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ROBERT DAVIS, UNPUBLISHED

November 21, 2023

Plaintiff-Appellant,

v No. 363793

Court of Claims

SECRETARY OF STATE, LC No. 20-000196-MZ

Defendant-Appellee.

Before: PATEL, P.J., and BOONSTRA and RICK, JJ.

PER CURIAM.

Plaintiff appeals as of right two orders of the Court of Claims, one granting summary

disposition in favor of defendant, and the other granting defendant’s motion to compel plaintiff’s

appearance at a deposition and imposing sanctions for his failure to attend a previously scheduled

deposition. We affirm.

I. FACTUAL BACKGROUND

Plaintiff is a registered and qualified elector in Michigan. In September 2020, plaintiff

filed a complaint in the Court of Claims, alleging, among other counts, that defendant Secretary

of State violated MCL 168.759 by creating a website that allowed registered voters to apply online

for an absentee voter (AV) ballot.1 Plaintiff sought a declaratory judgment that the online

application process violated the applicable statute and constituted a “rule” that had not been

promulgated in accordance with the Administrative Procedures Act (APA), MCL 24.201 et seq.

He asked the court to enjoin defendant from processing online AV applications on behalf of local

clerks. In a separate claim, plaintiff sought relief under the Freedom of Information Act (FOIA),

1

Plaintiff’s complaint, after amendment, alleged four claims against defendant. Counts I and III

were dismissed by the Court of Claims. Plaintiff does not appeal those dismissals.

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MCL 15.231 et seq. There, he alleged that he had e-mailed a request to defendant under FOIA for

“an unredacted copy of Judicial Candidate Nicholas Joh [sic] Hathaway’s affidavit of identity,”2

but that defendant failed to respond to the request. Plaintiff believed this alleged failure occurred

because defendant secretly supported Hathaway’s candidacy.3 Plaintiff sought sanctions and a

declaratory judgment that defendant unlawfully, deliberately, arbitrarily, and capriciously refused

to disclose a document that was not exempt from disclosure.

In September 2022, after nearly two years of litigation, the Court of Claims entered the

referenced order compelling plaintiff’s deposition. The court awarded discovery sanctions to

defendant. Defendant thereafter moved for summary disposition. The Court of Claims granted

defendant’s motion in an opinion and order issued in October 2022. Because the factual basis for

each of plaintiff’s appealed issues is nearly entirely separate from the others, except for the parties

involved, we will separately summarize the underlying facts for each of them before turning to an

analysis of the issues on appeal.

A. ELECTION-LAW CLAIM

Before the primary election was held in August of 2020, defendant established an AV ballot

application website.4 The AV ballot application website allows users to enter the information they

would otherwise have placed on a paper AV ballot application. The website then transmits the

application to the appropriate local clerk for processing. Michellena Belton, the individual

primarily responsible for overseeing the AV ballot application website, explained that in the past,

some local clerks would accept AV ballot applications by facsimile transmission or e-mail.

However, either option would have required voters to print out the application and manually sign

it before submitting it to the clerk. Belton asserted that the website was created for at least three

major reasons: to permit electronic applicants to skip the step of printing, to reduce the number of

2

Hathaway’s full name is “Nicholas John Hathaway.” See State Bar of Michigan Member

Directory <https://www.michbar.org/memberdirectory/detail/id=69631> (accessed July 10,

2023).

3

Hathaway was not elected to the Third Circuit bench in the 2020 election. See Election Summary

Report, November 3, 2020–General Election, Wayne County, Michigan Official Results

<https://www.waynecounty.com/ documents/clerk/!electionsum_11032020.pdf> (accessed

July 10, 2023). However, Hathaway was elected to the Third Circuit bench in the 2022 election.

Election Summary Report, November 8, 2022–General Election, Wayne County, Michigan Official

Results <https://www.waynecounty.com/documents/ clerk/official_summary_11822.pdf>

(accessed July 10, 2023).

4

The website is available at <https://mvic.sos.state.mi.us/AVApplication/Index>. The website

bears the caption of “Michigan Online Absent Voter Ballot Application.” To avoid confusing the

website with an actual AV ballot application, we will refer to it as the AV ballot application

website.

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people voting in person, and to minimize reliance on the United States Postal Service. This

information was confirmed by Bureau of Elections Director Jonathan Brater.

Plaintiff alleged that he had received a postcard, mailed by defendant, inviting recipients

to apply for an AV ballot using the website. Brater and Belton both explained that the AV ballot

application website would collect information from users for forwarding to local clerks, who

would actually process the AV ballot applications. Because the website made use of an electronic

signature, it required the applicant to have a signature already on file with the Department of State

from the applicant’s state identification or driver’s license. The applicant must also already have

been a registered voter. The applicant would “sign” the application by authorizing the use of the

stored signature, whereupon the system would import the applicant’s information directly into the

applicant’s qualified voter file (QVF).5 The system would then notify the applicant’s local clerk

of the application. The system did not, itself, store any of the applicant’s personal information.

Local clerks had their own accounts to log into the QVF, and would remain obligated to verify the

genuineness of the applicant’s signature, no matter how the application was submitted. Clerks

were only permitted to mail an AV ballot if the signatures matched. The actual AV ballot received

by the voter would be the same regardless of the method used to make the request.

Plaintiff testified at his deposition that he had signed in to the AV ballot application website

“just to see how it operated,” but had not actually used it to register for an AV ballot. Plaintiff

requested a declaratory judgment from the Court of Claims regarding the AV ballot application

website because he “was unsure whether or not [defendant] was violating the law or she had the

legal statutory authority to do what she was doing,” and that “[defendant’s] conduct was clearly

unlawful” based on his reading of MCL 168.759. Plaintiff also believed his vote could be

invalidated if he used the website. He speculated that he could have been injured because he was

“afraid to utilize this tool.” He claimed that as an elector, he had standing and a need to ensure

that defendant was properly administering and enforcing the law.

Defendant moved for summary disposition, which was granted by the Court of Claims. In

its opinion and order granting the motion, the Court of Claims held that plaintiff presented no

evidence substantiating the possibility of any harm to himself or anyone else arising from the use

of the website, opining that his “concern about the fate of his vote should he use the on-line system

appears to be of his own making.” It therefore held that plaintiff had not shown the existence of

an actual controversy such that the court could entertain plaintiff’s request a declaratory judgment.

The Court of Claims then proceeded to reject plaintiff’s argument “that all actions of an

administrative agency must be undertaken through rulemaking,” observing that the plain language

of MCL 168.31(1) empowered the Department of State to promulgate rules and to issue

5

The QVF has been described as “a statewide computer database of registered voters that is

available to election officials throughout the state, which enables them to track the process by

which people vote via AV ballots.” People v Hawkins, 340 Mich App 155, 162; 985 NW2d 853

(2022); see also MCL 168.509o. Among other things, the QVF must, if possible, be used by local

clerks to verify the genuineness of an AV ballot applicant’s signature. MCL 168.766.

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instructions. The court also noted that plaintiff never provided a copy of the postcard.6 In any

event, the court found it “difficult to see how a postcard explaining an optional means to order an

absentee ballot has the force of law given that no one is required to use it and no one is barred from

ordering an absentee ballot by other means.” The Court of Claims concluded that, if anything,

plaintiff should have brought a mandamus action.7 It granted summary disposition in favor of

defendant on plaintiff’s election-law claim.

B. FOIA CLAIM

On October 1, 2020, plaintiff sent an e-mail entitled “Copy of Affidavit of Identity Filed

by Nicholas John Hathaway, Candidate for Judge of the Third Circuit Court Wayne County,” to

several individuals employed by the Department of State. The body of the e-mail provided:

Pursuant to Michigan Election Law and Michigan’s Freedom of Information Act

(FOIA), I am respectfully requesting to be emailed a copy of the affidavit of identity

filed by Nicholas John Hathaway, who is a candidate for Judge of the Third Circuit

Court in Wayne County. Please send all responses, including a copy of Mr.

Hathaway’s filed affidavit of identity, to this email address. Can my request be

honored by the close of business today? Please advise.

Administrative law specialist Adam Fracassi determined that plaintiff’s e-mail did not comply with

“section 3 of the FOIA,” because it did not provide a mailing address. Fracassi concluded that he

did not need to respond to the request, but, “because it was one page,” Fracassi nevertheless chose

to provide plaintiff a redacted copy of Hathaway’s affidavit of identity (AOI) a few weeks later.

As produced, the AOI disclosed Hathaway’s birth year, but redacted his phone number, birth

month, and birth date. Fracassi testified at his deposition that various statutes, for example,

MCL 168.509gg, prohibited the disclosure of personal information.

The Court of Claims concluded that plaintiff had submitted a defective FOIA request

because he had not included his postal address as required by MCL 15.233(1), so defendant had

no duty to respond. The court stated that defendant “could have refiled his FOIA application

properly and received an unredacted copy but did not do so.” The Court of Claims rejected

plaintiff’s argument that his own noncompliance was a mere technicality that should be

overlooked. It therefore granted summary disposition in favor of defendant.

6

Although plaintiff never provided a physical copy of the postcard to the Court of Claims, he did

read most of the postcard out loud at his deposition. Plaintiff has also provided a copy of the

postcard on appeal. Because its substance was mostly provided below and there is no real dispute

about its accuracy, we will exercise our discretion to consider it. MCR 7.216(A)(4).

7

Very generally, a mandamus action is the proper remedy to compel a public official to comply

with a clear legal duty. Warren City Council v Buffa, ___ Mich App ___, ___ ; ___ NW2d ___

(2023) (Docket No. 365488); slip op at 12.

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C. SANCTIONS

On May 27, 2021, the Court of Claims entered a scheduling order that, in relevant part,

ordered the completion of discovery by May 23, 2022, with dispositive motions to be filed by

July 21, 2022. Plaintiff subsequently deposed Brater and Fracassi. On May 6, 2022, defendant

served plaintiff with notice of taking his deposition, which was scheduled for 10:00 a.m. on

May 23, 2022. Plaintiff informed defendant’s counsel that he would not be available in person at

that time, and they agreed to conduct plaintiff’s deposition by Zoom on the afternoon of May 23.

However, plaintiff then informed defendant’s counsel that he would not be available at that time

and asked to move the deposition to the early morning of May 23. Defendant’s counsel refused

plaintiff’s request to limit the deposition to no more than two hours and, instead, proposed two

alternative dates and times. On May 11, 2022, plaintiff advised defendant’s counsel that he was

unavailable on either date and that he would provide his own alternative dates. By May 19, 2022,

plaintiff had not provided any such dates, and, following prompting from defendant’s counsel, he

offered, in relevant part, May 27, 2022. Defendant’s counsel agreed to proceed with the deposition

at 10:00 a.m. on May 27.

On May 26, 2022, at 3:30 a.m., a court reporter e-mailed plaintiff a Zoom link for his

deposition scheduled for May 27, 2022, at 10:00 a.m. A few hours later, plaintiff responded that

he would need to start his deposition at 11:30 a.m. instead “[d]ue to an unexpected emergency.”

Defendant’s counsel apparently accommodated that request. However, at 10:13 a.m. on May 27,

plaintiff e-mailed defendant’s counsel, saying that he would need to reschedule his deposition

because the Court of Appeals had issued two orders in two separate cases ordering him to file

briefs by 5:00 p.m. that day. Defendant’s counsel e-mailed plaintiff back, refusing to

accommodate plaintiff further and explaining that further delay would prejudice defendant’s

ability to meet the Court of Claims’s deadline for dispositive motions. Defendant’s counsel

warned plaintiff that the deposition would proceed as scheduled and that plaintiff’s failure to

appear would result in defendant seeking sanctions. Plaintiff e-mailed back, accusing defendant’s

counsel of unilaterally choosing a date and time when plaintiff was unavailable, asserting that the

delay would not prejudice defendant, and offering “to stipulate to extend the discovery deadline

for the sole purpose of taking [his] deposition.”

Plaintiff did not appear for the deposition. Defendant then filed a motion to compel

plaintiff to appear at a deposition, seeking $1,137.50 in sanctions, and seeking to extend the

deadlines in the Court of Claims’s scheduling order because plaintiff’s refusal to participate in

discovery had hampered defendant’s ability to meet those deadlines. Plaintiff contended in

response that defendant’s motion was frivolous because he had offered to extend discovery, he had

been under strict deadlines from this Court (in other matters), and his cancellation had been timely.

Although plaintiff did not file a motion for protective order, he requested in his response to

defendant’s motion to compel that such an order be entered limiting his deposition to one hour,

and he requested that defendant be sanctioned. Plaintiff did not challenge the amount of sanctions

requested, nor did he challenge whether defendant had brought her motion under the correct court

rule. The Court of Claims granted defendant’s motion and denied plaintiff’s requests. Plaintiff

was subsequently deposed.

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II. STANDARD OF REVIEW

We review de novo a trial court’s grant or denial of summary disposition. McMaster v

DTE Energy Co, 509 Mich 423, 431; 984 NW2d 91 (2022). We also review de novo the

interpretation and application of statutes, rules, and legal doctrines. Estes v Titus, 481 Mich 573,

578-579; 751 NW2d 493 (2008). This Court also reviews de novo “a trial court’s determination

whether an actual controversy exists.” Kircher v Ypsilanti, 269 Mich App 224, 227; 712 NW2d

738 (2005).

“This Court reviews a trial court’s discovery orders, such as an order to compel, for an

abuse of discretion,” which “occurs when the trial court chooses an outcome falling outside a range

of principled outcomes.” PCS4LESS, LLC v Stockton, 291 Mich App 672, 676-677; 806 NW2d

353 (2011). This Court also reviews for an abuse of discretion a trial court’s imposition of

discovery sanctions. In re Gregory Hall Trust, ___ Mich App ___, ___; ___ NW2d ___ (2023)

(Docket Nos. 361528 and 362467); slip op at 2-3. “A trial court necessarily abuses its discretion

when it makes an error of law.” Ronnisch Constr Group, Inc v Lofts on the Nine, LLC, 499 Mich

544, 552; 886 NW2d 113 (2016).

“The appellant bears the burden of persuasion with respect to prejudice.” In re Knight, 333

Mich App 681, 687; 963 NW2d 676 (2020). Self-represented litigants are not excused from

providing support for their claims, but they are entitled to more generosity and lenity in construing

their pleadings than would lawyers. Estelle v Gamble, 429 US 97, 106-108; 97 S Ct 285; 50 L Ed

2d 251 (1976). They are nevertheless otherwise held to the same substantive standards as lawyers.

See Totman v Sch Dist of Royal Oak, 135 Mich App 121, 126; 352 NW2d 364 (1984).

Furthermore, parties who choose to represent themselves must respect “the dignity of the

courtroom” and must “comply with relevant rules of procedural and substantive law.” Faretta v

California, 422 US 806, 834 n 46; 95 S Ct 2525; 45 L Ed 2d 562 (1975).

III. ANALYSIS

A. ELECTION-LAW CLAIM

Plaintiff argues that the Court of Claims erred by holding that plaintiff had not

demonstrated the existence of an actual controversy. Although we agree that an actual controversy

has been presented here, we conclude that this issue must be dismissed as moot.

A party has standing to seek a declaratory judgment pursuant to MCR 2.605 if there is “an

actual controversy,” meaning “a declaratory judgment is needed to guide a party’s future conduct

in order to preserve that party’s legal rights.” League of Women Voters of Mich v Secretary of

State, 506 Mich 561, 586; 957 NW2d 731 (2020). Plaintiff argues that there is an “actual

controversy” because he, as an elector, needs guidance as to whether it would be legal for him to

use the website and whether his vote might be invalidated as a result of using the website. A fair

reading of plaintiff’s testimony suggests that he actually intended to use the AV ballot application

website if assured that doing so would be safe. This elevates his claim, at least on its face, above

a pure hypothetical. It is well-settled that the bar for standing is low in election-law cases. Id.

at 587. Moreover, standing does not depend on the correctness of a plaintiff’s concerns or on the

merits of a particular case. 1373 Moulin, LLC v Wolf, ___ Mich App ___, ___; ___ NW2d ___

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(2022) (Docket No. 360569); slip op at 4. In light of these principles and the lenity to which self-

represented litigants are necessarily entitled, see Estelle, 429 US at 106-108, we conclude that

plaintiff has demonstrated the existence of an actual controversy.

Even so, courts typically “will not entertain moot issues or decide moot cases.” TM v MZ,

501 Mich 312, 317; 916 NW2d 473 (2018) (quotation marks and citation omitted). A claim is

moot when “an event has occurred that renders it impossible for the court to grant relief.” Barrow

v Detroit Election Comm, 305 Mich App 649, 659; 854 NW2d 489 (2014) (quotation marks and

citation omitted). A claim may also be considered moot “when a judgment, if entered, cannot have

any practical legal effect on the existing controversy.” Auto-Owners Ins Co v Seils, 310 Mich App

132, 163 n 8; 871 NW2d 530 (2015).

Plaintiff’s claim is moot because the 2022 amendments to the Michigan Constitution

charge the Secretary of State, the chief elections officer of our state, to develop and maintain a

state-funded system to track submitted absent voter ballot applications and absent voter ballots.

The rules promulgated by the SOS to implement the AV Ballot application are consistent with the

Secretary of State’s constitutional obligations.

On November 8, 2022, before a claim of appeal was filed in this Court, Michigan voters

approved passage of Proposition 22-2, which, among other things, amended the Michigan

Constitution, Const 1963, art 2, § 4. Building on amendments to this section in 20188, the 2022

amendments cemented broad voting rights protections to Michigan voters:

Every citizen of the United States who is an elector qualified to vote in Michigan

shall have. . .[t]he fundamental right to vote. . . . No person shall: (1) enact or use

any law, rule, regulation, qualification, prerequisite, standard, practice, or

procedure; (2) engage in any harassing, threatening, or intimidating conduct; or (3)

use any means whatsoever, any of which has the intent or effect of denying,

abridging, interfering with, or unreasonably burdening the fundamental right to

vote. [Const 1963, art 2, § 4(1)(a).]

Additionally, voters have:

(i) The right to: (1) state-funded prepaid postage to return an absent voter ballot

application provided to them by a Michigan election official; (2) state-funded

prepaid postage to return a voted absent voter ballot; and (3) a state-funded system

to track submitted absent voter ballot applications and absent voter ballots. The

system shall permit voters to elect to receive electronic notifications regarding the

status of the voter's submitted absent voter ballot application and absent voter

ballot, inform voters of any deficiency with the voter's submitted absent voter ballot

8

“In the November 2018 election, Michigan voters approved passage of Proposition No. 18-3

(Proposal 3), which, among other things, amended the Michigan Constitution, Const. 1963, art. 2,

§ 4, to provide all registered voters the right to vote by absentee ballot without giving a reason.”

Davis v Secy of State, 333 Mich App 588, 591; 963 NW2d 653 (2020).

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application or absent voter ballot, and provide instructions for addressing any such

deficiency. [Const Art. 2, § 4(1)(i). (Emphasis added.)]

The Constitution further instructs that “[a]ll rights set forth in [§ 4(1)] shall be self-executing. This

subsection shall be liberally construed in favor of voters’ rights in order to effectuate its purposes.”

Const Art. 2, § 4(1) directs the Legislature to “enact laws to regulate the … manner of

…elections, preserve the purity of elections, … and to provide for a system … of absentee voting.”

The Legislature followed that directive by granting the Secretary of State supervisory power over

local election officials under MCL 168.21 and by granting the Secretary of State the powers

specified by MCL 168.31. “As a single executive heading a principal department, the Secretary

of State shall ‘perform duties prescribed by law.’ ” Davis v Secy of State, 333 Mich App 588, 597;

963 NW2d 653 (2020) (citing Const. 1963, art. 5, § 9). “Under the Michigan Election Law, MCL

168.1 et seq., and specifically MCL 168.21, the Secretary of State is the chief elections officer of

the state and has supervisory authority over local election officials performing their duties.” Id.

MCL 168.31(1) requires the Secretary of State to:

(a) Subject to subsection (2), issue instructions and promulgate rules pursuant to

the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328,

for the conduct of elections and registrations in accordance with the laws of this

state.

(b) Advise and direct local election officials as to the proper methods of conducting

elections.

***

Based on this plenary authority (albeit before the 2022 Constitutional amendments were

enacted), the Secretary of State established an AV ballot application website. Plaintiff argues that

the AV ballot application process violates MCL 168.759(1) and seeks a declaratory judgment to

that effect. The crux of plaintiff’s argument is that the AV ballot website is illegal because it has

created a process for applying for an absentee ballot that is not expressly authorized by

MCL 168.759. The statute, which sets forth the criteria for AV ballot applications, states that an

elector must apply for an AV ballot either “in person or by mail with the clerk of the township or

city in which the elector is registered.” MCL 168.759(1). It is silent as to whether voters may

apply for an absentee ballot online. Effective December 19, 2022, the Michigan Bureau of

Elections promulgated rules authorizing the use of the AV ballot website and giving instructions

for processing applications submitted online. See Mich Admin Code, R 168.31 through R 168.35.

Agencies may generally promulgate rules to fill “gaps” in otherwise applicable legislation.

Dep’t of Labor and Economic Growth, Unemployment Ins Agency v Dykstra, 283 Mich App 212,

224; 771 NW2d 423 (2009). “A rule adopted by an agency in accordance with the Administrative

Procedures Act (APA), MCL 24.201 et seq., is considered a ‘legislative rule’ and has the force and

effect of law.” Brightmoore Gardens, LLC v Marijuana Regulatory Agency, 337 Mich App 149,

161; 975 NW2d 52 (2021). “As the chief elections officer, with constitutional authority to

‘perform duties prescribed by law,’ the Secretary of State had the inherent authority to take

measures to ensure that voters were able to avail themselves of the constitutional rights established

by [Constitutional Amendment] regarding absentee voting.” Davis, 333 Mich App at 601.

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Here, the rules promulgated by the Bureau of Elections about the AV ballot website fill a

“gap” in MCL 168.759 by specifying that electors may lawfully apply for an AV ballot online.9

The rules also implement the self-executing Constitutional mandate that the State establish “a

state-funded system to track submitted absent voter ballot applications and absent voter ballots”

and ensure that the system “permit voters to elect to receive electronic notifications regarding the

status of the voter’s submitted absent voter ballot application and absent voter ballot, inform voters

of any deficiency with the voter’s submitted absent voter ballot application or absent voter ballot,

and provide instructions for addressing any such deficiency.” Const 1963, Art 2, § 4(i).

Agency rules “need not be mere reiterations of a statute[.]” Chrisdiana v Dep’t of

Community Health, 278 Mich App 685, 689; 754 NW2d 533 (2008). Instead, the “rules must be

within the matter covered by the enabling statute, they must comply with the underlying legislative

intent, and they must not be arbitrary and capricious.” Id. (quotation marks and citation omitted).

A rule is generally not considered arbitrary or capricious “if it is rationally related to the purpose

of the statute.” Mich Farm Bureau v Dep’t of Environmental Quality, 292 Mich App 106, 125;

807 NW2d 866 (2011). The rules at issue here clearly cover the same subject matter as

MCL 168.759, since they address AV ballot applications. They are also consistent with the

legislative intent behind MCL 168.759, which was enacted to give practical effect to the right to

vote absentee, as guaranteed by Const 1963, art 2, § 4. Davis, 333 Mich App at 603-604. Finally,

nothing about the rules appears arbitrary or capricious. The rules at issue here are rationally related

to furthering the Legislature’s intent to ensure that electors may vote absentee by making it easier

to exercise that right through the use of modern technology. For all of these reasons, we conclude

that the rules promulgated by defendant on the subject conform to and supplement MCL 168.759.

We reject Plaintiff’s invitation to narrowly read MCL 168.759(1) as only allowing a voter

to apply for an AV Ballot in person or by mail. We recognize that “[c]ourts should generally give

the word ‘shall’ a mandatory meaning and the word ‘may’ a permissive meaning, unless to do so

would clearly frustrate legislative intent as evidenced by other statutory language or by reading

the statute as a whole.” Comm to Ban Fracking in Michigan v Bd of State Canvassers, 335 Mich

App 384, 396; 966 NW2d 742 (2021)(cleaned up). Here, reading MCL 168.759(1) restrictively

would frustrate not just legislative intent, but the will of the People. “As explained by our Supreme

Court in Elliott v Secretary of State, 295 Mich 245, 249; 294 NW 171 (1940), ‘[E]verything

reasonably necessary to be done by election officials to accomplish the purpose of’ a constitutional

provision ‘is fairly within its purview.’ ” Davis, 333 Mich App at 601 (citing to Elliot).

This is not the first time that Plaintiff has challenged the Secretary of State’s authority to

act under MCL 168.759. In Davis, Plaintiff raised an analogous argument challenging the

Secretary of State’s authority to mail absentee ballot applications to registered voters. This Court

resoundingly rejected Plaintiff’s argument:

We conclude that the Secretary of State's action in mailing an application that each

registered voter was free to fill out and return, or not, fell within her authority as

9

Effective March 21, 2024, the Legislature has amended MCL 168.759 to include language

expressly authorizing the use of the absentee ballot application website.

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chief elections officer of the state and comported with her constitutional obligation

to liberally construe Const. 1963, art. 2, § 4(1) to effectuate its purposes. See Elliott,

295 Mich. at 250, 294 N.W. 171 (noting that “it is the clear duty of election

officials, when reasonably possible, to prepare ballots in such a manner as will most

effectively comply with the constitutional mandate” at issue). While MCL

168.31(1)(e) is not applicable because the Secretary did not “[p]rescribe” to local

election officials any particular “uniform forms, notices, and supplies the secretary

of state considers advisable for use in the conduct of elections,” that section,

together with the Secretary of State's role as chief elections officer, evidences that

the Legislature granted the Secretary a broad measure of discretion in conducting

and supervising elections. Such discretion certainly includes providing voters

information and absent-voter ballot applications that substantially comply with the

form prescribed by the Legislature in MCL 168.759(5). [Davis, 333 Mich App 602–

03.]

Likewise, we hold that the Secretary of State has authority to promulgate rules to operate the AV

Ballot Application website under Const 1963, art 2, § 4(1), and MCL 168.759(1) does not limit

that authority.

Defendant’s election-law claim must be dismissed as moot.

B. FOIA CLAIM

Plaintiff next argues that the Court of Claims erred by granting defendant summary

disposition on plaintiff’s FOIA claim. We disagree.

Plaintiff’s claim involves the interpretation of statutory language. “The principal goal of

statutory interpretation is to give effect to the Legislature’s intent, and the most reliable evidence

of that intent is the plain language of the statute.” South Dearborn Environmental Improvement

Ass’n, Inc v Dep’t of Environmental Quality, 502 Mich 349, 360-361; 917 NW2d 603 (2018).

“Where the statutory language is unambiguous, the plain meaning reflects the Legislature’s intent

and the statute must be applied as written.” Honigman Miller Schwartz and Cohn LLP v Detroit,

505 Mich 284, 294; 952 NW2d 358 (2020) (quotation marks and citation omitted). Statutory

provisions must be read in the context of the entire statute to produce a harmonious whole. C G

Automation & Fixture, Inc v Autoform, Inc, 291 Mich App 333, 338; 804 NW2d 781 (2011). “This

Court must consider the object of the statute and the harm it is designed to remedy, and apply a

reasonable construction that best accomplishes the statute’s purpose.” Adams Outdoor

Advertising, Inc v Canton Twp, 269 Mich App 365, 371; 711 NW2d 391 (2006) (citation omitted).

“The term ‘must’ indicates that something is mandatory.” Vyletel-Rivard v Rivard, 286 Mich App

13, 25; 777 NW2d 722 (2009).

According to these principles, “this Court must construe the FOIA as a whole, harmonizing

its provisions.” Arabo v Mich Gaming Control Bd, 310 Mich App 370, 386; 872 NW2d 223 (2015)

(quotation marks and citation omitted). Plaintiff correctly observes that in the FOIA context,

“ ‘[w]ritten request’ means a writing that asks for information, and includes a writing transmitted

by facsimile, electronic mail, or other electronic means.” MCL 15.232(m). However,

MCL 15.233(1) further provides:

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Except as expressly provided in [MCL 15.243, addressing exemptions from

disclosure], upon providing a public body’s FOIA coordinator with a written

request that describes a public record sufficiently to enable the public body to find

the public record, a person has a right to inspect, copy, or receive copies of the

requested public record of the public body. A request from a person, other than an

individual who qualifies as indigent under section 4(2)(a), must include the

requesting person’s complete name, address, and contact information, and, if the

request is made by a person other than an individual, the complete name, address,

and contact information of the person’s agent who is an individual. An address

must be written in compliance with United States Postal Service addressing

standards. Contact information must include a valid telephone number or

electronic mail address. A person has a right to subscribe to future issuances of

public records that are created, issued, or disseminated on a regular basis. A

subscription is valid for up to 6 months, at the request of the subscriber, and is

renewable. An employee of a public body who receives a request for a public

record shall promptly forward that request to the freedom of information act

coordinator. [Emphasis added.]

Notably, the plain language of MCL 15.233(1) indicates that “an address” is something distinct

from “contact information,” because the statute imposes different requirements for each in separate

sentences. The plain language of these provisions affords only one reasonable construction:

although a “written request” generally refers to a writing that could be in the form of an e-mail,

the right to access a public record is conditioned on submitting a request that complies with a few

simple requirements, one of which is the inclusion of a postal mailing address. Honigman Miller

Schwartz and Cohn LLP, 505 Mich at 294.

Plaintiff argues that defendant was obligated to respond to his request within five business

days under MCL 15.235(2), which generally provides that the public body must “respond to a

request for a public record within 5 business days after the public body receives the request.”

However, that statutory section does not address what is, or must be contained within, a “written

request.” In MCL 15.235(1), the statutory section describes when a request is deemed to be

“received” and to whom a request should be directed. MCL 15.235(1) also states “Except as

provided in [MCL 15.233],” but, from context, it appears that the quoted language provides an

exception to whether the written request must be made to the public body’s FOIA coordinator.

Nothing in MCL 15.235 appears to articulate what constitutes a request.

Taken as a whole, MCL 15.232(m) defines a written request, MCL 15.233(1) specifies

what must be included in the written request. MCL 15.235(2) provides a deadline for a public

body to respond to a proper request following its receipt of that request. Arabo, 310 Mich App

at 386. Plaintiff’s FOIA request plainly violated the content requirements of MCL 15.233(1), so

the Court of Claims correctly found the request to be defective. Nothing in the statute specifies

what, if any, obligation a public body has to respond to a defective FOIA request, nor have we

been able to find any caselaw on point. However, courts may not dispense with a requirement set

forth in the plain language of a statute, because doing so would impermissibly render a portion of

the statute nugatory. Andrie Inc v Treasury Dep’t, 496 Mich 161, 172; 853 NW2d 310 (2014). If

a statute provides a mandatory provision, it must be complied with, and the courts may not

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speculate whether the Legislature really intended something other than what it wrote. In re

Forfeiture of Bail Bond, 496 Mich 320, 336; 852 NW2d 747 (2014). Plaintiff’s proposed

construction of the FOIA as requiring a prompt response to even defective requests would render

the content requirements set forth in MCL 15.233(1) nugatory and meaningless, and we decline to

adopt it.

The Court of Claims did not err by granting defendant summary disposition on this claim.

C. SANCTIONS

Finally, plaintiff argues that the Court of Claims erred by subjecting him to discovery

sanctions. We disagree.

As an initial matter, we note that several of plaintiff’s arguments have been waived.

Plaintiff argued in the Court of Claims that defendant’s motion to compel and for sanctions was

frivolous because he had offered to extend discovery, he had been under strict deadlines from this

Court, and his cancellation had been timely. Plaintiff also argued that the Court of Claims should

impose limitations on his deposition under MCR 2.313(A)(3). Those arguments are therefore

preserved. Glasker-Davis v Auvenshine, 333 Mich App 222, 228; 964 NW2d 809 (2020).

However, plaintiff never challenged the amount of sanctions that defendant sought. Further, he

did not argue that defendant moved to compel and for sanctions—or that the Court of Claims

granted the motion—under an incorrect court rule. Those arguments are therefore waived. Tolas

Oil & Gas Exploration Co v Bach Svcs & Manufacturing, LLC, ___ Mich App ___, ___; ___

NW2d___ (2023) (Docket No. 359090); slip op at 2-5.

“Pursuant to MCR 2.313(A), a party may move for an order compelling discovery.” KBD

& Assoc, Inc v Great Lakes Foam Technologies, Inc, 295 Mich App 666, 677; 816 NW2d 464

(2012). In relevant part, MCR 2.313(A)(2)(b)(v) provides that if a party “fails to appear before

the person who is to take his or her deposition, after being served with a proper notice, the party

seeking discovery may move for an order compelling compliance.” The plain language of the rule

is clear and unambiguous, so it must be enforced as written. Velocity MRS Fund IV v Nextgen

Pain Assocs & Rehab, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 358712); slip

op at 2-3. Michigan’s public policy favors broad and open discovery of any matter that is relevant

and not privileged. Arabo, 310 Mich App at 398. That policy nevertheless has limits, so a party

may seek a protective order under MCR 2.302(C) if the party can demonstrate good cause. Id.

“Good cause” refers to a reason that is satisfactory, sound, or valid, and a “trial court has broad

discretion to determine what constitutes ‘good cause.’ ” Thomas M Cooley Law School v Doe 1,

300 Mich App 245, 264; 833 NW2d 331 (2013). Otherwise, a trial court “abuses its discretion

when it denies discovery of relevant information.” Harrison v Olde Financial Corp, 225 Mich

App 601, 614; 572 NW2d 679 (1997).

In this case, plaintiff informally requested a protective order limiting his deposition to a

single hour and limiting any questioning to the two claims that were then remaining in the case.

However, plaintiff never filed a motion for protective order, never articulated a satisfactory, sound,

or valid reason for a one-hour restriction, and never provided any evidence that defendant would

inappropriately expand the scope of the deposition to matters not relevant to the case at hand. In

light of the broad scope of Michigan’s discovery policy and plaintiff’s failure to substantiate his

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claimed “good cause,” the Court of Claims did not abuse its discretion by denying plaintiff’s

request for a protective order. Harrison, 225 Mich App at 614.

Plaintiff also argues that defendant’s motion to compel was unnecessary to secure his

attendance at a deposition. Plaintiff offers two reasons for this contention: first, that he had a

legitimate excuse for his last-moment cancellation of his scheduled deposition, which had already

been rescheduled several times at his insistence, and second, that he had offered to stipulate to

extend discovery. Both arguments are meritless. The record shows that plaintiff offered to

stipulate to extend the discovery deadline for the sole purpose of taking his deposition. Plaintiff’s

offer, however, did not consider defendant’s concerns about being able to meet the deadline for

filing dispositive motions. Plaintiff apparently held the subjective belief that defendant’s concerns

were unwarranted, so plaintiff’s offer was presumably not made in bad faith. Nevertheless,

plaintiff’s offer still failed to address defendant’s valid concerns about complying with the

scheduling order.

Further, plaintiff’s claimed legitimate excuse for missing his deposition was that this Court

had ordered plaintiff to submit briefing in two of plaintiff’s appeals by the end of that day. This

excuse is entirely a problem of plaintiff’s own making. This Court may take judicial notice of its

own records. Precise MRI of Mich, LLC v State Auto Ins Co, 340 Mich App 269, 281 n 5; 985

NW2d 892 (2022). In both of the appeals to which plaintiff refers, plaintiff filed his claims of

appeal in the morning hours of May 25, 2022, and in each case, he simultaneously filed emergency

motions to expedite the appeals and for immediate consideration. On May 26 and 27, 2022,

respectively, this Court granted plaintiff’s motions. Davis v Highland Park City Clerk,

unpublished order of the Court of Appeals, entered May 26, 2022 (Docket No. 361544); Davis v

Wayne Co Election Comm, unpublished order of the Court of Appeals, entered May 27, 2022

(Docket No. 361546). In each order granting plaintiff’s motions, this Court ordered that plaintiff’s

brief was due by 5:00 p.m. on May 27, 2022. Id. It appears that this Court e-mailed the order in

Docket No. 361544 to plaintiff at 4:41 p.m. on May 26, 2022, and it e-mailed the order in Docket

No. 361546 to plaintiff at 9:53 a.m. on May 27, 2022. Therefore, plaintiff is correct in the very

limited sense that this Court issued orders to him shortly before the scheduled deposition, and that

those orders imposed a tight deadline. However, plaintiff’s description of the situation as an

“unexpected emergency,” under these circumstances, is neither reasonable nor a legitimate excuse.

Plaintiff cannot have been surprised that this Court granted his motions, because plaintiff

received precisely what he sought. Moreover, in plaintiff’s motion to expedite in Docket

No. 361544, he represented that he “will be filing his brief on appeal by 10 a.m. on Friday, May 27,

2022,” (punctuation omitted) and in his motion to expedite in Docket No. 361546, he represented

that he “will be filing his brief on appeal by 1 p.m. on Friday, May 27, 2022” (punctuation

omitted). Plaintiff’s filings therefore indicated that he was already prepared to comply with this

Court’s orders if his motions were granted. Furthermore, plaintiff characterized his motions in

both appeals as emergencies, so to the extent there was an emergency, that emergency was already

present at least two full days before plaintiff’s scheduled deposition. In short, any emergency was

preexisting, this Court’s orders and their tight deadlines should have been fully expected, and

plaintiff should have been prepared for the possibility of this Court giving him that for which he

had asked. There was no “unexpected emergency” not of plaintiff’s own making.

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In any event, plaintiff is entitled to relatively minimal substantive lenity as a self-

represented litigant. See McNeil v US, 508 US 106, 113; 113 S Ct 1980; 124 L Ed 2d 21 (1993),

and Faretta, 422 US at 834 n 46; see also McKinnie v Roadway Express, Inc, 341 F3d 554, 558

(CA 6, 2003) (“Ordinary civil litigants proceeding in pro se, however, are not entitled to special

treatment, including assistance in regards to responding to depositive [sic] motions.”). The fact

that plaintiff overcommitted himself is not an excuse for him any more than it would be for an

attorney. See, e.g., Daugherty v State, 133 Mich App 593, 598; 350 NW2d 291 (1984). As a self-

represented litigant, plaintiff did not have a traditional “client” to whom he owed an ethical duty

of competence and diligence. Nevertheless, the fact that plaintiff overcommitted himself and was

incapable of handling his own voluntarily assumed workload does not excuse his ensuing inability

to meet deadlines any more than it would excuse a practicing attorney’s inability to meet deadlines.

Finally, the plain language of MCR 2.313(A)(2)(b)(v) clearly establishes that if a party

fails to appear at a properly noticed deposition, the party seeking discovery is permitted to seek an

order to compel. Although plaintiff contends that his cancellation was timely, he sought to cancel

his deposition only a little more than an hour before its final rescheduled time. This was after

defendant had already accommodated numerous rescheduling requests, including a rescheduling

request plaintiff had made the previous day. Plaintiff points to no court rule stating that a deponent

may unilaterally demand cancellation of a properly noticed deposition. Plaintiff complains that

defendant unilaterally chose a time for the deposition, but he fails to explain how that was improper

or unusual, especially in light of defendant’s repeated accommodations of plaintiff’s rescheduling

requests. The court rules plainly establish that defendant was within her rights to move to compel,

and the Court of Claims did not abuse its discretion by granting the motion. Because plaintiff

waived his remaining challenges to the grant of sanctions by failing to raise them below, we will

not consider them.

IV. CONCLUSION

For the reasons stated, we affirm the order granting summary disposition to defendant on

plaintiff’s FOIA claim, and dismiss the election-law claim as moot. Furthermore, we affirm the

order granting defendant’s motion to compel and imposing discovery sanctions on plaintiff.

Because this appeal involves matters of significant public interest, the parties shall bear their own

costs on appeal. MCR 7.219(A).

/s/ Sima G. Patel

/s/ Michelle M. Rick

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