Michigan Cases September 16, 2021: Davis v. Wayne Cnty. Election Comm'n

Case Description

UNPUBLISHED

Wayne Circuit Court LC No. 20-008522-AW

Before: Cameron, P.J., and Jansen and Gleicher, JJ.

PER CURIAM.

Robert Davis filed suit against Wayne County and city of Detroit entities charged with managing elections, seeking to prevent Brenda Jones from being listed on the Democratic primary ballot for Michigan's 13th Congressional District. The circuit court denied Davis's requests for a writ of mandamus, a declaratory judgment, a preliminary injunction, and to file an amended complaint, and dismissed his complaint with prejudice. Davis filed a claim of appeal on July 24, 2020, but this Court denied his motion to expedite the appeal. Davis v Wayne Co Election Comm , unpublished order of the Court of Appeals, entered July 27, 2020 (Docket No. 354315). Jones subsequently lost the primary and her candidacy went no further. We now dismiss Davis's appeal as moot.

I. BACKGROUND

Davis is a registered elector of the 13th Congressional District. Leading up to the 2020 election, Davis supported and planned to vote for the incumbent, Congresswoman Rashida Tlaib, in the Democratic-Party section of the ballot for the August 4, 2020 primary election. On April 19, 2020, Brenda Jones filed nominating petitions and an affidavit of identity, seeking to be placed on the ballot to run against Congresswoman Tlaib. On June 5, 2020, the Wayne County Election Commission certified and approved Jones's name to appear on that ballot.

Davis waited a month to file suit. He sought a writ of mandamus against the Wayne County defendants to remove Jones's name from the ballot or to not count votes cast for her in the August 4 primary, asserting that false statements made in her affidavit of identity disqualified her petition from certification. Davis also sought a judgment declaring that Jones's name should not have been certified and placed on the ballot because of the false statements in her affidavit of identity. In a final claim against the county defendants, Davis sought a declaratory judgment that the Wayne County Election Commission should have chosen a replacement for one of its members who had abstained from voting in matters pertaining to the certification of Kym Worthy's name as a candidate for Wayne County Prosecutor.

Davis also sought a writ of mandamus to compel the Detroit City Clerk to allow daily public access and inspection of the absent-voter ballot application list. Davis alleged that such access had been restricted because of the COVID-19 pandemic. Davis sought to have the city of Detroit defendants held in criminal contempt for mailing unsolicited absent-voter ballot applications to all registered voters in Detroit. Davis asserted that this mass mailing violated a March 23, 2006 permanent injunction issued by the Wayne Circuit Court in another case. Jones later intervened as a defendant by stipulation of the parties.

The proceedings moved quickly as the primary election was scheduled for less than a month after Davis filed his complaint. Davis filed multiple motions seeking various forms of mandamus, declaratory and injunctive relief, all of which the trial court denied. Davis also moved to amend his complaint to allege further facts and additional claims, which the court denied. Ultimately, the court dismissed Davis's suit with prejudice, and Davis appealed as of right.

II. ANALYSIS

The August 4, 2020 primary election has come and gone, and Jones lost her bid to be placed on the general election ballot. Even so, Davis contends that this Court should consider his appellate challenges because they involve important questions regarding Michigan election law, issues that could arise again and yet evade review given the pace of elections.

"Mootness . . . is an issue that courts are obligated to raise on their own throughout the course of the proceedings in order to avoid issuing opinions when there is no longer a controversy between the parties." Turunen v Dir of Dep't of Natural Resources , __ Mich.App. __, __; __ N.W.2d __ (2021) (Docket No. 350913); slip op at 7. "The question of mootness is a threshold issue that a court must address before it reaches the substantive issues of a case." In re Tchakarova , 328 Mich.App. 172, 178; 936 N.W.2d 863 (2019).

This Court generally does not decide moot issues. B P 7 v Bureau of State Lottery , 231 Mich.App. 356, 359; 586 N.W.2d 117 (1998). "An issue is deemed moot when an event occurs that renders it impossible for a reviewing court to grant relief." Id . "A matter is moot if this Court's ruling cannot for any reason have a practical legal effect on the existing controversy." Garrett v Washington , 314 Mich.App. 436, 449; 886 N.W.2d 762 (2016) (cleaned up). "However, a moot issue will be reviewed if it is publicly significant, likely to recur, and yet likely to evade judicial review." Barrow v Detroit Election Comm , 305 Mich.App. 649, 660; 854 N.W.2d 489 (2014) (cleaned up). "An issue is likely to evade judicial review if the time frames of the case make it unlikely that appellate review can be obtained before the case reaches a final resolution." Tchakarova , 328 Mich.App. at 180. "[I]t is well-recognized that issues affecting election ballots are particularly vulnerable to evading appellate review due to the time constraints typically involved." Moore v Genesee Co , __ Mich.App. __, __; __ N.W.2d __ (2021) (Docket No. 355291); slip op at 2.

The issues raised on appeal by Davis are moot. As for his claims against the Wayne County defendants, Davis wanted Jones's name removed from the August 4, 2020 primary election ballot and votes cast for her to be thrown out. He also challenged the composition of the commission that certified Jones's petition. The primary is over and Jones lost; Davis's chosen candidate, Congresswoman Tlaib, defeated her. It is impossible for this Court to grant Davis the relief requested with respect to an election that has already occurred. Any ruling by this Court on these claims would have no practical legal effect on an existing controversy.

Davis's claims against the city defendants are also moot. Davis sought to compel daily public access and inspection of the absent-voter ballot application list leading up to the August 4 primary. Again, the election is past and no court can order the city to allow daily public access and inspection of the absent-voter application list for that election. Davis also sought to hold the city in criminal contempt for allegedly violating a 2006 injunction by distributing unsolicited absent-voter ballot applications. That past conduct also cannot be undone at this time.

Moreover, this case does not fall within the exception to the mootness doctrine for publicly significant issues that are likely to recur and yet likely to evade judicial review. Election-related issues are publicly significant and, as noted, are likely to evade review giving the nature of such cases. However, at least one issue in this case has not avoided review. This Court upheld a judgment of the Court of Claims entered before the November 2020 general election that the city of Detroit, upon direction from the Secretary of State, could legally distribute unsolicited absent-voter ballot applications. Davis v Secretary of State , __ Mich.App. __; __ N.W.2d __ (2020) (Docket No. 354622).

Further, had Davis timely filed his suit, his other challenges could have been resolved before the primary. Jones filed her affidavit of identity on April 19, 2020, and Davis began his investigation into the alleged inaccuracies in the affidavit by May 30, 2020. Yet Davis waited until July 8, 2020, to file this action. Had Davis filed his complaint and emergency motions in early June, the court could have timely resolved his challenges to the composition of the Wayne County Election Commission, objections to Jones's affidavit of identity, and claim that he was denied access to absent-voter lists. See, e.g., Berry v Garrett , 316 Mich.App. 37, 40-41, 50-51; 890 N.W.2d 882 (2016) (in which a timely challenge to a candidate's affidavit of identity was resolved before an election occurred). Davis provides no reason to believe that other litigants who bring similar challenges in the future will be as dilatory as he has been in this matter.

Davis also challenges the trial court's denial of his motion to amend his complaint. To the extent the amendments continued to request mandamus or declaratory relief related to the August 4 primary election or the November 3, 2020 general election, Davis's new claims would also be moot. The circuit court determined that Davis's proposed new claim for defamation against the Detroit City Clerk would be futile. While Davis's appellate challenge in this regard is not moot, Davis abandoned his substantive challenge by failing to cite any facts or authority to support his position. See Seifeddine v Jaber , 327 Mich.App. 514, 519-521; 934 N.W.2d 64 (2019).

We dismiss this appeal as moot.

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Notes:

Davis filed this action so close to the August 4 election date that a rebuttable presumption of laches exists pursuant to MCL 691.1031.

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