Fouts seeks appeal after federal lawsuit is dismissed

WARREN — Lawyers for Warren Mayor Jim Fouts vow to appeal a ruling by a federal judge who dismissed a lawsuit alleging the mayor’s civil rights were violated when he was removed from the ballot of this year’s primary election.

Fouts filed the four-count complaint on Aug. 2 against the Warren City Council, the Warren Election Commission, Warren City Clerk Sonja Buffa and Macomb County Clerk Anthony Forlini.

On Sept. 5, U.S. District Court Judge George Caram Steeh granted motions to dismiss filed by the defendants. The case was dismissed in its entirety without a hearing, making moot Fouts’ request for an expedited review of his case.

Count I of the complaint alleged Fouts’ First Amendment rights were violated when he was taken off the 2023 primary ballot. Fouts sought a remedy of a special election for the office of mayor only, with him on the ballot with the other mayoral candidates. According to what was requested, absentee votes that came in before the special election would have been decertified and residents would have had to revote for the candidate of their choice.

“The court finds that there is no fundamental right to run for office, and Warren has a rational basis for imposing term limits for the office of mayor,” Steeh wrote in his opinion and order.

The judge wrote, “Term limits are part of a state ‘to prescribe qualifications for its officeholders’ rather than a ‘regulatory procedure relating to the election process.’”

Count II alleged a violation of Fifth Amendment rights without due process of the law. Fouts’ lawyers argued that Warren residents voted to extend the term limits of the mayor from three terms to five terms or 20 years in 2016. They contended retroactivity was not on the ballot or in the proposed amendment in 2020 when voters passed term limits of three four-year terms or 12 years for all city of Warren elected officials.

“Plaintiff’s due process argument is that counting his terms served prior to the 2020 amendment to determine him ineligible to run for mayor, denies plaintiff a vested property interest without due process of law,” Steeh wrote in his ruling. “However, because there is no property vested in being a candidate for political office, the court grants defendants’ motion to dismiss the claim.”

Count III alleged Fouts’ 14th Amendment rights were violated by denying equal application of the law.

“Because plaintiff cannot show that the term limits are applied to him differently than they are applied to others who are similarly situated, he fails to state a claim for which relief can be granted,” Steeh wrote.

The judge also wrote that Fouts was not entitled to a declaratory judgment sought in Count IV because “Plaintiff fails to demonstrate an ‘actual injury traceable to the defendant(s) (that is) likely to be redressed by a favorable judicial decision.’”

Steeh’s decision was rendered without a hearing and oral arguments.

“That is certainly atypical. I think everybody was probably surprised by this court’s choice to not have a hearing,” said attorney William Savage, who represents Fouts. “In discussion, in chambers it was expressed that there was a very strong likelihood that a hearing would be had and only a slight possibility that one would not be had.”

 

What’s next?
In the past several months, Fouts has been affected by lawsuits that have not ruled in his favor. In a press release issued by his lawyers, the mayor asked that questions regarding the federal case be directed to his legal counsel.

“He is disappointed, just like he was disappointed in the Michigan Court of Appeals ruling, where he certainly felt it was an incorrect interpretation of the law,” said Savage.

Fouts’ legal team will seek an appeal and an expedited review, according to Savage.

“It leaves him (Fouts) with an appeal to the Sixth Circuit Court of Appeals in Cincinnati, Ohio,” said Savage. “And it’s an appeal of right, which is not like an appeal to the Michigan Supreme Court where you are asking, ‘Would you hear this case?’ It will be heard. What the Sixth Circuit will do is yet unknown.”

The case being heard does not necessarily mean there will be a hearing and oral arguments. Nor does it mean the outcome will be any different.

“I never give my clients odds,” said Savage. “I think there is a reasonable chance and a good chance and certainly based on the law at issue, I think there is a significant chance the (U.S.) District Court’s ruling will be modified in some way by the Court of Appeals.”

Warren City Council Secretary Mindy Moore, who was a defendant in this case, said she is pleased with the judge’s ruling.

“We thought that would happen,” Moore said. “We feel that this was a totally frivolous attempt for the mayor to try to stay relevant and in the news.”

Moore also commented about Fouts’ appeal.

“It is a waste of taxpayer money. He (Fouts) is apparently spending his own money to bring the lawsuit, but we had to defend it and that cost the city money,” Moore said. “It’s just ridiculous we’ve had to go through those motions and the other defendants had to have attorneys.”

Moore could not say how much the City Council has spent on legal fees to defend the case.

“We’ve not gotten a bill yet,” said Moore. “If he (Fouts) is going to file an appeal, then we’re going to have to defend that, and appellate law practices are very expensive. This is once again going to cost us money and time.”

Moore added, “His (Fouts) time is up. There are other people who are serious about running for office and he is just creating conflict and chaos and confusion with some of the voters. I am very disheartened that he keeps going forward with all of this.”

On behalf of the mayor, Savage said, “He has a lot of fight in him, and he is looking to see this through until the end, which of course is not over yet.”