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Citizens Protecting Michigan's Constitution v. Secretary of State

Court of Appeals of Michigan

June 7, 2018

CITIZENS PROTECTING MICHIGAN'S CONSTITUTION, JOSEPH SPYKE, and JEANNE DAUNT, Plaintiffs,
v.
SECRETARY OF STATE and MICHIGAN BOARD OF STATE CANVASSERS, Defendants/Cross-Defendants, and VOTERS NOT POLITICIANS BALLOT COMMITTEE, doing business as VOTERS NOT POLITICIANS; COUNT MI VOTE, doing business as VOTERS NOT POLITICIANS; KATHRYN A. FAHEY; WILLIAM R. BOBIER; and DAVIA C. DOWNEY; Intervening Defendants/Cross-Plaintiffs.

          Before: Cavanagh, P.J., and K. F. Kelly and Fort Hood, JJ.

          PER CURIAM.

         Plaintiffs Citizens Protecting Michigan's Constitution (CPMC), Joseph Spyke, and Jeanne Daunt seek a writ of mandamus that orders defendants Secretary of State (Secretary) and the Board of State Canvassers (the Board) to reject an initiative petition filed by Voters Not Politicians concerning the forming of an independent citizen commission regarding redistricting and to not place it on the 2018 general election ballot. Intervening defendants Voters Not Politicians Ballot Committee and Count MI Vote, both doing business as Voters Not Politicians (VNP), Kathryn A. Fahey, William R. Bobier, and Davia C. Downey filed a cross-complaint, asking this Court to direct defendants to immediately execute their clear legal duties regarding the initiative petition. We deny the relief sought in the complaint for a writ of mandamus and grant the cross-complaint.

         I. FACTS AND PROCEDURAL HISTORY

         A. THE PARTIES

         Plaintiff CPMC is a ballot question committee. Plaintiff Spyke is a qualified elector registered to vote in Ingham County and is a former paid employee of a political candidate. Plaintiff Daunt, a qualified elector registered to vote in Genesee County, is the parent of a person otherwise disqualified from serving on the proposed commission.

         Defendant Secretary is the chief election officer of the state and has supervisory authority over local election officials. MCL 168.21. See also Const 1963, art 5, § 3. Defendant Board is a constitutionally created board; Const 1963, art 2, § 7. Its duties are established by law; MCL 168.22(2) and MCL 168.841. It canvasses initiative petitions to determine if the requisite number of qualified and registered electors has signed the petition. It makes the final decision regarding the sufficiency of the petition. MCL 168.476.

         Intervening defendant VNP is a ballot question committee. Intervening defendant Fahey, a qualified elector registered to vote within Kent County, is the founder of VNP and serves as treasurer. Intervening defendant Bobier, who signed the VNP petition, is a qualified elector registered to vote within Oceana County and a former elected member of the Michigan House of Representatives. Intervening defendant Downey, who signed the VNP petition, is a qualified elector registered to vote within Ingham County.

         B. THE INITIATIVE PETITION

         On June 28, 2017, intervening defendant VNP Ballot Committee filed an initiative petition for the ballot proposal with the Secretary as required by MCL 168.471.[1] After staff at the Bureau of Elections initially refused to recommend that the petition be approved, VNP redrafted the proposal to further address issues of abrogation and alteration. The Board approved the form of the petition on August 17, 2017, noting that its approval did not extend to the substance of the proposal, the substance of the summary of the proposal, the manner in which the proposal language is affixed to the petition, or whether the petition properly characterizes those provisions of the Constitution that have been altered or abrogated.

         On December 18, 2017, VNP submitted the initiative petition supported by over 425, 000 signatures[2] of registered voters for an amendment to the constitution to be placed on the November 2018 general election ballot. Primarily the VNP Proposal would amend Article 4, § 6 of Michigan's 1963 Constitution regarding the commission on legislative redistricting by changing the composition of the commission and its administration.[3] A new independent citizen commission would have exclusive authority to develop and establish redistricting plans for the senate, house and congressional districts.

         To prevent the VNP Proposal from appearing on the ballot, and before the Board could certify the petition as sufficient or insufficient, counsel for CPMC sent a letter to the Secretary, urging her to reject the VNP Proposal on the ground that it should not be submitted to voters because it was massive and would enact sweeping changes to the constitution. CPMC contended that it was a general revision to the constitution and thus could not be accomplished by ballot initiative. Further, the VNP Proposal purportedly omitted multiple sections of the constitution that would be abrogated by the proposal. CPMC asserted that the Secretary had a clear legal duty to reject the petition.

         Counsel for VNP then sent a letter to the Board, requesting that it certify the VNP Proposal for the November 2018 general election ballot. VNP observed that no challenges to the 428, 587 signatures had been filed by the deadline. Further, two separate entities had analyzed the sampled signatures and determined that 466 out of 505 sample signatures were valid, thereby confirming that a sufficient number of signatures support the proposal. VNP indicated that the instant suit by CPMC was irrelevant to the Board's clear legal duty to certify the VNP Proposal.

         On May 22, 2018, the Bureau of Elections released its staff report pursuant to MCL 168.476(3). In it, the Bureau staff recommended that the Board certify the petition.

         After plaintiffs filed the instant complaint for mandamus, intervening defendants moved to intervene. This Court granted the motion to intervene and accepted the cross-complaint filed by intervening defendants. Citizens Protecting Michigan's Constitution v Secretary of State, unpublished order of the Court of Appeals, entered May 11, 2018 (Docket No. 343517).

         The Board notes that it must complete its canvass of VNP's petition at least two months before the November 2018 general election. Const 1963, art 12, § 2; MCL 168.476(2); MCL 168.477(1). Also, the Director of Elections also must prepare a statement of not more than 100 words for placement on the ballot. MCL 168.32(2).

         C. BACKGROUND

         VNP asserts that its proposal is "a desired means to remedy the widely-perceived abuses associated with partisan 'gerrymandering'[4] of state legislative and congressional election districts by the establishment of new constitutionally-mandated procedures designed to ensure that the redistricting process can no longer be dominated by one political party." More than a century ago, Justice Morse of our Supreme Court warned of the "greatest danger to our free institutions" where a political party retains its political power by dividing election districts in a manner to give special advantages to one group:

By this system of gerrymandering, if permitted, a political party may control for years the government, against the wishes, protests, and votes of a majority of the people of the State, each Legislature, chosen by such means, perpetuating its political power by like legislation from one apportionment to another. [Giddings v Secretary of State, 93 Mich. 1, 13; 52 N.W. 944 (1892), Morse, C.J., concurring.][5]

Ninety years later, our Supreme Court commented that, "[i]n many states, the most egregious gerrymandering is practiced by the Legislature with the aid of computers to achieve results which will pass must under federal standards yet favor the partisan interests of the dominant political faction." In re Apportionment of State Legislature-1982, 413 Mich. 96, 137; 321 N.W.2d 565 (1982). In short, "[i]t is axiomatic that apportionment is of overwhelming importance to the political parties." In re Apportionment of State Legislature-1992, 439 Mich. 715, 716; 486 N.W.2d 639 (1992). Or, as Senator John Cornyn of Texas once said, "You can't take the politics out of politics, and there is nothing more political than redistricting."[6]

         We are not alone in analyzing redistricting issues. Challenges to alleged unconstitutional partisan gerrymandering are pending before the United States Supreme Court in two cases.[7]Further, suit has been brought in the United States District Court, Eastern District of Michigan, to contest Michigan's existing apportionment plan.[8]

         In the United States, a minority of states employ a nonpartisan independent mechanism for the drawing of legislative districts.[9] In most of the remaining states, including Michigan, whichever party is in control of the state Legislature draws the districts.[10]

         D. THE 1963 CONSTITUTION-REDISTRICTING

         Under the 1963 Michigan constitution, the 38 members of Michigan's senate and the 110 members of the house of representatives are elected according to the district in which they reside. The constitution sets forth the apportionment factors and rules for individual districts, which are redrawn after the publication of the total population within the federal decennial census. Const 1963, art 4.

         The apportionment of districts for representatives and senators is not a recent phenomenon, as the Michigan Constitution of 1835 addressed apportionment[11] and set forth parameters for representative districting[12] and for senate districts.[13] Fifteen years later, Article 4 was revised to provide for the division of a county into representative districts, when necessary, by board of supervisors.[14] The 1908 Constitution continued the division of counties into districts by a board of supervisors.[15] In the general election in 1952, the voters passed Proposition 3, which amended Articles 2-4 of § 5 of the 1908 Constitution to establish senate districts with geographic boundaries that were not subject to alteration based on a population change.[16] After the 1961 Constitutional Convention, the 1963 Constitution called for districts to be apportioned under a weighted formula based on land area and population.

         Under the current constitution, senate districts are aligned with Michigan's counties, each of which is assigned an apportionment factor of the state's population, based on the census, multiplied by four and the county's percentage of the total land area. Const 1963, art 4, § 2. The constitution also sets forth particular rules for the dividing of the state into senatorial districts. Const 1963, art 4, § 2.

         House districts are defined by representative areas that "shall consist of compact and convenient territory contiguous by land." Const 1963, art 4, § 3. The districts also are defined by county and based on population. Const 1963, art 4, § 3.

         After one representative is assigned to each representative area as defined above, the remaining house seats are apportioned on the basis of population. Const 1963, art 4, § 3. Counties that are entitled to two or more representatives are divided into single member districts, which are created based on population and which, if possible, should follow city and township boundaries and "be composed of compact and contiguous territory as nearly square in shape as possible." Const 1963, art 4, § 3. Representative areas that contain more than one county, and are entitled to more than one representative, are divided into single member districts, which adhere to county lines and are as equal as possible in population.[17] Const 1963, art 4, § 3.

         Thus, over half a century ago, the Constitution of 1963 established criteria and procedures to appoint a commission to decide the apportionment of legislative districts for the senate and house of representatives. Const 1963, art 4, § 6; In re Apportionment of Legislature- 1972, 387 Mich. 442, 450; 197 N.W.2d 249 (1972) ("The people in adopting the 1963 State Constitution, provided the procedure to carry out legislative reapportionment."). The constitution provided for an eight-member commission whose purpose was to "district and apportion the senate and house of representatives according to the provisions of this constitution." Const 1963, art 4, § 6, ¶ 5. A new commission would be appointed whenever the constitution requires apportionment or districting. Const 1963, art 4, § 6, ¶ 3. Four members were selected by the state organizations of the Democratic and Republican parties.[18] Const 1963, art 4, § 6, ¶ 1. The state political organizations also selected a resident from four specific regions, including the upper peninsula and three portions of the lower peninsula-the north, the southwest and the southeast. Const 1963, art 4, § 6, ¶ 1. With two exceptions, commission members could not be officers or employees of government and could not serve in the Legislature for two years after the apportionment in which they participated became effective. Const 1963, art 4, § 6, ¶ 2. Members held office until the apportionment they worked on became operative. Const 1963, art 4, § 6.

         When a majority of the commission could not agree on redistricting, the members could submit a proposed plan to our Supreme Court. Const 1963, art 4, § 6, ¶ 7. The Supreme Court "shall determine which plan complies most accurately with the constitutional requirements and shall direct that it be adopted by the commission and publish as provided in this section." Const 1963, art 4, § 6, ¶ 7.[19]

         Since the commission's inception, the apportionment of legislative districts has not been without conflict, causing our Supreme Court to preside over apportionment issues on several occasions. Or, as stated by Justice Brennan:

The constitution creates a Commission on Legislative Apportionment. Four members are Republicans, four members are Democrats. Every ten years the Commission meets. Every ten years the Commission is unable to agree. [In re Apportionment of Legislature-1972, 387 Mich. at 459, Brennan, J., dissenting.]

         The very first commission after the adoption of the 1963 Constitution illustrates Justice Brennan's point. In May 1964, our Supreme Court directed the commission to adopt a particular plan when the commissioners could not agree. In re Apportionment of State Legislature-1964, 372 Mich. 418, 480; 126 N.W.2d 731 (1964). The United States Supreme Court then issued Reynolds v Sims, 377 U.S. 553; 84 S.Ct. 1362; 12 L.Ed.2d 506 (1964), ruling that the weighted land area/population formulae rules violated the Equal Protection Clause of the United States Constitution. The Court indicated that the states should "make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable." Id. at 577.

         Our Supreme Court then ordered the commission to adopt a different plan, the Austin-Kleiner plan, because it more closely aligned with Reynolds in that its districts contained population as nearly equal as practicable. In re Apportionment of State Legislature-1964, 373 Mich. 247; 128 N.W.2d 721 (1964). An elector then challenged the Austin-Kleiner plan and again the commission could not agree, so again our Supreme Court was called upon. In re Apportionment of State Legislature-1965-1966, 377 Mich. 396, 474; 140 N.W.2d 436 (1966). The Court ultimately dismissed the challenge, but not before Justice Black suggested that the eight commissioners' names be placed in a jury box, seven of them chosen at random, and those seven be directed to apportion the districts.[20] Id. at 413.

         In 1972, after the Commission on Legislative Apportionment failed to settle on a plan, [21]the apportionment issue again was before our Supreme Court, which decided that the Hatcher-Kleiner plan most closely complied with the constitutional requirements, without addressing the constitutionality of the requirements themselves. In re Apportionment of State Legislature- 1972, 387 Mich. at 458.

         Ten years later, our Supreme Court examined whether the commission's authority continued despite the holding from the United States Supreme Court that the apportionment rules are unconstitutional and, if so, what standards governed. The Court held that Reynolds invalidated the weighted land area/population formulae and the remaining apportionment rules in Article 4 were "inextricably interdependent" and thus were not severable. Likewise, the commission's functions, and the commission itself, were dependent on the rules and could not be severed. In re Apportionment of State Legislature-1982, 413 Mich. at 116. The Court added that "[t]he matter should be returned to the political process in a manner which highlights rather than hides the choices the people should make." Id. at 138.

         Thereafter, rather than relying on a commission, which was held to be inextricably related to the apportionment formulae negated by the United States Supreme Court, the Michigan Supreme Court appointed Bernard J. Apol, former Director of Elections, to produce maps to conform with the pertinent apportionment rules.[22] In 1982, the Court adopted Apol's plan. In re Apportionment of State Legislature-1982, 413 Mich. 146; 321 N.W.2d 584 (1982).

         Almost 10 years later, in a statement reflecting upon the 1982 decision, Justice Levin indicated that the people were to have adopted new apportionment rules:

Another assumption of the compromise [within the 1982 decision] was that responsible persons would come forth and place on the ballot, and the people would adopt, new apportionment rules in time for the 1992 and 1994 elections. Indeed, that was one of the arguments for non-severability-to highlight the need for a new constitutional provisions regarding legislative apportionment. The Court's exhortation has not been heeded. [In re Apportionment of State Legislature-1990, 437 Mich. 1208, 1211; 463 N.W.2d 713 (1990), Levin, J., concurring.]

         In 1990, the Legislature failed to arrive at an apportionment. In re Apportionment of the State Legislature-1992, 439 Mich. at 723. Lawsuits were filed and, in 1991, our Supreme Court appointed a panel of special masters to accomplish the reapportionment. Id. at 724. This Court ultimately accepted, for the most part, the plan that the masters proffered. In re Apportionment of the State Legislature-1992, 439 Mich. 251; 483 N.W.2d 52 (1992).

         In 1996, the Legislature enacted guidelines for the redistricting of senate and house of representative districts, see MCL 4.261 et seq. In 1999, the Legislature passed the congressional redistricting act, MCL 3.61 et seq. Thus, after the past two federal decennial censuses, redistricting has occurred without a commission, as the Legislature has decided the districts. With that history in mind, we turn to the VNP Proposal to amend the Constitution to create an independent citizen redistricting commission.

         E. THE VNP PROPOSAL

         The VNP Proposal seeks to make changes to 11 sections within three articles of Michigan's 1963 Constitution: Article 4 (legislative branch), Article 5 (executive branch) and Article 6 (judicial branch).[23] The majority of those changes are to Article 4, involving the existing commission on legislative apportionment. The VNP Proposal essentially would accomplish the following:

. Create an independent citizens commission regarding legislative apportionment;
. Set forth the parameters for the independent commission regarding its structure, operation and funding;
. Eliminate legislative oversight over the independent commission, vest original jurisdiction in the Supreme Court regarding challenges related to the independent commission, and create an exception in the power of the executive branch to the extent limited or abrogated by the independent commission.

         The VNP Proposal creates an exception to the legislative power of the state senate and house of representatives by exempting the new independent citizens redistricting commission from legislative control.[24] The VNP Proposal retains the structure of the senate at 38 members elected from single member districts, [25] and the structure of the house of representatives with 110 members from single member districts apportioned on a basis of population.[26] However, the VNP Proposal eliminates the existing constitutional provisions in Const 1963, art 4, §§ 2-5 relating to senate districts and representative areas and their corresponding rules for apportionment.[27]

         The VNP Proposal's primary change is the replacement of the current commission on legislative apportionment with parameters for a new independent citizens redistricting commission. In place of the eight-member commission, the VNP proposal provides for 13 commissioners; each major political party would have four members and the remaining five members would be declared independent voters.[28] The pool of candidates would be drawn from eligible registered Michigan voters.[29] With certain exceptions, candidates would not be eligible to serve if they were current or former lobbyists, partisan elected officials or candidates, or a relative of a disqualified individual.[30]

         Under the VNP Proposal, commissioners are to be chosen from a pool of applicants, which may include randomly selected voters.[31] Applicants must submit a completed application, must attest under oath that they meet the qualifications, and must identify which of the two major political parties with which they are affiliated, or whether they do not affiliate with either party.[32]

         The VNP Proposal sets forth specific parameters and timelines for the application procedure, including that legislative leaders may strike candidates from consideration.[33] The proposal also designates the funding process and provides for a cause of action should funding not occur.[34]

         The VNP Proposal includes considerable detail regarding the commission's public hearings and contact with the public. It specifies directives regarding the commissioners' discussion of commission business, and aims to make records available to the public.[35]

         The VNP Proposal lists seven criteria for a redistricting plan, giving the most weight to population and geographic contiguity.[36] Additionally, the VNP Proposal describes guidelines for the commission's adoption of a new redistricting plan and the publication of its related data.[37]

         Under the VNP Proposal, the Michigan Supreme Court has original jurisdiction regarding the independent citizens redistricting commission to: (1) direct the Secretary or commission to perform their respective duties; (2) review a challenge to any plan that the commission adopts, (3) remand a plan to the commission for further action if the plan does not comply with the requirements of the Michigan Constitution, the United States Constitution or superseding federal law.[38] Only the commission, and no other body, shall promulgate and adopt a redistricting plan.[39]

         In Article 5, involving the executive branch, the VNP Proposal continues vesting the power in the executive branch but excepts the independent citizens redistricting commission, noting that the commission's powers are exclusively reserved for the commission.[40] The VNP Proposal alters section 4, involving the establishment of executive branch commissions or agencies, by adding the language "to the extent limited or abrogated by article v, section 2 or article iv, section 6, " the sections involving independent citizens redistricting commission.[41]With regard to Article 6, the judicial branch, the VNP Proposal leaves intact the power of the branch, except to the extent limited or abrogated by the independent citizens redistricting commission.[42]

         II. ANALYSIS

[I]n the very rare case . . . when an 'initiative petition does not meet the constitutional requires for acceptance, ' a court may find it necessary to intervene in the initiative process. But because the judicial branch should rarely interfere with the legislative process, such cases should be, and are, rare . . . . [Coalition for a Safer Detroit v Detroit City Clerk, 295 Mich.App. 362, 372; 820 N.W.2d 208 (2012) (citations omitted).]

         This case is not one of the rare cases where this Court should intervene.

         The people of Michigan long have reserved the right to amend their constitution. City of Jackson v Comm'r of Revenue, 316 Mich. 694, 710; 26 N.W.2d 569 (1947); Scott v Secretary of State, 202 Mich. 629, 643; 168 N.W. 709 (1918). To do so, they may bring an initiative petition before the voters by submitting a proposal to be placed on the ballot. Const 1963, art 12, § 2. Wolverine Golf Club v Secretary of State, 24 Mich.App. 711, 716; 180 N.W.2d 820 (1970), aff'd 384 Mich. 461 (1971). Any person or organization opposing the submission of an initiative petition may bring an action for mandamus to preclude the placement of that petition onto the ballot. See Hamilton v Secretary of State, 212 Mich. 31, 33; 179 N.W. 553 (1920); Coalition for a Safer Detroit, 295 Mich.App. at 371. In an exceptional case, a court may deem it necessary to intervene in the initiative process. See Detroit v Detroit City Clerk, 98 Mich.App. 136, 139; 296 N.W.2d 207 (1980).

         A. MANDAMUS

         This Court has jurisdiction over this original action pursuant to MCL 600.4401(1) ("[a]n action for mandamus against a state officer shall be commenced in the court of appeals . . . ."). See also MCR 7.203(C)(2).[43] The Secretary and the Board are "state officers" for mandamus purposes. See Comm for Constitutional Reform v Secretary of State, 425 Mich. 336, 338 n 2; 389 N.W.2d 430 (1986). Further, Michigan Election Law provides that a person aggrieved by a decision of the Board may seek relief in the form of mandamus. MCL 168.479.[44] Thus, mandamus is the proper remedy for a party seeking to compel election officials to carry out their duties. See, e.g., Wolverine Golf Club, 24 Mich.App. at 716.

         This Court has the authority to issue a prerogative writ of mandamus, but mandamus is an extraordinary remedy. LeRoux v Secretary of State, 465 Mich. 594, 606; 640 N.W.2d 849 (2002); O'Connell v Director of Elections, 316 Mich.App. 91, 100; 891 N.W.2d 240 (2016). Whether a writ issues is within the discretion of the court. See Carter v Ann Arbor City Attorney, 271 Mich.App. 425, 438; 722 N.W.2d 243 (2006). In a mandamus action, this Court considers whether the defendant has a clear legal duty and whether the plaintiff has a clear right to performance of that duty. Attorney General v Bd of State Canvassers, 318 Mich.App. 242, 248; 896 N.W.2d 485 (2016). Specifically, the plaintiff has the burden to show:

(1) a clear legal right to the act sought to be compelled; (2) a clear legal duty by the defendant to perform the act; (3) that the act is ministerial, leaving nothing to the judgment or discretion of the defendant; and (4) that no other adequate remedy exists. [Twp of Casco v Secretary of State, 472 Mich. 566, 621; 701 N.W.2d 102 (2005), Young, J., concurring in part.]

         A clear legal right has been defined as a right " 'clearly founded in, or granted by, law; a right which is inferable as a matter of law from uncontroverted facts regardless of the difficulty of the legal question to be decided.' " Univ Medical Affiliates, PC v Wayne County Executive, 142 Mich.App. 135, 143; 369 N.W.2d 277 (1985) (citation omitted). The plaintiff has the burden to demonstrate an entitlement to the extraordinary remedy of a writ of mandamus. Herp v Lansing City Clerk, 164 Mich.App. 150, 161; 416 N.W.2d 367 (1987).

         Plaintiffs here include a duly registered ballot question committee (CPMC), a former paid employee of a political candidate (Spyke), and the parent of a person otherwise disqualified from serving on the proposed commission (Daunt). Spyke and Daunt contend that they will be aggrieved by the VNP Proposal because they would be precluded from serving on the redistricting commission pursuant to the revised criteria. They assert a clear legal right to have the Secretary and the Board reject the petition and not place it on the ballot.

         The Secretary has a clear legal duty to "[p]repare the form of ballot for any proposed amendment to the constitution or proposal under the initiative or referendum provision of the constitution to be submitted to the voters of this state." MCL 168.31(1)(f). The Secretary argues, however, that her only remaining duty is to certify the ballot to the counties after Board certification.

         The Board has a clear legal duty regarding ballot questions, as it examines petitions to ascertain that they have sufficient signatures. MCL 168.476. The Board also makes an official declaration regarding the sufficiency of the petition. MCL 168.477(1). The Board's duty is to certify the proposal after determining whether the form of the petition substantially complies with statutory requirements and whether the proposal has sufficient signatures in support. See Protecting Michigan Taxpayers v Bd of State Canvassers, __Mich App, __;__, __, __N.W.2d __(2018) (Docket No. 343566); slip op at 5 n 2. In essence, the Board ascertains whether sufficient valid signatures support the petition and whether the petition is in proper form.

         "A ministerial act is one in which the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." Hillsdale Co Senior Servs, Inc v Hillsdale Co, 494 Mich. 46, 58 n 11; 832 N.W.2d 728 (2013) (quotation marks and citation omitted).

         This Court has settled the question of whether the Board's and the Secretary's clear legal duties are ministerial where, as here, the parties dispute whether an initiative petition proposal is an "amendment" to, or a "general revision" of, the constitution. In Citizens Protecting Michigan's Constitution v Secretary of State, 280 Mich.App. 273; 761 N.W.2d 210 (2008), aff'd in result only 482 Mich. 960 (2008), the panel explained that, because the determinations of whether a proposal is a general revision or an amendment to the constitution, and whether a proposal serves more than a single purpose, require judgment, they are not ministerial tasks to be performed by the Secretary or the Board. Id. at 286-287. However, this Court is obliged to make the threshold determination of whether an initiative petition meets the constitutional prerequisites for acceptance on the ballot. Id. at 283, 291. Based on this Court's decision, the Board and the Secretary would have a clear legal duty regarding the initiative petition. At that point, the act of the Board and the Secretary regarding the petition would be ministerial in nature, not requiring the exercise of judgment or discretion. Id. at 291-292. Consequently, as we have determined that the VNP Proposal meets the constitutional prerequisites, the Secretary's and the Board's actions in placing it on the ballot will be ministerial.

         It does not appear to be disputed that plaintiffs had no other adequate ...


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