The right to referendum and initiative is an extraordinarily potent tool, one that allows the citizenry to exercise direct democratic power. But, the right to referendum is under increasing threat from a source most citizens lack any awareness of: municipal clerks.[1] Municipal clerks in several states have rejected referendum petitions—not because they lack the requisite signatures or used the wrong forms—but rather, because clerks have seized judicial power to decide whether referendums and initiatives are substantively legal at all. Clerks do not have the power to make these decisions, only the courts do. At least, that was true for the past century, until a recent Michigan Court of Appeals’ decision ruled for the first time that clerks do in fact have that power. By affirming the trial court’s conclusion that it could not compel the city clerk to certify a referendum petition based on the clerk’s finding that the referendum would be illegal if passed, the court of appeals improperly allowed a clerk to weigh on the substantive legality of a referendum petition and ultimately deny it.[2] Such a ruling leaves the right to referendum subject to the whims of frequently unelected, and rarely legally trained, bureaucrats.
Until recently, nearly a century of Michigan precedent had consistently held that city clerks’ purely ministerial power to review referendum petitions for sufficiency does not include the authority to determine the constitutionality of proposed measures.[3] Instead, clerks had a limited duty to review petitions only for required language and signatures.[4] If, after a review for sufficiency, the clerk determines that a referendum petition contains the required number of qualified signatures, the clerk has a legal duty to certify the petition.[5] The scope of this power is narrow and does not afford clerks the discretion to evaluate the substance or effect of the proposed measure.[6] Thus, when a clerk abuses this authority, Michigan courts have repeatedly held that a writ of mandamus is the proper remedy to compel a clerk to fulfill their election law duties to certify referendum petitions.
Despite this clear limitation on clerks’ power to review referendum petitions, Michigan courts are now allowing city clerks to unilaterally deny referendums.[7] This improperly allows municipal clerks to substantively review proposed measures and reach their own conclusion as to whether they have a legal duty to certify the petition.[8] Allowing clerks to make discretionary, substantive decision enables clerks to violate their legally limited, ministerial role. To compound this legal violation, the Michigan Court of Appeals went even further, finding for the first time in Michigan history that a writ of mandamus was not the proper remedy to reverse the clerk’s decision because the clerk’s decision was discretionary.[9]
Take a second to reflect on that. The courts are permitting clerks to exceed their authority and deny referendums. Then the courts claim they cannot review the clerk’s decision because the clerk is exercising discretionary authority. Which, again, the clerks are not allowed to exercise. In effect, courts are now allowing unelected municipal bureaucrats to usurp their judicial authority based on new rules the courts themselves invented. All to deny people the right to referendum.[10]
Limiting a clerk’s power to review referendum petitions for sufficiency only is imperative because it protects the people’s political power. Without this important limitation, clerks are free to exercise their own discretion in reviewing petitions, making the referendum power effectively subject to the whims of an unelected municipal official. In holding that clerks have the authority to determine the substantive legality of referendum petitions, the Michigan Court of Appeals’ decision in Comm. for Marshall-Not the Megasite v. City of Marshall jeopardizes the people’s referendum power. That is why we have sought leave to appeal to the Michigan Supreme Court. The fundamental issue of whether a referendum right actually exists is too important to let the Michigan Court of Appeals have the last word.
If you are seeking to bring a referendum, or have had your right to referendum improperly denied by the government, please contact the experienced election law attorneys at Eckland & Blando LLP.
[1] Research and drafting assistance provided by Helen Sabrowsky, law clerk at Eckland & Blando LLP.
[2] Compare Comm. for Marshall-Not the Megasite v. City of Marshall, No. 369603, 2024 WL 3048550 (Mich. Ct. App. 2024) (“To the extent that the trial court in this case correctly determined that Ordinance 2023-08 was not subject to the power of referendum under the Marshall Charter, it did not err when it relied on the decision in MGM Grand Detroit to conclude that it could not order [the city clerk] to certify a petition for referendum that was plainly contrary to the Marshall Charter without regard to whether [the clerk] should have certified the sufficiency of the petition in the first place.”), with Coalition for a Safer Detroit v. Detroit City Clerk, 295 Mich. App. 362, 370 (Mich. Ct. App. 2012) (city clerk does not have authority to substantively review petition), and Citizens for Prot. of Marriage v. Bd. of State Canvassers, 263 Mich. App. 487 (Mich. Ct. App. 2004) (concluding there was obligation to certify petition where required form and number of signatures satisfied).
[3] See Coalition for a Safer Detroit, 295 Mich. App. 362; Hamilton v. Vaughan, 212 Mich. 31 (Mich. 1920) (duty to review referendum petitions is “purely a ministerial one”).
[4] See Coalition for a Safer Detroit, 295 Mich. App. at 370 (stating it was not within the scope of clerk’s power to assess substantive legality of petition).
[5] See Coalition for a Safer Detroit, 295 Mich. App. at 371 (“Because the clerk certified the petitions as having the requisite number of qualified signatures, defendants had a clear legal duty to place the initiative on the ballot and plaintiff had a clear legal right to the performance of that duty.”).
[6] Id.
[7] Comm. for Marshall-Not the Megasite v. City of Marshall, No. 369603, 2024 WL 3048550 (holding that trial court correctly concluded it could not compel certification of referendum based on clerk’s determination that ordinance in question was not subject to referendum).
[8] See Id. at 8 (acknowledging that majority’s analysis in MGM Grand Detroit v. Comm. Coalition for Empowerment did not include an assessment of clerk’s power to review referendum petition).
[9] Compare Comm. for Marshall-Not the Megasite v. City of Marshall, No. 369603, 2024 WL 3048550 (affirming trial court’s dismissal of plaintiffs’ complaint for mandamus), with Citizens Protecting Michigan’s Const. v. Sec’y of State, 324 Mich. App. 561, 583 (“[M]andamus is the proper remedy for a party seeking to compel election officials to carry out their duties.”).
[10] This is not to say that the citizenry has complete freedom to bring illegal or unconstitutional referendums or initiatives. Rather, the proper process is to challenge the referendum or initiative after it has been voted on, if the vote was successful. See Coalition for a Safer Detroit, 295 Mich. App. at 371 (“[O]ur courts have repeatedly held that a substantive challenge to a proposed initiative is improper until after the law is enacted.”).