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STATE OF MICHIGAN

THIRD JUDICIAL CIRCUIT COURT
COUNTY OF WAYNE

BEVERLY TRAN,
Plaintiff
Case No: 13-007372-CZ
vs. Hon. PATRICIAL PEREZ FRESARD

CITY OF HAMTRAMCK BOARD OF ELECTION COMMISSION, et al.
Defendants.

BEVERLY TRAN,
In pro per
12057 Lumpkin
Hamtramck, MI 48212

MOTION FOR DECLARATORY JUDGMENT AND AN EMERGENCY INJUNCTION
ORDERING DEFENDANTS TO COMPLY WITH MICHIGAN OPEN MEETINGS ACT
AND MICHIGAN ELECTION LAW

COMES NOW, Plaintiff, BEVERLY TRAN, pro se, (henceforth “Plaintiff Tran”) for

her Amended Original Complaint moves this Court pursuant to MCL 15.271, MCR 2.605 and

MCR 3.310(H) to issue Declaratory Judgment and Emergency Injunction ordering Defendants

CITY OF HAMTRAMCK BOARD OF ELECTIONS COMMISSION, et al., (henceforth

“Defendants BOEC”) to comply with Michigan Open Meetings Act, Public Act 267 of 1976

(MCL 15.261 et seq.) and Michigan Election Law Public Act 116 of 1954 (MCL 168.1 et seq.)

for the following reasons:

1. On or about June 6, 2013, Plaintiff Tran filed a verified complaint against Defendants

BOEC for the manner in which they conducted 2013 Primary Elections (see Amended

Original Complaint attached to accompanying brief as Exhibit A).

2. Upon information and belief, Defendants BOEC have and continue to blatantly and

egregiously disregard Michigan Open Meetings Act, Michigan Election Law and the
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2005 Charter of the City of Hamtramck by failing to establish policy and protocol for

Primary Elections.

3. Upon information and belief, Defendants BOEC has failed to execute its duties pursuant

to MCL 168.719, continuously violating her right to due process as an elected official, an

official candidate and registered elector.

4. A copy of this motion has been served upon not only Defendants BOEC, but also the

Michigan Department of State Bureau of Elections Director, Christopher M. Thomas ( via

U.S. Postal Service) and Wayne County Clerk, Cathy M. Garrett (via U.S. Postal Service)

so that they may have the opportunity to intervene in this matter if they so choose.

5. Under MCL 15.261, et seq., Plaintiff Tran is entitled to declaratory judgment to dismiss

the following candidates from the 2013 Primary Election: (A) Ian Perrotta; (B) Jewel

Mohammad; (C) Richard Fabiszak; (D) Rashad Almasmari; (E) Showkat Choudhury; (F)

Darren T. Grow; (G) Abu Musa; and, (H) Darla Swint.

WHEREFORE, for the reasons stated above and in the attached brief, Plaintiff respectfully

requests that this Honorable Court: (1) enter declaratory judgment declaring Plaintiff Tran’s 2013

Primary Election candidate challenges for removal from the ballot be granted; and, (2) issue an

emergency injunction ordering Defendants BOEC to immediately comply with the Michigan

Open Meetings Act and Michigan Election Law.

Respectfully submitted,

_____________________________ ____________________________
Beverly Tran DATE
12057 Lumpkin
Hamtramck, MI 48212
313-522-8213
tranbeverly@gmail.com

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STATE OF MICHIGAN
THIRD JUDICIAL CIRCUIT COURT
COUNTY OF WAYNE

BEVERLY TRAN,
Plaintiff
Case No: 13-007372-CZ
vs. Hon. PATRICIAL PEREZ FRESARD

CITY OF HAMTRAMCK BOARD OF ELECTION COMMISSION, et al.
Defendants.

BEVERLY TRAN,
In pro per
12057 Lumpkin
Hamtramck, MI 48212

BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR DECLARATORY
JUDGMENT AND AN EMERGENCY INJUNCTION ORDERING DEFENDANTS TO
COMPLY WITH MICHIGAN OPEN MEETINGS ACT AND MICHIGAN ELECTION
LAW

STATEMENT OF FACTS

Plaintiff Beverly Tran, at all relevant times has resided in Wayne County, Michigan and is

a registered voter of the City of Hamtramck. Plaintiff is an elected official of the 14th

Congressional District of the Michigan Democratic Party as a precinct delegate and is a 2-year

term city council candidate for City of Hamtramck 2013 Primary Election.

Plaintiff Tran filed this lawsuit against Defendants Hamtramck Board of Elections

Commissions, et al. for the manner in which they conduct and continue to conduct the 2013

Primary Elections. Plaintiff seeks both declaratory judgment and emergency injunctive relief.

The present motion addresses solely the declaratory and injunctive relief aspects of the case

regarding violations of Michigan Open Meetings Act and Michigan Election Law.

Defendant City of Hamtramck Board of Election Commission is comprised, pursuant to

the 2005 City Charter, of Defendants James Allen, City Attorney; Maxwell Garbarino, Chief of
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Police; Marie Kendzierski, City Clerk and Chair of the Board of Elections Commission; and,

Kyle Tertzag, City Manager. Plaintiff executed a Freedom of Information Act to request: (1)

Election Policy of the Clerk; and, (2) Minutes of Meetings of the Election Commission for the

Fiscal Years of 2011, 2012, 2013. Response was generated that, “The City has no such records.”

However, as of this date, Plaintiff has been denied her right to due process in the 2013

Primary Elections with the City of Hamtramck Office of the Clerk as no administrative remedies

exist, per its FOIA response, to issue a decision of the Board of Elections Commission. Upon

information and belief, Plaintiff would like guidance and direction from this Court.

As set forth below, Plaintiff is entitled by state law to the immediate compliance by

Defendants to Michigan Open Meetings Act and Michigan Election Law.

ARGUMENT

I. PLAINTIFF IS ENTITLED TO DECLARATORY JUDGMENT TO REMOVE
CANDIDATES FROM THE 2013 PRIMARY ELECTIONS BALLOT AS
HAMTRAMCK BOARD OF ELECTIONS COMMISSION HAS ABDICATED ITS
AUTHORITY AS A PUBLIC DECISION-MAKING BODY.

The Michigan Legislature enacted the Michigan Open Meetings Act, Public Act 267 of

1976 (MCL 15.261 et seq.) to ensure, amongst other purposes, compliance to Michigan

Election Law, Public Act 116 of 1954 (MCL 168.1 et seq.) in order to regulate and ensure the

constitutionality of the entire election process. The Open Meetings Act Statute, MCL 15.270

§10(2) further provides that:

“A decision made by a public body may be invalidated if the public body has not
complied with the requirements of section 3(1), (2), and (3) in making the decision or if
failure to give notice in accordance with section 5 has interfered with substantial
compliance with section 3(1), (2), and (3) and the court finds that the noncompliance or
failure has impaired the rights of the public under this act”.

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the

intent of the Legislature. Gross v. General Motors Corp, 448 Mich 147, 158-159 (1995). The

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first step in ascertaining such intent is to focus on the language of the statute itself. Turner v.

Auto Club Ins. Ass./n, 448 Mich 22, 27 (1995). Unless defined in the statute, every word or

phrase of a statute should be accorded its plain and ordinary meaning. MCL 8.3; MSA 2.212(1);

People v. Fields 448 Mich 58, 67 (1995). – Reference to a dictionary is appropriate to ascertain

what the ordinary meaning of a word is. Id. Pompa v. Auto Club Ins. Ass’n 446 Mich 460, 470

(1994).

As noted above, under state law, a decision is invalidated if the public body has not

complied with the requirements of the Open Meetings Act. The City of Hamtramck Board of

Elections Commission has not demonstrated to be a “living, breathing public body” as it, in

actuality, fails to exist as there are no open, or even closed, meetings of public record. It is

unknown if there is compensation to its members and if so, to what amount pursuant to MCL

168.28.

It may be further ascertained that, even if Defendants establish a functioning Board of

Elections Commission, it has neglected, albeit, abdicated its authority to execute decisions to

this Court as Defendants have stripped themselves of decision-making authority through its

grotesquely miserable failure to comply with state law.

Plaintiff states that identified 2013 Primary Election candidates should be removed from

the ballot, set forth as follows:

A. Ian Perrotta provided a false address of residency for a Circulator to falsely certify

nomination petitions in violation of MCL 168.544(c)(7)(b);

B. Jewel Mohammed provided a false address of residency for a Circulator to falsely

certify nomination petitions in violation of MCL 168.544(c)(7)(b);

C. Richard Fabiszak procured more names upon nomination petitions than the maximum

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number prescribed by MCL 168.544(f) and Section 3-05 of the 2005 Hamtramck City

Charter, and MCL 168.548;

D. Rashad Almasmari procured more names upon nomination petitions than the

maximum number prescribed by MCL 168.544(f) and Section 3-05 of the 2005

Hamtramck City Charter, and MCL 168.548;

E. Showkat Choudhury listed as his primary legal residence a registered business

whereby providing a false residency for a Circulaor to falsely certify nomination

petitions in violation of MCL 168.544(c)(7)(b);

F. Darren T. Grow is employed as Downtown Development Director, authorized by

Public Act 197 of 1975 § 5, being MCL 125.1655 and has failed to approach the

governing body of the City to address the inherent ethical and financial conflicts of

interest, detailed in MCL 15.403(3)(c) in being nominated as a candidate of the City

while on payroll of the City as an appointed official;

G. Abu Musa filed nomination petitions for 4-year term of City Council and

contemporaneously paid nomination fee for the 2-year term of City Council. As

stated in the Original Amended Complaint, Plaintiff challenges the proper withdraw

from the 4-year term as the Clerk’s Office was closed and it does not comply with

MCL 168.1 et seq.

H. Darla Swint filed nomination petitions whereby Plaintiff was denied viewing of said

petitions. Plaintiff challenges if said nomination petitions were sufficiently and

properly filed pursuant to MCL 168.1 et seq. as the assistant City Clerk is not a state

notary public and may have procured more names upon nomination petitions than the

maximum number prescribed by MCL 168.544(f) and Section 5-05 of the 2005

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Hamtramck Charter.

II. PLAINTIFF IS ENTITLED TO EMERGENCY INJUNCTION ORDERING
DEFENDANTS TO COMPLY WITH MICHIGAN OPEN MEETINGS ACT AND
MICHIGAN ELECTION LAW

The Michigan Legislature enacted Michigan Election Law, Public Act 116 of 1954 (MCL

168.1 et seq.) in order to regulate and ensure the constitutionality of the entire election

process. Michigan Election Law, MCL 168.539 further provides that:

“If, upon the expiration of the time for filing petitions in any primary for city or county, it
appears that there is no opposition to any candidate for any office upon any ticket, then
the city or county clerk, as the case may be, shall certify to the board of election
commissioners the names of all persons whose petitions have been properly filed and the
office for which such petitions were filed, and such persons shall be declared by such
board of election commissioners nominees for the respective offices, and such county
clerk shall forthwith notify the several clerks of the townships and cities interested, if any,
and give notice that the primary will not be held as contemplated, giving the reasons
therefor, and a public notice shall be given of such determination by a brief notice
published by such clerk in a newspaper circulated in such county.”

Upon this Court’s granting of Plaintiff’s motion for declaratory judgment it its entirety,

Defendants have abdicated its election decision authority in the certification of nomination of

Plaintiff as there is no opposition. Defendants subsequently remain devoid of authority to render

an election decision, as in this instance, the public body of the Board of Elections Commission

has failed to function or exist.

A. The Court May Issue a Permanent Injunction and a Declaratory Judgment in this
Pending Action.

The Michigan Court Rules specifically provide that the trial court may issue a permanent

injunction in an action such as this case prior to final judgment. MCR 3.310(H) states:

(H) Motion for Injunction in Pending Actions. An injunction may also be
granted before or in connection with a final judgment on a motion filed after an action is
commenced.

Also see 4 Martin, Dean and Webster, Michigan Court Rules and Practice, (3d ed.), Rule 31310,

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Authors’ Comment, p. 490 (“an injunctive order, either preliminary or permanent, may be

obtained by application and motion in connection with a pending action.”)

Similarly MCR 2.605 vests power in the trial court to declare the rights of a party in an

ongoing case, whether or not another remedy is available:

(A) Power to Enter Declaratory Judgment. (1) In a case of actual controversy within its
jurisdiction, a Michigan court or record may declare the rights and other legal
relations of an interested party seeking a declaratory judgment, whether or not other
relief is or could be sought or granted.

(F) Other Relief. Further necessary or proper relief based on a declaratory judgment
may be granted, after reasonable notice and hearing, against a party whose rights have
been determined by the declaratory judgment. (MCR 2.605.1)

The granting of injunctive and declaratory relief is within the sound discretion of the

court, and the decision must be based on the facts of the particular case. Soerqel v. Preston, 141

Mich App 585, 590 (1985) (injunctive relief); Allstate Ins Co v Haves, 442 Mich 56, 74 (1993)

(declaratory relief). Although questions of fact remain regarding the damages portion of

Plaintiff’s lawsuit, there seems to be no material dispute over the critical facts relevant to the

injunctive and declaratory relief sought by Plaintiff. Rather, the question of whether the

Hamtramck Board of Elections Commission possesses decision-making authority to oversee

2013 Primary Elections within the meaning of MCL 15.261 and MCL 168.1 et seq. is a question

of law that should be determined now.

All individuals or organizations that could possibly have an interest in this issue have

been served with copy of this motion and brief, including the Michigan Department of State

Bureau of Elections Director, Christopher M. Thomas ( via U.S. Postal Service) and Wayne

County Clerk, Cathy M. Garrett (via U.S. Postal Service). They have the opportunity to

intervene in the case and file briefs either concurring with or opposing the relief sought.

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CONCLUSION

For the aforementioned reasons stated in Plaintiff Tran’s Motion, she respectfully

requests that this Honorable Court: (1) enter declaratory judgment declaring Plaintiff’s 2013

Primary Election candidate challenges for removal from the ballot; and, (2) issue an emergency

injunction ordering Defendants to immediately comply with Michigan Open Meetings Act and

Michigan Election Law.

Respectfully submitted,

______________________________ _____________________________

Beverly Tran DATE
12057 Lumpkin
Hamtramck, MI 48212
313-522-8213
tranbeverly@gmail.com

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