Michigan Cases April 15, 2021: Feeney v. Dir. of Mich. Bureau of Elections

Case Description

If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports .

UNPUBLISHED

Court of Claims
LC No. 20-000143-MZ

Before: SHAPIRO, P.J., and CAVANAGH and GLEICHER, JJ.

PER CURIAM.

In this election case, defendants appeal the order of the Court of Claims granting plaintiff's request for a declaratory judgment that she was entitled to an incumbency designation and separate listing on the ballot for the November 3, 2020 election. For the reasons stated in this opinion, we dismiss the appeal as moot.

Plaintiff was appointed as a judge for the 17th Circuit Court in 2000 and has been elected to that position multiple times since. She sought reelection in the November 3, 2020 general election but missed the March 23, 2020 deadline to file an affidavit of candidacy, which is all that is needed for an incumbent judge to appear on the ballot. See Const 1963, art 6, § 22; MCL 168.413a(1).

On April 21, 2020, plaintiff filed a timely nominating petition with the Michigan Bureau of Elections that contained a sufficient number of valid signatures for her to appear on the ballot. The nominating petition stated in the heading that plaintiff was seeking election to a regular term nonincumbent position. On May 29, 2020, the Board of State Canvassers certified plaintiff as a nonincumbent judicial candidate for the 17th Circuit Court. Plaintiff subsequently requested that the Director of the Michigan Bureau of Elections grant her an incumbency designation and a separate listing on the November 3, 2020 ballot. See Const 1963, art 6, § 24; MCL 168.424a(1).

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The Director of the Michigan Bureau of Elections declined to do so, reasoning that under Michigan Election Law, MCL 168.1 et seq ., an affidavit of candidacy was the exclusive means for a sitting judge to be designated as an incumbent on the ballot. Plaintiff then filed a verified complaint in the Court of Claims seeking an order declaring that she was entitled to an incumbency designation and a separate listing as an incumbent on the November 3, 2020 ballot. The court granted plaintiff's request for declaratory relief, and she was designated as an incumbent and listed separately on the November 3, 2020 ballot. Plaintiff won reelection.

Defendants argue that the Court of Claims erred when it granted plaintiff declaratory relief. They contend that filing an affidavit of candidacy is the exclusive means for a sitting judge to declare an intent to run for reelection as an incumbent for her particular office, and so an incumbent judge that misses the deadline to file an affidavit of candidacy is no longer considered an incumbent under Michigan Election Law, even if she submits a nominating petition with the requisite number of signatures for the upcoming election. Plaintiff disagrees and contends that the Court of Claims correctly determined that filing an affidavit of candidacy is merely one way for an incumbent judge to seek reelection and that the failure to do so does not divest the judge of her incumbency status and the corresponding constitutional and statutory rights to be separately identified as such on the ballot. Plaintiff also argues, however, that we need not decide this issue because this appeal is moot now that the 2020 election has passed. We agree.

As a general rule, an appellate court will not decide moot issues. A case is moot when it presents only abstract questions of law that do not rest upon existing facts or rights. An issue is deemed moot when an event occurs that renders it impossible for a reviewing court to grant relief. [ B P 7 v Bureau of State Lottery , 231 Mich App 356, 359; 586 NW2d 117 (1998) (citations omitted).]

See also Garrett v Washington , 314 Mich App 436, 449; 886 NW2d 762 (2016) ("A matter is moot if this Court's ruling cannot for any reason have a practical legal effect on the existing controversy.") (quotation marks and citation omitted).

The sole issue in the case was whether plaintiff was entitled to the incumbency designation and a separate ballot line. The Court of Claims determined that she was, granted her request for a declaratory judgment and the election occurred in accordance with that judgment. Defendants concede that they are not challenging plaintiff's appearance as an incumbent on the ballot or the election result. Thus, it is impossible for this Court to grant relief to defendants that would have a practical legal effect on an existing controversy.

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Defendants nonetheless maintain that an exception to the mootness doctrine applies because (1) the election of circuit court judges is a matter of public significance, (2) this issue is likely to recur because incumbent judges may neglect to file timely affidavits of candidacy in the future, and (3) this issue is likely to evade review because it is unlikely that appellate review can occur before elections pass in similar scenarios. See Barrow v Detroit Election Comm , 305 Mich App 649, 660; 854 NW2d 489 (2014) ("[A] moot issue will be reviewed if it is publicly significant, likely to recur, and yet likely to evade judicial review.") (quotation marks and citation omitted).

We agree with defendants that the election of judges is a matter of public significance. We also agree that the deadlines for filing affidavits of candidacy, MCL 168.413a(1), and nominating petitions, MCL 168.413(1), may make it unlikely that appellate review could be obtained before ballots are finalized and elections occur should this issue arise again. However, we disagree that the issue is likely to reoccur. This appears to be the first case of record in which an incumbent judge failed to file an affidavit of candidacy but still sought reelection through the filing of a nominating petition. This makes sense given that filing an affidavit is significantly less arduous than signature gathering. As noted, plaintiff merely failed to file the affidavit of candidacy in time—it was not an intentional decision on her part to forgo this advantage provided to incumbent judges. And such an error appears to be unique or at least rare as defendants do not refer us to any other instances. Although it is possible that the issue could reoccur, we see no basis to conclude that it is likely to do so.

Dismissed as moot.

/s/ Douglas B. Shapiro
/s/ Mark J. Cavanagh
/s/ Elizabeth L. Gleicher