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STATE OF MICHIGAN
COURT OF APPEALS


KIMBERLY RISK and WILLIAM TUCKER, Plaintiffs-Appellants, V LINCOLN CHARTER TOWNSHIP BOARD OF TRUSTEES, MARC FLORIAN, SHARON GEISLER, DICK STAUFFER, BRIAN JEWELL, AL PSCHOLKA, DEB PETERSON, and TERRIE SMITH, Defendants-Appellees.

FOR PUBLICATION June 26, 2008 9:00 a.m. No. 275129 Berrien County Trial Court LC No. 2006-003226-AW

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Before: Jansen, P.J., and Zahra and Gleicher, JJ. JANSEN, P.J. In this quo warranto action,1 plaintiffs appeal by right the circuit court's order validating a local election at which the qualified electors of Lincoln Charter Township voted to dissolve the township park commission. We reverse and remand to the circuit court for entry of an order consistent with this opinion.

1

In actuality, this is both a traditional quo warranto action and an action in the nature of quo warranto brought pursuant to MCL 600.4545. It is a traditional quo warranto action to the extent that it was brought to try title to the offices of Lincoln Charter Township park commissioner and to challenge the individual defendants' intrusion into and usurpation of those offices. MCL 600.4505; Layle v Adjutant General, 384 Mich 638, 641; 186 NW2d 559 (1971). It is an action in the nature of quo warranto to the extent that it was brought to challenge the validity of the disputed township election itself. MCL 600.4545(1); Shoemaker v Southgate, 24 Mich App 676, 678; 180 NW2d 815 (1970). This distinction, however, does not affect our resolution of the issues because actions in the nature of quo warranto brought to challenge the validity of disputed elections are functionally equivalent to traditional quo warranto actions and are consequently reviewable in the same manner. See MCL 600.4545(3).

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I In 1972, the qualified electors of Lincoln Charter Township established a township park commission in accordance with state law. Although the exact reasons are not clear from the record, the electors of Lincoln Charter Township eventually became disillusioned with the park commission that they had created. In 2006, the electors filed a petition, signed by eight percent of the township's registered voters, seeking to dissolve the park commission and to transfer control of the township's parks to the township board of trustees. Upon receipt of the petition, the township board voted to submit the question whether to dissolve the park commission to the electorate at the November 2006 general election. Specifically, the township board resolved to place the following question on the November 7, 2006, general election ballot: Shall the Lincoln Charter Township's elected Parks Commission be dissolved, effective November 15, 2006, to enable the Township Board of Trustees to operate all parks within the Township, pursuant to and in compliance with [the township parks act]? Believing that the proposed ballot question was invalid, plaintiffs wrote to the Attorney General in September 2006, asking him to intervene and to bring a quo warranto action against defendant township board. However, the Attorney General declined to intervene in this matter. In October 2006, plaintiffs applied for leave to file a quo warranto action in the Berrien County Trial Court. In their application, plaintiffs alleged that defendants were "wrongfully usurping, intruding into and claiming the right to exercise the responsibilities of and the offices of Lincoln Charter Township Park Commissioner." In the proposed complaint attached to their application, plaintiffs asserted that the Lincoln Charter Township Park Commission could not be lawfully dissolved by way of popular election. In support of this proposition, plaintiffs cited OAG 1999-2000, No. 7039 (December 9, 1999), in which the Attorney General opined that a voter-established township park commission could not be dissolved by a township board resolution or by a vote of the township electorate. Plaintiffs also cited OAG 1983-1984, No. 6143 (March 24, 1983), in which the Attorney General explained the limited authority of a local unit of government to submit ballot questions to the electorate. Plaintiffs asserted that the proposed ballot question was nothing more that an improper recall effort, which violated Michigan law. On November 7, 2006, with 3,444 in favor of dissolution and 2,408 against dissolution, the qualified electors of Lincoln Charter Township voted to dissolve the township park commission. Defendants answered plaintiffs' application for leave to file a quo warranto action on November 9, 2006. Defendants argued that plaintiffs' application should be denied because

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plaintiffs had failed to provide adequate proof that the Attorney General had refused to institute quo warranto proceedings.2 Defendants also argued that plaintiffs' application lacked merit. Defendants acknowledged that they had submitted the ballot question to the electors, but argued that they had been required to do so upon receipt of the electors' petition. Defendants also argued that plaintiffs could not bring a quo warranto action against the township board because the park commissioners' offices would cease to exist as of November 15, 2006, and there would accordingly be no dispute after that date between two or more individuals over entitlement to hold a public office. Lastly, defendants argued that MCL 41.426, which allows township electors to vote to establish a township park commission, also allows by implication for the electors to vote to dissolve a township park commission. The trial court heard arguments concerning plaintiffs' application for leave to file a quo warranto action. Plaintiffs first presented proof that they had timely requested intervention by the Attorney General in this matter. With respect to their application itself, plaintiffs again argued that a township park commission may not be lawfully dissolved by way of a popular election. Plaintiffs asserted that because a township park commission exists only by statute, a park commission can only be lawfully dissolved by legislative action or consent. Defendants responded by arguing that a township electorate may dissolve a park commission by an act of "equal dignity" to the act that originally created the park commission. The trial court granted plaintiffs' application for leave to file a quo warranto action. Thereafter, the parties filed supplemental briefs and made additional arguments. On November 14, 2006, the trial court ruled from the bench, commenting in pertinent part: In Cain [v Brown, 111 Mich 657; 70 NW 337 (1897)], the state legislature created the Village of Attica through Act 311 of 1885. . . . The Court held that the resolution voted on by the registered voters [of] the Village of Attica to dissolve its incorporation was not effective, because the legislature, a higher authority, create[d] the village and did not delegate any of [its] authority to dissolve the village. Also not explicitly stated, the Michigan Supreme Court in Cain functionally concluded that the local resolution was not of equal dignity with the act of the state legislature.

2

A private citizen must generally show that the Attorney General has refused to institute quo warranto proceedings before that citizen may individually pursue a traditional quo warranto action. Ballenger v Cahalan, 145 Mich App 811, 818; 378 NW2d 607 (1985). "The attorney general shall bring an action for quo warranto when the facts clearly warrant the bringing of that action. If the attorney general receives information from a private party and refuses to act, that private party may bring the action upon leave of court." MCL 600.4501; see also MCR 3.306(B)(3)(b). To bring an action in the nature of quo warranto under MCL 600.4545 on the basis of alleged election error or fraud, a private citizen need not first seek intervention by the Attorney General, Penn School Dist No 7 v Lewis Cass Intermediate School Dist Bd of Ed, 14 Mich App 109, 118; 165 NW2d 464 (1968), but must nonetheless obtain "special leave of the court or a judge thereof," MCL 600.4545(2).

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In this case the voters of Lincoln Township in 1972 approved the creation of the Parks Commission. That [question] appeared on the ballot pursuant to statute MCL 41.426. In like manner, in 2006 a [question] was approved by the voters dissolving the Parks Commission, and the [question] was submitted by the Township Board based on their legal position in this case pursuant to the same statute. Now, the Attorney General's opinions in the Court's judgment do not require a different outcome. . . . All the [Attorney General's] opinions in the Court's judgment are either distinguishable or in the case of . . . Opinion 7[0]39, incorrect. [OAG] 7309 dealt with the dissolution of a township parks commission. In the Court's judgment that opinion misinterprets the Cain case. It does--and also does not in the Court's judgment address the equal dignity doctrine. Cain is not, therefore, in the Court's judgment . . . on point. Cain and all the other [Attorney General's] opinions cited address municipal corporations, and it's clear to this Court that the Parks Commission is not a municipal corporation. . . . So therefore in the Court's judgment [OAG] 7[0]39 . . . is simply incorrect. [OAG] 6342 dealt with a drainage district[,] which again was a body corporate. [OAG] 7003 also dealt with a body corporate. And likewise the hospital authority is a body--which is the subject matter of [OAG] 6411, is a body corporate pursuant to MCL 331.2. In the Court's judgment based on my review of the case law and the statute, there is similar authority for a Parks Commission to be a body politic. Now, as I've said before the Township Parks Act, which is MCL 41.421 et seq[.], contains a provision for a petition and subsequent ballot question to establish a parks commission. That's at MCL 41.426. As I've indicated before, the act does not contain any specific provision for the dissolution of an established [p]arks commission. However, in the Court's judgment that does not end the inquiry. Article [1], Section 1 of the Michigan Constitution says: "All politic[al] power is inherent in the people. Government is instituted for their equal benefit, security, and protection." *** There is no delegation by either the Michigan Constitution or by a statute to dissolve a parks commission, nor is it prohibited by law in light of the fact that there simply is no provision in Michigan law for dissolution of a parks commission, but neither is it prohibited. Article [7], Section 34 provides that the provisions of the Constitution of Michigan and laws concerning townships shall be liberally construed in their favor, and power granted to counties and townships--in this case townships, obviously--shall be fairly implied and not prohibited by the constitution. Again, the dissolution of the Parks Commission is not prohibited by law. Neither the constitution [n]or a statute delegates the power to dissolve the Parks Commission. Hence, in the Court's judgment the political power to dissolve the

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Parks Commission remains in the people of Lincoln Township. And in like manner and . . . supplementary thereto in the Court's judgment the Township's powers are to be liberally construed and fairly implied again as not prohibited by the constitution. Accordingly, this Court rules that given the power residing in the voters of Lincoln Township, exercising their political power under Article [1], Section 1 had the authority to petition their board for a referendum to dissolve the Parks Commission that they had established with equal dignity in . . . 1972. Accordingly, the relief granted--the relief requested by the quo warranto petition in this case is denied, and the Court will deny as moot all other claims for relief under the quo warranto [petition]. II Whether township electors are empowered to dissolve an established township park commission is a question of law. Questions of law, including questions of statutory interpretation, are reviewed de novo on appeal. Adams Outdoor Advertising, Inc v City of Holland, 463 Mich 675, 681; 625 NW2d 377 (2001). III Plaintiffs argue that once a township park commission is established in accordance with Michigan law, it may not be dissolved. Plaintiffs argue that the trial court therefore erred by validating the process by which the electors of Lincoln Charter Township voted to dissolve the township park commission. We agree. Michigan's township parks act, MCL 41.421 et seq., governs the establishment of a township park commission. MCL 41.426 provides in relevant part: (1) On receipt of a written petition signed by not less than 8% of the registered voters of a township, the township board of that township, at its first meeting after the receipt of the petition, shall submit the question of establishing a township park commission to the registered voters of the township at the next regular election to be held in the township. If a majority of the registered voters voting on the question vote in favor of establishing a township park commission, the township board shall appoint the following number of members to a township park commission: (a) Before the effective date of the amendatory act that added subsection (3), 6 members. (b) On and after the effective date of the amendatory act that added subsection (3), an odd number of members not fewer than 5 or more than 9 as determined by the township board. (2) The members appointed pursuant to subsection (1) shall serve until the next township election at which township officers are elected. At the next -5-


township election at which township officers are elected . . . , the number of members of the township park commission as determined under subsection (1) shall be elected for terms of 4 years each. Under the Michigan Election Law, MCL 168.1 et seq., township park commissioners are "[e]lective township officers," MCL 168.341, whose names are submitted to the voters on the township's general election ballot, MCL 168.358(1)(g). The township parks act does not provide for the dissolution of a voter-established township park commission. Nor is any provision for dissolving a township park commission contained within the Michigan Election Law, the township ordinances act, MCL 41.181 et seq., the Charter Township Act, MCL 42.1 et seq., or any other provision of Michigan law. Faced with the very question at issue in this appeal, the Attorney General has opined that a voter-established township park commission may not be dissolved: Although the township parks act addresses how a township park commission is established, it is silent as to whether or by what means a township park commission may be dissolved. The charter township act likewise provides no authority for dissolving a township park commission, either by resolution of the charter township board or by vote of the township electors. The absence of any township discretion to terminate township park commissions is further confirmed by provisions in the Michigan election code, MCL 168.1 et seq. . . . . Section 341 of the election code provides that elective township officers may include park commission members. Moreover, section 358(1)(g) of the election code provides that there shall be elected several specified township officers, including park commission members in those townships having park commissions. The Legislature has not provided the authorization for, or the means of terminating the existence of a voter-established township park commission. Although not directly on point, the Michigan Supreme Court in Cain v Brown, 111 Mich 657, 661; 70 NW 337 (1897), quoted with approval the rule regarding dissolution of municipal corporations: "As they can exist only by legislative sanction, so they cannot be dissolved or cease to exist except by legislative consent or pursuant to legislative provision." This rule, being applicable to other types of public entities, has been applied to consolidated drain districts; to county hospitals; and to local transportation authorities. It is my opinion, therefore, in answer to your second question, that a voterestablished township park commission may not be dissolved by resolution of the charter township board or by vote of the township electors following the township's incorporation as a charter township. In the event the Legislature deems it appropriate to authorize the dissolution of township park commissions, it may adopt legislation granting such

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authority and specifying the procedures for its implementation. [OAG 19992000, No. 7039 p 80 (December 9, 1999) (emphasis in original).] "Although Attorney General opinions are not binding on this Court, they can be persuasive authority." Lysogorski v Bridgeport Charter Twp, 256 Mich App 297, 301; 662 NW2d 108 (2003); see also Williams v Rochester Hills, 243 Mich App 539, 557; 625 NW2d 64 (2000). For the reasons set forth below, we find the logic of OAG 1999, No. 7039 to be persuasive. The primary purpose of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Amburgey v Sauder, 238 Mich App 228, 231; 605 NW2d 84 (1999). The Legislature is presumed to have intended the meaning it plainly expressed. Id. at 232. We cannot read into a statute language that was not placed there by the Legislature. AFSCME v Detroit, 468 Mich 388, 412; 662 NW2d 695 (2003). "`Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.'" Grimes v Dep't of Transportation, 475 Mich 72, 85 n 43; 715 NW2d 275 (2006), quoting Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993). We fully acknowledge that provisions of law concerning counties, townships, cities, and villages "shall be liberally construed in their favor." Const 1963, art 7,

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