Davis v. Wayne Cnty. Election Comm'n
| Docket Number | 363604 |
| Decision Date | 20 July 2023 |
| Parties | ROBERT DAVIS, Plaintiff-Appellant, v. WAYNE COUNTY ELECTION COMMISSION, PATRICIA SUSAN FRESARD, KELLY ANN RAMSEY, LAKENA TENILLE CRESPO, and WAYNE COUNTY BOARD OF CANVASSERS, Defendants-Appellees, and NICHOLAS JOHN HATHAWAY, Intervening Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 22-008866-AW
Before: Sima G. Patel, P.J., and Mark T. Boonstra and RICK JJ.
Plaintiff Robert Davis, appeals as of right an opinion and order denying his motion for declaratory and mandamus relief granting summary disposition in favor of defendant Patricia Susan Fresard, defendant Kelly Ann Ramsey, defendant LaKena Tenille Crespo, and intervening- defendant, Nicholas John Hathaway;[1] denying Davis's motion for injunctive relief; and dismissing Davis's case in its entirety.[2] Finding no error requiring reversal, we affirm.
This case concerns the November 2022 general election. Specifically, Davis sought to preclude the inclusion of Fresard, Ramsey, and Crespo's names on the ballot because they filed affidavits of identity (AOIs) that purportedly failed to comply with statutory requirements. He further challenged the form in which Hathaway's name could appear on the ballot. Incumbents Fresard and Ramsey and nonincumbents Crespo and Hathaway ran for judicial office in the Third Judicial Circuit of Michigan (commonly, "Wayne County Circuit Court"). In pursuit of their respective candidacies, each filed an AOI with the Secretary of State. The form affidavit included a line labeled: Ramsey and Fresard filed their AOIs on March 9, 2022, and March 17, 2022, respectively, and both left the party-affiliation line blank. Crespo filed her AOI on April 19, 2022, writing "N/A" on the party-affiliation line. Hathaway wrote "No Party Affiliation" on his April 18, 2022 AOI.
Relevant to the claims against Hathaway in this case, the AOI form has a space for candidates to mark if their "name formally changed in the last 10 years for a reason other than marriage or divorce" and, if checked, space for the candidates to "print [their] full former name[.]" It also has a series of boxes to be filled out with the "exact name [the candidate] would like printed on the ballot[.]" Hathaway did not fill out the space on his 2022 AOI for formal name changes, and indicated that he wished his name to appear on the ballot in the following form: "Nicholas John Hathaway."
On July 26, 2002, Davis filed suit against the WCEC, Fresard, Ramsey, and Crespo. Davis alleged that the candidates' AOIs were facially defective for failing to include an affirmative statement regarding their lack of party affiliation and sought to disqualify them from the November 2022 general-election ballot. Although the Secretary of State certified these candidates for inclusion on the ballot, Davis alleged that the WCEC had an independent duty to determine whether each candidate was properly certified to appear on the general election ballot, as well as a duty to correct the alleged error committed by the Secretary of State. Davis sought declaratory and mandamus relief effectively precluding Fresard's, Ramsey's, and Crespo's candidacies. Davis's complaint was accompanied by an emergency motion for declaratory judgment, writ of mandamus, and an order to show cause on substantively identical grounds.
Davis's case was initially assigned to Wayne Circuit Court Chief Judge Timothy M. Kenny. Chief Judge Kenny signed a show-cause order scheduling the matter for hearing on August 4, 2022. On July 29, 2022, Davis filed an emergency motion to disqualify Chief Judge Kenny and the entire Wayne Circuit Court judiciary because of their relationships with the two incumbent defendants, Fresard and Ramsey. Chief Judge Kenny denied Davis's disqualification motion on August 8, 2022. On August 11, 2022, the State Court Administrative Office (SCAO) assigned the motion to Wayne Circuit Court Judge Freddie G. Burton, Jr., for review, but Judge Burton disqualified himself sua sponte based on his role as chairman of the WCEC. Subsequently, the SCAO assigned the motion to Macomb Circuit Court Judge James M. Biernat, Jr., for de novo review. Judge Biernat granted the motion for disqualification as to Chief Judge Kenny only. But he declined to address the issue with respect to the other Wayne Circuit Court judges because Davis withdrew his request for such relief at oral argument.
On September 9, 2022, Wayne Circuit Court Judge Susan L. Hubbard disqualified herself sua sponte. Judge Hubbard declared that a judicial ethics opinion prohibited the assignment of any Wayne Circuit Court judge to Davis's case and thus indicated that the case should be reassigned by the SCAO. On September 12, 2022, Judge Hubbard entered an opinion and order explaining her reasoning in further detail. Thereafter, on September 13, 2022, Wayne Circuit Court Judge Brian R. Sullivan entered an order transferring the case from Chief Judge Kenny to Wayne Circuit Court Judge Qiana D. Lillard, citing Judge Biernat's disqualification order as the reason for the reassignment.[3]
Davis filed an amended complaint on September 22, 2022, adding the Wayne County Board of Canvassers as a defendant, though it does not appear that the newly added defendant was ever served the complaint or otherwise participated in this case. Davis also added allegations that the WCEC met on September 15, 2022, to authorize printing of the general election ballots. Davis claimed that he submitted legal challenges to the WCEC regarding the improper certification of Fresard, Ramsey, Crespo, and a fourth candidate, as well as a challenge to the way Hathaway's name would appear on the ballot. Despite these challenges, the WCEC voted to accept the list of certified candidates, including the five challenged candidates, and to print the ballots for the general election. Because the ballots were printed and ballot dissemination had already begun, Davis added requests for relief seeking a judgment declaring that the WCEC had a legal duty to inform voters that any votes cast for Fresard, Ramsey, or Crespo would not be counted or certified.
Davis also sought a writ of mandamus compelling the WCEC to correct the ballot errors by removing Fresard, Ramsey, and Crespo from the ballot and inform the voters that no votes cast for those candidates would be counted, tallied, or certified. With respect to Hathaway and another nonparty candidate, Davis sought a writ of mandamus compelling the WCEC to correct the ballot errors by immediately reprinting the ballots to accurately reflect the candidates' legal names and not print, circulate, or distribute ballots that did not reflect their legal names. According to Davis, Hathaway had to be identified by his full legal name, Nicholas John Bobak Hathaway, and could not appear on the ballot as "Nicholas John Hathaway."
On September 22, 2022, Davis moved to disqualify Judge Lillard. Judge Lillard denied the motion on October 4, 2022. Pursuant to Davis's request, Judge Lillard immediately referred the disqualification motion to the SCAO for de novo review by another judge of the SCAO's choosing. But Davis withdrew his request on October 6, 2022, stating he believed "that based upon the representations Judge Lillard made on the record during the October 4, 2022 hearing, Judge Lillard can be fair and impartial in adjudicating the merits of this case." Accordingly, Judge Lillard presided over the balance of the proceedings.
Thereafter, five pertinent motions were presented to the court: (1) Hathaway's motion to intervene; (2) Fresard and Ramsey's motion for summary disposition; (3) Crespo's motion for summary disposition; (4) Davis's emergency ex parte motion for a temporary restraining order or preliminary injunction and show-cause order; and (5) Davis's emergency motion for declaratory and mandamus relief. Judge Lillard granted Hathaway's motion to intervene and, in a subsequent opinion, held that (1) the WCEC need not "correct" the way Hathaway's name appeared on the ballot, (2) there was no defect in Crespo's AOI, and (3) Davis's claims relating to Fresard and Ramsey were precluded by laches. Judge Lillard denied Davis's motion for declaratory and mandamus relief, dismissed his motion for injunctive relief, and granted summary disposition in favor of Crespo, Fresard, Ramsey, and Hathaway. This appeal followed.
Needless to say, the November 8, 2022 election has already taken place. Even so, Davis preemptively argues that this Court should not decline review on mootness grounds.[4] We agree.
"[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) (cleaned up). 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." TM v MZ, 501 Mich. 312, 317; 916 N.W.2d 473 (2018) (cleaned up). Although this Court will not generally address such issues, Can IV Packard Square, 328 Mich.App. at 661, "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). This exception is commonly applied in cases involving election-related issues because "the strict time constraints of the election process necessitate that, in all likelihood, such challenges often will not be completed...
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