Michigan Cases August 22, 2022: Davis v. Sec'y of State

Case Description

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Kirsten Frank Kelly, Presiding Judge, Michael J. Kelly, Michael J. Riordan, Judges.

ORDER

The motion for immediate consideration is GRANTED.

The complaint for mandamus and declaratory relief is DENIED. Plaintiffs seek a writ of mandamus compelling defendants to certify plaintiff Kahlilia Yvette Davis's name as an incumbent candidate for 36 District Court Judge on the November general election ballot. However, plaintiffs do not dispute that Davis executed an affidavit of identity (AOI) containing a false statement. Because of that, MCL 168.558(4) prohibits defendants from certifying Davis's name for inclusion on the general election ballot.

While the complaint is likely barred by the doctrine of res judicata, see Garrett v Washington , 314 Mich.App. 436, 441; 886 N.W.2d 762 (2016), we reject plaintiffs' construction of MCL 168.467a and MCL 168.558(4). Reading the statutes in pari materia , see International Business Machines Corp v Dep't of Treasury , 496 Mich. 642, 651-653; 852 N.W.2d 865 (2014), the language of MCL 168.467a relied on by plaintiffs does not create a separate duty to certify a candidate's name for inclusion on a general election ballot that would override the clear language of MCL 168.558(4) under the circumstances presented here. MCL 168.467a states that, in the event that the total number of candidates seeking the office of District Court Judge does not exceed twice the number of open seats for that office, "the secretary of state shall certify to the county board of election commissioners the name of those candidates for district court judge whose petitions or affidavits of candidacy have been properly filed . . . ." Plaintiffs contend that, as Davis did properly file an affidavit of candidacy, and the number of total candidates for the office of 36 District Court Judge was below the threshold were a primary election would be held, the Secretary of State has a clear legal duty, pursuant to MCL 168.467a, to certify Davis's name to the county board of election commissioners. We disagree. The relevant language of MCL 168.467a simply creates a mechanism for certification of candidates to appear on the general election ballot in the event that, because of the number of total candidates seeking the office of District Court Judge, no primary election is to be held. This sentence of MCL 168.467a does not conflict with or override the clear language of MCL 168.558(4), which directs that "[a]n officer shall not certify to the board of election commissioners . . . 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." Rather, properly understood, an incumbent candidate who files the required affidavit of candidacy, see MCL 168.457c, and who files a proper AOI, see MCL 168.558, is entitled to appear on the primary ballot, or if no primary election is to be held under MCL 168.467a, on the general election ballot. This Court has held that MCL 168.558 applies to both primary and general elections. Moore v Genesee Co , 337 Mich.App. 723, 728-729; 976 N.W.2d 921 (2021).

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As such, Davis, who executed an AOI that contained a false statement, cannot appear on either ballot. MCL 168.558(4); Moore, 337 Mich.App. at 728-729.

We further reject the contention that the Secretary of State is not an "officer" under MCL 168.558, meaning that only MCL 168.467a directs how the Secretary of State must proceed. MCL 168.558(1) provides that, "When filing a[n] . . . affidavit of candidacy for a federal, county, state, city, township, village, metropolitan district, or school district office in any election, a candidate shall file with the officer with whom the . . . affidavit is filed 2 copies of an affidavit of identity." (Emphasis added.) MCL 168.467c directs that incumbent candidates for the office of District Court Judge are to file "with the secretary of state an affidavit of candidacy . . . ." Clearly, then, when it comes to the office of District Court Judge, the "officer" who is discussed in MCL 168.558 is the Secretary of State, as that is the officer with whom the affidavit of candidacy (and AOI) must be filed. MCL 168.467c. Further, MCL 168.21 explains that the Secretary of State is "the chief election officer of the state . . . ." (Emphasis added.) Accordingly, and contrary to plaintiffs' argument, the Secretary of State-the "officer" referred to by MCL 168.558-cannot certify Davis's name to appear on the general election ballot because plaintiff executed an AOI containing a false statement. MCL 168.558(4).

A writ of mandamus is a remedy that exists to enforce one's right to have an official perform a clear legal duty. Berry v Garrett, 316 Mich.App. 37, 41; 890 N.W.2d 882 (2016). The clear legal duty in this case was, as the Bureau of Elections concluded, to refuse to certify Davis's name to appear on either the primary or general election ballot. MCL 168.558(4). Plaintiffs are not entitled to the writ sought. The count for declaratory relief is likewise without merit, as the declaration plaintiffs seek is not compatible with the statutory framework.

In light of this Court's disposition of the complaint, the motion for summary disposition is DENIED AS MOOT.

The motion for immediate consideration of the motion for leave to file an amicus brief is GRANTED. The motion for leave to file an amicus brief is DENIED.