Michigan Cases June 07, 2022: Rocha v. Sec'y of State

Case Description

Order

On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the June 2, 2022 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. The motion for stay is DENIED.

Zahra, J. (concurring).

I concur in the order denying relief in this matter. MCL 168.558(4) provides that an affidavit of identity (AOI) "must include a signed and notarized statement that as of the date of the affidavit, all ... late filing fees, and fines required of the candidate or any candidate committee organized to support the candidate's election under the Michigan campaign finance act ... have been ... paid[.]" Plaintiff's 2022 Annual Report was due on January 31, 2022, but he did not file it until February 7, 2022. As a result, he owed a late filing fee. In his February 18 AOI, plaintiff averred that he had paid all late filing fees. But that was not true, because he did not pay his late filing fee until March 7. Therefore, his February 18 AOI included a false statement and defendants are precluded from certifying him.

Plaintiff argues that he did not violate MCL 168.558(4) because he did not know that he owed a late filing fee. However, the Bureau sent his campaign committee an e-mail on February 3 informing it that plaintiff's annual report was late and that he would be charged a late fee. In addition, the Bureau sent an e-mail on February 16 indicating that plaintiff owed a $250 late fee. Therefore, plaintiff should have known when he signed his AOI on February 18 that he owed a late fee that had to be paid.

The dissent adopts a reasonable interpretation of MCL 168.558(4) to conclude that a late fee that is not yet due is not required of plaintiff. The dissent states, "It makes little sense to say that a fee that was assessed but not yet due is ‘required’ of the candidate." I am inclined to disagree on this point.

The late filing fee was indeed assessed, and plaintiff knew or should have known at the time he executed his AOI that this fee must be paid in order for him to comply with the Michigan Election Law, MCL 168.1 et seq. Thus I am hard-pressed to conclude that the imposed late fee was not required of plaintiff, even if the date for paying this late fee had not yet passed.

I again reiterate for the Legislature that the current time frame for courts to meaningfully address these types of election matters is woefully inadequate. See Johnson v. Bd. of State Canvassers , 509 Mich. ––––, 974 N.W.2d 235 (2022) ( ZAHRA , J., concurring). This case demonstrates my point. Perhaps I would interpret this statute differently with the benefit of additional briefing and time, but, as I pointed out in Johnson , we are denied the time needed to address election disputes in the manner and process typically followed by this Court. Given the briefing and time afforded

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the Court in this matter, I concur in the denial of leave.

Viviano, J. (dissenting).

Plaintiff Jon Rocha is a prospective candidate for the Michigan House of Representatives in the 78th district, but the Bureau of Elections (the Bureau) disqualified him from the ballot for making a false statement on his affidavit of identity (AOI) regarding an outstanding fee. Because I do not believe that plaintiff made a false statement in his AOI, I would grant his request for mandamus relief to be placed on the August primary ballot.

On February 16, 2022, the Bureau sent plaintiff's committee a notice of late filing fee. The notice stated that the fee was due roughly a month later, on March 18, 2022. Two days after receiving the notice, on February 18, 2022, plaintiff executed his AOI, stating that, "[a]t this date, all statements, reports, late filing fees, and fines due from me or any Candidate Committee organized to support my election ... have been filed or paid." The Bureau contended that MCL 168.558(4) required it to disqualify plaintiff. Plaintiff sought mandamus in the Court of Appeals, which was denied in an order stating that the fee was "required of" plaintiff when it was assessed, not when it later became due. Therefore, according to the Court of Appeals, plaintiff's statement in his AOI that there were no "late filing fees due" was false. Today, the majority lets that decision stand by denying relief.

I write because I believe that the Court of Appeals erred and that plaintiff is entitled to be placed on the ballot. MCL 168.558(4) provides in relevant part:

An affidavit of identity must include a signed and notarized statement that as of the date of the affidavit, all statements, reports, late filing fees, and fines required of the candidate or any candidate committee organized to support the candidate's election under the Michigan campaign finance act, 1976 PA 388, MCL 169.201 to 169.282, have been filed or paid.... An officer shall not certify to the board of election commissioners the name of a candidate who fails to comply with this section, or the name of a candidate who executes an affidavit of identity that contains a false statement with regard to any information or statement required under this section. [Emphasis added.]

Here, at the time plaintiff submitted his AOI, he had been assessed a late filing fee that was not yet due. The issue in this case, then, is whether late filing fees that are assessed but not yet due are "fees ... required of the candidate" when he or she files the AOI.

To "require" means "to impose a compulsion or command on[.]" Merriam-Webster's Collegiate Dictionary (11th ed.). The action being required here is payment of a late filing fee. So the issue is whether, at the time a candidate files an AOI, there was a fee that plaintiff was commanded to pay "as of the date of the affidavit." It makes little sense to say that a fee that was assessed but not yet due is "required" of the candidate. No one would say, for example, that as of April 1 a tax return is generally required of a taxpayer. It is not until April 15 that this becomes true. The Legislature could have easily used the term "assessed" in the statute if it had intended to preclude candidates from filing an AOI if they were assessed fees that were not yet due. It appears that the Bureau of Elections, at least until this case, agreed that fines and fees "required

[974 N.W.2d 824]

of the candidate" meant those that were then due from the candidate: in the AOI form the Bureau provides to candidates, the word "due" is used rather than the word "required." If the rule were otherwise—i.e., that fines and fees "required of the candidate" included those that were not yet even due—then MCL 168.558(4) would move up sub silentio the due dates on any fees assessed by the election officials. In this case, for example, although plaintiff was told his payment was not required until March 18, the effect would be that it was really due on February 18, when he filed his AOE.

For these reasons, I believe that a late filing fee is not "required of the candidate" until the date it must be paid. In the present case, there is no dispute that plaintiff's late fee was not yet due when he filed his AOI. Therefore, the statement in plaintiff's AOI that at the time of filing all fees due from him had been paid was true. I therefore dissent and would grant plaintiff mandamus relief for placement on the August primary ballot.

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