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Paquin v. City of St. Ignace

Supreme Court of Michigan

July 8, 2019

FRED PAQUIN, Plaintiff-Appellant,
v.
CITY OF ST. IGNACE, Defendant-Appellee, and ATTORNEY GENERAL, Intervening Appellee.

          Argued on application for leave to appeal April 10, 2019.

          Justices: Stephen J. Markman, Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Chief Justice: Bridget M. McCormack, Chief Justice Pro Tem: David F. Viviano

         Fred Paquin brought a declaratory action in the Mackinac Circuit Court, seeking a ruling that his position in tribal government did not constitute employment in "local, state, or federal government" under Const 1963, art 11, § 8. Plaintiff served the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe), a federally recognized Indian tribe, in two capacities: as the chief of police for the tribal police department and as an elected member of the board of directors, the governing body of the Tribe. In 2010, plaintiff pleaded guilty to a single count of conspiracy to defraud the United States by dishonest means in violation of 18 USC 371, for which he was sentenced to a year and a day in prison. The underlying conduct involved the misuse of federal funds granted to the tribal police department. In both 2013 and 2015, plaintiff sought to run for a position on the city council of defendant, the city of St. Ignace, in the November general election. Plaintiff was rebuffed each time by defendant's city manager, who denied plaintiff's request to be placed on the ballot. In each instance, defendant's city manager relied on Const 1963, art 11, § 8 to conclude that plaintiff's prior felony conviction barred him from running for city council. Plaintiff brought the declaratory action and moved for summary disposition. The Attorney General moved to submit an amicus brief and to participate in oral argument in support of defendant, which the court granted. Following oral argument, the court, William W. Carmody, J., denied plaintiff's motion for summary disposition and dismissed his complaint with prejudice. Plaintiff appealed, and the Court of Appeals, K. F. Kelly, P.J., and Beckering and Riordan, JJ., affirmed, holding that the Tribe qualified as a "local government" under the plain meaning of Const 1963, art 11, § 8. 321 Mich.App. 673 (2017). Plaintiff sought leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 501 Mich. 1076 (2018).

         In an opinion by Justice Bernstein, joined by Chief Justice McCormack and Justices Zahra, Viviano, Clement, and Cavanagh, the Supreme Court, in lieu of granting leave to appeal, held:

         Article 11, § 8 of the 1963 Michigan Constitution provides, in pertinent part, that a person is ineligible for election or appointment to any state or local elective office of this state if, within the immediately preceding 20 years, the person was convicted of a felony involving dishonesty, deceit, fraud, or a breach of the public trust and the conviction was related to the person's official capacity while the person was holding any elective office or position of employment in local, state, or federal government. In this case, the narrow issue was whether the tribal government qualified as "local, state, or federal government" under Const 1963, art 11, § 8. An Indian tribe does not constitute "federal government" because, when read in context, the term "federal government" as used in Const 1963, art 11, § 8 specifically refers to the United States federal government. The constitutional provision does not use a modifier preceding the term "federal government," and coupled with the understanding that "federal government" refers to a particular form of government, the term "federal government" as used in Const 1963, art 11, § 8 refers to the United States federal government. And because "federal government" refers to the United States federal government specifically, neither "state government" nor "local government" has a broader application. Whatever local governmental functions a tribal government might fulfill, a tribal government is different in kind from a city's local government, which does not have inherent sovereign authority. Additionally, the mere existence of the unique relationship between the United States federal government and tribal governments highlights the difference between tribal governments and local subunits of state government: tribal governments are domestic dependent nations that exercise inherent sovereign authority over their members and territories and therefore cannot be characterized as either entirely domestic or entirely sovereign. Accordingly, the tribal government of a federally recognized Indian tribe does not constitute "local government" as that term is used in Const 1963, art 11, § 8.

         Court of Appeals judgment reversed; circuit court order denying plaintiff's motion for summary disposition vacated; case remanded to the Mackinac Circuit Court.

         Justice Markman, dissenting, would have held that this case was rendered moot by the November 2015 election and that the "likely to recur yet evade review" element of the mootness doctrine was inapplicable because the underlying dispute in this case was not predestined to evade judicial review. Therefore, Justice Markman would not have addressed the substantive merits of the case. In this case, once the November 2015 election for city council occurred, plaintiff could no longer maintain a candidacy for a position on the city council in 2015. Consequently, the only question was whether a fraud-related conviction sustained while serving in tribal government triggered the prohibitions of Const 1963, art 11, § 8, and this was precisely the type of abstract and academic question of law that is the hallmark of a moot case. Furthermore, the "likely to recur yet evade review" element of the mootness doctrine was inapplicable. A court does not reach moot questions or declare principles or rules of law that have no practical legal effect in the case unless the issue is one of public significance that is likely to recur yet evade judicial review. Under Michigan law concerning the "likely to recur yet evade review" element of the mootness doctrine, it is unclear whether the issue must be likely to recur as to the particular party involved in the case; however, under federal law, a case is not moot if the issue is capable of repetition yet evading review and the issue generally must be capable of repetition as to the same complaining party. Accordingly, federal caselaw was instructive. Applying this federal framework, the dispositive inquiry was whether the challenged action was in its duration too short to be fully litigated prior to cessation or expiration. In this case, the challenged action was defendant's decision concerning ballot access and the relevant time frame for evading review was two years or slightly less, given the time required to prepare the ballots. Two years was more than sufficient time for plaintiff to have obtained judicial review of his case and would be more than sufficient time for a future litigant to obtain judicial review of his or her case. Had plaintiff not waited until a few months before the November 2015 election to bring his declaratory-judgment action and instead promptly sought relief from the trial court at an earlier juncture, and perhaps sought expedited consideration of his claim pursuant to MCR 2.605(D), MCR 7.211(C)(6), and MCR 7.311(E), he could have secured judicial review of his case; thus, plaintiff's declaratory-judgment claim was not predestined to evade judicial review. The question here was not one of prudence or propriety, but rather one of threshold constitutional authority.

         BEFORE THE ENTIRE BENCH

          OPINION

          BERNSTEIN, J.

         This case requires us to examine the language of our state Constitution; specifically, we are concerned with whether a tribal government constitutes "local . . . government" under Const 1963, art 11, § 8. We hold that it does not. Accordingly, we reverse the judgment of the Court of Appeals and remand to the circuit court for further proceedings consistent with this opinion.

         I. FACTS AND PROCEDURAL HISTORY

         Plaintiff Fred Paquin served the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe), a federally recognized Indian tribe whose territory is located within the geographic boundaries of Michigan, in two capacities: as the chief of police for the tribal police department and as an elected member of the board of directors, the governing body of the Tribe. In 2010, plaintiff pleaded guilty to a single count of conspiracy to defraud the United States by dishonest means in violation of 18 USC 371, for which he was sentenced to a year and a day in prison. The underlying conduct involved the misuse of federal funds granted to the tribal police department.

         In both 2013 and 2015, plaintiff sought to run for a position on defendant's city council in the November general election. Plaintiff was rebuffed each time by defendant's city manager, who denied plaintiff's request to be placed on the ballot. In each instance, defendant's city manager relied on Const 1963, art 11, § 8 to conclude that plaintiff's prior felony conviction barred him from running for city council. Of particular note is the fact that defendant's city manager specifically relied on a formal Attorney General opinion that had concluded that this constitutional provision "applies to a person convicted of a crime based on that person's conduct as a governmental employee or elected official of a federally recognized Indian Tribe." OAG, 2013-2014, No. 7273, p 30, at 30 (August 15, 2013).[1]

         Following the denial of his second request, plaintiff filed a declaratory action on July 20, 2015, seeking a ruling that the constitutional provision did not apply to him because his positions had been in tribal government, not "local, state, or federal government" under Const 1963, art 11, § 8. Plaintiff moved for summary disposition pursuant to MCR 2.116(C)(10). The Attorney General moved to submit an amicus brief and to participate in oral argument in support of defendant, which the circuit court granted. After oral argument, the circuit court denied plaintiff's motion for summary disposition and dismissed his complaint with prejudice.

         On October 19, 2017, the Court of Appeals affirmed in a published per curiam opinion. Paquin v City of St Ignace, 321 Mich.App. 673; 909 N.W.2d 884 (2017). The Court of Appeals noted that the only issue before it was whether plaintiff's position of employment in tribal government constituted employment in "local, state, or federal government" under Const 1963, art 11, § 8.[2] Id. at 681. Specifically, the Court of Appeals held that "the Tribe qualifies as a 'local government' under the plain meaning of the text of Const 1963, art 11, § 8." Id.

         Plaintiff timely sought leave to appeal in this Court. On May 23, 2018, we ordered oral argument on the application. Paquin v City of St Ignace, 501 Mich. 1076 (2018).

         II. STANDARD OF REVIEW

         The interpretation of a constitutional provision is a question of law, which we review de novo. Bonner v City of Brighton, 495 Mich. 209, 221; 848 N.W.2d 380 (2014). "[T]he primary objective of constitutional interpretation is to realize the intent of the people by whom and for whom the constitution was ratified." Studier v Mich. Pub Sch Employees' Retirement Bd, 472 Mich. 642, 652; 698 N.W.2d 350 (2005) (quotation marks and citation omitted). Accordingly, "we seek the common understanding of the people at the time the constitution was ratified. This involves applying the plain meaning of each term used at the time of ratification, unless technical, legal terms are used." Goldstone v Bloomfield Twp Pub Library, 479 Mich. 554, 558-559; 737 N.W.2d 476 (2007) (quotation marks and citations omitted).[3]

         III. ANALYSIS

         Article 11, § 8 was added to the Michigan Constitution by amendment after a statewide vote in the November 2010 general election. In relevant part, the provision states:

A person is ineligible for election or appointment to any state or local elective office of this state . . . if, within the immediately preceding 20 years, the person was convicted of a felony involving dishonesty, deceit, fraud, or a breach of the public trust and the conviction was related to the person's official capacity while the person was holding any elective office or position of employment in local, state, or federal government. This requirement is in addition to any other qualification required under this constitution or by law.
The legislature shall prescribe by law for the implementation of this section. [Emphasis added.]

         The issue before us is narrowly presented.[4] The parties agree that the material facts are not in dispute and that most of the language of Const 1963, art 11, § 8 is satisfied. There is, for example, no dispute that tribal government is a government; instead, the question is limited to whether the Tribe qualifies as "local, state, or federal government."

         The Court of Appeals and the Attorney General opinions focused exclusively on whether the Tribe constitutes "local government." The Court of Appeals specifically defined "local government," in relevant part, as follows: "Merriam-Webster's Collegiate Dictionary (2007), p 730, defines 'local government' as: '1. the government of a specific local area constituting a major political unit (as a nation or a state)[.]'" Paquin, 321 Mich.App. at 682. As an initial matter, we note that this quotation appears to be incomplete, as the relied-upon dictionary actually defines "local government" as "the government of a specific local area constituting a subdivision of a major political unit (as a nation or state)[.]" Merriam-Webster's Collegiate Dictionary (2007), p 730 (emphasis added). See also Black's Law Dictionary (10th ed), p 811 (defining "local government," in relevant part, as "[t]he government of a particular locality, such as a city, county, or parish; a governing body at a lower level than the state government"). This error significantly undermines the Court of Appeals' textual analysis of Const 1963, art 11, § 8. This omitted language strongly suggests that "local . . . government" be understood as a subdivision of another body of government. Significantly, the erroneous definition would also render into needless surplusage the additional language in the list, which refers to both "state . . . government" and "federal government."

         Although it has not been argued that the Tribe constitutes either "state . . . government" or "federal government," parsing those two terms further helps to discern the intent of the people o f Michigan . W e beg in with the term "federal government." We note that the term is commonly used as shorthand for a country's government in general; indeed, under the entry for "federal government," Black's Law Dictionary simply directs the reader to consult the definition of "government." Black's Law Dictionary (10th ed), p 728.[5] But this reading of "federal government" is overly simplistic. Although our national government is a federal government, "federal" government necessarily implies that there is a union, or a federation, of smaller political entities; in contrast, there are many examples of unitary governments that do not take the same form.[6] A reading of "federal government" to include only those foreign governments that are structured in the same manner as our federal government would seem to be less than obvious or common.

         Instead, it is instructive to note the lack of determiners or articles preceding the list "local, state, or federal government." Although "any" is used to modify the phrase "elective office or position of employment," no such modifier is included before "local, state, or federal government." When read in context, the constitutional provision refers to a person who "was holding any elective office or position of employment in . . . federal government." Const 1963, art 11, § 8. The provision does not state "a federal government" or "any federal government," both of which might suggest an intent to include other federal governments. When no modifier is used at all, coupled with our understanding of "federal government" as referring to a particular form of ...


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