Special panel needed to settle petition font issue, COA panel says.

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.

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MSC: Emergency school manager oath-of-office case moot

Robert Davis, the Highland Park school board’s secretary who last week pleaded not guilty to federal charges of converting school district funds, has one less thing to worry about, courtesy of the Michigan Supreme Court.

The Court yesterday threw out his suit, Davis v. Emergency Manager of the Detroit Public Schools, which challenged Roy Roberts’ authority to serve as the emergency manager of the Detroit Public Schools.

In May 2011, Gov. Rick Snyder appointed Roberts under MCL 141.1501 et seq., Michigan’s emergency manager law. Roberts went to work without taking an oath of office.

Davis, a vocal critic of the law who backs up his views with litigation, asked Attorney General Bill Schuette to initiate a quo warranto action, claiming that without the oath of office, Roberts had no authority to run the Detroit schools.

After Davis sought quo warranto relief, Roberts took the oath, and a few days later, Schuette declined Davis’s request.

Davis’s next stop was at the Court of Appeals, which also turned him down. In an order dated Oct, 6, 2011, the COA said Robert’s failure to immediately take the oath didn’t violate MCL 201.3(7), which meant the office of emergency manager “was not, and did not need to be, declared vacant.”

The COA also ruled that Roberts fixed the problem by taking the oath of office before Davis filed his COA action, and that before taking the oath, Roberts was functioning as a de facto officer.

The Michigan Supreme Court yesterday approved the result but not the reasoning.

[W]e VACATE that part of the of the Court of Appeals October 6, 2011 order providing the legal reasoning for the denial of the application.

In all other respects, the application for leave to appeal is DENIED as moot in light of the fact that Roy S. Roberts was reappointed to serve as Emergency Manager for the Detroit Public Schools, effective April 2, 2012, and he signed an Oath of Office on that date.

In a concurring statement, Chief Justice Robert Young Jr. questioned whether an emergency manager is even constitutionally required to take an oath of office. Young said the issue need not be decided because the case was moot.

Young’s concurrence prompted Justice Stephen Markman to respond:

Given that the responsibilities of the emergency manager are, during extraordinary economic circumstances, to carry out the duties of the mayor and the members of the city council of a municipality, all of whom themselves are required to take oaths of office, it would seem anomalous that an official serving in their stead would not also be required to make the same commitment to the laws and constitutions of the United States and Michigan.