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Attorney General v. Board of State Canvassers And Director of Elections

Supreme Court of Michigan

December 9, 2016

ATTORNEY GENERAL, Plaintiff-Appellee,
v.
BOARD OF STATE CANVASSERS and DIRECTOR OF ELECTIONS, Defendants-Appellees, and JILL STEIN, Intervening Defendant-Appellant. DONALD J. TRUMP, Plaintiff-Appellee,
v.
BOARD OF STATE CANVASSERS and DIRECTOR OF ELECTIONS, Defendants-Appellees, and JILL STEIN, Intervening Defendant-Appellant. COA 335947, COA 335958

          Robert P. Young, Jr., Chief Justice Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen, Justices.

          ORDER

         On order of the Court, the application for leave to appeal the December 6, 2016 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

          Zahra and Viviano, JJ. (concurring).

         We concur with the Court's denial order and with the Court of Appeals' judgment that it leaves in place. We write separately because we believe there are additional textual arguments that support the Court of Appeals' conclusion that petitioner failed to adequately allege that she "is aggrieved on account of fraud or mistake in the canvass of the votes . . . ."

         This case presents a question of statutory interpretation. "The role of this Court in interpreting statutory language is to ascertain the legislative intent that may reasonably be inferred from the words in a statute."[1] It is a longstanding, fundamental maxim of statutory interpretation that we must examine the statute as a whole, taking care to read the individual words and phrases in the context of the entire legislative scheme.[2] In doing so, we must give effect to every word and phrase in the statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.[3]

         In order for the candidate to successfully petition for a recount, the petition must allege "that the candidate is aggrieved on account of fraud or mistake . . . ."[4] "Account" means "to be the sole or primary factor[.]"[5] Thus, there must be a causal relationship between the alleged fraud or mistake and the alleged harm. To satisfy the statutory requirements, the petition must allege both parts of this causal relationship. To determine otherwise would impermissibly render the Legislature's inclusion of the phrase "the candidate is aggrieved on account of" nugatory. Therefore, under MCL 168.879(1)(b), the petition must allege both that fraud or mistake exists and that the alleged fraud or mistake caused the candidate to be aggrieved.[6]

         The conclusion that a candidate is obligated to allege both requirements is also supported by the amendments to the relevant language of MCL 168.879(1)(b). "[C]ourts must pay particular attention to statutory amendments, because a change in statutory language is presumed to reflect either a legislative change in the meaning of the statute itself or a desire to clarify the correct interpretation of the original statute."[7] When enacted, MCL 168.879(1)(b) provided that "[a]ny candidate . . . who considers himself aggrieved on account of any fraud or mistake" could file a petition.[8] In 1980, the Legislature amended the statute to provide that "[t]he petition shall allege that the candidate is aggrieved on account of fraud or mistake . . . ."[9] The statute was then amended to its current form in 1999.[10] These amendments demonstrate that the Legislature rejected the prior, more permissive standard in favor of a more stringent one imposing the added requirement that a candidate must allege that he or she is aggrieved by the fraud or mistake.

         Additional textual clues support our construction. Recount procedures are also statutorily defined for elections in smaller jurisdictions within the state, such as counties, cities, and townships.[11] Like the prior versions of MCL 168.879(1)(b), MCL 168.862 provides that "[a] candidate for office who believes he or she is aggrieved on account of fraud or mistake in the canvass or returns of the votes by the election inspectors may petition for a recount . . . as provided in this chapter."[12]

         In contrast to the current version of MCL 168.879(1), a candidate petitioning a local board of canvassers is not obligated to allege facts showing that he or she is aggrieved; it is enough to allege that one "believes" he or she is aggrieved. Therefore, in MCL 168.862 and MCL 168.865, enacted by the same public act as MCL 168.879(1), [13]the Legislature demonstrated its ability to dispense with the "aggrieved" pleading requirement. Had it intended to do the same for MCL 168.879(1), the Legislature clearly knew how to do so.[14] The different language it chose is a clear indication that the Legislature intended for a candidate bringing a petition under MCL 168.879(1) to allege that he or she has been aggrieved on account of the alleged fraud or mistake.[15]

         Having determined that a candidate must allege that fraud or mistake exists and that the alleged fraud or mistake caused the candidate to be aggrieved, the next question is the level of specificity with which those allegations must be pleaded.[16] Are specific allegations required or may a candidate simply cut-and-paste the statutory language into the petition? Once again, reading the statutory language in context provides the answer. The Legislature has expressly permitted candidates petitioning for a recount under MCL 168.879(1) to allege fraud or mistake without specification. Immediately following the requirement that the candidate must allege that he or she is aggrieved on account of fraud or mistake, MCL 168.879(1)(b) states:

The petition shall contain specific allegations of wrongdoing only if evidence of that wrongdoing is available to the petitioner. If evidence of wrongdoing is not available, the petitioner is only required to allege fraud or a mistake in the petition without further specification.

         This provision sets a very low bar-it allows bare allegations of fraud or mistake to suffice.[17]

         Although the Legislature clearly intended to allow bare allegations to suffice with respect to fraud or mistake, it did not similarly lower the bar with respect to the requirement to allege that the candidate is aggrieved. Instead, the Legislature was silent on this point. "It is a familiar rule that inclusion by specific mention excludes what is not mentioned."[18] Because the Legislature relaxed the pleading standard with respect to fraud or mistake but not with respect to the "aggrieved" requirement, we may not read a relaxed pleading standard with respect to the latter into the statute.[19] Therefore, a candidate must include in the petition some allegation describing how he or she has been aggrieved.

         In this case, although much ink has been spilled over petitioner's motivation for this recount and the resulting cost to the State, those considerations do not inform our analysis. Instead, "it is the actual language of a statute to which this Court must ultimately be faithful."[20] This Court has long recognized that "[t]he proceedings for a recount are purely statutory, and the statutory requirements must be observed."[21] Simply put, "[n]oncompliance with statutory requirements concerning recounts precludes a recount."[22]

         The petition here states, "I and the undersigned members of my slate of electors, individually and collectively, are aggrieved on account of fraud or mistake in the canvass of votes . . . ." As the Court of Appeals recognized, petitioner "merely parroted the language of MCL 168.879(1)(b) in her petition."[23] Thus, petitioner failed to allege that she has been harmed or that her legal rights have been infringed in any way whatsoever. Because she has not done so, petitioner failed to satisfy the statutory requirement of alleging that she was aggrieved as required by MCL 168.879(1)(b).[24] Accordingly, the

         Court of Appeals correctly concluded that "the Board had a clear legal duty to reject [the] petition."[25] For these reasons, we concur with this Court's order denying leave to appeal.[26]

          Markman, J., joins the statement of Zahra and Viviano, JJ.

          McCormack, J. (dissenting).

         I would order expedited oral argument on intervening defendant-appellant Jill Stein's application for leave to appeal. The Court of Appeals, relying on our precedent, has ruled that her petition for a recount does not satisfy the requirements of MCL 168.879(1)(b) because she is not an "aggrieved" candidate under the statute. That is not so clear. The Court of Appeals relied on dictionary definitions and our precedents defining who constitutes an "aggrieved party, " but I question the applicability of those precedents to this case given the statutory language. MCL 168.879(1)(b) provides some of the requirements that a petition for a recount must meet:

The petition alleges that the candidate is aggrieved on account of fraud or mistake in the canvass of the votes by the inspectors of election or the returns made by the inspectors, or by a board of county canvassers or the board of state canvassers. The petition shall contain specific allegations of wrongdoing only if evidence of that wrongdoing is available to the petitioner. If evidence of wrongdoing is not available, the ...

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