Nykoriak v. Napoleon

334 Mich.App. 370

964 N.W.2d 895

T. P. NYKORIAK, Plaintiff-Appellant,

v.Benny NAPOLEON, Wayne County Clerk, and Wayne County Board of Election Commissioners, Defendants-Appellees.

No. 354410

Court of Appeals of Michigan.

Submitted October 9, 2020, at Grand Rapids.

Decided October 22, 2020, 9:20 a.m.

Alexander V. Lyzohub for T. P. Nykoriak.

Perkins Law Group, PLLC, Detroit (by Todd Russell Perkins ) for Benny Napoleon.

Janet Anderson Davis, Assistant Corporation Counsel, for the Wayne County Clerk and the Wayne County Board of Election Commissioners.

Before: Letica, P.J., and K. F. Kelly and Redford, JJ.

Per Curiam.

Plaintiff appeals as of right the circuit court order denying his complaint and motion for a writ of mandamus seeking to compel defendants the Wayne County Clerk (the Clerk) and the Wayne County Board of Election Commissioners (the Board) (collectively, the Wayne County defendants), to reject a facially defective election form and disqualify defendant Benny Napoleon (Napoleon) as a competing candidate in the election for the office of Wayne County Sheriff. We affirm.

I. BACKGROUND

Plaintiff, a candidate for the Democratic primary election, filed a complaint seeking a writ of mandamus to compel the Wayne County defendants to disqualify the incumbent candidate, Napoleon, based on an allegedly facially defective affidavit of identity (AOI). Specifically, plaintiff alleged that Napoleon's AOI was defective because it was not properly notarized. Defendants responded that the AOI was not defective and that plaintiff's claim was barred by the doctrine of laches.

Following a hearing, the circuit court agreed with defendants and denied plaintiff's complaint and related motions. This appeal followed and we granted immediate consideration. Nykoriak v. Napoleon , unpublished order of the Court of Appeals, entered August 14, 2020 (Docket No. 354410).¹

II. MANDAMUS

Plaintiff argues that the circuit court erred by failing to issue a writ of mandamus directing the Wayne County defendants to disqualify Napoleon as a candidate in the election for Wayne County Sheriff on the basis of his facially defective AOI. We disagree.

"This Court reviews for an abuse of discretion a trial court's grant or denial of a writ of mandamus. An abuse of discretion occurs when the trial court chooses an outcome that falls outside the range of reasonable and principled outcomes." Southfield Ed. Ass'n v. Bd. of Ed. of the Southfield Pub. Schs. , 320 Mich. App. 353, 378, 909 N.W.2d 1 (2017) (quotation marks and citations omitted). "We review de novo, as questions of law, whether defendants have a clear legal duty to perform and whether plaintiff has a clear legal right to performance of any such duty." Berry v. Garrett , 316 Mich. App. 37, 41, 890 N.W.2d 882 (2016). We also review de novo the interpretation of statutes. Protecting Mich. Taxpayers v. Bd. of State Canvassers , 324 Mich. App. 240, 244, 919 N.W.2d 677 (2018).

As we explained in O'Connell v. Dir. of Elections , 317 Mich. App. 82, 90-91, 894 N.W.2d 113 (2016) :

Mandamus is an extraordinary remedy .... Thus, issuance of this writ is proper only if (1) the party seeking the writ has a clear, legal right to performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial, and (4) no other remedy exists, legal or equitable, that might achieve the same result. Within the meaning of the rule of mandamus, a clear, legal right is one clearly founded in, or granted by, law; a right which is inferable as a matter of law from uncontroverted facts regardless of the difficulty of the legal question to be decided. [Quotation marks and citations omitted.]

"A ministerial act is one in which the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." Berry , 316 Mich. App. at 42, 890 N.W.2d 882 (quotation marks omitted).

Plaintiff argues that Napoleon's AOI did not comply with MCL 168.558. Accordingly, this issue involves the interpretation of that statute.

This Court's primary task in interpreting and applying a statute is to discern and give effect to the intent of the Legislature. The words of the statute are the most reliable evidence of the Legislature's intent, and this Court must give each word its plain and ordinary meaning. In interpreting the statute at issue, [this Court] consider[s] both the plain meaning of the critical words or phrase as well as its placement and purpose in the statutory scheme. When a statute's language is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. [ Stumbo v. Roe , 332 Mich. App. 479, 484-485, 957 N.W.2d 830 (2020) (quotation marks and citations omitted; alterations in original).]

MCL 168.558 relates to the filing of petitions, fees, and affidavits for primary elections and provides:

(1) When filing a nominating petition, qualifying petition, filing fee, or affidavit of candidacy for a federal, county, state, city, township, village, metropolitan district, or school district office in any election, a candidate shall file with the officer with whom the petitions, fee, or affidavit is filed 2 copies of an affidavit of identity. A candidate nominated for a federal, state, county, city, township, or village office at a political party convention or caucus shall file an affidavit of identity within 1 business day after being nominated with the secretary of state. The affidavit of identity filing requirement does not apply to a candidate nominated for the office of President of the United States or Vice President of the United States.

(2) An affidavit of identity must contain the candidate's name and residential address; a statement that the candidate is a citizen of the United States; the title of the office sought; a statement that the candidate meets the constitutional and statutory qualifications for the office sought; other information that may be required to satisfy the officer as to the identity of the candidate; and the manner in which the candidate wishes to have his or her name appear on the ballot. If a candidate is using a name that is not a name that he or she was given at birth, the candidate shall include on the affidavit of identity the candidate's full former name.

(3) The requirement to indicate a name change on the affidavit of identity does not apply if the name in question is 1 of the following:

(a) A name that was formally changed at least 10 years before filing as a candidate.

(b) A name that was changed in a certificate of naturalization issued by a federal district court at the time the individual became a naturalized citizen at least 10 years before filing as a candidate.

(c) A name that was changed because of marriage.

(d) A name that was changed because of divorce, but only if to a legal name by which the individual was previously known.

(e) A name that constitutes a common law name as provided in section 560b.

(4) An affidavit of identity must include a statement that as of the date of the affidavit, all statements, reports, late filing fees, and fines required of the candidate or any candidate committee organized to support the candidate's election under the Michigan campaign finance act, 1976 PA 388, MCL 169.201 to 169.282, have been filed or paid; and a statement that the candidate acknowledges that making a false statement in the affidavit is perjury, punishable by a fine up to $1,000.00 or imprisonment for up to 5 years, or both. If a candidate files the affidavit of identity with an officer other than the county clerk or secretary of state, the officer shall immediately forward to the county clerk 1 copy of the affidavit of identity by first-class mail. The county clerk shall immediately forward 1 copy of the affidavit of identity for state and federal candidates to the secretary of state by first-class mail. An officer shall not certify to the board of election commissioners the name of a candidate who fails to comply with this section, or the name of a candidate who executes an affidavit of identity that contains a false statement with regard to any information or statement required under this section.

(5) If petitions or filing fees are filed by or on behalf of a candidate for more than 1 office, either federal, state, county, city, village, township, metropolitan district, or school district, the terms of which run concurrently or overlap, the candidate so filing, or on behalf of whom petitions or fees were so filed, shall select the 1 office to which his or her candidacy is restricted within 3 days after the last day for the filing of petitions or filing fees unless the petitions or filing fees are filed for 2 offices that are combined or for offices that are not incompatible. Failure to make the selection disqualifies a candidate with respect to each office for which petitions or fees were so filed and the name of the candidate must not be printed upon the ballot for those offices. A vote cast for that candidate at the ensuing primary or general election must not be counted and is void.

(6) A violation of this section for perjury is distinct and separate from any violation of the Michigan campaign finance act, 1976 PA 388, MCL 169.201 to 169.282.

As we explained in Stumbo , 332 Mich. App. at 483, 957 N.W.2d 830

[u]nder MCL 168.558(1) and (2), a candidate filing a nominating petition or a filing fee in lieu of nominating petition must also file an AOI containing the candidate's name, address, and other information useful to establishing the candidate's identity. The Secretary of State provides a form AOI for use by candidates. This form AOI includes a space designated for the candidate's signature. To the immediate right of the signature space is a space designated for the candidate to record the date he or she signed the AOI. The form AOI also provides space for a notary to attest to the identity of the

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