Robert Davis V Highland Park City Clerk ( 2022 )

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ROBERT DAVIS, UNPUBLISHED
June 2, 2022
Plaintiff-Appellant,
v No. 361544
Wayne Circuit Court
HIGHLAND PARK CITY CLERK and LC No. 22-005386-AW
HIGHLAND PARK ELECTION COMMISSION,
Defendants-Appellees,
and
HIGHLAND PARK CITY COUNCIL,
Intervening Defendant-Appellee.
Before: MURRAY, P.J., and CAMERON and GARRETT, JJ.
PER CURIAM.
This appeal involves plaintiff’s challenge to the eligibility of Carlton Clyburn Jr. to be on
the August 2022 primary ballot for Highland Park Mayor.1 The circuit court’s May 23rd, 2022
final order denied a writ of mandamus with respect to Clyburn’s candidacy. Plaintiff, Robert
1
The trial court also addressed the candidacy of Rodney Patrick, who was seeking an at-large
position on city council. The court granted a writ of mandamus to defendants clerk and
commission to not place Patrick on the November 2022 general election ballot because Patrick
was not up-to-date on election related fines, contrary to what was represented in his affidavit. A
cross-appeal was filed by intervenor Highland Park City Council on June 1, 2022, but that appeal
was separated from this one and assigned Docket No. 361622. Davis v Highland Park City Clerk,
unpublished order of the Court of Appeals, entered June 1, 2022 (Docket No. 361544).
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Davis, appeals as of right.2 For the reasons outlined below, we reverse the circuit court’s order
denying mandamus relief as to Clyburn, and remand for entry of an order granting that relief.3
I. BACKGROUND
The background to this case is fairly straightforward. Clyburn is a Highland Park mayoral
candidate for the upcoming August primary election. Through this lawsuit, plaintiff argued that
Clyburn was disqualified from being placed on the ballot because he did not state on his Affidavit
of Identity (AOI) that his “party affiliation” was “non-partisan.” The record below is undisputed
that Clyburn left blank the space on the AOI for designating party affiliation. It is also undisputed
that Clyburn was seeking election to a non-partisan office.
The trial court ultimately denied mandamus as to Clyburn, concluding that Clyburn’s AOI
was not in violation of the governing statute.
II. ANALYSIS
In Barrow v Wayne County Election Comm, ___ Mich App ___, ___; ___ NW2d ___
(2022), slip op at 6, we set forth the standards of review applicable to a decision granting or
denying a writ of mandamus:
When reviewing a trial court’s decision whether to issue a writ of
mandamus, we review de novo the trial court’s determination of the existence and
extent of a duty. Bay City v Bay Co Treasurer, 292 Mich App 156, 164; 807 NW2d
892 (2011). But we review a trial court’s ultimate decision for an abuse of
discretion. Berry v Garrett, 316 Mich App 37, 41; 890 NW2d 882 (2016). An
abuse of discretion occurs when the result is outside the range of reasonable and
principled outcomes. Bay City, 292 Mich App at 164. Any underlying issue of
statutory interpretation is a question of law subject to de novo review. Id. Likewise,
we review de novo a trial court’s decision on a motion concerning a request for
declaratory judgment. Van Buren Charter Twp v Visteon Corp, 319 Mich App 538,
542; 904 NW2d 192 (2017) (citation omitted).
“To obtain the extraordinary remedy of a writ of mandamus, the plaintiff must show that (1) the
plaintiff has a clear, legal right to performance of the specific duty sought, (2) the defendant has a
clear legal duty to perform, (3) the act is ministerial, and (4) no other adequate legal or equitable
remedy exists that might achieve the same result.” Berry, 316 Mich App at 41 (quotation marks
and citations omitted).
2
We previously granted plaintiff’s motion to expedite the appeal. Davis v Highland Park City
Clerk, unpublished order of the Court of Appeals, entered May 26, 2022 (Docket No. 361544).
3
Intervenor filed a cross-appeal regarding Patrick, which has since been assigned its own docket
number and will proceed separately from this appeal, as explained in n. 1 of this opinion. Because
the trial court granted the relief requested by plaintiff regarding Patrick, we have no reason to
address here that aspect of the trial court’s order.
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In Slis v Michigan, 332 Mich App 312, 335-336; 956 NW2d 569 (2020), this Court
discussed the principles governing statutory interpretation, observing as follows:
This Court’s role in construing statutory language is to discern and ascertain the
intent of the Legislature, which may reasonably be inferred from the words in the
statute. We must focus our analysis on the express language of the statute because
it offers the most reliable evidence of legislative intent. When statutory language is
clear and unambiguous, we must apply the statute as written. A court is not
permitted to read anything into an unambiguous statute that is not within the
manifest intent of the Legislature. Furthermore, this Court may not rewrite the plain
statutory language or substitute its own policy decisions for those decisions already
made by the Legislature.
Judicial construction of a statute is only permitted when statutory language is
ambiguous. A statute is ambiguous when an irreconcilable conflict exists between
statutory provisions or when a statute is equally susceptible to more than one
meaning. When faced with two alternative reasonable interpretations of a word in
a statute, we should give effect to the interpretation that more faithfully advances
the legislative purpose behind the statute. [Quotation marks and citations omitted.]
Plaintiff argues that the Highland Park City Clerk and Highland Park Election Commission
have a clear legal duty to exclude Clyburn from the primary election ballot because his AOI failed
to comply with the mandates of applicable election law. “To be included on the primary election
ballot of any political party in this state, a candidate must ‘have filed nominating petitions
according to the provisions of’ the Michigan Election Law, MCL 168.1 et seq., and complied with
‘all other requirements’ of the law. MCL 168.550. The filing of certain documents—including
AOIs—is governed by MCL 168.558.” Reed-Pratt v Detroit City Clerk, ___ Mich App ___, ___;
___ NW2d ___ (2021), slip op at 3, quoting Nykoriak v Napoleon, 334 Mich App 370, 376-377;
964 NW2d 895 (2020).
At issue is MCL 168.558(2), which provides in part:
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 including the jurisdiction, district, circuit, or ward; the candidate’s political
party or a statement indicating no party affiliation if the candidate is running
without political party affiliation; the term of office; the date of the election in
which the candidate wishes to appear on the ballot; 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. [Emphasis added.]
The emphasized portion of the statute is what plaintiff argues was violated by Clyburn.
Specifically, plaintiff argues that on his AOI, Clyburn failed to state that he had no party affiliation,
which he was required to do since he was running for a non-partisan position.
The statutory requirement that the candidate running for a non-partisan office affirmatively
state in the AOI that he has no party affiliation is mandatory, as the Legislature has said it “must”
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be done. Vyletel-Rivard v Rivard, 286 Mich App 13, 25; 777 NW2d 722 (2009) (use of the term
“must” “indicates that something is mandatory.”). Clyburn did not comply with that provision,
and thus he is not eligible to be placed on the ballot. “The failure to supply a facially proper
affidavit of identity (AOI), i.e., an affidavit that conforms to the requirements of the Election Law,
is a ground to disqualify a candidate from inclusion on the ballot.” Stumbo v Roe, 332 Mich App
479, 480; 957 NW2d 830 (2020); accord Nykoriak, 334 Mich App at 377.
Contrary to intervenor’s argument, silence in the face of a statutory command to state
something affirmatively does not suffice. Moore v Genesee Co, ___ Mich App ___, ___; ___
NW2d ___ (2021), slip op at 3 (explaining that, because MCL 168.558(2) requires an AOI to
include a statement that the candidate is a citizen of the United States and meets constitutional and
statutory qualifications for the office sought, the failure to include such a statement, even if it may
be done by simply checking a box on the AOI, is a “critical error” that renders an AOI “facially
invalid.”). Just like the statutory requirements at issue in Moore, the statutory requirement at issue
in this case cannot be deemed a trivial matter because it has been mandated by the Legislature. Id.
The simple fact is Clyburn failed to adhere to the statutory requirement that he affirmatively state
that he was seeking a nonpartisan office.
As a result, the trial court abused its discretion in not granting a writ of mandamus and
ordering defendants City Clerk and Commission to not place Clyburn on the ballot for the August
2022 primary election for Mayor of Highland Park.
We reverse the trial court’s order to the extent it denied mandamus relief as to Clyburn,
and remand for entry of an order instructing the Highland Park City Clerk and Highland Park
Election Commission to not place Clyburn on the ballot for the August 2022 primary election for
Mayor of Highland Park. We do not retain jurisdiction. This opinion shall have immediate effect
pursuant to MCR 7.215(F)(2).
/s/ Christopher M. Murray
/s/ Thomas C. Cameron
/s/ Kristina Robinson Garrett
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