Michigan Election Bureau’s Appeal Dismissed As ‘Moot’

The Michigan Court of Appeals has dismissed an appeal by the Michigan Bureau of Elections based on the “mootness doctrine,” finding an exception to the doctrine did not exist in a case involving a Kent County trial court judge.

In Feeney v Director of the Michigan Bureau of Elections (Docket No. 354803), Kent County Circuit Court Judge Kathleen Feeney missed the deadline for filing an affidavit of candidacy to appear on the November 3, 2020 ballot. Therefore, she filed a timely and sufficient nominating petition and was certified as a non-incumbent candidate for the Kent County Circuit Court.

The Michigan Bureau of Elections subsequently denied Feeney’s request for an incumbency designation and a separate listing on the ballot. Feeney then took the matter to the Michigan Court of Claims, which granted her a declaratory judgment. Accordingly, she was designated as an incumbent and listed separately on the ballot. She ultimately won re-election.

The defendants - Michigan Bureau of Elections, Secretary of State and Department of State - appealed the Court of Claims ruling. The defendants contended on appeal that they were not challenging the plaintiff’s appearance on the ballot as an incumbent or the election results. Rather, they asserted the Court of Claims wrongly granted Feeney (the plaintiff) declaratory relief and that an exception to the “mootness doctrine” applied. An issue is deemed moot when an event occurs that makes it impossible for a reviewing court to grant any sort of relief.

The Court of Appeals disagreed and dismissed the defendants’ appeal. Judges Douglas B. Shapiro, Mark J. Cavanagh and Elizabeth L. Gleicher were on the panel that issued the opinion.

“Defendants argue that the Court of Claims erred when it granted plaintiff declaratory relief,” the Court of Appeals wrote. “They contend that filing an affidavit of candidacy is the exclusive means for a sitting judge to declare an intent to run for reelection as an incumbent for her particular office, and so an incumbent judge that misses the deadline to file an affidavit of candidacy is no longer considered an incumbent under Michigan Election Law, even if she submits a nominating petition with the requisite number of signatures for the upcoming election.”

On the other hand, the plaintiff asserted the Court of Claims “correctly determined that filing an affidavit of candidacy is merely one way for an incumbent judge to seek reelection and that the failure to do so does not divest the judge of her incumbency status and the corresponding constitutional and statutory rights to be separately identified as such on the ballot,” the Court of Appeals explained.

“Plaintiff also argues, however, that we need not decide this issue because this appeal is moot now that the 2020 election has passed,” the Court of Appeals noted. “We agree.”

Citing BP 7 v Bureau of State Lottery, 231 Mich App 356 (1998), the Court of Appeals said that, as a general rule, an appellate court does not decide moot issues. “A case is moot when it presents only abstract questions of law that do not rest upon existing facts or rights. An issue is deemed moot when an event occurs that renders it impossible for a reviewing court to grant relief.”

Here, the question was whether the plaintiff was entitled to the incumbency designation and a separate ballot line. “The Court of Claims determined that she was, granted her request for a declaratory judgment and the election occurred in accordance with that judgment,” the Court of Appeals observed. “Defendants concede that they are not challenging plaintiff’s appearance as an incumbent on the ballot or the election result. Thus, it is impossible for this Court to grant relief to defendants that would have a practical legal effect on an existing controversy.”

Meanwhile, the defendants maintained that an exception to the mootness doctrine applied. They claimed that: 1) the election of circuit court judges is a matter of public significance; 2) the issue is likely to reoccur because incumbent judges may neglect to file timely affidavits of candidacy in the future; and 3) the issue is likely to evade review because it is unlikely that appellate review can occur before elections pass in similar scenarios.

“We agree with defendants that the election of judges is a matter of public significance,” the Court of Appeals stated. “We also agree that the deadlines for filing affidavits of candidacy, MCL 168.413a(1), and nominating petitions, MCL 168.413(1), may make it unlikely that appellate review could be obtained before ballots are finalized and elections occur should this issue arise again.”

However, the Court of Appeals disagreed that the issue is likely to reoccur. “This appears to be the first case of record in which an incumbent judge failed to file an affidavit of candidacy but still sought reelection through the filing of a nominating petition. This makes sense given that filing an affidavit is significantly less arduous than signature gathering. As noted, plaintiff merely failed to file the affidavit of candidacy in time - it was not an intentional decision on her part to forgo this advantage provided to incumbent judges. And such an error appears to be unique or at least rare as defendants do not refer us to any other instances. Although it is possible that the issue could reoccur, we see no basis to conclude that it is likely to do so.”

Accordingly, the Court of Appeals dismissed the appeal as moot.