*

The Honorable Bernice Bouie Donald, United States District Judge for the Western District of Tennessee,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0008p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

RALPH NADER; PETER MIGUEL CAMEJO; RALPH

NADER FOR PRESIDENT 2004; REFORM PARTY OF

THE UNITED STATES OF AMERICA, by and through its

National Chair Shawn O’Hara; SHAWN O’HARA, in

his individual capacity as Chair of the Reform Party

of the United States of America,

Plaintiffs-Appellants,

v.

TERRI LYNN LAND, Michigan Secretary of State;

MATTHEW CREHAN,

Defendants-Appellees.

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No. 04-2428

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 04-72830—Bernard A. Friedman, Chief District Judge.

Argued: December 1, 2005

Decided and Filed: January 10, 2006 

Before: KENNEDY and GIBBONS, Circuit Judges; DONALD, District Judge.*

_________________

COUNSEL

ARGUED: Bruce I. Afran, Princeton, New Jersey, for Appellants. Heather S. Meingast,

MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, Michael J. Hodge,

MILLER, CANFIELD, PADDOCK & STONE, Lansing, Michigan, for Appellees. ON BRIEF:

Bruce I. Afran, Princeton, New Jersey, Ralph J. Sirlin, REOSTI, JAMES & SIRLIN, Pleasant Ridge,

Michigan, Bruce T. Wick, Westlake, Ohio, for Appellants. Heather S. Meingast, Patrick J. O’Brien,

MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

1
No. 04-2428 Nader, et al. v. Land, et al. Page 2

_________________

OPINION _________________

KENNEDY, Circuit Judge. Plaintiffs brought this declaratory action requesting that the

court find that during the Presidential Election in 2004, the Michigan Secretary of State had a duty

to certify one faction of the Reform Party’s candidates for President. The district court dismissed

Plaintiffs’ case under Federal Rule of Civil Procedure 41(b) for failure to prosecute and because

Plaintiff Nader elected to appear on the ballot as an independent candidate. For the following

reasons, we AFFIRM the dismissal of election claims 1-5 and REVERSE the dismissal of causes

of action 6 and 7.

BACKGROUND

Plaintiffs, Nader, Camejo, Ralph Nader for President 2004, the Reform Party of the United

States and Chairman O’Hara, filed the instant declaratory judgment action after the Michigan

Secretary of State refused to certify Nader and Camejo as the Reform Party’s nominees for President

and Vice President of the United States. As the history of disagreement within the Reform Party of

Michigan is critical to our decision, a brief overview of past elections is necessary.

The 2000 Election Cycle

The first disagreements between the members of the Reform Party of Michigan came to light

during the 2000 election when the Secretary of State of Michigan, Secretary Land, received two

certifications from the Reform Party of Michigan. The first certification named Mark Forton as

chairperson and Tracy DeNise as secretary and certified Patrick Buchanan as the nominee for

President and Ezola Foster as the party’s nominee for Vice President. The second certification

named Diane McKelvey as the chairperson, Eleanor Renfrew as the secretary and nominated John

Hagelin for President and Nat Goldhaber for Vice President. 

Prior to this confusion, Perry Spence was unquestionably the Reform Party of Michigan’s

chairperson until July 14, 2000, at which point he resigned. McKelvey was the vice-chairperson at

this time and was selected chairperson on July 28, 2000, at a board meeting. However, on August 5,

2000, Forton arranged a meeting where those present purported to recall four individuals from the

executive board of the Reform Party of Michigan and then fill those vacancies. The “new” members

of the board then elected Forton as chairperson and DeNise as secretary. Thus, the two factions of

the Reform Party of Michigan were created, leading to Secretary Land’s receipt of two requests for

certification.

Pursuant to Michigan Election Law, the Secretary of State is required to certify the

candidates for the offices of President and Vice President of the United States who have been named

by the chairperson and secretary of the state party committees. MCL § 168.686. However, in light

of this dispute, the Secretary of State refused to certify nominees from either faction. Buchanan,

Foster and Forton subsequently filed suit in state court requesting a writ of mandamus compelling

the Secretary to place the Buchanan faction of nominees on the ballot. The Ingham County Circuit

Court ruled that because a substantial factual dispute regarding who led the Reform party existed,

the Secretary of State had no clear legal duty to place those names on the Michigan Presidential
No. 04-2428 Nader, et al. v. Land, et al. Page 3

1

Additionally, two members of the Buchanan faction, Watson and Robinson, filed a Complaint for Declaratory

and Injunctive Relief and a Motion for Preliminary Injunction in the United States District Court for the Eastern District

of Michigan, arguing that the Secretary of State’s failure to certify Buchanan and Foster as the Reform Party’s nominees

violated their rights under the First and Fourteenth Amendments of the United States Constitution. Watson v. Secretary

of State, USDC, Eastern Dist., S. Div., Case No. 00-40336. The district court denied their motion and concluded the

plaintiffs were essentially seeking a writ of mandamus, which the Michigan courts had already denied to Buchanan and

Foster, and that the plaintiffs were unlikely to succeed on the merits of the claim. Watson and Robinson then filed an

Emergency Motion for Immediate Consideration and Request for Injunction Pending Appeal in this court which was

denied. They then filed an Emergency Application for Injunction Pending Appeal with the United States Supreme Court

that was denied. Finally they stipulated to dismiss the appeal to this court and dismissed the case pending in the district

court.

ballot.1 Thus, the 2000 election litigation ended without a resolution as to which faction should be

recognized. 

2002 Election Cycle

In May 2002, Forton informed the Bureau of Elections that the Reform Party of Michigan

voted to disaffiliate from the Reform Party of the United State of America, the national organization.

Then on July 27, 2002, the Reform Party of Michigan convened and nominated candidates for

several offices in the 2002 general election. The Secretary of State accepted those nominations as

it appeared the conflict had been resolved and there was no objection from any other faction of the

Reform Party of Michigan. Thus, those candidates were listed on the ballot without any objection

and it appeared the Buchanan faction, with Forton acting as chairperson, led the Reform Party of

Michigan. Notably, under MCL § 168.685(6), if the Reform Party of Michigan had not nominated

candidates for the 2002 election cycle, it would have lost its ballot access for the 2004 cycle.

2004 Election Cycle

On June 25, 2004, the Bureau of Elections received a certification of nomination from the

Reform Party of Michigan (from Muntz as chairperson, and Renfrew, as secretary), listing Ralph

Nader for President and Peter Camejo for Vice President. On July 6, 2004, however, Defendant

Crehan told the Bureau of Elections that the certification of Nader/Camejo was “fraudulent” as he,

Crehan, was the elected chairperson of the Reform Party of Michigan and that Muntz/Renfrew were

actually officers of the Independence Party of Michigan, a group attempting to become qualified as

a political party.

On or about July 8, 2004, Plaintiff O’Hara, as undisputed chairperson of the Reform Party

of the United States of America, addressed a letter to the Bureau of Elections, asserting that the

national party recognized Muntz and Renfrew as the chairperson and secretary of the Reform Party

of Michigan.

On July 9, 2004, the Secretary of State informed Crehan and Muntz that she was unable to

accept the certification of Nader/Camejo as nominees of a qualified political party as “it is apparent

that two individuals claim to be Chairperson of the Reform Party of Michigan and two individuals

claim to be Secretary of the Reform Party of Michigan.” Since this dispute arose earlier in the

election cycle than it had in 2000, the Secretary of State urged the two factions to resolve their

differences. 

The two factions did not work out their differences and on July 26, 2004, the Bureau of

Elections received a letter from Crehan as chairperson and Charlene Truskzkowski as secretary, of

the Reform Party of Michigan. The Crehan/Truskzkowski faction did not nominate anyone for the

offices of President and Vice-President, but they did nominate candidates for other positions. The

Muntz/Renfrew faction, also as alleged chairperson and secretary of the Reform Party of Michigan,
No. 04-2428 Nader, et al. v. Land, et al. Page 4

2

Some dispute existed as to whether the signatures were sufficient and whether Nader should appear on the

ballot; however, in Deleeuw v. State Bd of Canvassers, 263 Mich. App. 497 (2004), the Michigan Court of Appeals

issued an opinion concluding that the signatures were valid and ordered the qualifying petition be certified.

submitted nominations for Nader/Camejo for President and Vice-President as well as candidates for

other state offices. The Secretary of State refused to certify the nominations from either faction.

However, Nader/Camejo did eventually appear on the Michigan ballot as candidates for

President and Vice-President. Under Michigan Election Law, a person seeking office without a

political party (as the Secretary never certified them) may file a “qualifying petition” to appear on

a ballot as an independent candidate if they gather the requisite number of signatures from registered

voters throughout the state. MCL §168.590b(1). On July 15, 2004, the Michigan Republican Party

filed an estimated 45,040 elector signatures on behalf of Plaintiff Nader to run as an independent

candidate and Nader filed 5,463 elector signatures. The Bureau of Elections accepted the qualifying

petition and the signatures submitted by the Republicans and Nader.2 Notably, Plaintiff Nader did

not withdraw the qualifying petition within three days of filing, as he was permitted under MCL

§168.590c(3). Thus, Nader ran as an independent candidate in 2004.

Procedural History

After the filing of this action on August 23, 2004, Plaintiffs moved in the district court by

order to show cause for a declaratory judgment and injunction directing the Secretary of State to

place Nader/Camejo on the ballot as the presidential and vice-presidential candidates of the Reform

Party. The district court entered a bench opinion denying the requested relief as there was an

unresolved dispute as to who controlled the Reform Party of Michigan and thus, the Secretary had

no clear duty under Michigan law to accept certification from either faction. The court also held that

since Nader/Camejo failed to withdraw from a separate, non-Reform party independent ballot

position, Nader was precluded from maintaining a claim to the Reform Party nomination. The basis

for this ruling was that Michigan law prohibits a candidate from seeking nomination on both

independent and party columns. On September 10, 2004, Plaintiffs filed a Notice and Claim of

Appeal with this Court from the district court’s order asking this court to hear the appeal as an order

denying a motion to show cause is not final, but interlocutory. Plaintiffs did not move for a stay in

the district court and when the Plaintiffs failed to appear at a scheduled pre-trial conference, the

district court dismissed Plaintiffs’ complaint for lack of prosecution and entered judgment in favor

of Defendants. We denied Plaintiffs’ Motion to Expedite the Appeal as untimely as no relief could

be granted with respect to the November General Election ballot.

Plaintiffs appeal both the Order denying the show-cause motion and the Order of involuntary

dismissal.

I. Mootness

Under the “case or controversy” requirement in Article III of the United States Constitution,

federal courts only have jurisdiction to decide cases that affect the rights of litigants. Southwest

Williamson County Cmty Assoc v. Slater, 243 F.3d 270, 276 (6th Cir. 2001). Thus, as a preliminary

matter we must first determine whether, as Defendants allege, this case is moot. The Supreme Court

has held that when considering the potential mootness of a claim for declaratory relief, “the question

is ‘whether the facts alleged, under all the circumstances, show that there is a substantial

controversy, between parties having adverse legal interests, of sufficient immediacy and reality to

warrant the issuance of a declaratory judgment.’” Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115,

122, 94 S.Ct. 1694 (1974) (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273,

61 S.Ct. 510 (1941)). “[I]f an event occurs while a case is pending on appeal that makes it

impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal must
No. 04-2428 Nader, et al. v. Land, et al. Page 5

3

We note that while the district court did not decide the case under the mootness doctrine, the court did base

part of its decision on the fact that because Nader and Camejo ran as independent candidates, they were prevented under

Michigan law from also running as Reform Party candidates.

be dismissed.” Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992)

(quotation omitted).

Defendants argue that this case is moot for two reasons: first, relief can no longer be granted

because the 2004 election is over and, second, because Nader/Camejo appeared on the ballot as

independents and under Michigan Election law a candidate cannot run as both an independent and

as a candidate of a political party. Plaintiffs counter by arguing that this case fits under an the

“capable of repetition yet evading review” exception to the mootness doctrine, under which matters

are to be reviewed on appeal even after the conclusion of the event for which relief is sought.

Plaintiffs note that elections, because of their ephemeral nature are particularly suited for this

doctrine.

Without reaching Defendants’ first argument, we find Defendants’ second argument

persuasive.3

 Under MCL §168.590g(1), a “person who files a qualifying petition...shall not be

nominated as a candidate...by a political party convention....” (emphasis added). A qualifying

petition was filed on behalf of Nader and Camejo and they never sought to withdraw that petition

under MCL §168.590c(3) (a candidate who “files a qualifying petition shall not be permitted to

withdraw his...candidacy unless a written notice of withdrawal is filed with the filing officer who

received the petition. The notice shall be filed not later than 4 p.m. of the third day after the last day

of filing a qualifying petition.”).

Thus, because a candidate cannot run as both an independent and with a party under

Michigan Election Law, the Plaintiffs voluntarily and willingly gave up their claim to run on the

ballot under the Reform Party ticket by submitting and by not withdrawing a qualifying petition.

MCL §168.590g(1). As we are unable to grant Plaintiffs “any effectual relief” and declare

Nader/Camejo as the 2004 nominees of the Reform Party of Michigan, we find Plaintiffs’ claim that

the Secretary of State was under a duty to certify a particular faction of Reform Party candidates

moot. See Church of Scientology of California, 506 U.S. at 12.

II. Involuntary Dismissal of Plaintiffs’ Complaint

Plaintiffs also contend the district court abused its discretion by dismissing Plaintiffs’

complaint, with prejudice, pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute because the

Plaintiffs did not appear for the scheduled pre-trial conference on September 30, 2004. Plaintiffs

admit that the Nader Plaintiffs did not wish to pursue their claims because the issues with which they

were concerned are matters addressed on the order to show cause; however, the Reform Party of the

United States argues that the Sixth and Seventh Causes of action concern factual questions as to

control of the state party that still require resolution in a fact-finding forum, either federal or state.

The Reform Party of the United States does not plan on proceeding with these claims at this time;

however, it points out that the district court’s order was a dismissal with prejudice which would

prevent them from adjudicating these claims in the future.

In this circuit we often have reversed a district court’s decision to dismiss a complaint

because litigants failed to appear, especially absent bad faith, or absent notice to the Plaintiffs that

the court is contemplating involuntary dismissal. See Harris v. Callwood, 844 F.2d 1254, 1256 (6th

Cir. 1988) (extracting the principle from similar cases that “in the absence of notice that dismissal

is contemplated by a district court should impose a penalty short of dismissal unless the derelict

party has engaged in ‘bad faith or contumacious conduct’”); see Carter v. City of Memphis, 636 F.2d

159, 161 (6th Cir. 1980) (courts should dismiss only in “extreme situations” of deliberate delay or
No. 04-2428 Nader, et al. v. Land, et al. Page 6

“contumacious conduct”); Holt v. Pitts, 619 F.2d 558, 562 (6th Cir. 1980) (same); Patterson v.

Township of Grand Blanc, 760 F.2d 686, 688 (1985) (same); Bishop v. Cross, 790 F.2d 38, 39 (6th

Cir. 1986) (dismissal requires a “degree of willfulness, bad faith or contumacious conduct”).

Thus, as it appears no notice was given to the Plaintiffs that the district court was considering

involuntary dismissal and as the Plaintiffs only missed one appearance, we find the district court

abused its discretion by dismissing this complaint with prejudice.

CONCLUSION

For the foregoing reasons we AFFIRM the district court’s order dismissing Plaintiffs’ case.

We REVERSE the district court’s dismissal, with prejudice, of counts 6 and 7 of the Plaintiffs’

complaint and REMAND to the district court with instructions to grant appellant’s request that

claims 6 and 7 be voluntarily dismissed without prejudice under Fed. R. Civ. P. 41(a).