Bormuth v. Johnson et al

Filing 34

ORDER Adopting Report and Recommendation and granting 10 remaining portion of Motion to Dismiss, which was not yet resolved by Magistrate. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PETER BORMUTH,
Case No. 16-13166
Plaintiff,
Honorable Nancy G. Edmunds
v.
RUTH JOHNSON and
BILL SCHUETTE,
Defendants.
/

OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
JUNE 16, 2017 REPORT AND RECOMMENDATION [30]
In a report and recommendation ("R & R") issued on June 16, 2017, Magistrate Judge
David R. Grand has recommended that the Court grant the remaining portion of
Defendants' September 30, 2016 motion to dismiss that was not addressed in the
Magistrate Judge's prior October 24, 2016 R & R.1 Plaintiff filed objections to the R & R on
June 30, 2017, and Defendants filed a response to these objections on July 17, 2017. For
the reasons that follow, the Court overrules Plaintiff's objections and adopts the R & R in
its entirety.
As the first of his three objections to the R & R, Plaintiff takes issue with the
Magistrate Judge's interpretation of Mich. Comp. Laws § 169.218 as mandating that

1

As noted in the more recent R & R, this Court adopted the earlier R & R in an opinion
and order dated January 10, 2017, with the result that all claims against Defendant Bill
Schuette have been dismissed with prejudice. See 1/10/2017 Op. at 8. The claims
addressed in the present R & R are asserted only against Defendant Ruth Johnson and
concern the requirement under Michigan law that certain campaign finance disclosure
documents must be filed electronically.

Plaintiff had to file his campaign finance statements electronically.

Upon carefully

examining the language of this statute, the Magistrate Judge concluded that it (i) "makes
electronic filing 'optional' for committees that received or spent between $1,000.00 and
$4,999.99 during the preceding calendar year," but (ii) "requires electronic filing for
committees that reach the $5,000.00 threshold" set forth in that enactment. R & R at 9-11
(emphasis in original). Because Plaintiff "d[id] not dispute that during the relevant period
his campaign eclipsed" this $5,000 threshold, the Magistrate Judge reasoned that "he was
required to use the Secretary of State's electronic filing . . . system as described in
subsection (1) of the statute." Id. at 11 (internal quotation marks and citation omitted).
In challenging this conclusion, Plaintiff contends that the Michigan statute at issue is
ambiguous as to whether electronic filing is optional or mandatory, and he urges the Court
to resolve this purported ambiguity in his favor. This claim of ambiguity, however, rests on
the false premise that the same $5,000 cutoff amount triggers both (i) the duty — or, in
Plaintiff's view, the option — to electronically file campaign finance documents, and (ii) the
threshold obligation to file campaign finance disclosure forms, whether electronically or
otherwise. See Plaintiff's Objections at 2. Yet, as Plaintiff himself recognizes in his
complaint, see R & R at 2-3 (citing Complaint at ¶¶ 13, 15), and as the pertinent Michigan
statutory provision confirms, see Mich. Comp. Laws § 169.233(6), the threshold amount
that triggers the underlying requirement to file campaign finance documents is $1,000, not
$5,000. Against this backdrop, the Magistrate Judge properly read Mich. Comp. Laws §
169.218(2) as providing an option for campaigns that meet the $1,000 filing threshold to
make these filings electronically, while subsections (3) and (4) of this statute mandate that

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campaigns above the $5,000 threshold must do so. See R & R at 10-11. The ambiguity
posited by Plaintiff simply does not exist.
Plaintiff next challenges the Magistrate Judge's conclusion that the Defendant
Secretary of State was not bound by the erroneous assurance of a Secretary of State
employee that Plaintiff could submit his campaign finance documents by fax. As explained
in the R & R, the parties failed to identify any case law or other authority that addressed this
issue, so the Magistrate Judge looked to case law holding that a taxpayer may not rely on
an IRS agent's misstatement of the law. See id. at 12 (citing cases). Although Plaintiff now
seeks to distinguish this case law on the ground that it addresses oral representations,
rather than the instructions he received by e-mail, see Plaintiff's Objections at 3, he notably
fails to point to any cases that actually rely on this proposed distinction between oral and
written misstatements and treat the latter as binding on the issuing government agency.
In any event, the Magistrate Judge correctly observed that the erroneous instructions
received by Plaintiff became a "non-issue" when the Secretary of State "promptly informed"
Plaintiff that his submission by fax did not comport with the law and "provided him with
information" that would enable him to comply with the applicable electronic filing
requirement. R & R at 12. In light of this prompt corrective communication, the Magistrate
Judge aptly concluded that Plaintiff "has only himself to blame for filing to properly file his
post-primary campaign statement when it was due, and thus is solely responsible for the
late fee incurred with respect to that filing obligation." Id. at 13.
As his third and final objection to the R & R, Plaintiff identifies a number of purported
flaws in the Magistrate Judge's analysis of his claim of a Fourteenth Amendment equal
protection violation. First, as to the Magistrate Judge's conclusion that Plaintiff failed to
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allege his membership in a suspect class, such that heightened scrutiny of the challenged
governmental action might be warranted, see id. at 15, Plaintiff concedes that the elderly
and individuals who lack technological skills do not qualify as suspect classes for purposes
of equal protection analysis, but he contends that he is a member of a suspect class
because he is Pagan and has only modest financial resources. Plaintiff's Objections at 6.
These assertions, however, are not backed by citation to any authority, and the Court
declines to search out authority on Plaintiff's behalf.2
Plaintiff nonetheless insists that heightened scrutiny is called for because his equal
protection claim implicates his "fundamental right" to pursue an occupation — in this case,
public office. Plaintiff's Objections at 6. Yet, while certain of the authorities cited by Plaintiff
in support of this proposition speak generally of a "right" to seek elected office, see id. at
6-7, the Magistrate Judge has ably explained that this right does not rise to the level of a
"fundamental interest" that would trigger anything beyond rational basis review of the
governmental action challenged by Plaintiff, see R & R at 15. Plaintiff does not even
address the authorities cited by the Magistrate Judge on this point, much less demonstrate
any infirmity in the Magistrate Judge's analysis. Neither has Plaintiff endeavored to explain
how the Magistrate Judge might have erred in determining that Michigan's electronic filing
requirement as applied to Plaintiff's campaign withstands scrutiny as rationally related to
a legitimate state interest. See id. at 16-17.

2

In fact, the Magistrate Judge correctly observed that "[t]he Supreme Court has declined
to find that classifications based on . . . wealth are suspect." R & R at 15 (citing San
Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28-29, 93 S. Ct. 1278, 1294
(1973)).
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Finally, Plaintiff takes issue with the Magistrate Judge's determination that the
allegations of his complaint are insufficient to state a claim that Michigan's campaign
finance disclosure scheme was unequally administered in this case due to Plaintiff's
Paganism or partisan political considerations.

See id. at 17-18.

In support of this

challenge, however, Plaintiff merely repeats the same allegations that the Magistrate Judge
properly discounted as "conclusory assertions regarding [Defendant] Johnson's purported
motivation" for refusing to accept Plaintiff's attempt to file his campaign finance statements
by fax. Id. at 17. As explained by the Magistrate Judge, these conclusory allegations of
improper motive are "insufficient to state a claim for relief under the [governing] federal
pleading standards." Id.
For these reasons, the Court OVERRULES Plaintiff's June 30, 2017 objections [32]
and ADOPTS the Magistrate Judge's June 16, 2017 report and recommendation [30]. In
accordance with these rulings, the remaining portion of Defendants' September 30, 2016
motion to dismiss [10] — i.e., the portion not yet resolved in the Magistrate Judge's earlier
October 24, 2016 report and recommendation and the Court's January 10, 2017 opinion
and order — is GRANTED.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: August 1, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record
on August 1, 2017, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager
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