John Lauve v. Janice Winfrey ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0208n.06
No. 20-1349
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN LAUVE; ROBERT DAVIS, ) FILED
) Apr 20, 2021
Plaintiffs-Appellants, ) DEBORAH S. HUNT, Clerk
)
v. )
)
ON APPEAL FROM THE
JANICE WINFREY, in her official capacity as )
UNITED STATES DISTRICT
Detroit City Clerk; DANIEL BAXTER, in his )
COURT FOR THE EASTERN
official capacity as Director of Elections for City of )
DISTRICT OF MICHIGAN
Detroit Election Commission; DETROIT CITY )
COUNCIL, )
)
Defendants-Appellees. )
Before: ROGERS, BUSH, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. In 2017, the Detroit City Council approved an ordinance to
provide additional funding for the construction of an arena in downtown Detroit for the Detroit
Pistons. John Lauve and Robert Davis launched a petition drive to repeal the ordinance by
referendum. They submitted the petitions to the Detroit City Clerk, who rejected them as woefully
deficient—they contained only 362 signatures, well short of the 4,054 signatures needed to send
the measure to the ballot. Lauve and Davis returned 15 days later with over 7,000 signatures, but
the Clerk rejected the petitions as untimely. So Lauve and Davis sued various individuals and the
Detroit City Council, raising several claims related to the rejection of their petitions. The district
court dismissed the complaint, and we AFFIRM in part, VACATE in part, and REMAND for
further proceedings.
No. 20-1349, Lauve v. Winfrey
I.
To provide additional funding for a new basketball arena for the Detroit Pistons in
downtown Detroit, the Detroit City Council approved Detroit City Ordinance, No. 19-17 (the
Ordinance). The Ordinance authorized the City of Detroit Downtown Development Authority “to
sell subordinate tax increment revenue bonds in an amount not to exceed $36.0 million . . . to
provide $34.5 million to finance additional costs of the construction” of the new arena. The
Ordinance went into effect on July 5, 2017.
Section 12-101 of the Detroit City Charter reserves to the voters of the City the power to
nullify certain ordinances through referendum petitions. The petitions “must be signed by voters
of the City, not less in number than three percent (3%) of all votes cast for the office of Mayor at
the preceding regular city general election.” Detroit, Mich., City Charter, § 12-102. The Charter
provides that referendum petitions “shall be filed with the Office of the City Clerk,” who then
“shall verify the number of petitions that were filed and transmit petitions to the Department of
Elections for a canvass of the petitions.” Id. § 12-104. “Within ten (10) days of receipt, the
Department of Elections shall canvass the signatures thereon to determine their sufficiency and
make a report of the result to the City Council.” Id. If the “canvass discloses that the number of
signatures on petitions for any initiative or referendum is insufficient, additional petitions may be
filed within fifteen (15) days after the Clerk’s determination.” Id. § 12-105. “When this
fifteen (15) day period has expired, the Clerk shall again canvass the signatures on the petitions
filed to determine their sufficiency and make a report of the result.” Id. The Charter also provides,
“Where a referendum on an ordinance has been invoked under section 12-103, the effect of the
ordinance shall be delayed or suspended until the City Clerk has made a final report that the
referendum petitions are insufficient or, if the referendum petitions are sufficient, until the voters
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of the City have expressed their support for the ordinance in the referendum election.” Id. § 12-
106. The referendum process does not apply to ordinances involving the budget or the
appropriation of money, however. Id. § 12-101.
Lauve and Davis circulated referendum petitions to repeal the Ordinance. Under § 12-103
of the Charter, they had 30 days to file the petitions. The parties agree that the deadline to file the
petitions was August 5, 2017. Lauve and Davis timely presented the petitions to the office of the
Detroit City Clerk, Janice Winfrey, on August 4. The petitions contained only 362 signatures, well
short of the necessary 4,054 signatures.
Lauve and Davis allege that when they presented their petitions, the City Clerk’s office
accepted the petitions and provided Lauve with a receipt of signatures. According to the Director
of Elections, Daniel Baxter, however, the City Clerk’s office told Lauve and Davis that it could
not accept the petitions because of the signature deficiency, but plaintiffs insisted on leaving them
anyway. Later that day, Baxter sent a letter to Lauve explaining that the petitions were invalid
under the Charter. The letter stated, “This letter will confirm that the City Clerk has not and cannot
accept the petitions because the filing is null and void under the City Charter.”
Lauve and Davis returned to the City Clerk’s office on August 18, 2017, this time with
additional referendum petitions containing 7,927 signatures. They sought to take advantage of the
fifteen-day window provided by § 12-105. Baxter again rejected the petitions, finding them
untimely.
Lauve and Davis sued Baxter, Winfrey, and the Detroit City Council (collectively, the
City). They raised due process and equal protection claims, filed an emergency motion for a writ
of mandamus to compel the City to accept the petitions and canvass them, and asked for several
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declaratory judgments. The district court dismissed all claims at various stages of the proceedings.
Plaintiffs now appeal the district court’s dismissal of some of their claims.
II.
The district court dismissed most of plaintiffs’ claims for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). We review de novo a Rule 12(b)(6) dismissal and
“construe the complaint in the light most favorable to the plaintiff[s], accept its allegations as true,
and draw all reasonable inferences in favor of the plaintiff[s].” Carrier Corp. v. Outokumpu Oyj,
673 F.3d 430, 444 (6th Cir. 2012) (quoting Watson Carpet & Floor Covering, Inc. v. Mohawk,
Indus., Inc., 648 F.3d 452, 456 (6th Cir. 2011)). The district court granted summary judgment to
the City on plaintiffs’ equal protection claim. We review de novo. Libertarian Party of Ohio v.
Husted, 831 F.3d 382, 394 (6th Cir. 2016). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a).
A. Federal Claims
Due Process. Lauve and Davis first challenge the dismissal of their procedural due process
claims. To establish a procedural due process claim, Lauve and Davis “must show that (1) [they]
had a life, liberty, or property interest protected by the Due Process Clause; (2) [they were]
deprived of this protected interest; and (3) the state did not afford adequate procedural rights.”
Schmitt v. LaRose, 933 F.3d 628, 642 (6th Cir. 2019). Plaintiffs argue that they have a protected
liberty interest in having their referendum petitions accepted and canvassed by the City in
accordance with the Charter and that the City violated their federal constitutional rights to due
process by failing to follow the Charter.
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No. 20-1349, Lauve v. Winfrey
On plaintiffs’ view of the facts and the law, the City Clerk violated the Charter in three
ways: (1) by not accepting the tendered 362 signatures on the day before the deadline pursuant to
§ 12-104; (2) by not automatically extending the clock by 15 days under § 12-105 to give plaintiffs
time to collect almost 4,000 additional signatures in order to meet the required number; and (3) by
not immediately suspending the Ordinance upon the presentation of the 362 signatures pursuant to
§ 12-106—all without notice and a meaningful opportunity to be heard. According to Lauve and
Davis, the Clerk’s failure to follow the Charter in these respects amounts to a violation of their due
process rights.
We see several problems with plaintiffs’ due process claims. Even if it were true that the
Clerk violated the Charter in the ways articulated by plaintiffs, that would show only that the Clerk
had failed to comply with municipal law. Lauve and Davis brought their due process claims
pursuant to 42 U.S.C. § 1983. It is a long-established principle “that the violation of a state statute
or regulation is insufficient alone to make a claim cognizable under § 1983.” Stanley v. Vining,
602 F.3d 767, 769 (6th Cir. 2010); see also Bates v. Sponberg, 547 F.2d 325, 331 (6th Cir. 1976)
(“Since 42 U.S.C. § 1983 offers relief only to those persons whose federal statutory or federal
constitutional rights have been violated, we conclude that the mere departure from the university
regulations, standing alone, did not deprive Bates of any right which can be asserted in this court.”).
Similarly, “[v]iolation of a state’s formal procedure . . . does not in and of itself implicate
constitutional due process concerns.” Purisch v. Tenn. Tech. Univ., 76 F.3d 1414, 1423 (6th Cir.
1996). “A state cannot be said to have a federal due process obligation to follow all of its
procedures; such a system would result in the constitutionalizing of every state rule, and would
not be administrable.” Id. (quoting Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993),
overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99, 111 (1995)). “[I]t is
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No. 20-1349, Lauve v. Winfrey
only when [a state official’s] disregard of [the] rules results in a procedure which in itself impinges
upon due process rights that a federal court should intervene in the decisional processes of state
institutions.” Bates, 547 F.2d at 329–30. Lauve and Davis do not explain how the City’s failure
to follow the provisions of the Charter amounts to a due process violation.
Nor is it clear that the Charter provisions governing the referendum process could create a
constitutionally protected liberty interest. See Richardson v. Texas Sec’y of State, 978 F.3d 220,
230–33 (5th Cir. 2020) (noting that “state-created liberty interests are generally limited to freedom
from restraint” and concluding that a state-created mail-in-ballot regime did not create a protected
liberty interest (internal quotation marks omitted)). But see Memphis A. Philip Randolph Inst. v.
Hargett, 978 F.3d 378, 409 (6th Cir. 2020) (Moore, J., dissenting) (concluding that a Tennessee
absentee-voting law “create[d] a protected liberty interest in voting absentee by mail”). Lauve and
Davis offer no analysis of that question, other than to offer boilerplate language from due process
caselaw outside the election law realm.
In the end, though, we need not decide whether plaintiffs had a constitutionally protected
liberty interest because plaintiffs’ due process claims fail for a much simpler reason: they have
failed to explain why the procedure afforded by the City was insufficient to satisfy the Constitution.
LaRose, 933 F.3d at 642.
Lauve and Davis assert that they received neither notice that the Clerk would fail to comply
with the Charter, as they read it, nor an opportunity to be heard before the alleged deprivation. But
they fail to account for the fact that post-deprivation process can also satisfy the Constitution.
Indeed, in a closely analogous case, we held that “afford[ing] aggrieved ballot-initiative
proponents” access to “mandamus relief in the state courts” constituted “a satisfactory post-
deprivation remedy for the purposes of procedural due process.” Id.; see also Martinez v. City of
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Cleveland, 700 F. App’x 521, 523 (6th Cir. 2017) (concluding that there was no due process
violation because the plaintiff “had at least one adequate state-law remedy available to him”; “he
sought a writ of mandamus in this very action”). Michigan affords such relief. See Protect Our
Jobs v. Bd. of State Canvassers, 822 N.W.2d 534, 548 (Mich. 2012). Plaintiffs have failed to
explain why Michigan’s procedure is inadequate. Accordingly, their due process claims fail.
Equal Protection. Lauve and Davis also brought a “class of one” equal protection claim.
To establish a “class of one” claim, plaintiffs must show that they were “intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). The district
court granted summary judgment to the City on this claim on the ground that plaintiffs could not
show they were treated differently from other similarly situated individuals.
Lauve and Davis say that their referendum petitions were treated less favorably than
initiative petitions submitted by Thomas Barrow in 2015. They say that Barrow submitted
petitions with fewer than 4,054 signatures and yet was given 15 days to rectify the deficiency. But,
as the district court appropriately recognized, the facts tell a different story.
Initiative petitions must be submitted 140 days before the election at which they are to be
placed on the ballot. Detroit, Mich., City Charter, § 12-103. Over two sets of filings well before
the deadline, Barrow submitted petitions containing a combined total of 5,244 signatures. The
Department of Elections canvassed the signatures and determined that “the total number of valid
signatures submitted w[as] 3,833.” The City Clerk informed Barrow that he could submit more
petitions to make up the deficiency pursuant to § 12-105. Barrow did so five days later, and the
City Clerk determined that he had submitted a sufficient number of valid signatures to place the
initiative on the ballot. So unlike Lauve and Davis, Barrow submitted more than the requisite
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No. 20-1349, Lauve v. Winfrey
number of signatures before the deadline. As the district court appropriately concluded, “Plaintiffs
were not similarly situated to Barrow because they failed to timely submit the threshold number
of signatures.”
On appeal, Lauve and Davis offer nothing to rebut the district court’s determination.
Instead, they baldly assert that Barrow submitted facially invalid petitions before the deadline
(without grappling with the record evidence supporting the district court’s finding) and argue why
the City might have treated them differently than Barrow, but never explain how. Lauve and Davis
therefore have failed to establish error in the district court’s determination, and their equal
protection claim fails.
Void for Vagueness. Lauve and Davis sought a declaratory judgment that Ҥ 12-101 of the
2012 Detroit City Charter, as applied to [them], is unconstitutionally void-for-vagueness.”
Appellants Br. at 30. Section 12-101 says that the referendum “power[] do[es] not extend to the
budget or any ordinance for the appropriation of money.” Plaintiffs argue that § 12-101 is
unconstitutionally vague because it “does not define the terms ‘appropriation of money’ and does
not provide any clarity as to what constitutes ‘an ordinance for the appropriation of money.’”
Appellants Br. at 33. The district court determined that Lauve and Davis lacked standing to seek
a declaratory judgment because they could not show that their injuries would be redressed by a
decision in their favor. We agree.
To have standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). As the district
court recognized, the City rejected the proffered petitions because they were short on signatures;
not because the Ordinance was for the appropriation of money. Since the appropriation issue
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played no role in the decision, the district court determined that declaring § 12-101
unconstitutionally vague would not redress plaintiffs’ alleged injury. Plaintiffs therefore could not
establish the third element of standing. On appeal, plaintiffs do nothing to contest the district
court’s conclusion in this regard. Seeing no errors in the district court’s conclusion, we agree that
plaintiffs lack standing to pursue a declaratory judgment with respect to the constitutionality of
§ 12-101.1
B. State Law Claims
Finally, plaintiffs raise two state law claims. They challenge the district court’s denial of
their request for a state law writ of mandamus to compel the City to accept and canvass the petitions
under the Charter, and to give them an additional fifteen days to provide the necessary signatures
(Count VII of the Amended Complaint). Similarly, they challenge the district court’s dismissal of
their claim for a declaratory judgment under state law declaring that the Ordinance should have
been suspended until the City canvassed the petitions (Count VIII of the Amended Complaint).
The City contends that these claims are moot. They did the same below, but the district
court bypassed this jurisdictional question and others (including whether it was appropriate to
exercise supplemental jurisdiction over the state law claims) in favor of denying the claims on the
merits. That was improper. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.
422, 431 (2007) (stating that a court “may not assume jurisdiction for the purpose of deciding the
merits of the case”).
A case becomes moot “when the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)
1
The district court also concluded that Lauve and Davis had failed to show the second element of
standing—causation. Because we agree with the district court on redressability, we do not address
causation.
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(citation omitted). An actual dispute must exist throughout litigation. Kiser v. Kamdar, 752 F.
App’x 272, 274 (6th Cir. 2018). “An actual dispute does not exist when a party requests relief that
would have no effect in the real world.” Id.The record reveals that the Detroit City Council adopted the Ordinance in order to provide
additional funding for a new Detroit Pistons arena in downtown Detroit. The Ordinance authorized
the City of Detroit Downtown Development Authority (DDA) “to sell subordinate tax increment
revenue bonds in an amount not to exceed $36.0 million . . . to provide $34.5 million to finance
additional costs of the construction” of the new arena. We are told that “[o]n August 10, 2017, the
DDA issued and sold the Series 2017 Bonds to Bank of America, N.A., as the sole purchaser, in a
private placement transaction, upon the DDA’s receipt of the full purchase price of the Series 2017
Bonds in the amount of $36.0 million.” And we know that the arena has been built and the Detroit
Pistons have been playing in it since 2017.
So if the bonds have been sold and the arena has been built, does the Ordinance have
ongoing effect? The parties do not say. Would repealing the Ordinance have any real-world
effect? We cannot tell on the record before us whether these, or other issues, deprive the federal
courts of jurisdiction over plaintiffs’ state law claims. Because we cannot pass on the merits of
the state law claims without knowing whether the district court had jurisdiction to do so, we vacate
the district court’s order dismissing Counts VII and VIII of the Amended Complaint and remand
for it to consider the jurisdictional questions in the first instance.
***
We AFFIRM the judgment of the district court except that we VACATE the judgment as
to Counts VII and VIII of the Amended Complaint and REMAND for further proceedings
consistent with this opinion.
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