Bogaert v. Land, 1:08-CV-687.
| Decision Date | 27 August 2008 |
| Docket Number | No. 1:08-CV-687.,1:08-CV-687. |
| Citation | 572 F.Supp.2d 883 |
| Parties | Rose BOGAERT, Plaintiff, v. Terri Lynn LAND, individually and in her official capacity as Michigan Secretary of State, Defendant, Andrew Dillon, Wayne County Clerk Cathy M. Garrett, and Wayne County Election Commission, Intervenors. |
| Court | U.S. District Court — Western District of Michigan |
Edward Dean Greim, Todd Peterson Graves, Graves Bartle & Marcus, Kansas City, MO, Gary L. Field, Law Office of Gary L. Field, PLLC, Norman C. Witte, Law Office of Norman C. Witte, Lansing, MI, for Plaintiff.
Ann Maurine Sherman, Mark E. Donnelly, MI Dept. Attorney General (Employ, Elect, Torts), Lansing, MI, for Defendant.
Mary Ellen Gurewitz, John R. Runyan, Jr., Sachs Waldman PC, Janet L. Anderson-Davis, Detroit, MI, for Intervenors.
This matter is before the Court on Plaintiff Rose Bogaert's motion for a preliminary injunction. Plaintiff is the sponsor of an effort to place a recall vote against State Representative Andrew Dillon on the November 4, 2008, general election ballot. Defendant Terri Lynn Land, in her capacity as Secretary of State, determined that Plaintiff's recall effort did not gather a sufficient number of signatures after excluding signatures gathered in violation of M.C.L. § 168.957. Michigan Compiled Laws § 168.957 requires recall petition circulators to be registered to vote and to be residents of the legislative district of the official to be recalled. Plaintiff seeks a preliminary injunction ordering Defendant to restore signatures that were stricken from the petition to recall Representative Dillon pursuant to M.C.L. § 168.957 solely because of the petition circulator's out-ofdistrict residence or lack of voter registration. Plaintiff contends that the district resident and registered voter requirements of M.C.L. § 168.957 violate the First Amendment of the U.S. Constitution. For the reasons that follow, the Court will grant a preliminary injunction as to the application of M.C.L. § 168.957.
State Representative Andrew Dillon represents the 17th House District in the Michigan House of Representatives. He is also the Speaker of the House. Representative Dillon is an intervenor in this lawsuit. Plaintiff is a resident of the 17th House District. Defendant is the Michigan Secretary of State. Defendant, in her capacity as the Michigan Secretary of State, is charged with determining the sufficiency of signatures appearing on all recall petitions submitted to her office. Intervenor Wayne County Election Commission has certain responsibilities related to the administration of elections in Wayne County. Intervenor Wayne County Clerk Cathy M. Garrett is a member of the Wayne County Election Commission. The Court will refer to Intervenors Wayne County Election Commission and Wayne County Clerk Garrett as the Wayne County Intervenors.
On October 1, 2007, Representative Dillon voted in favor of an increase in the state income tax and to extend the state sales tax to certain services. Based on this vote, Plaintiff decided to sponsor a recall petition drive. On October 12, 2007, Plaintiff filed a recall petition against Representative Dillon with the Wayne County Clerk. Under M.C.L. § 168.952(3) the Wayne County Election Commission is charged with determining if the recall petition is sufficiently clear. On November 1, 2007, the Wayne County Election Commission determined that the petition to recall Representative Dillon was not sufficiently clear and rejected the petition. Under M.C.L. § 168.952(6), Plaintiff filed an appeal of the Wayne County Election Commission's decision in Wayne County Circuit Court. On January 18, 2008, a Wayne County Circuit Court Judge approved Plaintiffs recall petition as being sufficiently clear under M.C.L. § 168.952(3). Representative Dillon was a defendant in the Wayne County Circuit Court case and he appealed the Circuit Court's decision to the Michigan Court of Appeals. On July 17, 2008, the Michigan Court of Appeals dismissed the case with a written order that explained as follows:
On the Court's own motion, it is ordered that the within appeal is dismissed as MOOT.
On June 5, 2008, the Secretary of State determined that the recall petition at issue in the present appeal contains insufficient signatures to be placed on the ballot. This Court denied a request for mandamus. Bogaert v. Secretary of State, unpublished order of the Court of Appeals, entered June 10, 2008 (Docket No. 285826). The Michigan Supreme Court also denied leave to appeal. Bogaert v. Secretary of State, 481 Mich. 899, 749 N.W.2d 751 (2008). As a result of these decisions, the recall proposal at issue in this case will not be on the ballot, making it unnecessary for us to address the arguments related to its language. Accordingly, this appeal is dismissed as moot.
(Dkt. No. 16, Wayne County Intervenors' Resp., Ex. 2, Bogaert v. Wayne County Election Comm'n, Dkt. No. 284098, 284101, order at 1 (Mich.Ct.App. July 17, 2008).)
Plaintiff, and other supporters of the recall petition, had ninety days between January 18, 2008, and May 2, 2008, to collect 8,724 valid signatures and submit them to the Michigan Secretary of State. On May 1, 2008, Plaintiff submitted 15,737 signatures to the Michigan Secretary of State's Bureau of Elections. Defendant made a preliminary determination that 8,224 of the submitted signatures were valid. Representative Dillon and other opponents of the recall had until June 2, 2008, to submit challenges to the Secretary of State's initial determination. On June 5, 2008, Defendant made a final determination that 7,948 valid signatures had been submitted in support of the recall campaign, which is 776 short of the 8,724 required to place the recall on the ballot. (Dkt. No. 1, Compl., Ex. 2, Letter from Terri Lynn Land, Mich. Sec'y of State, Mich. Dep't of State, to Matthew G. Davis (June 5, 2008) 2.) Defendant rejected 5,736 signatures for reasons not at issue in the instant lawsuit. (Id. at 2.) However, Defendant rejected 2,053 signatures based on the recall petition circulator requirements of M.C.L. § 168.957. (Id.) Plaintiffs signature in support of the recall petition was among the signatures rejected by Defendant based on the recall petition circulator requirements. (Compl. ¶ 40; Rep. Dillon's Answer, Ex. 6, Recall Petition—No. 01476.)
On June 6, 2008, Plaintiff filed an emergency complaint with the Michigan Court of Appeals seeking a writ of mandamus to compel the Secretary of State to count the signatures rejected based on the recall petition circulator requirements. On June 10, 2008, by written order, without an accompanying written opinion, the Michigan Court of Appeals denied Plaintiff's request for a writ of mandamus. (Wayne County Intervenors' Resp., Ex. 4, Bogaert v. Sec'y of State, Dkt. No. 285826, order at 1 (Mich. Ct.App. June 10, 2008).) The Michigan Court of Appeals decision stated:
The Court orders that the motion for immediate consideration is GRANTED.
...
The motion for oral argument is DENIED.
The complaint for mandamus is DENIED.
(Id.) Plaintiff sought leave to appeal to the Michigan Supreme Court. On June 11, 2008, the Michigan Supreme Court issued the following order:
On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Bogaert v. Sec'y of State, 481 Mich. 890, 890, 749 N.W.2d 743 (2008). On June 13, 2008, the Michigan Supreme Court issued a second order:
On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the June 10, 2008 order of the Court of Appeals is considered, and it is DNIED, because the Court is not persuaded that the questions presented should be reviewed by this Court.
Bogaert v. Sec'y of State, 481 Mich. 899, 899, 749 N.W.2d 751 (2008).
Plaintiff filed this federal lawsuit on July 18, 2008. Plaintiff asserts claims under 42 U.S.C. § 1983 for violations of her rights under the First Amendment to the U.S. Constitution. Plaintiff asserts her § 1983 claim against Defendant in both her official and individual capacities. Plaintiff seeks a preliminary injunction ordering Defendant to:
(1) restore the 2,053 stricken signatures to Plaintiff's petition; (2) declare the petition sufficient; and (3) call an election for the recall of Rep. Andy Dillon for the November 4, 2008 general election.
On July 25, 2008, Representative Dillon sought to intervene. On July 28, 2008, the Wayne County Intervenors sought to intervene. On July 29, 2008, the Court granted Representative Dillon's and the Wayne County Intervenor's motions to intervene. (Dkt. No. 23, 07/29/2008 Mem. Op.) The Court granted the motions to intervene before Plaintiff or Defendant had an opportunity to respond to the motions to intervene. In her briefing prior to the hearing on the preliminary injunction Plaintiff indicated that she intended to file motions for reconsideration as to the Court's grant of the motions to intervene. (Dkt. No. Pl.'s Reply to Intervenors 3 n. 1.) However, at the preliminary injunction hearing and in a subsequent letter filed with the Court, Plaintiff indicated that she does not oppose intervention by the Wayne County Intervenors. (Dkt. No. 26, Letter from Edward D. Greim, Pl.'s Attorney, to Janet Anderson-Davis, Asst. Corp. Counsel, Wayne County Election Comm'n (Aug. 7, 2008) 1.)
The Court held a preliminary injunction hearing on July 31, 2008. At the hearing the Court indicated that the parties could file supplemental briefs within fourteen days of the hearing. All of the parties elected to file such briefs. The Wayne County Intervenors also filed a response to Plaintiff's supplemental brief.
To continue reading
Request your trial
-
Sterling Consulting Corp.. v. Lynn Land
...caused if the court allowed the plaintiffs to press these admittedly delayed constitutional claims. See Bogaert v. Land, 572 F.Supp.2d 883, 897 (W.D.Mich.2008) (Robert Holmes Bell, J.) (“The injunctive relief sought by Plaintiff does not pose the same potential for creating ‘immense adminis......
-
Bogaert v. Land
...preliminary injunction based on its conclusion that M.C.L. § 168.957 likely violated the First Amendment. Bogaert v. Land, 572 F.Supp.2d 883, 2008 WL 3915148 (W.D.Mich. Aug.27, 2008). The injunction ordered the Secretary to reexamine the 2,053 signatures at issue, and to certify any of thos......
-
Davis v. Wayne Cnty. Elections Comm'n
...Election Commission for their consideration and prior approval." (Dkt. 19 at 5-7) (emphasis in original) (citing Bogaert v. Land , 572 F.Supp.2d 883, 900 (W.D.Mich.2008), appeal dismissed 543 F.3d 862 (6th Cir.2008) ). He asserts that White should not have to receive prior approval of her p......