Supreme Court of Michigan

“ It nowhere asserts that they are acting under authority conferred on them by a legislative act which infringes the rights previously granted in the complainants' charter, or impairs the obligation of their contract. The answer puts in issue nothing but the construction of certain statutes which both parties admit to be valid. It is therefore abundantly apparent that this court has no jurisdiction to review the judgment of the Supreme Court of Michigan in this case. ”

“ Nor does their prayer for relief ask that we order the Secretary of State to perform an audit of this election under Const 1963, art 2, § 4 (1) (h) . Indeed, it is not entirely clear exactly what the nature of petitioners’ complaint even is; while MCR 2.111 (B) (1) requires that a complaint lay out each “cause of action,” the complaint recites several vague counts (“Due Process,” “Equal Protection,” and “Article II, section 1, clause 2”) that are not recognized causes of action themselves. The only recognized cause of action is Count Four, which asks for “Mandamus and Quo Warranto.” ”

“ The Supreme Court agreed that the State itself is not a person under § 1983, but held that a state official acting in his or her official capacity also is not such a person.
The Michigan Supreme Court's holding that a State is not a person under § 1983 conflicts with a number of state- and federal-court decisions to the contrary. ”

“ But, assuming the evidence as to the other branch of the case to have been unchanged, we are not prepared to concede that the decision of the supreme court of Michigan proceeded upon the proposition that defendant must necessarily be absolved from negligence because all its employes, including plaintiff, were, as matter of law, fellow servants with those who should have kept the planking in good condition, as that proposition is untenable. ”

“ A “past event cannot be prevented by injunction.” Rood v Detroit, 256 Mich 547, 548 (1932) . Even had that not happened, however, it does not appear that the law contemplates any role for the courts in this process. As noted by Justice Viviano, the ordinary process by which a Michigan election result can be challenged is via quo warranto proceedings. We have said
that you may go to the ballots, if not beyond them, in search of proof of the due election of either the person holding, or the person claiming the office. ”

“ The present order of course reflects no views on the merits of the appellant's Equal Protection claim. It may well turn out that the assertion of invidious discrimination is not borne out by the record. Today's order simply reflects out belief that the Michigan Supreme Court should be the first to consider the merits of the federal constitutional claim, free from any doubts as to its justiciability. ”

“ Considering jurisprudentially significant constitutional claims is our core responsibility. The fact that the claims arise in a high-profile case or one that may have national implications is no reason for us to shy away from our duty to decide them. As I have discussed at some length here (and in Costantino) , our election contest laws are underdeveloped and unclear. That murkiness may explain why the petitioners here (and parties in related cases like Costantino) have had such difficulty navigating them. ”

“ But the Michigan Constitution does not require that presidential electors be themselves popularly elected, and reserving final decision-making authority in the Legislature as to that specific office is consistent with federal constitutional and statutory law. ↑ Justice Viviano says I am “mistaken in suggesting that petitioners here have not asked for an audit,” because petitioners’ complaint declares several times that the respondents “owe citizens an audit of election results that is meaningful and fair and to safeguard against election abuses.” ”

“ However, plaintiffs cite no support, and I have found none, for their proposition that an audit under Const 1963, art 2, § 4 (1) (h) —which provides “ [e] very citizen of the United States who is an elector qualified to vote in Michigan ... [t] he right to have the results of statewide elections audited, in such a manner as prescribed by law, to ensure the accuracy and integrity of elections”—must precede the certification of election results. Indeed, the plain language of Const 1963, art 2, § 4 (1) (h) does not require an audit to precede the certification of election results. ”

“ Although we have no absolutely definitive answers for these questions, it appears very much that petitioners are erroneously seeking to make the investigation of fraud a part of the canvassing process, and doing so by invoking statutes (MCL 168.479, MCL 168.878) that do not purport to give the judiciary the jurisdiction they ask us to exercise, which is all the more a problem given that MCL 168.846 appears to make the Legislature the exclusive arbiter of who is the proper winner of a presidential election. ”

“ Next, there is a problem of jurisdiction. There has, admittedly, never been litigation like this before in Michigan, so we have no precedents we can draw upon as a definitive resolution. However, the face of petitioners’ complaint strongly suggests there is a jurisdictional problem. ”

“ Const 1963, art 4, § 16, as well as the plenary authority that state legislatures have over the selection of presidential electors under federal law, see US Const, art II, § 1, cl 2; 3 USC 2. [2] As Justice Viviano observes, the language of MCL 168.846 was formerly in the Michigan Constitution of 1850. When it was, we observed that it
does not permit the regularity of elections to the more important public offices to be tried by the courts. ”

“ On the first day of January, in the year one thousand eight hundred and fifty-two, the jurisdiction of all suits and proceedings then pending in the present supreme courts shall become vested in the supreme court established by this constitution, and shall be finally adjudicated by the court where the same may be pending. The jurisdiction of all suits and proceedings at law and equity, then pending in the circuit courts and county courts for the several counties, shall become vested in the circuit courts of the said counties and District Court for the Upper Peninsula. ”

“ Appellant has been subjected, as all persons within the state of Michigan are, to the law in its regular course of administration through courts of justice, and it is impossible to hold that a judgment so arrived at is such an unrestrained and arbitrary exercise of power as to be utterly void. ”

“ Every impeachment shall be tried by the senate.
When the governor or lieutenant governor is tried, the chief justice of the supreme court shall preside. When an impeachment is directed the senate shall take an oath or affirmation truly and impartially to try and determine the same according to the evidence. No person shall be convicted without the concurrence of two-thirds of the members elected. Judgment in case of impeachment shall not extend further than removal from office, but the party convicted shall be liable to punishment according to law. ”

“ These jurisdictional problems seemingly put to rest petitioners’ allegations about how absentee ballots were handled in this election. They ask that we “segregate any ballots counted or certified inconsistent with Michigan Election Law” and, in particular, “any ballots attributable to the Secretary of State’s absentee ballot scheme”—a reference to the Secretary of State’s decision to send out unsolicited absentee ballot applications to voters. ”

“ Federal law imposes tight time restrictions on Michigan’s certification of our electors. Plaintiffs should not have to file appeals following our standard processes and procedures to obtain a final answer from this Court on such weighty issues.
Finally, I am cognizant that many Americans believe that plaintiffs’ claims of electoral fraud and misconduct are frivolous and obstructive, but I am equally cognizant that many Americans are of the view that the 2020 election was not fully free and fair. ”

“ It is, of course, obvious that none of the errors assigned to the rulings of the trial court in the admission or rejection of evidence, or to its instructions to the jury, nor those assigned to the judgments of the appellate and supreme courts, can be considered by us except as they affect the question of the legal import of the Michigan judgment as concluding the controversy between the parties in the Illinois courts. ”

“ None of the neighboring rights listed in Article 2, § 4, such as the right to vote by absentee ballot, requires citizens to present any proof of entitlement for the right to be exercised. Yet, the trial court here ignored this threshold legal question and instead scrutinized the parties’ bare affidavits, concluding that plaintiffs’ allegations of fraud were not credible. [2] The trial court’s factual findings have no significance unless, to obtain an audit, plaintiffs were required to prove their allegations of fraud to some degree of certainty. ”

“ Given the nature of the writ of quo warranto, it is simply not a proper vehicle for receiving any audit-related relief. As noted, mandamus might be, at least to the extent that petitioners seek to compel the Secretary of State to perform a clear legal duty. But that would not extend to this Court’s performing said audit; nowhere in the law is it this Court’s legal duty to perform any audit. ”

“ The provision is self-executing, meaning that the people can enforce this right even without legislation enabling them to do so and that the Legislature cannot impose additional obligations on the exercise of this right. ”

“ Our statutes and court rule do not specify when these actions can be brought, but traditionally they required the defendant to have assumed office; thus one commentator has concluded that our framework “effectively preclude [s] election contests ... .” Discouraging Election Contests, 47 U Rich L Rev at 1028; see also Procedural Fairness, 88 Ind L J at 11. [16] With respect to presidential electors, whose office exists for only a short period, it is not at all clear how a quo warranto action could timely form the basis for an effective challenge. ”

“ I believe it is incumbent upon the Court, in these circumstances, to provide guidance so that, no matter the outcome, the people are able to understand and exercise their constitutional rights in an effective and meaningful manner. ”

“ Original actions should, therefore, be afforded very close review, particularly when they raise matters under Michigan election law.
Here, petitioners have presented a significant constitutional question pertaining to the process and scope of the constitutional right to an election audit—a right explicitly placed in our Constitution by the people themselves, in whom “ [a] ll political power is inherent ... ”

“ But “ [w] e have long indicated that canvassing boards’ role is ministerial and does not involve investigating fraud.” Costantino, ___ Mich at ___; slip order at 6-7 (Viviano, J., dissenting) (collecting sources) . There is simply no statutory framework for the boards to adjudicate fraud. And, strikingly, the Legislature has not, in any other statute, expressly provided a mechanism for determining disputes specific to presidential electors as envisioned in the Electoral Count Act.
And thus, we remain one of the only states without any clear framework to enable and regulate election contests. ”

“ Under these proceedings, the court can determine the “right of the defendant to hold the office.” MCL 600.4505. But these actions usually must be brought by the attorney general—only if she refuses can a private citizen seek leave of court to make the claim. ”

“ When applied, as it must be, to the Union's activities reflected in the record of this case, the First Amendment forbids the restraints imposed by the injunction here under review for the following among other reasons.
First. The decree approved by the Michigan Supreme Court enjoins the Union from 'giving or furnishing legal advice to its members or their families.' Given its broadest meaning, this provision would bar the Union's members, officers, agents, or attorneys from giving any kind of advice or counsel to an injured worker or his family concerning his FELA claim. ”