Davis v. Wayne Cnty. Election Comm'n

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ROBERT DAVIS, Plaintiff-Appellant, v. WAYNE COUNTY ELECTION COMMISSION, Defendant and KIEFER JOSEPH COX and NICHOLAS JOHN HATHAWAY, Defendants-Appellees.

No. 362547

Court of Appeals of Michigan

May 11, 2023

UNPUBLISHED

Wayne Circuit Court LC No. 22-005710-AW

Before: GLEICHER, C.J., and HOOD and MALDONADO, JJ.

PER CURIAM.

Plaintiff Robert Davis (Davis), appeals as of right the order of the trial court granting the renewed motion for sanctions and attorney fees of defendants Kiefer Joseph Cox (Cox) and Nicholas John Hathaway (Hathaway) (collectively, defendants). The trial court clearly erred in concluding that Davis's complaint was devoid of arguable legal merit and intended to harass. We, therefore, reverse and remand.

I. BACKGROUND

This case originates from a complaint Davis filed seeking to preclude the inclusion of defendants' names on the 2022 primary- and general-election ballots for filing affidavits of identity (AOIs) that purportedly failed to comply with statutory requirements. In mid-April 2022, Cox and Hathaway filed AOIs as a requirement to run for judicial office in the Third Judicial Circuit of Michigan (commonly, "Wayne County Circuit Court"). In relevant part, the portion of the AOI entitled "office sought/ballot information" provides space for the candidate to identify the "office name," "jurisdiction," and "district/circuit/ward" for the office sought. In a spaced marked for "judicial candidates only," the candidate must also mark one of three choices: (1) incumbent position, (2) non-incumbent position, or (3) new judgeship. At the top of this section, and relevant to Hathaway for purposes of this case, the AOI form has a space for candidates to mark if their "name formally changed in the last 10 years for a reason other than marriage or divorce" and, if checked, space for the candidates to "print [their] full former name[.]" It also has a series of boxes to be filled out with the "exact name [the candidate] would like printed on the ballot[.]"

Here both defendants were candidates for the "office" of judge. The "circuit" was the Third Judicial Circuit of Michigan. The "jurisdiction" was Wayne County, which is coextensive with the Third Judicial Circuit.

On Hathaway's AOI, the candidate identified his name as Nicholas John Hathaway. Approximately 2½ years before filing his AOI, in mid-November 2019, Hathaway changed his name from Nicholas John Bobak to Nicholas John Bobak Hathaway.^[1] On his 2022 AOI, Hathaway did not fill out the space for formal name changes, and listed Nicholas John Hathaway as the name he wanted printed on the ballot. Hathaway identified the office sought as "Judge," the jurisdiction as "Circuit Court," and the district, circuit, or ward as "3^rd." Hathaway sought a "non-incumbent position."

On Cox's AOI, the candidate identified "Circuit Court" as the office name, did not fill out the space for jurisdiction, and listed "3^rd Circuit" for the district, circuit, or ward. Under the portion of the AOI for "judicial candidates only," Cox marked that he was running for a "new judgeship" position.

In late April 2022, Davis sued Secretary of State Jocelyn Benson in the Court of Claims. Citing the same alleged defects in defendants' AOIs, and seeking the same relief, at issue in this appeal (described below), Davis sought to disqualify defendants from the August 2022 primaryelection ballot. In mid-May 2022, however, Davis voluntarily dismissed the Court of Claims case.

Shortly before he dismissed his Court of Claims case, Davis sued defendants and the Wayne County Election Commission in Wayne Circuit Court, seeking declaratory and injunctive relief, and the issuance of a writ mandamus, as follows: (1) declarations that Cox's and Hathaway's AOI did not comply with MCL 168.558 by failing to include the correct title of the office sought and the jurisdiction, and an order enjoining Cox and Hathaway from holding themselves out as candidates and the Wayne County Election Commission from printing or including them on the primary- and general-election ballots; (2) a declaration that Hathaway's AOI did not comply with MCL 168.558 because he failed to include his legal name and former name on the AOI (and a similar order enjoining Hathaway and the Wayne County Election Commission); and (3) issuance of a writ of mandamus compelling the Wayne County Election Commission to remove, and not print, defendants' names on the primary- and general-election ballots as judicial candidates for Wayne Circuit Court. Alongside his complaint, Davis filed an emergency motion seeking the same relief.

The trial court held a hearing on Davis's emergency motion. At the hearing, defendants made an oral motion for attorney fees and costs, which Davis urged the court to reject. The trial court found that Davis's argument regarding the alleged errors in Cox's AOI elevated form over substance and that it was clear from information in Cox's AOI that he was running for a judgeship in the Third Circuit Court in Wayne County. The court was similarly unpersuaded by Davis's argument about Hathaway's AOI. Despite the discussion related to the AOIs, however, the trial court dismissed Davis's complaint based on defendants' argument that the Secretary of State had the sole authority to determine certification of candidates for circuit court elections and, therefore, the Court of Claims had exclusive jurisdiction. The court also found that Davis filed a frivolous complaint and awarded attorney fees to defendants. Accordingly, the trial court entered an order denying Davis's emergency motion and dismissing his complaint, finding that it lacked subjectmatter jurisdiction over the case.

Davis appealed, and this Court, in Davis v Wayne Co Election Comm, unpublished per curiam opinion of the Court of Appeals, issued June 2, 2022 (Docket No. 361546), vacated the trial court's order, in part, and remanded for further proceedings. First, this Court determined that the trial court erred when it found that it lacked subject-matter jurisdiction. Id. at 2-3. This Court also addressed the merits of Davis's claims-that defendants' respective AOIs failed to comply with statutory requirements. Id. at 3-5. The Davis Court held that Cox and Hathaway individually complied with the requirements that their AOIs include (1) the title of the office sought and (2) the "jurisdiction, district, circuit, or ward" in which the office is positioned. Id. at 4-5. The Court also concluded that Davis failed to demonstrate that Hathaway's AOI was deficient because it listed his name as "Nicholas John Hathaway," not "Nicholas John Bobak Hathaway." Id.

The Davis Court also vacated the trial court's order granting of sanctions because the trial court's conclusion that Davis's complaint was frivolous was "premised on the erroneous conclusion that it lacked jurisdiction." Davis, unpub op at 5. The Court vacated the trial court's award of attorneys' fees and costs, instructing that, on remand, defendants could "seek sanctions on the basis that the complaint was frivolous for other reasons." Id. The Court stressed, however, that its decision "should not be read as implying that the complaint is or is not frivolous," instead "leav[ing] that decision to the trial court in the first instance." Id. at 5-6. Accordingly, this Court affirmed the trial court's dismissal of Davis's complaint, but vacated the portion of the trial court's order awarding sanctions and remanding for further proceedings. Id. at 6.

In mid-June 2022, defendants renewed their motion for sanctions and attorney fees against Davis for filing a frivolous complaint, moving for sanctions under MCL 600.2591. They asserted the complaint was devoid of arguable legal merit and that sanctions were appropriate for several reasons. First, they argued the complaint was frivolous because Davis sued the Secretary of State in the Court of Claims, seeking similar relief, and, despite having alleged that the Court of Claims had exclusive jurisdiction, sued defendants in circuit court. Second, defendants argued Davis was an experienced, election-law litigator, so he knew his lawsuit was frivolous. Third, they argued Davis dismissed the Court of Claims lawsuit without prejudice in order to leave defendants subject to further litigation. Fourth, defendants argued that Davis's acknowledgment that he did not support defendants as candidates demonstrated that his lawsuit was meant to harass them. Fifth, they argued that Davis's argument, that Cox had to specify the exact position he was running for, rather than stating "Circuit Court," was devoid of any merit because there was no other position to run for in the circuit court. Finally, defendants argued that Davis's complaint was frivolous due to the trial court's finding that his exclusive remedy was in the Court of Claims.

Defendants also asserted that additional information had "come to light" that supported imposing sanctions against Davis. Notably, defendants referenced statements from Davis at the mid-May 2022 hearing on his emergency motion related to why he dismissed his Court of Claims case. Specifically, defendants referenced Davis's statements that he was informed that the press of business before the Court of Claims would delay the progress of his case.

Defendants requested a total of $34,442 in attorney fees: $21,963 in attorney fees for Cox; and $12,479 in attorney fees for Hathaway. This covered fees accumulated from May 4, 2022 through June 6, 2022. It also included attorney fees and costs billed for Cox and Hathaway's appeal in Court of Appeals Docket No. 361546. Defendants argued that their requested fees were reasonable because of the nature and difficulty of the case, the quick response time required, and their attorneys' experience. ...