Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  October 20, 2011                                                                   Robert P. Young, Jr.,
                                                                                               Chief Justice

  143878 & (16)(21)(22)                                                              Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
  PAUL H. SCOTT,                                                                         Mary Beth Kelly
            Plaintiff-Appellee,                                                          Brian K. Zahra,
                                                                                                    Justices

  v                                                        SC: 143878
                                                           COA: 306155
  MICHIGAN DIRECTOR OF ELECTIONS,                          Ingham CC: 11-00982-AA
  and GENESEE COUNTY DIRECTOR OF
  ELECTIONS,
            Defendants,
  and
  GARY CARNAHAN,
           Intervening Defendant-Appellant.

  _________________________________________/

         On order of the Court, the motions for immediate consideration are GRANTED.
  The application for leave to appeal the October 6, 2011 order of the Court of Appeals is
  considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we
  REVERSE the order of the Court of Appeals, and we REINSTATE the September 16,
  2011 order of the Ingham Circuit Court that denied plaintiff’s motion for a preliminary
  injunction. The circuit court did not abuse its discretion in denying plaintiff’s motion for
  a preliminary injunction. It is not clear that plaintiff is likely to prevail on the merits.
  See Detroit Fire Fighters Assn v Detroit, 482 Mich 18, 34 (2008). The motion for stay is
  DENIED as moot.

          In a different election controversy 40 years ago, this Court recognized the practical
  problems that can arise when legal issues are brought to the appellate courts too close to
  the election day. In an effort to achieve “better timing of appeals to the judicial process,”
  this Court suggested that appellate review of election-related legal issues would be
  facilitated if the party seeking review filed its papers “in this Court,” despite the absence
  of an explicit rule authorizing the same. Carman v Secretary of State, 384 Mich 443,
  449 (1971). In this regard, MCR 7.302(C)(1)(b) now authorizes the filing of an
  application for leave to appeal in this Court prior to a decision by the Court of Appeals
                                                                                                               2

after an application for leave to appeal has been filed in the Court of Appeals. We
encourage future litigants in election disputes to avail themselves of this provision, where
appropriate.

        We further note that the October 6, 2011 order of the Court of Appeals, and the
manner in which that court treated that order, unfortunately created confusion and
uncertainty for the parties, the Ingham Circuit Court, and the public. The order is
ambiguous as to whether the Court of Appeals retained jurisdiction. It appears to resolve
the only issue before that court by reversing the circuit court order denying a preliminary
injunction, and yet it refers to granting the application, but does so without guidance to
the parties as to how to proceed, and does not state that the Court of Appeals retained
jurisdiction. Indeed, the circuit judge contacted the Court of Appeals for clarification of
whether the underlying case continued before him (where a summary disposition motion
going to the merits of the underlying and significant legal question had already been
filed) or was within the jurisdiction of the Court of Appeals. In responding, the Court of
Appeals inappropriately orally added to its written order a specific deadline within which
the circuit judge should act. The circuit judge understandably found himself compelled
to issue the injunction sought by plaintiff, and equally understandably questioned why the
Court of Appeals had not itself enjoined the election in light of its stated ruling that the
circuit court had erred in determining that plaintiff had not shown that he was likely to
prevail on the merits of a first-impression issue. Nor does the order suggest that the
Court of Appeals will give the matter expedited consideration in a case with extreme time
constraints and that involves the constitutional right to recall an elected state
representative, Const 1963, art 2, § 8, in which more than 11,000 citizens had already
signed recall petitions. Finally, to compound the confusion, the Court of Appeals docket,
as of October 19, 2011, indicates that the case has been concluded. To clarify any
confusion, the Court of Appeals case in Docket No. 306155 is closed. This order is to
take immediate effect.

       We do not retain jurisdiction.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         October 20, 2011                    _________________________________________
       t1019                                                                 Clerk
