United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS (DKT. 29)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
matter is now before the Court on Defendants Janice Winfrey,
Daniel Baxter, and Detroit City Council's motion to
dismiss Plaintiffs' first amended complaint (Dkt. 29).
Plaintiffs John Lauve and Robert Davis have filed a response
(Dkt. 33). No reply was received, and the time to file a
reply has passed. Because oral argument will not aid the
decisional process, the motions will be decided based on the
parties' briefing. See E.D. Mich. LR 7.1(f)(2);
Fed.R.Civ.P. 78(b). For the reasons that follow,
Defendants' motion is granted in part and denied in part.
Lauve and Davis are registered and qualified electors of the
cities of Holly and Highland Park, Michigan, respectively.
Am. Compl. ¶¶ 15-16 (Dkt. 26). Plaintiffs
circulated referendum petitions to repeal Detroit City
Ordinance No. 19-17 (the “Ordinance”), which went
into effect on July 5, 2017. Am. Compl. ¶ 28. Per
Article 12 of the 2012 Detroit City Charter (the
“Charter”), when an ordinance is given immediate
effect, “[a] referendum petition must be filed with the
City Clerk . . . within thirty (30) days after its effective
date.” Charter, § 12-103. The Charter also provides
that referendum petitions “must be signed by voters of
the City, not less in number than three percent (3%) of all
votes case for the office of Mayor at the preceding regular
city general election”; that is, 4, 054 signatures.
Id. § 12-102. The City Clerk “shall
verify the number of petitions that were filed and transmit
petitions to the Department of Elections for a canvass of the
petitions.” Id. § 12-104. “If the
Clerk's canvass discloses that the number of signatures
on petitions for any initiative or referendum is
insufficient, ” additional petitions may be submitted
within fifteen days of the City Clerk's determination.
Id. § 12-105. Once a referendum on an ordinance
has been invoked, “the effect of the ordinance shall be
delayed or suspended until the City Clerk has made a final
report that the referendum petitions are insufficient or, if
the referendum petitions are sufficient, until the voters of
the City have expressed their support for the ordinance in
the referendum election.” Id. § 12-106.
August 4, 2017, Plaintiffs went to the office of the Detroit
City Clerk, Defendant Winfrey, and presented referendum
petitions, which contained 362 signatures. Am. Compl. ¶
23. The City Clerk's office accepted the referendum
petitions. Id. ¶ 24. The following day, Lauve
received a letter from Defendant Baxter, the Director of
Elections for the City of Detroit Election Commission,
advising him that his “petitions with 362 purported
signatures w[ere] invalid on [their] face, ” and, as a
result, the City Clerk's office would not accept them.
Id. ¶ 25. Plaintiffs returned to the City
Clerk's office on August 18, 2017 with additional
referendum petitions containing 7, 927 signatures.
Id. ¶ 36. Baxter then sent Lauve another letter
stating that the additional referendum petitions were
rejected as untimely. Id. ¶ 41.
filed the instant action against Defendants on August 20,
2017. Plaintiffs immediately filed a motion for a writ of
mandamus, seeking a ruling on Counts VI and VII of the
complaint (which correspond to Counts VII and VIII of the
amended complaint), which the Court denied. See Lauve v.
Winfrey, No. 17-12726, 2017 WL 5247897 (E.D. Mich. Nov.
later filed an amended complaint, which Defendants now seek
to dismiss. The amended complaint requests (i) a declaratory
judgment that Winfrey and Baxter violated Plaintiffs'
right to procedural due process by rejecting the referendum
petitions; (ii) a declaratory judgment that Defendants
violated Plaintiffs' right to procedural due process by
failing to suspend the Ordinance; (iii) a declaratory
judgment that Winfrey and Baxter violated Plaintiffs'
rights to equal protection; (iv) a declaratory judgment that
§ 12-101 of the Charter is unconstitutionally
void-for-vagueness; (v) attorney fees and costs; (vi)
compensatory, punitive, and nominal damages against
Defendants; (vii) a writ of mandamus compelling Winfrey to
canvass the timely-submitted referendum petitions; (viii) a
declaratory judgment that the Ordinance is suspended until
Winfrey makes a final report regarding the sufficiency of
Plaintiffs' referendum petitions; and (ix) a declaratory
judgment that the Ordinance is not an appropriation
ordinance. Am. Compl. ¶¶ 3-11 (Dkt. 26).
STANDARD OF REVIEW
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), “[t]he defendant has the burden of showing
that the plaintiff has failed to state a claim for
relief.” Directv, Inc. v. Treesh, 487 F.3d
471, 476 (6th Cir. 2007) (citing Carver v. Bunch,
946 F.2d 451, 454-455 (6th Cir. 1991)), cert.
denied, 552 U.S. 1311 (2008). To survive a Rule 12(b)(6)
motion, the plaintiff must allege sufficient facts to state a
claim to relief above the speculative level, such that it is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The plausibility
standard requires courts to accept the alleged facts as true,
even when their truth is doubtful, and to make all reasonable
inferences in favor of the plaintiff. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550
U.S. at 555-556.
a complaint's plausibility is a “context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679. Although a complaint that offers no more
than “labels and conclusions, ” a
“formulaic recitation of the elements of a cause of
action, ” or “naked assertion[s]” devoid of
“further factual enhancement” will not suffice,
id. at 678, it need not contain “detailed
factual allegations, ” Twombly, 550 U.S. at
555; see also Erickson v. Pardus, 551 U.S. 89, 93
(2007) (“[S]pecific facts are not necessary . . .
.”). Rather, a complaint needs only enough facts to
suggest that discovery may reveal evidence of illegality,
even if the likelihood of finding such evidence is remote.
Twombly, 550 U.S. at 556.
Procedural Due Process
Counts I and II, Plaintiffs allege that Winfrey and
Baxter's rejection of the petitions, and failure to
suspend the Ordinance, respectively, violate their procedural
due process rights. “Procedural due process generally
requires that the state provide a person with notice and an
opportunity to be heard before depriving that person of a
property or liberty interest.” Warren v. City of
Athens, Ohio, 411 F.3d 697, 708 (6th Cir. 2005). As an
initial matter, the Court must determine whether Plaintiffs
have alleged any liberty interest of which they have been
interests may arise from two sources - the Due Process Clause
itself and the laws of the States.” Tony L. v.
Childers, 71 F.3d 1182, 1185 (6th Cir. 1995) (quotations
omitted). “State-created liberty interests arise when a
state places ‘substantive limitations on official
discretion.'” Id. (quoting Olim
v. Wakinekona, 461 U.S. 238, 249 (1983)). “A state
may create such limitations by ‘establishing
substantive predicates to govern official decision-making . .
. and, further, by mandating the outcome to be reached upon a
finding that the relevant criteria have been met.'”
Jasinski v. Tyler, 729 F.3d 531, 541 (6th Cir. 2013)
(quoting Tony L., 71 F.3d at 1185) (alterations in
Jasinski). “The state statutes or regulations
in question also must use ‘explicitly mandatory
language' requiring a particular outcome if the
articulated substantive predicates are present.”
Tony L., 71 F.3d at 1185 (quoting Kentucky
Dep't of Corrections v. Thompson, 490 U.S. 545, 463
(1989)). “Finally, the statute or regulation must
require a particular substantive outcome.” Id.
allege that they have state-created liberty interests,
pursuant to the Charter, in having their referendum petitions
accepted and canvassed by the City Clerk and in having the
Ordinance suspended. Am. Compl. ¶¶ 49, 72. They
argue that the Charter uses the word “shall, ”
which is explicitly mandatory language. Pl. Resp. at 11-12,
Charter provides, in relevant part:
Section 12-102. Petitions.
Initiative and referendum petitions must be signed by voters
of the City, not less in number than three percent (3%) of
all votes case for the office of Mayor at the preceding
regular city general election. [...]
Section 12-103. Time of ...