Davis v. Wayne Cnty. Elections Comm'n

Decision Date31 August 2016
Docket NumberCase No. 16-cv-12547
Citation204 F.Supp.3d 950
Parties Robert DAVIS and Desmond M. White, Plaintiffs, v. WAYNE COUNTY ELECTIONS COMMISSION, Defendant. and Michael Edward Duggan, Mayor of the City of Detroit, Intervening Defendant.
CourtU.S. District Court — Eastern District of Michigan

204 F.Supp.3d 950

Robert DAVIS and Desmond M. White, Plaintiffs,

Michael Edward Duggan, Mayor of the City of Detroit, Intervening Defendant.

Case No. 16-cv-12547

United States District Court, E.D. Michigan, Southern Division.

Signed August 31, 2016

204 F.Supp.3d 951

Andrew A. Paterson, Jr., Novi, MI, for Plaintiffs.

Janet Anderson-Davis, Wayne County Corporation Counsel, Detroit, MI, Kevin P. Kavanagh, for Defendant.

Andrea L. Hansen, John D. Pirich, Honigman, Miller, Lansing, MI, Andrew M. Pauwels, Honigman Miller Schwartz and Cohn, Arthur Thomas O'Reilly, Honigman, Miller, Detroit, MI, for Intervening Defendant.


JUDITH E. LEVY, United States District Judge

On July 18, 2016, a telephone conference was held in the above matter. For the reasons stated on the record, supplemental briefing was ordered on the question of whether plaintiff Robert Davis has standing in this case. (Dkt. 10.) The Court, having reviewed the supplemental briefing, now finds that Davis lacks standing to bring this lawsuit. Accordingly, Davis is terminated as a plaintiff from this matter and the claims raised on his behalf against defendants are DISMISSED with prejudice. The case will proceed with the claims brought by plaintiff Desmond White.

I. Background

Plaintiffs Desmond White and Robert Davis brought this lawsuit seeking a declaratory judgment and injunctive relief from the alleged rejection by defendant Wayne County Election Commission ("Commission") of White's petition to recall intervenor Edward Duggan, Mayor of the City of Detroit. In their proposed second amended complaint,1 plaintiffs challenge

204 F.Supp.3d 952

two provisions of Michigan's recall election law, M.C.L. §§ 168.952(2) and (3), as both facial and as-applied prior restraints of their political speech. (Dkt. 21 at 13-20.)2 They also challenge these two provisions as violating Art. II, § 8 of the Michigan Constitution. (Id. at 20-28.) Plaintiffs seek an injunction barring the Commission from enforcing these two provisions of the recall election law. (Id. at 28-30.)

White is a resident and registered elector of the City of Detroit, and she alleges that on May 20, 2016, she filed a proposed petition to recall Mayor Duggan with the Commission. (Id. at 5.)3 That same day, the Commission provided written notice to White and Duggan that it would convene on June 7, 2016 to consider White's petition with regard to "the clarity of reasons as set forth" in the petition. (Id. at 6.) Plaintiffs allege that at the June 7, 2016 meeting, the Commission evaluated White's petition with regard to its factuality and clarity and ultimately determined that "no facts support" the statements in the petition. (Id. at 7-8.) The complaint further states that the Commission advised White of its decision to reject the petition for a lack of clarity. (Id. at 8-9.)

Plaintiff Davis alleges that he and White "desire to and are ready, willing, and able to immediately begin circulating the proposed recall petition" but for the Commission's rejection, and that this prior approval as required by M.C.L. §§ 168.952(2) and (3) impairs their First Amendment right to circulate the petition. (Id. at 12.) Additionally, plaintiffs challenge the requirement that the Commission evaluate whether the petition is "factual and of sufficient clarity" as being unconstitutionally vague. (Id. at 13.) Davis, individually and collectively with White, also alleges that the challenged law impedes their right under Art. II, § 8 of the Michigan Constitution to seek the recall of an elected official, in that evaluating a proposed petition for "factuality" constitutes a political question, which is left to the voters under the terms of the Michigan Constitution. (Id. at 14.)

II. Legal Standard

"In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." ASARCO Inc. v. Kadish , 490 U.S. 605, 612–13, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (quoting Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ). Because standing is a jurisdictional issue, it may be raised sua sponte by the Court.

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Loren v. Blue Cross & Blue Shield of Mich. , 505 F.3d 598, 607 (6th Cir.2007).

It is the plaintiff's burden to establish that he has standing, which requires a three-part showing: 1) an "injury in fact—an invasion of a legally-protected interest" that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical"; 2) "the injury has be fairly traceable to the challenged action of the defendant"; and 3) "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Parsons v. U.S. Dep't of Justice , 801 F.3d 701, 710 (6th Cir.2015) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). " ‘Injury in fact’ is a standard meant to weed out those who have no interest in the action, not to deny a day in court to those who have weak cases." Dilaura v. Ann Arbor Charter Twp. , 30 Fed.Appx. 501, 506 (6th Cir.2002).

In the First Amendment context, the standing inquiry is "relaxed ... ‘because of a judicial prediction or assumption that the policy's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’ " Faith Baptist Church v. Waterford Twp. , 522 Fed.Appx. 322, 330 (6th Cir.2013) (quoting Berner v. Delahanty , 129 F.3d 20, 24 (1st Cir.1997) ) (quoting Broadrick v. Oklahoma , 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ). The relaxed standing rules in First Amendment cases regarding the relationship between the litigant and those whose rights are being asserted reflect a concern that strict "application of the rules would have an intolerable, inhibitory effect on freedom of speech." ACLU v. Nat'l Sec. Agency , 493 F.3d 644, 658 n. 18 (6th Cir.2007) (quoting Eisenstadt v. Baird , 405 U.S. 438, 445 n. 5, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) ).

Nonetheless, "a subjective fear of chilling [ones First Amendment rights] will not suffice for standing absent a real and immediate threat of future harm." White v. United States , 601 F.3d 545, 554 (6th Cir.2010) (citing, ...

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