JUDGE: FOUTS CAN RUN FOR MAYOR AGAIN
City council says it will appeal decision
Warren Mayor James Fouts is eligible to run in the 2023 August mayoral primary election according to a decision issued by Macomb County Circuit Court Judge Joseph Toia on Thursday upholding the Warren Election Commission’s certification of Fouts’ candidacy.
“Today’s ruling by Judge Toia was not a victory for me, it was a victory for the residents of Warren and the rule of law,” said Fouts. “This ruling ensures that the voters will have a choice, and choice improves the outcome of any election.
“In a democracy, choice is essential.”
The Warren Election Commission, which consists of City Attorney Ethan Vinson, City Clerk Sonja Buffa, and City Assessor Jennifer Czeiszoerger, certified Fouts could appear on the ballot at a meeting last November; the incumbent mayor officially filed to run in January.
Mayoral candidate and city Councilman Ronald Papandrea filed a challenge to the election commission’s decision last month saying that he believes a Nov. 2020 charter amendment proposal passed by 67.8% of Warren voters prevents Fouts from running in the 2023 election. The Warren City Council then joined the lawsuit as a plaintiff. Council President Patrick Green is also a mayoral candidate.
Attorney Lawrence Garcia of Miller Canfield law firm represented the city election commission and argued the language of the 2020 charter amendment proposal did not clearly state that the proposed term limits were retroactive to include all years served previous to 2020.
In his decision, Judge Toia cited charter amendment proposal language regarding term limits that appeared on Warren ballots in 1998 and 2016
noting that in both cases, the inclusion of years and terms served previously as part of the 12 years or three complete terms was clearly stated.
“Since the passage of the 2020 amendment and with the 2023 election approaching, confusion has ensued surrounding Fouts’ ability to re-run this year,” said Toia in his written decision. “The confusion is based on the fact that the ‘any terms served prior to this amendment are included’ language was included in the ballot’s explanatory caption, but was not included in the ‘proposal’ section of the ballot or in the amended charter.
“This is especially troubling considering the plaintiff previously included similar limiting language regarding prior terms served on the ballot proposal and amended charter in 1998, but failed to do so with the 2020 amendment and charter language at issue here.”
Fouts said the decision focused on the law and will allow him to continue focusing on the needs of the people.
“I enjoy my job and feel the future looks bright for those who want to see Warren move forward,” said Fouts. “Again, this is a victory for good representative government based upon the needs of the people, not the needs of a law firm.”
Fouts is currently serving his fourth term as mayor of Warren; he was first elected to the office in 2007.
Garcia called the decision fair.
“You can’t term limit people in a fashion that is sneaky, you have to be frank about it,” said Garcia.
The Macomb Daily reached out to Warren City Council attorney Jeffrey Schroder of Plunkett Cooney law and received a response from Warren City Council Secretary Mindy Moore who indicated council plans to challenge Toia’s decision in the Michigan State Court of Appeals.
“We are appealing,” said Moore. “We are disappointed with the ruling and we feel like the ballot language was very clear.”
Papandrea speculated Toia’s decision will be overturned in the appellate court, but said the case could then go to the Michigan Supreme Court and have a different outcome. He encouraged anyone entertaining the idea of running for office to file by the April 25 deadline to give the voters a wide array of choices in the August primary.
“Do not assume Mayor Fouts is going to be on the ballot and do not assume he is not going to be on the ballot,” said Papandrea. “And just because the mayor is not on the ballot does not mean he will not be a powerful influence; this is going to be a wild election and this is all part of it.”
Papandrea commended Judge Toia for issuing his decision in a timely fashion.
In 2019, at-large Warren City Council candidate Connor Berdy challenged the ability of four incumbent council persons to run for office based on the 12-year term limits that are in place for council members. The Michigan Supreme Court ruled that the four council members, all of who had served for at least 12 years, were not eligible to run and they were removed from the ballot.
Berdy did not file his challenge until after the filing deadline and the judge did not extend the filing deadline in 2019.
“This council has done nothing but hurt the city for the past three and a half years through their campaign against Mayor Fouts,” said Papandrea.
No decision has been issued yet by Judge Julie Gatti regarding a challenge to Green’s tenure on the city council filed by 2019 council at large candidate Gary Boike. That case also involves charter language stating a member of council may serve for 12 years or three complete terms. Boike filed his challenge in Nov. 2022 alleging Green hit the 12-year mark four months ago.
Just as there was a time sensitivity component to Papandrea and the city council’s challenge to the election commission, Garcia said there is also that factor with the Boike case.
“It would be a shame if the clock runs out before Mr. Boike knows if he wins or loses,” said Garcia. “The injury to either side is growing over time because if Mr. Green is not eligible, then not only is it increasing Mr. Boike’s injury but it is also an injury to the institution of the council because decisions are being made with his impermissible participation.”