By Ben Solis
Gongwer News Service
Michigan Secretary of State Jocelyn Benson and Elections Director Jonathan Brater should not be compelled to take a different course after the state determined the pending results of a recall election for Flint's 3rd Ward city council seat should not be counted because the incumbent died months earlier, a Court of Claims judge ruled Thursday.
The lawsuit, Biggs-Leavy v. Benson (COC Docket No. 24-000175), was dismissed by Judge James Redford, with the defendants awarded summary disposition.
Beverly Biggs-Leavy, the plaintiff, alleged that the Bureau of Elections essentially nullified the recall effort of deceased Flint 3rd Ward Councilman Quincy Murphy, who died in September after the recall election was called earlier this year.
Biggs-Leavy filed the recall petition that led to the effort getting on the ballot and became a candidate for the office shortly thereafter. The recall was scheduled for the November 5 general election.
Her lawsuit filed in the Court of Claims alleged that following Murphy's death, the Bureau of Elections on October 3 sent Flint Clerk Davina Donahue a letter stating that, per Michigan Election Law, a planned recall election should not be held if the target resigns after the effort is officially placed on the ballot.
Biggs-Leavy argued that the bureau's position was not supported by any constitutional, statutory or legal authority, and that the votes should be counted for a properly called recall election.
Redford in an opinion and order issued Thursday said the court was certainly sympathetic to the resources expended by the plaintiff and others to facilitate the recall election, including enabling it to be included on the 2024 general election ballot.
The judge also expressed condolences to Murphy's family for their loss.
"However, the relief that plaintiff seeks through mandamus or otherwise is simply not available under Michigan law, nor advisable at this late date in the 2024 election cycle," Redford wrote. "The court finds no clear legal duty to order Secretary Benson or Director Brater to act in the way that the plaintiff requests in her complaint. Summary disposition in the defendants' favor is warranted."
Redford awarded summary disposition to Benson and Brater and denied requests for a temporary restraining order, preliminary injunction and a writ of mandamus.
The judge further explained that it appears Biggs-Leavy had sued the wrong government official.
"Petitions for the recall of a local city official are filed with the county clerk, not the secretary of state. When a recall petition is filed under MCL 168.960, 'the board of county canvassers in the county where the recall petition is filed shall conduct the canvass of the recall election,' not the secretary of state," Redford wrote. "This court is unaware of any authority that would allow – much less require – either named defendant to count and canvass the votes in this local election."
In a similar vein, Redford added, it was clear that Brater did not order Donahue to cancel the recall election.
"Rather, Director Brater provided advice, and more specifically, advice simply that the council member's passing should be considered a vacancy in this position and fall within the jurisdiction of local ordinances and procedure," Redford wrote.
"Director Brater advised Clerk Donahue to confer with legal counsel for the city of Flint or Genesee County. This court does not have jurisdiction to order the city or county clerk to do anything, let alone order the clerks to count or canvass the votes cast in this recall election."
Even if the matter did fall within the court's jurisdiction, Redford said mandamus was an inappropriate remedy because "the law at issue does not precisely and with certainty require the counting of the recall election votes under the circumstances."
"As noted by the plaintiff, this statute does not require the recall election to be cancelled if the officer whose recall is sought dies after the calling of the recall election," Redford wrote. "However, it is equally true that neither this statute, nor any other statute to which the plaintiff has pointed or of which the court is aware, requires the continuance of a recall election when the officer whose recall is sought dies. There is no clear duty for this court to direct. As our Supreme Court recognized in a very recent opinion, mandamus is inappropriate in situations like this."
The recent opinion Redford cited was in the lawsuit Robert F. Kennedy Jr. filed against Benson regarding his removal from the 2024 ballot, a request the Supreme Court denied.
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