Thursday, June 16, 2005


Paul Maloney, trial judge presiding, stated by order on May 20, 2005, the court directed the prosecuting attorney to answer defendant Nesbitt’s motion for reconsideration as it related to an assertion that the prosecutor lacked standing to initiate this cause of action for quo warranto. The prosecutor has filed a timely response. This court has chosen to resolve this motion without oral argument.

After consideration of the pleadings and authorities cited, the court denies defendant’s motion finding that the prosecutor had standing to pursue this litigation.

In his complaint, the prosecuting attorney invoked the election codes mcl 168.861 and mcr 3.306 as the basis for his filing. Defendant responded with a motion of summary disposition and an answer. In neither pleading did defendant Nesbitt raise the legal issue of the prosecutor’s legal capacity to sue. Such a motion filed pursuant to mcr 2.116 either in her responsive pleading or in a motion filed prior there to. She did neither.

The court recognized that the defendant categorizes this motion as a subject matter jurisdiction issue. The key distinction from capacity to sue being that the former may be raised as previously indicated. However, the circuit court clearly has jurisdiction over que warranto actions of this kind. The judge waived her right to assert capacity to sue by failing to comply with the court rule. Assuming arguendo that waiver has not occurred, the defendant’s argument failed on the merits also. A plain reading of mcl 168.
861 manifestly sanctions the initiation of a que warranto action for fraudulent or illegal voting. Defendants seek to engraft the subsequent reference to tampering with the ballots and the board of canvassers to the first preposition phrase of the statue.
That strained reading, of course, ignores the disjunctive or between the word voting and tampering. This court interprets the plain meaning of the statue to affirm the remedy of que warranto for fraudulent or illegal voting. The remaining question is whether the prosecuting attorney is the proper party to bring an action. Clearly, he has such capacity to sue
having established the availability of que warranto for fraudulent or illegal voting, an action not delineated in mcr3.306. The prosecutor may bring this action pursant of the court rule this cause is an other action which may be brought by the prosecuting attorney

defendant motion for reconsideration is denied.~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~