They say the definition of insanity is doing the same thing over and over again and expecting a different result. For me, insanity means trying to talk to the city before going to court. It doesn’t usually help matters at all to try to work things out, and sometimes it just makes things worse because the built-in delays in civil litigation allow the city to take even more time to do what it should have done in the first place.
As you know, we submitted a charter proposal that would establish Historic District Commission (HDC) guidelines and place supervisory authority over the HDC in the hands of our elected city council representatives – where it belongs. We think it’s a positive and necessary thing, and despite what our critics might say, we don’t dislike the HDC or the historic district. (Quite the opposite, actually.) If you haven’t seen the proposal or the explanations, you can click on the blue boxes in the upper-right-hand corner of this page and see for yourself. I hope we can count on your “yes” vote when you have the opportunity to vote on the proposal, and we’re doing everything in our power to make sure that happens.
My husband hand-delivered the completed petitions to the city clerk on July 2, 2024. At that point, the clerk had two jobs – 1. to canvass and certify whether the petitions were sufficient, and 2. to certify the ballot language to the Oakland County clerk by August 13th. These jobs are considered “ministerial,” meaning they are tasks that must be completed and don’t allow her discretion to perform these tasks.
“Canvassing” the petitions means that the clerk needed to compare the 54 petition signatures to her voting list and confirm every signer was a registered Clarkston voter and the signatures on the petitions were a reasonable facsimile of the sample signature in the voter file. If the petitions contained enough names after the canvass, then the clerk must certify the petition as sufficient. (Post-canvass petitions must contain at least 5% of registered voters in Clarkston, or approximately 41 valid signatures.) If there aren’t enough valid signatures, the clerk must certify the petitions as insufficient. The clerk had “up to” 45 days to complete the canvass even though this task really shouldn’t take more than a few hours for 54 signatures.
The second job requires the clerk to “certify” the ballot language to the Oakland County clerk’s office no later than August 13th. This means that if the petition signatures are sufficient, she needs to send the ballot language from the petition to the Oakland County clerk so that language can be added to the Clarkston voter ballot. The ballot language is a brief summary of the proposal. It was part of each petition and what you will see when you vote on November 5th.
At the same time as the clerk is performing her mandatory two jobs, the city must also send the petition to the governor’s and attorney general’s office for review because the petition seeks to modify the city’s charter. It doesn’t matter if the governor agrees or disagrees with the proposal; her approval isn’t required for the proposal to be placed on the ballot. The attorney general’s office legally reviews only the ballot question language, not any other aspects of the proposal. But that doesn’t prevent the attorney general from noting other nit-picky reasons why the petition may not be valid and suggesting to the local clerk that the question should not be on the ballot. That’s why we worked with attorneys from Honigman LLC who specialize in election law.
This separate review in the governor’s and attorney general’s office has nothing to do with the Clarkston clerk’s two mandatory jobs to canvass the petitions within 45 days and find them sufficient or insufficient or to certify the ballot language to the Oakland County clerk by August 13th if the petitions are sufficient. End of story. No discretion.
Or at least that’s what’s supposed to happen. Two years ago, the city attorney and a former clerk engaged in some underhanded gamesmanship in an attempt to keep a medical marijuana charter proposal off the ballot – apparently with the city council’s blessing. And let’s be real – the clerk didn’t come up with this B.S. idea on her own; the city attorney’s fingerprints were all over it. I wrote about what happened here if you want more details, but the short version is the clerk canvassed the petitions; found the petitions to be sufficient because there were enough valid signatures; sent the petitions to the city attorney; they both ignored repeated phone calls asking for status requests from the group submitting the petition; and after deliberately delaying any further action on the petition, the clerk sent a letter advising the group that had circulated the petition that their submission was sent in too late to make it on the November ballot. Why? Because the governor hadn’t approved it, the attorney general hadn’t approved it, and the city council hadn’t approved it. Too bad, so sad! See you next November, suckers (if you’re still interested in proceeding a year from now, that is).
Litigation ensued. (Of course it did.) I’m beginning to think that litigation is the only way the city will ever do the right thing. It’s sad, really. And the one common denominator in almost all the litigation with the city – that the city loses most of the time – seems to be the city attorney’s bad advice. Perhaps the city council should ponder that and embark upon the obvious solution.
Both the circuit court and court of appeals thought it was clear the city attorney and former city clerk deliberately slow-walked the petition approval process to prevent the medical marijuana charter proposal from being placed on the ballot and voted on that November – by you. I’ll bet you’ve heard the saying “your voice, your vote.” Well, that’s certainly not the case when city officials conspire to keep you from voting on a proposal they don’t like because they are afraid you might vote “yes.” 😱
The circuit court and the court of appeals soundly rejected the city attorney’s and former city clerk’s assertion that the clerk could delay certification of the ballot language to the Oakland County Clerk by using the excuse she had to wait for approval from the governor, attorney general, and city council before doing that mandatory second job. The court of appeals said:
[W]here an amendment to a city charter is proposed by initiatory petition, the amendment shall be submitted to the voters at the next election. The plain language of MCL 117.25(3) states that once she receives the petition, “the city clerk shall canvass it” to ascertain if it is signed by the requisite number of registered voters. HRCA §25(3) states that the city clerk “shall certify the sufficiency or insufficiency of the petition” within 45 days of the filing of the petition and that if the petition contains the required number of signatures “the clerk shall submit the proposed amendment to the voters” at the next election. As noted above, the use of the word “shall” indicates a mandatory duty or directive. . . . Under MCL 117.25(3), the city clerk’s duty is to canvass the petition to determine whether it has an adequate number of valid signatures and certify the sufficiency or insufficiency of the petition based on that canvass within 45 days of the filing of the petition.
Under MCL 117.21(1) and 117.25(3), assuming the petition is deemed to have a sufficient number of signatures, the clerk is required to submit the proposed amendment to the voters at the next election. Nothing in the language of HRCA §§21(1) or 25(3) indicates that the certification or submission is dependent on review by the city council, attorney general, or governor. (Case citation omitted.)
Despite the city attorney’s, former clerk’s, and the city council’s efforts to keep you from deciding whether you wanted to adopt the medical marijuana charter change, the city was ordered to put the proposal on the ballot. You had the chance to be heard on the matter and voted “no.”
So, what’s happened so far with the HDC charter proposal? As you read the sequence of events, keep in mind that the election deadlines are fixed and things must move quickly, including asking a court for help if there are issues.
My husband included a July 2nd cover letter along with the completed HDC charter proposal petitions, addressed to our current clerk (copied to the city manager and city attorney) that included a request: “Please advise me when you anticipate you will be able to complete the canvass of the petitions and certify the sufficiency of the petition under MCL 117.25(3).” In other words, he was referring to the clerk’s first job in the two-step process.
There was no response from the city.
On July 15th, my husband emailed the city manager and city attorney (because the clerk’s email address hadn’t been set up yet), asking them to forward the email to the clerk and “[p]lease inform me as to the status of the canvass of the petition submitted to the clerk on July 2 and (1) when the clerk will complete her canvass to ascertain if the petition is signed by the requisite number of registered electors under MCL 117.25(3), and (2) when the clerk will certify the sufficiency or insufficiency of the petition under MCL 117.25(3).”
There was no response from the city.
On July 18th, after seeing that the city clerk now had her own email address, my husband forwarded his July 15th email to her directly. On July 22nd, the clerk emailed back, no doubt after having consulted with the city attorney regarding what she should say and stated: “Your Petion [sic] that was filed and hand delivered to me on Tuesday July 2nd @ 4:30pm is in process per MCL 117.25(3).”
Um, what exactly does “in process” mean? Well, from our perspective, it apparently meant the city was going to eff around with another petition to try to keep it off the ballot. So, we filed a lawsuit asking a court to order the clerk to complete her two jobs – the petition canvass and the ballot language certification if the petition signatures were sufficient – by August 13th. You’d think this wouldn’t be necessary, but apparently it is. We offered the city the opportunity to simply agree to a court order stating the clerk will perform her two mandatory jobs by August 13th.
On July 22nd, my husband sent an email to the city council, city manager, and city attorney with a copy of the complaint we’d filed explaining why we’d filed it. Since we weren’t really interested in having a battle in the Oakland County circuit court and beyond, he explained the city could just “stipulate” to an order that the petition would be certified as sufficient or insufficient, and if sufficient, that the ballot language would be certified to the Oakland County clerk by August 13th. As I’ve explained, these are mandatory things for the clerk to do so this should be a non-issue for the city to agree to. To stipulate to a court order means my husband and the city attorney would sign an order that would be entered by the court if the court didn’t find it objectionable (that rarely happens). Should the clerk refuse to do her job once a court order is in place, the court could order her to do her job, order the ballot proposal to be placed on the ballot despite the deliberate delay (which is what happened with the medical marijuana charter proposal), and order anything else the judge thinks is necessary to carry out the stipulated court order.
Apparently, the only way to get the courtesy of a response from the city is to file a lawsuit. (I’ll note that for future reference.) Shortly after receiving my husband’s email, the city attorney sent three pages of correspondence to him. The first document was an email signed by our new clerk, sent only to the city manager and city attorney, stating “[s]ignatures have been validated as of 7/10/24.” So, the clerk had performed her first mandatory job eight days after receiving the petition, yet neither the clerk, city attorney, nor city manager bothered to tell us that the petitions had been certified as sufficient – not in response to the July 2nd letter, not in response to the July 15th email, and not in response to the July 18th email.
Oh wait, there’s more. On July 12th, the city attorney forwarded the petition amendment to the governor’s and attorney general’s office and told them there are a sufficient number of validated signatures to place the proposal on the November ballot, with a copy to the clerk and city manager. Got that? The city attorney notified the governor and attorney general that our petition was certified as sufficient ten days after it was submitted – but neither he nor the city manager nor the clerk thought that information should be shared with us. Any of them could have sent us a copy of the correspondence to the governor and attorney general and that would have answered the question. These letters are public documents and available under the Michigan Freedom of Information Act if someone wants them. The pre-approved message to us was only that things were “in process” which could mean the current clerk was slow walking the signature review and/or petition language certification on advice from the city attorney – just as her predecessor did.
Since the petitions have been deemed sufficient, the only thing left for the clerk to do is to certify the ballot language to the Oakland County clerk’s office by August 13th, and my husband modified the order we’re asking the city attorney to agree to, limiting it to just that second clerk job. Yet, as I write this, the city attorney doesn’t want to agree to a court order that requires the clerk certify the ballot language by August 13th. There’s only one explanation I can think of for that – it’s entirely possible the city attorney wants to play games with this charter proposal between now and August 13th, making it impossible to certify the language by August 13th, and he doesn’t want to deal with any court sanctions when that happens.
At the July 22nd city council meeting, and in response to my husband’s email to the council, mayor Sue Wylie asked the city manager why no one had responded to the repeated requests for a simple status report about whether the petition signatures were sufficient (especially since they’d been deemed to be sufficient almost two weeks previously). Here was city manager Jonathan Smith’s response:
Well, as he knows, we have 45 days to validate the signatures. Not that we will take that long, but according to state laws pertaining to this, we have 45 days to validate the signatures. We have done that. We have gone through that, and then we turned the signatures and the wording over to [city attorney] Tom Ryan, who has then in turn submitted this to the Attorney General’s office. So, all of that’s in process. I don’t know how long the Attorney General will take to do their piece, get their approval, but we have done our piece. It’s done. I was a little surprised at his comments that we’ve been dragging our feet over the time that we have, but we have not. We’ve completed the validation, and that’s done, and now it’s in the Attorney General’s hands . . . Tom was out of the office the last week. That’s why he’s not here today. He’s still out of the office today, but he’s back in his office tomorrow. My intent is to talk to him tomorrow, to talk to him about the next steps and how we respond . . . I believe there are more than enough [valid signatures].
A couple things stand out in the city manager’s response. First, the reason for the lawsuit was because the city attorney, city clerk, and city manager refused to give us the courtesy of a response to a simple status question, even if it was just to send a copy of the July 12th letter the city attorney sent to the governor and attorney general that contained that status information. The city manager was certainly aware we’d made repeated requests for the status of the signature review, and he deliberately and purposefully ignored them. Smith said his intent was to talk to Ryan on July 23rd to figure out how to respond to us – but that only happened after the lawsuit filing. Smith’s position appears to be he had 45 days to tell us what the status of the canvass was (even though he later claimed in that same city council meeting that 80% of his job consists of talking to residents – does he ignore their requests for basic information too?).
Second, it appears Smith is suggesting the city needs to wait for the attorney general’s decision to accept or reject the ballot language, even though this has nothing to do with the clerk’s independent duty to certify the ballot language of a sufficient petition to the Oakland County clerk by August 13th. The court of appeals decision I quoted above has already addressed that particular delaying tactic by the city attorney and former city clerk: “Nothing in the language of HRCA §§21(1) or 25(3) indicates that the certification or submission is dependent on review by the city council, attorney general, or governor.” (My underscore.) Despite that previous decision, the city manager seems to suggest the city will delay certifying the ballot language to the Oakland County clerk until after the attorney general acts.
That’s not how it works. If the attorney general’s staff has a problem with the petition, they will contact the Oakland County clerk.
Filing a lawsuit was apparently the best thing to do to get the city to provide us with a status regarding the certification of the petitions and to force the city to stop dragging its feet and certify the ballot language to the city clerk by August 13th. The city attorney has agreed to accept service of the complaint (so we don’t have to hire a process server), and we are more than willing to make the lawsuit go away through a simple agreed-upon order that requires the clerk to certify the ballot language to the Oakland County clerk by August 13th – which is what she’s required to do anyway. As of right now, the city attorney offered his promise that the ballot language would be certified by August 13th. 😂 That promise is not even worth the powder to blow it to Hades because the city attorney can’t force his client to do anything. He’s also offered to have the clerk offer an unconditional promise the ballot language will be certified to the Oakland County clerk by August 13th.
Mmm-kay. We can accept that as an alternative to a stipulated court order because we can take action against them if they’ve been untruthful, but it certainly makes one wonder why the city attorney won’t simply agree to a court order saying the same thing. Whatever. We’re not going to dismiss the lawsuit until the language has been certified because that will allow us to get a court hearing in short order. If the clerk does not do her job, we will ask for a hearing in circuit court, explain to the judge why the city can’t be trusted to fulfill its statutory obligations without involving a court, and the city attorney can explain the clerk’s conduct as well as his own.
I honestly thought that this one issue could be resolved without a lawsuit. I guess that’s not the case, but one can reasonably ask – why can’t the city ever do what it’s supposed to do without a lawsuit? Perhaps looking to the common denominator – the city attorney – will suggest the obvious solution.