Michigan Advisory Opinions April 13, 1993: AGO 6759 (April 13, 1993)

AGO 6759.

You have asked whether, under section 954 of the Michigan Election Law, MCL 168.954; MSA 6.1954, recall petitions to recall a city council member, who has been elected by the voters in a ward within the city, must be signed only by the registered and qualified voters in that ward rather than by any registered and qualified voters in the city.

Section 954 of the Michigan Election Law provides:

The petitions shall be signed by registered and qualified electors of the electoral district of the official whose recall is sought.... The persons signing the petition shall be registered and qualified electors of the governmental subdivision designated in the heading of the petition. [ Emphasis added.]

The first sentence of section 954 strongly suggests that only registered and qualified voters in the ward of the city council member to be recalled may sign the recall petitions. In addition, section 951 of the Michigan Election Law, MCL 168.651; MSA 6.1951, provides that:

Every elective officer in the state, except a judicial officer, is subject to recall by the voters of the electoral district in which the officer is elected as provided in sections 951 to 976. [ Emphasis added.]

Furthermore, in a 1960 decision, the Michigan Supreme Court adopted a description of recall elections which states that recall is a process of " 'removing public officers at the discretion of the appointing power.' " Wallace v Tripp, 358 Mich 668, 679; 101 NW2d 312 (1960). Here, the appointing power is limited to the registered and qualified electors of the ward in question since only those persons may vote to recall and to elect a successor.

Research has disclosed no Michigan appellate precedents on this question. However, in Roman v Sharper, 53 NJ 338; 250 A2d 745, 746 (1969), the Supreme Court of New Jersey has resolved this question as follows:

It being clear the Legislature intended to invest the power of initiation [to recall] in ... a group of voters, the problem is to identify that group. Sensibly the group should be the group that can vote to recall and to elect a successor. In the case of a ward election, that group of course is the electorate of that ward and not the electorate of the entire City.

Hence in the case of a ward councilman the petition [to recall] may be signed only by registered voters of that ward. [ Emphasis added.]

When Michigan courts consider a matter of first impression they are at liberty to rely on persuasive precedents from other jurisdictions. Walling v Allstate Insurance Co, 183 MichApp 731, 736; 455 NW2d 736 (1990), lv den 437 Mich 973 (1991). The New Jersey precedent is persuasive when it concludes that the only persons who may sign the recall petition are the registered voters of the ward since only those voters may vote to recall and to elect a successor.

It is my opinion, therefore, that only the registered and qualified electors of the ward represented by a city council member may sign a petition to recall that city council member under section 954 of the Michigan Election Law.

Frank J. Kelley

Attorney General