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Michigan Court of Appeals Holds Flint Mayoral Candidate Should Have Been Disqualified From All 2017 Electoral Races

On March 8th, 2018, the Court of Appeals released their decision in Gleason v Kincaid, __ Mich App __; __ NW2d __ (2018)(Docket No. 340239) holding that candidate William Scott Kincaid should have been disqualified from both the city council race and the Flint mayoral race during the November 7th, 2017 recall election.

Mr. Kincaid was an incumbent on the Flint City Council who announced his intent to run for reelection and, in fact, won the primary election for his city council seat on August 8th, 2017. On August 3rd, 2017, the Genesee County Clerk, John Gleason, certified a recall election for the Mayor of Flint. On August 11th, 2017, Mr. Kincaid paid the filing fee and announced his candidacy for the mayoral seat, resulting in his appearance on the November 7th, 2017 ballot for both city council and mayor. The deadline to withdraw from the city council race passed on April 28th, 2017. The incumbent Mayor Karen Weaver and challenger Don Pfeiffer also competed for the seat.

The county clerk filed for and sought a declaratory judgment from the Genesee County Circuit Court determining whether Mr. Kincaid could run for either office in the same election. Specifically, the county clerk was looking for the trial court to interpret the meaning of MCL 168.558(5), which states that a person who is listed as a candidate for two incompatible offices "shall select the 1 office to which his or her candidacy is restricted within 3 days after the last day for the filing petitions or filing fees" and "[f]ailure to make the selection disqualifies a candidate with respect to each office...". "Incompatible offices" means that one office is subordinate or subject to supervision by the other office, or the two offices must necessarily function separately from each other. There was no question that the office of Flint mayor and a seat on the Flint city council are incompatible offices. The guidance being sought by the county clerk was whether Mr. Kincaid had to pick one race to withdraw from or whether Mr. Kincaid had to withdraw from both.

The trial court entered an opinion and order that Mr. Kincaid is allowed to run for either mayor or city council, but not both, and had to withdraw from one of the races. The court noted that, while the purpose of MCL 168.558(5) was to penalize candidates running for incompatible offices, the statute did not address timing issues of one race becoming available after the candidate was committed to another race. Out of fairness and on equity grounds, the trial court allowed his withdrawal from one of the races as opposed to being disqualified from both. Mr. Kincaid then opted thereafter to withdraw from the city council race. Don Pfeiffer, as a intervening plaintiff with the county clerk, immediately appealed the court's decision.

The Flint mayoral election resolved five months prior to the Michigan Court of Appeals issuing its opinion with Karen Weaver emerging as the winner with 53% of the vote to preserve her mayoral seat. As a result, Mr. Kincaid sought a determination that the issue before the court was moot because there was no longer a remedy that can be granted. The Court of Appeals disagreed and held that this was the type of issue that was likely to reoccur and evade judicial review because of the short timelines in election cycles. Despite being a moot issue due to the election having concluded, the court felt that there was enough public significance to rule on this issue to set a precedent in future elections.

The Court of Appeals further held that MCL 168.558(5) was clear in its meaning and the trial court had no right to contradict the statute on equity grounds. Mr. Kincaid filed his intent to run for city council and did not withdraw from the race within 3 days of the deadline for petitions or fees per the statute. Mr. Kincaid filed his intent to run for mayor and did not withdraw from that race within 3 days of the deadline for petitions or fees per the statute. Since he was a candidate for two incompatible offices at the same time and did not withdraw from either in the time allotted, the trial court had no choice but to disqualify him from both races. A court may only use its powers of equity when the statutory law is unclear, not when it simply decides that the statute was unfair. Although Mr. Kincaid did not prevail in the election, he should have never been permitted to be on the ballot anyway if the Genesee County Circuit Court followed the law.

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