The Michigan Court of Appeals reversed a Macomb County circuit judge in Berdy v Burda, __ Mich App __; __ NW2d __ (2019)(Docket No. 349171) and determined there was no basis to order the Warren City Clerk, the Warren City Election Commission and the Macomb County Clerk to remove four candidates from the upcoming primary election for Warren City Council.
Connor Berdy, the plaintiff, is a candidate for Warren City Council. He determined from his review of the Warren City Charter that city council members were subject to term limits of three terms or 12 years. He identified four incumbent city council members that, despite the term limits in the city charter, were candidates on the upcoming primary election in 2019. The Warren city attorney, however, noted that the city charter imposed term limits of three terms or 12 years "in that particular office" and determined that the incumbents were not yet limited because they held distinct positions on city council during the past three terms. The Warren city council consists of both district city council members (elected by and representing a particular precinct) and at-large city council members (elected by all city residents), two separate offices with different election rules, responsibilities and residency requirements. Essentially, the city charter created a "bicameral legislature" of two different legislative groups (similar to representatives and senators in the Michigan Legislature) that happened to serve on the same body.
The city attorney determined "in that particular office" to mean that a person can exhaust their term limits in a district city council seat and then run for the at-large city council seat. Since the four incumbent candidates have not exhausted their term limits in both district and at-large offices, the city attorney concluded that there was no basis to strike them from the ballot. Mr. Berdy disagreed, believing that the city charter made no distinction with district and at-large members, and filed suit against Sonya Burda (in her capacity as Warren City Clerk), the Warren City Election Commission, and Fred Miller (in his capacity as Macomb County Clerk) in the Macomb County Circuit Court.
The Plaintiff specifically sought a "writ of mandamus", which is a court order commanding a government official to perform a public or statutory act. Since the four incumbents were on the ballot against the plain language of the city charter, he argued, then the clerks and election commission should be ordered to follow the law and strike those candidates from the ballot. To obtain a writ of mandamus in Michigan, a plaintiff must prove ALL of the following (see Rental Props Owners Ass'n of Kent Co v Kent Co Treasurer, 308 Mich App 498, 518; 866 NW2d 817, 829 (2014)):
- The Plaintiff has a clear, legal right to performance of the specific duty sought;
- The Defendant has a clear legal duty to perform;
- The act is ministerial (meaning that the duty to act is so clearly defined by law that it leaves no room to use discretion or judgment);
- No other adequate legal or equitable remedy exists that might achieve the same result.
The trial judge agreed with Mr. Berdy and determined "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 circuit court granted the plaintiff's request for mandamus and ordered the clerks and the city electoral commission to remove the four incumbents from the upcoming primary election ballot. The defendants promptly appealed the trial judge's decision to the Michigan Court of Appeals.
A divided appellate panel (two judges for, one judge against) determined that the Macomb Circuit Court erred and the writ of mandamus should not have been granted. The majority opinion held that the trial judge abused his discretion because the plaintiff did not satisfy the following elements for mandamus:
- Plaintiff Did Not Have A Clear, Legal Right To Performance Of The Specific Duty Sought: The Court of Appeals agreed with the Warren city attorney that the charter 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" and the charter further distinguishes the offices of district city council member and at-large city council member. Since the Plaintiff did not show that any incumbent was term-limited for the particular city council seat sought, he was not entitled to relief.
- The Defendant Did Not Have A Clear Legal Duty To Perform: The Court of Appeals determined, by the terms of the city charter, that the city clerk, county clerk or the city electoral commission did NOT have the power to decide candidate eligibility or strike them from the ballot. That power is actually held by the Warren City Council itself. That body never deliberated nor made a final decision on the matter that can be a basis for appeal. Essentially, the wrong administrative remedy was sought and the wrong municipal entity was sued by the plaintiff.
- The Act Was Not Purely Ministerial: Since the city charter was open to various interpretations of how and when the term limit provisions applied to city council members, the Court of Appeals held that the determination of a candidate's eligibility to run requires analysis and thought that goes well beyond a "ministerial act". Even if the correct defendant was sued, the nature of the decision to be made does not entitle the plaintiff to mandamus relief.
- Other Adequate Legal Or Equitable Remedies Exists That Might Achieve The Same Result: The Court of Appeals believed that the plaintiff should have first brought the matter before the Warren City Council for a decision, as required by the city charter. Since this remedy exists, the plaintiff was not entitled to mandamus relief.
The lone dissenting judge stated he found the writ of mandamus to be appropriate. He agreed with the Plaintiff that the city charter did not create a "bicameral city council" and there only existed one class of city council members, so the term limits applied no matter if he or she is a district or at-large member. Moreover, he found that the court's decision in Barrow v City of Detroit Elec Comm, 301 Mich App 404; 836 NW2d 498 (2013) not only determined that "mandamus is the proper method of raising legal challenge" to candidacy but also determined that an electoral commission has a legal duty to act upon a trial court's finding of ineligibility. However, his legal interpretation was outvoted by the panel and the writ of mandamus was set aside.
Immediately after the opinion was issued, Mr. Berdy filed an emergency motion with the Michigan Supreme Court to review the split decision and make a final determination ahead of the primary elections in August. Since ballots need to be printed by mid-June to be ready for the August election, it is possible that the state's highest court will hear argument and weigh in on this matter within the next week. With this issue unresolved, it remains unclear who has the power to enforce municipal term limits in Michigan, if at all.