Simpson v. Garrett et al
ORDER denying 2 Motion for TRO; granting 9 Motion to Dismiss; denying as moot 10 Motion to Expedite. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-13784
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
CATHY M. GARRETT, ET AL.,
U.S. MAGISTRATE JUDGE
ELIZABETH A. STAFFORD
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY
RESTRAINING ORDER, OR IN THE ALTERNATIVE, MOTION FOR PRELIMINARY
INJUNCTION ; GRANTING WAYNE COUNTY DEFENDANTS’ MOTION TO DISMISS
; DENYING AS MOOT PLAINTIFF’S EMERGENCY MOTION TO EXPEDITE
DECISION/HEARING ON MOTION FOR PRELIMINARY INJUNCTION AGAINST
WAYNE COUNTY BOARD OF CANVASSERS ; AND SUA SPONTE DISMISSING
DEFENDANTS JANICE WINFREY AND CITY OF DETROIT ELECTION INSPECTORS
Before the Court is Plaintiff Tawanna Simpson’s Motion for Temporary
Restraining Order, or in the alternative, Motion for Preliminary Injunction and a
Motion to Dismiss by Defendants Wayne County Clerk Cathy M. Garrett, Wayne
County Election Commission, and Wayne County Board of Canvassars. The Court
now finds the motions suitable for determination without a hearing in accord with
Local Rule 7.1(f)(2).
For the reasons stated below, the Court will DENY Plaintiff’s Motion for
Temporary Restraining Order, or in the alternative, Motion for Preliminary
Injunction  and GRANT the Motion to Dismiss  by the Wayne County
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Defendants. The Court will also DENY AS MOOT Plaintiff’s Motion to Expedite
Decision/Hearing on the Motion for Preliminary Injunction against Wayne County
Board of Canvassars  and sua sponte DISMISS Defendants Janice Winfrey,
Detroit City Clerk, and the City of Detroit Election Inspectors. See Drew v. Enter.
Leasing of Detroit, LLC, No. 13-11460, 2015 U.S. Dist. LEXIS 58004, at *5
(Whalen, M.J.), report and recommendation adopted 2015 U.S. Dist. LEXIS
57334 (E.D. Mich. May 1, 2015) (Goldsmith, J).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Tawanna Simpson filed an affidavit of identity with Defendant
Detroit City Clerk and paid the $100 filing fee in July 2016 to qualify as a
candidate for the Detroit Community School District Board of Education (“Board
of Education”) for the November 2016 general election. On September 13, 2016,
after certification from the Wayne County Clerk, the Defendant Wayne County
Election Commission convened and voted to approve Plaintiff’s name to appear on
the November 2016 general election ballot. At this meeting, the Election
Commission also determined that the affidavit of identity of Penelope Bailer,
another candidate running for a position on the Board of Education, had been
improperly filed and that Ms. Bailer had not received proper certification from the
Wayne County Clerk. The Election Commission voted not to place Ms. Bailer’s
name on the November 2016 ballot as a candidate for the Board of Education.
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Ms. Bailer subsequently filed an Emergency Motion for Mandamus and
Order to Show Cause against the Election Commission and Detroit City Clerk in
the Wayne County Circuit Court on September 15, 2016 (hereinafter referred to as
the “Bailer Election Matter”).1 Wayne County Circuit Court Chief Judge Colombo
entered an order compelling the Election Commission and Detroit City Clerk to
appear for a hearing that was scheduled for September 16, 2016.
Plaintiff’s counsel attended the show cause hearing and briefly participated
in oral arguments.2 After the hearing, Judge Colombo granted Ms. Bailer’s motion
and ordered the Election Commission “to take necessary steps to place the name of
Penelope N. Bailer on the November 8, 2016 General Election ballot as a candidate
for the Detroit Community School District.” (Pl.’s Ex. F, Dkt. 1-6). Plaintiff
alleges that the Election Commission neither convened as a public body nor
determined whether Ms. Bailer was properly certified to have her name placed on
the ballot as a candidate since the entry of Judge Colombo’s September 16 Order
in the Bailer Election Matter.
Bailer v. Wayne County Election Comm., No. 16-011797-AW, Sept. 14, 2016.
Plaintiff’s counsel filed an Emergency Motion to Intervene in the Bailer Election Matter on
behalf of Robert Davis and Desmond White in the early hours of September 16. Plaintiff alleges
that Chief Judge Colombo ultimately did not render a decision on the intervention motion.
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Robert Davis and Desmond White3 appealed Judge Colombo’s decision. The
Michigan Court of Appeals and the Michigan Supreme Court denied their appeals
on September 21 and 22, 2016, respectively. See Bailer v. Detroit City Clerk, et al.,
unpublished opinion per curiam of the Court of Appeals, issued September 21,
2016 (No. 334823); Bailer v. Detroit City Clerk, et al., unpublished order of the
Supreme Court, entered September 22, 2016 (No. 154459).
Plaintiff’s counsel appeared before Judge Colombo in an unrelated matter on
September 23, 2016. At the conclusion of the hearing, Judge Colombo allegedly
spoke with Plaintiff’s counsel at sidebar, asking about Robert Davis’ motives in
seeking to remove Ms. Bailer from the ballot. Later that day, Davis and Ms. White
filed a complaint with the Wayne County Circuit Court against Defendants Wayne
County Clerk, Wayne County Election Commission, Penelope Bailer, and the
Detroit City Clerk (hereinafter referred to as the “Davis Election Matter”).4 The
case was assigned to Judge Colombo, who, after a show cause hearing on
September 28, 2016, dismissed the complaint and sanctioned Davis and his
counsel. It is the Court’s understanding that Davis’ appeal is currently pending
before the Michigan Court of Appeals. (Dkt. 7-12, Pg. ID 287).
Desmond White ran as a write-in candidate for the Board of Education. Robert Davis, a
registered voter in Highland Park, supports Plaintiff Simpson and Desmond White. He opposed
Ms. Bailer’s candidacy.
Davis v. Garrett, Wayne County Circuit Court Case No. 16-012226-AW, Sept. 23, 2016.
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Robert Davis then filed an Emergency Complaint or in the alternative,
Motion for Preliminary Injunction with the Court on October 3, 2016 (Davis v.
Ruth Johnson, et al., No. 16-13545, Dkt. 1 & 2). Davis filed an Amended
Complaint and renewed motion for injunctive relief on October 10, 2016, in which
he added several parties to the lawsuit, including Plaintiff Tawanna Simpson.
During a phone status conference on October 14, 2016, the Court determined that it
was appropriate to dismiss Ms. Simpson from Davis’ lawsuit, as they are pursuing
different claims for relief. Thereafter, Plaintiff Simpson filed the instant lawsuit on
October 24, 2016. She seeks the issue of a Temporary Restraining Order pursuant
to Fed. R. Civ. P. 65(b), or in the alternative, a Preliminary Injunction pursuant to
Fed. R. Civ. P. 65(a). The Court notes that Plaintiff’s complaint presents no
allegations as to Defendants Janice Winfrey, the Detroit City Clerk, and the City of
Detroit Elections inspectors.
Plaintiff contends that she has been denied equal protection and due process
of law under the Fourteenth Amendment because Defendants allowed Ms. Bailer’s
name to be printed on the November 2016 general election ballot as a candidate for
the Board of Education: 1) without proper certification from the Defendant Wayne
County Clerk; and 2) without the Defendant Wayne County Election Commission
meeting as a public body to determine whether Ms. Bailer’s name was properly
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certified, as required by M.C.L. § 168.689. Plaintiff argues that this Court should
grant the following relief:
Injunctive relief that preliminarily and permanently enjoins Defendants from
counting and/or certifying any votes cast for Penelope Bailer;
An award of compensatory, punitive, and nominal damages against the
Defendants for denying Plaintiff due process and equal protection under the
An award of attorney fees and costs pursuant to 42 U.S.C. § 1988
A declaratory judgment declaring that Penelope Bailer’s name should not
have been printed on the November 8, 2016 General Election ballot because
the Defendant Wayne County Clerk did not first certify her name to the
Defendant Wayne County Election Commission for it to be placed on the
November 8, 2016 General Election ballot because of Penelope Bailer’s
fatally flawed affidavit of identity.
Defendants filed a Response (Dkt. 7) to Plaintiff’s Motion on November 2, 2016,
to which Plaintiff replied on November 7, 2016 (Dkt. 8). The County Defendants
also filed a Motion to Dismiss (Dkt. 9) on November 7, 2016, in which they set
forth the following arguments:
This Court lacks subject matter jurisdiction over Plaintiff’s claims;
Plaintiff’s claims are barred by the doctrine of laches;
Plaintiff’s claims are barred by the preclusion doctrines of res judicata and
Plaintiff’s claims are barred by Rooker-Feldman;
Plaintiff’s constitutional rights have not been violated;
There are state remedies available to address Plaintiff’s claims;
Plaintiff’s Fourteenth Amendment Due Process claim fails for lack of a
constitutionally protected liberty interest; and
Plaintiff’s Fourteenth Amendment Equal Protection Claim fails because the
County Defendants’ actions did not constitute a violation of Plaintiff’s
fundamental right to vote.
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Plaintiff later filed an Emergency Motion for Expedited Decision/Hearing
(Dkt. 10) on the Motion for Temporary Restraining Order/Preliminary Injunction.
Defendants filed a Response (Dkt. 11), in which they argue that “[n]ot certifying
the results for Penelope Bailer would serve no purpose,” as she “is a losing
candidate who will not take office.” Id. Moreover, Defendants contend, this case is
moot, first because neither Bailer nor Plaintiff received enough votes to serve on
the School Board, and second, because Plaintiff lacks a cognizable interest in the
outcome of the litigation. Plaintiffs have not responded to the Wayne County
Defendants’ Motion to Dismiss.
STANDARD OF REVIEW
The County Defendants move to dismiss Plaintiffs’ Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1), lack of subject matter jurisdiction, and
12(b)(6), for failure to state a claim upon which relief can be granted.
A motion to dismiss under Rule 12(b)(1) can fall into two categories: facial
attacks or factual attacks. Facial attacks challenge the sufficiency of the pleadings.
“On such a motion, the court must take the material allegations of the petition as
true and construed in the light most favorable to the nonmoving party.” United
States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). In contrast, a factual attack
challenges “the factual existence of subject matter jurisdiction. On such a motion,
no presumptive truthfulness applies to the factual allegations . . . and the court is
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free to weigh the evidence and satisfy itself as to the existence of its power to hear
the case.” Id. (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325
(6th Cir. 1990)).
To survive a 12(b)(6) motion, Plaintiff’s complaint must plead factual
content that allows the court to draw a reasonable inference that the defendant is
liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Court must accept the complaint’s factual allegations as true and draw all
reasonable inferences in the plaintiff’s favor. Ohio Police & Fire Pension Fund v.
Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012). “A
plaintiff's complaint must provide ‘more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556
U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Courts
are not required to accept as true legal conclusions framed as factual allegations.
See Twombly, 550 U.S. at 555. “Factual allegations must be enough to raise a right
to relief above the speculative level on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Id. (internal citations omitted).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—
'that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ.
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The Wayne County Defendants set forth various arguments as to why this
case should be dismissed. The Court will address Defendants’ arguments for
mootness and preclusion in turn.
“Simply stated, a case is moot when the issues presented are no longer ‘live’
or the parties lack a legally cognizable interest in the outcome.” Powell v.
McCormack, 395 U.S. 486, 496 (1969). “A federal court has no authority to render
a decision upon moot questions or to declare rules of law that cannot affect the
matter at issue.” United States v. City of Detroit, 401 F.3d 448, 450 (6th Cir. 2005)
(quoting Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 530 (6th
Cir. 2001)). “Mootness results when events occur during the pendency of a
litigation which render the court unable to grant the requested relief.” Carras v.
Williams, 807 F.2d 1286, 1289 (6th Cir. 1986). The Sixth Circuit determines
mootness “by examining whether an actual controversy between the parties exists
in light of intervening circumstances.” Fleet Aerospace Corp. v. Holderman, 848
F.2d 720, 723 (6th Cir. 1988).
At the present time, the November 2016 General Election has concluded,
and the new members of the Board of Education have been chosen. Neither
Plaintiff nor Bailer was elected to serve on the Board, and therefore, the Court can
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no longer provide effective relief for Defendants’ alleged violations. ACLU of
Ohio v. Taft, 385 F.3d 641, 646 (6th Cir. 2004); Coalition for Gov’t Procurement
v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004). Furthermore, the
problem for Plaintiff is that the relief she seeks would not “make a difference to the
legal interests of the parties.” McPherson v. Michigan High Sch. Athletic Ass’n
Inc., 119 F.3d 453, 458 (6th Cir. 1997).
The capable of repetition, yet evading review exception to mootness applies
when “(1) the challenged action was in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there was a reasonable expectation that
the same complaining party would be subjected to the same action again.”
Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The Supreme Court has noted
that the doctrine “applies only in exceptional situations, and generally only where
the named plaintiff can make a reasonable showing that he will again be subjected
to the alleged illegality.” L.A. v. Lyons, 461 U.S. 95, 109 (1983).
Applying the Sixth Circuit’s capable of repetition, yet evading review test,
the Court finds that Plaintiff’s case does not fall within the exception to mootness.
As to the first prong of the mootness exception test, the Court believes that
“[t]iming is everything.” Crookston v. Johnson, No. 16-2490, 2016 U.S. App.
LEXIS 19494, at *1 (6th Cir. Oct. 28, 2016). The Crookston Court stated:
When an election is imminent and when there is inadequate time to resolve
factual disputes and legal disputes, courts will generally decline to grant an
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injunction to alter a State’s established election procedures. That is
especially true when a plaintiff has unreasonably delayed in bringing his
claim, as [Plaintiff] most assuredly has. Call it what you will – laches, the
Purcell principle, or common sense – the idea is that courts will not disrupt
imminent elections absent a powerful reason for doing so.
Id. at *4 (emphasis added) (internal citations omitted).
Plaintiff has not satisfied the first part of the mootness exception test. As the
Michigan state courts found, Penelope Bailer’s defective affidavit of identity was
available to the public no later than July 26, 2016, yet Plaintiff waited until
October 10, 20165 – less than one month before the general election and several
weeks after the commencement of the printing of absentee ballots – to join in
Davis’ challenge to Bailer’s candidacy. The Court determines that there was ample
time for Plaintiff Simpson to litigate the various issues and controversies arising
from the Defendants’ alleged wrongful inclusion of Bailer’s name on the general
election ballot. Moreover, even assuming that there was insufficient time for
Plaintiff’s lawsuit to be fully litigated, she has not demonstrated that she has “a
reasonable expectation that the circumstances giving rise to [her] suit will likely
arise in future elections.” Ohio Democratic Party v. Blackwell, No. 04-1055, 2005
U.S. Dist. LEXIS 18126, at *30 (S.D. Ohio. Aug. 26, 2005). There is no reason for
the Court to expect that Plaintiff will subjected to the same alleged violations in the
future. See Weinstein, 423 U.S. at 149.
October 10, 2016 is the date on which Robert Davis filed his Amended Complaint in which he
added Plaintiff Simpson to his lawsuit. Davis v. Ruth Johnson, et al., No. 16-13545, Dkt. 10.
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Because no justiciable claim exists on which the Court can rule, this case is
Preclusion Doctrine – Res Judicata
“Federal courts must give the same preclusive effect to a state-court
judgment as that judgment receives in the rendering state.” Abbott v. Michigan,
474 F.3d 324, 330 (6th Cir. 2007) (citing 28 U.S.C. § 1738). “Michigan recognizes
two preclusion doctrines: res judicata, or claim preclusion; and collateral estoppel,
or issue preclusion.” Id. at 330-31.
Michigan has adopted a broad application of the res judicata doctrine, which
“bars a second, subsequent action when (1) the prior action was decided on the
merits, (2) both actions involve the same parties or their privies, and (3) the matter
in the second case was, or could have been, resolved in the first.” Adair v. State,
470 Mich. 105; 680 N.W.2d 386, 396 (Mich. 2004). Res judicata bars “not only
claims already litigated, but also every claim arising from the same transaction that
the parties, exercising reasonable diligence, could have raised but did not.” Id.
“[T]he burden of proving the applicability of the doctrine of res judicata is on the
party asserting it.” Baraga County v. State Tax Comm’n, 466 Mich. 264; 645
N.W.2d 13, 16 (Mich. 2002).
The United States Supreme Court has held that under res judicata, “a final
judgment on the merits bars further claims by parties or their privies based on the
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same cause of action.” Montana v. United States, 440 U.S. 147, 153 (1979). The
Sixth Circuit has further explained that “[p]rivity is limited to ‘a successor in
interest to the party, one who controlled the earlier action, or one whose interests
were adequately represented.’” United States v. Vasilakos, 508 F.3d 401, 406 (6th
Cir. 2007) (quoting Sanders Confectionery Prods., Inc. v. Heller Fin., Inc., 973
F.2d 474, 481 (6th Cir.1992)). Furthermore, the Michigan Court of Appeals has
explained that privity exists where “[t]he parties to the second action [are] only
substantially identical to the parties in the first action.” Peterson Novelties, Inc. v.
City of Berkley, 259 Mich. App. 1; 672 N.W.2d 351 (2003). “Michigan courts
require ‘both a substantial identity of interests and a working or functional
relationship . . . in which the interests of the non-party are presented and protected
by the party in the litigation.” Peterson Novelties, Inc., 259 Mich. App. at 12-13
(quoting Phinisee v. Rogers, 229 Mich. App. 547, 553-54 (1998)).
Plaintiff argues that res judicata does not operate to bar her claims because
she was neither a party, nor in privity to any of the parties, in either the Bailer
Election Matter or the Davis Election Matter. She further contends that her federal
constitutional claims were not and could not have been litigated in the state court
cases. Plaintiff also maintains that she shares no identity of interest with Robert
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While it is correct that Plaintiff was not a named party to either the Bailer or
Davis Election Matters, her interests were adequately represented therein. See
Vasilakos, 508 F.3d at 406. Robert Davis and Desmond White moved Michigan
state courts and this Court to, among other things, remove Penelope Bailer from
the 2016 ballot. Plaintiff Simpson now seeks to prevent Defendants from certifying
and counting any votes cast for Penelope Bailer. Although they may not be
proceeding in exactly the same manner, Davis, White, and Plaintiff seek virtually
the same results: the removal of Penelope Bailer from the ballot, the
disqualification of her candidacy, and the decertification of any votes cast in her
favor. The core events that have paved the way for both Davis’ and Plaintiff’s legal
actions are identical: Davis challenged Bailer’s candidacy, the Wayne County
Election Commission removed Bailer’s name from the general election ballot,
Bailer appealed the Commission’s decision, Judge Colombo ordered the
Commission to restore Bailer’s name to the ballot, and so forth. See Anderson v.
County of Wayne, No. 10-13708, 2011 U.S. Dist. LEXIS 65863, at *17 (E.D.
Mich. June 20, 2011) (Borman, J.) (“The test for determining preclusive effect is
whether the same facts or evidence are crucial to prove the two claims, not whether
the bases for relief are the same.”). Whether Robert Davis sought to protect
Plaintiff’s constitutional rights is irrelevant. A court of competent jurisdiction has
already adjudicated the issues raised by Plaintiff and issued a valid judgment
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thereon; that judgment is conclusive between the parties and their privies. See City
of Troy Bldg. Inspector v. Hershberger, 27 Mich. App. 123; 183 N.W.2d 430, 43233 (1970); Knibbe v. City of Warren, 2 Mich. App. 241; 139 N.W. 2d 344, 346
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s Motion for Temporary Restraining Order,
or in the alternative, Preliminary Injunction  is DENIED.
IT IS FURTHER ORDERED that the Wayne County Defendants’ Motion
to Dismiss  is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Emergency Motion to
Expedite Decision/Hearing on Motion for Preliminary Injunction Against Wayne
County Board of Canvassers  is DENIED.
IT IS FURTHER ORDERED that Defendants Janice Winfrey and City of
Detroit Election Inspectors are sua sponte DISMISSED, as Plaintiff’s complaint
does not contain any allegations against them.
Dated: December 28, 2016
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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