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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UNPUBLISHED 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: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ. 

PER CURIAM. 

 Plaintiffs appeal as of right a final order dismissing their complaint 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 Wayne County Clerk (County 

Clerk), Wayne County Election Commission (Commission), and Detroit City Clerk (City Clerk)1

in the November 8, 2016 general election. We dismiss the appeal as moot. 

 On July 26, 2016, defendant Penelope Bailer, a potential candidate for the newly created 

Detroit Community School District Board of Education (DCSD Board), filed an affidavit of 

identity pursuant to MCL 168.558 and MCL 380.384(4). It is undisputed that Bailer’s affidavit 

was facially defective because she failed to identify the precinct number where she was 

registered to vote. On September 9, 2016, plaintiffs filed challenges with the Commission and 

City Clerk, alleging that the Election Officials could not lawfully include Bailer’s name on the 

general election ballots. In support of this proposition, plaintiffs relied on this Court’s recent 

opinion in Berry v Garrett, ___ Mich App ___; ___ NW2d ___ (2016) (Docket No. 333225) 

(finding that a potential candidate who failed to provide a precinct number in affidavit of identity 

could not be included in primary election ballots). The Commission agreed with plaintiffs’ 

argument and, on September 13, 2016, unanimously voted to exclude 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. 
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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 election ballots. The trial court 

agreed with Bailer and entered an order on September 16, 2016, directing the Commission to 

“take necessary steps to place the name of Penelope N. Bailer on the November 8, 2016 General 

Election ballot as a candidate for Detroit Community School District.” After plaintiffs were 

unsuccessful in their attempt to appeal the trial court’s September 16, 2016 order, Bailer v 

Detroit City Clerk, unpublished opinion per curiam of the Court of Appeals, issued 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 were barred by laches and dismissed their complaint. 

 On appeal, plaintiffs argue that the trial court erred by applying the equitable doctrine of 

laches to dismiss their complaint for two reasons. First, plaintiffs 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, 2016. Second, plaintiffs argue that 

defendants could not assert laches as a defense because they had unclean hands. We find that we 

need not address the arguments raised by plaintiffs on appeal because they are moot. 

 “An issue is moot if an event has occurred that renders it impossible 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 removed 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 electorate to Bailer’s ineligibility for 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 concluded; second, Bailer’s name was included on the ballots for the 

general election; and, third, Bailer was not elected to the DCSD Board. In light of these facts, 

even if we were to conclude that the trial court erred in the manner 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 elected to the DCSD Board. As such, 

we need not address plaintiffs’ arguments. 

 Dismissed as moot. 

/s/ Cynthia Diane Stephens 

/s/ Deborah A. Servitto 

/s/ Douglas B. Shapiro