The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
T. P. NYKORIAK, FOR PUBLICATION
October 22, 2020
Plaintiff-Appellant, 9:20 a.m.
v No. 354410
Wayne Circuit Court
BENNY NAPOLEON, WAYNE COUNTY CLERK, LC No. 20-008162-AW
and WAYNE COUNTY BOARD OF ELECTION
COMMISSIONERS,
Defendants-Appellees.
Before: LETICA, P.J., and K. F. KELLY and REDFORD, JJ.
PER CURIAM.
Plaintiff appeals as of right the circuit court order denying his complaint and motion for a
writ of mandamus seeking to compel defendants, the Wayne County Clerk (Clerk) and the Wayne
County Board of Election Commissioners (Board) (collectively “Wayne County defendants”), to
reject a facially defective election form and disqualify defendant Benny Napoleon (Napoleon) as
a competing candidate in the election for the office of Wayne County Sheriff. We affirm.
I. BACKGROUND
Plaintiff, a candidate for the Democratic primary election, filed a complaint seeking a writ
of mandamus to compel the Wayne County defendants to disqualify incumbent candidate,
Napoleon, based on an allegedly facially defective Affidavit of Identity (AOI). Specifically,
plaintiff alleged that Napoleon’s AOI was defective because it was not properly notarized.
Defendants responded that the AOI was not defective and that plaintiff’ claim was barred by the
doctrine of laches.
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Following a hearing, the circuit court agreed with defendants and denied plaintiff’s
complaint and related motions. This appeal followed and we granted immediate consideration.
Nykoriak v Napoleon, unpublished order of the Court of Appeals, entered August 14, 2020 (Docket
No. 354410).1
II. MANDAMUS
Plaintiff argues that the circuit court erred by failing to issue a writ of mandamus directing
the Wayne County defendants to disqualify Napoleon as a candidate in the election for Wayne
County Sheriff on the basis of his facially defective AOI. We disagree.
“This Court reviews for an abuse of discretion a trial court’s grant or denial of a writ of
mandamus. An abuse of discretion occurs when the trial court chooses an outcome that falls
outside the range of reasonable and principled outcomes.” Southfield Ed Ass’n v Bd of Ed of
Southfield Pub Sch, 320 Mich App 353, 378; 909 NW2d 1 (2017) (quotation marks and citations
omitted). “We review de novo, as questions of law, whether defendants have a clear legal duty to
perform and whether plaintiff has a clear legal right to performance of any such duty.” Berry v
Garrett, 316 Mich App 37, 41; 890 NW2d 882 (2016). We also review de novo the interpretation
of statutes. Protecting Mich Taxpayers v Bd of State Canvassers, 324 Mich App 240, 244; 919
NW2d 677 (2018).
As we explained in O’Connell v Dir of Elections, 317 Mich App 82, 90-91; 894 NW2d 113
(2016):
Mandamus is an extraordinary remedy . . . . Thus, issuance of this writ is
proper only if (1) the party seeking the writ has a clear, legal right to performance
of the specific duty sought, (2) the defendant has the clear legal duty to perform the
act requested, (3) the act is ministerial, and (4) no other remedy exists, legal or
equitable, that might achieve the same result. Within the meaning of the rule of
mandamus, a clear, legal right is one clearly founded in, or granted by, law; a right
which is inferable as a matter of law from uncontroverted facts regardless of the
difficulty of the legal question to be decided. [Quotation marks and citations
omitted.]
“A ministerial act is one in which the law prescribes and defines the duty to be performed with
such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Berry,
316 Mich App at 42 (quotation marks omitted).
Plaintiff argues that Napoleon’s AOI did not comply with MCL 168.558. Accordingly,
this issue involves the interpretation of that statute.
1
Plaintiff subsequently filed a bypass application for leave to appeal in our Supreme Court along
with a motion for immediate consideration. The Court granted the motion for immediate
consideration, but denied bypass. T. P. Nykoriak v Napoleon, Mich ; NW2d (2020)
(Docket No. 161990).
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This Court’s primary task in interpreting and applying a statute is to discern
and give effect to the intent of the Legislature. The words of the statute are the
most reliable evidence of the Legislature’s intent and this Court must give each
word its plain and ordinary meaning. In interpreting the statute at issue, [this
Court] . . . consider[s] both the plain meaning of the critical words or phrase as well
as its placement and purpose in the statutory scheme. When a statute’s language is
unambiguous, the Legislature must have intended the meaning clearly expressed,
and the statute must be enforced as written. [Stumbo v Roe, ___ Mich App ___,
___; ___ NW2d ___ (2020) (Docket No. 353695); slip op at 3-4 (quotation marks
and citations omitted).]
MCL 168.558 relates to the filing of petitions, fees, and affidavits for primary elections
and provides:
(1) When filing a nominating petition, qualifying petition, filing fee, or
affidavit of candidacy for a federal, county, state, city, township, village,
metropolitan district, or school district office in any election, a candidate shall file
with the officer with whom the petitions, fee, or affidavit is filed 2 copies of an
affidavit of identity. A candidate nominated for a federal, state, county, city,
township, or village office at a political party convention or caucus shall file an
affidavit of identity within 1 business day after being nominated with the secretary
of state. The affidavit of identity filing requirement does not apply to a candidate
nominated for the office of President of the United States or Vice President of the
United States.
(2) An affidavit of identity must contain the candidate’s name and
residential address; a statement that the candidate is a citizen of the United States;
the title of the office sought; a statement that the candidate meets the constitutional
and statutory qualifications for the office sought; other information that may be
required to satisfy the officer as to the identity of the candidate; and the manner in
which the candidate wishes to have his or her name appear on the ballot. If a
candidate is using a name that is not a name that he or she was given at birth, the
candidate shall include on the affidavit of identity the candidate’s full former name.
(3) The requirement to indicate a name change on the affidavit of identity
does not apply if the name in question is 1 of the following:
(a) A name that was formally changed at least 10 years before filing as a
candidate.
(b) A name that was changed in a certificate of naturalization issued by a
federal district court at the time the individual became a naturalized citizen at least
10 years before filing as a candidate.
(c) A name that was changed because of marriage.
(d) A name that was changed because of divorce, but only if to a legal name
by which the individual was previously known.
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(e) A name that constitutes a common law name as provided in section
560b.
(4) An affidavit of identity must include a statement that as of the date of
the affidavit, all statements, reports, late filing fees, and fines required of the
candidate or any candidate committee organized to support the candidate’s election
under the Michigan campaign finance act, MCL 169.201 to 169.282, have been
filed or paid; and a statement that the candidate acknowledges that making a false
statement in the affidavit is perjury, punishable by a fine up to $1,000.00 or
imprisonment for up to 5 years, or both. If a candidate files the affidavit of identity
with an officer other than the county clerk or secretary of state, the officer shall
immediately forward to the county clerk 1 copy of the affidavit of identity by first-
class mail. The county clerk shall immediately forward 1 copy of the affidavit of
identity for state and federal candidates to the secretary of state by first-class mail.
An officer shall not certify to the board of election commissioners the name of a
candidate who fails to comply with this section, or the name of a candidate who
executes an affidavit of identity that contains a false statement with regard to any
information or statement required under this section.
(5) If petitions or filing fees are filed by or on behalf of a candidate for more
than 1 office, either federal, state, county, city, village, township, metropolitan
district, or school district, the terms of which run concurrently or overlap, the
candidate so filing, or on behalf of whom petitions or fees were so filed, shall select
the 1 office to which his or her candidacy is restricted within 3 days after the last
day for the filing of petitions or filing fees unless the petitions or filing fees are filed
for 2 offices that are combined or for offices that are not incompatible. Failure to
make the selection disqualifies a candidate with respect to each office for which
petitions or fees were so filed and the name of the candidate must not be printed
upon the ballot for those offices. A vote cast for that candidate at the ensuing
primary or general election must not be counted and is void.
(6) A violation of this section for perjury is distinct and separate from any
violation of the Michigan campaign finance act, 1976 PA 388, MCL 169.201 to
169.282.
As we explained in Stumbo, ___ Mich App at ___; slip op at 2-3:
Under MCL 168.558(1), a candidate filing a nominating petition or a filing
fee in lieu of nominating petition must also file an AOI, containing the candidate’s
name and address, among other information useful to establishing the candidate’s
identity. The Secretary of State provides a form AOI for use by candidates. This
form AOI includes a space designated for the candidate’s signature. To the
immediate right of the signature space is a space designated for the candidate to
record the date he or she signed the AOI. The form AOI also provides space for a
notary to attest to the identity of the affiant signing the AOI.
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The parties do not dispute that strict compliance with MCL 168.558 is required. See
Stumbo, ___ Mich App at ___; slip op at 1 (“Our Supreme Court instructs that a candidate for
elected office must strictly comply with the pre-election form and content requirements identified
in the Michigan Election Law, MCL 168.1 et seq., in the absence of any statutory language
expressly indicating that substantial compliance with the statute’s requirement suffices.”). Nor do
the parties dispute that this statute requires notarization as defined by the Michigan law on notarial
acts, MCL 55.261 et seq.2 MCL 55.287, relating to the signature and statement requirements,
provides:
(1) A notary public shall place his or her signature on every record upon
which he or she performs a notarial act. The notary public shall sign his or her
name exactly as his or her name appears on his or her application for commission
as a notary public.
(2) On each record that a notary public performs a notarial act and
immediately near the notary public’s signature, as is practical, the notary public
shall print, type, stamp, or otherwise imprint mechanically or electronically
sufficiently clear and legible to be read by the secretary and in a manner capable of
photographic reproduction all of the following in this format or in a similar format
that conveys all of the same information:
(a) The name of the notary public exactly as it appears on his or her
application for commission as a notary public.
(b) The statement: “Notary public, State of Michigan, County of
__________.”.
(c) The statement: “My commission expires __________.”.
(d) If performing a notarial act in a county other than the county of
commission, the statement: “Acting in the County of __________.”.
(e) The date the notarial act was performed.
(f) If applicable, whether the notarial act was performed using an electronic
notarization system under section 26a or performed using a remote electronic
notarization platform under section 26b.
(3) A notary public may use a stamp, seal, or electronic process that contains
all of the information required under subsection (2). However, the notary public
2
We are cognizant that on April 8, 2020, in response to the COVID-19 pandemic, the Governor
signed Executive Order 2020-41, temporarily suspending strict compliance with MCL 55.261 et
seq., “to the extent it requires a notary to be in the physical presence of an individual seeking the
notary’s services,” and, in lieu thereof, authorizing a two-way real-time audiovisual process for
the performance of a notarial act.
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shall not use the stamp, seal, or electronic process in a manner that renders anything
illegible on the record being notarized. A notary public shall not use an embosser
alone or use any other method that cannot be reproduced.
(4) The illegibility of the statements required under subsection (2) does not
affect the validity of the transaction or record that was notarized.
In Berry, 316 Mich App at 40, the plaintiff, a registered voter, filed a complaint seeking a
writ of mandamus to compel the Wayne County defendants not to place the names of two
candidates, the intervening defendants, on the ballot for the August 2, 2016 primary election. It
was undisputed that the affidavits filed by the intervening defendants did not provide a precinct
number as required by MCL 168.558(2). Id. We concluded that because the intervening
defendants failed to comply with MCL 168.558(2), the Wayne County defendants had a clear legal
duty not to certify their names under MCL 168.558(4). Id. at 44. We also concluded that
completing a facial review of the affidavits was a ministerial task because they were facially
defective. Id. at 45. We further concluded that the plaintiff lacked an adequate legal or equitable
remedy that might achieve the same result as mandamus. Id. Finally, we concluded that the
plaintiff had “a clear legal right to performance of the Wayne County defendants’ statutory duties.”
Id. at 45, 51.
In Stumbo, ___ Mich App at ___; slip op at 1, we recognized that “[t]he failure to supply a
facially proper Affidavit of Identity (AOI), i.e., an affidavit that conforms to the requirements of
the Election Law, is a ground to disqualify a candidate from inclusion on the ballot.” In that case,
the parties agreed that the defendant’s AOI contained “a facially-obvious defect” in that “[t]he date
that accompanies her signature differ[ed] from the date of the notarization.” Id. at ___; slip op at
4. We concluded, however, that the AOI was “strictly compliant with the requirements of MCL
168.558.” Id. at ___; slip op at 4. We explained:
There is no question that [the defendant] signed her AOI. There is also no
question that the notarization on the AOI is facially compliant with MCL
55.285(1)(b), (4), (6)(c), which authorizes a notary to witness and attest to a
signature made in the presence of the notary. A review of the AOI shows that
notary Brent W. Royal attests in that notarization that [the defendant] signed her
AOI before him on April 21, 2020. Thus, we conclude that [the defendant] strictly
complied with the attestation requirement implicit in MCL 168.558. [Id. at ___;
slip op at 5.]
We held “that as long as the AOI has been signed by the candidate and notarized in a manner
allowed under MCL 55.285, the AOI strictly complies with the attestation requirements implicit
in MCL 168.558 and the clerk has a legal duty to certify the affiant to the board of election
commissioners for placement on the ballot.” Id. at ___; slip op at 2.
In this case, plaintiff argues that Napoleon’s AOI is facially defective because it does not
include a notary signature and date of notarization as required under MCL 55.285. A review of
the AOI shows that the notary did not sign and date the AOI in the specific locations designated
for the notary signature and date. Rather, the notary’s signature appears in the “for office use only”
section on the line indicating “received by.” The date of “4/15/2020” appears on the line
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designated as the “date of filing.” The AOI was also stamped by the notary. The stamp included
the date on which the notary’s commission expires and the county in which she was acting.
With regard to the signature, plaintiff does not dispute that the signature on the “received
by” line was that of the notary. That is, there is no dispute that the notary actually signed the AOI.
We agree with defendants that there is no statutory requirement regarding the location of the
notary’s signature; therefore, the notary’s signature in the “for office use only” section is sufficient
to satisfy the requirement of MCL 55.287(1).
Likewise, we conclude that the AOI states the date that the notarial act was performed, and,
therefore, is facially compliant with MCL 55.287(2)(e). Again, the line designated for the date of
notarization was left blank. However, in the “for office use only” section, the date of “4/15/2020”
was written on the line designated for the “date of filing.” Napoleon signed the AOI on April 15,
2020, the same date that the AOI was filed. The notary named on the AOI is the Deputy Director
in the Office of the Wayne County Clerk, Elections Division. That being so, Napoleon either
presented in-person to the Wayne County Clerk’s Office3 or complied with the process described
in Executive Order 2020-41 on April 15. Stated otherwise, the date of the filing was the same date
of the notarial act. Accordingly, the “4/15/2020” on the “date of filing” line, and next to the
clerk/notary’s signature, is the same date that the clerk notarized the AOI. Because the date the
notarial act was performed is reflected on the AOI, the AOI facially complied with MCL
55.287(2)(e).
To summarize, the AOI was facially compliant with the requirements under MCL 55.287
because it contained: (1) the notary’s signature; (2) the notary’s name; (3) the county of the
notary’s commission; (4) the expiration date of the notary’s commission; (5) the county the notary
acted in; and (6) the date the notarial act was performed. Although certain of these requirements
were not completed in the box provided, they were nonetheless on the form, rendering it facially
compliant. To conclude otherwise would elevate form over substance. Because the AOI complied
with the requirements of MCL 168.558, we conclude that the Wayne County defendants did not
have a clear legal duty to remove Napoleon’s name from the ballot, and the circuit court correctly
concluded that plaintiff was not entitled to a writ of mandamus.
III. LACHES
Because plaintiff is not entitled to a writ of mandamus on the merits, we need not address
the parties’ arguments regarding laches. However, even if we accepted plaintiff’s challenge to
Napoleon’s AOI, we would nevertheless affirm because the circuit court did not err in determining
that plaintiff’s claim was barred by the doctrine of laches.
3
Plaintiff’s pleadings reflect that plaintiff arranged for an in-person meeting by making an
appointment with the Wayne County Clerk’s Office.
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As explained in Home-Owners Ins Co v Perkins, 328 Mich App 570, 589; 939 NW2d 705
(2019):
Estoppel by laches is the failure to do something which should be done
under the circumstances or the failure to claim or enforce a right at a proper time.
To successfully assert laches as an affirmative defense, a defendant must
demonstrate prejudice occasioned by the delay. Typically, [l]aches is an equitable
tool used to provide a remedy for the inconvenience resulting from the plaintiff’s
delay in asserting a legal right that was practicable to assert. A party guilty of
laches is estopped from asserting a right it could have and should have asserted
earlier. [Quotation marks and citations omitted; alterations in original.]
“This doctrine applies to cases in which there is an unexcused or unexplained delay in commencing
an action and a corresponding change of material condition that results in prejudice to a party.”
Wayne Co v Wayne Co Retirement Comm, 267 Mich App 230, 252; 704 NW2d 117 (2005)
(quotation marks and citation omitted). The doctrine of laches applies in actions in which equitable
relief is sought. MCL 600.5815. Moreover, in election cases, MCL 691.1031 creates a rebuttal
presumption of laches:
In all civil actions brought in any circuit court of this state affecting
elections, dates of elections, candidates, qualifications of candidates, ballots or
questions on ballots, there shall be a rebuttable presumption of laches if the action
is commenced less than 28 days prior to the date of the election affected. This
section shall not apply to actions brought after the date of the affected election.
Plaintiff filed this action on June 29, 2020, more than 28 days before the date of the August
4th primary election. Therefore, a rebuttable presumption of laches does not apply in this case.
But, contrary to plaintiff’s assertion, this does not mean that laches does not apply as a matter of
law. Although there is no rebuttable presumption of laches in this case, the doctrine may still
apply.
In this case, Napoleon’s AOI was filed on April 15, 2020. Plaintiff filed objections to the
AOI with the Clerk on April 24, 2020, and with the Board on June 5, 2020, but no action was taken
by the Wayne County defendants. Plaintiff then waited another 24 days before bringing suit in the
circuit court. Plaintiff alleged that, during this time, he considered his options and hired counsel,
who investigated his claim, conducted research, and drafted and filed his pleadings. By this time,
the printing of the ballots was completed and the ballots had been delivered to the local clerks.
The circuit court did not err by finding unexcused or unexplained delay, particularly in
light of plaintiff’s prior experience with elections. At the hearing on plaintiff’s motion, the circuit
court questioned the assertion made by plaintiff’s attorney that it took time to research the issue,
asking “what amount of research needed to be done in this particular matter other than what the
notary statute requires?” Although the circuit court did not make any specific finding regarding
the reason for plaintiff’s delay, it is apparent that the circuit court did not find the argument
persuasive. We agree that the explanation for the delay provided by plaintiff’s attorney was not
particularly compelling given the single issue in dispute and its nature as an election matter. In
addition, defendants sufficiently established a corresponding change in position that resulted in
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prejudice based on the printing and delivery of ballots to local clerks. Therefore, the circuit court
did not err by ruling that the doctrine of laches applied to bar plaintiff’s “11th hour” challenge.4
Affirmed. No costs, a significant question of public interest being involved.
/s/ Anica Letica
/s/ Kirsten Frank Kelly
/s/ James Robert Redford
4
We reject the Wayne County defendants’ argument that this appeal is moot, as we believe that
this issue is “publicly significant, likely to recur, and yet likely to evade judicial review.” Barrow
v Detroit Election Comm’n, 305 Mich App 649, 659-660; 854 NW2d 489 (2014) (quotation marks
omitted) (reviewing a similar issue under this doctrine more than six months after the winning
candidates took office).
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