Kabacinski comes up short in court again over ballot challenge
The Michigan Court of Appeals has denied former Warren City Council member Eddie Kabacinski’s appeal of a judge rejecting his challenge of three candidates on last year’s primary election ballot.
The three-judge panel upheld Macomb County Circuit Judge James Biernat Jr. in his denial last September of Kabacinski’s attempt to remove Hal Newnan, Brittani Tringali and Jay Michael Jackson from the primary after it was held and the subsequent November election ballot, and compel the Warren Election Commissioner to conduct a hearing on his challenge. Kabacinski had questioned the residency of at least two of the candidates.
The appeals judges call Kabacinski’s arguments “incomprehensible” but reviewed and ruled on the appeal anyway.
Kabacinski penned and filed the appeal without assistance from an attorney.
“It is nearly impossible to understand the arguments made in his brief on appeal,” the judges say. “His brief fails to provide meaningful legal arguments or analysis about why the trial court erred by dismissing his complaint or why he had a right to superintending control. We therefore conclude that Kabacinski has abandoned review of his appeal.”
Still, they wrote, “Even if we overlooked these briefing deficiencies and attempted to discern Kabacinski’s arguments, we would still affirm the dismissal of his complaint.”
The judges say Kabacinski filed the challenge too late, after the Aug. 8 primary when he could and should have filed it earlier, before the primary. He initially filed the complaint with the commission May 5, 2023, and a commission hearing on the matter May 26, 2023, was cancelled, giving him about 10 weeks to file.
“The candidate defendants likely expended time, energy, and financial resources campaigning; the primary election took place; and the citizens of Warren’s 5th district cast votes for their preferred candidates, including the candidate defendants,” the judges note.
They add Kabacinski was right in his assertion the commission should have held a hearing.
“Had Kabacinski brought his lawsuit earlier and obtained a judicial determination that the candidate defendants were ineligible for office, our precedent suggests that the Commission would have had a clear legal duty to exclude the candidate defendants from the primary election,” they say.
Kabacinski, who claimed “superintending control,” said he did not file earlier because the alleged fraud had not yet occurred at the primary.
“Kabacinski’s position reflected a fundamental misunderstanding of the remedy he sought. The purpose of a superintending control action is to compel performance of a clear legal duty,” the judges say.
Kabacinski filed the lawsuit after finishing fourth in the primary. The top two vote-getters, Newnan and Tringali, advanced to the November general election, where Newman won. Jackson finished third in the primary.
The judges also denied a claim by Newnan who requested the court not rule on the case until Kabacinski filed the necessary fees, which he didn’t pay based on a waiver of fees.
Newnan noted Kabacinski failed to list his city council annual salary, $31,412, applying for the waiver. He only listed his Social Security Disability income.
The judges say Kabacinski’s fees were automatically waived under state law because he showed he received “‘any form of means-tested public assistance’,” including supplemental security income.”
Newnan also asked the judges to consider filing “a false declaration” under state law and levy sanctions. The judges wrote, “whether sanctions should be imposed in this case is a closer question,” but ultimately decided he did not break the law.
“While we agree that the evidence suggests Kabacinski did not disclose all his income, we are not persuaded that he violated (state law) by filing a document that he knew was not well grounded in fact,” the judges wrote. “Given Kabacinski’s status as a self-represented litigant, we are inclined to give him the benefit of the doubt.”
The panel was composed of judges Kristina Robinson Garrett, Michael J. Riordan and Anica Letica.
The ruling was the second involving Kabacinski over the past five weeks. Macomb Circuit Judge James Maceroni ruled Feb. 23 he did not have a Constitutional right to sell former President Trump merchandise without a license, upholding a June 2023 decision by Judge Douglas Shepherd of 41-A Shelby Township District Court.
Kabacinski was charged in August of 2021 while selling Trump merchandise at the corner of Schoenherr and Hall roads in Utica. He went to trial last year and was convicted. Shepherd sentenced Kabacinski to one year of non-reporting probation and ordered him to pay $825 in fines and court fees.
Kabacinski said he will appeal the decision.