Michigan Cases June 07, 2022: Davis v. Highland Park City Clerk

Case Description

Order

On order of the Court, the motion for immediate consideration is GRANTED. The motion to intervene is DENIED. There being no party to the case pursuing an appeal to this Court, the application for leave to appeal and the remaining motions are DISMISSED.

Welch, J. (dissenting).

I disagree with the Court's decision to deny Carlton Clyburn, Jr.’s motion to intervene and to dismiss his appeal, at least at this stage. I would have granted Clyburn's motion to intervene because the Court of Appeals’ decision will result in the removal of his name from the nonpartisan August primary ballot and no other defendant has appealed. MCR 2.209. See also League of Women Voters of Mich. v. Secretary of State , 506 Mich. 561, 957 N.W.2d 731 (2020). I also question whether mandamus relief was appropriately granted in this case. It is undisputed that Clyburn left a blank space on his affidavit of identity (AOI) for designating party affiliation and that he is seeking election to a nonpartisan mayoral office. As of December 27, 2021, MCL 168.558(2) requires that an AOI "contain ... the candidate's political party or a statement indicating no party affiliation if the candidate is running without political party affiliation," but MCL 168.550 does not mandate disqualification from the ballot for noncompliance because Clyburn is not seeking to appear on the "official primary election ballot of any political party...." In the absence of a clear statutory mandate, I think it is debatable whether the local clerk had a clear legal duty to disqualify Clyburn from appearing on the ballot and whether such a duty was ministerial in nature. See Taxpayers for Mich. Constitutional Gov't v. Dep't of Technology, Mgt., & Budget , 508 Mich. 48, 81-82, 972 N.W.2d 738 (2021) ; Teasel v Dep't of Mental Health , 419 Mich. 390, 410, 355 N.W.2d 75 (1984). A majority of this Court has agreed that strict compliance with preelection form and content requirements is required. See Stand Up For Democracy v Secretary of State , 492 Mich. 588, 594, 600-608, 619, 822 N.W.2d 159 (2012) (opinion by MARY BETH KELLY , J.); id. at 620, 822 N.W.2d 159 ( YOUNG , C.J., concurring in part and dissenting in part); id. at 637, 640-641, 822 N.W.2d 159 ( MARKMAN , J., concurring in part and dissenting in part). However, because Clyburn is seeking election to a nonpartisan local office, I question whether the Court of Appeals was correct to hold that silence as to party affiliation cannot satisfy the requirement of "indicating no party affiliation" under MCL 168.558(2). I do not believe Stumbo v Roe , 332 Mich App 479, 957 N.W.2d 830 (2020), directly answers this question, and Moore v. Genesee Co. , ––– Mich. App. ––––, ––– N.W.2d –––– (2021) (Docket No. 355291, 2021 WL 2600829),

[974 N.W.2d 551]

drew a distinction between immaterial defects in an AOI that do not warrant disqualification and material defects that do warrant disqualification. These issues, I believe, are worthy of further consideration.

Bernstein, J., joins the statement of Welch, J.