Burton-Harris v. Wayne Cnty. Clerk
| Decision Date | 07 May 2021 |
| Docket Number | 353999 |
| Parties | Victoria BURTON-HARRIS, Plaintiff, v. WAYNE COUNTY CLERK, and Wayne County Election Commission, Defendants-Appellees, and Kym Worthy, Intervenor-Defendant-Appellee, and Robert Davis, Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Robert Davis in propria persona.
Janet Anderson Davis, Assistant Corporation Counsel, for the Wayne County Clerk and Wayne County Election Commission.
The Miller Law Firm, PC (by Melvin B. Hollowell and Angela L. Baldwin ) for Kym L. Worthy.
Before: K.F. Kelly, P.J., and Servitto and Letica, JJ.
Robert Davis appeals as of right the trial court's order denying his motion to intervene and plaintiff's emergency motion for a temporary restraining order, mandamus relief, and declaratory relief. We affirm.
This case involves events that occurred before the August 2020 primary election and concerns the duties owed by defendants Wayne County Clerk (the Clerk) and Wayne County Election Commission (the Election Commission) (collectively, the Wayne County defendants) with respect to MCL 168.558(4) of the Michigan Election Law, MCL 168.1 et seq. On March 18, 2020, intervenor-defendant, Kym Worthy, filed an affidavit of identity (AOI) regarding her candidacy for the office of Wayne County Prosecutor in the 2020 election. The form affidavit included the following statement before her signature:
Plaintiff, also a candidate for Wayne County Prosecutor, submitted a letter to the Wayne County defendants on June 2, 2020, to challenge Worthy's candidacy. Plaintiff explained that when Worthy was last elected in 2016, she was required to file a postelection statement under MCL 168.848 before assuming office. According to plaintiff, Worthy never filed the required statement. Consequently, the affirmation in Worthy's AOI was false, and the Wayne County defendants had a duty to not certify Worthy for inclusion on the August 2020 primary ballot.
In response to plaintiff's challenge, the Clerk indicated that a facial review of Worthy's AOI "determined that all sections deemed mandatory by the Michigan Campaign Finance Act [ MCL 169.201 et seq. ] have been complied with and the requirements of MCL 168.558(2) have been met." The Clerk advised plaintiff that it did not have the power to investigate "the truth or falsity of a candidate's affirmation in the Campaign Finance Compliance Statement and Attestation section of the Affidavit of Identity." On June 5, 2020, the Clerk certified a list of candidates for Wayne County Prosecutor that included Worthy, and the Election Commission approved the printing of the August 2020 primary ballots.
Plaintiff immediately initiated this action by filing a verified complaint and emergency motion in an attempt to preclude Worthy's name from appearing on the ballots, and a show-cause hearing was scheduled for June 15, 2020. Davis filed an emergency motion to intervene on June 11, 2020, which the trial court addressed at the beginning of the June 15, 2020 hearing. Although Davis's proposed complaint substantially mirrored the mandamus and declaratory–judgment counts in plaintiff's complaint, Davis urged the court to allow his intervention because he was concerned that plaintiff would not appeal an adverse ruling. Davis asserted that, as a registered voter in Wayne County, he had a right to pursue proper enforcement of election laws. The trial court denied Davis's motion to intervene and plaintiff's emergency motion. This appeal followed.
Considering the timing of this appeal, Davis preemptively addressed the mootness doctrine, arguing that the issues involved in this case are either not moot because an alternative remedy could be fashioned or, if moot, should still be addressed because the issues are publicly significant and likely to recur but evade judicial review.1 "[T]he question of mootness is a threshold issue that a court must address before it reaches the substantive issues of a case." Can IV Packard Square, LLC v. Packard Square, LLC , 328 Mich. App. 656, 661, 939 N.W.2d 454 (2019), quoting In re Tchakarova , 328 Mich. App. 172, 178, 936 N.W.2d 863 (2019) (quotation marks omitted). Whether an issue is moot is a question of law that is reviewed de novo. Can IV Packard Square , 328 Mich. App. at 661, 939 N.W.2d 454.
An issue is moot if it involves an abstract question of law without foundation in existing facts or rights or is presented under circumstances "in which a judgment cannot have any practical legal effect upon a then existing controversy." T.M. v. M.Z. , 501 Mich. 312, 317, 916 N.W.2d 473 (2018) (quotation marks and citation omitted). Although this Court will not generally address such issues, Can IV Packard Square , 328 Mich. App. at 661, 939 N.W.2d 454, "a moot issue will be reviewed if it is publicly significant, likely to recur, and yet likely to evade judicial review," In re Indiana Mich. Power Co. , 297 Mich. App. 332, 340, 824 N.W.2d 246 (2012).
Since Davis filed this appeal, the August 2020 primary election and November 2020 general election have taken place with Worthy's name appearing on the ballots.2 Therefore, even if we found merit in the issues presented for review, we could not grant relief that would exclude Worthy as a candidate in the 2020 elections. The issues before the Court are therefore moot, see T.M. , 501 Mich. at 317, 916 N.W.2d 473, but we agree that they should still be considered because the strict time constraints involved in elections create a reasonable expectation that the issues involved in this appeal could recur yet escape judicial review, In re Indiana Mich. Power Co. , 297 Mich. App. at 340, 824 N.W.2d 246.3
Next, Davis challenges the trial court's denial of his motion to intervene. A trial court's ruling regarding a motion to intervene is reviewed for an abuse of discretion. Kuhlgert v. Mich. State Univ. , 328 Mich. App. 357, 377, 937 N.W.2d 716 (2019). "An abuse of discretion occurs when the decision is outside the range of principled outcomes." Id. at 377-378, 937 N.W.2d 716 (quotation marks and citation omitted). A trial court's application of laches is reviewed de novo. Knight v. Northpointe Bank , 300 Mich. App. 109, 113, 832 N.W.2d 439 (2013).
"[T]he rule should be liberally construed to allow intervention when the applicant's interest otherwise may be inadequately represented." Auto-Owners Ins. Co. v. Keizer-Morris, Inc. , 284 Mich. App. 610, 612, 773 N.W.2d 267 (2009) (quotation marks and citation omitted; alteration in original). Davis also sought permissive intervention under MCR 2.209(B)(2), which allows intervention "when an applicant's claim or defense and the main action have a question of law or fact in common." MCR 2.209(B)(2). "[A] court deciding a request for permissive intervention must ‘consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.’ " Kuhlgert , 328 Mich. App. at 378-379, 937 N.W.2d 716, quoting Hill v. L.F. Transp., Inc. , 277 Mich. App. 500, 508, 746 N.W.2d 118 (2008). Both intervention rules "condition intervention on timely application." Kuhlgert , 328 Mich. App. at 379, 937 N.W.2d 716.
The trial court denied Davis's motion because his interest in the case was adequately represented by plaintiff. The court reasoned that plaintiff's interest in the matter was even more compelling than Davis's interest because plaintiff was not merely a qualified elector, but also a candidate for the same office pursued by Worthy. And although the court agreed that the claims presented by plaintiff and Davis involved common questions of law and fact, it opined that laches precluded Davis's intervention because "any delay in rendering and resolving this particular matter would, in fact, work a hardship upon, not only the clerks, but also upon the voters of Wayne County."
Davis maintains on appeal that his interest in proper enforcement of election laws was not adequately represented by plaintiff because he anticipated that plaintiff would not pursue appellate review of an adverse ruling. Davis compares the circumstances at hand to Federated Ins. Co. v. Oakland Co. Rd. Comm. , 475 Mich. 286, 715 N.W.2d 846 (2006), wherein the Supreme Court determined that the Attorney General could not, by moving to intervene before the Supreme Court, appeal a decision of this Court when the original litigants did not file a timely appeal. The Supreme Court recently clarified that its decision in Federated Ins. Co. was premised on the absence of a "justiciable controversy because neither of the losing parties below filed a timely appeal and because the Attorney General was not an aggrieved party." League of Women Voters of Mich. v. Secretary of State , 506 Mich. 561, 576, 957 N.W.2d...
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