If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ROBERT DAVIS, UNPUBLISHED
July 20, 2023
Plaintiff-Appellant,
v No. 363604
Wayne Circuit Court
WAYNE COUNTY ELECTION COMMISSION, LC No. 22-008866-AW
PATRICIA SUSAN FRESARD, KELLY ANN
RAMSEY, LAKENA TENILLE CRESPO, and
WAYNE COUNTY BOARD OF CANVASSERS,
Defendants-Appellees,
and
NICHOLAS JOHN HATHAWAY,
Intervening Defendant-Appellee.
Before: PATEL, P.J., and BOONSTRA and RICK, JJ.
PER CURIAM.
Plaintiff, Robert Davis, appeals as of right an opinion and order denying his motion for
declaratory and mandamus relief; granting summary disposition in favor of defendant Patricia
Susan Fresard, defendant Kelly Ann Ramsey, defendant LaKena Tenille Crespo, and intervening-
-1-
defendant, Nicholas John Hathaway;1 denying Davis’s motion for injunctive relief; and dismissing
Davis’s case in its entirety.2 Finding no error requiring reversal, we affirm.
I. BACKGROUND
This case concerns the November 2022 general election. Specifically, Davis sought to
preclude the inclusion of Fresard, Ramsey, and Crespo’s names on the ballot because they filed
affidavits of identity (AOIs) that purportedly failed to comply with statutory requirements. He
further challenged the form in which Hathaway’s name could appear on the ballot. Incumbents
Fresard and Ramsey and nonincumbents Crespo and Hathaway ran for judicial office in the Third
Judicial Circuit of Michigan (commonly, “Wayne County Circuit Court”). In pursuit of their
respective candidacies, each filed an AOI with the Secretary of State. The form affidavit included
a line labeled: “Political party, if a partisan office. If running without party affiliation list ‘No
Party Affiliation.’ ” Ramsey and Fresard filed their AOIs on March 9, 2022, and March 17, 2022,
respectively, and both left the party-affiliation line blank. Crespo filed her AOI on April 19, 2022,
writing “N/A” on the party-affiliation line. Hathaway wrote “No Party Affiliation” on his April
18, 2022 AOI.
Relevant to the claims against Hathaway in 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[.]” Hathaway did not fill out the space on his 2022 AOI for formal name changes,
and indicated that he wished his name to appear on the ballot in the following form: “Nicholas
John Hathaway.”
On July 26, 2002, Davis filed suit against the WCEC, Fresard, Ramsey, and Crespo. Davis
alleged that the candidates’ AOIs were facially defective for failing to include an affirmative
statement regarding their lack of party affiliation and sought to disqualify them from the November
2022 general-election ballot. Although the Secretary of State certified these candidates for
inclusion on the ballot, Davis alleged that the WCEC had an independent duty to determine
whether each candidate was properly certified to appear on the general election ballot, as well as
a duty to correct the alleged error committed by the Secretary of State. Davis sought declaratory
and mandamus relief effectively precluding Fresard’s, Ramsey’s, and Crespo’s candidacies.
Davis’s complaint was accompanied by an emergency motion for declaratory judgment, writ of
mandamus, and an order to show cause on substantively identical grounds.
1
Hathaway did not move for summary disposition or expressly join in the motions filed by other
defendants. Nevertheless, the merits of the claim concerning Hathaway were before the court in
the context of Davis’s motion for declaratory and mandamus relief.
2
Defendant Wayne County Election Commission (WCEC) did not move for summary disposition,
but the trial court’s denial of plaintiff’s motion for declaratory and mandamus relief resulted in
dismissal of the amended complaint seeking the same relief.
-2-
Davis’s case was initially assigned to Wayne Circuit Court Chief Judge Timothy M.
Kenny. Chief Judge Kenny signed a show-cause order scheduling the matter for hearing on August
4, 2022. On July 29, 2022, Davis filed an emergency motion to disqualify Chief Judge Kenny and
the entire Wayne Circuit Court judiciary because of their relationships with the two incumbent
defendants, Fresard and Ramsey. Chief Judge Kenny denied Davis’s disqualification motion on
August 8, 2022. On August 11, 2022, the State Court Administrative Office (SCAO) assigned the
motion to Wayne Circuit Court Judge Freddie G. Burton, Jr., for review, but Judge Burton
disqualified himself sua sponte based on his role as chairman of the WCEC. Subsequently, the
SCAO assigned the motion to Macomb Circuit Court Judge James M. Biernat, Jr., for de novo
review. Judge Biernat granted the motion for disqualification as to Chief Judge Kenny only. But
he declined to address the issue with respect to the other Wayne Circuit Court judges because
Davis withdrew his request for such relief at oral argument.
On September 9, 2022, Wayne Circuit Court Judge Susan L. Hubbard disqualified herself
sua sponte. Judge Hubbard declared that a judicial ethics opinion prohibited the assignment of
any Wayne Circuit Court judge to Davis’s case and thus indicated that the case should be
reassigned by the SCAO. On September 12, 2022, Judge Hubbard entered an opinion and order
explaining her reasoning in further detail. Thereafter, on September 13, 2022, Wayne Circuit
Court Judge Brian R. Sullivan entered an order transferring the case from Chief Judge Kenny to
Wayne Circuit Court Judge Qiana D. Lillard, citing Judge Biernat’s disqualification order as the
reason for the reassignment.3
Davis filed an amended complaint on September 22, 2022, adding the Wayne County
Board of Canvassers as a defendant, though it does not appear that the newly added defendant was
ever served the complaint or otherwise participated in this case. Davis also added allegations that
the WCEC met on September 15, 2022, to authorize printing of the general election ballots. Davis
claimed that he submitted legal challenges to the WCEC regarding the improper certification of
Fresard, Ramsey, Crespo, and a fourth candidate, as well as a challenge to the way Hathaway’s
name would appear on the ballot. Despite these challenges, the WCEC voted to accept the list of
certified candidates, including the five challenged candidates, and to print the ballots for the
general election. Because the ballots were printed and ballot dissemination had already begun,
Davis added requests for relief seeking a judgment declaring that the WCEC had a legal duty to
inform voters that any votes cast for Fresard, Ramsey, or Crespo would not be counted or certified.
3
On September 14, 2022, plaintiff filed with this Court a complaint for writ of superintending
control, alleging that Wayne Circuit Court, and Chief Judge Kenny in particular, were failing to
enforce Judge Hubbard’s September 12, 2022 opinion and order requiring that the case be referred
to the SCAO for assignment to a judge outside of the Wayne Circuit Court. This Court dismissed
the complaint. In re Robert T Davis, unpublished order of the Court of Appeals, entered September
15, 2022 (Docket No. 362987). In doing so, it “presume[d]” that the more recent September 13,
2022 order entered by Judge Sullivan was controlling over Judge Hubbard’s earlier orders on the
subject. Id. Plaintiff’s subsequent application for leave to appeal was denied “for failure to
persuade the court of the need for immediate appellate review.” Davis v Wayne Co Election
Comm, unpublished order of the Court of Appeals, entered September 20, 2022 (Docket No.
363010).
-3-
Davis also sought a writ of mandamus compelling the WCEC to correct the ballot errors by
removing Fresard, Ramsey, and Crespo from the ballot and inform the voters that no votes cast for
those candidates would be counted, tallied, or certified. With respect to Hathaway and another
nonparty candidate, Davis sought a writ of mandamus compelling the WCEC to correct the ballot
errors by immediately reprinting the ballots to accurately reflect the candidates’ legal names and
not print, circulate, or distribute ballots that did not reflect their legal names. According to Davis,
Hathaway had to be identified by his full legal name, Nicholas John Bobak Hathaway, and could
not appear on the ballot as “Nicholas John Hathaway.”
On September 22, 2022, Davis moved to disqualify Judge Lillard. Judge Lillard denied
the motion on October 4, 2022. Pursuant to Davis’s request, Judge Lillard immediately referred
the disqualification motion to the SCAO for de novo review by another judge of the SCAO’s
choosing. But Davis withdrew his request on October 6, 2022, stating he believed “that based
upon the representations Judge Lillard made on the record during the October 4, 2022 hearing,
Judge Lillard can be fair and impartial in adjudicating the merits of this case.” Accordingly, Judge
Lillard presided over the balance of the proceedings.
Thereafter, five pertinent motions were presented to the court: (1) Hathaway’s motion to
intervene; (2) Fresard and Ramsey’s motion for summary disposition; (3) Crespo’s motion for
summary disposition; (4) Davis’s emergency ex parte motion for a temporary restraining order or
preliminary injunction and show-cause order; and (5) Davis’s emergency motion for declaratory
and mandamus relief. Judge Lillard granted Hathaway’s motion to intervene and, in a subsequent
opinion, held that (1) the WCEC need not “correct” the way Hathaway’s name appeared on the
ballot, (2) there was no defect in Crespo’s AOI, and (3) Davis’s claims relating to Fresard and
Ramsey were precluded by laches. Judge Lillard denied Davis’s motion for declaratory and
mandamus relief, dismissed his motion for injunctive relief, and granted summary disposition in
favor of Crespo, Fresard, Ramsey, and Hathaway. This appeal followed.
II. MOOTNESS
Needless to say, the November 8, 2022 election has already taken place. Even so, Davis
preemptively argues that this Court should not decline review on mootness grounds.4 We agree.
“[T]he question of mootness is a threshold issue that a court must address before it reaches
the substantive issues of a case.” Can IV Packard Square, LLC v Packard Square, LLC, 328 Mich
App 656, 661; 939 NW2d 454 (2019) (cleaned up). An issue is moot if it involves an abstract
question of law without foundation in existing facts or rights or is presented under circumstances
“in which a judgment cannot have any practical legal effect upon a then existing controversy.” TM
v MZ, 501 Mich 312, 317; 916 NW2d 473 (2018) (cleaned up). Although this Court will not
4
Fresard and Ramsey moved for dismissal of this appeal, arguing that it was rendered moot by the
occurrence of the November 2022 general election because plaintiff exclusively sought preelection
remedies below that could no longer be granted. Another panel of this Court denied the motion
without explanation. Davis v Wayne Co Election Comm, unpublished order of the Court of
Appeals, entered March 14, 2023 (Docket No. 363604).
-4-
generally address such issues, Can IV Packard Square, 328 Mich App at 661, “a moot issue will
be reviewed if it is publicly significant, likely to recur, and yet likely to evade judicial review,” In
re Indiana Mich Power Co, 297 Mich App 332, 340; 824 NW2d 246 (2012). This exception is
commonly applied in cases involving election-related issues because “the strict time constraints of
the election process necessitate that, in all likelihood, such challenges often will not be completed
before a given election occurs, rendering the discussion . . . moot before appellate review.”
Gleason v Kincaid, 323 Mich App 308, 316; 917 NW2d 685 (2018). See also Christenson v
Secretary of State, 336 Mich App 411, 418; 970 NW2d 417 (2021) (regarding address on
nominating petition); Nykoriak v Napoleon, 334 Mich App 370, 384 n 4; 964 NW2d 895 (2020)
(regarding defective AOI); Barrow v Detroit Election Comm, 305 Mich App 649, 659-660; 854
NW2d 489 (2014) (regarding requirements for write-in candidacy). Indeed, in a recent published
decision involving nearly identical election-law issues, this Court followed the trend of reviewing
the trial court’s rulings on the merits postelection. Davis v Secretary of State, ___ Mich App ___;
___ NW2d ___ (2023) (Docket No. 362841); slip op at 8-9.
This appeal is not limited to claims of error directly implicating the 2022 election. Davis
also raises issues regarding the procedures for reassigning a case following disqualification of the
chief judge.5 The candidacies of incumbent judges will likely be challenged again in the future,
which may prompt the same or substantially similar arguments regarding disqualification of the
candidate’s colleagues and potentially lead to the same procedural anomalies that occurred here.
Proper adjudication of election-law matters is a publicly significant issue. Davis, ___ Mich App
at ___; slip op at 8. Related procedural matters ought to be addressed, but could evade timely
judicial review when tied to time-sensitive substantive election-law issues. Considering the
subject matter of Davis’s claims of error, we will not decline review on mootness grounds.
III. REASSIGNMENT AFTER JUDICIAL DISQUALIFICATION
Davis argues that Judge Sullivan’s order reassigning the case to Judge Lillard was void as
a matter of law because it was entered in violation of MCR 2.613(B) and MCR 8.111(C)(1). While
we agree that Judge Sullivan’s order did not comply with MCR 8.111(C)(1) because he is not the
chief judge and there is no record that he was designated to temporarily act as the chief judge, we
find that Davis is not entitled to appellate relief because he has not demonstrated that he was
prejudiced by Judge Sullivan’s involvement in the reassignment.
Davis’s argument is preserved as it relates to MCR 8.111(C)(1).6 But Davis’s position
regarding MCR 2.613(B) is being raised for the first time on appeal and thus is unpreserved.
Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). “Michigan
generally follows the ‘raise or waive’ rule of appellate review,” under which failure to timely raise
an issue before the trial court constitutes waiver of that issue on appeal. Walters v Nadell, 481
Mich 377, 387; 751 NW2d 431 (2008). But “this Court may overlook preservation requirements
5
Pursuant to Wayne Circuit Court Local Administrative Order 2022-04, all election issues must
be reassigned to the chief judge.
6
We review the proper interpretation and application of court rules de novo as a question of law.
Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005).
-5-
if the failure to consider the issue would result in manifest injustice, if consideration is necessary
for a proper determination of the case, or if the issue involves a question of law and the facts
necessary for its resolution have been presented.” Smith v Foerster-Bolser Constr, Inc, 269 Mich
App 424, 427; 711 NW2d 421 (2006). In this case, we elect to consider Davis’s unpreserved
argument regarding MCR 2.613(B) because it is necessary to a proper determination of the case.
Preliminarily, we must first address Fresard, Ramsey, and Hathaway’s contention that
Davis waived review of this issue twice in the lower court proceedings. First, when Judge Biernat
held oral argument regarding the motion to disqualify Chief Judge Kenny, he asked whether Davis
was still seeking dismissal of the entire Wayne Circuit Court bench. Davis responded that he did
not feel that relief was necessary any longer because he had faith that the other judges would “do
the right thing” by disqualifying themselves. Considering Davis’s new stance, Judge Biernat
considered only whether Chief Judge Kenny could preside over the case. Fresard, Ramsey, and
Hathaway assert that Davis waived this claim of error for a second time when he chose to abandon
his right to review of Judge Lillard’s decision denying Davis’s motion to disqualify herself and
the remaining judges of the Wayne Circuit Court. In his “notice of withdrawal,” Davis described
the lengthy disqualification proceedings that had occurred, noted that an additional review by
Judge Biernat would further delay adjudication of Davis’s time-sensitive legal arguments on the
merits, and concluded that Judge Lillard “can be fair and impartial in adjudicating the merits of
this case.” According to Fresard, Ramsey, and Hathaway, Davis’s concessions waived review of
any forum-related arguments.
“A waiver is the intentional and voluntary relinquishment of a known right.” Home-
Owners Ins Co v Perkins, 328 Mich App 570, 585; 939 NW2d 705 (2019) (cleaned up). Waiver
may be established by “express declarations or by declarations that manifest the parties’ intent and
purpose.” Dep’t of Licensing & Regulatory Affairs v Gordon, 323 Mich App 548, 562; 919 NW2d
77 (2018) (cleaned up). We find the argument in favor of waiver unpersuasive. At most, one
could reasonably argue that Davis waived any contention that Judge Lillard, along with the entire
Wayne Circuit Court judiciary, should be disqualified based on partiality arising from their
professional relationships with the incumbent candidates. But Davis’s claims of error regarding
Judge Lillard’s involvement in this case are not premised on whether Judge Lillard was a fair and
impartial decisionmaker. Rather, he challenges the procedures by which the matter came to be on
Judge Lillard’s docket. And although Davis raised his procedural argument, in part, in his motion
to disqualify Judge Lillard, it is clear from his notice of withdrawal that Davis’s decision to proceed
before Judge Lillard without further review was driven by concerns regarding the fast-approaching
election and his belief regarding Judge Lillard’s neutrality—he did not express or imply
acquiescence to the propriety of Judge Sullivan’s reassignment order. Consequently, he did not
waive this issue.7
7
Hathaway states that this Court already took judicial notice of Judge Sullivan’s order as
controlling when it dismissed plaintiff’s complaint for superintending control. But this Court’s
order merely presumed that Judge Sullivan’s order was controlling, without analysis. In re Robert
T Davis, unpublished order of the Court of Appeals, entered September 15, 2022 (Docket No.
362987). “A matter that a tribunal merely assumes in the course of rendering a decision, without
-6-
Davis argues that Judge Sullivan violated MCR 2.613(B) by purportedly attempting to set
aside or vacate Judge Hubbard’s order disqualifying the entire Wayne Circuit Court bench. MCR
2.613(B) states:
A judgment or order may be set aside or vacated, and a proceeding under a
judgment or order may be stayed, only by the judge who entered the judgment or
order, unless that judge is absent or unable to act. If the judge who entered the
judgment or order is absent or unable to act, an order vacating or setting aside the
judgment or order or staying proceedings under the judgment or order may be
entered by a judge otherwise empowered to rule in the matter.
By Davis’s reasoning, because Judge Hubbard’s disqualification order was entered before Judge
Sullivan reassigned the case to Judge Lillard, Judge Hubbard’s order must be controlling since
Judge Sullivan could not set aside or vacate Judge Hubbard’s earlier order. We disagree.
Davis’s entire argument is premised on his belief that Judge Hubbard’s order was properly
entered, but that belief is not born out by the record. Motions for disqualification of a judge are
generally governed by MCR 2.003. In a circuit court, the challenged judge decides the motion.
MCR 2.003(D)(3)(a). If that judge denies the motion,
(i) in a court having two or more judges, on the request of a party, the
challenged judge shall refer the motion to the chief judge, who shall decide the
motion de novo;
(ii) in a single-judge court, or if the challenged judge is the chief judge, on
the request of a party, the challenged judge shall refer the motion to the state court
administrator for assignment to another judge, who shall decide the motion de novo.
[MCR 2.003(D)(3)(a)(i) and (ii).]
In this case, when Chief Judge Kenny denied Davis’s disqualification motion, the
subsequent de novo review was required to be undertaken by another judge assigned by the SCAO.
MCR 2.003(D)(3)(a)(ii). After the SCAO’s first selection was unable to hear the case, the SCAO
selected Judge Biernat, who subsequently disqualified Chief Judge Kenny based on an appearance
of impropriety. Under MCR 2.003(D)(4)(a), “when a judge is disqualified, the action must be
assigned to another judge of the same court, or, if one is not available, the state court administrator
shall assign another judge.” At the time of Judge Biernat’s decision, only Chief Judge Kenny and
Judge Burton had been disqualified from the case, leaving over 50 Wayne Circuit Court judges as
possible alternatives for reassignment under MCR 2.003(D)(4)(a).
This issue focuses on the manner that the case was reassigned when it returned to Wayne
Circuit Court, which resulted in two conflicting orders. Judge Hubbard was the first to act—she
entered a sua sponte order disqualifying herself and the rest of the Wayne Circuit Court bench,
followed by a detailed opinion. The day after Hubbard entered her opinion, Judge Sullivan entered
deliberation or analysis, does not thereby set forth binding precedent.” Riverview v Michigan, 292
Mich App 516, 523; 808 NW2d 532 (2011).
-7-
an order reassigning the case from Chief Judge Kenny to Judge Lillard due to Judge Biernat’s
order disqualifying Chief Judge Kenny. Davis characterizes Judge Sullivan’s actions as an
improper attempt to set aside or vacate Judge Hubbard’s order disqualifying all Wayne Circuit
Court judges, contrary to MCR 2.613(B).
Davis’s theory is fundamentally flawed because his case was never formally assigned to
Judge Hubbard. Although a draft order transferring the case to Judge Hubbard was filed as an
exhibit to Davis’s emergency motion to disqualify Judge Lillard and the entire Wayne Circuit
Court bench, there is no evidence that it was signed by any Wayne Circuit Court judge. Moreover,
the draft order was not entered in the trial court’s register of actions. MCR 2.602(A)(1) provides
that “all judgments and orders must be in writing, signed by the court, and dated with the date they
are signed.” A trial court speaks through its written orders; an order does not become effective
until it is reduced to writing and signed. Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632
(1977).8 Until the case was properly transferred to another judge in accordance with the court
rules, it remained assigned to Chief Judge Kenny. See Schell v Baker Furniture Co, 461 Mich
502, 515; 607 NW2d 358 (2000) (setting aside dismissal orders entered by chief judge because,
absent “a proper reassignment order under MCR 8.111,” the cases remained assigned to original
judges, precluding substantive or dispositive rulings by the chief judge). Judge Sullivan’s
September 13, 2022 order was the first signed, written order to transfer the case from Chief Judge
Kenny to another judge of the same court as required by MCR 2.003(D)(4)(a). Because the case
was never formally assigned to Judge Hubbard, Judge Sullivan did not violate MCR 2.613(B).
8
Following the oral argument before this Court, plaintiff filed a motion requesting that we take
judicial notice of the September 8, 2022 draft order and a September 19, 2022 affidavit of Richard
Lynch, Wayne Circuit Court’s general counsel, that was filed in another matter before this Court.
Courts may take judicial notice of facts “not subject to reasonable dispute,” meaning facts that are
“either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” MRE 201(b). We decline to take judicial notice of the contents of the unsigned order
that was not entered in the register of actions. We also decline to take judicial notice of the contents
of the Lynch affidavit that was not in the lower court record or otherwise part of the record in this
case. We note that plaintiff’s post-oral argument motion quotes the Lynch affidavit as describing
the September 8, 2022 draft order as a “preliminary order of assignment” and that “Case Processing
notified Judge Hubbard of the assignment by case processing . . . .” Reassignments do not occur
by “preliminary orders” or by “Case Processing,” but rather by way of a written order signed by
the chief judge or a judge designated to act temporarily. The draft order does not meet these
requirements. Finally, during the oral argument before this Court, plaintiff referred us to Judge
Lillard’s comments at the October 4, 2022 hearing as explaining how the reassignment to Judge
Hubbard had occurred. But no such comments were made as to the reassignment to Judge
Hubbard. Instead, Judge Lillard simply explained that the court’s general counsel sent an e-mail
to the Wayne Circuit Court judges stating that the case needed to be reassigned and directing that
a form be completed “if any of [the judges] felt the need to recuse [them]selves from the case[.]”
Judge Lillard stated, “I didn't see a need to recuse myself, so I didn’t fill it out and send it back.”
Thereafter, Judge Lillard “got blind drawn the case.”
-8-
Davis further argues that Judge Sullivan’s order was invalid because MCR 8.111(C)(1)
only allows a chief judge to order reassignment:
If a judge is disqualified or for other good cause cannot undertake an
assigned case, the chief judge may reassign it to another judge by a written order
stating the reason. To the extent feasible, the alternate judge should be selected by
lot. The chief judge shall file the order with the trial court clerk and have the clerk
notify the attorneys of record. The chief judge may also designate a judge to act
temporarily until a case is reassigned or during a temporary absence of a judge to
whom a case has been assigned. [MCR 8.111(C)(1).]
The record is silent as to how Judge Sullivan was chosen to sign the order transferring the
case from Chief Judge Kenny to Judge Lillard. Although the court rule permits the chief judge to
designate another judge to act in a case temporarily pending reassignment, there are no written
orders reflecting such a designation. “[I]t is well settled that courts can only act through their
written judgments or orders.” Wessels v Garden Way, Inc, 263 Mich App 642, 653; 689 NW2d
526 (2004). Given this gap in the record, we agree that Judge Sullivan’s reassignment order was
not entered in compliance with MCR 8.111(C)(1). But not all errors in trial court proceedings
require appellate relief. Rather,
[a]n error in the admission or the exclusion of evidence, an error in a ruling or order,
or an error or defect in anything done or omitted by the court or by the parties is
not ground for granting a new trial, for setting aside a verdict, or for vacating,
modifying, or otherwise disturbing a judgment or order, unless refusal to take this
action appears to the court inconsistent with substantial justice. [Law Offices of
Jeffrey Sherbow, PC v Fieger & Fieger, PC, 507 Mich 272, 308; 968 NW2d 367
(2021), quoting MCR 2.613(A).]
Determining whether appellate relief should be afforded in the interest of substantial justice
“requires courts to undertake the difficult task of discerning whether the error prejudiced the party
challenging it.” Law Offices of Jeffrey Sherbow, 507 Mich at 308.
Davis argues that he was prejudiced by this error because “the lower court was motivated
by impermissible considerations.” Specifically, Davis alleges that the trial court’s general counsel
opined that Judge Hubbard’s decision was incorrect and that she lacked authority to disqualify the
entire Wayne Circuit Court bench. Even accepting Davis’s unsupported assertion as true, it goes
to the question of whether error occurred—not the existence or prejudice arising from the error.
Judge Lillard asserted that she was selected by blind draw and expressed confidence that she could
hear the case impartially, noting that she had not hesitated to reach decisions that adversely affected
friends or colleagues in the past. More importantly, Davis expressly opined that Judge Lillard
could adjudicate the merits of the case fairly and impartially. We find that Judge Sullivan’s role
in reassigning the case from Chief Judge Kenny to Judge Lillard did not prejudice Davis in any
manner and thus he has not established he is entitled to any relief from the order.
-9-
IV. SUBJECT-MATTER JURISDICTION
Davis contends that Judge Lillard lacked subject-matter jurisdiction to enter any orders in
this case. We disagree.
Whether a court has subject-matter jurisdiction is a question of law that we review de novo.
Adams v Adams (On Reconsideration), 276 Mich App 704, 708-709; 742 NW2d 399 (2007).
Circuit courts of this state have general jurisdiction that “extends to all civil claims and remedies,
except where exclusive jurisdiction is given in the constitution or by statute to some other court or
where the circuit courts are denied jurisdiction by the constitution or statutes of this state.” Schaaf
v Forbes, 338 Mich App 1, 12; 979 NW2d 358 (2021), quoting MCL 600.605. “It is presumed
that circuit courts have subject-matter jurisdiction unless jurisdiction is expressly prohibited or
given to another court by constitution or statute.” Southfield v Shefa, LLC, 340 Mich App 391,
407; 986 NW2d 607 (2022) (cleaned up). If it is established that a circuit court is without subject-
matter jurisdiction, “any action with respect to such a cause, other than to dismiss it, is absolutely
void.” Schaaf, 338 Mich App at 12 (cleaned up). Conversely, when the circuit court is vested
with subject-matter jurisdiction, any error in its exercise of that jurisdiction renders the court’s
actions “merely voidable.” Luscombe v Shedd’s Food Prod Corp, 212 Mich App 537, 542; 539
NW2d 210 (1995).
Davis has not identified a statute or constitutional provision that would divest the Wayne
Circuit Court of its general jurisdiction over civil claims and, instead, contends that Judge Lillard
lacked subject-matter jurisdiction because Judge Sullivan did not have authority to enter the order
transferring the case to her. Davis’s jurisdictional challenge is premised on the procedural error
that occurred when Judge Sullivan reassigned the case without having been properly designated to
act in the matter by the chief judge in accordance with MCR 8.111(C)(1). “There is a wide
difference between a want of jurisdiction, in which case the court has no power to adjudicate at
all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of the trial
court is not void although it may be subject to direct attack on appeal.” Foster v Foster, 509 Mich
109, 125; 983 NW2d 373 (2022) (cleaned up). Although Davis’s position falls within the latter
category, he has adopted the common practice “of saying that a court had no ‘jurisdiction’ to take
certain legal action when what is actually meant is that the court had no legal ‘right’ to take the
action, that it was in error.” Id. at 124 (cleaned up). As a member of the circuit court, Judge
Lillard clearly had subject-matter jurisdiction to adjudicate Davis’s claim, regardless of the
procedural error that arose in assigning the case to her. See Graziano v Brater, ___ Mich App
___, ___; ___ NW2d ___ (2022) (Docket No. 358913); slip op at 4 (“Subject-matter jurisdiction
is the power of the court to decide the type of case—not the particular case before it.”).
V. LACHES
Davis next argues that the trial court erred in its application of laches. We disagree.
We review a trial court’s application of laches de novo. Knight v Northpointe Bank, 300
Mich App 109, 113; 832 NW2d 439 (2013). Laches is an equitable doctrine that bars a claim when
“there is an unexcused or unexplained delay in commencing an action and a corresponding change
of material condition that results in prejudice to a party.” Wayne Co v Wayne Co Retirement
Comm, 267 Mich App 230, 252; 704 NW2d 117 (2005) (cleaned up). “[L]egal challenges that
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affect elections are especially prone to causing profound harm to the public and to the integrity of
the election process the closer in time those challenges are made to the election, making laches
especially appropriate to apply in such matters.” Davis, ___ Mich App at ___; slip op at 9.
The trial court determined that Davis’s claims concerning Fresard and Ramsey were barred
by laches due to Davis’s unreasonable delay in filing suit and the precious time he wasted at the
outset of the case litigating judicial disqualifications. Davis disagrees, reasoning that he
commenced this action well before the WCEC convened to approve printing the ballots for the
November 8, 2022 general election. Davis also argues that he should not be faulted for pursuing
his constitutional right to an unbiased judge, as he had no control over the time it took to resolve
the disqualification issues.
Fresard filed her AOI with the Secretary of State on March 17, 2022, and Ramsey’s AOI
was filed on March 9, 2022. Davis allowed more than four months to elapse before he filed suit
on July 26, 2022. Davis explained that he filed an earlier lawsuit against the Highland Park City
Clerk challenging a mayoral candidate’s AOI on the same grounds and told the trial court that he
“could not have filed this case until [he] saw exactly what the Supreme Court was going to do with
the Highland Park City Council’s emergency application for leave.” Although the trial court did
not address Davis’s explanation, this did not weigh against application of laches. See Davis, __
Mich App at ___ n 12; slip op at 10 n 12 (rejecting delay attributed to desire to resolve related
legal challenges as unacceptable explanation). While a favorable resolution of Davis’s Highland
Park case would undoubtedly make it easier to establish his entitlement to relief in subsequent
cases involving the same issues, Davis was by no means required to await final resolution of that
litigation before initiating this matter.
It is evident from the timeline of the Highland Park case9 that Davis was keenly aware
months before he initiated the instant case that a candidate’s failure to complete the party-
affiliation portion of the AOI form could constitute grounds for excluding the candidate from the
ballot. Davis sought mandamus relief in the Highland Park action nearly two months after Fresard
and Ramsey filed their defective AOIs. Davis’s contention that he could not file the instant action
before learning how the Supreme Court would respond in the Highland Park action is disingenuous
because he did not wait for a final resolution of that issue. Rather, he commenced this case on
9
The trial court denied Davis’s requested relief on May 23, 2022. Davis v Highland Park City
Clerk, unpublished per curiam opinion of the Court of Appeals, issued June 2, 2022 (Docket No.
361544). Davis promptly appealed the trial court’s decision, and this Court reversed and remanded
on June 2, 2022, for entry of a writ of mandamus. Id. In doing so, this Court held that MCL
168.558(2) required an AOI to include “the candidate’s political party or a statement indicating no
party affiliation if the candidate is running without political party affiliation,” and silence in the
face of a clear statutory command would not suffice. Id. at 3-4. The nonparty mayoral candidate
at issue attempted to appeal this Court’s ruling, but the Supreme Court denied the candidate’s
motion to intervene and dismissed his application for leave to appeal on June 7, 2022. Davis v
Highland Park City Clerk, 509 Mich 1029 (2022). The Highland Park City Council, an intervening
defendant in the trial court, sought leave to appeal on June 29, 2022, which the Supreme Court
denied on September 14, 2022. Davis v Highland Park City Clerk, 510 Mich 923 (2022).
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July 26, 2022, which was approximately seven weeks before the Supreme Court denied leave to
appeal in the Highland Park action. We do not fault Davis for filing suit before the Supreme
Court’s final order in the Highland Park action, but the timing of the commencement of this action
undermines Davis’s explanation for the delay.
The trial court also determined that Davis’s pursuit of the disqualification motions weighed
in favor of barring his claim based on laches. Of course, “the right to a hearing before an unbiased
and impartial decisionmaker is a basic requirement of due process.” Dep’t of Licensing &
Regulatory Affairs/Unemployment Ins Agency v Lucente, 508 Mich 209, 244; 973 NW2d 90 (2021)
(cleaned up). We do not fault Davis for asserting this constitutional right, but the trial court
correctly recognized that Davis’s back-and-forth stance on the disqualification issue delayed the
adjudication of the substantive legal issues. Davis abandoned his request to disqualify the entire
Wayne Circuit Court bench when the issue was before Judge Biernat. Instead of resolving the
issue at that time, Davis moved to disqualify Judge Lillard nearly a month later. Given the strict
time constraints in election-related matters, every day matters. The 35 days that elapsed between
Judge Biernat’s decision and Judge Lillard’s denial of Davis’s second disqualification motion was
a delay created by Davis’s own actions.
Davis further argues that the trial court erred by applying laches to bar his claim because
defendants all violated portions of Michigan election law and, therefore, have unclean hands.10
We reject this argument for the same reasons we set forth in Davis, ___ Mich App at ___; slip op
at 10-11:
Davis submits that defendant has unclean hands because it “acted in
violation of law” by failing to enforce MCL 168.558(2) in accordance with the
Court of Claims’ interpretation. But this case raised a challenge to statutory
language, a question of law. GMAC LLC v Dep’t of Treasury, 286 Mich App 365,
380; 781 NW2d 310 (2009). The duty to interpret and apply the law belongs to the
courts. Id. Moreover, defendant explained that it did not require a statement of no
party affiliation be placed on the AOI form because judicial offices by their nature
are nonpartisan and not as an act of defiance of the statutory law.[11] Plaintiff has
not shown that defendant engaged in the kind of misconduct that would constitute
“unclean hands.”
Furthermore, plaintiff has also not shown that defendant’s conduct stymied
plaintiff’s ability to commence this action sooner. See [Attorney General v]Thomas
10
The trial court only applied the equitable doctrine to Davis’s claims concerning Fresard and
Ramsey and thus we limit our review of this argument to those two defendants.
11
The Secretary of State, the defendant in Davis, was not involved in this action and, thus, did not
offer the same explanation regarding why it accepted AOIs that did not include a statement
regarding party affiliation. The reasoning in Davis remains applicable nonetheless because the
Secretary of State’s position was originally advanced by the Michigan Bureau of Elections, Davis,
___ Mich App at ___; slip op at 4, and Fresard and Ramsey both relied on assurances from the
same bureau that their AOIs were properly completed.
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Solvent Co, 146 Mich App [55, 66; 380 NW2d 53 (1985)] (the defendant could not
avail itself of laches because it repeatedly refused to conduct tests reasonably
requested by the plaintiff that would have revealed contamination caused by the
defendant at an earlier date). This was also not a case in which the challenged
candidates were substantively ineligible to hold office and falsified their AOIs, see
Davis v Chatman, 292 Mich App 603, 619-622; 808 NW2d 555 (2011), and where
defendant actually found any falsification. In addition, the public would suffer no
real harm as an affirmative declaration of no party affiliation, while mandatory, has
little practical effect when a judicial candidate must appear on the nonpartisan
portion of the ballot. In short, plaintiff misapprehends what “unclean hands”
means, and the trial court did not err by refusing to apply it to preclude defendant
from availing itself of the doctrine of laches.
Davis next argues that laches was erroneously applied in this case because “[e]quity does
not apply when a statute controls.” Gleason, 323 Mich App at 318. Davis reasons that laches
could not preclude his claim because MCL 168.558(4) provides an adequate remedy for a
candidate’s submission of a defective AOI, namely, noncertification of the candidate by the
Secretary of State. Again, we reject this argument for the same reasons we set forth in Davis, ___
Mich App at ___; slip op at 11:
Plaintiff further alleges that laches cannot apply because equitable doctrines
are inapplicable where a remedy is provided by statute, citing Gleason v Kincaid,
323 Mich App 308, 318; 917 NW2d 685 (2018). However, “the Michigan Election
Law does not set forth any explicit procedure for resolving challenges to AOIs.”
Moore [v Genesee Co,] 337 Mich App [723, 732; 976 NW2d 921 (2021)]. And
because mandamus and declaratory relief are themselves equitable in nature, there
is no sound basis for concluding that equitable defenses, including laches, should
not apply.
Lastly, Davis contends in his reply brief that the WCEC waived laches as an affirmative
defense by failing to file a responsive pleading or preanswer dispositive motion raising the defense.
This argument is not properly before this Court because it was raised for the first time in his reply
brief, which “must be limited to ‘rebuttal of the arguments in the appellee’s or cross-appellee’s
brief. . . .’ ” Bronson Methodist Hosp v Mich Assigned Claims Facility, 298 Mich App 192, 199;
826 NW2d 197 (2012), quoting MCR 7.212(G). The WCEC has not filed a brief on appeal to take
a position regarding laches. Thus, Davis’s argument is not an appropriate rebuttal.12
12
Even if this question was properly before us, it lacks merit. “Under MCR 2.111(F)(3),
affirmative defenses must be raised in the responsive pleading or in a motion for summary
disposition made before the filing of a responsive pleading, and the failure to do so constitutes a
waiver of the defense.” Chmielewski v Xermac, Inc, 216 Mich App 707, 712; 550 NW2d 797
(1996). Apart from an appearance by counsel, the WCEC filed only one document in this case: a
response to plaintiff’s second motion for declaratory and mandamus relief. The response was the
functional equivalent of a motion for summary disposition, even if not titled as such, because it
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VI. AOI DEFECTS
Davis further asserts that the trial court erred by granting summary disposition to Fresard
and Ramsey because they clearly failed to comply with the AOI requirements outlined in MCL
168.558. We decline to address this argument because we find that the trial court did not err by
applying laches to bar Davis’s claims.13
VII. HATHAWAY’S NAME
Lastly, Davis argues that the trial court should not have dismissed his claim relating to
Hathaway because MCL 168.560b required Hathaway’s original surname, Bobak, to be included
in his name on the ballot. But, in raising this argument in his statement of questions presented,
Davis asserts that the trial court erred by granting Hathaway’s motion for summary disposition. It
is undisputed that Hathaway did not move for summary disposition. Rather, the merits of the claim
concerning Hathaway were before the court in the context of Davis’s motion for declaratory and
mandamus relief. Davis’s statement of questions presented does not mention his motion for
declaratory judgment or his request for a writ for mandamus. Accordingly, this argument is waived
and we decline to address it. Seifeddine, 327 Mich App at 521; see also MCR 7.212(C)(5).
Affirmed.
/s/ Sima G. Patel
/s/ Mark T. Boonstra
RICK, J., did not participate.
asked the trial court to dismiss plaintiff’s case for several reasons, including laches. See Adams,
276 Mich App at 715 (“[W]e are not bound by a party’s choice of labels because this would
effectively elevate form over substance.”).
13
Davis also advances arguments in his brief on appeal that the trial court erred by denying his
motion for declaratory judgment and his request for a writ of mandamus. He further argues that
Crespo’s AOI failed to comply with the AOI requirements outlined in MCL 168.558. But these
arguments are waived because they were not in Davis’s statement of questions presented.
Seifeddine v Jaber, 327 Mich App 514, 521; 934 NW2d 64 (2019); see also MCR 7.212(C)(5)
(stating that an appellant's brief must contain “[a] statement of questions involved, stating
concisely and without repetition the questions involved in the appeal.”). Accordingly, we decline
to address these arguments.
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