Robert Davis v. Secretary of State

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

ROBERT DAVIS, FOR PUBLICATION

April 20, 2023

Plaintiff-Appellant, 9:10 a.m.

v No. 362841

Court of Claims

SECRETARY OF STATE, LC No. 22-000125-MM

Defendant-Appellee.

Before: O’BRIEN, P.J., and MURRAY and LETICA, JJ.

LETICA, J.

Plaintiff, Robert Davis, appeals as of right the Court of Claims order granting summary

disposition in favor of defendant, the Secretary of State, and denying his requests for a writ of

mandamus and declaratory relief. Plaintiff sought to remove judicial candidates that defendant

certified to appear on the election ballot, alleging that the candidates failed to comply with the

statutes governing the criteria for judicial candidacy. Specifically, plaintiff challenged five

candidates for the Third Circuit Court in Wayne County in the November 2022 general election,

submitting that they failed to comply with affidavit requirements in MCL 168.558. In light of the

allegedly deficient affidavits, plaintiff requested that defendant decertify those individuals from

the ballot. The Court of Claims concluded that plaintiff failed to establish some of his claimed

instances of noncompliance, and although he did prove others, he failed to timely commence suit,

such that relief was barred by the equitable doctrine of laches. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

According to Michigan’s Election Laws, MCL 168.1 et seq., a nonincumbent candidate for

circuit court in the August 2022 primary election and the November 8, 2022 general election was

required to submit to defendant a sufficient number of nominating petitions signed by qualified

and registered voters, MCL 168.413(1), while an incumbent circuit court judge could become a

candidate by filing an affidavit of candidacy with defendant, MCL 168.413a(1). In addition to

those requirements, under MCL 168.558(2), a candidate was required to file an affidavit of identity

(AOI) delineating the candidate’s name and residential address, the candidate’s United States

citizenship, the title of the office sought, and the candidate’s political party or a statement that the

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candidate was running without political party affiliation. Further, the candidate was required to

specify the term of the office, the date of the election, a statement that the candidate met the

constitutional and statutory qualifications for the office sought, the name as the candidate wished

it to appear on the ballot, and other information required to satisfy defendant as to the candidate’s

identity. Id. Two copies of the AOI must be filed. MCL 168.558(1). A sample AOI form, ED-

104, with a revision date of August 2019, provides:

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Section three of the form has a blank space, under which is written “political party, if a partisan

office. if running without party affiliation list ‘No Party Affiliation.’ ”1 Circuit court judges are

nonpartisan. Const 1963, Art VI, § 12.2

Incumbent Judge Mark Thomas Slavens (Slavens) submitted an AOI dated December 14,

2021. The AOI contained his name, address, the office name of Third Circuit Court Judge, and

the jurisdiction of the office in Wayne County. Slavens also specified the term of office, the date

of election, the incumbent nature of the position, and the acknowledgement of the affidavits of

candidacy and constitutional qualification. However, Slavens left the form line blank and did not

identify a political party or delineate that there was no party affiliation. Defendant recorded that

it received the filing on December 21, 2021. Following his submission, Slavens exchanged emails

with defendant’s representatives indicating that he complied with the statutory candidacy

requirements including the submission of two AOIs.3

Incumbent Judge Sheila Ann Gibson Manning4 (Gibson) submitted an AOI dated

January 28, 2022. Like Slavens, Gibson’s AOI addressed the information demonstrating her

qualifications to serve as an incumbent Wayne Circuit Court Judge. But she left line three of the

AOI blank and did not identify a party affiliation or specify that she had no party affiliation.

Defendant recorded that it received Gibson’s filing on February 8, 2022.

Incumbent Judge Kelly Ann Ramsey (Ramsey) submitted an AOI dated March 8, 2022.

Consistent with Slavens and Gibson, Ramsey completed the form to present the information

demonstrating her qualifications to serve as an incumbent Wayne Circuit Court Judge. Ramsey

also left line three of the AOI blank and did not identify a party affiliation or specify that she has

no party affiliation. Defendant recorded that it received Ramsey’s filing on March 9, 2022.

1

The current version of MCL 168.558(2), as amended by 2021 PA 158, states in part that the

“affidavit of identity must contain . . . the candidate’s political party or a statement indicating no

party affiliation if the candidate is running without political party affiliation.” This amendment

had an effective date of December 27, 2021.

2

“Circuit judges shall be nominated and elected at non-partisan elections in the circuit in which

they reside, and shall hold office for a term of six years[.]”

3

At the time Slavens submitted his AOI and its receipt by defendant, the version of

MCL 168.558(2) in effect contained no requirement that a candidate identify his political party or

provide a statement indicating no party affiliation. Rather, MCL 168.558(2) then read: “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.”

4

Gibson identified her name as “Sheila Ann Gibson” but requested that her name appear on the

ballot as “Sheila Gibson Manning.”

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Incumbent Judge Patricia Susan Fresard (Fresard) submitted an AOI dated March 15, 2022.

Consistent with the other incumbent judges, Fresard’s AOI addressed the information

demonstrating her qualifications to serve as an incumbent Wayne Circuit Court Judge. Fresard

also left line three of the AOI blank and did not identify a party affiliation or specify that she had

no party affiliation. Defendant recorded that it received Fresard’s filing on March 17, 2022.

Non-incumbent candidate LaKena Tennille Crespo filed an AOI dated April 19, 2022.

Crespo acknowledged that she was a non-incumbent and did not file an affidavit of candidacy.

Rather, she submitted 6,105 nominating petitions to be qualified for the ballot. Crespo completed

line three and addressed the questions of political party or no party affiliation by writing “N/A” in

the space provided. Defendant recorded that it received Crespo’s filing on April 19, 2022. Thus,

by the spring of 2022, all the AOIs were filed by plaintiff’s challenged candidates.5

On May 6, 2022, plaintiff filed a separate action seeking mandamus against the Highland

Park City Clerk and the Highland Park Election Commission, challenging the eligibility of Carlton

Clyburn Jr. (Clyburn) to be a candidate for mayor. Davis v Highland Park City Clerk, unpublished

per curiam opinion of the Court of Appeals, issued June 2, 2022 (Docket No. 361544), slip op at

1-2. Specifically, plaintiff alleged that Clyburn failed to comply with MCL 168.558(2) because

he left the space blank where it requested designation of a political party or no party affiliation.

Therefore, plaintiff alleged that mandamus relief was warranted because Clyburn had to be

excluded from the ballot for his noncompliance with applicable election law. Id. at 2-3. This

Court granted the request to expedite the appeal and concluded that the trial court erred by failing

to grant mandamus relief because Clyburn did not comply with MCL 168.558(2). Id. at 2 n 2, 3-

4.

Despite plaintiff’s involvement in the mandamus action to remove Clyburn under

MCL 168.558(2), he did not file the underlying action for mandamus and declaratory relief against

the challenged judicial candidates until August 16, 2022, nearly four months after the last AOI was

filed by the challenged candidates. Plaintiff’s complaint sought (1) a declaratory judgment that

the AOIs filed by Fresard, Ramsey, Gibson, and Crespo did not comply with MCL 168.558(2) and

that defendant’s certification of their names to the Wayne County Election Commission was void

and unenforceable as a result, (2) a declaratory judgment that all of the challenged candidates failed

to comply with MCL 168.558(1) because they did not submit two copies of their AOIs and that

defendant’s certification of their names to the Wayne County Election Commission was void and

unenforceable as a result, and (3) a writ of mandamus to remove the challenged candidates’ names

from the list of candidates certified by defendant to the Wayne County Election Commission.

In lieu of an answer, defendant moved for summary disposition. Defendant explained that

it had accepted the challenged candidates’ AOIs because, at the time, the Bureau of Elections

believed that no party affiliation statement was necessary because the judicial candidates were

nonpartisan. Defendant recognized that it had, since that time, been ordered to disqualify a

candidate for failing to fill out the affiliation line, but defendant declined to apply that order

5

The phrase “challenged candidates” will refer to all five judicial candidates that plaintiff sought

to remove from the November 8, 2022 general election ballot.

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retroactively to others because the order was not binding precedent, and in any event, there was no

mechanism for it to do so.6 In light of the requirement that defendant certify all proposals and

candidates by September 9, 2022, MCL 168.648, a mere 24 days after plaintiff filed his complaint,

defendant submitted that laches should apply to bar plaintiff’s challenges in this matter. It also

alleged that Crespo’s affidavit complied with MCL 168.558(2) because the statute did not require

any specific wording and “N/A” should be understood as sufficient. Defendant did not address

plaintiff’s claim that the challenged candidates failed to file two copies of their AOIs.

Slavens submitted an amicus brief, noting that he had executed his AOI on December 14,

2021, and it had been received by defendant on December 21, 2021. At the time of his submission

and defendant’s receipt, the effective version of MCL 168.558(2), as then amended by 2018 PA

650, did not require any statement regarding party affiliation.7 He further provided documentation

to demonstrate that he had filed the required two copies of his AOI in the form of e-mail

correspondence with a representative of defendant. Slavens was the only candidate to address

plaintiff’s claim that the challenged candidates failed to file the required number of AOI copies.

Crespo asserted that she complied with the requirement of MCL 168.558(2) by specifying that it

had no application.

The remaining challenged candidates also submitted amicus briefs, asserting that plaintiff

lacked standing, that plaintiff was not entitled to mandamus, and that plaintiff’s claims should be

barred by laches. They also alleged that it was unclear whether, as incumbent judges, they were

required to prepare AOIs, citing MCL 168.413a(1). Because judges were inherently nonpartisan

under the Michigan Constitution, they urged an interpretation of MCL 168.558(2) that applied

only to persons running for partisan offices without a political affiliation. And, they contended

that any interpretation to the contrary should be applied prospectively only, not retroactively.

Finally, they submitted that this action should be barred because plaintiff had filed parallel

litigation against them.

In response to the position proffered by defendant and the challenged candidates, plaintiff

alleged that the doctrine of laches should not apply because defendant had “unclean hands,” the

ballots had not yet been printed, and defendant would not suffer any prejudice. He submitted that

he had a proper reason for delaying the filing of his complaint in this matter: he wanted to see how

his other lawsuits were decided before commencing another action involving the same legal

arguments. Plaintiff contended that only Slavens tried to dispute his claim that the challenged

candidates failed to file two copies of their AOIs and that nothing submitted by Slavens

demonstrated statutory compliance. Plaintiff alleged that Crespo’s AOI did not comply with

MCL 168.558(2), because the statute required her to state “no party affiliation,” and the acronym

“N/A” was commonly understood to mean “not applicable.” Finally, he claimed that this matter

6

Defendant also noted that, plaintiff had filed another action two weeks before commencing the

litigation against the challenged candidates, in which the Court of Claims noted that the application

of laches was a “close call.” See Belcoure v Secretary of State, Court of Claims Case No. 22-

000117-MB.

7

Plaintiff never alleged that Slavens violated MCL 168.558(2).

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was not barred by his other pending litigation because those actions involved different defendants

and sought contrasting relief.

The Court of Claims dispensed with oral argument and issued a written decision on

September 2, 2022.8 It acknowledged that it made little sense for nonpartisan candidates to make

an affirmative declaration that they lacked party affiliation, but the statute nevertheless required

them to do so. The Court of Claims rejected plaintiff’s party-affiliation arguments regarding

Crespo and Slavens, in turn concluding that “N/A” was sufficient because the statute did not

require any particular language, and the version of the statute in effect when Slavens filled out and

filed his AOI did not require a statement of no party affiliation. It also concluded that Slavens had

provided evidence showing he had filed two copies of his AOI and plaintiff failed to contradict

that evidence. Accordingly, the Court of Claims entirely rejected plaintiff’s argument that Slavens

and Crespo failed to comply with MCL 168.558(2).

But the Court of Claims concluded that Fresard, Gibson, and Ramsey filed defective AOIs

because they were required to make an affirmative declaration of no party affiliation and failed to

do so. The Court of Claims never addressed the issue of how many copies of their AOIs were

filed. Nevertheless, the Court of Claims also concluded that plaintiff was not entitled to mandamus

or declaratory relief. It noted that plaintiff had raised the same challenge to an AOI in another

matter months earlier that alerted the candidate to the issue of deficiencies in an AOI. In contrast,

plaintiff failed to act with diligence in this matter, having waited approximately four months after

the last AOI was submitted and having failed to contact any of the challenged candidates in

advance. The Court of Claims also concluded that defendant, Fresard, Gibson, and Ramsey would

be prejudiced by a ruling in plaintiff’s favor in light of plaintiff’s dilatory conduct despite the clear

statutory mandate of MCL 168.558(2), stating:

Each candidate here submitted their AOI in late 2021 or early 2022. The

last incumbent AOI (Fresard’s AOI) was submitted on March 17, 2022. And

Crespo (a nonincumbent) submitted her AOI on April 19, 2022. But [plaintiff]

waited to seek relief in [the Court of Claims] until mid-August 2022-about four

months after the last AOI was submitted. [Plaintiff] did not contact defendant in

advance[.] [Plaintiff] points out that he filed an earlier action in the Third Circuit

Court in late July 2022, but this was still months after the candidates filed their

AOIs. [Plaintiff] offers no explanation for his delay, leading [the Court of Claims]

to the conclusion that [plaintiff] simply sat on his hands for months.

8

The Court of Claims consolidated two other actions, 22-000141-MZ and 22-000143-MZ, in

which, taken together, Slavens, Fresard, Ramsey, and Gibson had sued for declaratory and

injunctive relief on the same set of facts. No appeal from either of those cases is pending in this

Court. We infer from the Court of Claims’ order that 22-000141-MZ was a claim for declaratory

and injunctive relief by Slavens, which the trial court granted in its entirety; and 22-000143-MZ

was a claim for declaratory and injunctive relief by Fresard, Ramsey, and Gibson, which the trial

court granted in part, limited to its determination that plaintiffs failed to establish entitlement to

mandamus or other relief.

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The Court further concludes that allowing the matter to proceed despite

[plaintiff’s] dilatory conduct would result in undue prejudice to defendant and staff,

who would have to expend significant additional time and resources overseeing the

revision of new ballots in one of Michigan’s most populous counties. More

specifically, [defendant] must inform the counties of which candidates will appear

on the ballot by September 9, 2022, and must print absentee ballots by

September 24, 2022. A ruling in [plaintiff’s] favor would require [defendant’s]

office to alter its election planning at the eleventh hour or, frankly, given the

realities of how long any reasonable appellate review would take, at the thirteenth

hour. The Court similarly recognizes the prejudice to the candidates, who have

expended significant time, energy, and resources on their campaigns. Lastly, the

Court observes that the failure to state affirmatively that a judicial candidate is

running without a partisan designation has little practical import to electors as a

judicial candidate cannot—by operation of law—run as a partisan. All of these

considerations weigh against any equitable relief for plaintiff.

Although [the] Court cannot, and will not, ignore the Legislature’s clear

directive in MCL 168.558(2) . . . the relief requested by [plaintiff] is an

extraordinary one, and to be entitled to such relief, [plaintiff] needed to act with

much more diligence than he did here. The Court will exercise its equitable

authority and, under the doctrine of laches, it will decline to order a writ of

mandamus or other similar relief to [plaintiff].

Accordingly, the Court concludes that [plaintiff’s] challenge to Fresard’s,

Gibson’s, and Ramsey’s AOIs is barred by the equitable doctrine of laches.

[Plaintiff’s] challenges to Crespo’s and Slavens’s AOIs fail on their merits.

When the Court of Claims rendered its decision, defendant was required to certify

candidates within seven days or by September 9, 2022, MCL 168.648, and absentee ballots had to

be printed in 22 days or by September 24, 2022. Plaintiff filed this claim of appeal on September 2,

2022, and contemporaneously moved for immediate consideration and to expedite the appeal. This

Court denied plaintiff’s motion to expedite. Davis v Secretary of State, unpublished order of the

Court of Appeals, entered September 6, 2022 (Docket No. 362841). Plaintiff then filed an

interlocutory application for leave to appeal in our Supreme Court, which it denied. Davis v

Secretary of State, ___ Mich ___; 979 NW2d 202 (2022). In this Court, plaintiff renewed his

motion to expedite the appeal and moved for a stay, but we denied both motions. Davis v Secretary

of State, unpublished order of the Court of Appeals, entered September 20, 2022 (Docket

No. 362841).

The general election took place on November 8, 2022. Judges Fresard, Ramsey, Gibson,

and Slavens won re-election. Crespo was not elected as a Wayne County circuit judge.

II. STANDARDS OF REVIEW

The interpretation and application of statutes, rules, and legal doctrines are reviewed de

novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).

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In an action seeking mandamus and declaratory relief, the plaintiff bears the burden of

proof. See Gracey v Grosse Pointe Farms Clerk, 182 Mich App 193, 203; 452 NW2d 471 (1989).

Although equity cases are themselves reviewed de novo, as is the applicability and interpretation

of equitable doctrines, the propriety of the actual relief granted by the trial court is strictly

discretionary and depends on the facts of the particular case. Tkachik v Mandeville, 487 Mich 38,

44-46; 790 NW2d 260 (2010). A trial court abuses its discretion when it chooses an outcome

falling outside the range of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372,

388; 719 NW 2d 809 (2006).

A trial court’s ruling on a motion for summary disposition is reviewed de novo. Houston

v Mint Group, LLC, 335 Mich App 545, 557; 968 NW2d 9 (2021). Although defendant’s motion

for summary disposition was brought under MCR 2.116(C)(8) (failure to state a claim upon which

relief can be granted), the Court of Claims clearly considered materials beyond the pleadings, so

the motion must be considered to have been granted under MCR 2.116(C)(10). See Cary

Investments, LLC v City of Mount Pleasant, ___ Mich App ___, ___; ___ NW2d ___ (2022)

(Docket No. 356707); slip op at 3-4. Summary disposition is appropriate under MCR 2.116(C)(10)

where there is “no genuine issue as to any material fact, and the moving party is entitled to

judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). When reviewing a motion

for summary disposition challenged under MCR 2.116(C)(10), the court considers the affidavits,

pleadings, depositions, admissions, and other documentary evidence then filed in the action or

submitted by the parties in the light most favorable to the nonmoving party. MCR 2.116(G)(4),

(G)(5); Buhl v City of Oak Park, 507 Mich 236, 242; 968 NW2d 348 (2021).

III. ANALYSIS

A. MOOTNESS

The parties contest whether this Court may address the merits of the litigation, disputing

whether the completed election and certification of the results renders the issues moot.

Mootness is a threshold issue that must be addressed before any substantive issues in a

case. Can IV Packard Square, LLC v Packard Square, LLC, 328 Mich App 656, 661; 939 NW2d

454 (2019). Courts typically refrain from deciding issues that are moot when “it is impossible for

the court to craft an order with any practical effect on the issue.” Moore v Genesee Co, 337 Mich

App 723, 726-727; 976 NW2d 921 (2021).

In this case, plaintiff sought to remove the placement of challenged candidates on the ballot

for the November 2022 election, which has, undisputedly, now passed. The fact that the 2022

election is a historical event presumptively renders plaintiff’s challenges moot. Barrow v Detroit

Election Comm, 305 Mich App 649, 659; 854 NW2d 489 (2014). But legal questions affecting

election ballots, such as AOI requirements, are the classic example of an issue that the courts will

nevertheless review as matters of public significance that are likely to recur yet evade judicial

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review. See Moore, 337 Mich App at 726-727. Because this issue may recur, but evade judicial

review, we will address the merits of plaintiff’s challenge.9

B. LACHES

Plaintiff contends that the Court of Claims erred in applying laches to bar his requested

mandamus and declaratory relief after it concluded that Fresard, Gibson, and Ramsey failed to

submit AOIs in compliance with MCL 168.558(2). We disagree.

Mandamus is a legal remedy, but mandamus proceedings are essentially equitable in

principle. Franchise Realty Interstate Corp v Detroit, 368 Mich 276, 279; 118 NW2d 258 (1962);

McRae v Auditor General, 146 Mich 594, 596; 109 NW 1122 (1906). A writ of mandamus is the

appropriate remedy for a party seeking to compel action by election officials. Attorney General v

Bd of State Canvassers, 318 Mich App 242, 248; 896 NW2d 485 (2016). It is an extraordinary

remedy, and the plaintiff bears the burden of demonstrating entitlement to the requested relief. Id.

at 249. The decision to issue a writ of mandamus rests in the sound discretion of the court. Id. at

248-249. Declaratory relief is also equitable in nature, and a remedy best left to the discretion of

the court. Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 221; 761 NW2d 293 (2008).

Laches is an equitable tool that may be used to remedy the inconvenience or prejudice

caused to a party because of an improper delay in asserting a right. Public Health Dep’t v Rivergate

Manor, 452 Mich 495, 507; 550 NW2d 515 (1996). The issue of whether relief will be withheld

on the basis of laches is contingent upon the facts and circumstances of the particular case.

Henderson v Connolly’s Estate, 294 Mich 1, 19; 292 NW 543 (1940). When no acceptable

explanation is proffered for a plaintiff’s delay, a plaintiff’s requested relief should be barred by

unexcused laches. Id. Rather equity will aid the vigilant, not those that slumber on their rights.

Id. The purpose of the rule is to promote diligence, discourage laches, and prevent the enforcement

of stale demands. Id. As the Court of Claims observed, legal challenges that affect elections are

especially prone to causing profound harm to the public and to the integrity of the election process

the closer in time those challenges are made to the election, making laches especially appropriate

to apply in such matters. Purcell v Gonzalez, 549 US 1, 4-6; 127 S Ct 5; 166 L Ed 2d 1 (2006);

New Democratic Coalition v Secretary of State, 41 Mich App 343, 356-357; 200 NW2d 749

(1972).10 “[E]lections require the existence of a reasonable amount of time for election officials

to comply with the mechanics and complexities of our election laws.” Id. at 356. “Courts can

reasonably endeavor to avoid unnecessarily precipitate changes that would result in immense

administrative difficulties for election officials.” Id. at 357.

9

We are aware that 2023 HB 4076 is pending and would amend MCL 168.558(2) to require that

only candidates seeking nomination or election to a partisan office must designate their political

party or state that they have no party affiliation.

10

Although published decisions of this Court issued prior to November 1, 1990, are not strictly

binding on this Court, all published decisions of this Court are precedential under the rule of stare

decisis and generally should be followed. In re Guardianship of Bazakis, ___ Mich App ___, ___

n 4; ___ NW2d ___ (2022) (Docket No. 358276); slip op at 5 n 4, lv pending.

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Plaintiff challenges the propriety of applying laches in this case. Specifically, he submits

that laches is unavailable to defendant because it has “unclean hands.” A defendant who has acted

inequitably or in bad faith may not avail itself of the equitable doctrine of laches. Attorney General

v Thomas Solvent Co, 146 Mich App 55, 66; 380 NW2d 53 (1985). Equity does not require

complete blamelessness, but rather that a party has not acted in bad faith regarding the matter in

which relief is sought; furthermore, it should take into account possible injury to the public.

Precision Instrument Mfg Co v Automotive Maintenance Machinery Co, 324 US 806, 814-815; 65

S Ct 993; 89 L Ed 1381 (1945).

Plaintiff submits that defendant has unclean hands because it “acted in violation of law” by

failing to enforce MCL 168.558(2) in accordance with the Court of Claims’ interpretation. But

this case raised a challenge to statutory language, a question of law. GMAC LLC v Dep’t of

Treasury, 286 Mich App 365, 380; 781 NW2d 310 (2009). The duty to interpret and apply the

law belongs to the courts. Id. Moreover, defendant explained that it did not require a statement

of no party affiliation be placed on the AOI form because judicial offices by their nature are

nonpartisan and not as an act of defiance of the statutory law. 11 Plaintiff has not shown that

defendant engaged in the kind of misconduct that would constitute “unclean hands.”12

11

Defendant further proffered that it would apply the legal interpretations rendered by the courts

during the next election cycle by rejecting AOIs that did not comply with MCL 168.558(2) in

accordance with those legal opinions and notifying candidates of the deficiency.

Additionally, we note that three Michigan Supreme Court justices have expressed serious

concerns about the clarity and applicability of the statement-of-party-affiliation requirement in

MCL 168.558(2), whether it should apply to intrinsically nonpartisan candidates, and whether

legislative action is warranted. See generally Davis v Highland Park City Clerk, 509 Mich 1029,

1029-1030; 974 NW2d 550 (2022) (WELCH, J., joined by BERNSTEIN, J., dissenting); see also

Davis v Highland Park City Clerk, ___ Mich ___, ___; 979 NW2d 202 (2022) (VIVIANO, J.,

concurring, and WELCH, J., joined by BERNSTEIN, J., dissenting); slip op at pp 3-10. These orders

did not reach a substantive holding and do not constitute binding precedent. See Woodring v

Phoenix Ins Co, 325 Mich App 108, 115; 923 NW2d 607 (2018). In the absence of binding

authority, this Court is free to regard a single justice’s opinion as persuasive. See Summers v

Detroit, 206 Mich App 46, 50; 520 NW2d 356 (1994). At a minimum, the separate opinions by

Justices Viviano and Welch suggest that defendant did not hold a clearly unreasonable belief that

the challenged candidates’ AOIs were facially proper. In other words, defendant was not trying to

evade the law, but rather honestly believed it was following the law.

12

We affirm the Court of Claims’ determination that laches barred plaintiff’s request for

extraordinary equitable relief in the form of mandamus or declaratory judgment in light of the facts

and circumstances of this case. Plaintiff acknowledged that he was aware of legal interpretations

of MCL 168.558(2) addressing AOIs and party affiliation and did not promptly act because he

wanted to wait until his other legal challenges resolved. This was not an acceptable explanation

for the delay. Public Health Dep’t, 452 Mich at 407 (quotation marks and citation omitted) (“The

doctrine of laches is a tool of equity that may remedy the general inconvenience resulting from

delay in the assertion of a legal right which it is practicable to assert.”); Henderson, 294 Mich

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Furthermore, plaintiff has also not shown that defendant’s conduct stymied plaintiff’s

ability to commence this action sooner. See Thomas Solvent Co, 146 Mich App at 66 (the

defendant could not avail itself of laches because it repeatedly refused to conduct tests reasonably

requested by the plaintiff that would have revealed contamination caused by the defendant at an

earlier date). This was also not a case in which the challenged candidates were substantively

ineligible to hold office and falsified their AOIs, see Davis v Chatman, 292 Mich App 603, 619-

622; 808 NW2d 555 (2011), and where defendant actually found any falsification. In addition, the

public would suffer no real harm as an affirmative declaration of no party affiliation, while

mandatory, has little practical effect when a judicial candidate must appear on the nonpartisan

portion of the ballot. In short, plaintiff misapprehends what “unclean hands” means, and the trial

court did not err by refusing to apply it to preclude defendant from availing itself of the doctrine

of laches.

Plaintiff further alleges that laches cannot apply because equitable doctrines are

inapplicable where a remedy is provided by statute, citing Gleason v Kincaid, 323 Mich App 308,

318; 917 NW2d 685 (2018). However, “the Michigan Election Law does not set forth any explicit

procedure for resolving challenges to AOIs.” Moore, 337 Mich App at 732. And because

mandamus and declaratory relief are themselves equitable in nature, there is no sound basis for

concluding that equitable defenses, including laches, should not apply.

Lastly, plaintiff submits that the Court of Claims was required to either apply the doctrine

of laches to bar his entire lawsuit or to refrain from invoking laches at all. The law, however,

favors determinations on the merits, Alken-Zeigler, Inc v Waterbury Headers Corp, 461 Mich 219,

229; 600 NW2d 638 (1999), and courts are free to address any or all of the parties’ arguments in

rendering their decisions. Consequently, the Court of Claims was entitled to render a

determination regarding laches and also address whether Slavens’s and Crespo’s AOIs complied

with the MCL 168.552. This claim of error has no merit.

C. TWO AFFIDAVITS OF MERIT

Plaintiff alleges that the Court of Claims erred by failing to determine that the challenged

candidates did not submit two copies of their AOIs as required by MCL 168.558(1). We disagree.

Mandamus is an extraordinary remedy, and the plaintiff bears the burden of demonstrating

entitlement to the requested relief. Attorney Gen, 318 Mich App at 249. The plaintiff also bears

the burden of establishing entitlement to declaratory relief. Gracey, 182 Mich App at 203. In the

nearly four-month period between the filing of the AOIs by the challenged candidates and

plaintiff’s filing in the Court of Claims, there is no indication that he inquired of or sought from

defendant an affidavit by its employees attesting to the number of AOIs each challenged candidate

at 19. Therefore, applying laches was appropriate because equity will aid the vigilant, not those

that slumber on their rights. Id.

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submitted and whether they complied with MCL 168.558(1). Plaintiff simply failed to meet his

burden of proof.13 This claim of error does not entitle him to appellate relief.

D. CRESPO AOI “N/A”

Lastly, plaintiff contends that Crespo’s designation of “N/A” on the AOI failed to comport

with MCL 168.558(2) because it did not specifically state “no party affiliation.” We disagree.

“The primary goal of statutory interpretation is to give effect to the intent of the

Legislature.” Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 76; 780 NW2d 753 (2010).

The plain language of the statute presents the most reliable evidence of legislative intent. Id. If

the language of a statute is clear and unambiguous, the courts presume that the Legislature intended

the meaning plainly expressed in the statute. Id.

At the time Crespo filed her AOI, MCL 168.558(2) provided, in pertinent part, that an AOI

must contain “the candidate’s political party or a statement indicating no party affiliation if the

candidate is running without political party affiliation.” The Court of Claims determined that

“N/A” commonly referenced “not applicable” and satisfied MCL 168.558(2). Although plaintiff

submits that Crespo was required to state “no party affiliation,” the plain language of

MCL 168.558(2) did not require any specific terms be utilized to satisfy the criteria. Accordingly,

the Court of Claims did not err.

Affirmed.

/s/ Anica Letica

/s/ Colleen A. O’Brien

/s/ Christopher M. Murray

13

Plaintiff submits that the documentary evidence submitted by Slavens was insufficient to

demonstrate compliance with MCL 168.558(1). Again, plaintiff failed to present any evidence to

demonstrate noncompliance and entitlement to mandamus or declaratory relief.

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