Fouts files federal lawsuit, wants back in mayoral race

WARREN — Mayor James Fouts is taking his legal fight with the City Council to federal court.

Alleging his constitutional and civil rights were violated when he was removed from the ballot for the upcoming Warren mayoral primary election, Fouts is now seeking to be on the ballot for what would have to be a special election in the weeks to come.

The four-term mayor was joined by his legal team at the Andiamo Celebrity Showroom Aug. 2 to announce the lawsuit, filed on his behalf in U.S. District Court against the Warren City Council, the Warren Election Commission, and Warren City Clerk Sonja Buffa and Macomb County Clerk Anthony Forlini in their official capacities.   

Flanked by his attorney, Nabih Ayad of Ayad Law, P.L.L.C., and a group of political supporters, Fouts stood at the lectern as Ayad addressed the four-count complaint alleging violations of Fouts’ constitutional rights that led to civil rights violations.

According to the complaint, Fouts’ civil rights were violated under the U.S. Constitution: specifically, the First Amendment, the Fifth Amendment and the 14th Amendment. A fourth count seeks a declaratory judgment.

Count I, according to the complaint, alleges that Fouts’ First Amendment rights were violated when he was taken off the 2023 ballot.

“The ultimate expression of one’s political speech is their voting and/or running for political office,” the complaint stated.

According to the complaint, the defendants were responsible for either participating in an unlawful lawsuit and/or removing Fouts from the 2023 ballot, or not certifying the ballot with him on it. All of the defendants were named in each count.

Count II, according to the complaint, alleges a Fifth Amendment violation of Fouts’ right to be free from imposition of a legal disability without due process of law. In 2020, Warren voters approved a proposal for term limits that reduced the mayor’s term limits to the greater of three terms or 12 years to reflect the term limits of the other elected officials in Warren. In 2016, voters approved a five-term limit or 20 years for the mayor only. According to Ayad, the 2016 proposal and amendment to the charter clearly addressed retroactivity as to what years served prior would be counted and when the term limits would go into effect. The 2020 proposal did not address retroactivity and could not be interpreted as such.

“There is no retroactive default,” Ayad said.

When statutes do not clearly state retroactivity language, then it is to be interpreted prospectively, which means from this point forward, he argued.

Count III alleges a violation of the 14th Amendment and Fouts’ right to equal protection under the law. Again, retroactivity is at issue, according to Fouts’ legal team, having retroactivity clearly addressed in one proposal that was voted on by Warren residents in 2016, and no mention of retroactivity in the 2020 ballot proposal or in the amended charter. The fact that it was applied by the court as if it were addressed is a violation of Fouts’ constitutional rights, according to the complaint.

Court IV seeks a declaratory judgment, according to the complaint, to avoid irreparable harm to the plaintiff, Fouts, and to stop the alleged continued violation of his rights.

“We are looking for the mayor to (be) put on (the ballot in) a special election for the primary,” Ayad said. “We still have some time for the November general election. We are not asking for the general election to be disturbed.”

The primary election was scheduled for Aug. 8, after the Warren Weekly went to press. Absentee ballots were mailed weeks ago, and many were already returned before the lawsuit was filed. The top two vote-getters for each city office, including mayor, will be on the ballot for the general election on Nov. 7.

“This special election would only be for mayoral candidates and be around mid-September,” Ayad said.  “This would give the mayor time to put the advertising, billboards, and signage in place. And to (let the people) know that this mayor is on board, and we are giving him his fair and constitutional right to run for office.”

Fouts’ team addressed what it would like to see done with the ballots that have already been returned.

“We are asking that those ballots be held until the special election runs,” Ayad said. “They would have to revote, with the ability to vote for Mayor Fouts, in a special election. This happens across the country.”

Ayad said time is of the essence and that he would file for an expedited hearing on this complaint.

Fouts is seeking monetary damages.

“When you are a mayor for 16 years and you have the expectation you are going to run for another four years, you have to endure that you are going to be without a job come November,” Ayad said.

“I think those individuals responsible should pay. At least the law says, those individuals responsible should pay,” Ayad said.

The monetary damages Fouts is seeking were not enumerated at the press conference.

“We’re going to let the courts decide that,” Ayad said.

It has been more than three months since the Michigan Supreme Court decided not to hear the Michigan Court of Appeals case that ordered Fouts off the ballot, and Ayad addressed why the mayor’s case is moving forward now. According to Ayad, his team was able to research the issue and found that the mayor was wronged on many different levels and that there is a remedy for that. The mayor was just recently able to find and retain Ayad as legal counsel.

Warren City Council President Patrick Green responded to the mayor’s lawsuit. Green was one of six candidates on the ballot for Warren’s mayoral primary.

“I will instruct our attorneys to seek sanctions and costs for this last-minute frivolous lawsuit that is designed to suppress voter participation in next week’s election,” Green said in a statement released Aug. 1. “By suing the city council, the mayor is again increasing litigation costs for the taxpayers rather than simply follow the plain language of our city charter.”

In previous interviews, Fouts said he would continue to be an advocate for the city of Warren once he is out of office. He even endorsed a candidate for mayor: George Dimas.

Fouts is now throwing his proverbial hat back in the ring in part due to what he called the “overwhelming support” from Warren residents.

“People are constantly calling me up. I’m running into people when I’m jogging, wherever I am. They’re saying, ‘Why aren’t you on the ballot? I want to write you in,’” Fouts said.

“I say, ‘You can’t write me in.’ (They say), ‘Well, do something about it.’ So I’ve had overwhelming feedback, support from average Warren residents, who’ve said, ‘I want to vote for you. What can you do?’” Fouts said. “So that is part of the reason I am doing this. I did not expect that, and I am appreciative of the overwhelming support.”

When asked about Fouts’ attempt to get back on the ballot, Dimas said, “He has every right to challenge the unfair decision by the Court of Appeals.”

“And I think he has every right to take it one step further in the federal courts to try to get himself on the ballot in 2023,” Dimas said. “I think he has a right to represent the people who support him so vigorously.”

Although Fouts was surrounded by many of his supporters inside the press conference, outside marched longtime Warren resident Lori Harris with a sign that read, “Out with Fouts.”