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
...