Opinion
No. 354474 No. 354475 No. 354582 No. 354583 No. 354794 No. 354795 No. 354878
05-27-2021
Governor Gretchen WHITMER, Appellant, v. BOARD OF STATE CANVASSERS and James Makowski, Appellees. Governor Gretchen Whitmer, Appellant, v. Board of State Canvassers and Brenda LaChappelle, Appellees. Lieutenant Governor Garlin Gilchrist II, Appellant, v. Board of State Canvassers and Chad Baase, Appellees. Governor Gretchen Whitmer, Appellant, v. Board of State Canvassers and Chad Baase, Appellees. Governor Gretchen Whitmer, Appellant, v. Board of State Canvassers and James Makowski, Appellees. Governor Gretchen Whitmer, Appellant, v. Board of State Canvassers and Michael Garabelli, Appellees. Governor Gretchen Whitmer, Appellant, v. Board of State Canvassers and John Parkinson, Appellees.
Clark Hill PLC, Detroit (by Christopher M. Trebilcock and Vincent C. Sallan ) and Dykema Gossett PLLC, Lansing (by Steven C. Liedel and Gary P. Gordon ) for Governor Gretchen Whitmer and Lieutenant Governor Garlin Gilchrist II. Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Erik A. Grill and Heather S. Meingast, Assistant Attorneys General, for the Board of State Canvassers.
Clark Hill PLC, Detroit (by Christopher M. Trebilcock and Vincent C. Sallan ) and Dykema Gossett PLLC, Lansing (by Steven C. Liedel and Gary P. Gordon ) for Governor Gretchen Whitmer and Lieutenant Governor Garlin Gilchrist II.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Erik A. Grill and Heather S. Meingast, Assistant Attorneys General, for the Board of State Canvassers.
Before: Jansen, P.J., and Ronayne Krause and Gadola, JJ.
Jansen, P.J. Each of these seven consolidated by-right appeals calls for judicial review, in accordance with the Michigan Election Law, MCL 168.1 et seq. , as amended by 2012 PA 417. In each case, the Board of State Canvassers approved for circulation petitions calling for the recall of appellants, Governor Gretchen Whitmer and Lieutenant Governor Garlin Gilchrist II.
See Governor v. Bd. of State Canvassers , unpublished order of the Court of Appeals, entered January 8, 2021 (Docket Nos. 354474, 354475, 354582, 354583, 354794, 354795, and 354878).
In Docket Nos. 354474, 354475, 354583, 354794, 354795, and 354878, Governor Whitmer challenges petitions calling for her recall because of executive orders that she signed that were intended to minimize the impact of the COVID-19 pandemic on the state of Michigan. We affirm the Board of State Canvassers in these six cases. However, in Docket No. 354475, we remand for the ministerial purpose of allowing appellee, Brenda LaChappelle, to correct the scrivener's error in setting forth the date on which the executive order at issue was signed. In Docket No. 354582, Lieutenant Governor Gilchrist challenges a petition prepared in response to his having signed, while the Governor was abroad, 2019 HB 4044, resulting in the enactment of 2019 PA 124, which, among other things, amended the criteria for denying, suspending, or placing on probation insurance producer licenses set forth in MCL 500.1239. We affirm the Board of State Canvassers in this appeal.
I. BACKGROUND
We will address each of the petitions filed in turn. However, we find it necessary to first give a brief overview of the relevant jurisprudence concerning recall petitions. Const. 1963, art. 2, § 8, states:
Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.
The Governor and Lieutenant Governor argue generally that the challenged petitions in these cases did not adequately describe the authorities cited as reasons for the recall. Those parties rely on Wallace v. Tripp , 358 Mich. 668, 101 N.W.2d 312 (1960), and Noel v. Oakland Co. Clerk , 92 Mich. App. 181, 187-188, 284 N.W.2d 761 (1979). In Noel , this Court, citing Wallace , stated that, although "the sufficiency of the reasons in a recall petition is an electoral rather than a justiciable question, ... the reasons ... must be stated with adequate clarity ... to prevent abuse of the elective franchise by ensuring deliberate and informed action by those called upon to sign ..., while ... affording the official ... some minimal due process ...." Noel , 92 Mich. App. at 187-188, 284 N.W.2d 761, citing Wallace , 358 Mich. at 676-678, 101 N.W.2d 312 and MCL 168.966, repealed by 2012 PA 417.
In Dimas v. Macomb Co. Election Comm. , 248 Mich. App. 624, 627-628, 639 N.W.2d 850 (2001), this Court, citing then-current provisions of the Michigan Election Law, stated:
The standard of review for clarity of recall petitions has been described as both "lenient," and "very lenient." Thus, recall review by the courts should be very, very limited. A meticulous and detailed statement of the charges against an officeholder is not required. It is sufficient if an officeholder is apprised of the course of conduct in office that is the basis of the recall drive, so that a defense can be mounted regarding that conduct. Where the clarity of the reasons stated in the petition is a close question, doubt should be resolved in favor of the individual formulating the petition. [Quotation marks and citations omitted.]
Similarly, in Donigan v. Oakland Co. Election Comm. , 279 Mich. App. 80, 755 N.W.2d 209 (2008), this Court held that "truth itself is not a consideration in determining the clarity of recall petition language" because "[s]uch a determination is a political question for the voters, not the courts," and it further held that the "same principle applies with regard to whether the language of the petition sufficiently explains the nature of any legislation referred to within it," id. at 83-84, 755 N.W.2d 209 (quotation marks and citations omitted).
After Dimas and Donigan were issued, the Legislature enacted 2012 PA 417, which modified various provisions of the Michigan Election Law and added to it MCL 168.951a. The latter's Subsection (1) sets forth the requirements for a recall petition, including, under Subdivision (c), that it "[s]tate factually and clearly each reason for the recall" and that each reason "be based upon the officer's conduct during his or her current term of office," and it adds that "[i]f any reason for the recall is based on the officer's conduct in connection with specific legislation, the reason for the recall must not misrepresent the content of the specific legislation." Subsection (2) requires submission of a recall petition to the Board of State Canvassers. Subsection (3) calls for the Board to meet and "determine ... whether each reason for the recall stated in the petition is factual and of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall," and, if answering any of those questions negatively, to reject the entire petition. Subsection (6) states that "[t]he determination by the board of state canvassers may be appealed" in this Court "by the officer whose recall is sought or by the sponsors of the recall petition drive...."
An article in the Michigan Bar Journal summarized some of the effects of the new legislation:
On December 27, 2012, Public Act 417 took immediate effect, substantially changing the way in which elected officials are recalled in Michigan. The amendments clarify and make more uniform the process for recalling elected officials. Uniformity is accomplished by creating consistency in interpretation, placing recalls for all statewide (and
some county) officeholders before the same body, requiring that the reasons stated for the recall be factual, and specifying the periods during which a recall petition may be circulated, precluding multiple, simultaneous recall petitions, etc.
To address concerns regarding inconsistent application of the Michigan Election Law, the 2012 amendments now require petitions seeking the recall of public officials to be submitted to the Board of State Canvassers before being circulated. The board is a constitutionally created commission responsible for canvassing petitions and election results, conducting recounts, and administering elections in Michigan....
The 2012 amendments also added a factuality requirement so that a petition must now state the reasons for recall both "factually and clearly." Although the grounds for recall remain a political question, for the sake of avoiding voter confusion in the present climate of relentless (and often intentionally misleading) political advertisements, the legislature commanded that the ballot language itself must be both factual and clear. [Hanselman, Total Recall: Balancing the Right to Recall Elected Officials with the Orderly Operation of Government , 93 Mich. Bar J. p. 34, 36 (January 2014) (citations and footnote omitted).]
This Court has held that "the Legislature included the terms ‘factual’ and ‘factually’ in MCL 168.951a to ensure that the grounds set forth in a recall petition are stated in terms of a factual occurrence." Hooker v. Moore , 326 Mich. App. 552, 559, 928 N.W.2d 287 (2018). Although the statute requires that a reason for recall "be stated in the form of a factual assertion about the official's conduct," it "does not specify ... that the reason for the recall stated in the petition must be truthful." Id. This is because such a requirement would involve an inquiry into the sufficiency or validity of the reason stated, which our state Constitution "plainly reserves ... to the electors...." Id. , at 559, 928 N.W.2d 287, citing Const. 1963, art. 2, § 8.
These consolidated appeals occasion further application of the Michigan Election Law, as amended by 2012 PA 417.
The Michigan Election Law, including certain provisions of 2012 PA 417, was also amended by 2018 PA 190, but not in ways bearing on any of the issues raised in these appeals.
II. STANDARD OF REVIEW
"[A]n elected officer whose recall is sought may appeal a determination by the Board [of State Canvassers] in this Court for a determination concerning whether the reasons stated in the petition are factual and of sufficient clarity." Hooker , 326 Mich. App. at 555, 928 N.W.2d 287, citing MCL 168.951a(6). We acknowledge that the Governor and the Lieutenant Governor have asked this Court to "clarify and confirm the standard of review applicable to recall petitions after the 2012 amendments to the Michigan Election Law[.]" We agree that the standard of review requires clarification, and we now confirm that this Court reviews questions of clarity of reasons presented in recall petitions de novo, which is consistent with the appellate standard of review for the existence of ambiguity in statutory language, Hooker , 326 Mich. App. at 558-559, 928 N.W.2d 287, or in contractual language, see Barton-Spencer v. Farm Bureau Life Ins. Co. of Mich. , 500 Mich. 32, 39, 892 N.W.2d 794 (2017). Additionally, we confirm that the issue of misrepresentation of legislation, or other textual authority, presents a factual question that we review for clear error. See MCR 2.613(C).
III. ANALYSIS
A. DOCKET NO. 354474
In Docket No. 354474, James Makowski submitted a recall petition to the Board of State Canvassers to recall the Governor, citing the fact that "Gretchen Whitmer issued Executive Order 2020-143 on July 1, 2020 closing indoor service at bars." On appeal, the Governor argues that "while the reason in the Petition is stated as a fact, the Board [of State Canvassers] erred in concluding that the stated reason was ... sufficiently clear, did not misrepresent the content of the executive order referenced in the Petition, and described a course of conduct by Governor Whitmer." Thus, according to the Governor, the Board of State Canvassers erred by approving the subject recall petition for circulation. Executive Order 2020-143 is subtitled "Closing indoor service at bars." It summarizes the history of related executive orders, including judicial challenges; invokes statutory and constitutional authority for each executive action; and recites continuing concerns for the spread of COVID-19. The order then states:
[T]his order closes bars and nightclubs for indoor service in those regions that are in Phase 4 of the Michigan Safe Start Plan. Restaurants can remain open for indoor service, but alcohol can be served only to patrons who are seated at socially distanced tables. Common areas where people stand and congregate within restaurants must be closed. Restaurants and bars may remain open for outdoor seating, but only for seated customers at socially distanced tables.
The order then sets forth several enumerated paragraphs of particulars regarding restrictions imposed and facilities or services implicated. Executive Order 2020-143 was rescinded by Executive Order 2020-160 effective July 31, 2020.
The Governor first argues that the petition lacks clarity because it uses ambiguous and undefined terms, particularly with its reference to "bars." The Governor argues that the word "bars" is ambiguous because dictionaries define a "bar" not only as an establishment that sells alcoholic beverages, but also as a counter at which food or beverages are served, or a shop that sells nonalcoholic beverages, such as coffee. The Governor maintains that where "electors are left to guess at [the] type of ‘bar’ the Petition refers to, the Petition lack[s] sufficient clarity and is noncompliant with the Michigan Election Law." We reject this argument. Any person invited to sign the petition would very likely envision a reference to conventional taverns, where people can purchase and consume alcoholic beverages, when faced with the wording "closing indoor service at bars." This is particularly so when the word is taken in context, used as it is in connection with the related terms "nightclubs" and "restaurants," strongly suggesting that the term "bars" refers to establishments, like nightclubs and many restaurants, that serve alcoholic beverages.
The Governor next argues that the petition language misrepresents Executive Order 2020-143 by stating only generally that the order closed indoor service at bars, when in fact the order was much more particular in its scope. Indeed, MCL 168.951a(1)(c) states that "[i]f any reason for the recall is based on the officer's conduct in connection with specific legislation, the reason for the recall must not misrepresent the content of the specific legislation." However, this appeal—and, with the exception of Docket No. 354582, all the other consolidated appeals—involves executive orders, not legislation.
Recently, albeit in an unpublished and thus nonbinding opinion, this Court concluded as follows: "We hold that MCL 168.951a(1)(c) does not apply to the executive order descriptions because they are not legislation." Governor v. Bd. of State Canvassers , unpublished per curiam opinion of the Court of Appeals, issued December 3, 2020 (Docket No. 353878), 2020 WL 7086093, p.4. We agree with this Court's previous determination and affirm it now. We specifically affirm the following conclusion of this Court:
See MCR 7.215(C)(1), which provides that unpublished decisions of this Court are not precedentially binding under principles of state decisis. They may, however, be consulted as persuasive authority. Hicks v. EPI Printers, Inc. , 267 Mich. App. 79, 87 n. 1, 702 N.W.2d 883 (2005).
Although certain limited executive orders effectively become legislation when the Legislature does not timely object,
Aguirre v. Michigan , 315 Mich. App. 706, 715 n. 4, 891 N.W.2d 516 (2016), those are limited to executive orders transferring powers between executive branch departments, or creating new departments. Const. 1963, art. 5, § 2. See Mich. Mut. Ins. Co. v. Dir., Dep't of Consumer and Indus. Servs. , 246 Mich. App. 227, 236-237, 632 N.W.2d 500 (2001). The listed executive orders did not transfer statutory duties amongst executive departments, and were not issued pursuant to Const. 1963, art. 5, § 2. [ Bd. of State Canvassers , unpub. op. at 4 n. 1.]
Thus, we conclude that Executive Order 2020-143 is not legislation, and therefore it is not subject to the requirements found in MCL 168.951a(1)(c). Accordingly, we reject the Governor's challenge to the petition on the basis that the petition contains misrepresentations of the scope of Executive Order 2020-143.
Finally, the Governor argues that the petition fails to put forth a valid reason for the recall because it describes only a single act and not a course of conduct. Again, we disagree. MCL 168.951a(3) provides, in relevant part, that the Board of State Canvassers must "determine ... whether each reason for the recall stated in the petition is ... of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall." The Governor argues that "the Legislature did not require mere ‘conduct’," but rather "a ‘course of conduct’ with respect to recall petitions, meaning that a single action (such as the signing of one executive order) would not meet the requirements of the Michigan Election Law."
In support of her position, the Governor cites the aggravated stalking statute, MCL 750.411i(1)(a), which defines a "course of conduct" as "a pattern of conduct composed of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose." However, we conclude that the definition of stalking in the Michigan Penal Code, MCL 750.1 et seq., which by its nature involves more than an isolated unwelcome gesture, is not instructive or conclusive in the present application.
Indeed, MCL 168.951a(1)(c) includes, among the requirements for a recall petition, that each stated reason for recall must be "based upon the officer's conduct during his or her current term of office" and recognizes that the reason may be "based on the officer's conduct in connection with specific legislation," implying no need to distinguish an isolated act from a series of actions. Accordingly, we conclude that targeted "conduct" for that purpose may be a course of conduct or a single action. Further, because MCL 168.951a(3) refers to Subsection (1) in the course of directing the Board of State Canvassers to review petitions for conformance with Subsection (3), we will not add to those requirements. See Ally Fin. Inc. v. State Treasurer , 502 Mich. 484, 493, 918 N.W.2d 662 (2018) (stating that statutory interpretation requires examination of the statute "as a whole, reading individual words and phrases in the context of the entire legislative scheme," and that therefore this Court must consider the text "in view of its structure and of the physical and logical relation of its many parts") (quotation marks and citations omitted). On the basis of the foregoing, we conclude that the term "course of conduct" as used in Subsection (3) is neither a limitation on grounds for recall nor a requirement for petition language. Rather, the requirement that the Board of State Canvassers review the reasons stated in recall petitions for clarity is broadly worded in order to cover a succession of related actions along with individual actions.
Moreover, we briefly note the Governor's argument that the signing of a single executive order constitutes a single act, as opposed to a course of conduct, and thus cannot be the basis for a recall petition, would mean reading the challenged petition language so literally as to exclude from consideration any action that the Governor took in connection with the issuance of the order cited but for signing her name (e.g., research, consultations, or deliberations leading up to the signing of the order). If the use of the term "course of conduct" in MCL 168.951a(3) disqualifies isolated actions as legitimate reasons for a recall, presumably few of a Governor's official acts would qualify, and such a result cannot stand.
Additionally, were we to accept the Governor's position that a single act does not constitute a "course of conduct" that may form the basis of a recall petition, this would, for example, immunize an elected official who might accept a single bribe from being recalled for that conduct. That cannot be a plausible understanding of the relevant constitutional and statutory provisions.
On the basis of the foregoing, we conclude that the Board of State Canvassers correctly approved the petition at issue in this appeal.
B. DOCKET NO. 354475
In Docket No. 354475, Brenda LaChappelle submitted a recall petition to the Board of State Canvassers to recall the Governor, citing Executive Order 2020-38. The sole reason provided by LaChappelle for recalling the Governor was that "Gretchen Whitmer signed [E]xecutive [O]rder 2020-38 (Covid-19) on April 1, 2020." On appeal, the Governor raises several of the same arguments we rejected in Docket No. 354474.
Executive Order 2020-38 was signed by the Governor on April 5, 2020, and is subtitled "Temporary extensions of certain FOIA deadlines to facilitate COVID-19 emergency response efforts." Executive Order 2020-38 was rescinded by Executive Order 2020-112 effective June 11, 2020.
Citing MCL 168.951a(3), the Governor argues that the challenged petition is deficient because it mentions the signing of a single executive order, failing to describe a "course of conduct." The parties also disagree on whether the requirement in MCL 168.951a(1)(c) that a petition referencing specific legislation must not misrepresent that specific legislation extends to executive orders. For the reasons previously stated, we reject the Governor's argument that a petition must describe a course of conduct as opposed to an individual act, and we conclude that MCL 168.951a(1)(c) does not extend to the executive orders at issue in these appeals.
We do, however, find it necessary to address the Governor's argument that LaChappelle's failure to list the correct signing date of Executive Order 2020-38 violates the requirement of MCL 168.951a(1)(c) that recall reasons be stated "factually." This issue is unpreserved because it was not raised below. However, this Court retains the authority to decide an unpreserved issue if it concerns a question of law and all the facts necessary for its resolution have been presented. Vushaj v. Farm Bureau Gen. Ins. Co. of Mich. , 284 Mich. App. 513, 519, 773 N.W.2d 758 (2009). Unpreserved claims of error are reviewed for plain error affecting substantial rights. Cove Creek Condo. Ass'n v. Vistal Land & Home Dev., LLC , 330 Mich. App. 679, 696, 950 N.W.2d 502 (2019).
Indeed, the statute requires that a reason for a recall "be stated in the form of a factual assertion about the official's conduct," but "not ... that the reason ... be truthful." Hooker , 326 Mich. App. at 559, 928 N.W.2d 287. Stating that the Governor signed an executive order on a specified date is a factual assertion, whether or not the date specified is correct. The Governor argues that "[t]he effective dates of laws and regulations are a material term," and because the sole reason for recall misstates the signing date of the executive order cited in the petition, it must "be rejected as non-compliant under the Michigan Election Law." We disagree and conclude that mistaking the date as the first day, instead of the fifth day, of a particular month was not sufficiently wayward to invalidate the petition on the ground that the reason for recall is not clear. Indeed, if the petition had said "on or about April 1" instead of "on April 1, 2020," few would be concerned that referring to a date four days ahead of the mark would cause any confusion for the electors or the Governor concerning which executive order, an order that was correctly identified by its number, prompted the recall petition.
Because a plain error has been exposed, we remand this matter to the Board of State Canvassers for the ministerial task of allowing LaChappelle to correct what should be deemed a mere scrivener's error. See People v. Gioglio (On Remand) , 296 Mich. App. 12, 17, 815 N.W.2d 589 (2012), vacated in part on other grounds 493 Mich. 864, 820 N.W.2d 922 (2012) ("This Court is an error-correcting court that has broad authority to take corrective action with regard to lower court proceedings."); MCR 7.216(A)(1) (this Court may "exercise any or all of the powers of amendment of the trial court or tribunal"); MCR 7.216(A)(4) (this Court may permit corrections or additions to the transcript or record); and MCR 7.216(A)(7) (this Court may "enter any judgment or order or grant further or different relief as the case may require").
On the basis of the foregoing, we conclude that the Board of State Canvassers correctly approved the petition at issue in this appeal.
C. DOCKET NO. 354583 In Docket No. 354583, Chad Baase submitted a petition to the Board of State Canvassers to recall the Governor, providing as reasons for the recall that the Governor had "sign[ed] Executive Order 2020-04, Declaration of Emergency, on March 10, 2020, and also for signing Executive Order 2020-67, Declaration of state of emergency under the Emergency Powers of the Governor Act, 1945 PA 302, on April 30, 2020." On appeal, the Governor claims that the Board of State Canvassers erred by approving the petition for circulation, arguing that the recall reasons provided do not name the officer whose recall is sought, and do not adequately describe the legislation to which they refer.
First, we reject the Governor's argument that the petition does not adequately describe the legislation to which it refers, because we concluded in Docket No. 354474 that MCL 168.951a(1)(c) does not extend to the executive orders at issue in these appeals.
We also reject the Governor's argument that the petition did not adequately identify the officer whose recall is sought. The Governor argues that the provision in MCL 168.951a(1)(c) that "[e]ach reason for the recall must be based upon the officer's conduct during his or her current term of office" and the requirement in MCL 168.951a(3) that the Board of State Canvassers determine "whether each reason for the recall stated in the petition is factual and of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall" require that each reason set forth in a recall petition must independently identify the officer involved. The Governor argues that the petition should have been invalidated because, although she was identified by name and title in the petition form where it called for that information, Baase did not repeat her name and title within the wording of the reason for the recall. We reject this argument as it is unpersuasive.
Baase used the petition form approved by the Director of Elections. As this Court has previously noted, "[n]othing within MCL 168.951a(3) precludes the Board [of State Canvassers] from considering the information before the word ‘reason(s)’ when deciding whether the reasons for recall are clear," and "[e]lectors will read the entire sentence, which includes the officer's name and title," when considering the petition. Bd. of State Canvassers , unpub. op. at 3. Indeed, the approved form was designed to highlight the name and office involved in the recall effort, and not to require unnecessary repetition of that basic information within each separately stated reason for recall. We therefore conclude that the petition is not to be reviewed as narrowly as the Governor suggests and that the Board of State Canvassers did not err by considering the entire petition when considering whether to approve it.
On the basis of the foregoing, we conclude that the Board of State Canvassers correctly approved the petition at issue in this appeal.
D. DOCKET NO. 354794
In Docket No. 354794, James Makowski submitted a petition to the Board of State Canvassers to recall the Governor, giving as a reason for the recall:
In April, 2020, Gretchen Whitmer issued Executive Order 2020-50, which required, in part, "A nursing home with a census below 80% must create a unit dedicated to the care of COVID-19-affected residents ("dedicated unit") and must provide appropriate PPE, as available, to direct-care
employees who staff the dedicated unit. A nursing home provider that operates multiple facilities may create a dedicated unit by dedicating a facility for such a purpose."
The salient feature of this appeal is that the Governor asserts that some nonsensical or indecipherable characters appear within the petition language: "The Petition, as submitted, only states that Governor Whitmer ‘issued Executive Order 2020.’ What follows is a series of indiscernible ellipses/dots followed by a quote[.]" The Governor follows this assertion with a graphic representing a detail of her reproduction of the petition, featuring what appears to be a random array of gray dots separating "Gretchen Whitmer issued Executive Order 2020-" and " ‘A nursing home.’ " The Board of State Canvassers retorts that "[t]he copy of the recall petition attached to her brief as Exhibit 1, however, does identify the order by number and does not include any ellipses."
For context, we provide a screenshot of the document in question:
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It appears that the gibberish of which the Governor complains is but an occasional irregularity bound up with the processing of electronic documents. The Board of Canvassers’ own advocacy suggests that it never encountered the puzzling stray characters, and our review of the record in this case turned up no indication that the Board's deliberations were hampered by, or even included any acknowledgment of, any such irregularity. Indeed, when tasked with experimenting with the zoom level, this Court determined that normal prose came into view where gibberish had earlier appeared.
We conclude that although the Governor relied on the appearance of a string of nonsensical characters to support her challenge to the clarity of the petition language, the Governor's hasty conclusion about this word-processing irregularity does not compel reading the petition as featuring some gibberish in place of several normal characters that appear the rest of the time.
The Governor further argues that the petition at issue is deficient because it mentions the signing of a single executive order rather than a course of conduct. The parties also again disagree on whether the requirement in MCL 168.951a(1)(c) that a petition referring to specific legislation must not misrepresent that specific legislation extends to executive orders. For the reasons stated earlier, we reject the Governor's argument that a petition must describe a course of conduct as opposed to an individual act, and we conclude that MCL 168.951a(1)(c) does not extend to the executive orders at issue in these appeals.
On the basis of the foregoing, we conclude that the Board of State Canvassers correctly approved the petition at issue in this appeal.
E. DOCKET NO. 354795
In Docket No. 354795, Michael Garabelli submitted a petition to the Board of State Canvassers to recall the Governor, giving the following as a reason for the recall:
For signing in April of 2020, Executive Order 2020-50, Enhanced protections for residents and staff of long-term care facilities during the COVID-19 pandemic 2) For
saying the following regarding a question about the April 15, 2020 rally, "Operation Gridlock," during an April 13, 2020 News Conference on COVID-19: "I hope that as people are looking at social media they are dispelling and taking on the dissemination of demonstrably inaccurate information. I also would just say, I think it is this group is funded in a large part by the DeVos family and I think it's really inappropriate for a sitting member of the United States President's cabinet to be waging political attacks on any governor, but obviously
on me here at home." 3) For signing in March of 2020, Executive Order 2020-17, Temporary restrictions on on [sic] non-essential medical and dental procedures, which included the following language: "A plan for a covered facility that performs medical procedures should exclude from postponement surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias ) that would prolong life; oncological testing, treatment, and related procedures; pregnancy-related visits and procedures; labor and delivery; organ transplantation ; and procedures related to dialysis."
On appeal, the Governor claims the Board of State Canvassers erred by approving the petition for circulation because the recall reasons provided do not themselves name the officer whose recall is sought, the petition does not describe a course of conduct, the second reason stated in the petition presents a misquotation and otherwise lacks clarity, and the first and third reasons do not adequately describe the legislation to which they refer.
First, for the reasons stated earlier, we reject the Governor's arguments that a petition must describe a course of conduct and that the petition did not adequately identify the officer whose recall is sought, and we conclude that MCL 168.951a(1)(c) does not extend to the executive order at issue in this appeal. Next, we address the Governor's argument that the petition includes misquotations and otherwise lacks clarity. The Governor attacks the reasons for the recall petition on the grounds that the petition misquotes what she said at a press conference. The Governor offers this side-by-side comparison:
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The Governor also invites the reader to search for the pertinent audio at < https://www.rev.com/blog/transcripts/michigan-governor-gretchen-whitmer-press-conference-transcript-april-13> [https://perma.cc/D6GBTDHE]. However, the Governor thus encourages this Court to engage in precisely the sort of review for accuracy that our state Constitution reserves to the electorate. See Hooker , 326 Mich. App. at 559-560, 928 N.W.2d 287, citing Const. 1963, art. 2, § 8. Accordingly, we decline to entertain this argument on the ground that only the electorate is legally competent to decide such things.
It furthermore appears obvious to us that the written transcript of the Governor's remarks is error-riddled—"number" vs "member" and "political tax" vs "political attacks"—and that the petition is very likely a more accurate representation of what the Governor actually said.
Next, the Governor challenges the clarity of the first recall reason on the ground that, after specifying an executive order and its approximate signing date, "What follows is an indiscernible series of words" such that "[i]t is not clear ... whether these words are the Petition sponsor's attempts at summarizing the content of Executive Order 2020-50 or something else entirely." In fact, the words thus challenged, "Enhanced protections for residents and staff of long-term care facilities during the COVID-19 pandemic," quote the subtitle of the order verbatim. We conclude that contrary to the Governor's position, the context of those words suggests that they describe the executive order just cited. The Governor additionally argues that this wording lacks clarity because it uses technical terms defined in the specified order, but not in the reason itself—namely, "long-term care facility," for which Executive Order 2020-50 incorporates by reference a statutory definition, which in turn implicates "home for the aged" and "adult foster care facility" as statutorily defined. We conclude that a reference to the familiar concept of "long-term care facilities" is not rendered unclear when offered as part of the general description of the impact of an executive order, even though the actual legal implementation of the order naturally requires carefully defining the particulars of that general term. Indeed, "long-term care facility" joins such familiar terms as "driving under the influence," "child abuse," and "power of attorney" as not being rendered unclear by the existence of precise statutory definitions that comport with common understandings while refining the terminology for legal application.
The Governor argues that the third reason for recall lacks clarity because of the repetition of the word "on" in its introductory sentence, on the ground that "[i]t is unclear to electors whether the use of ‘on’ twice is mere accident by the Petition's sponsor or whether it is part of the Executive Order referenced." However, it appears to this Court that the repeated "on" was obviously mere inadvertence, and the typographical error was acknowledged in the proceedings below. Moreover, because in the original petition the sentence wraps around to the next line after the first "on," we cannot conclude that many readers would even notice the repetition. It is likely that any reader who might notice would recognize the obvious inadvertence, without concern for whether the stenographic mishap originated with the petitioner or with the executive order at issue. Regardless, the Governor does not suggest any alternative and misleading reading that would result from thinking the repeated "on" intentional, and we cannot think of any. Accordingly, any reader who might think the repeated "on" intentional might ponder the peculiar usage, but would not glean from it any misapprehension of what is actually being conveyed.
The Governor further protests that "without either fixing the error or clarifying that this is part of the Executive Order, the third reason for recall is not sufficiently clear and should result in the entire Petition being rejected." We admit to feeling some astonishment that the Governor's advocate would endeavor to attach so much significance to a repeated preposition.
On the basis of the foregoing, we conclude that the Board of State Canvassers correctly approved the petition at issue in this appeal.
F. DOCKET NO 354878
In Docket No. 354878, John Parkinson submitted three petitions to the Board of State Canvassers to recall the Governor, giving as reasons for the recall that the Governor "signed [E]xecutive [O]rder 2020-11 on March 16, 2020," that the Governor "signed [E]xecutive [O]rder 2020-160 on July 29, 2020," and that the Governor "signed [E]xecutive [O]rder 2020-69 on April 30, 2020." On appeal, the Governor claims the Board of State Canvassers erred by approving the petitions for circulation because none of the petitions describe a course of conduct and the petitions misrepresent by omission the executive orders specified because the petitions only cite the executive orders at issue rather than describing the contents of the orders. On the basis of the reasons provided earlier, we first reject the Governor's argument that the petitions were deficient for failing to describe a course of conduct. Next, the Governor argues that the petitions failed to describe the executive orders in sufficient detail because they provide only the executive order numbers and no information regarding the content of the executive orders. It is possible that some potential signers would decline to sign the petitions in light of the complete lack of information about the substance of the targeted executive orders. However, neither the members of the Board of State Canvassers nor this Court have been asked to decide whether they personally would be satisfied to sign a petition of such weighty significance when it bears such limited information. In MCL 168.951a(1)(c), the Legislature demanded only that the reasons for recall be presented factually and clearly and that attendant legislation must not be misrepresented. Accordingly, just as Const. 1963, art. 2, § 8 leaves the truth behind reasons for recall to the voters to decide, the Legislature has left the sufficiency of the information provided for the potential petition signers to decide. By adding MCL 168.951a to the Michigan Election Law, the Legislature only minimally expanded the information requirements for recall petitions. MCL 168.951a(1)(c) does not call on petitioners to describe the pertinent legislation or executive order in detail, and therefore occasions no revision of the rule that a petition need not "fully explain the nature and effect" of the matter at issue. Donigan , 279 Mich. App. at 84, 755 N.W.2d 209. The Governor's insistence that more information is needed than a bare citation of the executive orders at issue implies a duty of elaboration that is without statutory foundation. On the basis of the foregoing, we conclude that the Board of State Canvassers correctly approved the petitions at issue in this appeal.
G. DOCKET NO. 354582
In Docket No. 354582, Chad Baase submitted to the Board of State Canvassers a petition to recall the Lieutenant Governor, giving as a reason for the recall that the Lieutenant Governor "SIGN[ED] HOUSE BILL 4044 INTO LAW ON NOVEMBER 21, 2019 WHILE GOVERNOR GRETCHEN WHITMER WAS IN ISRAEL." On appeal, the Lieutenant Governor argues that the Board of State Canvassers erred by approving the petition for circulation because the petition does not identify the officer whose recall is sought, the petition fails to describe a "course of conduct" because it only refers to the singular act of signing a piece of legislation, and the petition does not adequately describe the legislation to which it refers. We disagree.
For context, we note that "HOUSE BILL 4044" refers to 2019 HB 4044, which was signed and enacted into law as 2019 PA 124. Among other things, it amended the criteria for denying, suspending, or placing on probation insurance producer licenses set forth in MCL 500.1239. It also limited the consideration of felony convictions for this purpose to those committed "within 10 years before the uniform application was filed," MCL 500.1239(1)(d), with certain exceptions, and added the criteria now set forth in Subsection (1)(i) and Subsection (2). Thus, the recall petition at issue in Docket No. 354582 does not pertain to the Governor's or the Lieutenant Governor's response to the COVID-19 pandemic.
For the reasons stated earlier, we reject the Lieutenant Governor's argument that a petition must describe a course of conduct as opposed to an individual act. Likewise, for the reasons stated earlier, we reject the Lieutenant Governor's arguments that the petition for his recall is deficient because he was only identified in the petition form where it called for that information but not in the wording of the reason for the recall and that the petition was deficient for failing to describe the contents of 2019 HB 4044.
On the basis of the foregoing, we conclude that the Board of State Canvassers correctly approved the petition at issue in this appeal.
IV. CONCLUSION
In Docket Nos. 354474, 354475, 354583, 354794, 354795, 354878, and 354582, we affirm. However, in Docket No. 354475, we remand for the ministerial task of allowing LaChappelle to correct the scrivener's error in setting forth the date on which the executive order at issue was signed. We do not retain jurisdiction.
Gadola, J., concurred with Jansen, P.J.
Ronayne Krause, J. (concurring).
I concur in the result reached by the majority, and for the most part, I also concur with the majority's reasoning. I write separately because, with respect to my esteemed colleagues, I believe that Hooker v. Moore , 326 Mich. App. 552, 928 N.W.2d 287 (2018), was wrongly decided in part. Were I not constrained by MCR 7.215(J)(1) to follow Hooker , I would disagree with the manner in which the majority addresses the petition in Docket No. 354795. I would declare a conflict with Hooker pursuant to MCR 7.215(J)(2). Nonetheless, even if I were free not to follow Hooker , I would independently arrive at the same outcome, because I do not find the quotation from the Governor's press conference untruthful within the meaning of my reading of MCL 168.951a. Furthermore, I would also continue to agree with the majority as to the petition in Docket No. 354475, because I would not consider an obvious scrivener's error to be the kind of inaccuracy that should invalidate a petition.
I. LEGAL BACKGROUND
As the majority thoroughly and thoughtfully outlines, Const. 1963, art. 2, § 8 reserves to the electors whether any stated basis for a recall is a sufficient basis. Our Supreme Court held, in an early case, that the purpose of stating the reason or reasons for a recall was to "furnish information to the electors on which they may form a judgment when called upon to vote." Newberg v. Donnelly , 235 Mich. 531, 534, 209 N.W. 572 (1926). Our Supreme Court further explained that although the statement needed to be "sufficiently clear," it did not need "technical proof." Eaton v. Baker , 334 Mich. 521, 525, 55 N.W.2d 77 (1952). Our Supreme Court later overruled these decisions in part, explaining that its past decisions had erroneously created other restrictions that did not comport with the language of the Constitution or any extant statute, but it reaffirmed that the purpose of the statement in a recall petition "was to have the issue over the conduct of the officer informatively presented to both prospective petition signers and recall voters" pursuant to the importance placed upon "the proper functioning of an intelligent and informed electorate." Wallace v. Tripp , 358 Mich. 668, 676, 680, 101 N.W.2d 312 (1960). This Court's jurisprudence, however, did not seem to entirely follow that mandate. It was generally understood that recall petitions needed to be stated with a reasonable degree of clarity when read as a whole, and the laypersons drafting such petitions were not obligated to provide extensive detail. See Schmidt v. Genesee Co. Clerk , 127 Mich. App. 694, 699-700, 339 N.W.2d 526 (1983). However, this Court emphasized that the clarity of a petition did not turn on its truthfulness, and the courts were only to review a petition's clarity. See Mastin v. Oakland Co. Elections Comm. , 128 Mich. App. 789, 793-794, 341 N.W.2d 797 (1983) ; Meyers v. Patchkowski , 216 Mich. App. 513, 517-518, 549 N.W.2d 602 (1996).
My concern with the foregoing analysis from this Court is that "sufficiency" and "accuracy" are wholly different concepts. According to Merriam-Webster's Collegiate Dictionary (11th ed.), "sufficiency" refers to adequacy or being "enough to meet the needs of a situation or a proposed end." Similarly, Black's Law Dictionary (8th ed.) also defines "sufficiency" as pertaining to adequacy or being "of such quality, number, force, or value as is necessary for a given purpose." Neither definition pertains to whether something is true or false. It appears to me that prohibiting consideration of whether a statement in a petition is demonstrably untrue conflicts with the plain language of Const. 1963, art. 2, § 8, and it also conflicts with our Supreme Court's emphasis on the electors being informed. It also appears to conflict with an earlier decision from this Court opining that the clarity requirement in recall petitions was, in part, to ensure "deliberate and informed action" and "afford[ ] the official sought to be recalled at least some minimal due process guarantees." Noel v. Oakland Co. Clerk , 92 Mich. App. 181, 187-188, 284 N.W.2d 761 (1979) (emphasis omitted). Nevertheless, the preceding cases predate the enactment of MCL 168.951a, pursuant to 2012 PA 417, and they form an important backdrop for understanding 2012 PA 417. As the majority explains, the enactment of MCL 168.951a expressly imposed a new requirement: the stated reasons for a recall must not only be clear, but also "factual." Likewise, the statements must now be reviewed to ensure that they are both "factual" and "of sufficient clarity." I respectfully disagree with the majority as to what a review for "factualness" entails.
II. DISAGREEMENT WITH HOOKER
This Court's obligation when considering the meaning of a statute is to give effect to the intent of the Legislature by applying the plain and ordinary meaning of the words and language used. Pohutski v. City of Allen Park , 465 Mich. 675, 683, 641 N.W.2d 219 (2002). As this Court observed in Hooker , and I agree, "[i]n ordinary usage, the word ‘factual’ can mean ‘restricted to or based on fact,’ while the word ‘fact’ can be understood to mean ‘an actual occurrence’ and ‘a piece of information presented as having objective reality[.]’ " Hooker , 326 Mich.App. at 559, 928 N.W.2d 287, quoting Merriam-Webster's Collegiate Dictionary (11th ed.) (second alteration by the Hooker Court). The Hooker Court then determined that "the plainest construction" of MCL 168.951a was that "factual" and "factually" referred to setting forth grounds in a recall petition "stated in terms of a factual occurrence." Id. The Hooker Court explained that this meant "stated in the form of a factual assertion about the official's conduct," and it did not require the petition to be truthful. In other words, the Hooker Court concluded that "factual" only pertains to the superficial manner in which a recall petition is phrased and has nothing to do with its substance. Id. at 559-560, 928 N.W.2d 287. I respectfully conclude that this was incorrect. Nowhere in the statute did the Legislature use any phrasing like "stated as a fact" or "presented in a factual manner." Rather, the statute is concerned with whether a statement "is factual," and the statute once uses the word "factualness." The plainest reading of the face of the statute is not that a statement must look like it describes a fact, but rather that the statement must actually be true.
I am mindful that we should not look outside the unambiguous language of a statute, and "courts may not speculate about an unstated purpose where the unambiguous text plainly reflects the intent of the Legislature." Pohutski , 465 Mich. at 683, 641 N.W.2d 219. Similarly, courts should not consider whether an unambiguous statute is wise or fair. See People v. McIntire , 461 Mich. 147, 159, 599 N.W.2d 102 (1999). Courts should construe statutes "to prevent absurd results, injustice, or prejudice to the public interest," Rafferty v. Markovitz , 461 Mich. 265, 270, 602 N.W.2d 367 (1999), but not if doing so would depart from the plain language of the statute, McIntire , 461 Mich. at 155-159, 155 n. 8, 599 N.W.2d 102. Nevertheless, I observe that the unambiguous language as I read it is supported both by historical context and by considering what different interpretations of MCL 168.951a would actually achieve.
Much of this Court's jurisprudence emphasizes that "clarity" has nothing to do with "truth." Nevertheless, our Supreme Court emphasized that the goal is to ensure that electors are informed. The Constitution unambiguously reserves to the electors only the determination of whether a stated reason is, essentially, "good enough." Thus, the plain language of the Constitution does not exclusively reserve to the electors the determination of whether a stated reason is founded in reality. There is obvious tension between ensuring that the electors can make an informed decision and allowing petitions to lie with impunity. By analogy, juries are generally the sole deciders of fact in trials, are expected to work from their own memories of the evidence, and are instructed that statements by attorneys are not evidence—but even so, attorneys may not lie or misrepresent the evidence during closing arguments. Elected officials might be uncomfortable with the prospect of recall petitions freely advancing lies.
Furthermore, little would be achieved by merely requiring recall petition statements to be formatted in a particular way. It is difficult to understand how a "clear" statement of the reason or reasons why an elected official should be recalled would not almost necessarily be phrased as a factual assertion in any event. Merely requiring a change to the outward, superficial manner in which a statement is phrased would not seem to result in any meaningfully different analysis from what was in place before 2012 PA 417. In general, we should presume that the Legislature intended its words to have a purpose. Pohutski , 465 Mich. at 683-684, 641 N.W.2d 219. Furthermore, the law favors consideration of substance, irrespective of how that substance is presented. Hurtford v. Holmes , 3 Mich. 460, 463 (1855) ; Wilcox v. Moore , 354 Mich. 499, 504, 93 N.W.2d 288 (1958) ; John Deere Co. v. Wonderland Realty Corp. , 38 Mich. App. 88, 91, 195 N.W.2d 871 (1972). The imposition of a new inquiry into the truth or falsity of a statement, however, would leave intact this Court's precedent regarding how to analyze clarity, and it would further the goal of ensuring that the electorate is informed. I would hold that the Hooker Court's interpretation of MCL 168.951a violates the plain language of the statute. However, assuming the language of the statute is in any way ambiguous, the Hooker Court's interpretation also contravenes the spirit of Const. 1963, art. 2, § 8, undermines our Supreme Court's historical analysis of the purposes to be served by recall statements, and renders the Legislature's enactment almost entirely nugatory. Clearly, it has always been understood that doubts should be resolved in favor of the drafters of a petition. Nevertheless, I would conclude that MCL 168.951a now expands the review of petitions to at least inquire into whether any part of the petition is demonstrably false. Under the Constitution, the stated reason for a recall may be arbitrary. However, the stated reason must be sufficiently clear to be comprehended, and it must not be a work of fiction or imagination. I am bound to follow Hooker pursuant to MCR 7.215(J)(1), but I would declare a conflict pursuant to MCR 7.215(J)(2).
As stated in the majority opinion, "[t]he sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question." Const. 1963, art. 2, § 8.
III. ALTERNATIVE ANALYSIS
For the most part, my disagreement with Hooker does not affect the petitions at issue before this Court. However, the majority expressly declines to consider whether the recall petition in Docket No. 354795 faithfully quoted what the Governor actually said at her April 13, 2020, press conference. I do not agree with the majority's supposition that "the petition is very likely a more accurate representation of what the Governor actually said" than is the transcript proffered by the Governor. Nevertheless, I concur with the majority's ultimate conclusion.
I find it unclear whether the majority considers the truthfulness of the petition in Docket No. 354475, notwithstanding Hooker . In any event, however, I agree with the majority's substantive analysis as to that petition. Under what I consider a proper reading of MCL 168.951a, obvious scrivener's errors would not render a statement "false," and the proper response is to permit correction of any such errors.
In relevant part, the petition quotes the press conference as follows:
I hope that as people are looking at social media they are dispelling and taking on the dissemination of demonstrably inaccurate information. I also would just say, I think it is this group is funded in a large part by the DeVos family and I think it's really inappropriate for a sitting member of the United States President's cabinet to be waging political attacks on any governor, but obviously on me here at home.
The Governor's transcript of the press conference presents slightly different phrasing:
I hope that as people are looking at social media, they are dispelling and taking on the dissemination of demonstrably inaccurate information. I also would just say I think this group is funded in large part by the DeVos family. I think it's really inappropriate to, for a sitting number of the United States President's Cabinet, to be waging political tax on any governor. Obviously, I'm me here at home.
Rather than engaging in speculation, I have reviewed the press conference itself, and it appears that what the Governor actually said is:
I hope that as people are looking at social media they are, um, dispelling, you know, the, and and [sic] taking on the dissemination of demonstrably inaccurate information. Ah, I also would just say, I think it is, um, this group is funded in large part by the DeVos family, and I think it's really inappropriate
to, for a sitting member of the United
States President's Cabinet to be waging political attacks on, on any governor, but obviously on me here at home.
As discussed, I construe MCL 168.951a as imposing a mandate to ensure that statements in recall petitions are not untruthful. However, as also discussed, review of such statements is deferential and eschews hypertechnicality. Finally, once again, the law favors consideration of substance over obsession with superficial or trivial details.
Ultimately, it appears the majority guessed correctly: both the Governor's transcript and the statement in the petition take some insignificant liberties with the Governor's actual words, but the petition is certainly no less accurate than the transcript. More importantly, the statement in the petition is grounded in objective reality, and none of its technical inaccuracies amounts to a substantive misrepresentation of the Governor's actual words.
IV. CONCLUSION
In summary, I would hold that the Legislature, in enacting MCL 168.951a, imposed a new requirement that statements in recall petitions must not be substantively untruthful, which is consistent with the constitutional reservation of the sufficiency of a recall petition to the electors and the historical goal of ensuring that the electors are able to make intelligent and informed decisions. I would hold that Hooker was wrongly decided insofar as it held that MCL 168.951a imposed a requirement that recall petition statements must be phrased in a certain way. I conclude that under MCL 168.951a it is necessary to consider whether the petition in Docket No. 354795 was untruthful. However, I would also hold that the inquiry is not a hunt for technicalities. Therefore, having compared the petition, the Governor's proffered transcript of her April 13, 2020, press conference, and the Governor's actually spoken words, I am unable to find the petition untruthful. I therefore concur in affirming.