Bogaert v. Land

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 interve-*864nors (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 in-tervenors 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.