STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF KENT ______________________________ GRAND RAPIDS TAXPAYERS ASSOCIATION and MICHAEL FARAGE, Plaintiffs, v

Case No. 14-

CITY OF GRAND RAPIDS, GRAND RAPIDS BOARD OF CITY ELECTION COMMISSIONERS, and DARLENE O’NEAL, in her capacity as Grand Rapids City Clerk and chair of the Board of Election Commissioners,

HON.

-AW

Defendants.

Jeffrey A. Steinport (P76401) STEINPORT LAW PLC Attorney for Plaintiffs 538 Bond Ave NW Ste 812 Grand Rapids, MI 49503 (616) 730-1401

THERE IS NO OTHER PENDING OR RESOLVED CIVIL ACTION ARISING OUT OF THE TRANSACTIONS OR OCCURRENCES ALLEGED IN THE COMPLAINT. VERIFIED COMPLAINT Plaintiffs Grand Rapids Taxpayers Association (“Taxpayers Association”) and Michael Farage (“Farage”) state for their Complaint as follows: 1.

This case seeks to stop an illegal tax proposal from being submitted to the

voters in violation of state law. The Defendants violated a clear statute that sets hard deadlines for

certification of proposed ballot questions such as the Grand Rapids Streets Tax (“Streets Tax”). Therefore, this Court should block this unlawful election from being held. The Parties 2.

Plaintiff Taxpayers Association is an unincorporated entity. It is organized

as a ballot question committee under Michigan law to oppose to the proposed Streets Tax increase that would otherwise be decided at a special election to be held on May 6, 2014. 3.

Plaintiff Farage is a resident, qualified elector, and taxpayer in the City of

Grand Rapids. He is the co-chair of the Taxpayers Association. Defendant Darlene O’Neal (“O’Neal”) is the acting Grand Rapids City

4.

Clerk. In this capacity, she is responsible for all elections activity in Grand Rapids and serves as chair of the Grand Rapids Board of City Election Commissioners. 5.

Defendant Grand Rapids Board of City Election Commissioners (the

“Board”) is the board of the City of Grand Rapids responsible for administering elections. Defendant City of Grand Rapids (the “City”) is a Michigan City that seeks

6.

to sponsor a ballot question and call a special election on May 6, 2014, for the purposes of raising city income taxes. 7.

This Court has jurisdiction over the claims and venue is proper. Background on the Proposed Streets Income Tax Increase

8.

On January 28, 2014, the Grand Rapids City Commission approved

language for two ballot proposals to be placed on a May 6 special election ballot. The Streets Tax asked voters to authorize a fifteen-year income tax that would be used in part to fund street improvements. A second question included a city charter amendment to change how sidewalk repairs are funded, but only if the Streets Tax passed on May 6.

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9.

The City’s decision to call a special election was itself controversial. A

May special election would have significantly lower voter turnout than the regularly-scheduled August primary. Furthermore, there are no other issues on the ballot other than the Streets Tax and the tie-barred sidewalk repair issue. By the City’s own numbers, this May 6 special election would cost approximately $80,000. Opponents of the election suggested that this money could be better spent filling potholes and that the election should be held at the regularly scheduled August primary. 10.

The City nevertheless chose to pursue a May 6 special election. But it failed

to comply with Michigan Election Law. Michigan’s Statutory Requirements for Holding an Election 11.

Michigan’s election law contains a variety of important, technical

requirements for placing an issue before the voters. 12.

One such requirement is that the language be certified to the county clerk in

sufficient time before the scheduled election: (2) If a local, school district, or county ballot question is to be voted on at a regular election date or special election, the ballot wording of the ballot question shall be certified to the local or county clerk at least 70 days before the election. If the wording is certified to a clerk other than the county clerk, the clerk shall certify the ballot wording to the county clerk at least 68 days before the election. Petitions to place a county or local ballot question on the ballot at the election shall be filed with the clerk at least 14 days before the date the ballot wording must be certified to the local clerk. (3) The provisions of this section apply notwithstanding any provisions of law or charter to the contrary, unless an earlier date for the filing of affidavits or petitions, including nominating petitions, is provided in a law or charter, in which case the earlier filing date is controlling. [MCL 168.646a (emphasis added).]

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13.

Under this statute, the wording must always be certified to the county clerk.

The wording may either be certified directly to the county clerk or certified to a city clerk who would then certify it to the county clerk. 14.

There are two ways that the City’s Streets Tax could have complied with

15.

By February 25, 2014—70 days before the election—the City must have 1.)

the statute.

certified, 2.) the wording of the Streets Tax question, 3.) to the Kent County Clerk. 16.

Or, by February 27, 2014, the City must have 1.) certified, 2.) the wording

of the Streets Tax question, 3.) to O’Neal , 4.) who must have certified the wording of the Streets Tax question, 5.) to the County Clerk. 17.

Under either analysis, the City was required to place certified language in

the hands of the County before the end of February. It did not do so. The City’s Failure to Comply With the Statute and the County’s Decision to Exclude the Streets Tax 18.

For unknown reasons, the City did not timely certify the wording of the

Streets Tax to the County Clerk. 19.

Instead, the City only certified the wording of the companion issue—the

amendment dealing with how sidewalks were paid for. 20.

As a result, the County had decided to print ballots for the May 6 election

without including the Streets Tax. 21.

On information and belief, the County was simply following MCL

168.646a.

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22.

On March 4, an intrepid reporter from MLive/Grand Rapids Press

discovered the City’s error and that the County would not include the Streets Tax on the May ballot. (Exhibit 1.) The County and the City Decide to Proceed With the Streets Tax Vote 23.

In the scramble set off by the news coverage, the City and the County

apparently developed a theory to allow the Streets Tax vote to go forward. 24.

According to the news report, the City and County determined that although

the O’Neal had not formally certified the wording of the Streets Tax question to the County Clerk, an earlier informal email from another official sufficed. 25.

This informal email was sent by City Attorney Catherine Mish; it was not

sent by O’Neal. More importantly, this email was sent on January 24, 2014—four days before the City Commission had approved the Streets Tax vote or the wording for the Streets Tax. (Plaintiffs requested a copy of this email on March 5, but have yet to receive it.) 26.

It was not possible for O’Neal to certify the wording of an issue to be placed

on the ballot until the City Commission had voted to place the issue on the ballot. The Streets Tax thus cannot properly be voted on for the May 6 election. 27.

According to media sources, the City has subsequently taken the position

that MCL 168.646a simply does not apply to local ballot issues. But the plain text of the statute covers local ballot issues and imposes statutory deadlines, which the City missed. Indeed, this is confirmed by the calendar of dates for the May 6 election produced by the Michigan Bureau of Elections (Exhibit B.) 28.

The City is now proceeding with the election, and unless the Court acts

immediately, will expend significant resources on holding an invalid election.

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COUNT I: VIOLATION OF MCL 168.646a 29.

Plaintiffs incorporate by reference the preceding paragraphs.

30.

Pursuant to MCL 168.646a, no local ballot question may be voted on at an

election unless it is properly certified to the county at least 68 days before the election. 31.

The Defendants failed to comply with the requirements of this statute. As

such, the Streets Tax may not be placed on the May 6 ballot, and the Defendants should be enjoined from conducting this election. COUNT II: PETITION FOR WRIT OF MANDAMUS 32.

Plaintiffs incorporate by reference the preceding paragraphs.

33.

MCL 168.646a imposes a clear legal duty upon Defendants not to place a

question on the ballot unless it was submitted at least 68 days before the election. 34.

Plaintiffs have a clear legal right to the benefits of MCL 168.646a.

35.

The obligations imposed by MCL 168.646a are ministerial in nature. The

statute imposes duties that are clearly defined by law with precision and certainty. The statute also imposes and unqualified duty on Defendants and does not afford Defendants any discretion as to whether they must follow it. 36.

The Plaintiffs have no other legal remedy.

37.

Pursuant to MCR 3.305, Plaintiffs request a writ of mandamus directed to

the Defendants and ordering that the Streets Tax not be placed on the May 6 ballot. COUNT III: DECLARATORY JUDGMENT 38.

Plaintiffs incorporate by reference the preceding paragraphs.

39.

An actual and justiciable controversy within the Court’s jurisdiction exists

between the parties.

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40.

A present adjudication of the controversy is necessary to guide the future

conduct of the parties and preserve legal rights. 41.

Declaratory relief will avoid a multiplicity of actions at law or avoid

potential conflicts between the parties to this case and third parties. REQUESTED RELIEF WHEREFORE, Plaintiffs request that this Court enter a judgment: a.

Enjoining the placement of the Streets Tax on the May 6 ballot;

b.

Enjoining the holding of the May 6 election because the sidewalk issue cannot be voted upon the without the Streets Tax, making the sidewalk issue a legal nullity without the Streets Tax;

c.

Issuing a writ of mandamus to Defendants concerning the same;

d.

Declaring that placing the Streets Tax on the May 6 ballot violates MCL 168.646a;

e.

Awarding Plaintiffs their legal fees and costs pursuant to MCL 600.4431; and

f.

Awarding any further relief that the Court deems appropriate.

Dated: March 7, 2014 Jeffrey A. Steinport (P76401) STEINPORT LAW PLC Attorney for Plaintiffs 538 Bond Ave NW Ste 812 Grand Rapids, MI 49503 (616) 730-1401 VERIFICATION I declare that the statements contained in the above Complaint are true to the best of my information, knowledge, and belief. Dated: March 7, 2014

____________________________________ Michael E. Farage

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