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Lauve v. Winfrey

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

July 10, 2018

JOHN LAUVE and ROBERT DAVIS, Plaintiffs,
v.
JANICE WINFREY, et al. Defendants.

          OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (DKT. 29)

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         Plaintiffs 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.[1] 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.

         On 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.

         Plaintiffs 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. 13, 2017).

         Plaintiffs 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).

         II. STANDARD OF REVIEW

         On a 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.

         Evaluating 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.

         III. ANALYSIS

         A. Procedural Due Process

         In 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 deprived.

         “Liberty 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.

         Plaintiffs 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, PageID.401-402.

         The 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 ...

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