WARREN, Mich. – On the eve of the city’s primary mayoral election, the Warren City Council is asking a federal court to dismiss the current mayor’s lawsuit seeking to get him on the ballot, which he has been legally barred from.
Currently serving his fourth term as Warren mayor, Jim Fouts has been prohibited from running for office again in 2023. The Michigan Court of Appeals in April ordered the city clerk to “immediately disqualify” Fouts for this year’s election after a charter amendment passed in 2020 established a three-term limit for Warren mayors.
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Fouts, arguing the charter amendment can’t be applied retroactively -- meaning his previous terms shouldn’t be counted -- appealed the decision to the Michigan Supreme Court in an effort to get his name on the ballot. The state’s high court denied his request in May.
With one week until the city’s primary election, Fouts filed a lawsuit against the city council in federal court on Aug. 2 claiming his civil rights were violated by the term limit ordinance. Fouts is asking the federal court to declare a special election be held in September that includes his name on the ballot.
UPDATE: US court dismisses Warren mayor’s plea for special election after he was barred from running again
In its Aug. 7 motion to dismiss the lawsuit, the city council said Fouts is requesting the results of the Aug. 8 primary, for which ballots have already been printed and received, essentially be nullified in his favor. The mayor’s apparent last-minute filing of the lawsuit is one of the many reasons the federal court should dismiss the suit altogether, the council argues.
“Plaintiff offers no excuse for waiting until six days before the election to file this lawsuit. ... [T]he question is why Plaintiff waited from May 2023 when the Michigan Supreme Court denied Plaintiff’s application for leave to appeal until August 2, 2023 to challenge the election,” the defendants’ motion reads. “The timing of the challenge alone should defeat the Plaintiff’s untimely request for the extraordinary relief sought.”
The Warren City Council also argues that the lower federal courts have no jurisdiction in this case. The motion to dismiss states the U.S. Supreme Court has “held a litigant’s challenge to state law term limits is not a substantial federal question.”
This legal battle between Mayor Fouts and the city council began earlier this year. The council sued Fouts after he made known his intention of running again in 2023, despite the new term limits in place.
In 2020, Warren voters approved a charter amendment that establishes term limits for the city mayor: three 4-year terms, or 12 years total. The amendment, which passed with a 68% majority, took effect during the beginning of Fouts’ fourth term as mayor.
Fouts has argued that the new term limits should not apply to his terms in office before that amendment was approved. The city’s election commission approved Fouts to run, and a Macomb County Circuit Court judge ruled in March that Fouts could run this year. But that decision was overturned by a higher court.
The Michigan Court of Appeals ruled in April that Fouts cannot run for office again in 2023, since he has already served 15 years as the city mayor (since 2008). The Warren city commissioner, election commission, and city clerk appealed the appellate court’s April decision to the Michigan Supreme Court, but that appeal was denied.
After the state’s high court denied his appeal, Fouts argued that he has a “First Amendment right to run” for office, and said the case should be considered at the federal level. He argued his federal constitutional rights “should supersede” the council’s enforcement of the charter amendment that passed in 2020, calling the language vague and unclear. But the Court of Appeals said that the language in the amendment was not ambiguous.
The appellate court also cleared up the “retroactive vs. prospective” issue at hand in April, saying the charter amendment is in effect for the 2023 election, which would bar Fouts from being able to run.
“... the (city) Council here seeks only prospective application of the amendment. It did not retroactively seek to disrupt Mayor Fouts’ fourth term in office after the 2019 election once the amendment passed in 2020. Rather, the Council now seeks a declaration that Mayor Fouts is subject to the version of the charter in effect in 2023, on the basis of term limits amendment passed in 2020, for the election that will occur later this year,” the decision reads. “Prospectively, the terms served before the amendment’s passage will be counted. Thus, the amendment need not be applied retrospectively to afford the Council relief.”
In the motion to dismiss filed Monday, defendants argue that Fouts’ federal constitutional rights were not violated, saying there is actually no constitutional right to be a candidate for the office of mayor. Defendants say the Sixth Circuit of the U.S. Court of Appeals, which oversees the eastern region of Michigan, has held that “candidates have no constitutional right to run for office.”
In addition to a special election, Fouts is also seeking damages from the city council. The city, which is the third most populous in the state, is slated to hold its primary election on Tuesday, Aug. 8.
You can read the city council’s entire motion to dismiss below.