Davis v. Chatman, Docket No. 299021.

• Decision Date: 17 May 2011
• Docket Number: Docket No. 299021.
• Parties: DAVIS v. CHATMAN.
• Court: Court of Appeal of Michigan — District of US

276 Ed. Law Rep. 973

292 Mich.App. 603

808 N.W.2d 555

DAVIS

v.CHATMAN.

Docket No. 299021.

Court of Appeals of Michigan.

Submitted April 8, 2011, at Detroit.Decided May 17, 2011, at 9:15 a.m.

Marlinga Law Group, PLLC, Clinton Township (by Carl J. Marlinga), and the Law Offices of Culpepper Kinney, Detroit (by Robert F. Kinney) for plaintiff.

Peggy K. Madden for defendant.

Marianne Talon, Corporation Counsel, and Janet Anderson–Davis, Assistant Corporation Counsel, for the Wayne County Board of Canvassers.

Before: FORT HOOD, P.J., and MURRAY and GLEICHER, JJ.

MURRAY, J.

Two seats were up for election in 2010 on the Highland Park School District Board of Education, one of which was held by plaintiff, Robert Davis. Plaintiff, with Debra J. Humphrey and defendant, Clifford Chatman, was one of seven candidates vying for the school board positions. When plaintiff finished in third place behind defendant, he sought and obtained a judgment granting a writ of quo warranto. As a consequence, defendant's election victory was invalidated and plaintiff was placed into office. Defendant appeals as of right both the order granting plaintiff leave to file the complaint of quo warranto and the judgment granting a writ of quo warranto. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

On January 20, 2010, defendant signed an affidavit of identity with the Highland Park clerk in order to run for one of two school board positions in the upcoming election.¹ Both terms were to commence July 1, 2010. In accordance with election requirements, defendant claimed on the affidavit of identity that he was a lifetime resident of Wayne County and resided on January 20, 2010, at 56 Louise in Highland Park. On May 4, 2010, the school board election was held, and Humphrey and defendant won the two positions. Plaintiff finished in third place, 23 votes behind defendant (201 votes compared to 178 votes).

Plaintiff, believing that defendant did not reside at 56 Louise and therefore did not meet the residency requirements to be on the ballot for election as a school board member, took steps to initiate quo warranto proceedings against defendant and sought a temporary restraining order to prevent defendant from tampering with his residency records. The court granted plaintiff's application for leave to file a complaint for quo warranto and held an evidentiary hearing on the application.

An evidentiary hearing was held over three days where both parties presented witnesses and submitted exhibits. The crux of the matter was whether defendant resided at 56 Louise for 30 days prior to the February 9, 2010, filing deadline. Plaintiff's proofs, which intended to show that the house was unoccupied during the relevant times, primarily involved witnesses' observations of the property, the status of the utilities for the property, and defendant's own address filings with the state.

Plaintiff's eyewitnesses who testified about the condition of the house were John Holloway, Ralph Kinney, and plaintiff himself. Holloway, a retired police chief for the city of Highland Park who lived four houses away from 56 Louise, stated that he saw snow accumulate throughout the winter and first saw signs of occupancy in April 2010. Plaintiff also traveled by the premises over a hundred times (many of which were between January 20 and February 9, 2010) and never saw any lights or other signs of occupancy. For his part, Kinney testified that over the course of a three-week period in May, he never saw any people but did note that televisions or lights were on at nighttime and that the same two vehicles would be present in front of the house regardless of when he visited. Both plaintiff and Kinney testified that they never saw garbage taken to the curb on the neighborhood's garbage pickup day. Furthermore, plaintiff testified that, after a May 11, 2010, school board meeting, he followed defendant to a residence located at 17315 Lincoln Drive in Southfield.

Plaintiff also presented evidence that the house lacked the necessary and usual utilities that a home would need in order to be habitable. Pashko Memcevic, a DTE Energy employee, testified that the last known customer for 56 Louise was Bianca Heard and that the service was terminated on October 13, 2008. Thus, DTE was not actively supplying electricity or gas to 56 Louise. ² Memcevic also testified that DTE's records showed no gas usage during this entire time, but Memcevic acknowledged that it was because DTE was unable to obtain any readings.

Furthermore, plaintiff presented the testimony of Khalaila Hines, an employee in the Highland Park Water Department. According to Hines, the water to 56 Louise was turned off on November 25, 2008, and her records showed no water activity any time after the shutoff. Hines indicated, however, that even though there should have been no water being supplied to 56 Louise, it would have been possible for water to be supplied illegally if someone had the proper tools and turned the water on at the street.

Plaintiff also relied on the addresses that defendant used in some state records to show that defendant did not reside at 56 Louise. Although defendant changed his voting registration to reflect the 56 Louise address on January 20, 2010, defendant's concealed weapons permit and vehicle registration still reflected, as of the evidentiary hearing, an address of 17315 Lincoln Drive in Southfield.

Defendant, on the other hand, claimed that he, indeed, started residing at 56 Louise in late October 2009. Regarding his prior residential history, defendant testified that he had lived at 17315 Lincoln Drive in Southfield from June 2008 through November 2008, 231 Ferris in Highland Park from November 2008 through April 2009, 11745 Ten Mile Road # 202 in Warren from April 2009 through October 2009, and finally at 56 Louise in Highland Park in October 2009. ³ Defendant acknowledged that there was no furnace in 56 Louise, so in order to keep warm he and his landlord/roommate, Chaka Powell,⁴ used two electric space heaters. As proof of his tenancy, defendant offered into evidence a lease he signed that commenced on January 1, 2010. Defendant explained that there was no lease agreement for the first couple months that he resided on Louise because he was on “hard times.”

While defendant indicated that he started living at 56 Louise in late October 2009, he was not evicted from his Warren apartment until December 28, 2009. Defendant explained that although he had already moved out two months earlier, the Warren apartment complex had to procure this judgment in order for their records to reflect that defendant had vacated the premises.

Before the end of January 2010 or early February 2010, there was no regular mail delivery to 56 Louise. Mark Harvey, the postal carrier for that area, testified that he would hold on to mail addressed to that house because he thought the home was vacant. However, in late January or early February, Harvey was informed by his supervisor to resume delivery because the homeowner had requested it. Harvey explained that, in addition to the home looking like it was vacant, there was no mailbox present to deliver to until after the request to resume delivery occurred. Also of note, Harvey only met defendant for the first time a month before the hearing, which would correlate approximately to the first week of May 2010.

At the conclusion of the evidentiary hearing on June 9, 2010, the trial court summarized the evidence it had received and noted that “[t]he Court has driven by the house yesterday.... [T]he house is boarded up, it does not appear to be lived in from the outside.” Ultimately, the court concluded that defendant did not reside at 56 Louise during the relevant time period:

We know from the—both the water people, the water board, and from the DTE Energy, there's no gas, no electricity, there's no water at this house.

So the Court finds that this house is not inhabitable by anyone in the world in its present condition. So this Court finds that Mr. Chatman was not a resident. He had changed his address. He used that address, but he's not inhabiting that house, and residing there within the meaning of the laws. So the Court will grant the TRO.

Nine days later, on June 18, 2010, defendant moved to disqualify the trial court on the basis that he impermissibly acquired personal knowledge when he drove past 56 Louise. At a hearing on June 28, 2010, the court denied the motion, stating that “[t]he fact that I drove by wasn't the basis of my decision.” Afterward, defendant moved for Wayne Circuit Court Chief Judge Virgil Smith to disqualify the trial court, but Chief Judge Smith denied the motion because defendant failed to show that the trial judge exhibited any bias.

On June 30, 2010, the trial court entered a judgment granting a writ of quo warranto, ordering that defendant was not entitled to hold the school board position and that all votes cast for him were null and void. Furthermore, the judgment declared that plaintiff, having the next highest vote total, was the duly elected winner of the election. The trial court also denied defendant's request for a jury trial, concluding that a determination on the matter had already been made and, in any event, the court did not believe that defendant had a right to a jury trial for this equitable action.

Two weeks into plaintiff's new term, this court entered an order that (1) stayed that portion of the judgment recognizing plaintiff as one of the election winners and (2) ordered that the board seat was to remain empty pending the appeal. Davis v. Chatman, unpublished order of the Court of Appeals, entered July 15, 2010 (Docket No. 299021). The Supreme Court later denied plaintiff's application for leave to appeal this order. Davis v. Chatman, 487 Mich. 859, 784 N.W.2d 823 (2010). The instant appeal ensued.

II. ANALYSIS

A. LEAVE TO APPLY FOR QUO WARRANTO

Defendant first argues that the trial court erred when it...