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STATE OF MICHIGAN
COURT OF APPEALS


GREG FLEMING, WILLIAM SUSICK and EDWARD F. COOK, Plaintiffs-Appellants, and MAX FELLSMAN, Plaintiff, v MACOMB COUNTY CLERK, Defendant-Appellee.

UNPUBLISHED June 26, 2008

No. 279966 Macomb Circuit Court LC No. 2006-004256-AW

Before: Owens, P.J., and Meter and Schuette, JJ. PER CURIAM. Plaintiffs Greg Fleming, William Susick, and Edward F. Cook appeal as of right from the trial court's July 30, 2007, order granting summary disposition in favor of defendant Macomb County Clerk (county clerk). The trial court dismissed plaintiffs' claims for declaratory and injunctive relief and permitted the county clerk to mail unsolicited absent voter ballot applications to county residents over the age of 60 living in communities in which the local city, township, or village clerk did not mail unsolicited applications. We reverse.1

We wish to make clear that we fully support the right of citizens to vote, encourage qualified voters to exercise this right, and do not discourage lawful means to increase voter turnout. However, for the reasons stated in this opinion, defendant's actions are neither statutorily nor constitutionally authorized and, therefore, the trial court erred when it failed to enjoin her from doing them.

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On September 21, 2006, the Macomb County Board of Commissioners (the board) passed a resolution authorizing the county clerk, Carmella Sabaugh,2 to mail absent voter ballot applications for the November 2006 general election to "Macomb County registered voters age 60 and over." The resolution limited the mailing list by eliminating those registered voters who lived in communities in which the city, township, or village clerk automatically mailed applications to voters over the age of 60.3 Notably, the board authorized Sabaugh to mail the applications in her official capacity as county clerk and to spend approximately $13,000 to prepare and mail the applications. Sabaugh strongly encouraged the board to pass this resolution and presented several policy arguments to support her position.4 Coincidentally, Sabaugh, a Democrat, was running against Republican Terri Lynn Land for Secretary of State in the November 2006 election. According to press reports at the time, Republicans in Macomb County began questioning Sabaugh's motives, claiming that Macomb County senior citizens tend to vote Democratic and noting that "[t]he timing [was] suspect."5 Shortly after the resolution was passed, plaintiffs filed suit seeking to prevent the mass mailing of absent voter ballot applications, alleging violations of the Michigan Election Law, MCL 168.1 et seq., and requesting injunctions to prevent the county clerk from mailing the unsolicited applications. Plaintiffs also alleged that the proposed mailings violated the Equal Protection clause of the Fourteenth Amendment and the purity of elections clause of the Michigan Constitution, and diluted the votes of other Michigan voters. They specifically requested a preliminary injunction to prevent the county clerk from mailing applications for absent voter ballots for the November 2006 election, which the trial court denied. Accordingly, on October 5, 2006, the county clerk mailed 49,234 absent voter ballot applications to Macomb County voters over the age of 60 who had not otherwise been sent an

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Sabaugh, in her official capacity as Macomb County Clerk, is the defendant in this case. We will refer to her interchangeably as "Sabaugh" and as "the county clerk" in this opinion.

Sabaugh informed the board that the local clerks in ten Macomb County communities automatically sent absent voter ballot applications to registered voters over the age of 60, but the local clerks in the remaining 13 communities did not automatically mail these applications.
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To support her position, defendant notes that private groups, including the Democratic and Republican parties, send absent voter ballot applications to their supporters. Yet she fails to note that the entities she identifies that mail absent voter ballot applications are private entities. Conversely, defendant is a public official acting in her public capacity with public money to send unsolicited absent voter ballot applications to only a portion of qualified absent voters in Macomb County. In this appeal, we do not address the question whether private groups may mail absent voter ballot applications to their members, and defendant's attempt to invite comparison between her actions and those of private groups is unavailing.

Presumably, these opponents of the county clerk's actions were concerned that defendant was using public money to make voting easier for a demographic that was inclined to support her campaign for Secretary of State and the campaigns of other members of her political party, but not facilitate voting for other demographics.

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absent voter ballot application from their city, village, or township clerk. In a press release, Sabaugh claimed that the mailing resulted in the casting of "at least 7,700 additional votes" in the November 2006 general election.6 The parties filed cross-motions for summary disposition to address the question whether Sabaugh was authorized to mail the unsolicited absent voter ballot applications in her official capacity as county clerk. When the trial court issued its opinion in July 2007, it noted that although the November 2006 general election had occurred nearly a year earlier, it would still address the issue on the merits because the issue was of continuing public interest and was capable of repetition yet evading review. In particular, the court noted that the board likely would continue to pass resolutions allowing the county clerk to mail unsolicited absent voter ballot applications before similar elections, leading to future scenarios in which plaintiffs would again have insufficient advance notice to pursue to its conclusion the question whether the county clerk had the authority to mail these applications before the mailing and election would occur. Although the trial court noted that the Michigan Election Law was silent regarding whether the county clerk was authorized to mail unsolicited absent voter ballot applications to voters age 60 and older, it determined that the county clerk was properly authorized by board resolution to conduct the mailing. The trial court also rejected plaintiffs' claims that the mailing violated the "purity of elections" clause of the Michigan Constitution or the Equal Protection clause of the Fourteenth Amendment or that it diluted the vote of other Michigan voters. On appeal, plaintiffs challenge the trial court's order granting defendant's motion for summary disposition and dismissing plaintiffs' claims. We review the trial court's determination regarding a motion for summary disposition de novo. MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). We also review de novo questions of law, including underlying issues of constitutional and statutory construction. In re Petition by Wayne Co Treasurer, 478 Mich 1, 6; 732 NW2d 458 (2007). The trial court improperly granted defendant's motion for summary disposition and denied plaintiffs' motion for the same. Defendant lacked statutory or constitutionally-granted authority to mail unsolicited absent voter ballot applications. Further, by conducting the mailing, defendant violated the purity of elections clause of the Michigan Constitution. Because we find that these mass mailings are illegal and unconstitutional, we hold that defendant, in her official capacity, may not mail unsolicited absent voter ballot applications to targeted individuals in the future. Const 1963, art 2,

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