William Bailey v. County of AntrimWilliam Bailey v. County of Antrim
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
Before: CAMERON, P.J., and CAVANAGH and GADOLA, JJ.
PER CURIAM.
Plaintiff William Bailey appeals the trial court‘s order granting defendant Antrim County and intervening defendant Secretary of State‘s joint motion for summary disposition. We affirm.
I. BACKGROUND
Plaintiff is a resident of Central Lake, Michigan, which is located in Antrim County. On November 3, 2020, plaintiff voted in person in the 2020 election at a polling location in Central Lake Township. On November 6, 2020, the Antrim County Board of Canvassers certified the Antrim County general election results. On November 23, 2020, the State Board of Canvassers certified the election results for the State of Michigan.
On November 23, 2020, plaintiff filed suit against Antrim County. Plaintiff alleged multiple constitutional claims, including a right to conduct an audit under
- issue an order . . . allowing Plaintiff to take a forensic image of the 22 precinct tabulators, thumb drives, related software, the Clerk‘s “master tabulator,”
and conduct an investigation of those images. - issue an order allowing Plaintiff to conduct an independent and non-partisan audit to determine the accuracy and integrity of the November 3, 2020 election.
Plaintiff also requested that the trial court issue a protective order and preliminary injunction to “preserve and protect all evidence relevant to th[e] case,” including “all ‘documents’ and ‘computer records’ used to tabulate votes in Antrim County.” Plaintiff also requested that he be permitted to “conduct immediate discovery through a full investigation of the 22 precinct Dominion tabulators” and that he be “permitted to take a forensic image of the 22 precinct tabulators and conduct an investigation of those images, thumb drives, related software, and the Clerk‘s ‘master tabulator.‘” Plaintiff also requested that the trial court order Antrim County to not “turn on the Dominion voting machines” or “connect any of the Dominion voting machines . . . to the internet.”
Antrim County did “not object to an order requiring it to (a) preserve and protect all records in its possession used to tabulate votes in Antrim County; and (b) not turn on or connect the one (1) Dominion Voting machine (tabulator) in its possession to the internet.” According to Antrim County, it was not in possession of the remaining 21 precinct tabulators because they were controlled and owned by “the individual townships.” Antrim County argued that plaintiff had failed to provide “any support for his argument that in order to conduct an audit of the November 3, 2020 elections, he must be permitted to take forensic image[s] of the precinct tabulators, thumb drives, related software, and the ‘master tabulator.‘” Antrim County indicated that plaintiff could request “a manual recount of the paper ballots in Antrim County” and that he would not need “the requested forensic imaging” to do so. The trial court granted plaintiff‘s motion and held, in relevant part:
IT IS ORDERED that Antrim County maintain, preserve and protect all records in its possession used to tabulate votes in Antrim County, to not turn on the Dominion tabulator in its possession and to not connect the Dominion tabulator in its possession to the internet.
On December 6, 2020, plaintiff‘s “forensic team collected forensic images of certain equipment in Antrim County‘s office, including CF cards, thumb drives, and [a] master tabulator.”
On December 17, 2020, a hand recount of the results of the presidential election in Antrim County was conducted. The Michigan Bureau of Elections also conducted statewide audits to confirm the overall accuracy of the November 2020 general election.
The Secretary of State was permitted to intervene over the objection of plaintiff. The parties thereafter engaged in discovery and motion practice. After the close of discovery, defendants jointly moved for summary disposition under
After hearing oral argument, the trial court concluded that plaintiff‘s claims were moot because plaintiff had already been granted the relief that he sought in the complaint. The trial court further concluded that “[t]here is no right, either in
II. JURISDICTIONAL ISSUE
At the outset, we must address a jurisdictional issue. Antrim County argues that this Court lacks jurisdiction because the trial court‘s May 2021 order was not a final order. We disagree.
III. MOOTNESS
Plaintiff argues that the trial court erred by concluding that his claims were moot. We agree.
“Whether an issue is moot is a question of law that this Court reviews de novo.” In re Tchakarova, 328 Mich App 172, 178; 936 NW2d 863 (2019). “Michigan Courts exist to decide actual cases and controversies. . . . A matter is moot if [a] Court‘s ruling cannot for any reason have a practical legal effect on the existing controversy.” Id. (first alteration in original; quotation marks and citations omitted).
In this case, plaintiff requested that the trial court
- issue an order . . . allowing Plaintiff to take a forensic image of the 22 precinct tabulators, thumb drives, related software, the Clerk‘s “master tabulator,” and conduct an investigation of those images.
- issue an order allowing Plaintiff to conduct an independent and non-partisan audit to determine the accuracy and integrity of the November 3, 2020 election.
While the trial court granted plaintiff some of this relief, it is undisputed that plaintiff did not receive all the relief requested in the complaint. Indeed, plaintiff argued that he was personally entitled to perform “an independent and non-partisan audit to determine the accuracy and integrity of the November 3, 2020 election.” While plaintiff is not entitled to this relief for the reasons discussed later in this opinion, the fact that plaintiff did not have viable claims does not render them moot. Indeed, a ruling that plaintiff was not permitted under the law to conduct his own independent audit would have had a practical legal effect. Consequently, the trial court erred by determining that plaintiff‘s claims were moot.1 Nonetheless, we will not reverse a trial court‘s decision when it
IV. SUMMARY DISPOSITION UNDER MCR 2.116(C)(8)
A. STANDARDS OF REVIEW AND GENERAL PRINCIPLES OF LAW
“This Court . . . reviews de novo questions of constitutional law.” Promote the Vote v Secretary of State, 333 Mich App 93, 117; 958 NW2d 861 (2020). In interpreting constitutional provisions, the primary duty of the judiciary “is to ascertain the purpose and intent as expressed in the constitutional . . . provision in question.” Adair v State, 486 Mich 468, 477; 785 NW2d 119 (2010) (quotation marks and citation omitted). In doing so, “we are mindful that the interpretation given [to] the provision should be the sense most obvious to the common understanding and one that reasonable minds, the great mass of the people themselves, would give it.” Id. (quotation marks and citation omitted). “When the language of a constitutional provision is unambiguous, resort to extrinsic evidence is prohibited. . . .” Nat‘l Pride at Work, Inc v Governor, 481 Mich 56, 80; 748 NW2d 524 (2008).
“We . . . review de novo a trial court‘s interpretation and application of a statute.” City of Grand Rapids v Brookstone Capital, LLC, 334 Mich App 452, 457; 965 NW2d 232 (2020). “The primary goal of statutory interpretation is to give effect to the intent of the Legislature. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted.” Mich Head & Spine Institute, PC v Mich Assigned Claims Plan, 331 Mich App 262, 272; 951 NW2d 731 (2019) (quotation marks and citations omitted). “The use of the word ‘shall’ denotes mandatory action.” Wolfenbarger v Wright, 336 Mich App 1, 31; 969 NW2d 518 (2021).
We also review de novo “a trial court‘s decision on a motion for summary disposition.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019).
A motion under
MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the factual allegations in the complaint. When considering such a motion, a trial court must accept all factual allegations as true, deciding the motion on the pleadings alone. A motion underMCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual development could possibly justify recovery. [Id. at 159-160 (citations omitted).]
B. ANALYSIS
1. CONSTITUTIONAL CLAIMS UNDER CONST 1963, ART 2, § 4
All rights set forth in this subsection shall be self-executing. This subsection shall be liberally construed in favor of voters’ rights in order to effectuate its purposes. Nothing contained in this subjection shall prevent the legislature from expanding voters’ rights beyond what is provided herein.
Plaintiff argues that § 4(1)(h) permits him to have “[a] full [and independent] forensic audit. . . .” While § 4(1)(h) is self-executing and is to be liberally construed in favor of voters’ rights, the provision is not unlimited. Indeed, § 4(1)(h) provides that an audit is to be performed “in . . . a manner as prescribed by law. . . .” It does not permit an audit to be performed in the manner dictated by an individual voter, and it clearly provides that the Legislature may expand the rights provided in § 4(1)(h). But the Legislature did not do so.
(1) In order to ensure compliance with the provisions of this act, after each election the secretary of state may audit election precincts.
(2) The secretary of state shall prescribe the procedures for election audits that include reviewing the documents, ballots, and procedures used during an election as required in section 4 of article II of the state constitution of 1963. The secretary of state and county clerks shall conduct election audits, including statewide election audits, as set forth in the prescribed procedures. The secretary of state shall train and certify county clerks and their staffs for the purpose of conducting election audits of precincts randomly selected by the secretary of state in their counties. An election audit must include an audit of the results of at least 1 race in each precinct selected for an audit. A statewide election audit must include an audit of the results of at least 1 statewide race or statewide ballot question in a precinct selected for an audit. An audit conducted under this section is not a recount and does not change any certified election results. The secretary of state shall supervise each county clerk in the performance of election audits conducted under this section.
(3) Each county clerk who conducts an election audit under this section shall provide the results of the election audit to the secretary of state within 20 days after the election audit.
Thus, the Legislature required the Secretary of State to “prescribe the procedures for election audits” and required the Secretary of State and county clerks to conduct the election audits. See
We note that, on appeal, plaintiff challenges the constitutionality of
Plaintiff‘s claim under
Except as otherwise provided in this constitution or in the constitution or laws of the United States the legislature shall enact laws to regulate the time, place and manner of all nominations and elections, to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting.
In plaintiff‘s complaint, he alleged that § 4(2) provided him with the right to “immediately take a forensic image of the 22 precinct tabulators, thumb drives, related software, the Clerk‘s ‘master tabulator,’ and to conduct an investigation of these images. . . .” Plaintiff alleged that this relief was proper in order to “ensure the accuracy and integrity of the election.” While § 4(2) is certainly aimed at preserving the “purity of elections,” it does not provide plaintiff with a cause of action. Rather, it serves as a directive to the Legislature to create laws to preserve “the purity of elections. . . .” See Taylor v Currie, 277 Mich App 85, 96; 743 NW2d 571 (2007) (“The Michigan3
Supreme Court has interpreted ‘the purity of elections’ clause to embody two concepts: first, that the constitutional authority to enact laws to preserve the purity of elections resides in the Legislature; and second, that any law enacted by the Legislature which adversely affects the purity of elections is constitutionally infirm.“) (quotation marks and citations omitted). Because plaintiff‘s complaint does not allege that the Legislature enacted laws that adversely affect the purity of elections and because
2. QUO WARRANTO
Plaintiff next argues that the trial court erred by dismissing his quo warranto claims.4 We disagree. The Court in Hanlin v Saugatuck Twp, 299 Mich App 233, 240-241; 829 NW2d 335 (2013) explained,
Quo warranto is a ” ‘common-law writ used to inquire into the authority by which a public office is held or a franchise is claimed.’ ” Davis v Chatman, 292 Mich App 603, 612; 808 NW2d 555 (2011), quoting Black‘s Law Dictionary (9th ed). . . . Generally such actions are brought pursuant to
MCL 600.4505 —which echoes the procedure ofMCR 3.306(B)(2) —and are pursued against a person in public office by one who seeks to challenge that person‘s right to holdoffice, but no assertions are made of fraud or error. [Barrow v Detroit Mayor, 290 Mich App 530, 541; 802 NW2d 658 (2010).] MCL 600.4545(1) , on the other hand, provides for an action in the nature of quo warranto “whenever it appears that material fraud or error has been committed at any election in such county at which there has been submitted any constitutional amendment, question, or proposition to the electors of the state or any county, township, or municipality thereof.” This type of action is brought to challenge the validity of the election itself. Barrow, 290 Mich App at 543. Thus, to pursue an action for quo warranto to challenge the validity of the election, [a] plaintiff[ ] must establish that a material fraud or error was committed at the election.
Turning to the allegations in plaintiff‘s complaint, plaintiff alleged a violation of
of action.“). Thus, the trial court properly dismissed plaintiff‘s quo warranto claim brought under
With respect to plaintiff‘s quo warranto claim that was brought under
The phrase “material fraud or error” in
MCL 600.4545(1) “means fraud or error that ‘might have affected the outcome of the election.’ ” Barrow, 290 Mich App at 542, quoting St Joseph Twp v City of St Joseph, 373 Mich 1, 6; 127 NW2d 858 (1964). While a “but for” showing is not necessary, the plaintiff‘s “proofs must be sufficient to support a fact finding that enough votes were tainted by the alleged fraud to affect the outcome.” Barrow, 290 Mich App at 542. See also Rosenbrock v Sch Dist No. 3, Fractional, 344 Mich 335, 339; 74 NW2d 32 (1955) (“It has been repeatedly held by this Court that irregularities in the conducting of an election will not invalidate the action taken unless it appears that the result was, or may have been, affected thereby.“). [Hanlin, 299 Mich App at 243.]
In this case, plaintiff‘s complaint repeatedly cites to the votes that were tallied in Antrim County in relation to the presidential election. As already stated,
To the extent that plaintiff is challenging the results of the state, county, or township election, we agree with defendants that summary disposition was proper on those claims as well because plaintiff failed to sufficiently plead the claim.
MCR 3.301(A)(1)(d) and(2) “govern the procedure for seeking the writs or relief formerly obtained by the writs,” including a writ of quo warranto. In that regard,MCR 3.301(A)(3) provides that “[t]he general rules of procedure apply except as otherwise provided in this subchapter.”MCR 2.111(A)(1) requires that allegations made in a pleading be clear, concise, and direct.MCR 2.112(B)(1) requires that fraud and mistake be pleaded with particularity. Other matters, including malice, intent, and knowledge, can be pleaded generally underMCR 2.112(B)(2) .MCR 3.301 does not otherwise contain pleading requirements for a petition for leave to proceed by quo warranto. Nonetheless, our Supreme Court has held that an application for leave to file an action for quo warranto “should be so clear and positive in its statement of facts as to make out a clear case of right; and should be so framed as to sustain a charge of perjury if any material allegation is
false.” Boucha v Alger Circuit Judge, 159 Mich 610, 611; 124 NW 532 (1910), citing Cain v Brown, 111 Mich 657, 660; 70 NW 337 (1897); see also Vrooman v Michie, 69 Mich 42, 46; 36 NW 749 (1888). [Barrow, 290 Mich App at 543-544.]
In this case, plaintiff alleged in his complaint, in relevant part:
29. There are many other questions that remain unanswered, including but not limited to (1) whether the Dominion tabulators in Antrim County were tampered with, (2) whether they have the capacity to connect to the internet, (3) whether they had any open VPN ports during the election, (4) if connected to the internet, was the connection secure, (5) whether the machines were accessed via the use of removable media to transfer voting information, (6) whether the ballot images were preserved in every precinct per federal and state election law, (7) whether the audit logs were preserved and synchronized, (8) whether the audit logs were altered or edited by any person operating the system, (9) whether Dominion pre-loaded any algorithms and configurations on the machines that alter the results, and if so, what algorithms and configurations were pre-loaded, and (10) whether the “purge option” that is built into Dominion utilized to cancel, switch, or manipulate votes, in the same way it has historically been utilized in Venezuela and Cuba.
30. Plaintiff and others seek to learn the answers to these questions, including why Defendant [Antrim County] initially registered “phantom voters” for Presidential Candidate Joe Biden and why the Dominion machines altered and switched votes for him.
* * *
49. Based upon the allegations contained herein, material fraud or error occurred in this election so that the outcome of the election was affected.
50. Based upon the above allegations of fraud, statutory violations, and other
misconduct, as stated herein, it is necessary to permit Plaintiff to immediately take a forensic image of the 22 precinct tabulators[,] thumb drives, related software, and the Clerk‘s “master tabulator,” and conduct an investigation of those images, after which a manual recount of the election results and an independent audit of the November 3, 2020 election may be ordered to ensure the accuracy and integrity of the election. [Emphasis added.]
We conclude that plaintiff failed to allege any “clear and positive” factual allegations that “make out a clear case of right. . . .” See Barrow, 290 Mich App at 543-544 (quotation marks and citations omitted). Instead, plaintiff merely raised a series of questions about the election without making any specific factual allegations as required. Because plaintiff “failed to disclose sufficient facts and grounds and sufficient apparent merit to justify further inquiry by quo warranto proceedings,” the trial court properly granted summary disposition. See id. at 550.
3. EQUAL PROTECTION CLAIM
Plaintiff next argues that the trial court erred by granting summary disposition on his equal protection claim. We disagree.
“The equal protection clauses of the Michigan and United States constitutions provide that no person shall be denied the equal protection of the law.” Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 318; 783 NW2d 695 (2010). The purpose of the equal protection guarantee is to secure every person “against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Village of Willowbrook v Olech, 528 US 562, 564; 120 S Ct 1073; 145 L Ed 2d 1060 (2000).
Plaintiff alleged in the complaint that he was deprived of his constitutional right to vote in the November 2020 election due to Antrim County‘s “rampant and systematic fraud,” which resulted in his vote not being “valued.” However, plaintiff failed to plead allegations to support that he was intentionally and arbitrarily discriminated against as a result of Antrim County‘s “improper execution” of a statute through its “duly constituted agents,” id., or that Antrim County failed to implement the minimum procedures necessary to protect the fundamental right of each voter, Cf. Bush v Gore, 531 US 98, 109; 121 S Ct 525; 148 L Ed 2d 388 (2000). Rather, as already stated, plaintiff made generalized assertions to the trial court that election fraud occurred and that he should be provided with discovery in order to determine the extent of the fraud. Additionally, plaintiff did not allege that he was treated differently than similarly situated individuals, which is necessary to establish an equal protection claim. See Nordlinger v Hahn, 505 US 1, 10; 112 S Ct 2326; 120 L Ed 2d 1 (1992) (“The Equal Protection Clause . . . keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.“). Consequently, plaintiff‘s equal protection claim fails as a matter of law.6
V. THE TRIAL COURT‘S CONSIDERATION OF DOCUMENTARY EVIDENCE AND INADMISSIBLE HEARSAY
Plaintiff argues that the trial court improperly considered documentary evidence
VI. THE TRIAL COURT‘S ALLEGED PREMATURE GRANT OF SUMMARY DISPOSITION
Plaintiff next argues that summary disposition was premature because several depositions had not yet been conducted.8 While it is true that a trial court is not permitted to grant summary disposition under
VII. PLAINTIFF‘S MOTION TO AMEND THE COMPLAINT
Finally, plaintiff argues that the trial court improperly failed to consider his motion to amend the complaint. We conclude that it would have been improper for the trial court to grant leave to amend the complaint.
We conclude that prejudice would have resulted if the trial court had permitted
preliminary injunction. The Secretary of State was permitted to intervene over the objection of plaintiff, and the parties thereafter engaged in discovery and motion practice.
On April 9, 2021, defendants jointly moved for summary disposition. Plaintiff filed a response to this motion on May 3, 2021. On that same date, plaintiff moved the trial court for leave to file a first-amended complaint. The proposed first-amended complaint was 81 pages and lists the following defendants: (1) Antrim County, (2) Jocelyn Benson, in her individual capacity and her official capacity as Secretary of State, (3) Jonathan Brater, in his individual capacity and official capacity as Michigan‘s Director of Elections, (4) Sheryl Guy, in her individual capacity and official capacity as the Clerk of Antrim County, (5) Miller Consultations & Elections, Inc., d/b/a Election Source, and (6) Central Lake Township. The proposed first-amended complaint contains 13 counts, including a count that challenges the constitutionality of
Thus, plaintiff sought to add significant factual allegations and theories of liability against new parties. Not only did plaintiff seek to add new parties and new claims, plaintiff filed the motion to amend the complaint after the close of discovery and after defendants had moved for summary disposition. Also, a bench trial had been scheduled for June 2021, and the trial court had indicated that it would not grant adjournments. The record also supports that plaintiff was aware of the above-named potential defendants and the facts contained in the proposed amended complaint long before the May 2021 motion to amend was filed. Because the proposed defendants would be unable to have a fair trial, we conclude that prejudice would have resulted if plaintiff had been permitted to amend the complaint. See Weymers v Khera, 454 Mich 639, 659-660; 563 NW2d 647 (1997) (factors like whether the plaintiff is seeking “to add a new claim or a new theory of recovery on the basis of the same set of facts, after discovery is closed, just before trial,” support a finding of prejudice). Additionally, review of the proposed first-amended complaint supports that permitting amendment of some of the claims would have been futile. Consequently, even if the trial court had considered the motion, it would have been improper for the trial court to permit amendment of the complaint.
Affirmed.
/s/ Thomas C. Cameron
/s/ Mark J. Cavanagh
/s/ Michael F. Gadola