Lead Opinion
In this quo warranto action plaintiff challenges defendant’s successful election to the office of Ingham County Commissioner for the ninth district. The lower court granted plaintiff summary disposition pursuant to MCR 2.116(C)(10), and defendant appeals as of right from that order. We affirm.
On May 9, 1996, defendant filed an affidavit of identification with the Ingham County Clerk’s Office and paid the filing fee. Sеe MCL 168.558(1); MSA 6.1558(1). She obtained the nomination of the Democratic Party at the primary on August 6, 1996, and at the general election on November 5, 1996, succeeded in defeating plaintiff, the Republican incumbent. Before defendant took office in January 1997, plaintiff initiated this action on December 12, 1996. Plaintiff filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that defendant had not satisfied the state-law eligibility requirements for a candidate, MCL 46.411; MSA 5.359(11), because at the time defendant became a candidate for the election, she was neither a resident nor a registered voter in the district she sought to represent. The lower court agreed and granted plaintiffs motion, rejecting defendant’s arguments that plaintiff’s suit was barred by the doctrine of laches and that plaintiff lacked standing to bring suit against defendant.
In the first of two assignments of procedural error, defendant asserts that the lower court erred in finding that plaintiff had standing to bring his suit pursuant to MCR 3.306(B)(2). Defendant argues that the lower court should have instead applied MCR 3.306(B)(3)(a)-(b) and found that plaintiff did not have standing to bring suit because he lаcked a “proper interest.” The interpretation of court rules is a question of law that we review de novo on appeal. In re Neubeck,
(B) Parties.
(1) Actions by Attorney General. An action for quo warranto is to be brought by the Attorney General when the action is against:
(b) a person who usurps, intrudes into, or wrongfully holds or exercises an office in a public corporation created by this state’s authority;
(2) Actions by Prosecutor or Citizen. Other actions for quo warranto may be brought by the prosecuting attorney of the proper county, without leave of court, or by a citizen of the county by special leave of the court.
(3) Application to Attorney General.
(a) A person may apply to the Attorney General to have the Attorney General bring an action specified in subrule (B)(1). The Attorney General may require the person to give security to indemnify the state against all costs. and expenses of the action. The person making the application, and any other person having the proper interest, may be joined as parties plaintiff.
(b) If, on proper application and offer of security, the Attorney General refuses to bring the action, the person may apply to the appropriate court for leave to bring the action himself or herself. [MCR 3.306. See also MCL 600.4501; MSA 27A.4501.]
In general, the effect of MCR 3.306 depends on whether the court rule assigned the action to the Attorney General. This case, which concerns plaintiffs allegation that defendant wrongfully holds or exercises office, would be a case within the purview of those assigned to the Attorney General provided that Ingham County is within the definition of a “public corporation created by this state’s authority,” as the phrase is used in MCR 3.306(B)(1)(b). Courts have not yet resolved the parameters of this definition. See 4 Martin, Dean & Webster, Michigan Court Rules Practice, pp 438-443. However, whether courts should employ a comprehensive
Assuming arguendo that an Ingham County Commissioner is not an officer of a public corporation and that the action is not assigned to the Attorney General, plaintiff has standing pursuant to MCR 3.306(B)(2) because he is a citizen of the county and obtained leave of the lower court to bring this action. Conversely, assuming arguendo that an Ingham County Commissioner is an officer of a public coiporation and that the action is assigned to the Attorney General pursuant to MCR 3.306(B)(1)(b), plaintiff has standing pursuant to MCR 3.306(B)(3)(b) because the Attorney General declined plaintiffs request to bring the action and plaintiff obtainеd leave of the lower court to bring this action himself. See Ballenger v Cahalan,
Referencing the last sentence of MCR 3.306(B)(3) (a), defendant argues that plaintiff, a Republican, cannot have a “proper interest” in maintaining an action challenging the outcome of a Democratic primary. In support of this position, defendant imprudently relies on two inapposite decisions of out-of-state courts and on the statement in Ferency v Secretary of State,
Next, defendant argues that the lower court erred in finding that laches did not bar plaintiff’s action. We review the lower court’s decision for clear error. See, e.g., Sedger v Kinnco, Inc,
For example, in Grix, supra at 274, the defendants relied on only two facts to show laches: that the plaintiff did not bring suit until nearly two years after the plaintiff was discharged and that in the meantime another person was hired and paid for the work that was formerly done by the plaintiff. Our Supreme Court held that the defendants had not shown prejudice or detriment
Plaintiff initiated this action approximately one month after defendant was elected and several weeks before defendant took office. Defendant accuses plaintiff of waiting until after he learned who his opponent would be and after being defeated at the general election before filing this suit. However, the record does not establish when plaintiff discovered defendant’s failure to meet the eligibility requirements of MCL 46.411; MSA 5.359(11); therefore, defendant has not shown that plaintiff lacked due diligence in pursuing his claim. Additionally, defendant has not shown that the delay resulted in prejudice. Indeed, defendant herself cannot claim prejudice where she has wrongfully held office during the duration of plaintiff’s suit. Moreover, the public will not bear the burden of paying a double salary because plaintiff will not be automatically reinstated and compensated for the wages lost from his previous position. See Brown, supra at 199-200. Instead, when a vacancy occurs, the vacancy is filled by appointment for the remainder of the term of the office. MCL 46.412; MSA 5.359(12). Consequently, we find that the lower court did not cleаrly err in deciding that laches did not bar plaintiff from enforcing his claim against defendant.
Last, we address the substantive issue defendant raises on appeal, which is that the lower court erred in 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 granting summary disposition. Waldan General Contractors, Inc v Michigan Mut Ins Co,
In pertinent part, MCL 46.411; MSA 5.359(11) provides that “[candidates for the office of commissioner shall be residents and registered voters of the district which they seek to represent and shall remain so to hold their office, if elected.” In her affidavit of identification, defendant listed an apartment within the ninth district as her residence. However, at the time defendant filed the affidavit, she physically occupied a location within the twelfth district, although she considered the apartment in the ninth district her residence because she was “welcome” to stay there. There is no merit in defendant’s attempt to distinguish between occupancy and residence bеcause “residence,” for registration and voting purposes, means “the place at which a person habitually sleeps, keeps his or her personal effects and has regular place of lodging.” MCL 168.11; MSA 6.1011. Even if a person has more than one residence, it is “that place at which the person resides the greater part of the time” that is considered the official residence according to the statute. Id. Regarding her voter registration, defendant conceded that she is uncertain when she requested that the clerk’s office change her voter registration from the twelfth-district address to the ninth-district address. In any event, defendant does not contend on appeal that she met the eligibility requirements of MCL 46.411; MSA 5.359(11) on May 9, 1996, the date on which she filed her affidavit of identification.
Defendant instead argues that she was eligible to be a candidate because she moved to a location within the ninth district on or about August 1, 1996, a few days before the primary election was held. This Court has previously rejected this precise argument in Okros v Myslakowski,
Defendant argues that this Court’s subsequent decision in Ferency, supra, requires us to overrule Okros. Defendant’s рosition rests on the panel’s statement that “the purpose of the primary election for partisan offices is to select each major party’s nominees for a particular office.” Ferency, supra at 415-416, citing Line v Bd of Election Canvassers of Menominee Co,
Defendant also asserts that we are not bound by Okros, supra at 401-402, because the statement on which we rely was dicta. We disagree. “[Statements concerning a principle of law not essential to determination of the case are obiter dictum and lack the force of an adjudication.” Roberts v Auto-Owners Ins Co,
Even if we agreed with defendant that this Court’s statement in Okros, supra at 401-402, was dicta, we would adopt the reasoning of the panel in Okros and hold in this case that the status of a candidate regarding residency and voter requirements is determined as of the date that the candidate files for election to the office, not the date of the primary. The requirements of MCL 46.411; MSA 5.359(11) apply to “[c]andidates for the office of commissioner.” Defendant became a candidate by filing an affidavit of identification with the clerk’s office and paying the filing fеe. See MCL 168.558(1); MSA 6.1558(1); Grand Rapids, supra at 330 (“a participant in a primary election is a candidate for office”). Because defendant did not meet the requirements of MCL 46.411; MSA 5.359(11) at the time she filed the affidavit and paid the fee, she was ineligible to run for the office of commissioner in Ingham County. See Okros, supra at 401. Therefore, defendant’s subsequent nomination and election were void.
Accordingly, we hold that the lower court properly granted plaintiff summary disposition because there is no genuine issue of material fact and plaintiff is entitled to judgment as a matter of law. The office of Ingham County Commissioner for the ninth district is vacant as of the date this opinion is released and must be filled pursuant to MCL 46.412; MSA 5.359(12).
Affirmed.
Concurrence Opinion
(concurring in part and dissenting in parí). I concur with the majority that plаintiff has standing to bring this suit under MCR 3.306(B)(2) and that laches does not bar plaintiff’s action. I respectfully dissent, however, from the majority’s conclusion that defendant did not satisfy state-law eligibility requirements for a candidate in the primary election.
In Line v Bd of Election Canvassers of Menominee Co,
Although primary elections are run by the state and are regulated by the state election law, they nevertheless remain primarily party functions. That is, the purpose of a primary elеction for a partisan elective office is not to narrow the field of candidates down to two candidates who then run off in the general election (as in the case in primary elections for nonpartisan office). Rather, the purpose of the primary election for partisan offices is to select each major party’s nominees for a particular office.
I acknowledge that this Court in Okros v Myslakowski,
Okros and Grand Rapids are not consistent with our Supreme Court’s holding in Line and Attorney General. If primary elections, properly understood to be primarily political party functions, are not elections to public office, but merely selection of candidates for office, then a participant in a primary elеction is not a candidate for public office, but is merely seeking the party’s nomination as a candidate for office. Therefore, I would hold that one is not a candidate for office until nominated by the party in the primary. This nomination can be done in the form of an election, or is sometimes done at party conventions.
Becausе defendant had properly established residency before the primary election, I would reverse the trial court’s order granting summary disposition in favor of plaintiff and uphold the results of the general election held on November 5, 1996.
Notes
The only portion of this Court’s opinion in Ferency that was vacated by our Supreme Court was the decision by this Court to allow the defendant to tax costs.
Only the offices listed in MCL 168.534; MSA 6.1534 have primary elections.