The Michigan Supreme Court (MSC) will hold a special session to hear oral arguments in Nos. 166424-5, Philip O’Halloran, MD, v Secretary of State; and Richard Devisser v Secretary of State, which will be argued jointly on Tuesday, June 18, beginning at 9 a.m. via Zoom. Oral arguments will be livestreamed from the MSC YouTube Channel. The notice and schedule of oral arguments is posted on the Supreme Court’s oral arguments web page.
The brief account below may not reflect the way that some or all of the court’s seven justices view the case. The attorneys may also disagree about the facts, issues, procedural history, and significance of this case. For further details, contact the attorney/s.
Tuesday, June 18, 2024
Morning Session – 9 a.m.
166424-5
PHILIP M. O’HALLORAN, M.D.,BRADEN GIACOBAZZI, ROBERT CUSHMAN, PENNY CRIDER, and KENNETH CRIDER, (attorney Ann Howard)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Swartzle, B.)
SECRETARY OF STATE and DIRECTOR OF THE BUREAU OF ELECTIONS, (attorney Heather Meingast)
Defendants-Appellants.
————
RICHARD DEVISSER, MICHIGAN REPUBLICAN PARTY, and REPUBLICAN NATIONAL COMMITTEE, (attorney Robert Avers)
Plaintiffs-Appellees,
v (Appeal from Ct of Appeals)
(Ct of Claims - Swartzle, B.)
SECRETARY OF STATE and DIRECTOR OF THE BUREAU OF ELECTIONS, (attorney Heather Meingast)
Defendants-Appellants.
In May 2022, the Secretary of State issued an election procedure manual entitled “The Appointment, Rights, and Duties of Election Challengers and Poll Watchers,” providing instructions to election challengers and poll watchers. The manual was not published as a formal administrative rule under the Administrative Procedures Act (APA), MCL 24.201 et seq. Two groups of plaintiffs filed separate lawsuits in the Court of Claims in September 2022, challenging various provisions in the manual. The plaintiffs include election challengers for the November 2022 general election, two candidates for the Michigan Legislature, the Michigan Republican Party, and the Republican National Committee. The plaintiffs allege that various provisions of the manual violate the Michigan Election Law, MCL 168.1 et seq., and that the manual was promulgated without the notice-and-comment requirements outlined in the APA. The Court of Claims granted some, but not all, of the relief plaintiffs requested, finding five areas in which the plaintiffs were entitled to relief. The defendants filed applications for leave to appeal in the Court of Appeals, as well as bypass applications for leave to appeal in the Supreme Court. On November 3, 2022, the Supreme Court, in lieu of granting leave to appeal, stayed the effect of the opinion and order of the Court of Claims and any decision of the Court of Appeals, but otherwise declined to review the cases before review by the Court of Appeals. O’Halloran v Secretary of State, 510 Mich 970 (2022); DeVisser v Secretary of State, 510 Mich 994 (2022). On October 19, 2023, the Court of Appeals affirmed the Court of Claims in a published opinion. The Supreme Court has ordered oral argument on the application to address whether: (1) the challenged provisions of the election procedure manual issued by the Secretary of State are consistent with Michigan Election Law, MCL 168.1 et seq.; and (2) even if authorized by statute, the Secretary of State was required to promulgate the challenged provisions as formal rules under the Administrative Procedures Act, MCL 24.201 et seq.
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