Barrow v. Detroit Mayor

802 N.W.2d 658, 290 Mich. App. 530
CourtMichigan Court of Appeals
DecidedNovember 9, 2010
DocketDocket No. 298128
StatusPublished
Cited by10 cases

This text of 802 N.W.2d 658 (Barrow v. Detroit Mayor) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrow v. Detroit Mayor, 802 N.W.2d 658, 290 Mich. App. 530 (Mich. Ct. App. 2010).

Opinion

Per Curiam.

Appellant, Tommy Joe Barrow, appeals as of right an opinion and order denying his emergency application for leave to file a complaint for quo warranto. Appellant filed this action for quo warranto in order to challenge the outcome of the November 2009 election of appellee Dave Bing as mayor of the city of Detroit. Because the trial court did not err by denying appellant’s application for leave for the reason that appellant failed to allege specific facts warranting further inquiry by quo warranto, we affirm.

I

This action arises out of the November 3, 2009, general election in which both appellant and Dave Bing appeared on the ballot as candidates for mayor of the city of Detroit. On November 16, 2009, the board of city canvassers declared that appellant had received 50,785 votes and Bing received 70,166 votes in the mayoral election and certified Mayor Bing as the winner. On November 20, 2009, appellant filed a recount petition alleging “fraud, deliberate mistake and electronic manipulation” of the ballots cast in the election. At a meeting on November 23, 2009, the Wayne County Board of Canvassers approved appellant’s recount petition. Thereafter, the Wayne County Board of Canvassers informed appellant that the recount would commence on December 9, 2009.

Before the recount date, on November 24, 2009, appellant sent a letter to the Wayne County Clerk requesting that she secure the ballots pending the recount, alleging that the ballots were “under the sole control of the building Janitor.” On the same day, the Wayne County Board of Canvassers, through its attorney, sent appellant an e-mail informing him that Michigan election law contained procedures for ballot secu[533]*533rity pending a recount and that “[a]bsent a court order, the statutory procedures will be followed.” It is undisputed that appellant did not seek a court order.

The recount was held on December 9, 2009, as scheduled. Following the recount, the Wayne County Board of Canvassers met and addressed appellant’s various challenges at a series of meetings on December 11, 15,18, 22, and 23, 2009. On December 23, 2009, the Wayne County Board of Canvassers approved a motion to certify the election, despite appellant’s assertion “that there were 49,386 votes that were not recount-able.” The Wayne County Board of Canvassers’ certification of the results of the recount as 47,062 votes for appellant and 65,946 votes for Mayor Bing was filed on December 24, 2009.

On December 30, 2009, appellant wrote letters of complaint to the Wayne County Prosecutor, the Michigan Attorney General, and the Bureau of Elections of the Michigan Secretary of State, asking each to initiate an investigation. On January 5, 2010, appellant again wrote to the Attorney General, asking him to initiate quo warranto proceedings. On January 15, 2010, the prosecutor declined to proceed. On February 9, 2010, the Attorney General informed appellant by letter that he had routed appellant’s letter to the criminal division for review and that review of the appellant’s complaint materials was complete. In the letter, the Attorney General explained that there was a “lack of evidence of criminal intent to defraud,” contrary to appellant’s allegations, and declined to take further action at that time. On February 23, 2010, the Attorney General also declined to seek a writ of quo warranto. On February 23, 2010, the Secretary of State issued a letter informing appellant that she had conducted an inquiry into appellant’s complaint, that the investigation revealed [534]*534“no evidence to indicate or suggest that any type of fraudulent vote manipulation occurred during or after the administration of the election,” and that the investigation was concluded.

On April 2, 2010, appellant filed an “Emergency Application for Leave to File Quo Warranto Action” in the circuit court, alleging that various election law errors, mistakes, and violations were committed that undermined any confidence in the outcome of the election. The Wayne County appellees1 filed an answer on April 7, 2010, denying appellant’s allegations that Mayor Bing had usurped the office of mayor and was not entitled to that office on the basis of the election of November 3, 2009. On April 8, 2010, the Wayne County appellees filed a brief in support of their answer, arguing that appellant had failed to make out a prima facie case of fraud or error or show that he was entitled to the mayor’s position. They also argued that appellant’s application was time-barred or barred by laches.

Mayor Bing filed an answer to the application, denying appellant’s allegations on April 9, 2010. On May 3, 2010, Mayor Bing filed a brief in support, arguing that appellant had failed to show factual support for his allegations. The city of Detroit appellees2 filed an appearance on May 4, 2010, but did not file an answer or a brief in opposition to appellant’s application. On May 7, 2010, appellant filed a reply brief in support of his application, arguing that a “monumental number of irregularities which may have indeed derived from [535]*535fraud or gross errors” justified inquiry by quo warranto. Appellant also denied that his application was time-barred or barred by laches or would cause harm or undue expense to the public.

At a hearing on May 10, 2010, appellant argued that the trial court should grant his request for leave to proceed in quo warranto because of appellees’ failure to comply with mandatory provisions concerning ballot container seals and calibration of clocks in the voting machines, resulting in 59,135 ballots not being recounted, which were more than enough to change the outcome of the election. Appellant maintained that he was not asserting material fraud or error, which would have been subject to a 30-day limitations period.

The county appellees countered that because propositions B and S were on the same ballot as the mayor’s race, the statutory subsection of MCL 600.4545 dealing with material fraud or error applied and appellant’s application was time-barred. The county appellees argued that if the election were declared invalid, a new election would be required, including a new primary, at substantial public cost. The county appellees argued that appellant had failed to plead specific facts necessary for the court to conclude that fraud or irregularities existed and, instead, had simply promised to develop supporting evidence at a later date. Further, the county appellees argued that appellant’s allegations were unsupported because the Attorney General and the Secretary of State had both investigated the matter and neither had found evidence of fraud or vote manipulation.

Mayor Bing adopted the county appellees’ arguments, noting that appellant had stated in his reply brief that he observed numerous irregularities that “may have indeed derived from fraud or gross errors.” [536]*536Mayor Bing also observed that such speculation was insufficient to meet the required specificity standard. Mayor Bing then summarized the substantive allegations of appellant’s application and argued that appellant had failed to make allegations that were factually specific enough to justify further inquiry by quo warranto. Mayor Bing noted that approximately 80 out of 100 absentee precincts were counted before those ballots were deemed unrecountable and that the results of that recount (before it was halted) agreed with the original results.

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Bluebook (online)
802 N.W.2d 658, 290 Mich. App. 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrow-v-detroit-mayor-michctapp-2010.