Taylor v. Currie
Taylor v. Currie
Concurring in Part
(concurring in part and dissenting in part). I concur fully with parts III through V of the majority opinion. However, I do not agree that MCL 168.759 implicitly prohibits clerks from mailing unsolicited applications for absent voter ballots and would not address whether the Detroit City Clerk has the inherent authority to make such a mailing. Because I conclude that the trial court entered the order enjoining the mailings solely on the basis of an erroneous interpretation of MCL 168.759, I would vacate the perma
This Court reviews a trial court’s decision to grant injunctive relief for an abuse of discretion. Michigan Coalition of State Employee Unions v Civil Service Comm, 465 Mich 212, 217; 634 NW2d 692 (2001). Where a trial court’s decision to grant injunctive relief is based on a misapprehension of the law, an abuse of discretion occurs. Bynum v ESAB Group, Inc, 467 Mich 280, 283; 651 NW2d 383 (2002).
MCL 168.759 does not explicitly prohibit a city clerk from mailing unsolicited absent voter ballot applications in a mass mailing. Nevertheless, the trial court determined that MCL 168.759 impliedly barred defendants from sending unsolicited applications for absent voter ballots. In reaching this conclusion, the trial court relied heavily on an application of the maxim expressio unius est exclusio alterius to subsections 1 through 3 and 5 of MCL 168.759. However, the proper application of that maxim to those subsections does not result in the conclusion that the Legislature clearly intended to prohibit the unsolicited mailing of applications for an absent voter ballot to the electorate.
The maxim expressio unius est exclusio alterius — the expression of one thing is the exclusion of another — is a rule of statutory construction that is the product of logic and common sense. Feld v Robert & Charles Beauty Salon, 435 Mich 352, 362; 459 NW2d 279 (1990) (opinion by RILEY, C.J.). The maxim “ ‘expresses the learning of common experience that when people say one thing they do not mean something else.’ ” Id., quoting 2A Sands, Sutherland Statutory Construction (4th ed), § 47.24, p 203. Thus, “ ‘when a statute limits a thing to be done in a particular mode, it includes a
While “often a valuable servant,” the maxim that the inclusion of something negatively implies the exclusion of everything else (expressio unius, etc.) is “a dangerous master to follow in the construction of statutes.” Ford v. United States, 273 U.S. 593, 612, 47 S. Ct. 531, 71 L. Ed. 793 (1927) (internal quotation marks and citation omitted). It rests on the assumption that all omissions in legislative drafting are deliberate, an assumption we know to be false. See Posner, Statutory Interpretation — in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 813 (1983); Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 873-874 (1930). As a result, “scholars have long savaged the expressio canon,” Cheney R. Co. v ICC, 284 U.S. App. D.C. 101, 902 E2d 66, 68 (CADC 1990) (Williams, J.), at least when it is made to do the work of a conclusive presumption, and our decisions support the proposition that “sometimes [the canon] applies and sometimes it does not, and whether it does or does not depends largely on context.” R. Dickerson, Interpretation and Application of Statutes 47 (1975); see also id., at 234-235.
The maxim only properly applies “when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have opposite and contrary treatment.” Ford, supra at 611.
Likewise, MCL 168.759(3) cannot be read to limit the manner by which applications for an absent voter ballot are distributed. This section provides:
An application for an absent voter ballot under this section may be made in any of the following ways:
(a) By a written request signed by the voter stating the statutory grounds for making the application.
(b) On an absent voter ballot application form provided for that purpose by the clerk of the city, township, or village.
(c) On a federal postcard application.
Although this section refers to an “application for an absent voter ballot,” it is clear from the context that the section deals with the manner by which a voter may
MCL 168.759(5) provides, in relevant part, that “[t]he clerk of the city, township, or village shall have absent voter ballot application forms available in the office of the clerk at all times and shall furnish an absent voter ballot application form to anyone upon a verbal or written request.” Section 759(5) establishes two duties for clerks. First, the clerk must have applications for absent voter ballots available in the clerk’s office at all times. Second, the clerk has a duty to
Finally, because the trial court did not rely on the clerk’s lack of inherent authority as a basis for exercising its discretion to grant the permanent injunction, whether the trial court could have properly entered a permanent injunction against the mailing of unsolicited applications for absent voter ballots on that basis is not properly before this Court. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). For this reason, I would express no opinion regarding whether the Detroit City Clerk has the inherent authority to mail unsolicited applications for absent voter ballots.
Hence, the initial reference to an “application for an absent voter ballot” under MCL 168.759(3) must be understood in this context. That is, the application process must be distinguished from the “application form” that is provided by the clerk.
This is in stark contrast to MCL 168.759(7), which clearly contemplates that any “person” may print and distribute absent voter ballot applications.
Opinion of the Court
In these consolidated appeals arising from an action for declaratory judgment, defendants Jackie Currie and the Detroit Election Commission (hereafter defendants) appeal as of right several trial court orders. In Docket Number 269684, defendants claim that the trial court (1) erred when it permanently enjoined defendants from mailing unsolicited applications for absent voter ballots to qualified voters, (2) improperly entered an order holding defendant Jackie Currie in criminal contempt of court, and (3) lacked the authority to appoint monitors and coreceivers over the November 2005 election proceedings. In Docket Number 271559, defendants contend that the trial court erred in its determination that plaintiff was entitled to attorney fees associated with Currie’s contempt proceedings. We affirm the trial court’s permanent injunction against the mass mailing of unsolicited applications for absent voter ballots. We also affirm the trial court’s ruling that plaintiff was entitled to attorney fees, but we vacate the order awarding attorney fees and remand for recalculation of the award.
I. FACTS AND PROCEDURAL HISTORY
2005 was a regularly scheduled election year in the city of Detroit’s four-year cycle. Currie, who was the Detroit City Clerk and a member of the Detroit Election Commission, was a candidate for reelection. In prior election years, Currie authorized a mass mailing of absent voter ballot applications to potential absentee voters. In addition to the application, Currie enclosed a cover letter, signed by her and referring to herself as “the City Clerk and Chairperson of the Election Commission.”
On August 26, 2005, plaintiff filed a motion for a preliminary injunction or temporary restraining order to prevent defendants from mailing approximately 150,000 applications for absent voter ballots, which were scheduled to be mailed on Monday, August 29, 2005. The trial court determined that Currie, as the Detroit City Clerk, was statutorily precluded from sending out unsolicited absent voter ballot applications. Accordingly, the trial court granted plaintiffs motion and enjoined “the City of Detroit from using a bulk mailing and from allowing the unsolicited mailing of absentee voter ballot applications in the general election.” The court gave the parties until 2:00 p.m. on Tuesday, September 6, 2005, to submit an order.
After learning that the mailing had nonetheless occurred, plaintiff moved for an order to show cause why defendants should not be held in contempt for
On September 28, 2005, the court granted plaintiffs request for a show cause hearing and secured Currie’s presence for a contempt proceeding. After taking evidence and testimony, the trial court found that Currie had acted in contempt of the trial court’s injunction against the mailing. On the following day, the trial court conducted a hearing to determine a remedy for Currie’s contempt. The trial court ultimately fined Currie $250,
Defendants applied for leave to appeal this order on October 24, 2005. This Court granted defendants’ motion for immediate consideration and ordered:
*91 As to the imposition of a $250 fine in the October 11, 2005, order of criminal contempt, the Court orders that the application for leave to appeal is DENIED for lack of merit in the grounds presented.
Pursuant to MCR 7.205(D)(2), in lieu of granting leave to appeal, the Court VACATES the remainder of the October 11, 2005 order because the contempt statute, MCL 600.1715, contains no authority for the additional penalties imposed, and the plaintiff has not provided any additional law allowing such penalties for criminal contempt.... Thus, to the extent that the penalties, aside from the fine, are predicated on the contempt statute, MCL 600.1715, they are null and void. The case is REMANDED to the circuit court for further proceedings consistent with this order. [Taylor v Currie, unpublished order of the Court of Appeals, entered October 28, 2005 (Docket No. 265982).]
In response to this order, plaintiff asked the trial court to enter a new temporary restraining order compelling defendants to comply with the plan for supervision of the election process described in the order of October 11, 2005. On October 28, 2005, the trial court entered a new temporary restraining order. The order enjoined defendants from “using clerks agents or assistants, including Ambassadors or Building Managers, to contact voters or to provide voter assistance unless first contacted by an individual voter.” The order also barred the practice of using building managers or third parties as clerk assistants for “the purpose of the delivery or receipt of absentee ballot applications or absentee ballots.” Additionally, the order imposed several record-keeping requirements concerning persons who assist voters in voting by absent voter ballot.
On November 3, 2005, the trial court issued a preliminary injunction incorporating the provisions of the temporary restraining order of October 28, 2005, and delineating the record-keeping requirements for persons assisting voters with absent voter ballots. The
On the following day, the trial court held an unscheduled hearing concerning “allegations of violations of [the] preliminary injunction that was issued yesterday.” After hearing testimony by two witnesses concerning alleged election improprieties, the trial court concluded that there was a violation of the temporary restraining order of October 28, 2005, and the preliminary injunction entered on November 3, 2005. The trial court indicated that the violation required remedial measures and agreed that the ambassador program should be suspended. In addition, the court indicated that it would appoint coreceivers to supervise the absentee ballot portion of the general election. On November 7, 2005, the trial court entered an order officially amending the preliminary injunction to appoint coreceivers to oversee the absent voter ballot collection and counting process during the November 8, 2005, general election.
On January 13, 2006, plaintiff moved for a final order adjudicating the rights of the parties and imposing a permanent injunction against the mailing of unsolicited applications for absent voter ballots. Plaintiff also requested an award of attorney fees incurred as a result of defendants’ contemptuous behavior. Because Currie was not reelected as city clerk, plaintiff dropped all further requests for relief. On January 27, 2006, defendants responded by moving for summary disposition. Defendants argued that because the election was now final and the composition of the commission had changed, plaintiffs requests for relief were mooted.
On February 17, 2006, the trial court conducted a hearing on plaintiffs motion for a final order and defendants’ motion for summary disposition. At the close of the hearing, the trial court indicated that it would issue a permanent injunction against the mailing of unsolicited applications for absent voter ballots, but would dismiss all plaintiffs remaining substantive claims. The court also determined that plaintiff was entitled to an award of attorney fees under MCL 600.1721.
On March 23, 2006, the trial court issued an opinion and order granting declaratory relief, entering a permanent injunction, and granting in part defendants’ motion for summary disposition. On June 20, 2006, the trial court ordered defendants to pay a total of $91,063 in costs and attorney fees to plaintiff. These appeals followed.
II. UNSOLICITED MAILINGS OF ABSENT VOTER BALLOT APPLICATIONS
Defendants first contend that the trial court erred when it ruled that MCL 168.759 prohibits city clerks from mailing unsolicited applications for absent voter ballots to prospective voters and permanently enjoined this activity. We disagree.
This Court reviews a trial court’s decision to grant injunctive relief for an abuse of discretion. Kernen v Homestead Dev Co, 232 Mich App 503, 509-510; 591 NW2d 369 (1998). An abuse of discretion occurs when a trial court’s decision is not within the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
MCL 168.759(5) provides, in relevant part, that “[t]he clerk of the city, township, or village shall have absent voter ballot application forms available in the office of the clerk at all times and shall furnish an absent voter ballot application form to anyone upon a verbal or written request.” This subsection clearly addresses the distribution of applications for absent voter ballots. Under a plain reading, this subsection establishes two duties for city clerks. First, the clerk must have applications for absent voter ballots available in the clerk’s office at all times. Second, the clerk “shall” provide an application to anyone upon verbal or written request.
“ ‘The general rule, with regard to municipal officers, is that they have only such powers as are expressly granted by statute or by sovereign authority or those which are necessarily to be implied from those granted.’ ” Presnell v Wayne [Co] Bd of Co Rd Comm’rs, 105 Mich App 362, 368; 306 NW2d 516 (1981), quoting
Applying this rule to MCL 168.759, it is clear that the city clerk has no powers concerning the distribution of ballot applications other than those that are expressly granted in the statute. And the power to mail unsolicited ballot applications to qualified voters is not expressly stated anywhere in this statute. Nor have appellants cited any other statute that confers this power on the city clerk.
As for whether the mass mailing of unsolicited ballot applications is implicitly authorized by statute, we conclude that it is not. First, a power is necessarily implied if it is essential to the exercise of authority that is expressly granted. Conlin v Scio Twp, 262 Mich App 379, 385; 686 NW2d 16 (2004). The authority expressly granted in MCL 168.759(5) is that the clerk must have applications for absent voter ballots available in the clerk’s office at all times and that the clerk “shall” provide an application to anyone upon verbal or written request. The mass mailing of unsolicited ballot applications is not essential to the clerk’s either making ballot applications available in the clerk’s office or to providing them upon request. Second, on the basis of the maxim expressio unius est exclusio alterius (the expres
This interpretation of MCL 168.759 is consistent with the sound public policy behind Michigan’s election law, which, as stated in the preamble, was enacted, in part, “to provide for the purity of elections; to guard against the abuse of the elective franchise.”
The city clerk, who is an elected official, has the role of neutral arbiter or referee. As a requirement of that office, the city clerk must take and subscribe an oath or affirmation stating:
I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of [city clerk] according to the best of my ability. [Const 1963, art 11, § 1.]
To construe MCL 168.759 to permit Currie to distribute, in her official capacity, what amounts to propaganda at the city’s expense is certainly not within the scope of Michigan election laws or the Michigan Constitution. MCL 168.759(5) does not permit a city clerk to mail absent voter ballot applications without having received a verbal or written request. Accordingly, we conclude that the trial court did not err in granting injunctive relief on this basis.
III. CRIMINAL CONTEMPT
Defendants next argue that Currie’s conviction of criminal contempt must be reversed because there was insufficient evidence that she acted in contempt of an enforceable order of the court and because she was not provided with various safeguards required by due process.
Currie was convicted of criminal contempt after a hearing held on September 28, 2005. The trial court entered the order finding Currie in criminal contempt and sentencing her to pay a fine of $250 on October 11,
IV THE TRIAL COURT’S APPOINTMENT OF MONITORS AND RECEIVERS
Defendants next argue that the trial court was without authority to appoint monitors and receivers for the November 2005 election proceedings. As a result of defendants’ failure to comply with the trial court’s injunctions, the trial court appointed special monitors to investigate certain conduct and eventually appointed receivers to oversee the collection and processing of absent voter ballots during the November 2005 elec
V ATTORNEY fees
We next address defendants’ arguments concerning the trial court’s award of attorney fees to plaintiff.
A. STANDARD OF REVIEW
“The decision to award attorney fees, and the determination of the reasonableness of the fees requested, is within the discretion of the trial court.” Windemere Commons I Ass’n v O’Brien, 269 Mich App 681, 682; 713 NW2d 814 (2006). If the trial court’s decision results in an outcome within the range of principled outcomes, it has not abused its discretion. Maldonado, supra at 388. Any findings of fact on which the trial court bases an award of attorney fees are reviewed for clear error. Solution Source, Inc v LPR Assoc Ltd Partnership, 252 Mich App 368, 381; 652 NW2d 474 (2002).
Defendants first argue that MCL 600.1721 does not authorize a trial court to order an award of attorney fees as a remedy for criminal contempt. We disagree. MCL 600.1721 provides that, “[i]f the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to the other penalties which are imposed upon the defendant.” Thus, under a plain reading of MCL 600.1721, a court must order a person found to be in contempt of court to indemnify any person who suffers an actual loss or injury as a result of the contemnor’s misconduct. See In re Contempt of Rocklin, 186 Mich App 639, 650; 465 NW2d 388 (1990). The sum required by MCL 600.1721 “may include attorney fees that occurred as a result of the other party’s contemptuous conduct.” Homestead Dev Co v Holly Twp, 178 Mich App 239, 246; 443 NW2d 385 (1989).
Because MCL 600.1721 does not make a distinction between civil and criminal contempt, but rather requires a trial court to order a contemnor to indemnify any person who suffers an “actual loss or injury” caused by the contemnor’s “misconduct,” we hold that the indemnification sanction mandated by MCL 600.1721 applies even when a trial court imposes a punitive (i.e., criminal) sanction on a contemnor. The trial court did not err when it ordered defendants to indemnify plaintiff for the losses she actually suffered as a result of defendants’ contemptuous conduct.
C. EVIDENTIARY HEARING AND FINDINGS
Defendants next argue that the trial court failed to hold an evidentiary hearing on the reasonableness of
In its opinion of May 18, 2006, the trial court found that “Currie’s contemptuous behavior led to extended proceedings and directly led to the appointment of monitors and ultimately a receiver.” Further, the court specifically referred to the contempt arising out of the mailing, rather than the separate contempt arising out of the improper use of ambassadors. On the basis of these findings, the trial court concluded that all the costs and attorney fees incurred by plaintiff that were “connected with those proceedings, including work relating to appellate proceedings, would be recoverable.” The court also determined that the costs of investigating the contempt were recoverable. The court then made findings regarding the amount of fees that were incurred as a result of the contempt.
Although defendants challenged the reasonableness of plaintiffs attorney fees, they did not request a separate evidentiary hearing on the fees. Furthermore, defendants were afforded ample opportunity to contest the reasonableness of the fees at the hearing on plaintiffs renewed motion for attorney fees held on March 31, 2006. Indeed, the trial court accepted an exhibit from defendants on the reasonableness of the $375 hourly rate. Additionally, the trial court had the benefit of two separate briefings by the parties on the issue of attorney fees, which included detailed billings. On the basis of the hearing and the briefings, the trial court made general findings concerning the various expenses that were caused by defendants’ contemptuous conduct. These findings sufficiently addressed the reasonableness of the fees. Maple Hill Apt Co v Stine (On Remand), 147 Mich App 687, 693; 382 NW2d 849 (1985). Therefore, defendants’ arguments that the trial court’s
D. ATTORNEY FEES UNRELATED TO THE CONTEMPT
Defendants also argue that the appointment of a receiver and monitors “did not flow from the criminal contempt order issued against Jackie Currie.” For this reason, defendants contend, the attorney fees plaintiff incurred as a result of those proceedings are not compensable under MCL 600.1721. We agree.
Under MCL 600.1721, the trial court must order a contemnor to indemnify any person who suffers a loss as a result of the contemnor’s misconduct. Hence, if Currie’s misconduct led to plaintiffs incurring attorney fees, whether those fees were related to the prosecution of the contempt, the investigation of the contempt, or to fashioning a remedy for the contempt, the trial court was required to order defendants to indemnify those fees. Because the formulation of a plan for election oversight and the initial appointment of the monitors was a direct result of the illicit mailing, the trial court did not clearly err in determining that the costs plaintiff incurred in association with the plan and the appointment of the monitors were caused by defendants’ contemptuous conduct. However, plaintiffs request for an injunction against the use of ambassadors was primarily based on plaintiffs case-in-chief and was only tenuously connected to the contempt arising out of the mass mailing. Likewise, the violation of the injunction applicable to the ambassadors and the subsequent appointment of receivers were not causally connected to the earlier contempt. Therefore, the trial court clearly erred in finding that the proceedings involving the injunction applicable to the ambassadors were directly
E. HOURLY RATE
Finally, defendants contend that the trial court abused its discretion when it determined that $375 an hour was a reasonable rate. We disagree.
The factors to be considered in determining the reasonableness of the award include:
“(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client.” [Wood v Detroit Automobile Inter-Ins Exchange, 413 Mich 573, 588; 321 NW2d 653 (1982) (citation omitted).]
At the hearing held on March 31, 2006, the trial court determined that the $375 an hour fee was reasonable. Indeed, the court stated that plaintiffs attorneys were of the “caliber” of top equity partners from the top firms in Detroit. Further, the court explained that it was familiar with the rates charged by Detroit attorneys of plaintiffs attorneys’ experience and expertise and concluded that $375 an hour was very reasonable. In addition, the court noted that at “a certain point in time,” the attorneys were providing “around the clock legal services” to plaintiff and had to be at the court’s
VI. CONCLUSION
We affirm the trial court’s permanent injunction against the mass mailing of unsolicited applications for absent voter ballots. We also affirm the trial court’s ruling that plaintiff was entitled to attorney fees, but vacate the order awarding attorney fees and remand for recalculation of the award in accordance with this opinion. We do not retain jurisdiction.
In April 2006, the parties stipulated the dismissal of the claims against Marino. Marino did not participate in this appeal.
As a formality, the trial court signed a written preliminary injunction on October 3, 2005.
At that time, this was the maximum fine that could be imposed under MCL 600.1715(1). The maximum fine has since been increased to $7,500. See 2006 PA 544.
A preamble is not binding authority for construing an act, but this Court has recognized that a preamble can be useful for interpreting statutory purpose and scope. King v Ford Motor Credit Co, 257 Mich App 303, 311-312; 668 NW2d 357 (2003).
Once this Court denied leave in part for lack of merit, Currie had to either move for reconsideration of this Court’s order, MCR 7.215(1), or file an application for leave to appeal in our Supreme Court, MCR 7.302.
We express no opinion regarding whether and to what extent the trial court could have separately awarded plaintiff attorney fees based on the violation of the injunction barring the use of ambassadors.
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