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### STATE OF MICHIGAN

COURT OF APPEALS

ROBERT DAVIS and DESMOND M. WHITE,

Plaintiffs-Appellants, UNPUBLISHED April 4, 2017

v No. 334989 Wayne Circuit Court WAYNE COUNTY CLERK, WAYNE COUNTY ELECTION COMMISSION, DETROIT CITY CLERK, and PENELOPE BAILER, LC No. 16-012226-AW

Defendants-Appellees.

Before: S TEPHENS , P.J., and S ERVITTO and S HAPIRO , JJ.

P ER C URIAM

.

Plaintiffs appeal as of right a final order dismissing their c omplaint and denying their emergency motion for a writ of mandamus, declaratory judgment, and injunctive relief in this challenge to the election procedures employed by defendants Way ne County Clerk (County Clerk), Wayne County Election Co mmission (Commission), and Detr oit City Clerk (City Clerk) 1
in the November 8, 2016 general election. We dismiss the appea l as moot.

On July 26, 2016, defendant Penelope Bailer, a potential candi date for the newly created Detroit Community School District Board of Education (DCSD Boar d), filed an affidavit of identity pursuant to MCL 168.558 and MCL 380.384(4). It is und isputed that Bailer’s affidavit was facially defective because she failed to identify the preci nct number where she was registered to vote. On September 9, 2016, plaintiffs filed cha llenges with the Commission and City Clerk, alleging that the El ection Officials could not lawf ully include Bailer’s name on the general election ballots. In support of this proposition, plai ntiffs relied on this Court’s recent opinion in Berry v Garrett , ___ Mich App ___; ___ NW2d ___ (2016) (Docket No. 333225) (finding that a potential candi date who failed to provide a pre cinct number in affi davit of identity could not be included in primary election ballots). The Commis sion agreed with plaintiffs’ argument and, on September 13, 20 16, unanimously voted to exclu de Bailer’s name from the ballots. Bailer promptly filed a lawsuit in the Wayne Circuit Court (Bailer Proceedings),

1 We will refer to the County Clerk, Commission, and City Clerk collectively as the Election

Officials.-2- alleging that plaintiffs’ legal challenge was barred by laches and requesting that the trial court compel the Commission to include her name on the general electi on ballots. The trial court agreed with Bailer and entere d an order on September 16, 2016, directing the Commission to “take necessary steps to place the name of Penelope N. Bailer o n the November 8, 2016 General

Election ballot as a candidate f or Detroit Community School Dis trict.” After plaintiffs were unsuccessful in their attempt to appeal the trial court’s Septe mber 16, 2016 order, Bailer v Detroit City Clerk , unpublished opinion per curiam of the Court of Appeals, issue d September 21, 2016 (Docket No. 334823), pp 1-2; In re Davis , unpublished order of the Court of Appeals, entered September 21, 2016 (Docket No. 334869), they filed the instant action. The trial court found that plaintiffs’ claims w ere barred by laches and dismiss ed their complaint.

On appeal, plaintiffs argue that the trial court erred by appl ying the equitable doctrine of laches to dismiss their complaint for two reasons. First, plai ntiffs contend that they did not inexcusably delay in initiating this matter because their cause of action arose on September 16, 2016, and they promptly filed their lawsuit on September 23, 20 16. Second, plaintiffs argue that

defendants could not assert lach es as a defense because they ha d unclean hands. We find that we need not address the argument s raised by plaintiffs on appeal b ecause they are moot.

“An issue is moot if an event has occurred that renders it imp ossible for the court to grant relief,” or “when a judgment, if entered, cannot for any reason have a practical legal effect on the existing controversy.” Barrow v Detroit Election Com'n , 305 Mich App 649, 659; 854 NW2d 489 (2014), quoting Gen Motors Corp v Dep’t of Treasury , 290 Mich App 355, 386; 803 NW2d 698 (2010). On appeal, plaintiffs request that we reverse the trial court’s September 28, 2016 order and enter an order requiring that Bailer’s name be remove d from the November 8, 2016 general election ballots, that any votes cast for Bailer not be counted, and that the Commission and City Clerk alert the elector ate to Bailer’s ineligibility f or election. Although it is not apparent from the record on appeal, we take judicial notice of three facts: first, the November 8, 2016 election has already concl uded; second, Bailer’s name was included on the ballots for the general election; and, third, Bail er was not elected to the DCS D Board. In light of these facts,

even if we were to conclude that the trial court erred in the m anner asserted by plaintiffs, the majority of the relief requested by plaintiffs can no longer be granted. To the extent that this

Court could direct that votes cast for Bailer be excluded from the election results, it would not have any practical effect because Bailer was not ultimately ele cted to the DCSD Board. As such, we need not address plai ntiffs’ arguments.

Dismissed as moot.

/s/ Cynthia Diane Stephens

/s/ Deborah A. Servitto /s/ Douglas B. Shapiro