A Michigan Court of Appeals panel has asked for the convening of a special panel to reconsider its 2002 decision in Bloomfield Charter Twp. v. Oakland County Clerk.
The panel was reviewing Stand Up for Democracy v. Sec. of State (in which the dispute is over whether the font size in the heading substantially complied with the statute, based on Bloomfield. It found that the Bloomfield case controlled the issue, and said the granting of a writ of mandamus was warranted, forcing the Secretary of State to put the referendum on the emergency manager law on the ballot.
However, the panel also unanimously declared that Bloomfield was wrongly decided:
In our judgment, Bloomfield was wrongly decided because it failed to apply the clear and unambiguous statutory language that the petition warning language “shall be printed in 12-point type immediately above the place for signatures” as required by § 482(5). The Legislature’s use of the word “shall” denotes mandatory conduct, Manual, 481 Mich at 647, and a court may not ignore the Legislature’s instruction of mandatory conduct, or make a different policy choice than has already been made by the Legislature, People v McIntire, 461 Mich 147, 152-153; 599 NW2d 102 (1999) … . The Bloomfield Court’s conclusion that initiating petitions need not “exactly match the Michigan Election Law requirements for form and content” ignored the Legislature’s use of the term “shall,” a clear expression of its intent that the form of an initiating petition be in a specified type, and constituted an improper failure to recognize and defer to a legislative mandate.
The panel has issued a stay on its decision granting the writ until the special panel is either denied or clears up the Bloomfield issue.