Legislation-mandated Court of Claims restructuring progresses quickly

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 Members of the Michigan Court of Appeals: first row, Jane E. Markey, E. Thomas Fitzgerald, Chief Judge Pro Tem David H. Sawyer, Chief Judge William B. Murphy, Kathleen Jansen, Joel P. Hoekstra, Peter D. O'Connell; second row,  Pat M. Donofrio*, Patrick M. Meter, Kirsten Frank Kelly, Michael J. Talbot*, Stephen L. Borrello, Donald S. Owens, Kurtis T. Wilder, William C. Whitbeck, Christopher M. Murray; third row, Cynthia Diane Stephens, Douglas B. Shapiro, Jane M. Beckering, Elizabeth L. Gleicher, Amy Ronayne Krause*, Michael J. Kelly. Not pictured: Mark J. Cavanagh, Karen M. Fort Hood, Henry William Saad, Deborah A. Servitto*

*Appointed as Court of Claims judges
 
PHOTO COURTESY OF MILLER?CANFIELD
 
by Cynthia Price
Legal News
 
Though fraught with controversy, the legislation which moved the Michigan Court of Claims from Ingham County Circuit Court to the Court of Appeals (COA) became PA?164 of 2013 and took immediate effect on Nov. 12.
 
The act amends 1961 PA?236, “An act to revise and consolidate the statutes relating to the organization and jurisdiction of the courts of this state; the powers and duties of the courts...” by setting up a panel of four COA
judges to rule on cases formerly heard by the 30th Circuit Court in Ingham County and other circuit courts.

It also assigns the Court of Claims jurisdiction over “monetary, equitable, or declaratory relief or any demand for an extraordinary writ against the state or any of its departments or officers.”

Court of Claims matters also include highway defects, health-care provider malpractice, claims against the state  on contractual obligations and money damages,  constitutional claims and prisoner litigation asking for money damages, and claims involving liability for state taxes.

As the bills proposing these changes, the original of which was SB?652 sponsored by Republican Senator Rick Jones, sped through the approval process, many weighed in against them.

The legislators said that the rationale behind the change was to make the Court of Claims more accessible to people throughout the state, since the COA courts are in four cities around Michigan (Detroit, Grand Rapids, Lansing, and Troy).

Gov. Rick Snyder stated when he signed the bills into law, “As a practical matter, Court of Claims issues affect all of Michigan, so it only makes sense that judges from across all of Michigan hear and decide those cases. Thanks to these reforms, we'll broaden the base of judges who are making these decisions.”

But detractors did not buy those reasons. Democrats in both houses felt that the bills were not only  an overreach of the legislature into the judicial branch, but also politically motivated.

Sen. Gretchen Whitmer said before the bills became law, “It is nothing short of a subversion of the checks and balances between the three branches of government and a power grab to stack the courts in favor of their own party.”

House Democratic Leader Tim Greimel stated, “By allowing the Supreme Court chief justice to pick and choose which judges hear challenges against the state, they make it likely that court cases will be dismissed before they have a fair day in court. This isn’t democracy – it’s partisan politics at its worst, and it makes it harder for citizens to hold their government accountable.”

Just as strident was the state AFL-CIO, whose President Karla Swift issued a statement concluding, “SB 652 doesn’t guarantee injustice, but it makes the path towards a fair hearing a lot narrower for ordinary citizens in Michigan.”

Indeed, the swift passage of SB?652 without time for consideration also concerns many non-partisan groups.  The State Bar of Michigan (SBM) was unable to comment officially, because Supreme Court Administrative Order 2004-01 restricts formal action on legislation until 14 days after notice has been posted on its website. According to SBM’s explanation about the bills, “The 14-day waiting period typically is not a problem; the
State Bar’s normal timeframe for the adoption of policy position encourages effective notice to members, widespread input, and careful review and consideration of all viewpoints.” But the bills were passed and signed into law so quickly the restriction prevented any action at all.

Two SBM sections were able to react before passage.

The Negligence Law Section opposed and asked for amendments, stating, “The Section believes that the major shift in the Court of Claims is far too broad and is unnecessary.  If there is concern about having the 30th Circuit Court being the sole Court of Claims, it should be expanded to include other counties such as Oakland, Wayne or Kent rather than shifted to the Court of Appeals - a body that is not suited to the task.”

The Appellate Section also opposed, saying in part, “...the bill does not change or address MCL 600.308, which provides that final judgments of the Court of Claims are appealable of right to the Court of Appeals, thus, appeals from the Court of Appeals judges sitting as Court of Claims judges will be taken to the Court of Appeals, which is unprecedented. It is questionable how this will proceed, whether this comports with due process... having four judges of the COA having to serve as trial court judges will also delay the processing of appeals.”

The Elder Law Section also opined, “The Section is concerned that the court of appeals may be a less hospitable forum for the Section's constituency,” but not before the bills became law.

On Nov. 5, the Michigan Association of Justice (MAJ) sent a letter to the House’s Committee on Government Operations, signed by Chad Engelhardt and Steven Goethel of Goethel Engelhardt in Ann Arbor.  Restating the problem with potential delays the changes might impose, the letter added, “Reassignment of the Court of Claims to certain hand picked Court of Appeals judges operating in a system not designed for this role is contrary every notion of fundamental fairness at the core of our state and nation.”

It was, however, the elimination of the right to jury trail that most concerned MAJ. It now appears that the legislature is on its way to addressing that. HB?5156, a “trailer bill” which states that “Nothing in this chapter eliminates or creates any right a party may have to a trial by jury” passed the House Dec. 4 by a vote of 110-0.

SBM has gone on record in favor of the bill, and MAJ’s Director of Communications Stephen Pontoni commented, “We’re very happy with the trailer bill.” Engelhardt and Goethel agreed, saying they were also pleased with its unanimous passage.

Engelhardt noted that MAJ’s issues were not limited to the elimination of jury trials. “We’re also concerned about the procedural issue, with the immediate effect date, but that’s already being addressed by the Federal courts, in a case involving the Pontiac schools emergency manager.”

Other expressed concerns may be in the process of resolution as well. Before the bills’ passage, several Court of Appeals judges spoke out about their concerns, but Act 164 makes that no longer possible. According to Section 308 (4), “The court of appeals has exclusive original jurisdiction over any action challenging the validity of section 6404, 6410, 6413, or 6419,” and judges are precluded fromcommenting on matters which may come before them.

However, one of the foremost judicial objections has, at least for now, been addressed. COA procedures and skills are very different from those of trial court judges, and there is no requirement that those appointed or elected to the COA come up through the trial court system.

The Michigan Supreme Court appointed Hon. Michael J. Talbot, designated Chief Judge, Hon. Pat M. Donofrio, Hon. Deborah A. Servitto, and Hon. Amy Ronayne Krause, all of whom had trial court experience before they were at the COA.

In addition, according to Engelhardt,  Supreme Court Justices David Viviano and Bridge McCormack both appeared before the Negligence Law Section after the bill’s passage. They assured the section that selection of the judges would be done in a “bipartisan” manner, and the appointments bear that out.

The new Court of Claims website is http://courts.mi.gov/courts/coc. SBM also encourages visiting its blog (http://sbmblog.typepad.com/sbm-blog) or Public Policy Resource Center (http://www.michbar.org/publicpolicy) for further updates.