Taylor v. Currie

• Decision Date: 25 October 2007
• Docket Number: Docket No. 269684.,Docket No. 271559.
• Citation: 743 N.W.2d 571,277 Mich. App. 85
• Parties: Maureen D. TAYLOR, Plaintiff-Appellee, v. Jackie CURRIE and the Detroit Election Commission, Defendants-Appellants, and Marino Taylor, Defendant. Maureen D. Taylor, Plaintiff-Appellee, v. Jackie Currie, Detroit City Clerk, and the Detroit Election Commission, Defendants-Appellants, and Marino Taylor, Defendant.
• Court: Court of Appeal of Michigan — District of US

743 N.W.2d 571

277 Mich. App. 85

Maureen D. TAYLOR, Plaintiff-Appellee, v. Jackie CURRIE and the Detroit Election Commission, Defendants-Appellants, and Marino Taylor, Defendant.

Maureen D. Taylor, Plaintiff-Appellee, v. Jackie Currie, Detroit City Clerk, and the Detroit Election Commission, Defendants-Appellants, and Marino Taylor, Defendant.

Docket No. 269684.

Docket No. 271559.

Court of Appeals of Michigan.

Submitted September 11, 2007, at Detroit.

Decided October 25, 2007, at 9:00 a.m.

Released for Publication January 7, 2008.

Constitutional Litigation Associates, P.C. (by Hugh M. Davis), Detroit and Law Offices of Stephen F. Wasinger (by Stephen F. Wasinger), Royal Oak, for the plaintiff.

City of Detroit Law Department (by John E. Johnson, Corporation Counsel, and Linda D. Fegins, Senior Assistant Corporation Counsel), Detroit, for the defendants.

Edward M. Thomas, Wayne County Corporation Counsel, and Colleen S. Pacler, Assistant Corporation Counsel, Detroit, for amicus curiae the Wayne County Clerk.

Before: SMOLENSKI, P.J., and WHITBECK, C.J., and KIRSTEN FRANK KELLY, J.

KIRSTEN FRANK KELLY, J.

In these consolidated appeals arising from an action for declaratory judgment defendants Jackie Currie and the Detroit Election Commission (hereafter defendants) appeal as of right several trial court orders. In Docket Number 269684, defendants claim that the trial court (1) erred when it permanently enjoined defendants from mailing unsolicited applications for absent voter ballots to qualified voters, (2) improperly entered an order holding defendant Jackie Currie in criminal contempt of court, and (3) lacked the authority to appoint monitors and coreceivers over the November 2005 election proceedings. In Docket Number 271559, defendants contend that the trial court erred in its determination that plaintiff was entitled to attorney fees associated with Currie's contempt proceedings. We affirm the trial court's permanent injunction against the mass mailing of unsolicited applications for absent voter ballots. We also affirm the trial court's ruling that plaintiff was entitled to attorney fees, but we vacate the order awarding attorney fees and remand for recalculation of the award.

I. FACTS AND PROCEDURAL HISTORY

2005 was a regularly scheduled election year in the city of Detroit's four-year cycle. Currie, who was the Detroit City Clerk and a member of the Detroit Election Commission, was a candidate for reelection. In prior election years, Currie authorized a mass mailing of absent voter ballot applications to potential absentee voters. In addition to the application, Currie enclosed a cover letter, signed by her and referring to herself as "the City Clerk and Chairperson of the Election Commission."

Plaintiff Maureen D. Taylor, a candidate for the Detroit City Council, appeared on the ballot for the August 2, 2005, primary, but she did not obtain enough votes to qualify for the November 2005 general election. In August 2005, plaintiff sued Currie, the commission, and defendant Marino Taylor (Marino), alleging multiple election improprieties.¹ Plaintiff alleged that Marino was a false candidate wrongfully certified by the commission to confuse voters and dilute plaintiff's votes. Plaintiff also alleged that Currie and the commission improperly mailed approximately 150,000 applications for absent voter ballots. Plaintiff further claimed that the elections staff failed to properly process the submitted absent voter ballots. Plaintiff asserted that these irregularities prevented her from qualifying to appear on the general election ballot.

On August 26, 2005, plaintiff filed a motion for a preliminary injunction or temporary restraining order to prevent defendants from mailing approximately 150,000 applications for absent voter ballots, which were scheduled to be mailed on Monday, August 29, 2005. The trial court determined that Currie, as the Detroit City Clerk, was statutorily precluded from sending out unsolicited absent voter ballot applications. Accordingly, the trial court granted plaintiff's motion and enjoined "the City of Detroit from using a bulk mailing and from allowing the unsolicited mailing of absentee voter ballot applications in the general election." The court gave the parties until 2:00 p.m. on Tuesday, September 6, 2005, to submit an order.

After learning that the mailing had nonetheless occurred, plaintiff moved for an order to show cause why defendants should not be held in contempt for violating the court's injunction. Plaintiff also asked the trial court to appoint a receiver over the commission and order various other forms of relief. In response to plaintiff's motion, defendants argued that the court lacked authority to appoint a receiver over the office of City Clerk and that plaintiff was not entitled to the requested alternative forms of relief. Defendants argued that Michigan law provides sufficient safeguards and remedies to redress the allegations. Defendants also argued that, because the trial court never entered a written injunction prohibiting the mailing, there was no order to enforce through contempt proceedings.²

On September 28, 2005, the court granted plaintiff's request for a show cause hearing and secured Currie's presence for a contempt proceeding. After taking evidence and testimony, the trial court found that Currie had acted in contempt of the trial court's injunction against the mailing. On the following day, the trial court conducted a hearing to determine a remedy for Currie's contempt. The trial court ultimately fined Currie $250,³ ordered a proposed plan for oversight of the November election by the Secretary of State and the Wayne County Clerk, and ordered the appointment of two monitors to conduct an investigation into the circumstances surrounding the mailing and review the handling of the absent voter ballots from the August primary.

Defendants applied for leave to appeal this order on October 24, 2005. This Court granted defendants' motion for immediate consideration and ordered:

As to the imposition of a $250 fine in the October 11, 2005, order of criminal contempt, the Court orders that the application for leave to appeal is DENIED for lack of merit in the grounds presented.

Pursuant to MCR 7.205(D)(2), in lieu of granting leave to appeal, the Court VACATES the remainder of the October 11, 2005 order because the contempt statute, MCL 600.1715, contains no authority for the additional penalties imposed, and the plaintiff has not provided any additional law allowing such penalties for criminal contempt. . . . Thus, to the extent that the penalties, aside from the fine, are predicated on the contempt statute, MCL 600.1715, they are null and void. The case is REMANDED to the circuit court for further proceedings consistent with this order. [Taylor v. Currie, unpublished order of the Court of Appeals, entered October 28, 2005 (Docket No. 265982).]

In response to this order, plaintiff asked the trial court to enter a new temporary restraining order compelling defendants to comply with the plan for supervision of the election process described in the order of October 11, 2005. On October 28, 2005, the trial court entered a new temporary restraining order. The order enjoined defendants from "using clerks agents or assistants, including Ambassadors or Building Managers, to contact voters or to provide voter assistance unless first contacted by an individual voter." The order also barred the practice of using building managers or third parties as clerk assistants for "the purpose of the delivery or receipt of absentee ballot applications or absentee ballots." Additionally, the order imposed several record-keeping requirements concerning persons who assist voters in voting by absent voter ballot.

On November 3, 2005, the trial court issued a preliminary injunction incorporating the provisions of the temporary restraining order of October 28, 2005, and delineating the record-keeping requirements for persons assisting voters with absent voter ballots. The order also appointed the previously selected monitors to investigate the circumstances surrounding the mass mailing, investigate the handling of absent voter ballots from the primary election, and oversee compliance with the injunction.

On the following day, the trial court held an unscheduled hearing concerning "allegations of violations of [the] preliminary injunction that was issued yesterday." After hearing testimony by two witnesses concerning alleged election improprieties, the trial court concluded that there was a violation of the temporary restraining order of October 28, 2005, and the preliminary injunction entered on November 3, 2005. The trial court indicated that the violation required remedial measures and agreed that the ambassador program should be suspended. In addition, the court indicated that it would appoint coreceivers to supervise the absentee ballot portion of the general election. On November 7, 2005, the trial court entered an order officially amending the preliminary injunction to appoint coreceivers to oversee the absent voter ballot collection and counting process during the November 8, 2005, general election.

On January 13, 2006, plaintiff moved for a final order adjudicating the rights of the parties and imposing a permanent injunction against the mailing of unsolicited applications for absent voter ballots. Plaintiff also requested an award of attorney fees incurred as a result of defendants' contemptuous behavior. Because Currie was not reelected as city clerk, plaintiff dropped all further requests for relief. On January 27, 2006, defendants responded by moving for summary disposition. Defendants argued that because the election was now final and the composition of the commission had changed, plaintiff's requests for relief were mooted. Defendants also argued that there was no authority supporting an award of attorney fees to plaintiff.

On February 17, 2006,...