Martin v. Secretary of State

• Decision Date: 21 August 2008
• Docket Number: Docket No. 286016.
• Citation: 280 Mich. App. 417,760 N.W.2d 726
• Parties: MARTIN v. SECRETARY OF STATE.
• Court: Court of Appeal of Michigan — District of US

760 N.W.2d 726

280 Mich. App. 417

MARTIN v. SECRETARY OF STATE.

Docket No. 286016.

Court of Appeals of Michigan.

Submitted July 29, 2008, at Lansing.

Decided August 21, 2008, at 9:20 a.m.

Dykema Gossett PLLC, Lansing (by Gary P. Gordon, W. Alan Wilk, and Jason T. Hanselman) for Christopher P. Martin and others.

Kienbaum Opperwall Hardy & Pelton, P.L.C., Birmingham (by Eric J. Pelton and Noel D. Massie), for William F. Myles and Ronald M. Bergeron.

Before: O'CONNELL, P.J., and OWENS and BORRELLO, JJ.

Opinion of the Court

BORRELLO, J.

Appellants, 23rd Circuit Court Judges William F. Myles and Ronald M. Bergeron, appeal the trial court's June 10, 2008, injunction, by which the trial court ordered the Secretary of State to accept additional nominating petition signatures on behalf of plaintiff Christopher P. Martin until 4:00 p.m. on June 12, 2008, and to place Martin on the ballot as a candidate for judge of the 23rd Circuit Court if he filed sufficient valid signatures by that deadline. We affirm.

I. FACTS AND PROCEDURAL HISTORY

The facts giving rise to this appeal are not in dispute. Martin sought to run for the office of judge of the 23rd Circuit Court. MCL 168.413 establishes the requirements for nominating petitions for candidates for circuit court judges:

To obtain the printing of the name of a person as a candidate for nomination for the office of judge of the circuit court upon the official nonpartisan primary ballots, there shall be filed with the secretary of state nominating petitions containing the signatures, addresses, and dates of signing of a number of qualified and registered electors residing in the judicial circuit as determined under section [MCL 168.544f].... The secretary of state shall receive the nominating petitioners up to 4 p.m. of the fourteenth Tuesday preceding the primary.

MCL 168.544f imposes a graduated scale for the number of signatures required on the nominating petitions that is based on the population of the district. Before April 1, 2003, the 23rd Judicial Circuit was made up of Iosco and Oscoda counties and included one judge. 2002 PA 92 amended MCL 600.524 by restructuring the 23rd Judicial Circuit to include Alcona, Arenac, Iosco, and Oscoda counties and add one judge. With the additional counties, the 23rd Judicial Circuit has an estimated population of 65,745. Under MCL 168.544f, the minimum number of signatures required on a nominating petition for an individual seeking to be a judicial candidate for the 23rd Judicial Circuit is 200, and the maximum number of signatures on the nominating petition is 400.

MCL 600.550(1) requires the State Court Administrator's Office (SCAO) to notify the Bureau of Elections "with respect to each new circuit judgeship authorized pursuant to this subsection." This notice requirement is triggered when the county board of commissioners of each affected county approves the creation of the judgeship by resolution and files a copy of the resolution with SCAO. MCL 600.550(1). However, MCL 600.550a(4) eliminated the requirement of approval by the county board of commissioners for certain judicial circuits that were restructured, including the 23rd Judicial Circuit, thus rendering virtually inoperable SCAO's notification obligation under MCL 600.550(1). The Bureau of Elections, which publishes signature requirements, was thus not notified of the change in the 23rd Judicial Circuit, and it provided erroneous information about the signature requirement for candidates seeking a judgeship in the 23rd Judicial Circuit, indicating that it was 100 to 200 signatures rather than the 200 to 400 signatures required by MCL 168.544f. The Secretary of State published this erroneous information, and it appeared on the Secretary of State's website.

According to affidavits submitted by Martin, he or individuals associated with his campaign made at least two calls to the Secretary of State in April 2008 to verify the number of signatures necessary to get his name on the ballot for the position of judge of the 23rd Judicial Circuit, and on both occasions the Secretary of State informed them that Martin needed to submit between 100 to 200 signatures and that submission of more than 200 signatures was a crime. In addition, a document entitled "Filing Requirements for Non-Incumbent Judicial Candidates" contained the same inaccurate information regarding the number of signatures required for the 23rd Judicial Circuit. In his affidavit, Christopher M. Thomas, Director of the Bureau of Elections, asserted that "[t]his publication has been posted on the Department of State's website and sent directly to candidates."¹ Relying on the Secretary of State's erroneous information regarding the number of signatures required, Martin filed 158 signatures with the Bureau of Elections on April 23, 2008. On May 1, 2008, after the April 29, 2008, deadline for gathering signatures and filing petitions had passed, Bergeron filed a challenge to Martin's eligibility to have his name placed on the ballot, arguing that Martin's petitions had an insufficient number of signatures and therefore failed to comply with MCL 168.544f. On May 5, 2008, Martin attempted to submit 208 additional signatures, but the Bureau of Elections refused to accept the signatures because the deadline had passed. On May 15, 2008, the Bureau of Elections sent Martin a letter informing him that he was ineligible to have his name listed as a candidate on the primary ballot because his petition contained less than 200 signatures and was therefore insufficient on its face.

Plaintiffs filed this action in the circuit court on May 30, 2008, against the Secretary of State, the Director of the Bureau of Elections, and the Board of State Canvassers, requesting a temporary restraining order, a preliminary injunction, and, after a final hearing, a permanent injunction enjoining the Secretary of State from excluding Martin from the ballot. Plaintiffs also sought orders of mandamus against the Board of State Canvassers and the Secretary of State and alleged violations of plaintiffs' First Amendment rights and the due process clauses of the United States and Michigan constitutions, negligent misrepresentation, promissory estoppel, and entrapment by estoppel. A hearing was set for June 10, 2008. On June 9, 2008, appellants filed an emergency motion to intervene, arguing that they had "an obvious interest in whether an otherwise uncontested election becomes a contested election, by virtue of the relief Martin requests in this lawsuit."

At the June 10, 2008, hearing, the trial court considered appellants' motion to intervene, as well as plaintiffs' complaint. Appellants asserted that they were entitled to intervene under MCR 2.209(A)(3) and contended that their interests would not necessarily be protected by the existing defendants, noting that the Secretary of State had indicated that it would not appeal a ruling that was contrary to appellants' interests. Defendants did not object to appellants' attempt to intervene in the matter. However, plaintiffs asserted that appellants' motion to intervene was untimely. Plaintiffs also argued that appellants had failed to demonstrate that they would not be adequately represented by the existing defendants, observing that the Attorney General had undertaken an aggressive defense of the matter and had filed an extensive brief. The trial court denied the motion to intervene, stating that appellants did not have standing to intervene because the litigation involved whether the court "should issue a writ of mandamus against the Secretary of State. It is not directed at [appellants.]" In an order dated June 25, 2008,² the trial court stated: "Incumbents' Motion to Intervene is denied because the Incumbents have not satisfied the requirements set forth in MCR 2.209(A)(3) for the reasons discussed on the record." The trial court further ordered the Secretary of State to extend the deadline for filing nominating petition signatures until 4:00 p.m. on June 12, 2008, and if sufficient signatures were filed, to place Martin's name on the ballot. Thereafter, Martin acquired sufficient signatures, and the Secretary of State placed his name on the November 4, 2008, ballot for the position of judge of the 23rd Circuit Court.

Appellants filed their claim of appeal on June 17, 2008, along with motions to expedite, to waive the requirements of MCR 7.209, for immediate consideration, for peremptory reversal, and for a stay. In a June 20, 2008, order, this Court granted immediate consideration and appellants' motion to waive the requirements of MCR 7.209, but denied peremptory reversal or a stay. In a June 27, 2008, order, this Court granted the motion to expedite and directed the parties to address whether appellants are aggrieved parties within the meaning of MCR 7.203(A). Shortly thereafter, appellants filed a bypass application for leave to appeal in the Michigan Supreme Court. In an order dated July 9, 2008, our Supreme Court denied the application, but ordered this Court to issue a decision in this case no later than August 21, 2008.

II. ANALYSIS

We first address whether appellants meet the definition of "aggrieved party" under MCR 7.203(A). The concepts of standing and whether an individual is an aggrieved party are closely related. See Federated Ins. Co. v. Oakland Co. Rd. Comm., 475 Mich. 286, 290-291, 715 N.W.2d 846 (2006). Whether a party has standing is a question of law, which we review de novo. Lee v. Macomb Co. Bd. of Comm'rs, 464 Mich. 726, 734, 629 N.W.2d 900 (2001). "In order to have appellate standing, the party filing an appeal must be `aggrieved.'" Manuel v. Gill, 481 Mich. 637, 643, 753 N.W.2d 48 (2008); see Federated Ins. Co., 475 Mich. at 290-291, 715 N.W.2d 846; MCR 7.203(A).

This court "has jurisdiction of an appeal of right filed by an aggrieved party from" a final order or judgment of the trial court. MCR 7.203(A) (emphasis added). In Federated Ins. Co., the...