Byron P. GALLAGHER, Jr., a/k/a Pat Gallagher, Plaintiff-Appellee,
v.
Linda M. KEEFE, Defendant-Appellant.
Docket No. 206705.
Court of Appeals of Michigan.
Submitted August 11, 1998, at Grand Rapids. Decided October 27, 1998, at 9:15 a.m. Released for Publication January 15, 1999.*298 Lynch, Gallagher, Lynch & Martineau, P.L.L.C. by Richard J. Garcia, Lansing, for the plaintiff.
Miller, Canfield, Paddock and Stone, PLC by Michael J. Hodge and Sherry L. Katz-Crank, Lansing and Brookover & Fleischmann, *299 P.C. by George M. Brookover, East Lansing, for the defendant.
Before SAAD, P.J., and JANSEN and HOEKSTRA, JJ.
HOEKSTRA, J.
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. See M.C.L. § 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, M.C.L. § 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 plaintiff's 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 lacked a "proper interest." The interpretation of court rules is a question of law that we review de novo on appeal. In re Neubeck, 223 Mich.App. 568, 570-571, 567 N.W.2d 689 (1997). In pertinent part, the court rule states the following:
(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 M.C.L. § 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 plaintiff's 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 *300 definition, so as to include counties, or a more restricted definition, so as to include only quasi-proprietary corporations such as park authorities or drainage districts, is irrelevant here because under either part of the court rule, plaintiff has standing to maintain this action against defendant.
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 corporation 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 plaintiff's request to bring the action and plaintiff obtained leave of the lower court to bring this action himself. See Ballenger v. Cahalan, 145 Mich.App. 811, 818, 378 N.W.2d 607 (1985) ("A private citizen, even one claiming title to the contested office, has no standing until a proper request has been made to the Attorney General and he has refused.").
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, 190 Mich.App. 398, 415, 476 N.W.2d 417 (1991), vacated in part 439 Mich. 1021, 486 N.W.2d 664 (1992), that "primary elections are ... primarily party functions." Defendant's argument is without merit. First, defendant's reliance on the phrase "proper interest" is misplaced because the last sentence of MCR 3.306(B)(3)(a) concerns the joinder of a party in addition to "the person making the application." Additionally, nothing in the court rule prompts the inference that a plaintiff's standing to challenge an election is dependent on the plaintiff's political party affiliation or membership. Rather, the only restriction on the face of the court rule is that the person who is granted leave to bring the action must be the one who gave the information to the Attorney General. MCR 3.306(B)(1); MCR 3.306(B)(3)(b). See also M.C.L. § 600.4501; MSA 27A.4501 ("If the attorney general receives information from a private party and refuses to act, that private party may bring the action upon leave of court."). The personal interest of the person applying for leave of the court is irrelevant. Grand Rapids v. Harper, 32 Mich.App. 324, 328-329, 188 N.W.2d 668 (1971). Therefore, we find that the lower court reached the right result in deciding that plaintiff could maintain this action.
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., 177 Mich.App. 69, 73, 441 N.W.2d 5 (1988). The application of the doctrine of laches requires the passage of time combined with a change in condition that would make it inequitable to enforce the claim against the defendant. City of Troy v. Papadelis (On Remand), 226 Mich.App. 90, 96-97, 572 N.W.2d 246 (1997). The defendant must prove a lack of due diligence on the part of the plaintiff resulting in some prejudice to the defendant. Id. More specifically, in Stokes v. Clerk of Monroe Co. Bd. of Canvassers, 29 Mich.App. 80, 87, 184 N.W.2d 746 (1970), this Court found that the rule to apply in actions for quo warranto is whether the action is commenced within a reasonable time, taking into account the excuse for delay, the probable harm to the defendant, and the detriment to the public. See also Brown v. Dep't of Military Affairs, 386 Mich. 194, 199, 191 N.W.2d 347 (1971), citing Grix v. Liquor Control Comm., 304 Mich. 269, 8 N.W.2d 62 (1943).
For example, in Grix, supra at 274, 8 N.W.2d 62, 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 *301 to justify barring the plaintiff's suit. Id. Similarly, in Stokes, supra at 88, 184 N.W.2d 746, where the plaintiff instituted a quo warranto action challenging the title to the office of county supervisor approximately forty days after the defendant was officially declared the winner of the election, this Court held that the delay by the defeated candidate was not unreasonable and did not preclude maintenance of the action.
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 M.C.L. § 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, 191 N.W.2d 347. 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 clearly 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., 227 Mich.App. 683, 685, 577 N.W.2d 139 (1998). A court properly grants a motion for summary disposition pursuant to MCR 2.116(C)(10) when, except with respect to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. Giving the benefit of reasonable doubt to the nonmovant, the court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Id.
In pertinent part, M.C.L. § 46.411; MSA 5.359(11) provides that "[c]andidates 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 because "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 M.C.L. § 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, 67 Mich.App. 397, 241 N.W.2d 223 (1976), which also concerned a challenge to the right of the successfully *302 elected defendant to hold office as a county commissioner. There, this Court held that status as 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. Id. at 401-402, 241 N.W.2d 223.
Defendant argues that this Court's subsequent decision in Ferency, supra, requires us to overrule Okros. Defendant's position 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, 476 N.W.2d 417, citing Line v. Bd. of Election Canvassers of Menominee Co., 154 Mich. 329, 332, 117 N.W. 730 (1908). Defendant argues that this statement supports her position that the status of a candidate regarding residency and voter requirements is determined as of the date of the primary. However, the issue before this Court in Ferency was the constitutionality of closed presidential primaries in Michigan, not the eligibility requirements for a candidate to run for office. Therefore, we are not persuaded by defendant's reading of Ferency.
Defendant also asserts that we are not bound by Okros, supra at 401-402, 241 N.W.2d 223, because the statement on which we rely was dicta. We disagree. "[S]tatements 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., 422 Mich. 594, 597-598, 374 N.W.2d 905 (1985). In Okros, supra at 401, 241 N.W.2d 223, in order to decide whether manifest injustice would result from allowing the default judgment to stand, this Court was required to judge the merits of the defendant's argument, which was that a candidate's eligibility is determined as of the date of the primary. Therefore, the statement about when a candidate's eligibility to run for office is determined was not dicta but was essential to resolving the case.
Even if we agreed with defendant that this Court's statement in Okros, supra at 401-402, 241 N.W.2d 223, 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 M.C.L. § 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 fee. See M.C.L. § 168.558(1); MSA 6.1558(1); Grand Rapids, supra at 330, 188 N.W.2d 668 ("a participant in a primary election is a candidate for office"). Because defendant did not meet the requirements of M.C.L. § 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, 241 N.W.2d 223. 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 M.C.L. § 46.412; MSA 5.359(12).
Affirmed.
SAAD, P.J., concurs.
JANSEN, J. (concurring in part and dissenting in part ).
I concur with the majority that plaintiff 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., 154 Mich. 329, 332, 117 N.W. 730 (1908), our Supreme Court held that a primary election is not an election to public office, but is merely the selection of candidates for office by the members of a *303 political party in a manner having the form of an election. This holding was reiterated in Attorney General ex rel. Reuter v. Bay City, 334 Mich. 514, 516, 54 N.W.2d 635 (1952) ("A primary election is not a regular election in any sense of the term.... [A] primary election is merely the selection of candidates for office by the members of a political party in a manner having the form of an election."). Subsequent history of these Supreme Court cases indicates that our Supreme Court has not overruled or modified them; thus, I believe that we are bound by these holdings. See Boyd v. W G Wade Shows, 443 Mich. 515, 523, 505 N.W.2d 544 (1993). Moreover, in Ferency v. Secretary of State, 190 Mich.App. 398, 415-416, 476 N.W.2d 417 (1991), vacated in part 439 Mich. 1021, 486 N.W.2d 664 (1992),[1] this Court stated:
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 election 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, 67 Mich.App. 397, 402, 241 N.W.2d 223 (1976), held that the defendant's nomination and subsequent election were void where the defendant had failed to register to vote when he filed for the position of commissioner in Macomb County. This Court held that "[o]ne becomes a candidate when he files for election to office," and rejected the defendant's contention that status as a candidate with regard to residency and voter requirements are determined as of the date of the primary. Id., p. 401, 241 N.W.2d 223. This Court in Okros purported to rely on Grand Rapids v. Harper, 32 Mich. App. 324, 188 N.W.2d 668 (1971) for this holding. In Grand Rapids, this Court held that a participant in a primary election is a candidate for office within the meaning of the city charter prohibiting any city official while in office from becoming a candidate for any other office. Id., pp. 329-330, 188 N.W.2d 668. This Court in Grand Rapids did not hold that one becomes a candidate when filing for election to office.
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 election 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.[2]
Because 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
[1] 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.
[2] Only the offices listed in M.C.L. § 168.534; MSA 6.1534 have primary elections.