O'Halloran v. Sec'y of State

Decision Date03 November 2022
Docket NumberSC: 164955,COA: 363503
Citation981 N.W.2d 149 (Mem)
Parties Philip M. O'HALLORAN, M.D., Braden Giacobazzi, Robert Cushman, Penny Crider, and Kenneth Crider, Plaintiffs-Appellees, v. SECRETARY OF STATE and Director of the Bureau of Elections, Defendants-Appellants.
CourtMichigan Supreme Court
Order

On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal prior to decision by the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, the request made in the bypass application to stay the October 20, 2022 opinion and order of the Court of Claims is considered, and it is GRANTED. We ORDER that the October 20, 2022 opinion and order of the Court of Claims, and any decision of the Court of Appeals in this matter, is stayed pending the appeal period for the filing of an application for leave to appeal in this Court, and if an application for leave to appeal is filed from the Court of Appeals decision, until further order of this Court. This order disposes of the defendantsapplication for leave to appeal.

Bernstein, J. (concurring).

I agree with the majority's decision to grant a stay in these consolidated cases. I write to explain why.

Justice VIVIANO appears to believe that granting a stay in this case is "a convenient way to sidestep the merits of this appeal while still granting defendants the relief they seek." The assumption that we are being driven by a results-oriented agenda is a confusing one at best, given that there are clearly significant legal issues at play here that merit this Court's full attention, which is unfortunately not feasible in the time left before election day. Justice VIVIANO notes that granting a stay here is inappropriate, referring to MCR 7.209(A)(2), but that court rule only speaks in terms of motions to stay filed in the Court of Appeals, where defendants filed a motion to waive the requirements of MCR 7.209. Although they did not file such a motion in this Court, there is nothing in MCR 7.209 to suggest that this requirement extends to this Court.1 Justice VIVIANO even acknowledges that "our rules do not expressly address the standard applicable to these stays," but in the same breath chastises the majority for not identifying a standard that he admits does not exist and that his dissenting colleague similarly does not apply.

In the interests of full transparency, assuming that the standard Justice VIVIANO has articulated is applicable here, I will briefly explain why I believe that a stay is appropriate under these circumstances. Justice VIVIANO notes that there is a four-part test that asks:

"(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." [ Nken v Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009), quoting Hilton v Braunskill , 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987).]

First, I believe defendants have made a strong showing that the doctrine of laches could apply to bar the relief that plaintiffs seek. The doctrine is an equitable one, and it may remedy "the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert." Dep't of Pub. Health v Rivergate Manor , 452 Mich. 495, 507, 550 N.W.2d 515 (1996) (quotation marks and citation omitted). "It is applicable in cases in which there is an unexcused or unexplained delay in commencing an action and a corresponding change of material condition that results in prejudice to a party." Id ., citing Lothian v Detroit , 414 Mich. 160, 168, 324 N.W.2d 9 (1982) ; McGregor v Carney , 271 Mich. 278, 280, 260 N.W. 163 (1935) ; and 11A Callaghan's Michigan Pleading & Practice (2d ed.), § 92.12, p. 580. In other words, "[t]he doctrine of laches is concerned with unreasonable delay, and it generally acts to bar a claim entirely, in much the same way as a statute of limitation." Mich Ed Emp Mut Ins Co v Morris , 460 Mich. 180, 200, 596 N.W.2d 142 (1999).

The Court of Claims granted injunctive relief as to five of the plaintiffs’ challenges to provisions of the election guidance published by the Bureau of Elections.2 The majority of the challenged provisions at issue were first published in May 2022. Notably, the Court of Claims opinion pointed out that an earlier version of at least one of the challenged provisions was published in October 2020, and "there is nothing in the record to suggest that the manual was challenged in court on these grounds." In the consolidated cases before us, one set of plaintiffs first filed suit in the Court of Claims on September 28, 2022, while the other set of plaintiffs first filed suit in the same court on September 30, 2022. The Court of Claims did not enter its opinion and order until October 20, 2022.

It is clear that some delay took place in both cases, particularly with respect to the challenged provision that existed in a similar form as early as October 2020. The Court of Claims faults the Bureau of Elections for failing to "highlight or redline" the new provisions for the benefit of potential challengers, and it notes that one set of plaintiffs communicated its disagreements with these provisions in July 2022, concluding that "plaintiffs did not simply sit on their hands for four months, as defendants argue." But the doctrine of laches does not ask whether a plaintiff makes just any move in attempting to address the complained-of situation—it specifically asks whether there has been an unreasonable delay in commencing a legal action. See Pub. Health Dep't , 452 Mich. at 507, 550 N.W.2d 515.

I also believe that defendants have made a strong showing that this delay would result in prejudice. Defendants note that the guidance is binding on local clerks, and that training based on this guidance for both local clerks and election inspectors has already taken place across the state. It is impractical to think that new training could both be developed and take place the week before the election without a significant use of state resources, even if we assume this is a logistically achievable task within the time frame before us. Although both of my dissenting colleagues deny that any significant changes would be necessary at this point, it seems obvious that they would be—the August 2022 primary election was held with the challenged provisions in place, and a change would need to be made less than a week before the November 2022 general election. To say this would not be disruptive is to ignore reality and basic human behavior.

Accordingly, I believe that defendants have made a strong showing that they are likely to succeed on the merits of their laches defense.

Second, given that the doctrine of laches already incorporates a prejudice requirement, like Justice VIVIANO , I find that this factor follows the first.

The third and fourth factors concern whether there will be substantial injury to other interested parties and where the public interest lies. I begin by noting that defendants have submitted affidavits from current and former elections officials that explain why the challenged provisions are necessary to prevent the intimidation of both voters and election inspectors alike. I believe it more appropriate to defer both to the collective experience of these seasoned professionals and to the legal record that has been developed in this case, instead of inserting my own personal notions of what is efficient or not. Although Justice VIVIANO concludes that the public interest lies in striking the challenged provisions, it is especially noteworthy that these provisions applied to the August 2022 primary election, and yet there are no claims before us of any sort of havoc or catastrophe that resulted from the use of this guidance in that election.

I would thus find that defendants have met the standard articulated by Justice VIVIANO for a stay.

Moreover, it is important to bear in mind that the relief the Court of Claims granted in these cases was injunctive relief, which "is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at law, and there exists a real and imminent danger of irreparable injury." Pontiac Fire Fighters Union Local 376 v Pontiac , 482 Mich. 1, 9, 753 N.W.2d 595 (2008) (quotation marks and citations omitted; emphasis added). I find it hard to believe that plaintiffs could establish a real and imminent danger of irreparable injury, again in light of the unchallenged administration of the August 2022 primary election. One set of plaintiffs in these cases includes the Michigan Republican Party and the Republican National Committee. I find it puzzling how these plaintiffs could establish a real danger of irreparable injury, given that the challenged provisions apply equally to all would-be election challengers, be they Republican, Democratic, or otherwise.

Given the strong arguments that defendants have made in favor of the application of the doctrine of laches, and given the high standards applicable where plaintiffs request injunctive relief, I vote with the majority to grant a stay in this case. I continue to be confused by the insinuation that "the stakes of this case ... could not be higher." Of course I believe in the importance of elections in our representative democracy, a statement that I have repeated across a number of election cases over the eight years I have served on this Court. But it remains the case that the August 2022 primary election was conducted without any problems or objections. If August 2nd went smoothly, I have no reason to believe November 8th will be any different.

Welch, J. (concurring).

I agree with the Court's decision to stay the legal effect of the Court of Claims’ October 20, 2022 opinion and...

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