Davis et al v. Wayne County Election Commission

Filing 29

ORDER Dismissing Robert Davis as Plaintiff. Signed by District Judge Judith E. Levy. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Robert Davis and Desmond M. White,
Plaintiffs,
v.

Case No. 16-cv-12547

Wayne County Elections Commission,

Judith E. Levy
United States District Judge

Defendant,
Mag. Judge Mona K. Majzoub
and
Michael Edward Duggan, Mayor of the
City of Detroit,
Intervening Defendant.
____________________________________/
ORDER DISMISSING ROBERT DAVIS AS PLAINTIFF
On July 18, 2016, a telephone conference was held in the above
matter. For the reasons stated on the record, supplemental briefing
was ordered on the question of whether plaintiff Robert Davis has
standing in this case.

(Dkt. 10.)

The Court, having reviewed the

supplemental briefing, now finds that Davis lacks standing to bring this
lawsuit.

Accordingly, Davis is terminated as a plaintiff from this

matter and the claims raised on his behalf against defendants are
DISMISSED with prejudice.

The case will proceed with the claims

brought by plaintiff Desmond White.
I. Background
Plaintiffs Desmond White and Robert Davis brought this lawsuit
seeking a declaratory judgment and injunctive relief from the alleged
rejection

by

defendant

Wayne

County

Election

Commission

(“Commission”) of White’s petition to recall intervenor Edward Duggan,
Mayor of the City of Detroit.

In their proposed second amended

complaint,1 plaintiffs challenge two provisions of Michigan’s recall
election law, M.C.L. §§ 168.952(2) and (3), as both facial and as-applied
prior restraints of their political speech. (Dkt. 21 at 13-20.)2 They also

Plaintiffs’ Motion for Leave to File a Second Amended Complaint (Dkt. 18) is
pending before the Court, but given the liberal nature of Rule 15, it is most prudent
to address the issue of Davis’s standing in light of the most recently proposed
complaint. In any event, review of both complaints provides no reason to believe
that the First Amended Complaint presents a basis for standing that is not included
in the proposed Second Amended Complaint.
1

2

M.C.L. § 168.952 reads in relevant part:
(2) Before being circulated, a petition for the recall of an officer under
subsection (1) shall be submitted to the board of county election
commissioners of the county in which the officer whose recall is sought

2

challenge these two provisions as violating Art. II, § 8 of the Michigan
Constitution. (Id. at 20-28.) Plaintiffs seek an injunction barring the
Commission from enforcing these two provisions of the recall election
law. (Id. at 28-30.)
White is a resident and registered elector of the City of Detroit,
and she alleges that on May 20, 2016, she filed a proposed petition to
recall Mayor Duggan with the Commission. (Id. at 5.)3 That same day,
the Commission provided written notice to White and Duggan that it
would convene on June 7, 2016 to consider White’s petition with regard

resides.
(3) The board of county election commissioners, not less than 10 days or more
than 20 days after submission to it of a petition for the recall of an officer
under subsection (1), shall meet and shall determine whether each reason for
the recall stated in the petition is factual and of sufficient clarity to enable the
officer whose recall is sought and the electors to identify the course of conduct
that is the basis for the recall. If any reason for the recall is not factual or of
sufficient clarity, the entire recall petition shall be rejected. Failure of the
board of county election commissioners to meet as required by this subsection
shall constitute a determination that each reason for the recall stated in the
petition is factual and of sufficient clarity to enable the officer whose recall is
being sought and the electors to identify the course of conduct that is the
basis for the recall.
M.C.L. § 168.952 (emphasis added).
Plaintiffs also allege that Davis assisted White in drafting the language in her
petition. (Dkt. 21 at 5.) However, Davis is not asserted to have filed the petition,
and his name appears nowhere on the petition materials.

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to “the clarity of reasons as set forth” in the petition.

(Id. at 6.)

Plaintiffs allege that at the June 7, 2016 meeting, the Commission
evaluated White’s petition with regard to its factuality and clarity and
ultimately determined that “no facts support” the statements in the
petition. (Id. at 7-8.) The complaint further states that the Commission
advised White of its decision to reject the petition for a lack of clarity.
(Id. at 8-9.)
Plaintiff Davis alleges that he and White “desire to and are ready,
willing, and able to immediately begin circulating the proposed recall
petition” but for the Commission’s rejection, and that this prior
approval as required by M.C.L. §§ 168.952(2) and (3) impairs their First
Amendment right to circulate the petition. (Id. at 12.) Additionally,
plaintiffs challenge the requirement that the Commission evaluate
whether the petition is “factual and of sufficient clarity” as being
unconstitutionally vague.

(Id. at 13.)

Davis, individually and

collectively with White, also alleges that the challenged law impedes
their right under Art. II, § 8 of the Michigan Constitution to seek the
recall of an elected official, in that evaluating a proposed petition for
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“factuality” constitutes a political question, which is left to the voters
under the terms of the Michigan Constitution. (Id. at 14.)
II. Legal Standard
“In essence the question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of
particular issues.” ASARCO Inc. v. Kadish, 490 U.S. 605, 612-13 (1989)
(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Because standing
is a jurisdictional issue, it may be raised sua sponte by the Court. Loren
v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007).
It is the plaintiff’s burden to establish that he has standing, which
requires a three-part showing: 1) an “injury in fact—an invasion of a
legally-protected interest” that is both “concrete and particularized” and
“actual or imminent, not conjectural or hypothetical”; 2) “the injury has
be fairly traceable to the challenged action of the defendant”; and 3) “it
must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Parsons v. U.S. Dep’t of Justice, 801
F.3d 701, 710 (6th Cir. 2015) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)). “‘Injury in fact’ is a standard meant to weed
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out those who have no interest in the action, not to deny a day in court
to those who have weak cases.” Dilaura v. Ann Arbor Charter Twp., 30
F. App'x 501, 506 (6th Cir. 2002).
In the First Amendment context, the standing inquiry is “relaxed .
. . ‘because of a judicial prediction or assumption that the policy's very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression.’” Faith Baptist Church
v. Waterford Twp., 522 F. App’x 322, 330 (6th Cir. 2013) (quoting Berner
v. Delahanty, 129 F.3d 20, 24 (1st Cir. 1997) (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 612 (1973)). The relaxed standing rules in
First Amendment cases regarding the relationship between the litigant
and those whose rights are being asserted reflect a concern that strict
“application of the rules would have an intolerable, inhibitory effect on
freedom of speech.” ACLU v. Nat’l Sec. Agency, 493 F.3d 644, 658 n.18
(6th Cir. 2007) (quoting Eisenstadt v. Baird, 405 U.S. 438, 445 n.5
(1972)).
Nonetheless, “a subjective fear of chilling [ones First Amendment
rights] will not suffice for standing absent a real and immediate threat
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of future harm.” White v. United States, 601 F.3d 545, 554 (6th Cir.
2010) (citing, inter alia, Laird v. Tatus, 408 U.S. 1, 13-14 (1972)
(“Allegations of a subjective ‘chill’ are not an adequate substitute for a
claim of specific present objective harm or a threat of specific future
harm.”) (emphasis in original)). There must be “some specific action on
the part of the defendant in order for the litigant to demonstrate an
injury-in-fact.” Morrison v. Bd. of Educ. Of Boyd Cty., 521 F.3d 602,
609 (6th Cir. 2008).
“[T]he standing inquiry requires careful judicial examination of a
complaint’s allegations” to evaluate such questions as whether the
injury is “too abstract, or otherwise not appropriate, to be considered
judicially cognizable,” whether the causation is “too attenuated,” and
whether the redressability of the injury through “a favorable ruling [is]
too speculative.” Kardules v. City of Columbus, 95 F.3d 1335, 1348-49
(6th Cir. 1996). These and “any other relevant” questions “must be
answered by reference to the Art. III notion that federal courts may
exercise power only ‘in the last resort, and as a necessity,’ and only
when adjudication is ‘consistent with a system of separated powers and
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[the dispute is one] traditionally thought to be capable of resolution
through the judicial process.’” Id. (quoting Allen v. Wright, 468 U.S.
737, 751 (1984) (alteration in original)). The party seeking to assert
standing must “allege an injury arising from the specific rule being
challenged, rather than an entirely separate rule that happens to
appear in the same section of the municipal code.”

Midwest Media

Prop., L.L.C. v. Symmes Twp., Ohio, 503 F.3d 456, 463 (6th Cir. 2007)
(quoting Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 351 (6th
Cir. 2007)).
III. Analysis
Plaintiffs state that White, not Davis, submitted the recall
petition to the Commission on her own behalf.4 Davis, who has the
burden to establish his standing, argues that he has suffered an injury

In a second case brought by Davis against the Commission and others—
consolidated for pre-trial purposes with this matter for administrative efficiency—
defendant Commission and intervenor Duggan have each moved to dismiss Davis’s
case in part on a theory that the Commission cannot consider Davis’s petition on the
grounds that he is not a registered elector of the City of Detroit and therefore is not
eligible to seek recall of an elected official of the City of Detroit. (Davis v. Bradshaw
et al., Case No. 16-cv-10674, Dkt. 81 at 17-18; Dkt. 82 at 14-17.) These motions are
pending before the Court. However, the specific issue of Davis not being a Detroit
elector is irrelevant to the present matter, as Davis did not sponsor the petition that
is the subject of this litigation.
4

8

in fact because he “is currently being denied the right to exercise his
First Amendment Core Political Speech Rights as a result of not being
able to circulate the proposed recall petition Plaintiff Desmond White []
submitted to the Defendant Wayne County Election Commission for
their consideration and prior approval.” (Dkt 19 at 5-7) (emphasis in
original) (citing Bogaert v. Land, 572 F. Supp. 2d 883, 900 (W.D. Mich.
2008), appeal dismissed 543 F.3d 862 (6th Cir. 2008)).) He asserts that
White should not have to receive prior approval of her petition for him
to be able to circulate it. (Id. at 5.)
The Commission counters that a recall petition is subject to the
legal analysis of any other ballot-access issue, which means that a
state’s regulatory interests justify some prior review of the language
that is proposed for a ballot without an intrusion on the First
Amendment. (Dkt. 23 at 4-5 (citing Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 358 (1997)).) The Commission further asserts that
the burden described by Davis involves his status as a potential
circulator, but the only plaintiff potentially burdened by prior review of
the petition language is the petition sponsor herself. (Id. at 5.) By
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contrast, defendant argues, it “is not preventing Robert Davis from
expressing himself through speech to the voters of the city of Detroit.”
(Id.)
Further, the Commission argues that since Davis did not submit
the recall petition, any injury arising from his not being able to
circulate the petition is not traceable to it. The Commission contends
that, should a petition be approved, it would be up to White, the
petition sponsor, and not Davis whether to circulate an approved
petition and whom to appoint as circulator.

(Id. at 6-7.)

The

Commission further argues that Davis’s asserted injury is not a
particularized injury, but rather an “indefinite injury” in common with
any other potential or would-be petition circulator. (Id. at 8.)
Duggan argues that Davis lacks standing because his status is as
a potential circulator of the petition, but “[n]o government actor has
prevented Davis from exercising any free speech rights he might have.
Indeed there is no protected speech for him to engage in as a circulator
until and unless the petition is approved.” (Dkt. 24 at 4-5.) Duggan
argues that Davis’s asserted standing is derivative of actions taken with
10

respect to White, that Davis has no independent claims, and that any
action with regard to White’s claim settles the entirety of the case
without any separate need to evaluate Davis’s claim. (Id. at 5.)
Davis’s assertion of standing cannot survive careful scrutiny of the
complaint and these arguments.

Plaintiffs base their lawsuit

exclusively on the two provisions of the recall election law regarding the
obligations of the Commission when presented with a recall petition.
The law specifically requires that the petition be submitted to the
Commission before being circulated.

M.C.L. § 168.952(2).

It also

requires the Commission to hold a meeting and “determine whether
each reason for the recall stated in the petition is factual and of
sufficient clarity to enable the officer whose recall is sought and the
electors to identify the course of conduct that is the basis for the law.”
M.C.L. § 168.953(3).
This lawsuit addresses the issues of whether these two provisions
burden the rights of an individual seeking the recall of an elected
official under the First Amendment and the Michigan Constitution by
requiring prior approval of the petition language before it may be
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circulated to electors and by requiring an evaluation of the factuality
and clarity of the language in the petition.

Nothing in these two

challenged provisions addresses the rights or obligations of any
circulator of any petition.
White’s standing is clear: the petition she submitted was rejected
by the Commission, and because of that decision by the Commission she
is unable to seek the recall of Mayor Duggan with that petition.
Moreover, the relief sought by the lawsuit—a declaration that the
challenged provisions of the recall election law violated White’s First
Amendment rights and the Michigan Constitution and an injunction
barring the Commission from enforcing the law—would redress White’s
injury by allowing her to proceed with her effort to have her petition to
recall Mayor Duggan placed on the ballot.
By contrast, Davis does not have standing to assert these claims.
He has suffered no actual or imminent injury because there is, at this
point, no petition for him to circulate. Because there is no petition to
circulate, there can be no government agent or entity preventing him
from exercising the speech rights inherent in circulating a petition. Put
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another way, without an injury, there is no defendant whose action is
the fairly traceable cause of the injury.
There is also no redressability here. The relief sought, if granted,
would have no impact on Davis’s alleged injury. It would prevent the
Commission from denying White her right to seek signatures for her
petition, but would not address Davis’s ability to circulate that, or any
other, petition. Finally, even under the more relaxed standing inquiry
conducted in First Amendment challenges, Davis has not alleged that
he seeks standing on behalf of third parties, unnamed here, whose First
Amendment rights are being inhibited by defendants’ actions.

See

ACLU, 493 F.3d at 658 n.18 (citing Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 546-47 (1981)).
IV.

Conclusion

For the reasons set forth above, Davis’s claims are DISMISSED
and Davis is TERMINATED from this lawsuit for lack of standing.
IT IS SO ORDERED.
Dated: August 31, 2016
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 31, 2016.
s/Kelly Winslow for
FELICIA M. MOSES
Case Manager

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