Opinion
362168
07-21-2022
Lee Estes v. Secretary of State
Kathleen Jansen Michelle M. Rick Judges
ORDER
Michael F. Gadola Presiding Judge
The complaint for mandamus is DENIED. We must deny plaintiff's complaint because plaintiff did not speedily request relief, where he commenced his complaint fewer than 28 days before the August 2, 2022 primary election. It thus is barred by laches. MCL 691.1031. See also, Schwartz v Secretary of State, 393 Mich. 42, 50 n 5; 222 N.W.2d 517 (1974); Kuhn v Secretary of State, 228 Mich.App. 319, 335; 579 N.W.2d 101 (1998).
Additionally, plaintiff has failed to show that he is entitled to the extraordinary remedy of mandamus before it has been proven whether candidate Ryan Kelley violated the Insurrection Clause, U.S. Const, Am XIV, §3. We express no opinion whether Kelly engaged in "insurrection or rebellion" or whether Kelley is qualified to serve as a gubernatorial candidate as a result. Our analysis is limited to the issue of whether plaintiff met his burden to show: "(1) a clear legal right to the act sought to be compelled; (2) a clear legal duty by the defendant to perform the act; (3) that the act is ministerial, leaving nothing to the judgment or discretion of the defendant; and (4) that no other adequate remedy exists." Citizens Protecting Michigan's Constitution v Secretary of State, 324 Mich.App. 561, 584; 922 N.W.2d 404 (2018) (citation and quotation marks omitted). As conceded by plaintiff, candidate Kelley has only been charged, and he has pleaded not guilty to those charges. Plaintiff has not made a case for the exercise of our discretion to grant a writ of mandamus absent a conviction-and here there has been no "finding of guilt, People v Funk, 321 Mich. 617, 621; 33 N.W.2d 95 (1948)-much less the existence of undisputed facts.
This order constitutes a final judgment in this case, see MCR 7.215(E)(1), and shall have immediate effect pursuant to MCR 7.215(F)(2).