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ROBERT DAVIS, UNPUBLISHED
October 19, 2023
Plaintiff-Appellant,
v No. 363828
Court of Claims
BOARD OF STATE CANVASSERS, SECRETARY LC No. 22-000163-MM
OF STATE, THIRD JUDICIAL CIRCUIT COURT
OF MICHIGAN, THIRD JUDICIAL CIRCUIT
CHIEF JUDGE, and JUDGE BRIAN R.
SULLIVAN,
Defendants-Appellees.
ROBERT DAVIS,
Plaintiff-Appellant,
v No. 364061
Court of Claims
WAYNE CIRCUIT COURT, WAYNE CIRCUIT LC No. 22-000121-MM
COURT CHIEF JUDGE, and STATE COURT
ADMINISTRATOR,
Defendants-Appellees,
and
STATE COURT ADMINISTRATIVE OFFICE,
Defendant.
Before: CAVANAGH, P.J., and RIORDAN and PATEL, JJ.
PER CURIAM.
-1-
Plaintiff, Robert Davis, appeals by right the order of the Court of Claims granting summary
disposition in favor of all defendants in these consolidated cases pursuant to MCR 2.116(C)(8) and
MCR 2.116(I). Most of the issues in these consolidated cases arise out of an underlying lawsuit
plaintiff filed in Wayne Circuit Court generally challenging the candidacy of several individuals
for the position of Wayne County Circuit Judge for the November 2022 general election. Relevant
to the issues plaintiff pursues on appeal,1 plaintiff sought: to prevent votes for those individuals
from being counted; to hold the Wayne Circuit Court itself, and several of its judges, in contempt
of an order of disqualification entered by another judge of the Wayne Circuit Court; and a
declaratory judgment that the Wayne Circuit Court and its Chief Judge violated the law by
providing staff counsel for two of the challenged individuals who were at the time incumbent
judges. We conclude that the first claim is moot, the second claim is unavailable because the Court
of Claims correctly recognized that it lacked the power to hold a person in contempt of another
court’s order, and the last claim is partially moot and partially unavailable because plaintiff lacks
standing. Therefore, we affirm.
I. FACTS AND PROCEDURE
Plaintiff’s underlying lawsuit in Wayne County (“Case 8866”) was the subject of his appeal
in Davis v Wayne Co Election Comm, unpublished per curiam opinion of the Court of Appeals,
issued July 20, 2023 (Docket No. 363604) (Davis II). Plaintiff sought to prevent certain candidates
for the position of Wayne Circuit Court2 judge from appearing on the November 2022 ballot, for
reasons not important to this appeal. Davis II, unpub op at 2. In due course, plaintiff’s claims
were dismissed, id., unpub op at 4, and this Court affirmed, id., unpub op at 14. That was not the
only lawsuit in which plaintiff sought essentially the same relief as to some combination of the
same and other candidates; in all of his lawsuits, he ultimately did not prevail. Davis v Secretary
of State, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 362841) (Davis I); slip op
at 7, 12; see also Davis v Wayne Co, unpublished per curiam opinion of the Court of Appeals,
issued April 13, 2023 (Docket No. 364133). In the meantime, the November 2022 election has
taken place. See Davis I, ___ Mich App at ___; slip op at 7.
Relevant to this appeal, during the pendency of Case 8866, plaintiff made several motions
to disqualify, as set forth in Davis II, unpub op at 3-4:
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
1
Plaintiff conceded below that his claims against the State Court Administrative Office became
moot, and, although the State Court Administrator is named as an appellee in this matter, any claim
plaintiff had against it would therefore also be moot. In any event, plaintiff does not pursue claims
against either the State Court Administrative Office or the State Court Administrator on appeal.
Plaintiff asserted a claim below seeking to hold 2022 PA 195 unconstitutional, but he has also not
pursued that claim on appeal. Those claims are abandoned. See Slater v Ann Arbor Pub Schs Bd
of Ed, 250 Mich App 419, 422 n 1; 648 NW2d 205 (2002). We will not address them further.
2
The Wayne Circuit Court is the more common name for the Third Judicial Circuit Court of
Michigan. For convenience, we will refer to the Wayne Circuit Court.
-2-
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
* * *
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.
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
-3-
immediate appellate review.” Davis v Wayne Co Election Comm, unpublished
order of the Court of Appeals, entered September 20, 2022 (Docket No. 363010).
Of further relevance to this appeal, attorney Julie M. Dale, who identified herself as Associate
General Counsel for the Wayne Circuit Court, filed an appearance in Case 8866 on behalf of
incumbent defendants Kelly Ann Ramsey and Patricia Susan Fresard.
In relevant part, in Docket No. 364061, plaintiff sued the Wayne Circuit Court and then-
Chief Judge Kenny, seeking declaratory and injunctive relief on the basis that they could not
legally permit a staff attorney of the Wayne Circuit Court’s Office of General Counsel to represent
Fresard and Ramsey in Case 8866 because Fresard and Ramsey were allegedly sued in their
individual rather than official capacities. The Court of Claims ultimately rejected this argument,
holding that MCL 691.1408(1) and (3) permitted trial courts to furnish attorneys for their judges
and imposed no preclusion against such representation for judges in their individual capacities.
The Court of Claims declined to search for any other source of law that might prohibit such
representation, noting that plaintiff had failed to cite any such alternative authority.
In Docket No. 363828, plaintiff sued the Board of State Canvassers, seeking to preclude
any votes cast for his challenged candidates from being certified or counted; and plaintiff sued the
Secretary of State, seeking to require the Secretary of State to inform voters and election officials
that the challenged candidates would not be certified or counted. The Court of Claims rejected
plaintiff’s claims regarding the counting of votes for the candidates, noting that it had previously
refused to bar the candidates from appearing on the ballot pursuant to the doctrine of laches [which
this Court affirmed in Davis I], and plaintiff failed to show that the candidates lacked the
constitutional qualifications to hold the office of circuit court judge. Plaintiff also sought to hold
the Wayne Circuit Court, Judge Kenny, and Judge Sullivan in civil and criminal contempt of Judge
Hubbard’s September 9 and September 12, 2022 orders. The Court of Claims rejected this claim
on the grounds that: it lacked the power to hold another court or its judges in contempt for actions
taken within the scope of their authority; the proper remedy, if any, would have been
superintending control; and it also lacked the power to impose superintending control over a circuit
court.
II. STANDARD OF REVIEW
A grant or denial of summary disposition is reviewed de novo. McMaster v DTE Energy
Co, 509 Mich 423, 431; 984 NW2d 91 (2022). A motion for summary disposition under MCR
2.116(C)(8) tests the legal sufficiency of a claim, and it must be decided on the pleadings alone,
accepting all factual allegations as true. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152,
159-160; 934 NW2d 665 (2019). “A motion under MCR 2.116(C)(8) may only be granted when
a claim is so clearly unenforceable that no factual development could possibly justify recovery.”
Id. at 160.
The interpretation and application of statutes, rules, and legal doctrines is reviewed de
novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). The interpretation of
common-law doctrines is reviewed de novo. Kandil-Elsayed v F & E Oil, Inc, ___ Mich ___, ___;
-4-
___ NW2d ___ (2023) (Docket Nos. 162907 and 163430); slip op at 7. “Whether due process has
been afforded is a constitutional issue that is reviewed de novo.” Elba Twp v Gratiot Co Drain
Comm’r, 493 Mich 265, 277; 831 NW2d 204 (2013). Mootness is a question of law that is
considered de novo and as a threshold issue that must be addressed before any substantive issues
in a case. Can IV Packard Square, LLC v Packard Square, LLC, 328 Mich App 656, 661; 939
NW2d 454 (2019). “Whether a party has standing is a question of law that is reviewed de novo.”
Mich Ass’n of Home Builders v City of Troy, 504 Mich 203, 212; 934 NW2d 713 (2019).
III. DUE PROCESS
On appeal, plaintiff argues that he was deprived of due process because the Court of Claims
dismissed his cases sua sponte without giving him reasonable notice or a meaningful opportunity
to be heard. We disagree.
Due process of law requires, at a minimum, that a party deprived of some interest must be
given timely notice and a meaningful opportunity to be heard. Bonner v City of Brighton, 495
Mich 209, 235; 848 NW2d 380 (2014). “Although a trial court may sua sponte grant summary
disposition under MCR 2.116(I), the trial court may not do so in contravention of a party’s due-
process rights.” Sandstone Creek Solar, LLC v Twp of Benton, 335 Mich App 683, 712; 967 NW2d
890 (2021). “[A] grant of summary disposition does not violate due process so long as the
nonmoving party is given sufficient notice and an opportunity to be heard.” Law Offices of Jeffrey
Sherbow PC v Feiger & Feiger PC, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket Nos.
360582 & 361567); slip op at 9. A trial court may violate a party’s due-process rights by raising
an issue sua sponte and then granting summary disposition on that basis. Zelasko v Charter Twp
of Bloomfield, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 359002); slip op at 5-
6. However, a party’s due-process rights may be adequately protected by posthearing procedures.
See Georgetown Place Co-Op v City of Taylor, 226 Mich App 33, 52-53; 572 NW2d 232 (1997).
Erroneous deprivations of due process can be cured by de novo review. Spranger v City of Warren,
308 Mich App 477, 484-485; 865 NW2d 52 (2014).
There is no dispute that the Court of Claims issued its opinion and order sua sponte
dismissing the case only a day after some of the defendants filed a motion to dismiss, so plaintiff
had no meaningful opportunity to respond to that motion. However, plaintiff asserts that there are
no factual disputes, and we observe that plaintiff’s pleadings are highly detailed and go far beyond
the requirements of notice pleading. A review of plaintiff’s pleadings, motions, and other filings
reveals that he had a pattern of reiterating his original positions, so it appears clear that he had a
substantively meaningful opportunity to present his positions to the Court of Claims. The Court
of Claims did not grant summary disposition on the basis of an issue that it raised sua sponte. Cf.
Zelasko, ___ Mich App at ___; slip op at 5-6. The Court of Claims analyzed the substance of
plaintiff’s arguments, and it obviously read plaintiff’s pleadings notwithstanding his assertion that
some of them were filed under the wrong case number. Plaintiff also had a pattern of filing
“emergency ex parte” motions for various forms of relief—in other words, essentially asking for
relief without giving defendants an opportunity to respond.
In any case, we recognize that due process requires that a party receive a meaningful
opportunity to present their case before any permanent deprivation of the party’s interest occurs.
Bonner, 495 Mich at 238-239. Time is generally of the essence in election cases. See, e.g.,
-5-
Gleason v Kincaid, 323 Mich App 308, 316; 917 NW2d 685 (2018). Election cases, therefore,
would seem to be particularly subject to the maxim that “justice delayed is justice denied.” See
Mich Consol Gas Co v Mich Public Serv Comm, 389 Mich 624, 637; 209 NW2d 210 (1973).
Posthearing review might mean little if an election occurred in the meantime. Here, however, the
Court of Claims did not enter its opinion and order until three days after the November 2022
election had taken place. Furthermore, plaintiff sought the relief of halting the counting of votes
in Case 8866, and Judge Lillard had already ruled that plaintiff was not entitled to that relief two
weeks previously. In other words, any issues that would be rendered moot as a consequence of
the time considerations inherent in election cases were already moot by the time the Court of
Claims entered its opinion and order. Therefore, any delay in reviewing the Court of Claims’
opinion and order would not further deprive plaintiff of any justice.
For the above reasons, we conclude that plaintiff was not substantively deprived of a
meaningful opportunity to be heard, nor was he deprived of notice of the arguments and issues that
the Court of Claims considered and decided. The Court of Claims did not deprive plaintiff of due
process.
Plaintiff also argues that the Court of Claims erred because it failed to accept the well-
pleaded factual allegations in his complaints as true. We disagree. Plaintiff fails to appreciate the
distinction between alleging facts and alleging conclusions. See Masrur v Regents of Univ of
Mich, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 356858); slip op at 3. For
example, plaintiff alleged that Judge Kenny permitted Dale to appear on behalf of Fresard and
Ramsey at a hearing held on August 5, 2022, which is a factual statement. Plaintiff also alleged
that some defendants violated MCL 691.1408(1) and (3), which would be a conclusion of law.
See Estes, 481 Mich at 578-579 (interpretation and application of statutes, court rules, and legal
doctrines is a question of law). Plaintiff alleged that Judge Hubbard entered two orders of
disqualification on September 9 and September 12, 2022, which is a factual statement. Plaintiff
also alleged that some defendants “were obligated to obey Judge Hubbard’s September 9th and
12th, 2022 orders, which were validly and lawfully entered,” which would be a conclusion of law.
Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 460; 750 NW2d 615 (2008)
(interpretation of a court order is a question of law). Some of plaintiff’s allegations are his personal
opinions, such as whether Dale was rude to him.
The Court of Claims would only have been obligated to accept as true the factual portions
of plaintiff’s allegations. See Masrur, ___ Mich App at ___; slip op at 3. In general, the legal
significance of a fact is a question of law. Phillips v Mirac, Inc, 470 Mich 415, 428; 685 NW2d
174 (2004). The courts are not bound by parties’ statements or stipulations of law. Kimmelman v
Heather Downs Mgt Ltd, 278 Mich App 569, 576; 753 NW2d 265 (2008). It is not clear to us
what, if any, specific factual allegations plaintiff believes the Court of Claims disregarded.
Nothing in the Court of Claims’ opinion and order suggests that it failed to accept as true the
factual allegations in plaintiff’s complaints, and it is the courts’ responsibility to draw their own
independent conclusions of law. The Court of Claims did not err.
-6-
IV. MOOTNESS
Plaintiff advanced a number of claims generally seeking, on one theory or another, the
ultimate goal of preventing his challenged candidates from serving as Wayne Circuit Court judges.
We conclude that those claims are moot.
“The courts will generally refrain from deciding issues that are moot, meaning it is
impossible for the court to craft an order with any practical effect on the issue.” Moore v Genesee
Co, 337 Mich App 723, 726-727; 976 NW2d 921 (2021). As noted, the November 2022 election
has taken place, and plaintiff’s challenged candidates were elected and have been seated. It is
therefore impossible for any court to enter an order preventing votes for those candidates from
being counted. Nevertheless, the courts may entertain a moot issue if the issue is a matter of public
significance, is likely to recur, and will likely evade judicial review. League of Women Voters of
Mich v Secretary of State, 506 Mich 561, 582-583 n 26; 957 NW2d 731 (2020). “[L]egal questions
affecting election ballots, such as AOI requirements, are the classic example of an issue that the
courts will nevertheless review as matters of public significance that are likely to recur yet evade
judicial review.” Davis I, ___ Mich at ___; slip op at 8-9; see also Davis II, unpub op at 4-5. Here,
however, plaintiff has received judicial review of his claims that the candidates should not have
been placed on the ballot, elected, or seated. That judicial review did not favor plaintiff’s position,
but because it actually took place, those claims have not evaded judicial review.
Therefore, the exception to the general rule against deciding moot issues has no
applicability here, and we decline to revisit a question we have already decided. Plaintiff’s claims
against the Board of State Canvassers and the Secretary of State were properly dismissed.
V. CONTEMPT
Plaintiff argues that the Court of Claims erred by failing to realize that it had the power to
hold defendants in contempt of Judge Hubbard’s orders and by failing to do so. We disagree.
A party is not obligated to obey an order that is void. Matter of Hague, 412 Mich 532,
544-545; 315 NW2d 524 (1982). However, a party is obligated to obey a court order that is merely
incorrect. In re Contempt of Dudzinski, 257 Mich App 96, 110-112; 667 NW2d 68 (2003). “A
party must obey an order entered by a court with proper jurisdiction, even if the order is clearly
incorrect, or the party must face the risk of being held in contempt and possibly being ordered to
comply with the order at a later date.” Kirby v Mich High Sch Athletic Ass’n, 459 Mich 23, 40;
585 NW2d 290 (1998). In Davis II, we determined that Judge Hubbard’s orders were unauthorized
because there was never any valid order in the record of Case 8866 that actually assigned the matter
to Judge Hubbard. Davis II, unpub op at 7-9.3 Judge Hubbard’s unauthorized orders were
therefore required to be set aside and were subject to sua sponte reversal on appeal. See Schell v
3
Because Davis II is unpublished, we are not bound to follow it, but we choose to adopt its holding
in relevant part as persuasive. See Centria Home Rehab, LLC v Philadelphia Indemnity Ins Co,
___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 359372); slip op at 8.
-7-
Baker Furniture Co, 461 Mich 502, 515; 607 NW2d 358 (2000); Tingley v Kortz, 262 Mich App
583, 588-589; 688 NW2d 291 (2004).
However, a lack of authority is not the same as a lack of jurisdiction. People v Washington,
508 Mich 107, 124; 972 NW2d 767 (2021). Even severe procedural errors do not deprive a court
of subject-matter jurisdiction or render an order void. See Foster v Foster, 509 Mich 109, 124-
126; 983 NW2d 373 (2022), amended on other grounds 509 Mich 988 (2022); Jackson City Bank
& Trust Co v Fredrick, 271 Mich 538, 545-546; 260 NW 908 (1935). At the time the Court of
Claims dismissed these consolidated cases, Davis II had not yet been decided, so Judge Hubbard’s
orders had not yet been set aside. Therefore, Judge Hubbard’s orders were not “void” such that
they need not have been obeyed.
Nevertheless, that does not confer the power to enforce those orders on any other court.
Although contempt proceedings may be held before a judge other than the original judge, “the
matter is one for the sound discretion of the judge handling the original proceeding.” Cross Co v
United Auto, Aircraft, & Agricultural Implement Workers of America, Local 155, 377 Mich 202,
212; 139 NW2d 694 (1966). And, in this case, that would be Judge Hubbard. See In re Contempt
of Henry, 282 Mich App 656, 675; 765 NW2d 44 (2009); DeGeorge v Warheit, 276 Mich App
587, 598-600; 741 NW2d 384 (2007).
Plaintiff is correct that Michigan courts have both inherent common-law contempt powers
and statutory contempt powers that they may use to preserve the effectiveness and power of the
courts against acts or omissions that impede the functionality of the courts. In re Contempt of Auto
Club Ins Ass’n, 243 Mich App 697, 707-710; 624 NW2d 443 (2000), superseded in part by statute
on other grounds as described in Porter v Porter, 285 Mich App 450, 458-459; 776 NW2d 377
(2009). However, that contempt power is generally understood to be the power of a particular
court to sanction or curb impairments of only that court’s own authority. See Bessette v WB
Conkey Co, 194 US 324, 330; 24 S Ct 665; 48 L Ed 997 (1904) (“At common law it was undoubted
that no court reviewed the proceedings of another court in contempt matters.”); People v Kurz, 35
Mich App 643, 656; 192 NW2d 594 (1971) (the source of courts’ contempt powers “is the duty of
the court to preserve its own effectiveness, to sustain its power”); In the Matter of David Robinson,
1 Blume Sup Ct Trans 331; 1808 WL 1663 (1808) (“While the Supreme Court has power to punish,
in a summary way, contempts of its own authority, it has no power to punish in a similar manner
contempts of another tribunal or authority.”). Such an understanding would be consistent with the
principle that contempt proceedings should at least initially be handled by the original judge. Cross
Co, 337 Mich at 212. Even criminal contempts are not true penal proceedings, but rather are
proceedings for “the limited purpose of vindicating the authority of the court.” DeGeorge, 276
Mich App at 598-599.
MCL 600.1701 et seq. is a codification of the common-law contempt power. See In re
Contempt of Dougherty, 429 Mich 81, 96; 413 NW2d 392 (1987). Nowhere in MCL 600.1701 is
there any clear indication that the Legislature intended to permit courts generally to hold any
person in contempt of another court. Indeed, its language suggests the opposite. Notably, MCL
600.1731 states that in “proceedings for contempt arising out of the publication of any news,
information, or comment concerning a court of record, except the supreme court, or any judge of
that court the defendant has the right to have the proceedings heard by the judge of another court
of record.” In other words, the Legislature provided one circumstance under which contempt
-8-
proceedings may be heard by a different court, but even there, the right to a hearing in a different
court belongs to the defendant. Pursuant to “the doctrine of expressio unius est exclusio alterius,”
meaning “the expression of one thing suggests the exclusion of all others,” Pittsfield Charter Twp
v Washtenaw Co, 468 Mich. 702, 712; 664 NW2d 193 (2003), the fact that the Legislature
explicitly provided a single situation in which contempt proceedings may be heard before a
different court strongly suggests that contempt proceedings may not otherwise be held before a
different court.
We therefore conclude that the Court of Claims correctly recognized that it did not have
the power to hold any of the defendants in contempt of an order, or of orders, entered by another
court. And, thus, it properly declined to hold any defendant in contempt of Judge Hubbard’s orders
or to order any defendant to comply with Judge Hubbard’s orders.4
VI. STANDING
We decline to address plaintiff’s challenges to the provision of Dale’s services under MCL
691.1408, because plaintiff’s claim is moot as to Dale’s specific representation of Fresard and
Ramsey, and plaintiff has no standing to bring a general challenge to the legality of courts
providing attorneys for their judges.
“[S]tanding refers to the right of a party plaintiff initially to invoke the power of the court
to adjudicate a claimed injury in fact.” Saugatuck Dunes Coastal Alliance v Saugatuck Twp, 509
Mich 561, 592; 983 NW2d 798 (2022) (quotation marks and citation omitted). The question is
whether a particular person is a proper party to seek adjudication of an issue, not necessarily
whether the issue is justiciable. T&V Assoc, Inc v Dir of Health & Human Servs, ___ Mich App
___, ___; ___ NW2d ___ (2023) (Docket No. 361727); slip op at 7. “[A] litigant has standing
whenever there is a legal cause of action.” Lansing Sch Ed Ass’n Lansing Bd of Ed, 487 Mich
349, 372; 792 NW2d 686 (2010). A party has standing to seek a declaratory judgment pursuant to
MCR 2.605 if there is “an actual controversy,” meaning “a declaratory judgment is needed to guide
a party’s future conduct in order to preserve that party’s legal rights.” League of Women Voters,
506 Mich at 586. No injury need yet have occurred, but the controversy must be more than
anticipated or hypothetical. Id. The bar for standing is lowered in cases concerning election laws,
but even in election cases, a party may not bring a declaratory-judgment action regarding any “law
that might affect his or her interests in the future” or because “they only want instruction going
forward.” Id. at 587-588. A party lacks standing if there was never an actual controversy, whereas
a case will become moot if an actual controversy no longer exists. T&V Assoc, Inc, ___ Mich App
at ___; slip op at 7.
To the extent plaintiff sought to remove Dale as counsel of record for Fresard and Ramsey
in Case 8866, Dale withdrew from that representation, so no court can craft an order requiring her
4
We need not address plaintiff’s arguments regarding any statements by the Court of Claims to
the effect that superintending control was an appropriate remedy. The Court of Claims did not
affirmatively hold that plaintiff could or should have pursued such a claim, and, in any event, the
Court of Claims was clearly correct that, pursuant to MCR 3.302(D)(1), it lacked the structural
power to exercise superintending control over a circuit court.
-9-
to do so. See Moore, 337 Mich App at 726-727. Any such request is now moot. T&V Assoc, Inc,
___ Mich App at ___; slip op at 7. We presume, but we do not decide, that plaintiff’s request for
a declaratory judgment might constitute a matter of public significance that is likely to recur but
evade judicial review. League of Women Voter, 506 Mich at 582-583 n 26. Nevertheless, although
this is nominally an election case, plaintiff is seeking declaratory judgment specifically regarding
the implications of MCL 691.1408, which is part of the governmental tort liability act (GTLA),
MCL 691.1401 et seq. Therefore, the lowered bar for standing that usually attaches to election
cases has no applicability to this issue, because this issue has nothing to do with elections and only
came up in an election case by happenstance.
Plaintiff has not explained how his rights could have been affected by who was paying for
Fresard’s and Ramsey’s attorney.5 Therefore, there was no “actual controversy” regarding the
provision of counsel to Fresard and Ramsey that would have entitled plaintiff to bring a
declaratory-judgment action regarding MCL 691.1408. Plaintiff identifies no authority
establishing that he can enforce an alleged violation of MCL 691.1408, see Miller, 481 Mich at
606-609, nor does he explain how any such alleged illegality affects his own rights or conduct, see
League of Women Voters, 506 Mich at 586. Plaintiff seeks only general guidance, which would
not be sufficient to confer standing even in an election case. Id. at 587-588. Therefore, plaintiff
lacks standing to seek a declaratory judgment regarding the legality in general of courts providing
counsel for their judges in light of MCL 691.1408.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Michael J. Riordan
/s/ Sima G. Patel
5
We recognize that in Case 8866 plaintiff argued that Dale’s representation constituted an actual
conflict of interest because she represented Judge Kenny in this matter while also representing
Fresard and Ramsey in Case 8866. That allegation might arguably have given rise to an actual
controversy at the time, but for reasons unrelated to MCL 691.1408.
-10-