Gallagher v. Keefe

Jansen, J.

(concurring in part and dissenting in parí). 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 NW 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 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 NW2d 635 (1952) (“A primary election is not a regular election *376in 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 NW2d 544 (1993). Moreover, in Ferency v Secretary of State, 190 Mich App 398, 415-416; 476 NW2d 417 (1991), vacated in part 439 Mich 1021 (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 NW2d 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 *377contention that status as a candidate with regard to residency and voter requirements are determined as of the date of the primary. Id., p 401. This Court in Oteros purported to rely on Grand Rapids v Harper, 32 Mich App 324; 188 NW2d 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. 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.

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.