Judge Rules Farmington Hills Candidate’s Disqualification Stands

Judge Rules Farmington Hills Candidate’s Disqualification Stands

(Crystal A. Proxmire, Aug. 29, 2019)

Farmington Hills, Pontiac, MI – Farmington Hills Councilperson Theresa Rich is exploring her options following a decision by Oakland County Judge Michael Warren that the city clerk was correct in disqualifying her from the Nov. 5, 2019 ballot.

Rich had been certified as a candidate after turning in her nominating petitions and Affidavit of Identity on April 17.

In the space provided for office sought on the Affidavit of Identity, Rich wrote in the word “City,” failing to include the words “Council Member.”  The mistake was not caught by the local clerk, and in August the Oakland County Clerk’s office notified the local clerk of the error. The local clerk disqualified Rich because of the error.

Rich was one of three candidates in various Oakland County cities who were disqualified due to issues with their affidavit.  In Hazel Park, councilperson Bethany Holland was disqualified after using an outdated form.  In Birmingham it was a Commissioner running for re-election that got the bad news after errors in campaign filings of the past were caught by the County Clerk’s office. In that case the City Clerk initially declined removing the candidate. They argued that the City Clerk had done their job in certifying the candidate and that it was not their place to remove him.  The Clerk there sought the advice from the state and eventually agreed to disqualify Pierre Boutros, who had checked a box regarding campaign finance reports being up to date, although they were not.

Rich hired attorney Terry Johnson to sue the City of Farmington Hills  and the Oakland County Clerk to be reinstated as a candidate.

Attorneys on both sides agreed that the state statute does not make a clear remedy for this situation, although case law gives some examples of cases where there were problems with petitions.

Johnson  argued that none of the cited cases was dealing with the Affidavits themselves.  Also, he added that in other cases the lawsuits were brought by aggrieved parties, such as other candidates or surrogates who were challenging a candidate’s eligibility.

Johnson argued that the process should be that an aggrieved opponent would sue to have a candidate removed, not for the candidate to be directly removed by a clerk after the point where the clerk had certified the candidate.

“The burden would be on the other party to show why she shouldn’t be on,” he said.  He argued that having the clerk make the decision goes around the candidate’s right to due process.

“This gives the clerk huge discretion of what’s good enough,” Johnson said.  He added that if clerks do not speak up about errors in a timely manner, it takes away the candidate’s ability to fix the problem in time. He argued that if a clerk certifies a candidate and there is no new information, the matter should be decided on by the courts, not by the clerks themselves.

Johnson also requested that if Rich be removed that two other city council candidates also be removed.  Those candidates had written “City council” on their affidavits, but technically the office is “council member.”  He argued that the clerks had already used discretion in allowing those two candidates to remain.

After the hearing, Johnson told Oakland County Times that his client’s intention is “not for any voter in Farmington Hills to be disenfranchised, but for her to be treated equally.”

Attorney Brandon Buck represented Oakland County Clerk Lisa Brown in the case. He argued that the local clerk – not the county clerk – is the appropriate party for the lawsuit, since the decision is made at the local level.

He also argued that clerks, whether at the local or county level, have a duty to follow the law.  He gave examples, such as someone lying about their residency. “It is in the public interest that a candidate who doesn’t quality not be on the ballot,” Buck said.

During the hearing, Judge Warren noted that Rich’s case “tugs at the heartstrings.”  Buck used Warren’s phrase soon after in regards to his client.

“She can’t have heartstrings when it comes to doing her duty as an elections official to follow the law,” he said.  He questioned where the line of discretion would be if it were not at the law.  “If you use discretion for one person, and not another, where would the line be in treating all candidates consistently?”

In a 12 page decision, Warren laid out the reasons for denying Rich’s requests.  As far as removal of the other candidates, that was off the table because they had not been included in the lawsuit, and therefore no opportunity to be heard.

As far as Rich being on the ballot, the answer was no.

Warren wrote in his decision that “Michigan election law requires that an Affidavit of Identity for the office sought…. In alignment with the founding First Principles and the rules of statutory construction, our Supreme Court has rejected a ‘substantial compliance’ doctrine with regard to elections and instead has emphatically held that strict conformity with election law applies.” He gave the example of Stand up for Democracy v. Secretary of State in 2012 which solidified the law that candidates must use proper font sizes on petitions.

The ruling stated that the affidavit is defective because it fails to list the office sought.  Judge Warren included a definition of the word “city,” followed by “Simply put, that is not an office.”

He went on to say that “As such, the Affidavit of Identity was defective, and this Court has not authority to overlook its deficiency and order the Plaintiff onto the Ballot.”

Warren also wrote that the Court could not be used to create a new procedure that would allow the Plaintiff to correct her error, and that the Clerk’s duty to uphold the law does not end once a candidate is certified.  “This would result in the untenable position of the City Clerk, in clear violation of her duty, of placing on the ballot candidates she knows to be unqualified solely because the basis of disqualification was belatedly made.”

Attorney for Farmington Hills Steven Joppich said in court “The timing issue is unfortunate in this case.  If there’s an error that’s discovered too late, they still have a legal duty to make sure the affidavit complies with the law.”

Rich’s attorney said they are considering an appeal, which he said would likely be heard prior to the election if they decide to persue it.  “Theresa Rich is committed to serving the people of Farmington Hills,” he said.  “Worst case scenario she will be running as a write in candidate.”

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