Ferency v. Secretary of State

139 Mich. App. 677 (1984) 362 N.W.2d 743

FERENCY
v.
SECRETARY OF STATE

Docket No. 77061.

Michigan Court of Appeals.

Decided October 9, 1984.

Zolton Ferency, in propria persona.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Gary P. Gordon, Assistant Attorney General, for defendants.

Before: BEASLEY, P.J., and J.H. GILLIS and R.B. MARTIN,^[*] JJ.

PER CURIAM.

Plaintiff, Zolton Ferency, appeals as of right from an order of the Ingham County Circuit Court dated March 9, 1984, which dismissed his complaint against the Secretary of State and the Director of the State Elections Division.

On February 6, 1984, plaintiff filed a complaint against defendants seeking a declaratory judgment and certain affirmative relief regarding the then up-coming Democratic Party state caucuses. Plaintiff claims to have exhausted his administrative remedies prior to filing his complaint by requesting similar relief from defendant Secretary of State. In particular, plaintiff requested that defendants perform certain statutory duties regarding the selection of delegates for the Democratic national convention. He prayed for the following relief:

"I. That this Court adjudge and declare that the establishment and conduct of the presidential preference caucuses presently scheduled for March 17, 1984, by the DSCC, constitutes public business and/or state action and must provide for guarantees which will protect the constitutional and legal rights of those eligible to participate.

"II. That this Court adjudge and declare that notice of the date, time and place of said caucuses be given to all Democratic voters regardless of their ability to pay party membership dues.

"III. That this Court adjudge and declare that requiring caucus participants to disclose or expose openly their registrations of presidential preference or other choice is violative of constitutional and/or statutory provisions.

"IV. That this Court adjudge and declare that the Defendants herein shall forthwith prepare and administer such other rules, regulations and instructions for the conduct of elections, caucuses or other selection procedures for national convention delegates and alternates so as to insure the protection of the constitutional and legal rights of all persons eligible to participate.

"V. That this Court order such other additional and further relief as may seem necessary, just and equitable to the Court."

On March 17, 1984, the Democratic Party held caucuses throughout Michigan. According to plaintiff's affidavit in support of his motion to expedite this appeal, which was granted, Walter Mondale received 49% of the caucus votes, Gary Hart received 31% of the votes, and Jesse Jackson received 16%. Thereafter, the Michigan Democratic State Central Committee allocated delegates to the national convention according to DSCC rules, as follows: Mondale received 78 delegates (57%), Hart received 49 delegates (36%), and Jackson received 9 delegates (7%). Plaintiff's affidavit also states that he is an official of the Jackson for President Committee and that he believes thousands of Jackson voters were denied equal protection under the law due to the DSCC's delegate allocation procedures. Plaintiff's appellate brief makes no mention of his affiliation with the Jackson campaign and instead argues that the rights of the electorate at large have been violated.

On the filing of the complaint, the trial court issued an order to show cause. In response, defendants filed a motion to dismiss. Defendants argued that since plaintiff's complaint was in reality a request for a writ of mandamus, it should be dismissed for failure to state a cause of action under GCR 1963, 117.2(1). The circuit court viewed the complaint as a request for mandamus against state officials. It declined to grant the requested relief because plaintiff failed to show that defendants had a clear legal duty to act in the manner requested.

On appeal, plaintiff claims that the trial court erred by treating plaintiff's complaint as a mandamus action and dismissing it for failure to state a claim. For the reasons to be indicated, we agree with the trial court and affirm.

Defendants initially argue that this appeal is moot, since the delegates have already been selected. Generally, a case is not moot if the issues sought to be litigated are capable of repetition, yet evade review.^[1] At this point in time, it is extremely difficult, if not impossible, to determine whether plaintiff's contentions are moot. Assuming that the rules regarding delegate selection and allocation remain in place and viable, the issue is capable of repetition and, therefore, is not moot.^[2]

Defendants also argue that plaintiff, Zolton Ferency, lacks standing to bring this action. A similar argument was made in Ferency v Austin,^[3](Ferency II) where the Federal Sixth Circuit Court of Appeals, in affirming the denial of relief to plaintiff, did not rest its decision on the standing issue. Since we deny relief here on a different basis, we do not find it necessary to decide whether plaintiff has standing to launch his attack on the procedures employed by the Democratic Party in selecting delegates to the national convention.

The question remains whether the trial court properly treated plaintiff's complaint as a request for mandamus. The general rules regarding the issuance of a writ of mandamus were summarized in Coates v Attorney General^[4] as follows:

"This Court has mandamus jurisdiction over state officials under GCR 1963, 714.1(1). An action against a state officer is proper in the Court of Appeals or the circuit court at the option of the party commencing the action. MCL 600.4401; MSA 27A.4401; Schweitzer v Board of Forensic Polygraph Examiners, 77 Mich. App. 749, 753, fn 5; 259 NW2d 362 (1977), lv den 402 Mich. 837 (1977). When there is a plain, direct and adequate alternative remedy, courts will not permit the use of a writ of mandamus. Coffin v Detroit Bd of Ed, 114 Mich. 342; 72 N.W. 156 (1897). Mandamus is inappropriate where there is another adequate remedy in law or in equity. Clarke v Hill, 132 Mich. 434; 93 N.W. 1044 (1903). See, also, Oakland County Bd of Road Comm'rs v State Highway Comm, 79 Mich. App. 505; 261 NW2d 329 (1977), lv den 402 Mich. 907 (1978), and the cases cited therein."

However, although the existence of other remedies may preclude issuance of a writ of mandamus, the availability of other remedies does not preclude declaratory relief. In Lord v Genesee Circuit Judge,^[5] a voter requested a declaratory judgment against the Secretary of State, which would have forced the Secretary to accept nominations for a circuit court vacancy. In reviewing the circuit court's refusal to render declaratory relief, this Court stated:

"Admittedly, plaintiff had other remedies than declaratory relief and could have sought mandamus and quo warranto relief in the Court of Appeals. The availability of other remedies does not preclude declaratory relief, however. GCR 1963, 521.1 and 521.3. Plaintiff is entitled to seek declaratory relief in spite of the availability of relief by way of quo warranto and mandamus. The circuit court had jurisdiction to grant the declaratory relief prayed for."^[6]

However, the Lord Court ignored the fact that the form of the circuit court's judgment was improper and concurred with its finding that the plaintiff failed to establish a basis for declaratory relief.^[7]

Although somewhat ambiguously, plaintiff herein apparently requested declaratory relief. However, the requested relief clearly encompassed a mandate to state officials to perform their duties. Because of this, the circuit court was free to inquire into the true nature of the relief sought.^[8] This blurring of the distinction between mandamus and declaratory relief is also apparent in Coates, supra. There, this Court analyzed a mandamus action regardless of the fact that the complaint also requested declaratory relief. Coates impliedly supports the argument that this Court should look at the true nature of the relief requested.^[9]

Plaintiff argues that he had a clear right to petition the circuit court for declaratory relief after he exhausted his administrative remedies. In Human Rights Party v Michigan Corrections Comm,^[10] plaintiff (represented by Ferency) prayed for a declaratory ruling that prison overcrowding violated prisoners' rights. The complaint also requested an injunction to force corrections department officials to enforce statutes to alleviate the overcrowding.^[11]Human Rights Party is similar to the instant appeal. Although declaratory relief was requested in both cases, the type of relief requested would have forced the court to direct state officials to perform statutorily mandated duties. However, the Human Rights Party Court declined to determine whether such relief was proper. It only determined that the circuit court had jurisdiction to entertain such an action. Human Rights Party does not expressly prevent the circuit court from reviewing the true nature of the relief sought. Apparently, the circuit court in Human Rights Party did not treat the complaint as requesting mandamus. Therefore, this Court was not faced with the same issue as is presented in the case at bar.

In the instant case, plaintiff failed to show that defendants had a clear legal duty to regulate the delegate selection process. Plaintiff failed to show that the Michigan election law requires defendants to notify all democratic voters of the caucus dates. Furthermore, even after viewing plaintiff's complaint in the most favorable light, it appears that he failed to establish that defendants had any duty to perform the acts requested.

MCL 168.618; MSA 6.1618 reads:

"The allocation of all delegates and alternates to a national convention shall be made by the state central committee of each party in accordance with the provisions of this act and shall be certified to the secretary of state. A minimum of 2/3 of the state's delegates shall be allocated to congressional districts and at least 2 delegates shall be allocated to each district. All delegates shall be registered electors of this state. Delegates elected from congressional districts shall be registered electors of those districts. All national convention delegates shall be chosen according to procedures and any other qualifications, as long as they are not inconsistent with those in this act, as may be established by the state central committee of that political party. The procedures and qualifications may include, but are not necessarily limited to guarantees that discrimination on the basis of race, creed, color, sex, age, national origin, or economic status does not occur."

This section indicates that the DSCC has substantial power to prescribe rules regarding the delegate selection process. It also evidences the Legislature's intent to defer to the intra-party decision-making process. In short, questions regarding the process of delegate selection and allocation are best resolved within the political party itself. Plaintiff has not persuaded this Court that it should interfere with such process.

Plaintiff next argues that the trial court erred in holding that the March caucuses were not "elections" under the definition of "election" found in MCL 168.2; MSA 6.1002, which reads:

"The term `election', as used in this act, shall mean and be held to include any election and primary election, at which the electors of the state or of any subdivision thereof choose or nominate by ballot public officials or decide any public question lawfully submitted to them. The term `election' is not synonymous with the term `civil appointment' as such term appears in section 9 of article 4 of the state constitution."

Plaintiff advanced an identical argument in Ferency v Austin, (Ferency I),^[12] in the federal district court. In that case, which, as previously discussed, was affirmed by the Sixth Circuit, Ferency sought to compel the Michigan Secretary of State to force the Democratic Party to participate in the 1980 Michigan Presidential primary and to elect a national candidate in accordance with the Michigan election law. The facts of Ferency I are somewhat different from those in the instant appeal. In 1980, Ferency attacked the constitutionality of the Michigan election law. Today, he seeks enforcement by state officials of those same laws. We believe the court's decision in Ferency I controls.

Plaintiff now argues that Ferency I is inapplicable because the party rules have changed since 1980. He states that the 1980 caucuses were limited to elected precinct delegates and party members. The March, 1984, caucuses were open to any Michigan voter, provided that he or she signed a statement confirming that the person registering was a Democrat.^[13] Plaintiff contends that since participation in the Michigan caucuses was the only way a voter could participate in the nomination of a candidate, the circuit court erred in holding that the caucuses were not "elections" under the statute.

This Court believes that the principles enunciated in Ferency I are as applicable today as they were in 1980. The Legislature was presumably aware of this problem after the federal district court's opinion was published. Although four years have passed, the word "caucus" remains glaringly absent from the election law definitions.^[14] If the Democratic voters of this state did not choose to participate in the caucuses, that was their prerogative. In fact, their ability to participate in the nominating process has been expanded by the new party rules. Therefore, plaintiff's argument that some "fundamental exercise of American democracy has been denied" is unpersuasive. Therefore, we embrace the reasoning found in Ferency I and hold that the Democratic caucuses do not fall within the definition of "election" found in MCL 168.2; MSA 6.1002.

Plaintiff's final argument is a "state action" argument identical to the one advanced in Ferency I. On appeal, the Sixth Circuit neither affirmed nor rejected this aspect of the holding in Ferency I.^[15] The Sixth Circuit declined to decide the issue because the plaintiff failed to show a violation of his federal constitutional rights. The exclusion of some voters from the delegate selection process does not constitute a denial of federal constitutional rights.^[16] The Sixth Circuit's opinion, although not expressly affirming the "state action" holding of the district court in Ferency I, certainly leans in that direction. We, therefore, decline to find that the delegate selection process constitutes "state action" as argued by plaintiff.

Affirmed.

NOTES

[*] Retired circuit judge, sitting on the Court of Appeals by assignment.

[1] See Roe v Wade, 410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147 (1973), reh den 410 U.S. 959; 93 S. Ct. 1409; 35 L. Ed. 2d 694 (1973); Swinehart v Secretary of State, 27 Mich. App. 318, 320; 183 NW2d 397 (1970); Grano v Ortisi, 86 Mich. App. 482, 487; 272 NW2d 693 (1978).

[2] See Ferency v Austin, 666 F2d 1023 (CA 6, 1981) [Ferency II].

[3] Id.

[4] 120 Mich. App. 816, 820-821; 328 NW2d 113 (1982), clarified in part, Coates v Attorney General, 126 Mich. App. 370; 337 NW2d 343 (1983).

[5] 51 Mich. App. 10; 214 NW2d 321 (1973).

[6] Id., p 17.

[7] Id., p 19.

[8] Minarik v State Highway Comm'r, 336 Mich. 209; 57 NW2d 501 (1953).

[9] Coates v Attorney General, supra, p 823.

[10] 76 Mich. App. 204; 256 NW2d 439 (1977).

[11] Id., p 207.

[12] 493 F Supp 683 (WD Mich, 1980) [Ferency I].

[13] See affidavit of Richard Wiener, Chairperson of the Michigan Democratic Party. See also, the 1984 Michigan Democratic Party Delegate Selection and Affirmative Action Plan.

[14] See 493 F Supp 683, 698.

[15] 666 F2d 1023, 1028.

[16] Cousins v Wigoda, 419 U.S. 477; 95 S. Ct. 541; 42 L. Ed. 2d 595 (1975); Democratic Party of the United States v Wisconsin ex rel LaFollette 450 U.S. 107; 101 S. Ct. 1010; 67 L. Ed. 2d 82 (1981).