Court of Appeals orders clerk to remove Fouts from ballot

WARREN — On April 21, the Michigan Court of Appeals overturned a lower-court ruling and ordered Warren City Clerk Sonja Buffa to remove Mayor James Fouts from the 2023 election ballot.

Although Fouts was not a named defendant in Macomb County Circuit Court Case, Warren City Council and Ronald Papandrea v. Sonja Buffa and the Warren Election Commission, if the appellate court’s ruling prevails, this could mean an end of an era for the mayor who has 42 continuous years of service as a Warren elected official. He served 26 years as a member of the City Council and in November, it will be 16 years as mayor.

After the ruling, attorney Lawrence Garcia, representing Buffa and the Election Commission, said, “My clients wish to appeal to the Michigan Supreme Court, and I’m working on that now.”

According to court records, the appeal was filed April 27, along with a motion for immediate consideration.

Time is of the essence. If the Michigan Supreme Court were to overturn the appellate court ruling, it must do so before absentee ballots for the primary election on Aug. 8 are printed and sent to voters.

According to the Warren City Clerk’s Office, the approximate date the county sends the ballot order to the printer is on or about June 2. By law, the ballots must be mailed to members of the military and overseas voters 45 days before the election, and to other absentee voters 40 days before the election. This means the ballots must be mailed by June 24 and June 29, respectively.

Fouts said he did not expect the appellate court’s ruling.

“I was obviously surprised,” Fouts said.  “I feel the Court of Appeals got it wrong and they ignored past precedent of the Supreme Court.  If a proposal is not clear, it cannot go forward. It cannot pass.”

On the other hand, Warren City Council President and Mayor Pro Tem Patrick Green, who is also on the ballot for mayor, said the city charter and the term limits are clear.

“Today, the Court of Appeals upheld the will of the Warren voters. I applaud today’s decision because it upholds the will of the people and the plain language of the city charter,” Green said after the ruling. “The mayor has seven months left in office and we have to focus on things that matter the most to the residents.”

Fouts wants Warren residents to have their say.

“What’s wrong with letting the people of Warren decide who should be mayor of Warren rather than the Court of Appeals?” Fouts said. “Pat Green gets a TKO, a technical knockout, and is denied a competitive election. I think Mr. Green and all the opponents should say, ‘Let’s go toe-to-toe with the mayor.’”

Some may contend the people of Warren had their say when they voted in 2019 for term limits not to exceed the greater of three complete terms or 12 years for all elected offices. It was passed with 67.8% of the electorate voting yes and 32.2% voting no.

“The proposal was not clear,” Fouts said.  “Most importantly, it did not have retroactivity in it. So, it is not clear that voters just didn’t vote for term limits going forward and not retroactive. Judge Toia said it wasn’t clear. The ballot proposal was flawed.”   

Fouts was referring to Macomb County Circuit Court Judge Joseph Toia, who wrote in his March 23 opinion and based his order on the omission of the words “any terms or years served prior to this amendment are included” in the amended Warren city charter and on the “Proposal” section of the ballot.  He explained the “Proposal” section of the ballot is where the voters check yes or no. Toia ruled it was not clear to voters whether previous terms were included in the term limits voted on in 2019 and implemented in 2020, or if the term limits were from 2020 and moving forward. In 2020, Fouts was serving in his fourth term in office, after Warren voters in 2016 approved term limits for the mayor of five terms or 20 years. As a result, Toia ruled Buffa and the Warren Election Commission — composed of Buffa, City Attorney Ethan Vinson and City Assessor Jennifer Czeiszperger — were allowed to keep Fouts on the ballot and that Fouts could run for an additional term.    

The Circuit Court ruling was quickly overturned in a unanimous decision by a panel of three judges — Chief Judge Elizabeth L. Gleicher, Judge Mark J. Cavanagh and Judge Colleen O’Brien — in the Michigan Court of Appeals.  Jeffrey Schroder, legal counsel for the Warren City Council, requested an expedited decision because filing deadlines were looming for those running for an elected office in Warren. Candidates had to file by 4 p.m. April 25 and had until 4 p.m. April 28 to withdraw. All filings are now official.    

According to Papandrea, who is named as plaintiff in this case, a member of the Warren City Council and licensed attorney, wanted to keep what happened in the 2019 election from happening again this year.

“Four years ago, four incumbent candidates (on the Warren City Council ballot) were taken off the ballot due to term limits. Their removal from the ballot was after the filing deadline so nobody else could run,” Papandrea said regarding this matter in a previous interview. “You have a strong incumbent; you’re not going to run against that person. But if you know they’re going to be taken off the ballot, you would file.  The only people who filed were inferior candidates. And they got elected.”

The appellate court decision was based on three factors — clear and plain language of the charter, the language on the ballot and retroactivity.

“The circuit court identified the language as ambiguous. Language is ambiguous if it is vulnerable to ‘more than one reasonable interpretation,’” the appellate court’s ruling stated.

The appellate court deemed that the language of the charter was clear and unambiguous and stated, “The plain language of the charter provides that a person who has held the office of mayor for more than three terms or 12 years, ‘shall not be eligible’ to hold it any longer.”  The opinion continued, “Thus, the one reasonable interpretation of the charter language is that once a person has served three terms or 12 years that person is not eligible to serve again as mayor.”

In Macomb County Circuit Court, Toia relied on language of the ballot proposal in his decision and the omission of the words: “Any terms or years served prior to this amendment are included.” That language was included on the ballot’s explanatory caption but was not included on the “Proposal” section on the ballot or in the amended charter.

In its ruling, the panel of appellate court judges stated, “We did not focus on the ballot proposal language in light of the clear words in the charter.”

According to the Court of Appeals, generally, legislation is applied prospectively, meaning from this point forward.

“It (Council) did not retroactively seek to disrupt Mayor Fouts’ fourth term in office after the 2019 election once the amendment passed in 2020,” the ruling stated. “Rather, the council now seeks a declaration that Mayor Fouts is subject to the version of the charter in effect in 2023, on the basis of (the) term limits amendment passed in 2020, for the election that will occur later this year. Prospectively, the terms served before the amendment’s passage will be counted.”

The Court of Appeals concluded, “The charter language was not ambiguous, the words ‘terms served prior’ did not have to appear in the ballot proposal question section but was on the proposal section and a prospective application was applied from 2020, meaning after Fouts had completed his fourth term, having served more than the greater of three complete terms or 12 years he was not eligible to run for mayor.”

“We were very pleased to receive a unanimous decision from the Court of Appeals that upholds the will of the voters on the subject of term limits,” said Schroder.

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