Loading...
HomeMy WebLinkAboutElection Canvasses - 2007.09.11 - 4978SEP/17/2007/MON 01:54 PM P.002 4 , LAW OFFICES OF SIMEN, FIGURA & PARKER,' " SANDER I-I, MEN, P.C. RICHARD J. FIGURA, P.C. PATRIC PARKER, P.C. STEPHEN W. WALTON PETER T. MOONEY** MICHAEL J. GILDNER KARI E BURSA COLIN M. LINSENMAN WILLIAM E. DELZER of counsel; ALLAN L. PARKER ROBERT H. BANCROFT, P.C. JOHN R. MOYNIHAN, P.L.C. LL laksOon GATEWAY FINANCIAL CENTRE, SUITE3pt TRAVERSE CITY AREA OFFICE 5206 GATEWAY CENTRE L1J Q1 SP 1 7 Fi.4 ?• • 30 .. FLINT, MICHIGAN 48507 11470 S. LEELANAU HWY. SUITE 105- P.O, BOX 447 EMPIRE. MI 49630 Telephone (231)326-2072 Facsimile (231)328-2074 TELEPHONE (610) 235-9000 / FACSIMILE (81.0);23,511010 , CEPU f 'I' CC; J rflgurattlattekv.com • September 14, 2007 VIA ELECTRONIC CORRESPONDENCE ONL Y President Peter Clemens and Members of the Holly Village Council 202 S. Saginaw St Holly, MI 48442 Re: John Lauve -- Eligibility for Office Dear President Clemens and Members of the Village Council: I have been asked for my opinion as to the applicability of section 4.1 of the village charter to the recent village election held on Tuesday, September 11, 2007, in which Mr. John Lauve received the most votes among 51:andidates (plus write in votes) for one of the three vacant seats on the village council. I have been advised that Mr. Lauve owes approximately $14,727 in delinquent property taxes for the 2005 and 2006 tax years for properties he owns in the village. I have been further advised that Mr. Lauve owes approximately $425 for delinquent Water bills for properties he owns in the village and another $100 for two Initial rental inspections. I have been further advised that all of these Sums Were owing as of September 11, 2007, the date of the election. I have been asked if this means that he is in default to the village and if his election is void. In that regard, I should further point out that I have been advised that Mr. LZUVO has been informed of the provisions of section 4.1(a) of the village charter by the Village administration on at least one occasion In the past. • Section 381 of the Michigan Election Law [MCL 188.381] provides that "the qualifications, nomination, election, appointment, term of office, and removal from office of a village officer shalt be as determined by the charter provisions governing the village." Section 4.1(a) of the Holly village charter provides, "No person shall be elected or appointed to any office who is in default to the Village. The election or appointment of any such defaulter or person shall be void." The question, therefore, is whether a delinquent tax liability, or delinquent water fees, or delinquent building inspection fees constitute a default to the village. The village charter does not define what constitutes being "in default to the village." • SEP/17/2007/MON 01:55 PM P, 003 • President Peter Clemens and Members of the Village Council September 14,2007 Page 2 of 3 Section 2.1(a) of the village charter, however, does incorporate, when appropriate, the provisions of the general law Village Act. That section states that "All powers, privileges, and immunities not inconsistent with the provisions of this charter, . . and enumerated in Act No.3, P.A. 1895,. . . are hereby expressly retained by the village . . . even though not expressly enumerated herein." Act No. 3, PA 1895 is the General Law Village Act (1VICL 61.1 et sea,]. The General Law Village Act addresses qualifications for general law village offices in MCL 621 which provides: (2) A person in default to the village is not eligible for any office in the village. All votes in an election for or any appointment of a person in default to the village are void. As used in this subsection, "in default" means delinquent in payment of property taxes or a debt owed to the village if I of the following applies: (a) The taxes remain unpaid after the last day of February in the year following the year in which they are levied, unless the taxes are the subject of an appeal. (b) Another debt owed to the village remains unpaid 90 days alter the due date, unless the debt is the subject of an administrative appeal or a contested court C8S13. Thus, property taxes which are '`unpaid after the last day of February in the year following the year in which they are levied" and debts to the village which remain "unpaid 90 days after the due date" constitute a default under the General Law Village Act, and, in my opinion, would constitute a default for purposes of section 41 of the Holly village charter. This opinion is based on the reference to the incorporation of provisions of the General law Village Act into the village charter by section 2.1(a) of that charter, and also by a review of cases from Michigan and other jurisdictions where delinquent property taxes and/or delinquent water bills have been deemed to disqualify a candidate from public office. The most recent case on point happens to be a case from Michigan - Corrigan v. City of Newaygo, 55 F 3d 1211 (CAB 1995). In that case, the Newaygo city charter prohibited residents who were delinquent on their local taxes or water and sewer fees from appearing on the ballot in elections for local offices. Two candidates attempted to run for mayor and city council respectively in 1993. They were deemed ineligible for office under the cited city charter provision. They and others filed suit in the Federal District Court for the Western District of Michigan alleging the charter provision violated several of their constitutional and civil rights. The Federal District court upheld the city's position and the validity of the city charter provision. The plaintiffs then appealed that decision to the United States Court of Appeals for the 6th Circuit, The 6th Circuit Court of Appeals affirmed the District Court's decision and upheld the validity and enforceability of the city's charter provision. Based on the foregoing, it is my opinion that because Mr. Lauve owed delinquent property taxes, delinquent water billings and rental inspection fees to the Village as of the date of the election, he was in default to the Village as of that date and, pursuant to section 4.1(a) of the village charter, his election is void. The next question to be addressed then is what happens to the seat that Mr. Lauve would have been elected to had he not been in default to the Village? Unfortunately, there are no Michigan cases on point. A review of case law from other jurisdictions around the country reveals many conflicting decisions. Some hold that the ineligible candidate's votes are thrown out and the next highest vote-getter moves into the ineligible candidate's slot This rule derives from old English common law and is frequently described as "the English rule." Other jurisdictions hold that the election as to that seat is nugatory or invalid, and that the votes still count but not for any candidate (including the ineligible candidate). This is referred to as "the SIME91, FIGURA & PORK5R, P.L.C. Richard J. SEP/17/2007/MON 01:55 PM P.004 • President Peter Clemens and Members of the Village Council September 14, 2007 Page 3 of 3 American rule," and is the rule followed by most jurisdictions in the United States. Application of the American rule in this case means that the votes received by Mr. Lauve would still count as votes, even though the recipient of those votes cannot assume office. Since the votes would still count, however, the second place finisher would remain the second place finisher, and the third place finisher would remain third. Some courts which normally follow the American rule, will nevertheless follow the English rule (and allow the other candidates to "move up the ladder" so to speak) where the candidate's ineligibility was known beforehand by the electorate. That is not the case here, however, because there is no evidence that the Village electors were aware of Mr. Lauve's ineligibility at the time they cast their votes_ A minority of other courts which normally follow the American rule will nevertheless follow the English rule if a statute makes the votes for such a candidate void. In this Instance, while the General Law Village Act (a) renders such votes void, our city charter does not make the votes void, only the election. While an argument could be made that the provisions of the General Law Village Act apply and that the votes for Mr. Lauve should be void, thereby invoking the English rule, I believe the better approach from a legal standpoint is that the votes are not void, because the village charter does not specifically make them so. Thus, it is my opinion that the American rule would apply in this case which leads to the following result. First, Mr. Lauve's election is void. Second, the other candidates do not "move up the ladder" so that the 4th place finisher would move up to the third open seat. Third, there is a vacancy in the council seat which Mr. Lams would have filled and that vacancy must be filled in the manner provided for in the village charter. Filling vacancies in village council seats is covered by section 4.5(a) of the village charter which provides that the council must "elect a person who possesses the qualifications required of holders of the office" within thirty (30) days after the vacancy occurs. For purposes of that deadline, it is my opinion that the vacancy occurred on Tuesday, September 11, the date of the void election. Therefore, the village council has until October 11, 2007 to fill that vacancy. I understand that this opinion affects Mr. Lauve and the other candidates for the council seats, and I urge the Village staff to take steps to see they are advised of It as soon as possible. I trust this answers the questions presented. Please advise if I can be of any further assistance. Sincerely, RJF/tjc • cc: Aaron Oppenheimer, Village Manager Marsha Powers, Clerk-Treasurer