Save the Veterans Memorial v. City of Royal Oak

SAVE THE VETERANS MEMORIAL, AMERICAN LEGION FRANK WENDLAND POST 253, ACORN POST NO. 1669, ROYAL OAK, MICHIGAN, OF VETERANS OF FOREIGN WARS, WILLIAM BERARDO, WALLIS MAY ANDERSON, and WILLIAM E. HARRISON, Plaintiffs-Appellees, v. CITY OF ROYAL OAK, MICHAEL FOURNIER, SHARLAN DOUGLAS, KYLE DUBUC, MONICA HUNT, BRANDON KOLO, MELANIE MACEY, PATRICIA PARUCH, MELANIE HALAS, and PAUL BRAKE, Defendants-Appellants.

No. 357835

Court of Appeals of Michigan

July 30, 2021

UNPUBLISHED

Oakland Circuit Court LC No. 2021-188167-AW

Before: Jansen, P.J., and Gleicher and Tukel, JJ.

PER CURIAM.

Defendants appeal as of right the trial court's opinion and order granting plaintiffs mandamus relief and ordering defendants to take all actions necessary to place plaintiffs' proposed ordinance on the ballot for the November 2021 election. We affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendants are the City of Royal Oak, its city clerk, city manager mayor, and the members of the city commission. Plaintiffs are organizations and individuals who sued for mandamus to require defendants to place their proposed ordinance regarding the Royal Oak Veterans War Memorial on the ballot before the city's voters at the next general election. The Veterans War Memorial was originally dedicated in 1946 in remembrance of those who died fighting in the Second World War. Additional monuments were subsequently added to the Memorial in remembrance of those who died in the First World War, the Korean War, and the Vietnam War.

In 2005, the Royal Oak Memorial Society and supporters raised money to move the Memorial and rededicate it at a new location, between the Royal Oak City Hall and the Royal Oak Public Library, designated the Barbara A. Hallman Memorial Plaza. The Memorial was moved to that location in 2006. In 2007, Royal Oak voters approved Ordinance No. 2007-07, the Veterans War Memorial Ordinance, which "designate[d] a portion of the Barbara A. Hallman Memorial Plaza for continued use as a memorial honoring members of the American and Canadian Armed Forces who have lost their lives in service to their country."

In 2020, the City Commission approved plans to redevelop and rebuild Royal Oak City Hall and the surrounding area. Those plans included removing the Memorial from its current location and replacing it within an expanded park area. At one point the City apparently moved the Memorial. That prompted veterans' organizations and individuals to form plaintiff Save the Veterans Memorial and to circulate their petition proposing an ordinance designated the Veterans War Memorial Preservation and Protection Ordinance. The stated purpose of the proposed ordinance is:

[T]o designate a portion of the Barbara A. Hallman Memorial Plaza, and the monuments and improvements upon it, for continued use at its precise location as of December 31 2020, as a memorial honoring members of the American and Canadian armed forces who have lost their lives in service to their country, to prohibit other uses upon such land, and to repeal and replace the Royal Oak Veterans War Memorial Ordinance . . . .

Section 5(A) of the proposed ordinance bars the removal or relocation of the Memorial from its precise location as of December 31, 2020, "without an affirmative vote of the majority of qualified electors of the City of Royal Oak . . . at a regularly scheduled general municipal election." Section 5(B) of the proposed ordinance requires that if the Memorial is moved from that site "the City of Royal Oak shall restore such monuments and improvements to such precise location, in comparable or better condition, no later than one year from the full and complete effective date of this ordinance." Section 5(B) also states that the City "shall reimburse or compensate all businesses, groups, citizens, and other persons, or their successors or assigns, who contributed financial or in-kind as of January 1, 2005 and December 31, 2007 to the moving or expansion of the Memorial to such precise site."

The initiative petitions circulated by plaintiffs were entitled "INITIATION OF PROPOSED ORDINANCE PRESERVING AND PROTECTING THE ROYAL OAK VETERANS WAR MEMORIAL." At the top the petition contained the following summary describing the proposed ordinance:

An initiative to adopt an ordinance designating a portion of the Barbara A. Hallman Memorial Plaza for continued use as a memorial honoring members of the armed forces who lost their lives in service to their country; to preserve the improvements thereon; to prohibit other uses; to provide that if such improvements are moved prior to the enactment of this ordinance that the City of Royal Oak restore such improvements to their prior location.

The description also informed potential signers "FULL TEXT OF PROPOSED ORDINANCE ON THE BACK OF THIS PETITION." At the bottom right corner the petition contained the notice that it was "Paid for with regulated funds by Save the Veterans Memorial . . . ." and that the "[p]etition drive [was] organized by American Legion Frank Wendland Post 253 . . . and VFW Acorn Post 1669 . . . ."

Chapter 6 of the Royal Oak City Charter, entitled "Initiative and Referendum," states in relevant part:

Section 1. Any proposed ordinance may be submitted by petition, signed by qualified electors of the City, equal in number to the percentage hereinafter required. The procedure in respect to such petition shall be the same as provided in Sections 2, 3, 4, and 5 of Chapter Five except that petitions may be circulated for signature instead of being signed at the office of the City Clerk, with such modifications as the nature of the case requires, except that no blank form shall be furnished or preliminary affidavit made.

Section 2. If the petition accompanying the proposed ordinance be signed by qualified electors equal in number to at least 15% of the electors voting at the last preceding general municipal election, and contains a request that said proposed ordinance be submitted to a vote of the people, the Clerk shall thereupon ascertain and certify its number of qualified signers, whereupon if such certificate shows the required number of qualified signers, the Commission shall within 20 days thereafter either,

a. Pass said ordinance without alteration (subject to the referendum provided by the Charter), or

b. Call a special election, to be held within 30 days, unless a general or special municipal election is to be held within 90 days thereafter, and at such general or special municipal election said proposed ordinance shall be submitted without alternation to the vote of the qualified electors of said City.

Section 3. If the petition be signed by qualified electors equal in number to at least 5% but less than 15% of all the electors voting at the last preceding general municipal election, as shown in the manner hereinafter provided, and said proposed ordinance be not passed without alteration by the Commission within 20 days, as provided in the preceding section, then such proposed ordinance, without alteration, shall be submitted by the Commission to electoral vote at the next general municipal election that shall occur at any time after 30 days from the date of the Clerk's certificate of sufficiency attached to the petition accompanying such ordinance.

Plaintiffs circulated the petitions, gathered signatures, and presented them to the city clerk. On April 21, 2021, the city clerk informed plaintiffs' representatives that her office had verified 872 signatures on the petitions submitted, which was more than 5% but less than 15% of the electors voting at the last preceding general municipal election. On the morning of May 4, 2021, the clerk informed plaintiffs' representatives that "[y]our petitions have been certified by my office for the November 2nd municipal election ballot." However, by mid-afternoon on May 4, 2021, the clerk informed plaintiffs that her earlier message was sent prematurely, that the petitions were "still under review," and that she was waiting for a legal opinion from the acting city attorney before she would give an official response. In the early evening of May 4, 2021, the clerk informed plaintiffs "upon advice of the interim City Attorney for the City of Royal Oak, I must reject the petition. The petition is legally insufficient and fails to satisfy the requirements for an initiatory petition, as explained in the attached legal opinion." The interim city attorney's opinion letter stated that plaintiff's petition must be rejected for "a number of reasons under the Home Rule City Act, MCL 117.1 et seq.; and Michigan Election Law, MCL 168.1 et seq.," and listed the following reasons:

(1) "The petition proposes an ordinance that is administrative in nature and [so] is not an appropriate subject of an initiative petition[.]"

(2) "The summary description of the proposed ordinance is misleading and deceptive because the description on the face of the petition is inconsistent with the content of the proposed ordinance on the back of the petition."

(3) "The summary language of the petition fails to notify voters that the proposed ordinance would repeal and replace an existing ordinance."

(4) "The form of the petition fails to strictly comply with MCL 168.482(1), (6), (7) and (8), MCL 168.544c(1) and (2), including but not limited to by including additional descriptive language in the heading of the petition."

(5) "The form of the petition also fails to strictly comply with MCL 117.25(1) because the face of the petition includes information regarding an organization that is not the primary sponsor of the initiative petition."

(6) "The circulators' certifications attest that to the best of the circulator's knowledge, each person signing the petition was at the time of signing a registered elector of

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