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September 3, 2006

Michigan Supreme Court Issues Interesting Opinion

(Sorry for the goofy margins -- I'm still new at this. Trust me, it's worth the inconvenience.).

In Cameron v. Auto Insurance Club Ass'n., __ N.W.2d __ (Mich. July 28, 2006), the
Michigan Supreme Court issued an interesting statutory interpretation
opinion with dissents. That court is probably one of the more explicit, open and (at
times) contentious courts on the question of which approach to statutory
interpretation is "best" and why.

In Cameron, the plaintiffs' 10-year old son was injured, and later
they (for themselves and him) brought suit for no-fault insurance benefits. However, to defeat recovery of some of the damages, the defendant relied upon a statute that provided
that the "claimant may not recover benefits for any portion of the loss
incurred more than 1 year before the date on which the action was
commenced."

In response, the plaintiffs argued that the claim on their son's behalf had been tolled because
their son had been a minor when the incident had occurred. A tolling
provision provided:

[I]f the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run.

Sounds like a pretty simple case. And, in fact, an appellate court, in
a previous decision referred to by this court as Geiger, had held that the one year tolling provision applied, and so a minor could sue for no fault benefits so long as suit was filed within one
year of the minor's 18th birthday. Seems plain and simple.

But, not so before the Michigan Supreme Court. Despite these simple facts, fairly direct statute, and prior precedent interpreting the statute, the case resulted in an entire series of
opinions on the result and proper interpretation. The
majority opinion reversed the appellate court's holding that the tolling
provision applied, and explained:

In reaching this conclusion the Court of Appeals, looking behind the language of the statute and focusing on its understanding of the Legislature's purported intent, determined that the legislative purpose behind the minority/insanity tolling provision for periods of limitations was to preserve not only a person's cause of action during the period of disability but also the person's damage claims. It opined that to not read the statute in this fashion would "severely limit the utility" of the minority/insanity tolling provision. The Court then concluded that, "[i]n order to advance the policy of RJA § 5851," the minority/insanity tolling provision applies to prevent the capping of damages under the one-year-back rule of MCL 500.3145(1).

We believe this ruling was erroneous for the most uncomplicated reason;
namely, that we must assume that the thing the Legislature wants is best
understood by reading what it said. Because what was said in MCL
500.3145(1) and MCL 600.5851(1) is clear, no less clear is the policy.
Damages are only allowed for one year back from the date the lawsuit is
filed. We are enforcing the statutes as written. While some may question
the wisdom of the Legislature's capping damages in this fashion, it is
unquestionably a power that the Legislature has under our Constitution.
Thus, because Geiger's conclusion that the minority/insanity tolling
provision applies to extend the one-year-back rule is contrary to what
the Legislature clearly directed in MCL 500.3145(1) and MCL 600 .5851(1),
Geiger is overruled.

Because we conclude that the minority/insanity tolling provision in MCL
600.5851(1) does not apply to the one-year-back rule in MCL 500.3145(1),
we find it unnecessary in this case to reach the broader question whether
the legislative amendments in 1993 PA 78 limit the applicability of the
minority/insanity tolling provision to causes of action for which the
applicable statute of limitations is set forth in the RJA. Because the
Court of Appeals unnecessarily addressed this broader issue, its holding
in this regard is vacated.

The majority opinion was accompanied by a number of other opinions, some of which found the majority's interpretation to be absurd, since it meant that the tolling provision would never apply. On that point, one justice wrote about what "absurd" meant, and the comments are interesting:
This Court lacks the authority to alter a statute simply because it is confident that such alteration will better fulfill some supposed purpose. While I believe that this Court has an obligation to avoid genuinely "absurd results," a statute that is simply less well-crafted than a judge believes it could have been is not for that reason "absurd." Something is "absurd" as a matter of law, justifying the extraordinary remedy of judicial reformation, only if it is "utterly or obviously senseless, illogical, or untrue; contrary to all reason or common sense; laughably foolish or false." Random House Webster's College Dictionary (1991). Justice Scalia has described results as being "absurd" when they are "unthinkable," "bizarre," or "startling." Green v. Bock Laundry Machine Co., 490 U.S. 504, 527, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (Scalia, J., concurring); City of Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 450 n. 4, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002) (Scalia J., dissenting). He has described a statute as "absurd" when it "cannot have been meant literally," or when it "cannot rationally ... mean" what it seems to mean. Green, supra at 528.
Then there were the dissents. I cannot do them justice here (ha ha), but the first argued that the statutes conflicted, and so needed to be harmonized. In that effort, the dissent wrote:
These definitions suggest that when a minor's or incompetent's "claim" is saved by MCL 600.5851(1), it is that person's demand for monetary relief and right to obtain it that is preserved.

It is worth noting that it would be ironic indeed for the Legislature to
have set a trap for these particular groups of people and to have
disguised the trap as a protective measure. But that is exactly what the
majority's holding implies. For when one would choose to rely on the
clear promise of the saving provision that one's claim is preserved until
one year after the disability is removed, one would come to find that, in
certain circumstances, the saving provision has actually extinguished the
claim, not saved it. See n 6 of this opinion.

Given the above, I would conclude that when the Legislature enacted the
saving provision, it indeed intended to save the whole of the disabled
person's claim, not merely a severely devitalized right to bring the
claim. Without the saving provision, those who are judicially precluded
and deemed incapable of protecting their own legal rights would be denied
access to justice, so I find this conclusion unchallenging. Insureds who
are of age and possess full mental faculties are, understandably, deemed
capable of filing suit within a time frame that would preserve their
right to recover all damages owed to them. MCL 500.3145(1). If an insured
nonetheless waits to file suit, the Legislature has seen fit to limit the
insured's ability to recover damages to the year preceding the lawsuit.
Id. This is the price that is exacted when an insured, presumably capable
of filing suit in a manner that would preserve the entirety of his
damages, does not do so.


Finally, Justice Weaver found that the plain text did nto support the
majority's interpretation, and that it created an absurd result. In his
analysis, he also saw fit to write at length about textualism. In part he
wrote:

A brief review of Justice Scalia's book reveals that his views are marked by internal inconsistencies. Justice Scalia's main thesis with regard to statutory construction is that "[t]he text is the law, and it is the text that must be observed." Scalia, supra at 22. He asserts that what the legislature meant as opposed to what it actually stated in the language of a statute is immaterial. Id. at 22-23, 599 N.W.2d 102. However, Justice Scalia acknowledges that one of the "sound principles of interpretation" is the interpretative doctrine of lapsus linguae (slip of the tongue) or "scrivener's error," where from the very face of the statute "it is clear to the reader that a mistake of expression (rather than of legislative wisdom) has been made." Id. at 20, 599 N.W.2d 102.

As an example, Justice Scalia refers to a statute stating "defendant"
when only "criminal defendant" makes sense. Id. I agree that the
scrivener's error canon of construction is an appropriate tool in
determining legislative intent. But intellectual honesty requires an
acknowledgement that it involves a departure from the actual language
used by the Legislature or by Congress.

In a similar vein, Justice Scalia defends the use of traditional canons
of construction that he states are often associated with textualism,
including the canons expressio unius est exclusio alterius (expression of
one thing implies exclusion of others) and ejusdem generis (limiting
general language to items of the same sort as contemplated by specific
language). Id. at 25-27, 599 N.W.2d 102. I certainly believe that
traditional canons of construction such as these are not only
appropriate, but are often extremely helpful tools in ascertaining
legislative intent.

However, it must be acknowledged that they are not typically required by
the statutory text itself. Rather, it may be fairly understood that the
Legislature expects and intends the judiciary to employ well-established
canons of construction in construing statutes. Thus, it cannot reasonably
be concluded that using the canons of construction accords with a rigid
adherence to applying the text of a law without regard to actual
legislative intent.


In our book, we found a lot of wonderful cases where the Michigan Supreme
Court was fighting -- passionately -- about what many perceive to be
esoteric issues involving statutory interpretation. If anyone knows why
that Court is so prolific in this area, and so passionate, I'd love to
know.

September 3, 2006 in Current Affairs | Permalink

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Comments

My effort to answer to your question will address only statutory interpretation issues. There are other forces at work on this Court as well.

Michigan had a remarkably liberal judiciary in the 1970s and 1980s, and that liberal influence persisted well into the 1990s. Michigan now has a remarkably conservative Supreme Court. A good deal of the Michigan Supreme Court's jurisprudence in the last several years has been consciously and conscientiously aimed at undoing some of what the current Justices perceive as the errors of the past.

There is a block of four conservative Justices - Chief Justice Clifford Taylor and Justices Maura Corrigan, Robert Young, Jr., and Stephen Markman - who usually vote together. Justice Elizabeth Weaver is regarded as a more moderate conservative, and is often a swing vote. Justices Michael Cavanagh and Marilyn Kelly are the liberals on the bench.

One of the key points that the conservatives have emphasized is that the courts do not have the authority to engraft exceptions onto legislative choices that have been made and incorporated into written statutes. It is one thing to interpret a statute that is uncertain or ambiguous. Just about everyone, except perhaps Justice Scalia, would agree that judges have the authority to interpret statutes in that event.

When the statute is clear, however, it will be applied by this Court as written, without the use of judicial exceptions or doctrines which were used in the past to soften or eviscerate part of the statutory plan in service of a concept of abstract "fairness".

Consider the Cameron decision itself. Your impression was that it is rather simple and obvious that the tolling provision should apply to the one-year-back rule (as it is known) governing no-fault insurance claims for first-party medical benefits. Your impression, however, was based on a point that you did not immediately see. The tolling provision says that it applies to an "action under this act", that is, lawsuits brought under the Revised Judicature Act (RJA). The Court ruled the way that it did because a no-fault auto insurance claim is not brought under the RJA, but under the No-fault Act, a different statute entirely. It found that the Legislature intended, by using the phrase "under this act", that the tolling of the statute of limitations during minority should apply only to civil lawsuits brought under the RJA, and not to claims under other statutes.

It has been recognized for many years in this state that the one-year-back rule is not a statute of limitations. It is a provision which limits the extent of recovery even in a lawsuit which is filed timely.

The decision by Michigan courts in years past to apply an exception to the one-year-back rule for minors was a judicial gloss on the statute, adopted in the interest of "fairness" to minors.

This Court believes that decisions as to what is fair and not fair should be made by the Legislature, not by the courts. It has been pretty consistent on points like this over the last several years. As a result of this stance, it has generated a good many opinions on statutory interpretation issues during that time.

Posted by: M. Sean Fosmire | Sep 3, 2006 6:04:57 AM

Thanks - that is extremely helpful and very insightful.

It is interesting, because the debate there often is at the core in statutory interpretation generally: unjustice in a particular case versus "adherence" to text. I can't believe that the judicial function is to blindly apply statutes without regard to justice where it is (or at least from my distance from the case) seems pretty obvious what the intended, and just, result is.

Thank you for the insight. I appreciate it. We have several Michigan cases in our book, and I wondered what was behind the heated, open debate. Now I think I'm beginning to know!

Posted by: David Hricik | Sep 3, 2006 6:21:15 AM

Oh god. Opinions like this tend to bring all textualists into disrepute. This doesn't seem like a "texualist" opinion, but rather just a "stupid" opinion.

I've reviewed only the excerpted portions, and am going to plow through the rest later. I can't believe that a fair, textual reading of the statute would lead one to conclude that one can bring a claim for damages more than one year since the occurrence of the damages, but at the same time bar him from recovery. “[I]t is our role to make sense rather than nonsense out of the corpus juris.” W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 101 (1991) (Scalia, J.).

It seems like the Michigan Supreme Court adhered to strict literalism rather than textualism...I hope that people don't read this opinion as an indictment of textualism, but instead as an instance of literalism gone bad.

As an aside, does anyone know if a DPC challenge can be brought in federal court based on these unfortunate series of events? (I know nothing about that clause, but do hope that there is another possibility for judicial review of this.)

Posted by: andy | Sep 3, 2006 8:12:16 AM

"Your impression, however, was based on a point that you did not immediately see....The Court ruled the way that it did because a no-fault auto insurance claim is not brought under the RJA, but under the No-fault Act, a different statute entirely. It found that the Legislature intended, by using the phrase "under this act", that the tolling of the statute of limitations during minority should apply only to civil lawsuits brought under the RJA, and not to claims under other statutes."

Didn't the court explicitly refuse to address that issue?:

"Because we conclude that the minority/insanity tolling provision in MCL 600.5851(1) does not apply to the one-year-back rule in MCL 500.3145(1),
we find it unnecessary in this case to reach the broader question whether the legislative amendments in 1993 PA 78 limit the applicability of the
minority/insanity tolling provision to causes of action for which the applicable statute of limitations is set forth in the RJA. Because the
Court of Appeals unnecessarily addressed this broader issue, its holding in this regard is vacated."

--

after examining the opinions, i think it's a closer question that i originally thought. not totally sure how i would decide.

Posted by: andy | Sep 3, 2006 10:42:19 AM

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