William 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.

STATE OF MICHIGAN

COURT OF APPEALS

WILLIAM BAILEY, FOR PUBLICATION

April 21, 2022

Plaintiff-Appellant, 9:20 a.m.

v No. 357838

Antrim Circuit Court

ANTRIM COUNTY, LC No. 2020-009238-CZ

Defendant-Appellee,

and

SECRETARY OF STATE,

Intervening Defendant-Appellee.

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 Const 1963, art 2,

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§ 4(1)(h), and violations of MCL 600.4545(2), MCL 168.765(5), and MCL 168.861. Plaintiff

requested that the trial court

A. 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.

B. 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 MCR 2.116(C)(4) (lack of subject matter

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jurisdiction) and (C)(8) (failure to state a claim). Defendants argued that plaintiff’s claims were

moot, that plaintiff lacked standing to bring several of the claims, and that plaintiff’s claims failed

as a matter of law. Plaintiff opposed the motion and moved to amend the complaint. Plaintiff also

argued that the trial court should permit further discovery before ruling on the motion for summary

disposition.

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 [Const 1963, art 2, § 4(1)(h)] or [MCL

168.31a], for the independent audit that [plaintiff] seeks. A petitioner under Article II, Section 4

does not get to choose his own audit criteria.” Rather, the trial court concluded that audits are to

be conducted “according to the law” and that an audit had already been conducted. The trial court

dismissed plaintiff’s claims in a May 2021 order and declined to rule on plaintiff’s motion to

amend the complaint. This appeal followed.

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.

MCR 7.202(6)(a)(i) defines “final order” as “the first judgment or order that disposes of

all the claims and adjudicates the rights and liabilities of all the parties. . . .” In this case, the trial

court’s May 2021 order granted summary disposition in favor of defendants. Because there was

“nothing left for the trial court to decide after it granted summary disposition. . . ,” we conclude

that the court’s May 2021 order was a final order appealable by right. Rooyakker & Sitz, PLLC v

Plante & Moran, PLLC, 276 Mich App 146, 148 n 1; 742 NW2d 409 (2007). The fact that the

trial court may have continued to rule on motions after the May 2021 order was entered does not

change the fact that the May 2021 order was a final order.

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

A. 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.

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B. 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 reaches the right result, even if for the wrong reason. Gleason v Mich Dep’t of

Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003) (“A trial court’s ruling may be upheld on

appeal where the right result issued, albeit for the wrong reason.”). For the following reasons, we

conclude that summary disposition was proper under MCR 2.116(C)(8).2

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

1

Because the mootness doctrine does not apply, we need not consider whether the trial court

improperly analyzed whether summary disposition under that doctrine was proper under

MCR 2.116(C)(4).

2

We question whether the relief requested by plaintiff is meaningful because the evidence that

plaintiff seeks to gather would only be useful if an avenue remained open for him to challenge the

election results.

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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 under MCR 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

Const 1963, art 2, § 4(1)(h), provides that “[e]very citizen of the United States who is an

elector qualified to vote in Michigan shall have” “[t]he right to have the results of statewide

elections audited, in such a manner as prescribed by law, to ensure the accuracy and integrity of

elections.” Const 1963, art 2, § 4(1) further provides:

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.

MCL 168.31a, which was amended by 2018 PA 603 after the adoption of the

aforementioned audit language, provides:

(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

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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 MCL 168.31a(2). The statutory language does not allow private citizens to conduct

independent audits, and we are not permitted to read words into the plain language of a statute.

Byker v Mannes, 465 Mich 637, 646-647; 641 NW2d 210 (2002) (“It is a well-established rule of

statutory construction that this Court will not read words into a statute.”). Because plaintiff is not

entitled to conduct his own independent audit, plaintiff’s claim under Const 1963, art 2, § 4(1)(h)

fails as a matter of law.

We note that, on appeal, plaintiff challenges the constitutionality of MCL 168.31a and

argues that a constitutionally sufficient audit was not performed by the Secretary of State.

However, plaintiff failed to plead these claims in his complaint,3 so we will not address plaintiff’s

arguments on appeal concerning the constitutionality of MCL 168.31a and whether the audit was

“constitutionally sufficient. . . .” See Lenawee Co v Wagley, 301 Mich App 134, 160; 836 NW2d

193 (2013) (“A party is bound by [his or her] pleadings, and it is not permissible to litigate issues

or claims that were not raised in the complaint. . . .”) (quotation marks and citations omitted).

Plaintiff’s claim under Const 1963, art 2, § 4(2) also fails. That provision provides:

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 Michigan

3

Although plaintiff later sought to add this claim, it would not have been proper for the trial court

to permit plaintiff to amend the complaint for the reasons discussed later in this opinion.

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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 Const 1963, art 2, § 4(2) does not create an individual right to

conduct an audit, plaintiff’s claim under Const 1963, art 2, § 4(2) fails as a matter of law.

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 of MCR 3.306(B)(2)—and are pursued against a person in

public office by one who seeks to challenge that person’s right to hold office, 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 MCL

168.861 and asserted that an “action may be brought to remedy fraudulent or illegal voting or

tampering with ballots or ballot boxes before a recount pursuant to MCL 168.861. . . .”5 However,

MCL 168.861 does not provide plaintiff with an independent cause of action. See Hanlin, 299

Mich App at 242 (“MCL 168.861 was intended as a saving clause rather than an independent cause

4

We note that a citizen must obtain leave of the trial court before proceeding with a claim for quo

warranto. MCR 3.306(B)(3)(b). In this case, rather than determining whether plaintiff should be

granted leave to proceed by quo warranto, the trial court decided plaintiff’s claims for quo warranto

under summary disposition standards.

5

MCL 168.861 provides that, “[f]or fraudulent or illegal voting, or tampering with the ballots or

ballot boxes before a recount by the board of county canvassers, the remedy by quo warranto shall

remain in full force, together with any other remedies now existing.”

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of action.”). Thus, the trial court properly dismissed plaintiff’s quo warranto claim brought under

MCL 168.861.

With respect to plaintiff’s quo warranto claim that was brought under MCL 600.4545,

MCL 600.4545(1) 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.”

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, MCL 600.4545(1) 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.” There are no allegations in the complaint to support that the purported

irregularities in Antrim County “might have affected the outcome” of the presidential election, as

the cited case law clearly requires. See Barrow, 290 Mich App at 542 (in order to establish a quo

warranto claim, a plaintiff must establish that the purported fraud or error “might have affected the

outcome of the election”).

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 under MCR

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

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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.

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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 and

inadmissible hearsay evidence when deciding the motion for summary disposition.7 We need not

consider this argument, however, given that summary disposition was proper under MCR

2.116(C)(8) for the reasons already discussed. See El-Khalil, 504 Mich at 159 (“A motion under

6

Plaintiff’s complaint also contained an allegation that Antrim County violated MCL 168.765(5).

Plaintiff does not argue on appeal that the trial court erred by dismissing this claim. Therefore, we

will not address it.

7

Although the trial court referenced the Secretary of State’s press releases concerning the election,

the trial court did so when evaluating whether plaintiff’s claims were moot under MCR

2.116(C)(4).

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MCR 2.116(C)(8) tests the legal sufficiency of a claim based [only] on the factual allegations in

the complaint.”) (emphasis omitted).

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 MCR 2.116(C)(10) when the opposing party establishes that “further discovery

stands a fair chance of uncovering factual support for the opposing party’s position,” Marilyn

Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769

NW2d 234 (2009), summary disposition in this case was proper under MCR 2.116(C)(8). Thus,

permitting plaintiff to complete the scheduled depositions would have been futile. Based on this

conclusion, it is not necessary to consider plaintiff’s argument that the trial court abused its

discretion when it denied plaintiff’s motion to adjourn oral argument on defendants’ motion for

summary disposition.

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.

MCR 2.116(I)(5) requires a trial court to “give the parties an opportunity to amend their

pleadings as provided by MCR 2.118” if the grounds for summary disposition are based on MCR

2.116(C)(8) “unless the evidence then before the court shows that amendment would not be

justified.” “[L]eave [to amend] should ordinarily be denied only for particularized reasons such

as undue delay, bad faith or dilatory motive, repeated failures to cure by amendments previously

allowed, or futility.” Decker v Rochowiak, 287 Mich App 666, 681-682; 791 NW2d 507 (2010)

(quotation marks and citation omitted). With respect “to undue delay, delay, alone, does not

warrant denial of a motion to amend. However, a court may deny a motion to amend if the delay

was in bad faith or if the opposing party suffered actual prejudice as a result.” Id. (alteration,

quotation marks, and citation omitted). “Prejudice to a defendant that will justify denial of leave

to amend arises when the amendment would prevent the defendant from having a fair trial.” Knauff

v Oscoda Co Drain Comm’r, 240 Mich App 485, 493; 618 NW2d 1 (2000). Importantly, “[t]he

prejudice must stem from the fact that the new allegations are offered late and not from the fact

that they might cause the defendant to lose on the merits.” Id.

We conclude that prejudice would have resulted if the trial court had permitted plaintiff to

amend the complaint. On November 23, 2020, plaintiff filed the original six-count complaint

against Antrim County. Shortly thereafter, the trial court entered the protective order and

8

Although discovery had already closed at the time the trial court decided defendants’ joint motion

for summary disposition, plaintiff had yet to take several depositions. The trial court permitted

the depositions to be conducted after the close of discovery.

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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 MCL 168.31a. The

proposed first-amended complaint also alleges that the proposed defendants engaged in multiple

constitutional and statutory violations and that they engaged in fraud and civil conspiracy. Plaintiff

also sought to challenge certain election results and to obtain injunctive relief, declaratory relief,

monetary damages, fees, and costs.

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

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