Opinion
May 20, 2009.
Special order.
Orders Entered:
On order of the Court, this is to advise that the Court is considering amendments of Rules 2.112, 2.113, 3.101 and 8.119 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for public hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[Additions are indicated by underlining and deletions are indicated by strikeover.]
RULE 2.112. PLEADING SPECIAL MATTERS.
(A)-(M) [Unchanged.]
(N) Consumer Debt Cases. A party whose cause of action is to collect a consumer debt as defined in the Michigan Debt Collection Act (MCL 445.251 Tal and fdl) must also include the following information in its pleading: the name of the creditor on the alleged default date: the final four digits of the account number or identification number on the alleged default date or. if none is available, information sufficient to identify the alleged debt: and the balance due to date. A complaint in a consumar deht. action must be substantially in the form approved by the state court administrator.
RULE 2.113. FORM OF PLEADINGS AND OTHER PAPERS.
(A)-(G) [Unchanged.] (H) Supporting Documentation. In a consumer debt case as defined in MCL 445.251. the court may require additional documentation to verify any reassignment of debt after the date of filing; a mounts for interest and costs stated in judgment documents: and amounts for interest, costs, and payments stated in postjudgment documents.
RULE 3.101. GARNISHMENT AFTER JUDGMENT.
(A)-(C) [Unchanged.]
(D) Request for and Issuance of Writ. The clerk of the court that entered the judgment shall issue a writ of garnishment if the writ complies with these rules and the plaintiff, or someone on the plaintiffs behalf, makes and files a statement verified in the manner provided in MCR 2.114(A) stating:
(1) that a judgment has been entered against the defendant and remains unsatisfied;
(2) the amount of the judgment: the total amount of the postjudgment interest accrued to date: the total amount of the postjudgment costs accrued to date: the total amount of the postjudgment payments made to date and the amount remaining unpaid:
(3) [Unchanged.]
(E)-(T) [Unchanged.]
RULE 8.119. COURT RECORDS AND REPORTS; DUTIES OF CLERKS.
(A)-(B) [Unchanged.]
(C) Filing of Papers. The clerk of the court shall endorse on the first page of every document the date on which it is filed. Papers filed with the clerk of the court must comply with the Michigan Court Rules, requirements contained in the Michigan statutes and the Michigan Supreme Court records standards. The clerk of the court may reject papers which do not conform to MCR 2.113(C)(1) and MCR 5.113(A)(1).
(D) Rejection and Return of Documents. A chief judge may, in the best interests of the administration of justice, authorize court clerks to screen and reject documents that, have been received for filing that do not comply with subsection (C) above. Authorization and the standards for screening and rejecting documents shall be in writing and shall be made available upon request. The party shall be notified of the nature of the noncompliance in writing. A party who has had documents returned under this section is entitled to prompt judicial review of the clerk's determination upon request. If the case has not been accepted for filing. the chief Judge or another judge designated by the chief judge shall make the determination. A motion fee shall not be required.
(D)-(G) [Relettered (E)-(H), but otherwise unchanged.]
I respectfully dissent from the Court's order publishing the proposed amendment of Michigan Court Rule 8.119 for comment. I believe that publication is premature in light of significant issues regarding the propriety of the proposed rule's delegation of judicial authority. The proposal by the 46th District Court would revise MCR 8.119(C) to require that documents filed with court clerks comply with "requirements contained in the Michigan statutes." If an authorized court clerk determines that a filing does not comply with the requirement in MCR 8.119(C), the clerk would be entitled to reject and return it under the proposed new language in MCR 8.119(D). In our order in In re Credit Acceptance Corp, this Court held that returning deficient writs constitutes a sanction that must be ordered by a judge. The text of the proposed rule flatly contradicts our order and radically departs from the traditional ministerial functions performed by court clerks. To the extent that the proposed rule authorizes court clerks to reject pleadings, it improperly delegates judicial authority, in violation of the Michigan Constitution and caselaw. Because courts, and not court clerks, are entrusted with performing adjudicative functions and because basic questions concerning the merits of this proposal remain unanswered, I oppose publishing the proposed amendment of MCR 8.119 for comment.
In re Credit Acceptance Corp, 481 Mich 883 (2008).
The 46th District Court submitted its proposed amendment after an attorney brought an action for superintending control against the 46th District Court for rejecting the attorney's pleadings. Although the trial court dismissed the plaintiffs action, the Court of Appeals reversed the trial court's decision and concluded that MCR 3.101(D) does not allow a court to require that a judgment creditor provide information or documentation in addition to the verified statement required by that rule before the court issues a writ of garnishment. The Court of Appeals explained, "MCR 8.119(C) does not give court clerks broad discretion to reject pleadings. Rather, it authorizes clerks to reject pleadings that fail to conform only to the caption requirements set forth in MCR 2.113(C)(1) and MCR 5.113(A)(1)." On appeal, this Court affirmed, noting that "[t]he court's authority to sanction parties cannot be delegated to the court clerks."
In re Credit Acceptance Corp, 273 Mich App 594, 595 (2007).
Id. at 600 n 2.
In re Credit Acceptance Corp, 481 Mich 883, quoting In re Huff, 352 Mich 402, 415 (1958) (holding that the contempt power is "`inherent and a part of the judicial power of constitutional courts'"); Const 1963, art 3, § 2; Const 1963, art 6, § 1 ("The judicial power of the state is vested exclusively in one court of justice. . . .").
Our decision in In re Credit Acceptance Corp is not unique to the facts presented in that case. Judicial power is vested in the courts under our state constitution.
Johnson v Kramer Bros Freight Lines, Inc, 357 Mich 254, 258 (1959).
The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house. [Const 1963, art 6, § 1 (emphasis added).]
The Michigan Constitution also empowers the Supreme Court to "authorize persons who have been elected and have served as judges to perform judicial duties for limited periods or specific assignments." In contrast, no constitutional authority grants a chief judge the power to authorize court clerks to perform adjudicative functions. Moreover, in Carson Fischer Potts Hyman v Hyman, the trial court appointed an "expert witness" to make "findings of fact, conclusions of law and a final recommendation and proposed judgment." The Court of Appeals held that the trial court lacked constitutional authority to delegate its judicial power to an expert witness. The Court explained that "there is no constitutional authority for the trial court to delegate specific judicial functions to an `expert witness.' " Instead, "[i]t is within the peculiar province of the judiciary to adjudicate upon and protect the rights and interests of citizens and to construe and apply the laws." In light of our state constitution and established caselaw, I question our rush to publish this proposed amendment.
Const 1963, art 6, § 23.
Carson Fischer Potts Hyman v Hyman, 220 Mich App 116, 121 (1996).
Id. at 121-122.
Id. at 121.
Id.
We posed questions at the April 9, 2009, conference concerning the merits of this proposal. At conference, Judge William J. Richards appeared on behalf of the 46th District Court to discuss the proposed amendment of MCR 8.119. Judge Richards subsequently issued a thoughtful memorandum regarding this proposal on behalf of the entire 46th District Court. I am grateful to Judge Richards for appearing at conference and for his ongoing input on this proposal. Nevertheless, I continue to have significant reservations about the proposed amendment of MCR 8.119. As an initial matter, the 46th District Court has not adequately explained why MCR 8.119 should be broadly amended to address the narrow problem identified by the court regarding garnishment requests. In my view, the 46th District Court would be well-advised to instead consider proposing amendments of MCR 3.101, which specifically involves garnishments after judgment. Similarly, careful consideration should be given about adopting language analogous to the language currently found in MCR 7.201(B)(2) and (3) such that attorneys could correct initial filing deficiencies within a set period, thereby lessening the likelihood of wrongful dismissals and malpractice claims.
See Appendix A for a copy of Judge Richards April 28, 2009, memorandum.
Myriad questions remain about this proposal, and I believe that those questions should be answered before we solicit the public's reaction. Although I acknowledge that releasing a proposal for public comment does not bind the Court to adopt it, I disagree with publishing proposals without sufficient scrutiny. I would ask the 46th District Court to answer the following questions regarding its proposal:
— Do the difficulties described by the 46th District Court about managing approximately 9, 700 requested garnishments each year mirror the experiences of trial courts across the state? If so, what techniques have other courts implemented? If the 46th District Court is an anomaly, why should we revise our existing court rule to accommodate a single district?
— Why should the proposed amendment of MCR 8.119 apply to all cases, and not only requests for garnishment? On what basis did the 46th District Court conclude that clerks should be authorized to reject and return all documents received for filing? Why not limit the remedy to the problem identified, that is, the large number of garnishments filed in the 46th District Court?
— Are there specific flaws in the current language of MCR 8.119? If not, why depart from the present rule, which unambiguously states that clerks "may reject papers which do not conform to MCR 2.113(C)(1) and MCR 5.113(A)(1)"?
— What effect will the proposed amendment have on attorneys who file pleadings in multiple courts? Is it not likely that attorneys would face varying standards in different districts concerning the screening and rejection of documents? Why should we encourage the development of inconsistent practices? Moreover, why make the standards adopted by each court available only upon request? Why not post the written standards so that attorneys are more likely to be aware of them?
— Has either the Michigan Creditors Bar Association (MCBA) or any other interested party voiced its support for this proposed amendment? How does the 46th District Court respond to those objections already raised by the MCBA?
— How would the "prompt judicial review of the clerk's determination" under the proposed new language in MCR 8.119(D) take place? Can an attorney immediately appeal the clerk's decision to the judge? Must an attorney make a formal motion in order to appeal? What if there is no judge available to hear the appeal? Is it possible that some filings later determined to be sufficient could nevertheless be late under the statute of limitations as the proposal is written now? What burdens will an automatic review process place on court resources?
— If the Court is asked to adopt a statewide court rule, would it not make more sense to conduct a comprehensive study of what court clerks may screen, and then revise MCR 8.119(C) to provide clerks with a specific list of minimum filing requirements? Further, what are the pitfalls in resolving problems concerning writs of garnishment in MCR 3.101, as opposed to granting broad authority to allow clerks to reject pleadings? Does not the broad approach favored by the 46th District Court invite inconsistency and variable enforcement?
I recognize that a court has inherent powers to manage its own affairs so as to achieve the orderly and expeditious disposition of cases. Moreover, in light of my own experience with managing the "housekeeping docket" as Chief Judge for the Court of Appeals, I empathize with the 46th District Court regarding its burdensome workload. Nevertheless, I am concerned that in attempting to dispose of requests for garnishment in an orderly fashion, the 46th District Court would grant its clerks and all clerks across the state overly broad authority, thereby allowing clerks to exercise an adjudicative function. Historically, this Court has refused to adopt proposed amendments that would delegate too much authority to clerks. I see no appreciable distinction between such past proposals and the 46th District Court's current proposal. Additionally, I believe that further scrutiny of this proposal before publication would have yielded a less troubling product that satisfies my concerns about the improper delegation of judicial authority to clerks. Because I cannot support the Court's order publishing the proposed amendment of MCR 8.119 for comment prematurely, I respectfully dissent.
See, e.g., ADM File No. 1993-46, concerning the Court of Appeals backlog. This Court did not adopt proposed MCR 7.201(B), which would have allowed the Court of Appeals clerk to dismiss appeals if the appellant failed to file required documents within 21 days of being notified. Similarly, we voted against adopting proposed MCR 7.217, which would have granted the Court of Appeals clerk discretion to dismiss appeals if the appellant failed to prosecute the appeal in accordance with the rules and failed to correct defects after being notified. Indeed, the current versions of both MCR 7.201(B) and MCR 7.217 expressly state that "[t]he Chief Judge or another designated judge may dismiss the appeal."
MARKMAN and YOUNG, JJ., concur with CORRIGAN, J.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk in writing or electronically by September 1, 2009, as EO. Box 30052, Lansing, MI 48909, or MSC_clerkcourts.mi.gov. All comments will be posted on the Court's website. When filing a comment, please refer to ADM File No. 2005-32.