*1 Keefe GALLAGHERv KEEFE August 11, 1998, Rapids. Docket No. 206705. Submitted at Grand Decided 27, 1998, October at 9:15 A.M. Byron Gallagher, by R after he was defeated Linda M. Keefe in the County Ingham election for Commissioner for the ninth dis- trict, brought quo Ingham an action for warranto in the Circuit against Keefe, alleging ineligible Court that Keefe anwas candidate 5.359(11) under MCL because at the time she filed her party’s primary affidavit of identification for her election she was registered
not a court, resident аnd the ninth district. The J., Glazer, granted summary disposition plain- Lawrence M. for the ground genuine tiff on the that there existed no issue of material judgment fact and the was entitled to as a matter of law. appealed. The defendant Appeals The Court of held: bring 1. The had the action under MCR 3.306(B)(2) 3.306(B)(3). 3.306(B)(1)(b) provides or MCR that an quo brought by Attorney action for warranto is to be General person usurps, into, when the action is who intrudes or wrongfully public corporation holds or exercises an office in a cre- by authority. Assuming Ingham ated this state’s that the office of public corporation is an Commissioner office in a created by authority, 3.306(B)(3) apply this state’s MCR allows a Attorney Attorney bring General to have the General an and, Attorney application, action if the General declines such bring personally by allows the the action leave of the case, court. In this obtained the court’s leave to Attorney request his action after the General declined his for an by Conversely, assuming action General. that the Ingham County office of Commissioner is not an office in a corporation by authority created this state’s and that an action for involving among warranto that office is not those that is to be brought by Attorney General, 3.306(B)(2) MCR allows the by brought attorney prosecuting proper action to be of the court, or, here, county, as a citizen withоut leave of county by special the court. leave of barred laches. In an action for action was not 2. The inquiry concerning quo warranto, whether the laches is the relevant *2 time, taking into within a reasonable was commenced action defendant, probable delay, harm to the for the account the excuse case, public. In this the defendant has not to the and the detriment delay bringing the action caused harm the shown that public. to the the defendant and detriment to finding the had not did not err in defendant 3. The trial court eligibility. requirements for candidate MCL the state-law satisfied provides 46.411; 5.359(11) office that candidates for the MSA registered county and voters of the commissioner shall be residents elected, they represent and, remain seek to if shall district which residency voter-registration This and so to hold their office. requirement a files for elec- must be met as of the date candidate as of the date of the as the defendant tion to argues. filed became a candidate for office when she The defendant time, the defendant was not a an affidavit of identification. At that sought represent. registered the district she resident or voter of eligible Accordingly, was not an candidate. The the defendant County Ingham Commissioner for the ninth district is office of Appeals opinion and must be vacant as of the date of the Court of pursuant 5.359(12). to MCL MSA filled Affirmed. dissenting part, concurring in and stated that J., Jansen, although had the action under MCR plaintiff’s action, 3.306(B)(2) and laches does not bar the eligi- satisfied the state-law for candidate bility. primary A election is not an election for office but politi-
merely the selection of candidates for office members of parties, nomi- cal and a is not a candidate for office until party was nated in a or a convention. The defendant already registered and voter of the ninth district before a resident summary granting The trial court’s order she became candidate. disposition should be reversed and the favor 5,1996, election held on November should be results of upheld. — — Equity Warranto. Quo 1. Laches warranto, Laches, quo a deter- as a defense to an action for involves was within a reasonable mination whether the action commenced time, delay, taking probable account into the excuse for harm defendant, public, and the detriment — Registration. — — Residency 2. Elections Commissioners Voter county A office of candidate for the commissioner must be a resident registered represent and the district the seeks to candidate as of the date the candidate files an affidavit of identification with county (MCL 46.411; 5.359[11]). office clerk’s Lynch, Lynch & Gallagher, Martineau, P.L.L.C. (by Garcia), Richard J. plaintiff.
Miller, Paddock Canfiеld, Stone, and PLC (by Michael J. and Hodge Sherry L. Katz-Crank) and Brookover & PC. Fleischmann, (by George M. Brookover), for the defendant. P.J.,
Before: Jansen and Hoekstra, JJ. Saad, J. In this warranto action Hoekstra, *3 challenges defendant’s successful election to the office of Ingham Commissioner for the ninth district. The lower court granted plaintiff summary disposition pursuant to MCR 2.116(C)(10), and defen- appeals dant right as of from that order. We affirm. On May 9, 1996, defendant filed an affidavit of iden- Ingham County tification with the Clerk’s Office and paid the fee. filing See MCL 168.558(1); MSA 6.1558(1). She obtained the of nomination the Demo- Party cratic at the on August 6, 1996, and at the general on November 5, 1996, succeeded plaintiff, defeating Republican incumbent. Before took January defendant office in 1997, plaintiff initiated this on 12, action December 1996. Plaintiff filed a summary motion for disposition pursuant to MCR 2.116(C)(10), arguing that defendant had not sat- App eligibility a can- for the state-law isfiеd 5.359(11), because didate, MCL election, for became a candidate defendant time registered nor a a resident was neither she represent. sought The lower court to she the district rejecting plaintiffs granted agreed motion, arguments was barred suit that defendant’s by lacked that laches and doctrine of standing bring defendant. suit procedural assignments error, first of two In the erred in find- lower court asserts that the pursu- bring standing ing his suit had that argues 3.306(B)(2). Defendant ant to MCR applied MCR instead should have lower court 3.306(B)(3)(a)-(b) did not and found he lacked suit because have interpretation “proper of court rules is interest.” appeal. question novo on law that we review de NW2d 570-571; Neubeck, In re part, pertinent the court rule states In following:
(B) Parties. Attorney war- An action
(1) Actions General. brought when the General ranto is to be against: action is into, wrongfully usurps, intrudes or
(b) a who corporation created in a an office holds or exercises *4 by authority; this state’s by
(2) Actions Prosecutor or Citizen. Other actions for may by brought prosecuting attorney warranto be the proper county, court, of the without leave of or a citizen county by special of the leave of the court. Application Attorney
(3) to General. (a) person may apply Attorney A to the General to have Attorney bring specified the General an action in subrule (B)(1). Attorney may require The give General the security indemnify the state all costs. and expenses person making of the action. application, the any person having proper interest, may other be joined parties plaintiff. as If,
(b) proper application on security, and offer of Attorney bring action, General refuses to may apply appropriate to the court for leave to action himself or herself. 3.306. See also MCL [MCR 600.4501; MSA 27A.4501.]
In general, the effect of MCR depends 3.306 on whеther the court rule assigned the action to the Attorney General. case, This plain- which concerns tiffs allegation that defendant wrongfully holds or exercises office, would be a case within purview of those assigned General provided that Ingham is within the definition “pub- of a corporation lic created this state’s authority,” as phrase is used in MCR 3.306(B)(1)(b). Courts yet have not parameters resolved the of this defini- Martin, tion. See 4 Dean & Webster, Michigan Court Rules Practice, pp 438-443. However, whether courts should employ comprehensive definition, so as include counties, or a more restricted definition, so as only to include quasi-proprietary corporations such as park authorities or drainage districts, is irrelevant here because under either rule, court *5 App 363
Opinion the Court standing plaintiff this action to maintain has defendant. County Ingham
Assuming arguendo an Com- that corporation and of a is nоt an officer missioner Attorney assigned Gen- the action is that standing pursuant to MCR has eral, county 3.306(B)(2) and he is a citizen of because bring this action. court to leave of the lower obtained Ingham Conversely, assuming arguendo an that public coipo- a is an officer of Commissioner Attorney assigned to and that the action ration 3.306(B)(1)(b), pursuant has to MCR General pursuant 3.306(B)(3)(b) standing because MCR request Attorney plaintiffs declined General and obtained leave the action Ballenger bring this action himself. See lower court to App NW2d 607 811, 818; Mich Cahalan, 145 claiming private (1985) (“A title to even one citizen, proper standing has no until the contested request made to the General has been refused.”). he has 3.306(B)(3)
Referencing
of MCR
the last sentence
Republican,
plaintiff,
argues
(a),
defendant
maintaining
“proper
an
interest” in
cannot have a
pri-
challenging
a Democratic
the outcome of
action
impru-
mary.
support
position, In
of this
inapposite
dently
decisions of out-of-
relies on two
Ferency
statement in
v Secre-
state courts and on the
tary
NW2d 417
398, 415;
State, 190
(1992),
Mich 1021
vacated in
party
primarily
“primary
functions.”
are . . .
elections
argument
defend-
First,
is without merit.
Defendant’s
phrase “proper
ant’s reliance on the
interest” is mis-
placed because the last sentence of MCR 3.306(B)(3)
joinder
(a)
party
concerns the
of a
in addition to “the
application.”
making
Additionally, nothing
prompts
in the court rule
that a plain-
inference
dependent
tiff’s
an election is
challenge
plaintiff’s political
on the
party affiliation or member-
ship. Rather,
only
restriction on the face of the
court rule is that the
granted
who is
leave to
*6
bring the action must be the
gave
one who
the infor-
mation
to the
General. MCR 3.306(B)(1);
MCR
See also MCL
3.306(B)(3)(b).
600.4501; MSA
attorney
27A.4501
(“If
general receives informa-
private party
tion from a
and refuses to
that
act,
pri-
party may
vate
bring
upon
the action
leave of
court.”).
personal
The
interest of the
applying
Rapids
Grand
v
for leave of the court
is irrelevant.
Harper,
App
32 Mich
324, 328-329;
Next, defendant argues that the lower court erred in finding plaintiff’s that laches did not bar action. We review the lower court’s decision for clear error. See, e.g., Sedger Kinnco, Inc, v App 69, 73; 177 Mich 441 NW2d 5 (1988). application The of the doctrine of requires laches the passage of time combined with a in change condition that would inequitable make it City enforce the claim against Troy the defendant. of Papadelis (On Remand), App 90, 226 Mich 96-97; prove NW2d 246 (1997). defendant must lack of diligence due on the of the plaintiff App 232 Mich prejudice resulting More defendant. Id. to the in somе specifically, Monroe Co Bd in v Clerk Stokes of 80, 87; 184 NW2d 29 Mich Canvassers, apply the rule to this Court found that quo is whether the action for warranto actions taking into time, within a reasonable commenced probable delay, harm account the excuse public. See defendant, and the detriment Dep’t Military Affairs, 194, 386 Mich also Brown v Liquor (1971), citing Con- 199; 191 NW2d347 Grix v NW2d 62 Comm, 269; trol supra example, 274, at the defendants Grix, For only laches: that the relied on two facts to show neаrly years after did not suit until two discharged in the meantime was and that paid was hired and for the work another formerly plaintiff. Supreme done Our was had not shown Court held that the defendants justify prejudice barring or detriment to Similarly, supra where the Stokes, suit. Id. challenging warranto action instituted county supervisor approxi- the title to the office of *7 mately forty days officially after the defendant was election, this Court held declared the winner delay by was nоt that the the defeated candidate preclude maintenance of unreasonable and did not the action. approximately one
Plaintiff initiated this action after defendant was elected and several weeks month defendant took office. Defendant accuses before plaintiff waiting his until after he learned who opponent being after defeated at the would be and Keefe However, election before this suit. filing
record does not establish when discovered failure to meet the eligibility defendant’s 46.411; therefore, of MCL MSA 5.359(11); diligence has not shown that lacked due pursuing Additionally, his claim. defendant has not delay in prejudice. Indeed, shown resulted prejudice claim defendant herself cannot where she has held office wrongfully during the duration of Moreover, suit. will not bear the paying salary burden of double because automatically will compensated not be rеinstated and for the lost wages previous position. from his See supra Brown, Instead, vacancy 199-200. when a occurs, vacancy appointment filled for the remainder of the term of the office. MCL 5.359(12). Consequently, we find that the lower court clearly did not err in did deciding laches not bar plaintiff from enforcing his claim defendant.
Last, we address the substantive issue defendant on appeal, raises which is that the lower court erred finding as a matter of law that defendant had not satisfied the state-law eligibility requirements for a candidate. This Court reviews de novo an order grant- ing summary disposition. Waldan General Contrac- tors, Inc v Mut Michigan Co, Ins App 683, 577 NW2d 685; properly A court grants summary motion for disposition pursuant to MCR when, except respect with 2.116(C)(10) to the amount damages, there is no genuine issue of material fact moving party and the is entitled to as a judgment mat- ter of law. Id. Giving the benefit of reasonable doubt *8 232
Opinion of the Court the nonmovant, the court must determine whether might developed open a record be that would leave upon might an issue which reasonable minds differ. Id. pertinent part, pro- 5.359(11) 46.411;
In MCL MSA “[candidates vides that for the office of commis- registered sioner shall be residents and voters of the they represent which district seek to and shall remain so to if hold their elected.” In her affidavit of apartment identification, defendant listed an within However, the ninth district as her residence. at the physically time defendant filed the she affidavit, occu- pied although district, location within the twelfth apartment she considered the in the ninth district her stay residence because she was “welcome” to there. attempt There is no merit in defendant’s to distin- guish occupancy between and residence because “res- registration voting purposes, idence,” means place person habituаlly sleeps, keeps “the at which personal place regular his or her effects and has lodging.” 168.11; MCL MSA6.1011. Even if a place has more residence, than one it is “that greater part which the resides the of the time” according that is considered the official residence Regarding registration, the statute. Id. her voter defendant conceded that she is uncertain when she requested change that the clerk’s office her voter registration from thе twelfth-district address to the any event, ninth-district address. In defendant does appeal eligibility not contend on that she met the May 5.359(11) of MCL on she filed her affidavit of the date on which 9, 1996, *9 identification. eligible she was argues
Defendant
instead
that
moved to a location
a candidate because she
be
a
1, 1996,
about August
ninth district on or
within the
was held. This
days
before the
few
rejected
precise argument
this
previously
has
Court
Myslakowski,
Okros v
App 397;
NW2d
challenge
a
which also concerned
successfully elected defendant
to hold
of the
right
county
There,
this Court
as a
commissioner.
office
residency
regarding
that status as a candidate
held
the date
is determined as of
requirements
and voter
election to the
not
that the candidate files for
Id. at 401-402.
primary.
the date of the
subsequent deci-
that this Court’s
argues
Defendant
overrule Okros.
Ferency, supra, requires
us to
sion
statement
position
panel’s
Defendant’s
rests on the
partisan
elеction for
purpose
that “the
major party’s nominees for a
offices is to select each
supra
Ferency,
415-416, citing
at
particular
office.”
Co,
Election Canvassers Menominee
Line v Bd
of
Defendant
329, 332;
(1908).
Mich
Even if we with defendant that this Court’s supra statement Okros, in 401-402, at dicta, was we adopt reasoning panel would of in Okros and regard- hold in this case that the status of a candidate ing residency requirements and voter is determined as of the date that the candidate files for election to the primary. requirements office, not the date of the apply 5.359(11) of MCL 46.411; MSA “[c]andidates for the office of commissioner.” Defendant became a by filing candidate an affidavit of identification with pаying filing the clerk’s office and fee. See MCL 168.558(1); 6.1558(1); Rapids, supra MSA Grand (“a participant primary in a election is a candi- office”). date for Because defendant did not meet the requirements 5.359(11) of MCL at the paid time she filed the affidavit and fee, she was Opinion J. Jansen, in Ing- commissioner the office of to run for ineligible Therefore, 401. supra at County. Okros, See ham were and election subsequent nomination defendant’s void. properly court that the lower we hold
Accordingly, because there summary disposition granted plaintiff is fact and issue of material genuine is no law. The office of as a matter of judgment entitled the ninth district Commissioner Ingham and opinion this is released of the date vacant as 46.412; MSA to MCL pursuant be filled must 5.359(12).
Affirmed. concurred.
Saad, P.J., dissenting (concurring Jansen, J. plaintiff has majority I concur with parí). 3.306(B)(2) suit under MCR this I plaintiff’s action. laches does not bar and that however, majority’s dissent, from respectfully satisfy state-law eli- that defendant did conclusion for a candidate gibility election. Menominee Bd Election Canvassers
In Line v
our
332;
merely
by
the selection of candidates for office
political party
having
members
aof
in a manner
election.”). Subsequent history
form of an
of these
Supreme
Supreme
Court cases indicates that our
Court has not overruled or
them; thus,
modified
I
by
holdings.
believe that we are bound
these
See
Boyd v W G
Shows,
Wade
515, 523;
Ferency Secretary
NW2d 544
Moreover, in
App
State, 190 Mich
398, 415-416;
Although primary by elections are run the state and are regulated by they law, the state election nevertheless primarily party remain is, purpose functions. That of a partisan election for a elective office is not to nar- row the field of candidates down to two candidates who then run (as off pri- in the case in mary nonpartisan office). elections for Rather, purpose partisan election for offices is to select each mаjor party’s particular nominees office. acknowledge Mys-
I that this Court in Okros v lakowski, 67 Mich 397, 402; 241 NW2d 223 (1976), held that the defendant’s nomination and sub- sequent election were void where the defendant had register posi- failed to to vote when he filed for the County. tion of commissioner in Macomb This Court held that “[o]ne becomes a candidate when he files rejected for election to office,” and the defendant’s only portion opinion Ferency оf this Court’s that was vacated Supreme our Court was the decision this Court to allow the defend- ant to tax costs. *12 v Keefe Opinion J. Jansen, regard with as a candidate that status contention as are determined residency and Id., p 401. This Court in primary. date of of the Rapids Harper, rely on Grand Oteros purported for this hold- 324; 188 NW2d partici- Rapids, Court held that In Grand this ing. for office a candidate election is pant primary in a any prohibiting city charter meаning within becoming from a candidate while in office city official Id., pp 329-330. This Court in any other office. a candi- Rapids did hold that one becomes Grand for election to office. filing date when with Rapids are not consistent Okros and Grand Line holding Supreme Court’s our understood General. elections, properly If primary not elec party functions, are political primarily be merely of candi office, but selection public tions to in a еlec participant then a dates for merely office, but is not a candidate for tion is candidate for nomination as a party’s seeking not a can hold that one is Therefore, I would office. party in the nominated for office until didate in the form of can be done This nomination primary. party done or sometimes election, an conventions.2 resi- properly had established
Because reverse election, I would dency before summary disposition in granting the trial court’s order uphold the results plaintiff and favor of 1996. November held on elections. Only the offices listed in MCL 6.1534 have primary