Case 2:23-cv-11868-GCS-EAS ECF No. 1, PageID.

1 Filed 08/02/23 Page 1 of 28

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES R FOUTS,
Case No.: 23-cv-11868
Plaintiff,
Hon.:
vs

THE WARREN CITY COUNCIL,

THE WARREN CITY ELECTION
COMMISSION; ANTHONY G
FORLINI in his official capacity as
MACOMB COUNTY CLERK, and
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AYAD LAW, P.L.L.C.

SONJA D BUFFA in her official

capacity as WARREN CITY CLERK,
645 Griswold St., Ste. 2202
DETROIT, MICHIGAN 48226

jointly and severally,

Defendants.

Nabih H Ayad (P59518)

William D Savage (P82146)
Attorneys for Plaintiff
645 Griswold St., Ste. 2202
Detroit, MI 48226
P: (313) 983-4600 | F: (313) 983-4665
[email protected]

VERIFIED COMPLAINT

NOW COMES, Plaintiff James R Founts, by and through his counsel at Ayad

Law, PLLC, and hereby brings the following verified complaint, stating the

following:

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JURISDICTION AND VENUE

1. This case arises under the Constitution and laws of the United States. This

Court has subject-matter jurisdiction of this action under 28 USC §§ 1331 and

1343(3) & (4). This suit is authorized by 42 USC § 1983. This Court has

jurisdiction to grant both declaratory and injunctive relief under 28 USC §§

2201 and 2202.

2. Venue in this district and division is proper under 28 USC § 1391(b) because

this action is predicated upon a federal question and a substantial part of the
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events or omissions giving rise to the claims alleged in this complaint have
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occurred, and will continue to occur, in this district.

PARTIES

3. Plaintiff JAMES R FOUTS (hereinafter “Plaintiff”) is the current mayor of

the City of Warren, Michigan. He has served as Mayor of Warren since he

won his first term in 2007, being reelected in 2011, 2015, and 2019. He is

currently serving his fourth term in office.

4. Defendant THE WARREN CITY COUNCIL (hereinafter “Defendant

Council”) consists of five council members elected for each of the city’s five

districts, and two at large. Defendant Council acts as the City of Warren.

Defendant Council confirms certain administrative appointments and

approves the city budget in its final form.

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5. Defendant THE WARREN CITY ELECTION COMMISSION (hereinafter

“Defendant Commission” is responsible for preparing, printing, and

delivering election ballots.

6. Defendant ANTHONY G FORLINI is, as the MACOMB COUNTY CLERK

(hereinafter “Defendant County Clerk”), is responsible for administering the

elections in which the Mayor of Warren is elected. Mr. Forlini is not being

sued personally, but in his official capacity as Macomb County Clerk only.

7. Defendant SONJA D BUFFA as the WARREN CITY CLERK (hereinafter

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AYAD LAW, P.L.L.C.

“Defendant City Clerk”), is responsible for accepting or rejecting mayoral

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candidates for placement on election ballots in the elections for the Mayor of

Warren. Ms. Buffa is not being sued personally, but in her official capacity as

Warren City Clerk only.

INTRODUCTION

8. This is a § 1983 civil rights action, brought by the current Mayor of Warren,

to vindicate his First, Fifth, and Fourteenth Amendment rights under the

United States constitution, all of which are currently being violated by

Defendants.

9. On August 8, 2023, the City of Warren will hold a primary election to decide

who will be the candidates for Mayor in the November 7, 2023 general

election.

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10.Plaintiff planned to run in that election, but owing to the unconstitutional

conduct of Defendants, he is now unable.

11.In 2016, the people of the City of Warren amended the Warren City Charter

to increase the mayor’s term limits from three to five.

12.Plaintiff, as the Mayor of the City of Warren, was previously subject to this

five-term limit, and is currently finishing his fourth term as mayor.

13.In 2020, the Warren City Council proposed an amendment (hereinafter the

“2020 charter amendment”) to the Warren City charter, which would reduce
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the term limit for the office of mayor from five terms to three.
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14.The amendment passed, however, despite including explicit language as to

retroactivity in all prior term-limit provisions of the Warren City charter, the

2020 ballot question does not include any language as to retroactive

application.

15.In 2023, the Warren City Council sued the Macomb County Clerk and the

Warren City Clerk to require them to exclude Plaintiff from the 2023 ballot

as ineligible under the new three-term charter provision. See Warren City

Council v. Buffa, No. 365488, 2023 WL 3046530 (Mich. Ct. App. Apr. 21,

2023).

16.Accordingly, Plaintiff is now being excluded from expressing his First

Amendment political speech by being excluded from running for office and

excluded from voting for his preferred candidate for mayor.

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17.Further, Plaintiff’s rights to due process of law and equal protection of law,

under the Fifth and Fourteenth Amendments, respectively, are being violated.

PRELIMINARY STATEMENT AS TO LAW

18.Owing to the short timeframe, concurrently filed motion for expedited review,

Plaintiff has taken the liberty of including important law and legal standards

throughout this complaint, for the benefit of both the Court and Defendants.

FACTS AND LAW

19.The City of Warren, Michigan is third most populous city in Michigan.

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20.As of the 2020 census, the city had a population of 139,387, making it the
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largest community in Macomb County and the third-largest city in Michigan

and Detroit's largest suburb.

21.The City of Warren is home to a wide variety of businesses, including General

Motors Technical Center, the United States Army Detroit Arsenal, home of

the United States Army TACOM Life Cycle Management Command and the

Tank Automotive Research, Development and Engineering Center

(TARDEC), and the headquarters of Asset Acceptance.

22.The City of Warren’s annual budget for the fiscal year 2023-2024 is

approximately $325,200,000.oo.

23.Since 2007, Plaintiff James R Fouts has been the Mayor of the City of Warren.

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24.Plaintiff has historically had exceptionally high approval ratings amongst the

voters of the City of Warren, having won multiple elections in landslide

victories.

25.Throughout Plaintiff’s tenure as mayor, he has been a thorn in the side of those

who would hinder political, economic, and social progress within the City,

especially those who benefit from the status quo.

26.The City Council frequently comes into conflict with Plaintiff over city

policies.
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AYAD LAW, P.L.L.C.

27.For example, as the Mayor of Warren, Plaintiff focused on appointing

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deserving members of minority groups to important positions within the city

yet Defendant Council took actions against Plaintiff’s appointees by

demoting, removing positions, and taking away job duties.

28.When the Warren City Charter was established in 1956, it did not contain term

limits for city officials.

29.In 1998, Defendant Council submitted a proposed ballot question to amend

the charter to provide that city officers, including the mayor, council

members, clerk, and treasurer, could not hold office for the greater of three

terms or 12 years in a particular office.

30.The 1998 ballot proposal explicitly addressed the topic of retroactivity by

providing that the limitation would begin with the term related to the election

that had occurred in November 1995. The resolution passed, and the city
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charter was duly amended, with the appropriate language expressly

addressing retroactivity included.

31.In 2016, Defendant Council proposed that the voters should choose whether

to extend the term limits for mayor from three terms or 12 years, to five terms

or 20 years. The ballot proposal expressly addressed retroactivity by

indicating that any years or terms served prior to the amendment would be

included. The measure passed, and the charter was amended.

32.In 2020, Defendant Council proposed an amendment to the city charter that
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would undo the 2016 amendment, and reduce the mayoral term limit back to
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three, as it existed prior to the voters of Warren 2016 choice to extend it to

five terms.

33.At the time of the 2020 proposal, Plaintiff was serving in his fourth term as

the Mayor of the City of Warren with every intention of running for a fifth

term.

34.Although Defendant Council’s ballot proposal included language indicating

that the charter amendment would apply retroactively, the actual charter

amendment that appeared on the ballot excluded language indicating that the

charter amendment would apply retroactively.

35.This raised two issues:

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a. Whether the 2020 charter amendment applied retroactively to limit

Plaintiff to three terms of office, or would be applied prospectively

allowing Plaintiff one more (his fifth) term of office; and

b. If the 2020 charter amendment was intended to be applied to Plaintiff

retroactively, whether doing so would violate Plaintiff’s constitutional

rights by prohibiting him from appearing on the 2023.

36.The 2020 charter amendment passed, changing the number of terms that a

mayoral candidate can serve from five terms, back to three.

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AYAD LAW, P.L.L.C.

37.The language of the Warren City Charter now reads:

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A person shall not be eligible to hold the position of mayor, city

council, city clerk or city treasurer for more than the greater of three
(3) complete terms or twelve (12) years in that office.

Warren City Charter, § 4.3(d).

38.The default, under the law, is that statutes that do not explicitly state that they

are to be applied retroactively, are not applied retroactively. “Statutes are

presumed to apply prospectively unless the Legislature clearly manifests the

intent for retroactive application.” Johnson v. Pastoriza, 491 Mich. 417, 429,

818 N.W.2d 279, 285 (2012). “Since the early days of this Court, we have

declined to give retroactive effect to statutes burdening private rights unless

Congress had made clear its intent… The presumption against statutory

retroactivity has consistently been explained by reference to the unfairness of

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imposing new burdens on persons after the fact.” Landgraf v. USI Film Prod.,

511 U.S. 244, 270, 114 S. Ct. 1483, 1499–500, 128 L. Ed. 2d 229 (1994).

39.Importantly, as the Michigan Court of Appeals in Defendant Council’s lawsuit

acknowledged and then completely disobeyed, Michigan courts “may read

nothing into an unambiguous statute that is not within the manifest intent

of the Legislature as derived from the words of the statute itself… [And]

the[ir] primary goal is to discern and give effect to the legislative intent that

may reasonably be inferred from the language of the charter.” Warren City
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Council v. Buffa, No. 365488, 2023 WL 3046530, at *5 (Mich. Ct. App. Apr.
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21, 2023), appeal denied, 989 N.W.2d 679 (Mich. 2023) (emphasis added)

(internal citations, quotations, and brackets omitted).

40.There being no language in the 2020 charter amendment that expressly stated

that the three-term limit would apply retroactively to him, Plaintiff began

undertaking steps to ensure his name would appear on the ballot for the 2023

mayoral election.

41.There being no language in the 2020 charter amendment that expressly stated

that the three-term limit would apply retroactively to Plaintiff, Defendants

Election Commission, County Clerk, and City Clerk, began the process of

including Plaintiff’s name on the ballot for the 2023 mayoral election.

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42.In 2023, Defendant Council sued Defendants Election Commission, County

Clerk, and City Clerk to force them to exclude Plaintiff’s name from the ballot

for the 2023 mayoral election.

43.On April 21, 2023, the Michigan Court of Appeals reversed the lower court’s

decision that the 2020 charter amendment could not be applied retroactively

to bar Plaintiff’s candidacy for mayor of the City of Warren and ordered

Defendants Election Commission, County Clerk, and City Clerk to remove

Plaintiff as a candidate.
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AYAD LAW, P.L.L.C.

44.Defendant Council’s proposing, rewording, and unlawful enforcing (through

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a lawsuit), of the 2020 charter amendment, is part of a concerted effort on the

part of Defendant Council and its members to advance their own political

interests as opposed to the interests of the people of the City of Warren.

45.Warren City Councilmember Patrick Green (hereinafter “Councilmember

Green”) was elected to the Council in 2011 and reelected in 2015 (at which

time he served a partial term after leaving his position as councilmember to

sit in the state Senate) and in 2019.

46.Because of Defendant Council’s intentional design of the 2020 Charter

Amendment, Councilmember Green is now serving in his 13 th year on the

Warren City Council, while running in the 2023 mayoral election, despite the

fact that the 2020 charter amendment limits city councilmembers to three

four-year terms.
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47.This is possible because of Defendant Council’s custom tailoring the 2020

charter amendment to their own desires.

48.The 2020 charter amendment provides that:

[A] person is eligible to hold the office of city council for not more
than “the greater of” three complete terms or 12 years. Although a
term in office is four years and three complete terms therefore equals
12 years, the phrase “the greater of” contemplates that a
councilmember may serve longer than 12 years if he or she has
previously served a partial term. Because defendant has not yet
served three complete terms, he is eligible to complete his third full
term in office.
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Boike v. Green, No. 365681, 2023 WL 3588168, at *5 (Mich. Ct.

App. May 22, 2023).
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49.Accordingly, based on the Michigan Court of Appeals ruling, above,

Defendant Council’s president, Councilmember Green, can simply vacate his

position on the City Council days before his term would end, and then run for

a fourth, fifth, sixth, etc. term as City Councilmember in the following

election.

50.In this way, the 2020 charter amendment expanded the time which the

members of Defendant Council could spend in office from twelve years to the

rest of their lives, so long as they never complete their third terms.

51.Yet Plaintiff, who was in his fourth term, could not take advantage of

Defendant Council’s built-in loophole.

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Warren City Council v Buffa, et al.

Michigan Court of Appeals Case No. 365488.

52.It is anticipated that all or some of the Defendants in this action will point to

the recently issued Michigan Court of Appeals decision in Warren City

Council v Buffa, et all (Michigan Court of Appeals No. 365488, hereinafter

referred to as the “Council’s lawsuit”) 1, 2

as evidence that Plaintiff’s rights

were not violated.

53.Defendant Council’s lawsuit does not and cannot stand for that principle.
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54.No Michigan court, including the court in Defendant Council’s lawsuit, has
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been asked to answer a federal question or to apply constitutional law to the

facts of the 2020 charter amendment operating to exclude Plaintiff from

participating in the 2023 election for the office of Mayor of the City of

Warren.3

1
The lawsuit is unpublished and, therefore, would not be controlling on a Michigan
court were Plaintiff to bring his claims in state court.
2
Plaintiff was deeply concerned and disappointed by the failure of the Michigan
Court of Appeals in Defendant Council’s lawsuit to even hold oral argument on such
a vitally important issue. Foregoing oral argument on such an important case and a
matter of public concern is a very unusual, if not unique, circumstance.
3
Because Defendant Council’s lawsuit did not include Plaintiff or a party in privity
with him, and did not raise or analyze questions of constitutionality, there are no
issues of res judicata or issue preclusion present here.

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55.Any discussion of constitutionality by the Michigan Court of Appeals in its

decision in Defendant Council’s lawsuit would be merely dicta, as no

constitutional case in controversy was before it.

Plaintiff’s First Amendment right to run for mayor and

application of the 2020 charter amendment to bar him, personally.

56.The new charter reduced the candidates for a democratically elected political

office: Namely, Plaintiff.

57.When this happens, the United States Supreme Court has held that states (and
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their cities) must meet the compelling interest standard. “However slight [the]
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burden [of any restriction eliminating a candidate from a ballot] may appear,

... it must be justified by relevant and legitimate state interests sufficiently

weighty to justify the limitation.” Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181, 191, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (emphasis added).

58.The court in Defendant Council’s lawsuit made no finding of a relevant and

legitimate state interest, and none can be inferred, for excluding only Plaintiff,

personally, from participating as a candidate in the 2023 mayoral election

because the court in Defendant Council’s lawsuit misapplied state law and a

“local misapplication of state law” cannot be considered a compelling

government interest. See Hunter v. Hamilton Cnty. Bd. of Elections, 635

F.3d 219, 238 (6th Cir.2011) (emphasis added).

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59.The Michigan Court of Appeals ruled that “[t]he 2020 charter amendment

does not contain a legislative statement of retroactive application… [but]

…the terms served before the amendment's passage will be counted” and

ordered Defendant City Clerk to “disqualify Mayor Fouts as a candidate for

mayor in 2023 and not place his name on the ballot for election.” Warren City

Council v. Buffa, No. 365488, 2023 WL 3046530, at *9 and *11 (Mich. Ct.

App. Apr. 21, 2023), appeal denied, 989 N.W.2d 679 (Mich. 2023).

60.The Michigan Court of Appeals misapplied the law when it ruled that that
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2020 charter amendment did not affect a vested right of Plaintiff, when
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Plaintiff has a constitutional right to be a candidate for the Mayor of Warren.

“Mayor Fouts does not have a vested right to be elected as mayor in 2023.”

Warren City Council v. Buffa, No. 365488, 2023 WL 3046530, at *8 (Mich.

Ct. App. Apr. 21, 2023), appeal denied, 989 N.W.2d 679 (Mich. 2023).

61.As the Michigan Supreme Court has recognized: “Few questions have

troubled the courts more than the problem of what are vested rights... A few

courts have frankly recognized that policy considerations, rather than

definitions, are controlling … There are independent constitutional provisions

and doctrines that might apply to render retroactive statutes

unconstitutional…” Buhl v. City of Oak Park, 507 Mich. 236, 265-6, 968

N.W.2d 348, 364 (2021) (Viviano, J. concurring), quoting Rookledge v.

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Garwood, 340 Mich. 444, 456, 65 N.W.2d 785 (1954), quoting Wylie v. City

Comm. of Grand Rapids, 293 Mich. 571, 587, 292 N.W. 668 (1940).

62.Here, “[t]he right to cast an effective vote ‘is of the most fundamental

significance under our constitutional structure[,]’ and [t]he rights of political

association and free speech occupy a similarly hallowed place in the

constitutional pantheon.” Libertarian Party of Ohio v. Blackwell, 462 F.3d

579, 585 (6th Cir. 2006) (quoting Burdick v. Takushi, 504 U.S. 428, 433, 112

S. Ct. 2059, 2063, 119 L. Ed. 2d 245 (1992).

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63.The Supreme Court of the United States in “Reynolds v Sims, 377 U.S. 533,
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84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and Williams v Rhodes, 393 U.S. 23,

89 S.Ct. 5, 21 L. Ed. 2d 24 (1968), hold[s] that a citizen has a right to vote

effectively and, by logical extension, that means that he is to be given a

wide latitude in his choice of public officials. His right to support a

candidate of his choice – including himself – cannot be arbitrarily

restricted.” Mogk v. City of Detroit, 335 F. Supp. 698, 700 (E.D. Mich. 1971)

(cleaned up, emphasis added).

64.A state can provide more constitutional protections, but cannot provide less

constitutional protections, than those provided by the United States

constitution.

65.Accordingly, because the court in Defendant Council’s lawsuit found no

vested right on the part of Plaintiff to vote for, and act as, his candidate of
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choice, it misapplied the law and cannot be used to show that Defendants have

a relevant and legitimate state interest in barring Plaintiff’s candidacy.

Retroactivity and Plaintiff’s Due Process

66.So too did the decision in Defendant Council’s lawsuit misapply the law of

Plaintiff’s rights to due process under the Fifth Amendment.

67.With no citation to any precedent or legal authority, the court ruled that:

The fundamental tenet of term limits is that prior terms are

considered and future terms are limited based upon those prior
terms. The ‘default’ therefore is that prior terms are counted. Given
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that, defendants’ position that their interpretation is reasonable does

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not withstand scrutiny.

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Warren City Council v. Buffa, No. 365488, 2023 WL 3046530, at

*5 (Mich. Ct. App. Apr. 21, 2023), appeal denied, 989 N.W.2d 679
(Mich. 2023).

68.The court then concluded that: “It follows that the charter language is

unambiguous…” Id. at *6.

69.Yet, “Statutes are presumed to apply prospectively unless the Legislature

clearly manifests the intent for retroactive application.” Johnson v. Pastoriza,

491 Mich. 417, 429, 818 N.W.2d 279, 285 (2012).

70.Accordingly, reasonable minds could differ as to the language of the statute,

and “a statute that is ambiguous with respect to retroactive application is

construed under [constitutional] precedent to be unambiguously prospective.”

I.N.S. v. St. Cyr, 533 U.S. 289, 320, 121 S. Ct. 2271, 2290, 150 L. Ed. 2d 347

(2001).
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71.The decision in Defendant Council’s lawsuit further misapplied the law, in

violation of Plaintiff’s due process rights, when it interpreted the term

“prospective” to allow for retroactive application to Plaintiff.

72.For this, the Michigan Court of Appeals cited to LaFontaine Saline, Inc. v.

Chrysler Grp., LLC, 496 Mich. 26, 40, 852 N.W.2d 78, 86 (2014) for this

premise.

73.Yet, LaFontaine merely commented that “in some situations, a statute is not

regarded as operating retroactively merely because it relates to an antecedent

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event.” Id.
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74.LaFontaine also holds that, while the above is true, a statute that “takes away

or impairs vested rights acquired under existing laws, or creates a new

obligation and imposes a new duty, or attaches a new disability with respect

to transactions or considerations already past,” it is impermissibly

retroactive under Michigan law. Id. (quoting Hughes v. Judges' Retirement

Bd., 407 Mich. 75, 85, 282 N.W.2d 160 (1979).

75.Plaintiff’s disqualification from both the candidacy and the office of the

Mayor of the City of Warren indisputably constitutes a legal disability.

76.As further support of the fact that the court in Defendant Council’s lawsuit

misapplied the law of retroactivity, diligent inquiry into the posture of other

state (and Native American nation’s) supreme courts reveals only that

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“prospective” application means one thing only: that prior terms of office are

not counted towards a new (reduced) limit.

Some would have us believe that this case is about the advisability
or nonadvisability of term limits for Cincinnati city councilpersons.
They are mistaken. The people of Cincinnati have resoundingly
spoken on that issue and their judgment, at least in this forum, should
not be disturbed. In passing Issue 5, however, the voters made the
term limitation retroactive. This, we believe, they could not
constitutionally do.

State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections, 67 Ohio St.

3d 597, 600, 622 N.E.2d 329, 331 (1993).
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As already stated, two proponents of the Amendment, U.S. Term

Limits, Inc. and the State of Arkansas represented by the Attorney
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General's office, interpret it to apply prospectively. Arkansans for

Governmental Reform took the same position before the circuit
court. Because of the vagueness in the Amendment on this point, we
agree. Only periods of service commencing on or after January 1,
1993, will be counted as a term for limitation purposes under
Amendment 73.

U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 260–61, 872 S.W.2d
349, 353–54 (1994), aff'd sub nom. U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779, 115 S. Ct. 1842, 131 L. Ed. 2d 881 (1995).

Moreover, Article 15, Section 3(2) is “to be given only prospective

application from its effective date,” since any intent to make it
retrospective does not clearly appear from the provision's terms.
Thus, the term-limit provision applies prospectively from November
27, 1996.

Miller v. Burk, 124 Nev. 579, 589, 188 P.3d 1112, 1119 (2008).

Term limits imposed in a manner inconsistent with this Section

remain valid prospectively, but are invalid as they apply to service
prior to the enactment of the term limits.

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Burns v. Mun. Officers Electoral Bd. of Vill. of Elk Grove Vill., 2020
IL 125714, ¶ 24, 161 N.E.3d 939, 944 (Citing IL cons.).

[W]e decline to apply the Charter Amendment retroactively to

include those terms that preceded the Amendment's ratification
towards the limit of “four consecutive two year terms.”

Clark v. Arakaki, 118 Haw. 355, 365, 191 P.3d 176, 186 (2008).

In the instant case it is immaterial whether appellee did or did not

serve as sheriff prior to January 1, 1951. On that date a new term of
office started under a new constitutional provision.

Pommerehn v. Sauley, 233 Ind. 140, 142, 117 N.E.2d 556, 557
(1954).
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AYAD LAW, P.L.L.C.

[W]hen courts encounter term limit amendments that do not indicate

645 Griswold St., Ste. 2202
DETROIT, MICHIGAN 48226

when to commence counting terms of office, they typically begin by

noting a presumption against retroactivity. For example, a
constitutional amendment “will not be construed as retroactive when
it may be reasonably construed otherwise.” Id. at 361; see also Clark
v. Arakaki, 118 Hawai‘i 355, 191 P.3d 176, 186 (2008) (“ ‘No law
has any retrospective application, unless otherwise expressed or
obviously intended.’ ”).

Two Bears v. Ho-Chunk Nation Election Bd., No. SU 13-02, 2013

WL 8538974 (Ho-Chunk May 20, 2013).

As such, a prospective application dictates that the new term limits

provision not apply until the 2007 election for purposes of the
Cherokee Constitution of 1999. To hold otherwise would cause an
unconstitutional ex post facto application of a term of limitation—in
effect a violation of both Constitutions.

Cherokee Nation Tribal Council v. Smith, No. SC-09-03, 2010 WL

8903710 (Cherokee Sup. Ct. Feb. 4, 2010).

77.Accordingly, the Defendants’ and the Michigan Court of Appeals supposed

‘prospective’ use of the 2020 charter amendment to bar Plaintiff from running

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for office is more than just an acceptable quirk of Michigan state law, but is

an unacceptable miscarriage of constitutional justice misapplying the law of

the state of Michigan, the law of the country, and the common sense.

Plaintiff’s entitlement to a
permanent injunction against Defendants.

78.Owing to Defendants’ conduct described above, Plaintiff has had his legacy

and reputation tarnished, has lost income, suffered emotional distress,

developed insomnia, anxiety, and acid reflux from the severe amount of stress
P: (313) 983-4600 | F: (313) 983-4665
AYAD LAW, P.L.L.C.

that the stifling of his political career has induced in him.

645 Griswold St., Ste. 2202
DETROIT, MICHIGAN 48226

79.In addition to the above injuries, however, the depravation of Plaintiff’s

dearest constitutional rights is an irreparable harm to Plaintiff that no remedy

at law, such as monetary damages, are can compensate for the depravation of

Plaintiff’s constitutional rights.

80.No Defendant, on the other hand, is suffering the same political exile as

Plaintiff, and there would be no hardship to Defendants in allowing the

citizens of Warren to consider Plaintiff for their next choice as mayor.

81.The public interest would be in no way disserved by an injunction requiring

Plaintiff to be placed on the ballot in a special primary election as 1) no

individual member of the public would be required to vote for Plaintiff and 2)

the public already voted to increase Plaintiff’s potential time in office from

three terms to five terms, while Plaintiff served as their mayor, but for the

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reasons discussed above, did not clearly vote to reduce Plaintiff to three terms

retroactively.

COUNT I

Violation of First Amendment

right to political expression and association
(As to all Defendants)

82.Plaintiff incorporates the preceding paragraphs hereunder by reference.

83.The First Amendment of the United States Constitution protects Plaintiff’s

P: (313) 983-4600 | F: (313) 983-4665
AYAD LAW, P.L.L.C.

political speech.
645 Griswold St., Ste. 2202
DETROIT, MICHIGAN 48226

84.Federal First Amendment protections apply to the states by way of the

Fourteenth Amendment to the United States Constitution.

85.The ultimate expression of one’s political speech is their voting and/or

running for political office.

86.Plaintiff’s First Amendment rights are being violated because he is being

prohibited from participating as a candidate for Mayor of the City of Warren,

despite being overwhelmingly qualified and enjoying overwhelming political

support of the citizens of Warren.

87.Defendant Council is responsible for the violation of Plaintiff’s First

Amendment rights by their unlawful conduct in suing the Macomb County

Clerk and City of Warren Clerk to force them to exclude Plaintiff from the

2023 ballot.

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88.Defendant Commission is responsible for the violation of Plaintiff’s First

Amendment rights by their unlawful conduct in removing Plaintiff’s name

from, or refusing to place Plaintiff’s name on, the 2023 ballots.

89.Defendant Macomb Clerk is responsible for the violation of Plaintiff’s First

Amendment rights for his failure to certify the election with Plaintiff’s name

on the ballot.

90.Defendant City Clerk is responsible for the violation of Plaintiff’s First

Amendment rights for her failure to certify the election ballots with Plaintiff’s
P: (313) 983-4600 | F: (313) 983-4665
AYAD LAW, P.L.L.C.

name on them.
645 Griswold St., Ste. 2202
DETROIT, MICHIGAN 48226

91.As a direct result of Defendants’ conduct, Plaintiff is suffering the irreparable

harm of having his First Amendment rights to express his political speech

through his candidacy and his vote.

COUNT II

Violation of Fifth Amendment right to be free from

imposition of a legal disability without due process of law
(As to all Defendants)

92.Plaintiff incorporates the preceding paragraphs hereunder by reference.

93.Plaintiff has a right under the Fifth Amendment of the United States

constitution to not suffer retroactive legal disabilities arising out of past

considerations.

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94.Here, Defendants have each violated said right by working together to prohibit

Plaintiff from being a candidate for the Mayor of the City of Warren in the

upcoming 2023 election.

95.Specifically, Defendants have caused the 2020 charter amendment to be

unconstitutionally applied to Plaintiff by:

c. Proposing an unambiguous charter amendment which included

language as to retroactivity, but then causing an ambiguous charter

amendment which excluded the language in the proposal, onto the 2020
P: (313) 983-4600 | F: (313) 983-4665
AYAD LAW, P.L.L.C.

ballot, and then suing to have it enforced retroactively against Plaintiff;

645 Griswold St., Ste. 2202
DETROIT, MICHIGAN 48226

d. Defendant Commission causing Plaintiff’s name to be removed from

the ballots for the upcoming August 8, 2023 election, and printing

ballots with his name removed.

e. Defendant City Clerk certifying said ballots; and

f. Defendant County Clerk certifying said election.

96.As a direct result of Defendants’ conduct, Plaintiff is suffering the irreparable

harm of having his Fifth Amendment right against retroactive application of

new laws that would impose a disability on him.

COUNT III

Violation of Fourteenth Amendment right

to equal application of the laws prohibiting
retroactive application of statutes to Plaintiff
(As to all Defendants)
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97.Plaintiff incorporates the preceding paragraphs hereunder by reference.

98.Plaintiff has a right under the Fourteenth Amendment of the United States

constitution to equal application of the laws of the United States and State of

Michigan.

99.Here, Defendants have each violated said right by causing the a law—

ambiguous as to retroactivity on its face—to be uniquely applied retroactively

to Plaintiff, in violation of Michigan and federal supreme court and

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AYAD LAW, P.L.L.C.

constitutional precedent.
645 Griswold St., Ste. 2202
DETROIT, MICHIGAN 48226

100. Specifically, Defendants have caused the 2020 charter amendment to

be unconstitutionally applied to Plaintiff by:

g. Proposing an unambiguous charter amendment which included

language as to retroactivity, but then causing an ambiguous charter

amendment which excluded the language in the proposal, onto the 2020

ballot, and then suing to have it enforced retroactively against Plaintiff;

h. Defendant Commission causing Plaintiff’s name to be removed from

the ballots for the upcoming August 8, 2023 election, and printing

ballots with his name removed.

i. Defendant City Clerk certifying said ballots; and

j. Defendant County Clerk certifying said election.

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101. As a direct result of Defendants’ conduct, Plaintiff is suffering the

irreparable harm of having his Fourteenth Amendment rights to equal

treatment under the laws of the Michigan.

COUNT IV
Declaratory Judgment
(As to all Defendants)

102. Plaintiff incorporates the preceding paragraphs hereunder by reference.

103. Plaintiff seeks and this Court is empowered to declare the rights and
P: (313) 983-4600 | F: (313) 983-4665

other legal relations of “any interested party” seeking such declaration,

AYAD LAW, P.L.L.C.
645 Griswold St., Ste. 2202
DETROIT, MICHIGAN 48226

pursuant to the Declaratory Judgment Act, 28 USC § 2201.

104. Before the Court is a case of actual controversy the rights and duties of

the respective parties require clarification to avoid the irreparable harm to

Plaintiff of the continued violation of his constitutional rights.

STATEMENT AS TO TIMING

Plaintiff’s counsel has been only recently retained to bring Plaintiff’s claims.

Owing to the special timing considerations present in this matter, making time of the

essence, Plaintiff is asking that the Court expedite the process of adjudicating this

complaint, in the interest of all parties and the voters of the City of Warren, in light

of the important issues of public concern raised herein.

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CONCLUSION AND RELIEF REQUESTED

Plaintiff has been elected and reelected as Mayor of the City of Warren for

the past 16 years. Prior to Defendants’ stopping Plaintiff from running for reelection,

he was enjoying strong polling numbers which indicated that he had a high chance

of being reelected in the upcoming election. Plaintiff now comes to this Court as a

candidate but also as a voter, on behalf of all the voters in the City of Warren that

believe in his mission of progress but are now unable to cast their votes for their

favored candidate; a clear violation of their First Amendment rights.

P: (313) 983-4600 | F: (313) 983-4665
AYAD LAW, P.L.L.C.

Despite having the mandate of the people, now, owing to the unequal and
645 Griswold St., Ste. 2202
DETROIT, MICHIGAN 48226

unique interpretation of the 2020 charter amendment, Plaintiff name has been

stricken from the ballots in violation of his and his supporters’ constitutional rights.

This Court must take up the opportunity to right the obvious and targeted

injustice being perpetrated against all citizens of Warren who support James R Fouts

for Mayor.

WHEREFORE, Plaintiff James R Fouts humbly prays that this Honorable

Court enter a judgment against Defendants and in Plaintiff’s favor, and issue an order

containing the following relief:

a) Declaring that applying the 2020 charter amendment to Plaintiff’s terms

begun prior to its enactment violates Plaintiff’s First Amendment, Fifth

Amendment, and Fourteenth Amendment rights under the United States

constitution;
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b) Ordering that Defendants Commission, County Clerk, and City Clerk

decertify the mayoral election in the upcoming August 8, 2023 primary

election, cause a special election to be held solely for the election of the

candidate for the Mayor of the City of Warren, and add (and certify)

Plaintiff’s name on the ballot for said special election;

c) Ordering Defendants to pay Plaintiff monetary damages in an amount

designed to compensate Plaintiff for the constitutional, emotional, and

economic damages that he has suffered as a result of their unlawful

P: (313) 983-4600 | F: (313) 983-4665
AYAD LAW, P.L.L.C.

conduct; and
645 Griswold St., Ste. 2202
DETROIT, MICHIGAN 48226

d) Any and all other relief which this Honorable Court deems equitable and

just.

Respectfully Submitted,

s/Nabih H Ayad (P59518)

William D Savage (P82146)
Attorneys for Plaintiff
645 Griswold St., Ste. 2202
Detroit, MI 48226
P: (313) 983-4600 | F: (313) 983-4665
Date: August 2, 2023 [email protected]

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