Christopher Dipiero v. Oshtemo Charter Township Clerk ( 2024 )

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
CHRISTOPHER DIPIERO and DONALD R. UNPUBLISHED
VILAND, May 30, 2024
Plaintiffs-Appellants,
v No. 367046
Kalamazoo Circuit Court
DUSTY FARMER, CLERK OF OSHTEMO LC No. 2023-0232-AW
CHARTER TOWNSHIP,
Defendant-Appellee.
Before: YATES, P.J., and CAVANAGH and BOONSTRA, JJ.
PER CURIAM.
In August 2021, the Oshtemo Charter Township Board of Trustees decided to issue bonds
not to exceed $30 million to fund a sanitary sewer expansion. That vote prompted an effort to put
the matter before local voters in a referendum, but the township clerk found many of the signatures
and 117 full petition sheets were invalid, so the petition for a referendum failed and the voters did
not get to weigh in on the issuance of bonds. Thomas Graham, who disliked that outcome, filed a
complaint seeking a writ of mandamus directing the township clerk to validate the petition sheets
and place the referendum on the ballot for a vote by the local electorate. But the trial court in that
case ruled against Graham, and this Court affirmed that ruling. Graham v Oshtemo Charter Twp
Clerk, unpublished per curiam opinion of the Court of Appeals, issued November 10, 2022 (Docket
No. 361996).
In a rational world, this Court’s ruling would have ended the matter. But in 2023, plaintiffs,
Christopher DiPiero and Donald Viland, filed a complaint for mandamus requesting the very same
relief that this Court had rejected in Graham. Predictably, the trial court concluded that plaintiffs’
action was barred by res judicata. But plaintiffs appealed that ruling of right, so we must consider
whether plaintiffs can proceed with their complaint for mandamus in the face of this Court’s ruling
in Graham. We review de novo the trial court’s resolution of this case on the basis of res judicata.
See Mecosta Co Med Ctr v Metro Group Prop & Cas Ins Co, 509 Mich 276, 282; 983 NW2d 401(2022).
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Plaintiffs do not dispute that the Graham case was decided on the merits, but they contend
that the doctrine of res judicata does not apply in this case because they are suing in their capacity
as circulators with interests distinct from the plaintiff in Graham. Our Supreme Court has observed
that the doctrine of res judicata “is employed to prevent multiple suits litigating the same cause of
action.” Adair v State, 470 Mich 105, 121; 680 NW2d 386 (2004). “The doctrine bars a second,
subsequent action when (1) the prior action was decided on the merits, (2) both actions involve the
same parties or their privies, and (3) the matter in the second case was, or could have been, resolved
in the first.” Id. Our Supreme Court “has taken a broad approach to the doctrine of res judicata,”
explaining that “it bars not only claims already litigated, but also every claim arising from the same
transaction that the parties, exercising reasonable diligence, could have raised but did not.” Id.Because plaintiffs concede that Graham was decided on the merits, we are left to consider
whether Graham and this case involve the same parties or privies. To be “in privity” is “to be so
identified in interest with another party that the first litigant represents the same legal right that the
current litigant is trying to assert.” Id. at 122. “The outer limit” of res judicata “requires both a
‘substantial identity of interests’ and a ‘working functional relationship’ in which the interests of
the nonparty are presented and protected by the party in the litigation.” Id.
In plaintiffs’ documents filed in the circuit court, they attempted to distinguish their identity
as “circulators” from that as “electors.” Plaintiffs assert that, unlike the plaintiff in Graham, they
filed suit in their capacity as circulators, not electors. But plaintiffs cannot explain how those two
classifications differ or how their interests are distinguishable from that of the plaintiff in Graham.
Indeed, as the trial court noted, plaintiffs’ complaint is virtually identical to the complaint filed in
Graham.1 In their complaint, plaintiffs identified themselves as residents and thus electors, giving
them standing to bring a claim. That characterization is identical to the assertion made in Graham’s
complaint regarding his standing.2 In addition, plaintiffs seek a writ of mandamus to reinstate the
1
In Graham, the plaintiff undertook his appeal of right in propria persona. Likewise, plaintiffs in
this case have chosen to proceed in propria persona, and their legal arguments track the arguments
made by the plaintiff in Graham. As a result, this case appears to be virtually identical to the case
that this Court resolved in its unpublished decision in Graham. Therefore, even if plaintiffs in this
case can escape the preclusive impact of the doctrine of res judicata, the outcome on the merits of
their demand for mandamus almost certainly will be dictated by this Court’s analysis in Graham.
2
Paragraph 2 of the complaint for mandamus in Graham alleged that, “[a]s a resident of Oshtemo,
Mr. Graham is an elector and has an interest in signed petitions seeking a referendum on Oshtemo’s
intent to issue $30,000,000.00 (“$30M”) in bonds for capital improvement – a sewer.” Similarly,
plaintiffs in this case alleged in paragraph 3 of their complaint for mandamus that, “[a]s residents
of Oshtemo, Plaintiffs are electors and have an interest in the signed petitions seeking a referendum
on Osthemo’s intent to issue $30,000,000 (“$30M”) in bonds for capital improvement – extending
an existing sewer.”
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signatures that were previously voided, which is the very same relief that Graham demanded.3 In
sum, plaintiffs inescapably are “in privity” with the plaintiff in Graham.
Turning to the third requirement of the doctrine of res judicata, we must determine whether
the claim in this case was, or could have been, resolved in Graham. Plaintiffs insist that the claim
could not have been resolved because Graham was not a “circulator.” Therefore, Graham was not
required to take steps that the plaintiffs had to take to act under MCL 141.2517(2). That argument
is factually incorrect. The plaintiff in Graham tried to make the argument on behalf of the petition
circulators because he was administered the oath as a “circulator,” but he referred to circulators as
“collectors.”4 Here, plaintiffs argue that the oath and notarization requirement is unconstitutional,
so the township clerk must accept all the petitions. “A constitutional challenge to the validity of a
statute can be brought in one of two ways: by either a facial challenge or an as-applied challenge.”
In re Forfeiture of 2000 GMC Denali & Contents, 316 Mich App 562, 569; 892 NW2d 388 (2016).
This Court declined to address the arguments for unconstitutionality that Graham offered because
this Court deemed those arguments “unrelated to the reasons the township clerk cited for rejecting
the petitions.” Graham, unpub op at 4. Because we agree with that approach, we likewise decline
to address those arguments here.
Affirmed.
/s/ Christopher P. Yates
/s/ Mark J. Cavanagh
/s/ Mark T. Boonstra
3
The numerous striking similarities between the complaint in Graham and the complaint in this
case leave no doubt that the complaint in Graham served as a template for the allegations and legal
arguments advanced in this case.
4
The word “circulator” does not appear anywhere in MCL 141.2517(2), but the statute mandates
that “[s]ignatures on the petition shall be verified by a person under oath as the actual signatures
of the persons whose names are signed to the petition[.]”
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