Warren City Council is asking a federal judge to dismiss a lawsuit filed by Mayor Jim Fouts that alleges his civil rights were violated because his name is not included on Tuesday’s primary ballot for mayor.
“We instructed our attorneys to file an immediate motion to dismiss this frivolous lawsuit that attempts to disrupt our election process and cancel thousands of votes by Warren voters,” City Council President Pat Green said in a release Monday.
Green, one of six mayoral candidates in the primary, said the election will proceed without disruption and if there is “any attempt by the mayor to interfere with the election or the reporting of election results, our attorneys will be on standby to file an action in court to protect the integrity of our election process.”
Fouts filed a federal lawsuit Wednesday after the Michigan Court of Appeals ruled in April in a term-limits case that he was disqualified from seeking a fifth four-year term as mayor. The Michigan Supreme Court in May declined to take up an appeal filed by the city clerk and city Election Commission.
In 2016, voters approved a proposal to amend the city charter so a mayor could serve five four-year terms in office instead of three. Four years later, voters approved a city charter amendment that a mayor should have the same term limits as other elected officeholders, which is the greater of three complete terms, or 12 years.
Fouts was elected to a fourth term in 2019, but it appeared he would be term-limited for a fifth term in office if he sought one.
His name does not appear on Tuesday’s ballot. He alleges a violation of his civil rights under the First, Fifth and 14th Amendments because of his exclusion from the ballot and is suing the City Council, city Election Commission, city clerk and Macomb County clerk.
Fouts is asking the federal court order the defendants to decertify Tuesday’s mayoral voting; to order a special election to be held solely for the mayoral election, and to add and certify Fouts’ name to be on the ballot for the special election.
His attorney, Nabih Ayad, previously said a special mayoral election could be in mid-September, sometime between Tuesday’s primary and the November general election, and would include the names of Fouts and the other six candidates.
He asked for an expedited schedule in the case in a filing on Friday. No hearing dates have been set.
Ayad said Monday the City Council’s motion and arguments were not unexpected, and his legal team will be ready to counter those arguments in its response to be filed. He is hoping the court will hear the case in a timely fashion and hold oral arguments.
“Our intention is not to interfere with the primary that is going on tomorrow,” he said. “That’s why we are asking for a special election.”
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Ayad said voters may have to vote again and “that’s OK. I think that’s fair and sound under these set of circumstances.”
City Council is asking the federal court to dismiss Fouts’ complaint without prejudice because the court lacks jurisdiction over the matter or to dismiss it with prejudice for failing to state a claim upon which relief can be granted.
It argues, among other points, the relief Fouts seeks “would create confusion at a minimum and the specter of chaos. The thousands of votes already cast and those to be cast on Aug. 8, 2023, for mayoral candidates would be a nullity.”
“No one would know the identity of the candidates at the November election despite having cast ballots. Additionally, the election for the mayoral candidates would have to be repeated at significant cost to the City. More importantly, people who voted in the regularly scheduled Aug. 8 election might be disenfranchised by not voting in an unprecedented ‘special’ election ordered by the Court.”
As of Monday, the city had sent out 15,815 absentee ballots for the primary election, with 11,616 returned, according to City Clerk Sonja Buffa, who is one of three candidates for clerk.
City Council Secretary Mindy Moore, who is among five council incumbents seeking re-election among dozens of others vying for various council seats, said Fouts knew for more than three months that he would not be on the ballot and “this last-minute attempt to invalidate our city election is inexcusable.”
“Taxpayers do not owe the mayor one penny for all his self-inflicted wounds because he will not follow the law. We are going to vigorously fight this case and seek reimbursement from the mayor for all the city’s legal costs and fees,” she said in the council’s release.
The City Council states federal filings indicate Fouts is seeking damages of $1 million, but Fouts’ complaint does not state a specific damage amount.
Ayad said at Wednesday’s news conference: “We’re gonna let the courts decide what that amount is.” He reiterated that Monday, saying, “We want the courts to decide what is just and equitable.”
Contact Christina Hall: chall@freepress.com. Follow her on Twitter: @challreporter.
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