Gracey v. Grosse Pointe Farms Clerk

• Decision Date: 07 March 1990
• Docket Number: 121979,Docket Nos. 121453
• Citation: 452 N.W.2d 471,182 Mich.App. 193
• Parties: Paul C. GRACEY, Plaintiff-Counter Defendant-Appellant, v. GROSSE POINTE FARMS CLERK, Defendant, and Wayne County Board of Canvassers and State Board of Canvassers, Defendants-Appellees, and Eugene Casazza, Intervening Defendant Counter Plaintiff-Appellee. 182 Mich.App. 193, 452 N.W.2d 471
• Court: Court of Appeal of Michigan — District of US

Page 471

452 N.W.2d 471

Paul C. GRACEY, Plaintiff-Counter Defendant-Appellant, v. GROSSE POINTE FARMS CLERK, Defendant and Wayne County Board of Canvassers and State Board of Canvassers, Defendants-Appellees and Eugene Casazza, Intervening Defendant Counter Plaintiff-Appellee.

Docket Nos. 121453, 121979.

182 Mich.App. 193, 452 N.W.2d 471

Court of Appeals of Michigan.

Submitted Oct. 25, 1989.

Decided Oct. 25, 1989.

Opinion Released Nov. 14, 1989.

Released for Publication March 7, 1990.

[182 MICHAPP 195] Durant & Durant, P.C. by Lawrence A. Friedman, Detroit, for plaintiff-counter defendant-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gary P. Gordon and Todd B. Adams, Asst. Attys. Gen., for Bd. of State Canvassers.

Plunkett & Cooney, P.C. by John P. Jacobs, Detroit, for Eugene Casazza.

Dickinson, Wright, Moon, Van Dusen & Freeman by Timothy H. Howlett and Mark K. Riashi, Detroit, for City of Grosse Pointe Farms.

[182 MICHAPP 196] Before REILLY, P.J., and GRIBBS and SULLIVAN, JJ.

PER CURIAM.

Paul Gracey, plaintiff and counter-defendant, filed a motion for stay of an October 17, 1989, order of the Wayne County Circuit Court which certified the results of a court ordered recast or reballoting of absentee votes in the primary election for municipal judge of the City of Grosse Pointe Farms. In consequence of that order, intervening defendant and counter-plaintiff Eugene Casazza became the second nominee, along with the incumbent, Matthew Rumora, to be listed on the ballot in the general election. Having previously granted the stay, we reverse and order mandamus.

Constraints of time, which are characteristic of election cases, Ferency v. Secretary of State, 409 Mich. 569, 599-600, 297 N.W.2d 544 (1980), prompted this Court to take the unusual step of granting oral argument on the motion for stay. See MCR 7.211(D).

By the time of oral argument, it became apparent that there were jurisdictional problems within the context of the statutes and rules governing the Court of Appeals. Initially, Gracey had filed a claim of appeal, Docket No. 121453, from a circuit court order of October 9, 1989, denying plaintiff's request for mandamus against the Wayne County Board of Canvassers, declaring the original absentee ballots void, and ordering a recast of the absentee ballots by a defined procedure. ¹ With the filing of the claim of appeal, Gracey moved for a [182 MICHAPP 197] stay of the October 9, 1989, order and immediate consideration of that motion, MCR 7.211(C)(6). The stay was denied.

Following the recast of the original absentee votes and the judicial certification on October 17, which altered the initial order of finish and placed Gracey third instead of second, Gracey filed another motion for stay in Docket No. 121453, which generated the hearing before this Court. However, at oral argument this Court noted that while an appeal from a final order--and the order of October 9 had been certified as final pursuant to MCR 2.604--includes all prior interlocutory orders, Tomkiw v. Sauceda, 374 Mich. 381, 132 N.W.2d 125 (1965); Morris v. Morris, 5 Mich. 171 (1858), it does not bring before the reviewing court any subsequent orders. Therefore, at oral argument, with the consent of all parties, plaintiff Gracey was permitted to file a claim of appeal from the final order of October 17 in Docket No. 121979. These appeals have been consolidated by separate order.

This Court then entertained, with the consent of all parties, motions for peremptory reversal and motions for immediate consideration thereof in both appeals of right by Gracey, and motions to affirm in both cases by Casazza. MCR 7.211(C)(3), (4), and (6). Since by this point in the proceedings it was apparent that all parties desired a final decision from this Court, this Court was thereby enabled to honor the rights of the parties to oral argument in an appeal of right. MCR 7.214(A). The parties were allowed oral argument until all sides had been heard to exhaustion. MCR 7.214(B).

Given the necessity that ballots be printed in time for the November election, it is traditional in these election cases for the courts to rule peremptorily, Council About Parochiaid v. Secretary of State, 403 Mich. 396, 397, 270 N.W.2d 1 (1978), in [182 MICHAPP 198] some cases rendering a decision by order, with an opinion containing the court's rationale filed at a later date. American Independent Party v. Secretary of State, 397 Mich. 689, 692, 247 N.W.2d 17 (1976). While this Court normally would address a motion only by order, in cases such as the present one, where the issue presented is of some importance and the Court wishes to explain its action to the parties, the issue may be resolved by opinion instead of or in addition to an order. Kerby v. Judges' Retirement Bd., 166 Mich.App. 302, 303, 420 N.W.2d 195 (1988), and cases there cited.

The election results, as initially certified by the Board of State Canvassers, acting in default of all subordinate canvassing agencies, pursuant to Sec. 822(2) of the Elections Law, M.C.L. Sec. 168.1 et seq.; M.S.A. Sec. 6.1001 et seq., ² reflected the following vote totals:

The evidence presented to the trial court shows that Mrs. Irene Gracey, wife of the candidate, hand delivered a number of absentee ballots to the city clerk's office, although she was not a "member of the immediate family of the voter" within the degrees of consanguinity or legal relationship stated in step 5(c) of the instructions for absent voters set forth in Sec. 764a of the Elections Law. While Mrs. Gracey may be a registered elector, [182 MICHAPP 199] she failed to make the certification required by step 5(d).

There is, however, no allegation that Mrs. Gracey engaged in any fraud with respect to these absentee ballots; no claim is made, nor has any evidence been offered, that she opened any of the ballots, made any markings on the ballots, altered the ballots, substituted different ballots for those given to her for delivery, or influenced the voters in the voting of their ballots. The city clerk testified that there was no evidence that any of the ballots in question had been subjected to tampering.

The evidence also shows that Mrs. Gracey, at least in part, took her cue from the city clerk's office, which even gave her an absentee ballot previously received by the clerk, with instructions that she should take it to the voter to obtain a signature on the ballot envelope, and then return it to the clerk's office.

Mrs. Gracey's actions became known immediately after the election, in consequence of which the city clerk's office refused to canvass the ballots, and the Wayne County Board of Canvassers similarly failed to canvass the ballots within the time allowed by statute. In default of their actions, the Board of State Canvassers received the ballots, counted them, and certified the results in the numbers above indicated, pursuant to the duty and authority of the Board of State Canvassers as provided in Sec. 822(2). Casazza then petitioned for a recount.

This is actually the third case involving this particular election. Initially, the Wayne County Board of Canvassers filed a petition with the Wayne County Circuit Court, seeking extraordinary relief. There were no other parties, but all present parties, with the exception of the Board of State [182 MICHAPP 200] Canvassers, were notified of the action. The circuit court, however, dismissed the action.

After the petition for recount had been filed, the Wayne County Board of Canvassers commenced a second action, this one against the Board of State Canvassers, seeking a determination of their respective roles in the recount process. Because the Board of State Canvassers had conducted the original canvass pursuant to the default provisions of Sec. 822(2), the Board of State Canvassers contended that it had the sole authority regarding any recount, pursuant to Sec. 879(1)(a). All candidates and all present parties were notified of the action, although only the two boards of canvassers were parties. The circuit court ruled that the Wayne County Board of Canvassers should conduct the recount, under the direction and supervision, however, of the director of elections, as representative of the Board of State Canvassers. Thereafter, the Board of State Canvassers should review the certification of the county board pursuant to Sec. 890 and Sec. 892 of the Elections Law.

Because all present parties had notice and an opportunity to be heard in the prior proceeding, and no appeal was taken, we are of the opinion that rules of preclusion make the earlier circuit court decision binding for purposes of the consolidated appeal. Wilcox v. Sealey, 132 Mich.App. 38, 346 N.W.2d 889 (1984); Robinson v. Dep't of Transportation, 120 Mich.App. 656, 327 N.W.2d 317 (1981). We therefore express no opinion as to the propriety of the circuit court ruling, but simply accept it as the initial building block on which further judicial action in this case must be based.

Following the circuit court's second ruling, the Wayne county board of canvassers conducted the examination and recount in accordance with Sec. 872, and forwarded the requisite written report of its [182 MICHAPP 201] findings to the county prosecutor and to the circuit judges of the county. However, no further action was then taken by the county board of canvassers. It took the position that it should not certify the recount until the prosecutor completed his investigation and the circuit judges completed such proceedings as might be thereby engendered, at which time it could be determined which votes should properly be counted and which should not.

The inaction of the Wayne County Board of Canvassers stymied further administrative certification of the primary election results. Plaintiff then instituted the present action for mandamus, naming as defendants the Board of State Canvassers, the Wayne County Board of Canvassers, and the Clerk of...