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144084 - Davis v Emergency Manager for Detroit Public Schools

Robert Davis,
 
Andrew A. Paterson
 
Appellant,
 
v
(Appeal from Ct of Appeals)
 
Emergency Manager for the Detroit Public Schools,
 
Heather S. Meingast
 
Appellee.
 

Summary

​A quo warranto action is brought to inquire into the authority by which a public office is held. Michigan Court Rule 3.306(A)(1) requires a quo warranto action against a person who unlawfully holds state office to be brought in the Court of Appeals. Under MCR 3.306(B)(3)(a), a person may apply to the Attorney General to have the Attorney General bring a quo warranto action. Under MCR 3.306(B)(3)(b) and MCL 600.4501, if the Attorney General refuses to bring the action, a private party may bring the action himself.

In this case, petitioner Robert Davis asked the Attorney General to initiate quo warranto proceedings against respondent Roy Roberts, the emergency manager for the Detroit Public Schools. Davis sought the quo warranto action because Roberts did not take the oath of office before assuming his duties on May 16, 2011, as required by the state constitution. Article 11, § 1 states in part: “All officers, legislative, executive and judicial, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation . . . .” MCL 201.3 sets forth a list of events that will cause an office to become vacant; one such triggering event is the officeholder’s “refusal or neglect to take his oath of office, or to give, or renew any official bond, or to deposit such oath, or bond, in the manner and within the time prescribed by law.”

On August 30, 2011, while Davis’ request to the Attorney General was still pending, Roberts took the oath of office. The Attorney General declined Davis’ request to institute quo warranto proceedings one week later, on September 6, 2011.

Davis then filed an application for leave to file a complaint for quo warranto in the Court of Appeals, asking that court to declare vacant the office of emergency manager. The Court of Appeals denied the application in an order. The Court of Appeals stated that Roberts’ failure to take the oath of office immediately did not violate MCL 201.3(7). Thus, the court held, the office of emergency manager did not need to be declared vacant. The Court of Appeals further noted that Roberts remedied his initial failure to take the oath of office by taking an oath of office in August 2011, before Davis filed his application for leave to file a complaint for quo warranto. Under the circumstances, the Court of Appeals held, Davis failed to disclose sufficient apparent merit to justify further inquiry by quo warranto proceedings. Finally, the Court of Appeals noted that Roberts was a de facto officer between the date of his appointment and the date he took his oath of office. Consequently, actions taken in his official capacity during that timeframe are recognized as valid. Greyhound Corp v Public Service Comm’n, 360 Mich 578, 589-594 (1960); People v Matthews, 289 Mich 440, 447-448 (1939). Davis appeals.