Davenport v. Genesee County
| Decision Date | 17 September 2010 |
| Docket Number | Case No. 10-CV-13503 |
| Citation | 737 F.Supp.2d 809 |
| Parties | David DAVENPORT et al., Plaintiffs, v. GENESEE COUNTY et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
F. Anthony Lubkin, Law Office of F. Anthony Lubkin, Owosso, MI, for Plaintiffs.
H. William Reising, Plunkett & Cooney, Peter M. Bade, City of Flint Legal Department, Flint, MI, Michael J. Hodge, Miller, Canfield, Lansing, MI, for Defendants.
Plaintiffs have filed this case claiming constitutional violations in the way Defendants have processed the petitions seeking to place the question of the recall of Mayor Walling on the November 2, 2010 ballot. Plaintiffs also claim that the challenge to their recall petitions filed by the entity "Friends of Dayne Walling" was invalid, as it was not filed by Dayne Walling himself.
Plaintiffs seek a preliminary injunction to compel Defendants to place the recall on the November ballot. Plaintiffs claim that the procedures used to verify the signatures on the recall petitions were arbitrary, which resulted in constitutional violations. They specifically claim that the Michigan recall laws as applied to them violated their First, Fifth, and Fourteenth Amendment rights.
The Court disagrees for the following reasons and denies the motion for preliminary injunction.
Plaintiffs filed a complaint in the Genesee County Circuit Court on August 31, 2010. Defendants then removed the case to this Court on September 2, 2010. On September 3, 2010, Plaintiffs filed a Motion for Preliminary Injunction that is now before the Court.
The statutory period allowed for reviewing petitions is thirty-five days. TRO Hr'g Tr. 9, Sept. 9, 2010 [hereinafter TRO Tr. 1]. The petitions are first filed with the County Clerk, who has seven days to do a preliminary examination of the signatures. Id. The City Clerk has fifteen days to review the signatures for any defects. The official who is the subject of the recall has eight days to file a challenge. If there is a challenge filed, then the City Clerk has five additional days to review the challenged signatures. TRO Hr'g Tr. 9-11, Sept. 10, 2010 [hereinafter TRO Tr. 2]. On September 10, 2010, the parties stipulated that 8,004 signatures were required. Id. at 9.
The Committee to Recall Dayne Walling and Plaintiff Davenport collected signatures for petitions to recall the Flint mayor, Dayne Walling. They filed the petitions on July 29, 2010 with the County Clerk. TRO Tr. 1, 2. Plaintiffs submitted more than 14,000 signatures on the recall petitions. Tr. 2, 8. Plaintiffs received a receipt for submitting 13,738 signatures after 300 were invalidated for obvious statutory deficiencies. Within seven days of the submission of the petitions, the County Clerk rejected some of the signatures and 12,779 signatures were forwarded to the City Clerk. Id.
The City Clerk reviewed and removed more signatures leaving 8,267. TRO Tr. 1, 11. The County Clerk and City Clerk removed signatures if they did not meet the statutory requirements, if the signature did not match the signature in the voting file, or if other irregularities were present. See TRO Hr'g Tr., Sept. 14, 2010 [hereinafter TRO Tr. 3].
A challenge to the recall was raised with the County Clerk by an entity called "Friends of Dayne Walling". TRO Tr. 1, 11-12. Mayor Walling ratified the challenge made by the Friends of Dayne Walling that was made on his behalf. 1 Def. Carr's Resp. to Pls.' Mot. for Prelim. Inj., Ex. B at 3; see also TRO Tr. 2, at 6, 73. The County Clerk reviewed the challenge by the Friends of Dayne Walling. TRO Tr. 1, 12. On August 31, 2010, he determined that there were 7,484 valid signatures. Id. The Clerk's office then notified Plaintiffs and the challenger of the outcome in a letter dated August 31, 2010, the same day that Plaintiff filed suit in Genesee County Circuit Court. TRO Tr. 1, 12. The case was removed to this Court.
This Court held three hearings on Plaintiffs' Motion for Preliminary Injunction, including an evidentiary hearing on September 14, 2010. The Clerk of the City of Flint testified. The Clerk serves as the chief election official for the City of Flint. The Clerk is responsible for reviewing recall petitions. This recall was handled the same as other recalls.
The Clerk testified that it is her office's policy to "err on the side of the voter" if there is an ambiguity. TRO Tr. 3, 49. She stated that her employees are trained and instructed to review petitions to make sure that they are properly completed. See TRO Tr. 3. They compare the signature on the petition with the original voter registration file.
The Clerk testified that she and her staff use codes to identify invalid signatures. The Secretary of State has identified acceptable invalidation codes. The Secretary of State has also afforded the local clerks with latitude in developing andusing other invalidation codes. Id. at 49. The Clerk developed additional codes because "[she] want[ed] to be very clear in terms of why the signature was being disqualified as opposed to putting it in a miscellaneous category." TRO Tr. 3, 64.
Plaintiff is seeking injunctive relief to order the Genesee County Clerk to restore signatures stricken and to place the recall on the ballot for the November 2, 2010 election.
"A preliminary injunction is reserved for only the most egregious case, and should not be extended to cases which are doubtful or do not come within well-established principles of law." Bonnell v. Lorenzo, 241 F.3d 800, 826 (6th Cir.2001). The moving party has the "burden of proving that the circumstances clearly demand [an injunction]." Overstreet v. Lexington-Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir.2002).
When evaluating a motion for preliminary injunction, the Court must consider four factors: "(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction." Bonnell, 241 F.3d at 809 (quoting Rock & Roll Hall of Fame v. Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998)).
No single factor is controlling of the outcome, although if "there is simply no likelihood of success on the merits" that is usually "fatal". Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th Cir.2000).
Plaintiffs claim that the statute M.C.L. § 168.958 as applied was unconstitutional. "A court may hold a statute unconstitutional either because it is invalid 'on its face' 2 or because it is unconstitutional 'as applied' to a particular set of circumstances." Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir.1997). At this stage of the litigation the Plaintiffs do not have to show that they will succeed on the merits, but that there is a substantial likelihood that they will succeed on the merits.
The Michigan State Constitution affords Michigan voters the right to recall "all elective officers except judges of courts of record" and identifies the minimum number of signatures required for a recall petition. Mich. Const., of 1963, art. II, § 8 (1963).
Recall procedures are generally governed by the Michigan Compiled Laws §§ 168.951-.976. M.C.L. § 168.954 states:
A recall petition shall be signed by the registered and qualified electors of the electoral district of the official whose recall is sought. Each signer of a recall petition shall affix his or her signature, address, and the date of signing. A person who signs a recall petition shall be a registered and qualified elector of the governmental subdivision designated in the heading of the petition.
Id. at .954. Further, § 168.958 discusses the validity of the signatures on a recall petition, stating:
A petition sheet shall contain only the signatures of qualified and registeredelectors of the city.... A qualified and registered elector may sign the petition sheet in any location at which the petition sheet is available. A petition is not invalid if it contains the signature of a person who is not a qualified and registered elector of the appropriate city ... listed in the heading of that petition sheet.
Id. at .958.
Specific procedures on recall issues are administratively handled by the Secretary of State, through the Bureau of Elections, and local clerks' offices. The State has published various guides for recall procedures.
Here, Plaintiffs have not met their burden of showing that there is a strong likelihood that they will succeed on the merits. Plaintiffs have not shown that M.C.L. 168.958 was applied to them in a fashion that violated their constitutional rights.
Plaintiffs allege that Defendants inappropriately removed too many signatures, thus wrongfully rejecting the recall petitions in violation of their First, Fifth, and Fourteenth Amendment rights. Plaintiffs specifically contest various practices by the City and County Clerks: 1) the use of invalidation codes, such as "NHS" (meaning "Not His/Her Signature") among others. 2) The disqualification of signatures based on the use of ditto marks in certain sections of the petitions. 3) The invalidation of signatures because of various other irregularities.
Defendants maintain that the Clerks followed the proper laws in reviewing the recall petitions. The Court agrees.
In the case of Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291 (6th Cir.1993), voters challenged the denial of ballot certification of an initiative petition after a large number of signatures were invalidated by the Board of State Canvassers...
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