Gleason v. Kincaid

• Decision Date: 08 March 2018
• Docket Number: No. 340239,340239
• Citation: 917 N.W.2d 685,323 Mich.App. 308
• Parties: John GLEASON, Plaintiff, and Karen Weaver, Intervening Plaintiff, and Don Pfeiffer, Intervening Plaintiff-Appellant, v. William Scott KINCAID, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

323 Mich.App. 308

917 N.W.2d 685

John GLEASON, Plaintiff,andKaren Weaver, Intervening Plaintiff,andDon Pfeiffer, Intervening Plaintiff-Appellant,

v.William Scott KINCAID, Defendant-Appellee.

No. 340239

Court of Appeals of Michigan.

Submitted February 15, 2018, at Detroit.

Decided March 8, 2018, at 9:05 a.m.

Gentry Nalley, PLLC (by Kevin S. Gentry ) for Don Pfeiffer.

Valdemar L. Washington, PLLC (by Valdemar L. Washington and Zena R. Fares) for William S. Kincaid.

Before: Riordan, P.J., and Boonstra and Gadola, JJ.

Per Curiam.

Intervening plaintiff-appellant, Don Pfeiffer, appeals as of right the trial court’s order accepting the withdrawal of candidacy of defendant, William Scott Kincaid, from the election for 9th Ward City Councilperson for the City of Flint. Pfeiffer challenges the trial court’s August 29, 2017 opinion and order permitting defendant to withdraw from the city council race and instead participate as a candidate in the November 7, 2017 recall election for the office of Mayor of the City of Flint. We conclude that this matter is moot, but we also conclude that this issue is one of public significance that is likely to recur and to evade appellate review. Reaching the merits of this appeal, we reverse.

I. FACTS

This case arose from defendant’s attempt to simultaneously run for election to both the office of 9th Ward City Councilperson for the City of Flint and the office of Mayor of the City of Flint. The underlying facts are not disputed. Plaintiff John Gleason is the Genesee County Clerk. Intervening plaintiff Karen Weaver is the mayor of the city of Flint, who in late 2017 was facing a recall election. Pfeiffer, too, had declared his candidacy for mayor in the then upcoming November 7, 2017 election.

Defendant was, at that time, a councilperson on the Flint City Council. In April 2017, defendant filed his intent to run for reelection to his city council seat. After filing his intent to run, defendant had until April 28, 2017, to withdraw as a candidate for city council if he did not wish to run. Defendant did not, at that time, withdraw from the city council race. Defendant thereafter won the primary election for the city council seat on August 8, 2017. Meanwhile, on August 3, 2017, plaintiff certified a recall election for Mayor of the City of Flint. On August 11, 2017, defendant paid the filing fee and declared himself a candidate for mayor in the recall election. Both the city councilperson seat and the mayoral seat were to appear on the November 7, 2017 ballot.

On August 15, 2017, plaintiff, represented by the office of the Genesee County Prosecutor, sought a declaratory judgment from the trial court regarding whether defendant could run for both city council and mayor in the same election. The complaint noted that under MCL 168.558(5), a person who is listed as a candidate for two incompatible offices "shall select the 1 office to which his or her candidacy is restricted within 3 days after the last day for the filing of petitions or filing fees" and that "[f]ailure to make the selection disqualifies a candidate with respect to each office for which petitions or fees were so filed and the name of the candidate shall not be printed upon the ballot for those offices." Plaintiff sought guidance from the trial court regarding whether defendant was required to withdraw from one race or was disqualified with respect to both the mayoral and city council elections. Both Weaver and Pfeiffer intervened in the declaratory judgment action, arguing that the offices of mayor and city councilperson were incompatible and that because defendant had not timely withdrawn his candidacy as to either office, he was now disqualified as a candidate for both offices under MCL 168.558.

After a hearing, the trial court entered an opinion and order holding that defendant was allowed to run for either mayor or city council, but not both. The trial court observed that MCL 168.558(5)"penalizes any candidate who attempts to run for two incompatible offices by excluding the candidate from the elections of both offices," and it ruled that "the offices of mayor and city council are incompatible within the definition of MCL 15.181(b) because the two offices must necessarily function separately from one another." However, the trial court noted that "no statute addresses the unique timing problem in the present case," because "[t]he mayoral contest did not become available and did not exist until after [defendant] was irrevocably committed to the council race as a result of MCL 168.322a." Thus, at the time the recall election was certified, "the language of MCL 168.322a and MCL 168.558(5) irreversibly barred [defendant], an otherwise eligible candidate, from running for mayor because [defendant] had no mechanism under the law to permissibly withdraw from the city council race and enter the mayoral race." The trial court determined that because "of this timing oddity, [defendant] was denied his constitutional right to choose the public office for which he wished to run." It concluded that it had to "fashion an equitable remedy, pursuant to the Court’s equitable jurisdiction under the Michigan Constitution" because defendant could not "be denied his constitutional right to run for public office ...." Concluding that defendant could run for either office but not both, the trial court required defendant to withdraw from one of the races.

Defendant thereafter submitted to the trial court the withdrawal of his city council candidacy, and the trial court issued an order accepting defendant’s withdrawal from the city council race. The general election was held on November 7, 2017, in which defendant appeared as a candidate for mayor. Weaver prevailed in the mayoral recall with approximately 53% of the vote, defendant received approximately 32% of the vote, and Pfeiffer received approximately 6% of the vote.¹ Pfeiffer now appeals in this Court.²

II. DISCUSSION

A. MOOTNESS

Whether a case is moot is a threshold question that we address before reaching the substantive issues of a case. In re MCI Telecom. Complaint , 460 Mich. 396, 435 n. 13, 596 N.W.2d 164 (1999). An issue is moot when a subsequent event makes it impossible for this Court to grant relief. In re Detmer , 321 Mich.App. 49, 56, 910 N.W.2d 318 (2017). It is our duty to decide actual cases and controversies, that is, actual controversies arising between adverse litigants. People v. Richmond , 486 Mich. 29, 34, 782 N.W.2d 187 (2010). A case that does not rest upon existing facts or rights and presents nothing but abstract questions of law is moot. Because reviewing a moot question ordinarily would be a "purposeless proceeding," we generally dismiss a moot case without reaching the underlying merits. Id. at 35, 782 N.W.2d 187 (quotation marks and citation omitted). It is well recognized, however, that an exception exists when an issue is moot, but is one "of public significance and [is] likely to recur, yet may evade judicial review." In re Midland Publishing Co., Inc. , 420 Mich. 148, 152 n. 2, 362 N.W.2d 580 (1984). An otherwise moot issue may thus appropriately be addressed by a court when there is a reasonable expectation that the publicly significant alleged wrong will recur yet escape judicial review, in which case the issue, though moot, is nonetheless justiciable. Detmer , 321 Mich.App. at 56.

The issue in this case is whether defendant, a candidate for two incompatible public offices, having failed to remove his name from candidacy for either of the offices within the time established by statute, could nonetheless continue his candidacy for the office of his choosing despite an apparent statutory proscription to the contrary. That issue, for purposes of these litigants and this election, is now moot. The election of November 7, 2017, has occurred, and no remedy this Court could fashion in this case would affect that event. To the extent that this Court could direct that votes cast for defendant be excluded from the election results, it would not have any practical effect because Weaver would still prevail in the election. We must then ask whether the issue nonetheless (1) is of public significance, (2) is likely to recur, and (3) may evade judicial review, such that it should be resolved by this Court despite its being moot. See id . at 57.

We conclude that this issue is of public significance. The interpretation and application of Michigan’s election laws extend beyond these candidates and beyond the November 2017 Flint general election, affecting future candidates and the public. We also conclude that disputes involving this issue are likely to recur. Elections occur regularly and, to the dismay of elected officials, recall elections are an ever-present part of our political landscape. When a recall election occurs, there is no assurance that the timing of the recall election will not conflict with the other election activities of potential candidates. In fact, because the likely candidate in any recall election is some other elected official who is interested in seeking the challenged position, it is inevitable that recall elections will sometimes conflict with the timing of the election activities of potential candidates pursuing other offices. Moreover, the success of defendant³ in this case, left unaddressed, may actually encourage others to follow his example and run for two incompatible offices, then withdraw from whichever race is most advantageous to the candidate before the election.

Finally, we note that this issue is likely to evade judicial review. Although the parties to this appeal timely sought a declaratory judgment in the trial court and review in this Court, the strict time constraints of the election process necessitate that, in all likelihood, such challenges often will not be completed before a given election occurs, rendering the discussion, as in this case, moot before appellate review. Accordingly, we conclude that although this matter is moot, this case...