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Simpson v. Garrett

United States District Court, E.D. Michigan, Southern Division

December 28, 2016

Tawanna Simpson, Plaintiff,
v.
Cathy M. Garrett, et al., Defendants.

          Elizabeth A. Stafford U.S. Magistrate Judge

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER, OR IN THE ALTERNATIVE, MOTION FOR PRELIMINARY INJUNCTION [2]; GRANTING WAYNE COUNTY DEFENDANTS' MOTION TO DISMISS [9]; DENYING AS MOOT PLAINTIFF'S EMERGENCY MOTION TO EXPEDITE DECISION/HEARING ON MOTION FOR PRELIMINARY INJUNCTION AGAINST WAYNE COUNTY BOARD OF CANVASSERS [10]; AND SUA SPONTE DISMISSING DEFENDANTS JANICE WINFREY AND CITY OF DETROIT ELECTION INSPECTORS

          Arthur J. Tarnow Senior United States District Judge

         Before the Court is Plaintiff Tawanna Simpson's Motion for Temporary Restraining Order, or in the alternative, Motion for Preliminary Injunction and a Motion to Dismiss by Defendants Wayne County Clerk Cathy M. Garrett, Wayne County Election Commission, and Wayne County Board of Canvassars. The Court now finds the motions suitable for determination without a hearing in accord with Local Rule 7.1(f)(2).

         For the reasons stated below, the Court will DENY Plaintiff's Motion for Temporary Restraining Order, or in the alternative, Motion for Preliminary Injunction [2] and GRANT the Motion to Dismiss [9] by the Wayne County Defendants. The Court will also DENY AS MOOT Plaintiff's Motion to Expedite Decision/Hearing on the Motion for Preliminary Injunction against Wayne County Board of Canvassars [10] and sua sponte DISMISS Defendants Janice Winfrey, Detroit City Clerk, and the City of Detroit Election Inspectors. See Drew v. Enter. Leasing of Detroit, LLC, No. 13-11460, 2015 U.S. Dist. LEXIS 58004, at *5 (Whalen, M.J.), report and recommendation adopted 2015 U.S. Dist. LEXIS 57334 (E.D. Mich. May 1, 2015) (Goldsmith, J).

         Factual Background and Procedural History

         Plaintiff Tawanna Simpson filed an affidavit of identity with Defendant Detroit City Clerk and paid the $100 filing fee in July 2016 to qualify as a candidate for the Detroit Community School District Board of Education (“Board of Education”) for the November 2016 general election. On September 13, 2016, after certification from the Wayne County Clerk, the Defendant Wayne County Election Commission convened and voted to approve Plaintiff's name to appear on the November 2016 general election ballot. At this meeting, the Election Commission also determined that the affidavit of identity of Penelope Bailer, another candidate running for a position on the Board of Education, had been improperly filed and that Ms. Bailer had not received proper certification from the Wayne County Clerk. The Election Commission voted not to place Ms. Bailer's name on the November 2016 ballot as a candidate for the Board of Education.

         Ms. Bailer subsequently filed an Emergency Motion for Mandamus and Order to Show Cause against the Election Commission and Detroit City Clerk in the Wayne County Circuit Court on September 15, 2016 (hereinafter referred to as the “Bailer Election Matter”).[1] Wayne County Circuit Court Chief Judge Colombo entered an order compelling the Election Commission and Detroit City Clerk to appear for a hearing that was scheduled for September 16, 2016.

         Plaintiff's counsel attended the show cause hearing and briefly participated in oral arguments.[2] After the hearing, Judge Colombo granted Ms. Bailer's motion and ordered the Election Commission “to take necessary steps to place the name of Penelope N. Bailer on the November 8, 2016 General Election ballot as a candidate for the Detroit Community School District.” (Pl.'s Ex. F, Dkt. 1-6). Plaintiff alleges that the Election Commission neither convened as a public body nor determined whether Ms. Bailer was properly certified to have her name placed on the ballot as a candidate since the entry of Judge Colombo's September 16 Order in the Bailer Election Matter.

         Robert Davis and Desmond White[3] appealed Judge Colombo's decision. The Michigan Court of Appeals and the Michigan Supreme Court denied their appeals on September 21 and 22, 2016, respectively. See Bailer v. Detroit City Clerk, et al., unpublished opinion per curiam of the Court of Appeals, issued September 21, 2016 (No. 334823); Bailer v. Detroit City Clerk, et al., unpublished order of the Supreme Court, entered September 22, 2016 (No. 154459).

         Plaintiff's counsel appeared before Judge Colombo in an unrelated matter on September 23, 2016. At the conclusion of the hearing, Judge Colombo allegedly spoke with Plaintiff's counsel at sidebar, asking about Robert Davis' motives in seeking to remove Ms. Bailer from the ballot. Later that day, Davis and Ms. White filed a complaint with the Wayne County Circuit Court against Defendants Wayne County Clerk, Wayne County Election Commission, Penelope Bailer, and the Detroit City Clerk (hereinafter referred to as the “Davis Election Matter”).[4] The case was assigned to Judge Colombo, who, after a show cause hearing on September 28, 2016, dismissed the complaint and sanctioned Davis and his counsel. It is the Court's understanding that Davis' appeal is currently pending before the Michigan Court of Appeals. (Dkt. 7-12, Pg. ID 287).

         Robert Davis then filed an Emergency Complaint or in the alternative, Motion for Preliminary Injunction with the Court on October 3, 2016 (Davis v. Ruth Johnson, et al., No. 16-13545, Dkt. 1 & 2). Davis filed an Amended Complaint and renewed motion for injunctive relief on October 10, 2016, in which he added several parties to the lawsuit, including Plaintiff Tawanna Simpson. During a phone status conference on October 14, 2016, the Court determined that it was appropriate to dismiss Ms. Simpson from Davis' lawsuit, as they are pursuing different claims for relief. Thereafter, Plaintiff Simpson filed the instant lawsuit on October 24, 2016. She seeks the issue of a Temporary Restraining Order pursuant to Fed.R.Civ.P. 65(b), or in the alternative, a Preliminary Injunction pursuant to Fed.R.Civ.P. 65(a). The Court notes that Plaintiff's complaint presents no allegations as to Defendants Janice Winfrey, the Detroit City Clerk, and the City of Detroit Elections inspectors.

         Plaintiff contends that she has been denied equal protection and due process of law under the Fourteenth Amendment because Defendants allowed Ms. Bailer's name to be printed on the November 2016 general election ballot as a candidate for the Board of Education: 1) without proper certification from the Defendant Wayne County Clerk; and 2) without the Defendant Wayne County Election Commission meeting as a public body to determine whether Ms. Bailer's name was properly certified, as required by M.C.L. § 168.689. Plaintiff argues that this Court should grant the following relief:

● Injunctive relief that preliminarily and permanently enjoins Defendants from counting and/or certifying any votes cast for Penelope Bailer; . An award of compensatory, punitive, and nominal damages against the Defendants for denying Plaintiff due process and equal protection under the law.
● An award of attorney fees and costs pursuant to 42 U.S.C. § 1988
● A declaratory judgment declaring that Penelope Bailer's name should not have been printed on the November 8, 2016 General Election ballot because the Defendant Wayne County Clerk did not first certify her name to the Defendant Wayne County Election Commission for it to be placed on the November 8, 2016 General Election ballot because of Penelope Bailer's fatally flawed affidavit of identity.

         Defendants filed a Response (Dkt. 7) to Plaintiffs Motion on November 2, 2016, to which Plaintiff replied on November 7, 2016 (Dkt. 8). The County Defendants also filed a Motion to Dismiss (Dkt. 9) on ...


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