20241219_C367522_30_367522D.Opn.Pdf

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

CHARTER TOWNSHIP OF ROYAL OAK, FOR PUBLICATION

December 19, 2024

Plaintiff-Appellant, 10:37 AM

v No. 367522

Oakland Circuit Court

OAKLAND CARES COALITION, LC No. 2023-199921-AW

Defendant-Appellee.

Before: MARKEY, P.J., and BORRELLO and GARRETT, JJ.

BORRELLO, J.

The Township of Royal Oak is appealing a trial court’s decision to grant summary

disposition in favor of the Oakland Cares Coalition (OCC). This case stems from a dispute over a

ballot initiative about recreational marijuana establishments that was approved by township voters.

For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

This case concerns a ballot initiative presented to voters in plaintiff township by OCC,

which garnered majority support during the November 8, 2022 election. Plaintiff, collectively

members of the township’s governing board, expressed dissatisfaction with the ordinance’s

approval by bringing a series of lawsuits to block the ballot initiative. A significant element of

this ordinance, established seemingly without plaintiff’s consent, is its provision to permit and

regulate the operation of recreational marijuana within the township. Plaintiff argues that this

development represents a notable shift in local policy regarding marijuana. In contrast, OCC

claims the vote was indicative of evolving social norms and legal frameworks surrounding the

growing use of marijuana in the State of Michigan. The ballot question stated as follows:

The proposal, if adopted, would enact an ordinance to assist patients in need

of medical marihuana for conditions such as epilepsy, multiple sclerosis, colitis,

arthritis, crohn’s disease, cerebral palsy, chronic pain, parkinson’s disease, post

traumatic stress disorder and other critical medical conditions and repeal the

Township’s prohibition of marihuana establishments. Shall the proposal be

adopted?

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Under § 6 of the Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL

333.27951 et seq.,

Individuals may petition to initiate an ordinance to provide for the number of

marihuana establishments allowed within a municipality or to completely prohibit

marihuana establishments within a municipality, and such ordinance shall be

submitted to the electors of the municipality at the next regular election when a

petition is signed by qualified electors in the municipality in a number greater than

5% of the votes cast for governor by qualified electors in the municipality at the

last gubernatorial election. A petition under this subsection is subject to section

488 of the Michigan election law, 1954 PA 116, MCL 168.488. [MCL

333.27956(1).]

Plaintiff contends that the ballot question was misleading, as it implied that the proposed

ordinance related to medical marijuana establishments instead of recreational ones. Plaintiff

maintains that it had permitted medical marijuana facilities within its jurisdiction before the

passage of the pertinent ballot initiative, and it is an accepted fact that plaintiff had not previously

authorized recreational marijuana establishments. To stop the ordinance from enactment, plaintiff

filed a legal action requesting a court order invalidating the ordinance based on an alleged violation

of MCL 168.485 and an alleged conflict with the Michigan Zoning and Enabling Act (MZEA),

MCL 125.3101 et seq. The trial court granted summary disposition in favor of OCC under MCR

2.116(C)(8) and (C)(10), and the court dismissed plaintiff’s claims. Plaintiff now appeals.

II. STANDARD OF REVIEW

We review de novo a trial court’s ruling on a motion for summary disposition. El-Khalil

v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Resolution of this appeal

presents questions of law that this Court reviews de novo. League of Women Voters of Mich v

Secretary of State, 506 Mich 561, 574; 957 NW2d 731 (2020).

III. ANALYSIS

On appeal, plaintiff contends that there was a genuine question of material fact regarding

the alleged violation of MCL 168.485. Plaintiff asserts that the ballot wording created confusion

by: (1) suggesting that the proposed ordinance would only allow medical marijuana facilities, (2)

failing to indicate that the ordinance would also permit recreational marijuana establishments, and

(3) implying that the township currently prohibited medical marijuana facilities, even though such

facilities are already allowed by the township. As a result, plaintiff contends that the misleading

ballot language led voters to approve an ordinance that would not have received approval

otherwise. In its complaint, plaintiff argues that these deficiencies in the ballot language rendered

the adopted ordinance “null and void.”

MCL 168.485 provides as follows:

A question submitted to the electors of this state or the electors of a

subdivision of this state shall, to the extent that it will not confuse the electorate, be

worded so that a “yes” vote will be a vote in favor of the subject matter of the

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proposal or issue and a “no” vote will be a vote against the subject matter of the

proposal or issue. The question shall be worded so as to apprise the voters of the

subject matter of the proposal or issue, but need not be legally precise. The question

shall be clearly written using words that have a common everyday meaning to the

general public. The language used shall not create prejudice for or against the issue

or proposal.

In their appeal, plaintiff’s argument emphasizes the precision of the language used on the

ballot rather than the fundamental validity of the ordinance itself. Even if we were to concede that

the wording on the ballot was, at the very least, incomplete in accurately representing the essence

of the ordinance, it is unnecessary for this Court to resolve that issue at this juncture. The pivotal

question now is not whether the ballot language was misleading; rather, it centers on whether this

Court possesses the authority to invalidate the ordinance subsequent to its approval by voters,

regardless of whether the language may be regarded as misleading. Neither plaintiff nor our

dissenting colleague has provided this Court with any such authority, nor have they submitted any

sources to substantiate the claim of such authority. The absence of such authority likely stems

from the fact that the appropriate time to contest the accuracy of the ballot language was prior to

the election, when this dispute could have been addressed effectively. In a similar case involving

a pre-election lawsuit, Citizens for Protection of Marriage v Bd of State Canvassers, 263 Mich

App 487, 493-495; 688 NW2d 538 (2004), this Court ordered that the proposed ballot language be

placed on the ballot after it was established that the language met constitutional and statutory

requirements for being true and impartial.

Here, the election has already occurred, rendering the issue regarding the language on the

ballot moot, as there is no feasible way to rectify any alleged past wrong. An issue is considered

moot when a judgment “cannot have any practical legal effect upon a then existing controversy.”

League of Women Voters, 506 Mich at 580. In this instance, even if it were determined that the

language on the ballot was misleading, it would not change the fact that the language was presented

on the ballot, the election was conducted, and a majority of voters approved the proposed

ordinance. Plaintiff has not provided any legal authority supporting the assertion that a violation

of MCL 168.485, assuming arguendo that one occurred, can be remedied post-election by

invalidating the ordinance approved by voters. Although plaintiff and our dissenting colleague

contend that the ballot wording misled voters, resulting in their approval of an ordinance that would

not have otherwise passed, the facts remain unchanged. Our Supreme Court has stated the

following:

Fundamental principles of democratic self-government preclude the

judiciary from substituting its judgment for that of the people. We have only that

authority to overturn a proposal adopted by the people given us by the constitution.

‘Voter confusion’ regarding [the ballot proposals], whether an ancillary result of

the initiative process or a product of political activity in support of, or in opposition

to, the proposed laws, does not permit the judiciary to assume an authority to take

corrective action which has not been granted by the organic instrument of

government. [In re Proposals D & H, 417 Mich 409, 423; 339 NW2d 848 (1983).]

We recognize the prior litigation related to this ballot initiative, which took place before

the election and was brought before this Court. The case concluded with an order mandating the

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initiative’s inclusion on the ballot, specifically in Oakland Cares Coalition v Turner, an

unpublished per curiam opinion from the Court of Appeals, issued on September 1, 2021 (Docket

No. 358304), pp1, 5-6. It is essential to note that this earlier dispute did not challenge the adequacy

of the ballot question language, its alignment with the substance of the ordinance, or its compliance

with MCL 168.485. Instead, the litigation was initiated after the township clerk refused to certify

the ballot wording, citing a legal opinion that the proposed ordinance violated the title-object

clause of the Michigan Constitution. Consequently, defendant filed a lawsuit seeking declaratory

and mandamus relief to compel the clerk to certify the proposed ballot question’s language to the

county clerk. This Court stated:

In Warren City Council v Buffa, 333 Mich App 422; 960 NW2d 166 (2020),

a case involving the failure of the defendant Buffa, the city clerk, to certify ballot

wording, this Court ruled in part that “MCL 168.646a(2) requires that the ballot

language be certified to Buffa, not by Buffa.” Id. at 433. The Court concluded that

Buffa had a clear legal duty to certify the ballot to the county clerk because the

ballot language was certified to her before the deadline. Id. at 434. Similarly, in

Coalition for a Safer Detroit v Detroit City Clerk, 295 Mich App 362; 820 NW2d

208 (2012), this Court opined that it was not within the scope of the clerk’s

authority to assess the substance of the petition or to determine whether, if passed,

it would conflict with state law. Id. at 371. MCL 168.646a did not give the clerk

the discretion to review the substance or effect of the proposal itself. Id. Pursuant

to Coalition for a Safer Detroit and Warren City Council, defendant here had a

clear legal duty under MCL 168.646a to certify the ballot wording.

Here, rather than certify the wording, defendant [clerk] sought a legal

opinion. However, “judicial preelection determinations regarding the legality of

ballot proposals are disfavored as an undue interference with the legislative

process—including the initiative process, the most direct form for citizens to pass

laws.” Coalition for a Safer Detroit, 295 Mich App at 374. It follows that a

township clerk’s attempt to declare that a ballot proposal is illegal before an election

should not be countenanced.

Further, the legal opinion obtained by defendant focused on the title and

content of the proposed ordinance, not on the ballot wording. This was error, as

the only item for certification by defendant was the wording of the ballot question,

as set forth in the clear language of MCL 168.646a(2). The circuit court continued

this error by considering the title and content of the proposed ordinance, rather than

the ballot question. [Oakland Cares Coalition, unpub op at 4-5 (last emphasis

added).]

This Court reversed the trial court’s order denying OCC’s request for a writ of mandamus

and directed the township clerk to certify the ballot language to the county clerk. Id. at 6.

The prior litigation concerning this ballot initiative did not contest the language of the

ballot question; instead, it emphasized an issue regarding the potential constitutionality of the

ordinance if adopted by the electorate. We ruled that such a challenge could not be initiated before

the election. Id. at 4-5; see also Citizens for Protection of Marriage, 263 Mich App at 493 (“[I]t

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is also well established that a substantive challenge to the subject matter of a petition is not ripe

for review until after the law is enacted.”); Coalition for a Safer Detroit, 295 Mich App at 371-

372 (“A preelection determination of the validity of a ballot initiative substantially interferes with

the legislative function, and our courts have repeatedly held that a substantive challenge to a

proposed initiative is improper until after the law is enacted.”).

Therefore, if plaintiff believed the language presented on the ballot was misleading, it had

the opportunity to address that concern prior to the election, see Citizens for Protection of

Marriage, 263 Mich App at 493-495, but there is no indication that plaintiff ever availed itself of

this opportunity. Instead, the township clerk resisted putting the measure on the ballot based

merely on a premature and improper substantive challenge to the ordinance’s constitutionality.

Oakland Cares Coalition, unpub op at 4-5. At this juncture, now that the voters have approved

the ordinance, a challenge to the actual validity of the ordinance itself would be permissible,

Coalition for a Safer Detroit, 295 Mich App at 371-372; Citizens for Protection of Marriage, 263

Mich App at 493, but plaintiff’s challenge to the ballot wording (that appeared on a ballot in an

election that has already occurred) based on an alleged violation of MCL 168.485 is not such a

substantive challenge to the validity of the ordinance itself. The township has thus not

demonstrated that it is entitled to any appellate relief on this ground. League of Women Voters,

506 Mich at 574.1

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The dissent cites Richey v Bd of Ed of Monroe Co, 346 Mich 156, 167; 77 NW2d 361 (1956),

which states as follows:

Statutes giving directions as to the mode and manner of conducting

elections will be construed by the courts as directory, unless a noncompliance with

their terms is expressly declared to be fatal, or will change or render doubtful the

result. * * * Before election it is mandatory if direct proceedings for its enforcement

are brought, but after election it should be held directory, in support of the result,

unless of a character to effect an obstruction to the free and intelligent casting of

the vote or the ascertainment of the result, or unless the provisions affect an

essential element of the election, or it is expressly declared by the statute that the

particular act is essential to the validity of the election, or that its omission will

render it void. [Quotation marks and citations omitted; asterisks in original.]

The dissent also relies on Rosenbrock v Sch Dist No 3, Fractional Twps of Williams &

Monitor, 344 Mich 335, 339; 74 NW2d 32 (1955), in which the Court stated that “[i]t has been

repeatedly held by this Court that irregularities in the conducting of an election will not invalidate

the action taken unless it appears that the result was, or may have been, affected thereby.” In this

case, however, the dissent merely speculates about the presumed effect on the outcome. In

contrast, the Rosenbrock Court was presented with evidence regarding the number of allegedly

improper ballots cast, which enabled a consideration of how the alleged errors impacted the

election’s result.

Neither case is applicable here as our dissenting colleague has made an inappropriate

factual finding while considering a motion for summary disposition—without any supporting

evidence—that the ballot language adversely impacted the voting process.

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We next address the township’s assertion that the “title of the Ballot Proposal does not

adequately express the content of the proposed ordinance” because the “title suggests the ordinance

will assist patients” and the “text of the ordinance fails to further develop this.” The township

contends that the ordinance instead emphasizes compliance with the MRTMA.

Under Const 1963, art 4, § 24, commonly referred to as the Title-Object Clause, “[n]o law

shall embrace more than one object, which shall be expressed in its title.” “This constitutional

limitation ensures that legislators and the public receive proper notice of legislative content and

prevents deceit and subterfuge.” Pohutski v City of Allen Park, 465 Mich 675, 691; 641 NW2d

219 (2002). “The goal of the clause is notice, not restriction of legislation.” Id. “A title-body

challenge is an assertion that the body of an act exceeds the scope of its title.” Enbridge Energy,

LP v State, 332 Mich App 540, 546; 957 NW2d 53 (2020). “A title will only fail to give fair notice

if the subject in the body is so diverse from the subject in the title that they have no necessary

connection.” Id.

The proposed ordinance seeks to enhance patient access to medical marijuana while

eliminating the township’s ban on recreational marijuana establishments. Section 1 delineates the

ordinance’s objectives, which include regulating the operations of marijuana businesses in

compliance with the Michigan Regulation and Taxation of Marihuana Act (MRTMA). This

regulation allows for the availability of recreational marijuana to adults aged 21 and older, in

addition to improving access for medical marijuana patients. The ordinance’s content is directly

related to the title it bears, indicating that plaintiff has not effectively established a viable title-

body challenge, even if its claims are assumed to be true.

Plaintiff also contends that the trial court erred in dismissing its claim that the ordinance

conflicts with the MZEA. In its complaint, plaintiff set forth this claim in three paragraphs as

follows:

31. At the time of the ballot initiative, the Charter Township of Royal Oak

allowed Medical Marijuana Facilities in its M-1 Industrial Park District.

32. The language of the ordinance, in Section 7c sets forth an expedited

window for applications, that would effectively prevent the Charter Township of

Royal Oak from utilizing its zoning authority to regulate the operation of any

marijuana facilities.

33. As the language of the ordinance infringes upon the lawful right of the

Charter Township of Royal Oak to exercise its zoning authority, the ordinance

conflicts with the Zoning and Enabling Act and is null and void.

The trial court granted summary disposition on this count of the complaint in favor of OCC under

MCR 2.116(C)(8) for “fail[ure] to state a claim on which relief can be granted.” “A motion under

MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the factual allegations in the

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complaint,” and “a trial court must accept all factual allegations as true, deciding the motion on

the pleadings alone.” El-Khalil, 504 Mich at 159-160.2

We concur with the findings of the trial court that the township’s allegations do not identify

any specific provision of the MZEA that the ordinance purportedly violates. The allegations are

exclusively composed of conclusory statements asserting that the ordinance’s requirements

encroach upon the zoning authority afforded to the township by the MZEA. Yet, they are devoid

of any corroborating factual evidence. In Michigan, a mere declaration of a pleader’s conclusions

and legal assertions that lack factual substantiation is inadequate to establish a viable cause of

action. Varela v Spanski, 329 Mich App 58, 79; 941 NW2d 60(2019). The primary function of a

pleading in Michigan is to provide notice of the nature of the claim or defense, sufficient to allow

the opposing party to respond. Glasker-Davis v Auvenshine, 333 Mich App 222, 230; 964 NW2d

809 (2020). The township’s allegations regarding the alleged violation of the MZEA are

insufficient to allow an opposing party to take a responsive position. Therefore, the township has

not demonstrated that the trial court erred by dismissing this claim.

In conclusion, our disagreement with our dissenting colleague is rooted in a fundamentally

different perspective on the appropriate role of judicial power when nullifying laws duly enacted

by a majority of the voting electorate. The main concern with our dissenting colleague’s attempt

to grab power for the judiciary in such a manner lies in the absence of clear constitutional or

statutory authority—along with a guiding principle—that would allow judicial interventions based

solely on allegations of “misleading language.” Adopting the position of our dissenting colleague

would imply that once a majority of the electorate approves an ordinance, the courts could

intervene whenever allegations of “misleading language” related to that ordinance are brought

forth. This situation would result in the judiciary exercising authority beyond what is provided by

our Constitutions. Additionally, such a policy would have immediate and practical implications.

Litigants opposing the ordinance could, as indeed they have done here, initiate lawsuits, claiming

that the language used was deceptive. Ultimately, this sets a dangerous precedent, as it could erode

the democratic process by creating a landscape where electoral outcomes are repeatedly challenged

through litigation, thus fostering instability and uncertainty within the electoral system. In contrast

to our dissenting colleague, we adopt the view as stated in 1948 by the Supreme Court of Idaho

when it stated:

The people are presumed to know what they want, to have understood the

proposition submitted to them in all of its implications, and by their approval vote

to have determined that this [proposal] is for the public good and expresses the free

opinion of a sovereign people. Keenan v Price, 68 Idaho 423, 434; 195 P2d 662

(1948), as quoted in In re Proposals D & H, 409 Mich at 423.

2

To the extent the township attempts to rely on statements in its responsive brief to the motion for

summary disposition to sufficiently state its claim, we note that a brief in response to a motion for

summary disposition is not a “pleading.” MCR 2.110(A).

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Affirmed. No costs are awarded to either party, a public question being involved. MCR

7.216(A)(7) and MCR 7.219(A). See also City of Bay City v Bay County Treasurer, 292 Mich

App 156, 172; 807 NW2d 892 (2011).

/s/ Stephen L. Borrello

/s/ Kristina Robinson Garrett

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