Bogaert v. Land

543 F.3d 862

Rose BOGAERT, Plaintiff-Appellee, v. Terri Lynn LAND, Individually and in her official capacity as Michigan Secretary of State, Defendant-Appellant (08-2130), Andrew Dillon, Intervenor-Appellant (08-2131) Wayne County Clerk Cathy M. Garrett; Wayne County Election Commission, Intervenors-Appellants (08-2140).

No. 08-2130.

No. 08-2131.

No. 08-2140.

United States Court of Appeals, Sixth Circuit.

October 8, 2008.

Before: CLAY, GILMAN, and ROGERS, Circuit Judges.

ORDER

The plaintiff is the sponsor of a petition to recall a Michigan state legislator from office. In June 2008, Michigan Secretary of State Terri Lynn Land, invoking the provisions of M.C.L. § 168.957, declared that the plaintiff had not obtained the required number of votes to put the recall issue on the ballot. The plaintiff then filed this civil rights action asserting that M.C.L. § 168.957 violated the First Amendment. She also filed a motion for a preliminary injunction ordering Secretary Land to re-examine the recall petitions without applying the challenged state statute. Representative Andrew Dillon, the subject of the recall petition, was permitted to intervene, as were Wayne County Clerk Cathy M. Garrett and the Wayne County Election Commission—the latter two being responsible for the final preparation of the ballot in the state legislative district represented by Dillon.

On August 27, 2008, the district court granted a preliminary injunction directing Secretary Land to re-examine the submitted petitions without applying M.C.L. § 168.957, and, if she found that the plaintiff had submitted sufficient signatures, to certify the recall initiative for placement on the November 2008 general election ballot. Secretary Land and the intervenors (hereinafter collectively referred to as "the appellants") filed notices of appeal and moved this court for a stay of the preliminary injunction pending appeal. This court denied those motions in an order of September 9, 2008. Secretary Land subsequently completed her re-examination of the submitted petitions and certified the recall initiative for placement on the general election ballot. That ballot has now been prepared and sent to the printers.

In light of the above developments, the plaintiff now moves for the dismissal of all three appeals on the ground of mootness. The plaintiff argues that Secretary Land has fulfilled all of the obligations required of her under the preliminary injunction, that her actions are irrevocable, and that this court can no longer render relief in the immediate appeals. The appellants oppose such dismissal by arguing that this court could still award relief to them through the November election and until such time as the ballots are tabulated and certified as final. The Wayne County intervenors also argue that there is still time to inform voters that the recall initiative has been removed from the ballot or to program scanning equipment not to count any votes cast on the recall initiative.

All parties agree that the specific steps required by the preliminary injunction have been completed and that those steps cannot be undone at this time. The concerns expressed by our dissenting colleague appear to us to fall outside the scope of the preliminary injunction, which we do not view as "revocable" simply because the future course of the litigation could alter its effects. Dismissal of these preliminary-injunction appeals, of course, does not render moot the underlying district court litigation. Should there be a dispute as to further steps in the election process that were not addressed in the preliminary injunction, the parties are free to seek interim relief in the district court. Should the district court enter further orders or a judgment in the action pending before it, an adversely affected party or parties may seek further review in this court as permitted by the normal appellate process.

Furthermore, the appellants' argument that their appeals are not moot is based solely on the possibility that this court may render, before the date of the general election, an opinion that will negate the preliminary injunction entered by the district court. This hypothetical opinion would presumably require the appellants to take measures affecting the voting process or the tabulation of votes such that the recall vote would have no effect. The appellants, however, have thus far sought only a stay of the preliminary injunction—a remedy this court denied in its order of September 9, 2008. They did not seek reconsideration of that order and did not move for expedited consideration of their appeals or request expedited briefing schedules. As a result, the briefing necessary for full appellate review in this matter will not have been completed until well after the general election has taken place and the votes tabulated. What may be possible in theory does not conform to the realities of the situation before us. We therefore conclude that the pending appeals are moot.

It therefore is ORDERED that the motions to dismiss are granted.

CLAY, Circuit Judge, dissenting.

Just three weeks ago, this Court resorted to legal technicalities to deny appellants' emergency motions seeking to stay the district court's preliminary injunction. In my opinion, that decision improperly deprived Representative Dillon and Secretary of State Land of their right to have their claims considered on the merits. Today, the Court adopts that same approach and in doing so once again improperly deprives the litigants, and indeed the citizenry of the State of Michigan, of a forum for the proper consideration of these important issues.

According to the majority, these appeals are now moot because appellants have not yet requested expedited consideration of their appeals and thus their opposition to the present motion rests merely on the "possibility that this court may render, before the date of the general election, an opinion that will negate the preliminary injunction entered by the district court." In other words, the majority finds these appeals moot because, absent expedited consideration, the normal course of briefing provided for in Rule 31 will not be completed before the election. But that cannot be the legal test for determining mootness. Mootness is a jurisdictional question that serves to define the reach of the federal courts. Mootness thus turns on the nature of the claims presented and whether the courts can offer meaningful relief to the parties, not on guesswork regarding what course briefing may take in a case. This Court's jurisdiction to hear an appeal certainly does not turn on whether the briefing schedule provided for in Rule 31 can be followed.

Contrary to the characterization of the majority, appellants are not arguing that it is the possibility that this Court may issue an opinion before the November election that defeats mootness here, but rather the capability of this Court to still render meaningful relief up until that time. At this point, the Court simply does not know whether appellants will seek expedited briefing or choose to pursue other legal maneuvers to have their claims considered before the election. But what we do know is that appellants' papers make clear that meaningful relief may still be had up until the election has occurred and the results have been finalized. Until such time as meaningful relief is no longer available, dismissing these appeals as moot would be premature. At a minimum, the Court should either request further briefing on the availability and practicality of alternative relief, or at least advise appellants that the Court is inclined to dismiss the appeals unless expedited briefing is requested immediately.

Because the majority's dismissal order is predicated on an overly narrow understanding of the mootness doctrine and apparent guesswork regarding the future course of briefing, I respectfully must dissent.

I.

Representative Andrew Dillon represents the 17th House District in the Michigan House of Representatives. He also is the Speaker of the House. Plaintiff-Appellee Rose Bogaert is a resident of the 17th House District. On October 1, 2007, Representative Dillon voted in favor of an increase in the state income tax and to extend the state sales tax to certain services. Based on this vote, Plaintiff initiated a campaign to recall Representative Dillon.

On October 12, 2007, Plaintiff filed a recall petition against Representative Dillon with the Wayne County Clerk. Under M.C.L. § 168.952(3), the Wayne County Election Commission (the "Commission") is charged with determining whether the recall petition is "of sufficiently clarity." On November 1, 2007, the Commission determined that the recall petition was not sufficiently clear, and rejected the petition. As provided for under M.C.L. § 168.952(6), Plaintiff filed an appeal from the Commission's decision in Wayne County Circuit Court. On January 18, 2008, the circuit court approved Plaintiff's recall petition as sufficiently clear for purposes of M.C.L. § 168.952(3). Representative Dillon appealed that decision to the Michigan Court of Appeals. While that appeal was pending, Plaintiff moved forward with the recall petition drive.

Following the approval of a recall petition, Michigan law affords a party 90 days to collect a sufficient number of signatures to place the recall on the ballot. In this case, Plaintiff apparently had until May 2, 2008 to collect sufficient signatures. Under Michigan law, 8,724 valid signatures— a figure equal to one-quarter of the number of people that voted in the last gubernatorial election in the 17th District—were required to place the recall on the ballot. On May 1, 2008, Plaintiff submitted 15,737 signatures to the Secretary of State for review.¹ Under M.C.L. § 168.961 a(2), Representative Dillon and other opponents of the recall had 30 days to challenge the validity of the submitted signatures, including the 2,053 signatures at issue here....