Governor's veto, the statute contains no similar provisions for passage of charter revisions following their rejection by the Governor. If things expressed in statutory language are members of an associated group or series, then courts should infer that the unmentioned things were excluded by deliberate choice rather than through inadvertence. Esurance Prop. & Cas. Ins. Co. v. Mich. Assigned Claims Plan , 330 Mich. App. 584, 591, 950 N.W.2d 528 (2019). The Legislature has made no provision for the revised charter to be submitted to the voters after the Governor's express rejection, and this Court will not create such a provision where it cannot reasonably be inferred from the statutory language. Byker v. Mannes , 465 Mich. 637, 646-647, 641 N.W.2d 210 (2002) (holding that courts will not read words into a statute that the Legislature has excluded).
In effect, revision of a charter means the fundamental change of creating an entirely new charter, whereas an amendment means a correction of detail. Kelly v. Laing , 259 Mich. 212, 217, 242 N.W. 891 (1932). See also Midland v. Arbury , 38 Mich. App. 771, 775, 197 N.W.2d 134 (1972).
Additionally, even if the proposed revised charter is considered an amendment, the last two sentences of § 22 state only two situations that allow a charter amendment to proceed to a vote following the Governor's rejection: (1) when the charter amendment is passed by the legislative body (i.e., the city council), the city council can override the veto with a two-thirds vote of its members and submit the amendment to the electors; and (2) when the amendment is proposed by a voter initiative, it shall be submitted regardless of the Governor's objections. The DCRC's proposed revised charter falls outside the scope of either type of amendment that can be submitted to the voters over the Governor's rejection. The statute contains no provisions for overriding or ignoring the Governor's veto when the voters approve a general, unspecified revision of a charter and subsequently select a commission to draft a new charter. Furthermore, we are not convinced by the DCRC's argument that the proposed revised charter can simply proceed to a vote by the electors without the Governor's approval because the express language of § 22 does not forbid it. We agree with the trial court that defendants’ interpretation would make submission of the draft revision to the Governor for approval an "empty and useless gesture." When interpreting statutory language, courts should presume that the Legislature did not intend to do a useless thing and attempt to give effect to all statutory language. People v. Cunningham , 496 Mich. 145, 157, 852 N.W.2d 118 (2014) ; Klopfenstein v. Rohlfing , 356 Mich. 197, 202, 96 N.W.2d 782 (1959). The language of § 22 states that if the Governor does not approve the charter, she "shall return the charter to the commission and the amendment to the legislative body with [her] objections thereto, which shall be spread at large on the journal of the body receiving them ...." That same sentence then states the means for overriding the rejection of "an amendment proposed by the legislative body" without any reference to a means for submitting a revised charter proposed by a charter commission. The statutory language does not merely provide for public commentary by the Governor, but instead provides for rejection based on specific objections with the apparent assumption that the commission will act on those objections, correct the charter accordingly, and submit the proposed revised charter to the Governor before the final adjournment of the commission and in time to have the proposed revised charter presented to the voters. The DCRC did not do that, therefore its proposed revised charter should not be placed before the voters for approval by way of Proposal P.
This is consistent with 1963 Const., art. 2, § 9, which provides as follows: "No law initiated or adopted by the people shall be subject to the veto power of the governor[.]"
There is also no indication that the nine-member city charter commission described in MCL 117.18 reviewed the Governor's objections and nonetheless agreed to pass the proposed amendment. Consequently, no matter how the changes are construed, there was not compliance with MCL 117.22.
V
We agree with the trial court's rejection of the DCRC's claim that under MCL 117.22 it can continually redraft the proposed charter provision beyond the May 11, 2021 filing deadline. The relevant language of MCL 117.22 states that a proposed revised charter shall be transmitted to the governor of the state "before the final adjournment of the commission." The final adjournment of the DCRC is to occur August 6, 2021, three days after the primary when the voters are supposed to approve or deny the proposed revised charter. Following the DCRC's logic, it could submit the final proposed revised charter to the Governor any time up until August 6, 2021, which would be three days after the voters have voted on it. We must assume that the Legislature did not intend to require the Governor to engage in a useless act. Cunningham , 496 Mich. at 157, 852 N.W.2d 118 ; Klopfenstein , 356 Mich. at 202, 96 N.W.2d 782. MCL 117.23(1) specifically requires a charter commission to publish the proposed revised city charter "before submission to the electors." The deadline for placing Proposal P on the ballot was May 11, 2021. According to the DCRC, absentee ballots for the August 3, 2021 primary election will be available to the voters on June 19, 2021. It is important to inform voters of what they are actually voting for and not confuse them. Advisory Opinion on Constitutionality of 1982 PA 47 , 418 Mich. 49, 90 n. 10, 340 N.W.2d 817 (1983) (WILLIAMS, C.J., dissenting). The DCRC's interpretation of § 22 would likely do neither and could result in a bait and switch in that some absentee voters might vote to adopt one version of the proposed revision while later voters adopt a later-proposed revision containing different substantive provisions. In effect, the DCRC could be asking the voters to vote for a revision of the DCRC's later choosing. As noted by the trial court, "No Michigan law authorizes such power to a charter review commission."
VI
The DCRC's brief on appeal argues that plaintiffs were not entitled to mandamus relief because the trial court had no basis to enter a final judgment in the actions. However, the DCRC has provided no legal argument or authority in support of this assertion. It is well-established that an appellant may not simply "announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position." Mitcham v. Detroit , 355 Mich. 182, 203, 94 N.W.2d 388 (1959). Appellant has abandoned this argument by failing to brief it. Johnson v. Johnson , 329 Mich. App. 110, 126, 940 N.W.2d 807 (2019). VII
The trial court did not err by finding that removal of Proposal P from the ballot is a ministerial task.
An act is ministerial when " ‘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. at 42, 890 N.W.2d 882, quoting Hillsdale Co. Senior Servs., Inc. v. Hillsdale Co., 494 Mich. 46, 58 n. 11, 832 N.W.2d 728 (2013). When a candidate for public office does not meet the qualifications for that office and must be removed from the ballot, removal of that name from the public ballot is a ministerial act because it would not require the exercise of judgment. See Berdy v. Buffa, 504 Mich 876, 879, 928 N.W.2d 204 (2019) ; Barrow v. City of Detroit Election Comm. , 301 Mich. App. 404, 412-413, 836 N.W.2d 498 (2013). The same principles should be applied to a ballot proposal that should not have been placed on the ballot. The trial court ruled that Proposal P was placed on the ballot illegally in violation of MCL 117.22. Its removal leaves nothing to the exercise of defendants’ judgment or discretion and so is a ministerial act.
VIII
Finally, the DCRC argues that the trial court correctly denied injunctive relief and that the substance of the revised charter is not at issue at this time. The trial court declined to address the issue of injunctive relief because it was unnecessary to do so after granting mandamus relief to plaintiffs. The trial court's written opinion specifically stated that it did "not consider the substantive merits of the contents of Proposal P" and contained nothing to suggest that the court was influenced by the contents of the proposed revised charter. Because addressing these arguments would have no practical legal effect on the controversy before us, they present moot points that will not be addressed. Gen. Motors Corp. v. Dep't of Treasury, 290 Mich. App. 355, 386, 803 N.W.2d 698 (2010).
The trial court's May 26, 2021 opinion and order granting mandamus is affirmed. With this decision, the stay directed by the Supreme Court during this Court's consideration of these matters now expires. This opinion shall have immediate effect pursuant to MCR 7.215(F)(2).
Letica, J., concurred with Cameron, P.J.
Fort Hood, J. (dissenting). I take no issue with Parts IV through VI of the majority's opinion. However, because I believe the Detroit Charter Revision Commission (DCRC) has the authority to place Proposal P on the ballots—and voters have the right to consider it—I respectfully dissent.
I first note that our Constitution grants considerable authority to cities to frame and amend their operative charters:
Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section. [ Const. 1963, art. 7, § 22.]
Our Constitution further provides:
The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally
construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution. [ Const. 1963, art. 7, § 34.]
Pursuant to the plain language of the text, cities have "broad powers over ‘municipal concerns, property and government’ whether those powers are enumerated or not." Associated Builders & Contractors v. Lansing , 499 Mich. 177, 188, 880 N.W.2d 765 (2016).
I take no issue with the majority's interpretation of the "general laws" and "subject to the constitution and law" provisions of § 22. These provisions clearly indicate that the authority of a city to revise or amend its charter may be constrained to some extent by statute, including statutes such as the Home Rule City Act (HRCA), MCL 117.1a et seq. However, I do not read the DCRC's argument as suggesting otherwise; rather, the DCRC argues that although a city's authority may be constrained, the HRCA does not constrain it in the manner plaintiffs have suggested in this case. I agree with that position.
The HRCA provides that a city may initiate the process of revising its charter either by a < frax; 3, 5> vote of its legislative body or by an initiatory petition. MCL 117.18. I note that Detroit voters approved a general charter revision and elected members to the DCRC in 2018. MCL 117.21 provides a similar process where cities seek to amend their active charter. Primarily at issue in this case is MCL 117.22, which provides:
The differences between revising and amending a charter are undisputed in this case. And, although the majority opines about the result of this case were the issue to be considered a charter amendment, I think it safe to say that all parties agree that this case involves a charter revision.
Every amendment to a city charter whether passed pursuant to the provisions of this act or heretofore granted or passed by the state legislature for the government of such city, before its submission to the electors, and every charter before the final adjournment of the commission, shall be transmitted to the governor of the state. If he shall approve it, he shall sign it; if not, he shall return the charter to the commission and the amendment to the legislative
body of the city, with his objections thereto, which shall be spread at large on the journal of the body receiving them, and if it be an amendment proposed by the legislative body, such body shall re-consider it, and if < frax; 2, 3> of the members-elect agree to pass it, it shall be submitted to the electors. If it be an amendment proposed by initiatory petition, it shall be submitted to the electors notwithstanding such objections.
Notably absent from this statute is any reference to charter revisions other than the fact that charters should be transmitted to the Governor "before the final adjournment of the commission." MCL 117.22. There is no statute in the HRCA indicating what effect or subsequent process may be initiated where the Governor declines to approve a charter revision rather than an amendment.
In Warren City Council v. Buffa , 333 Mich.App. 422, 432, 960 N.W.2d 166 (2020), we noted that "MCL 117.22 relates solely to the procedure for amending a city charter, and more specifically, to a particular procedure that is one part of the process.") (emphasis added).
With that in mind, I am inclined to agree with DCRC that nothing in the HRCA purports to say that approval by the Governor is prerequisite to voters having the opportunity to approve or disapprove of a charter revision. See Associated Builders , 499 Mich. at 189 n. 29, 880 N.W.2d 765 (indicating that home-rule cities enjoy powers specifically granted to them and "may also exercise all powers not expressly denied") (quotation marks and citation omitted). See also Warren City Council v. Buffa , 333 Mich.App. 422, 432, 960 N.W.2d 166 (2020) (noting that " MCL 117.22 concerns only a narrow category, proposed amendments to city charters," and "[t]his Court cannot impose additional requirements in ... MCL 117.22 ... that were not placed there by the Legislature"); Esurance Prop. & Cas. Ins. Co. v. Mich. Assigned Claims Plan , 330 Mich. App. 584, 591, 950 N.W.2d 528 (2019) (indicating that where things are expressed by statute as members of an associated group, courts should infer that things otherwise excluded from the group were excluded by deliberate choice rather than inadvertence). Because the HRCA is silent as to the effect and operation of the Governor's failure to approve a charter revision, I do not think it appropriate that we read MCL 117.22 as creating a veto power in the Governor that is not more explicitly prescribed. See Lakeshore Group v. Dep't of Environmental Quality , 507 Mich. 52, 66, 968 N.W.2d 251 (2021) ("Courts can't add requirements to the text of the statute."); Mich. Ambulatory Surgical Ctr. v. Farm Bureau Gen. Ins. Co. of Mich. , 334 Mich.App. 622, 632, 965 N.W.2d 650 (2020) (indicating that the casus omissus pro omisso habendus est canon of construction provides that "nothing is to be added to what the text states or reasonably implies," and "prohibits courts from supplying provisions omitted by the Legislature"); Pike v. Northern Mich. Univ. , 327 Mich. App. 683, 697, 935 N.W.2d 86 (2019) ("[A] court must not judicially legislate by adding into a statute provisions that the Legislature did not include.") (quotation marks and citation omitted); Detroit City Council v. Detroit Mayor , 283 Mich. App. 442, 451, 770 N.W.2d 117 (2009) (refusing to interpret the Legislature's silence as creating a mayoral veto power over the city council's resolution). I understand that it is the majority's position that it is the DCRC and not plaintiffs who would have us read words into the HRCA that are not there. The majority notes that "[t]he Legislature has made no provision for the revised charter to be submitted to the voters over the Governor's express rejection, and this Court will not create such a provision where it cannot reasonably be inferred from the statutory language." However, I would put forth that the Legislature has made no provision suggesting that the Governor's rejection of a revision may impact whether the revision may be placed on a ballot in the first instance. MCL 117.22, which undoubtedly focuses on amendments, says only the following about the process after a revision or amendment is transmitted to the Governor:
As the DCRC notes, although the Governor declined to take a position on the matter in her letters to the DCRC, this was also the conclusion of the Attorney General after reviewing the DCRC's proposed charter.
If he shall approve it, he shall sign it; if not, he shall return the charter to the commission and the amendment to the legislative body of the city, with his objections thereto, which shall be spread at large on the journal of the body receiving them, and if it be an amendment proposed by the legislative body, such body shall re-consider it, and if < frax; 2, 3> of the members-elect agree to pass it, it shall be submitted to the electors. [Emphasis added.]
There is simply nothing in the HRCA indicating that the commission must reconsider and decline to submit charter revisions to electors that the Governor has not approved. I further note that the majority and trial court indicate that the DCRC's interpretation of MCL 117.22 would render transmission of proposed revisions to the Governor an "empty and useless gesture." I agree with the DCRC that portions of the statute are not rendered nugatory by our application of the plain language. There remains value in working with the Governor on charter revisions, but more importantly, while we strive to give effect to all statutory language and we presume that the Legislature did not intend to do a useless thing, People v. Cunningham , 496 Mich. 145, 157, 852 N.W.2d 118 (2014), we also simply cannot read words into a statute that are not there, Lakeshore Group , 507 Mich. at 66,968 N.W.2d 251. See also Byker v. Mannes , 465 Mich. 637, 646-647, 641 N.W.2d 210 (2002) ("It is a well-established rule of statutory construction that this Court will not read words into a statute."). Again, MCL 117.22 explicitly provides that amendments proposed by a legislative body and not approved by the Governor must be reconsidered. The statute contains no corollary provision with respect to revisions.
As an aside, it is worth noting that amendments initiated by petition need not be approved by the Governor to be submitted to electors. MCL 117.22. Applying plaintiffs’ logic that what expressly applies to amendments from MCL 117.22 also implicitly applies to revisions, any revision initiated by petition clearly would not be subject to preapproval by the Governor prior to submission to electors. Here, however, I note that the 2018 ballot question was posed by operation of the current charter and neither a legislative action nor an initiatory petition. Detroit Charter, art 9, ch 4, § 9-403.
Finally, while I do not take issue with the majority's conclusion that permitting the DCRC to continually revise the charter up to August 6, 2021 could pose problems where absentee voters vote on an earlier version of the revision, I think it can be implied from the DCRC's brief on appeal that it understands that issue. I find the distinction laid out by the DCRC between the ballot wording and the revised charter itself to be apt, and I am less confident than the majority that the final revised charter would be untimely were it not completed contemporaneously with the May 11, 2021 deadline for the proposed ballot language. MCL 168.646a(2) provides the deadline for the certification of the wording of the ballot question. MCL 117.23 provides that the DCRC must finalize the revised charter "before submission to the electors." I would not conclude that certifying the ballot language was the equivalent of submission of the issue to voters for the purposes of MCL 117.23 and would be more inclined to agree with the DCRC that the issue is submitted to voters when they are given the opportunity to consider it, i.e., when ballots become available on June 19, 2021. That having been said, I believe the central dispositive issue in this case is our interpretation of MCL 117.22, and I proffer my opinion as to the timing issue only to the extent that it might be implied from the trial court's opinion that it was pertinent to the relief that was granted.
With all of the above in mind, I respectfully dissent from the majority's conclusion that the HRCA prevents the DCRC from submitting their proposed charter revision to electors. Keeping in mind that we construe the constitutional provisions broadly in favor of the commission, I would decline to read the HRCA as creating an unspoken obligation on the part of the commission that limits their constitutional authority. I would conclude that Proposal P should remain on the ballot and voters should have the opportunity to consider it.