Apsey v. Memorial HospitalApsey v. Memorial Hospital
Lead
This case presents the question of what authentication is necessary for out-of-state affidavits in Michigan. The parties ask us to determine whether
The Court of Appeals erred in concluding that
Sue Apsey went to Memorial Healthcare Center for an exploratory laparotomy, which resulted in the removal of a large ovarian cyst. Medical complications followed this procedure. Plaintiffs allege that various acts of medical malpractice caused her to become septic, necessitating several follow-up surgeries.
Plaintiffs’ affidavit of merit was prepared in Pennsylvania, and the notary public who signed it came from that state. A normal notarial seal appears on the document, but no other certification accompanied the seal. Plaintiffs later provided further certification, but not until after the statutory period of limitations had run on their medical malpractice cause of action.
Defendants moved for summary disposition of plaintiffs’ claims.
Plaintiffs moved for reconsideration, arguing that the affidavit was sufficient under
On appeal, the Court of Appeals issued an opinion in April 2005. It stated that, if it were basing its decision solely on the URAA, the affidavit in this case would be valid. But it found that
The Court of Appeals also focused on the final sentence in
On June 2, 2005,
Defendants sought leave to appeal in this Court, and plaintiffs sought leave to cross-appeal. This Court directed the clerk to schedule oral argument on whether to grant the applications or take other peremptory action pursuant to MCR 7.302(G)(1).
II. STANDARD of review
Issues of statutory interpretation are questions of law that this Court reviews de novo. Dressel v Ameribank,
m. THE URAA PROVIDES AN ALTERNATIVE METHOD OF ATTESTATION AND AUTHENTICATION
The URAA and
In cases where by law the affidavit of any person residing in another state of the United States, or in any foreign country, is required, or may he received in judicial proceedings in this state, to entitle the same to be read, it must be authenticated as follows:
(4) If such affidavit be taken in any other of the United States or in any territory thereof, it may be taken before a commissioner duly appointed and commissioned by the governor of this state to take affidavits therein, or before any notary public or justice of the peace authorized by the laws of such state to administer oaths therein. The signature of such notary public or justice of the peace, and the fact that at the time of the taking of such affidavit the person before whom the same was taken was such notary public or justice of the peace, shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court. [Emphasis added.]
“Notarial acts” means acts that the laws of this state authorize notaries public of this state to perform, including the administering of oaths and affirmations, taking proof of execution and acknowledgments of instruments, and attesting documents. Notarial acts may be performed outside this state for use in this state with the same effect as if performed by a notary public of this state by the following persons authorized pursuant to the laws and regulations of other governments in addition to any other person authorized by the laws of this state:
(i) A notary public authorized to perform notarial acts in the place in which the act is performed. [Emphasis added.]
On first review, these statutes appear to be in conflict. The Court of Appeals majority was troubled by this and struggled to make the two fit together. But, in attempting to harmonize them, the Court of Appeals majority severely limited the reach and application of the URAA in ways unsupported by the text of the URAA and unintended by the Legislature. While it was appropriate for the Court of Appeals to read the statutes in pari materia
In
A notarial act performed prior to the effective date of this act is not affected by this act. This act provides an additional method of proving notarial acts. Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state. [Emphasis added.]
Although the Court of Appeals majority took note of
The final sentence must be read in light of what precedes it. The second sentence of
Under the doctrine of noscitur a sociis,
The Court of Appeals rejected the interpretation we use in the belief that reading the URAA as an alternative method of authenticating out-of-state affidavits would render
Because the URAA does not repeal
We question how the Legislature could have signaled more clearly its intent that the URAA should function as an alternative to
In this case, the Legislature made its intent clear through
By contrast, a strict application of
tv. conclusion
Because of the unambiguous language of
Notes
Defendant Memorial Hospital is not an appellant in this Court. Subsequent references in this opinion to “defendants” are to defendants Russell H. Tobe, D.O.; James H. Deering, D.O.; James H. Deering, D.O., EC.; and Shiawasee Radiology Consultants, EC.
Unpublished order in Docket No. 251110.
In fact, defendants concede that the URAA applies to all notarial acts. This would include affidavits offered in a judicial proceeding. Defendants’ concession undermines any argument that
“ ‘The object of the rule in pari materia is to carry into effect the purpose of the legislature as found in harmonious statutes on a subject.’ ” Jennings v Southwood,
Statutes in pari materia are those which relate to the same person or thing, or the same class of persons or things, or which have a common purpose. It is the rule that in construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should he read in connection with it, as together constituting one law, although enacted at different times, and containing no reference one to the other. [Detroit v Michigan Bell Tel Co,374 Mich 543 , 558;132 NW2d 660 (1965).]
“It is known by its associates.” Black’s Law Dictionary (7th ed).
Black’s Law Dictionary (7th ed) defines “nugatory” as “of no force or effect; useless; invalid.”
The brief amicus curiae of the Negligence Section of the State Bar of Michigan makes the uncontested assertion that 24 states and the District of Columbia will not comply with the requirements of
Justice Markman accuses us of rewriting and rendering nugatory the phrase “must be authenticated” as used in
This Court is not rewriting the statute. Instead, it is effectuating the intent behind the language written by the Legislature and considering
Courts in other states have faced issues similar to the one we face today. They have consistently come to the conclusion that the uniform act creates an alternative means of authentication. Rumph v Lester Land Co,
“the certificate shall be authenticated by a certificate as to the official character of such officer, executed, if the acknowledgment is taken by a Clerk or Deputy Clerk of a court, by the presiding judge of the court or, if the acknowledgment is taken by a Notary Public, by a Clerk of a Court of Record of the County, Parish or District in which the acknowledgment is taken.” [Id. at 1149, quoting § 9(2) of 1943 Ark Acts 169 (emphasis added).]
The Arkansas Supreme Court concluded that, despite this language, the statute was merely a system of acknowledgement that was an alternative to the uniform acknowledgement act:
In other words, Act 169 of 1943 is merely permissive. Acknowledgments may still be taken, certified and authenticated just as heretofore; on the other hand, acknowledgments may he taken, certified and authenticated under the Uniform Acknowledgment Act, which is Act 169 of 1943. Two ways are open: (1) the old way; or (2) the way under Act 169 of 1943. Either way reaches the same goal: i. e., the right to be recorded. [Rumph,205 Ark at 1149 .]
See also First Nat’l Bank v Howard, 148 Tenn 188;
We strongly disagree with Justice Maekman that the “most obvious means of reconciling and harmonizing” these two provisions is to find that
Concurrence Opinion
(concurring). Given that I authored it, I fully concur in the majority opinion. I write this separate concurrence to address additional reasons why I believe the Court has reached the correct conclusion in this case. The following further explains why the two means of authentication continue to coexist and demonstrates why the Legislature did not simply repeal
Our interpretation of
The Michigan Law Revision Commission brought no conflicts to the Legislature’s attention in its report on the URAA. Rather, the report specifically advised the Legislature that it need not repeal any laws in order to fully effectuate the URAA. It stated, “The act does not require the amendment or repeal of any existing legislation in Michigan but the old Uniform Act adopted in 1895 ....” Michigan Law Revision Commission, Third Annual Report, 1968. The reason no such action had to be taken was because of proposed language that later became
Given the specialized function of the Michigan Law Revision Commission, its report carries extra weight in assisting a court’s interpretation of statutes. As the Legislature created the commission specifically to aid it in drafting legislation and identifying conflicts in the law, its report is a particularly useful tool in discerning legislative intent.
In this case, the report explains why
The report specifically indicated to the Legislature that the National Conference of Commissioners on Uniform State Laws prepared the URAA. Michigan Law Revision Commission, Third Annual Report, 1968. The national commissioners prepared a prefatory note to the URAA to aid in its uniform enactment. This note is also a useful tool in discerning the legislative intent behind the URAA and in explaining why both it and
The advice provided by these materials explains why the Legislature left
The Court of Appeals attempted to harmonize
But far from making the URAA uniform, the Court of Appeals interpretation creates a gaping exception applicable only in Michigan. Contrary to the requirements of
These materials provide substantial evidence that this Court properly interpreted the statutes in this case.
A notarial act performed prior to the effective date of this act is not affected by this act. This act provides an additional method of proving notarial acts. Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state. [Emphasis added.]
Concurrence Opinion
(concurring in the result only). I concur in the result to reverse the Court of Appeals. This is a case in which the majority and the dissent offer two compelling but competing constructions of the Uniform Recognition of Acknowledgements Act (URAA) and
The majority honors the plain, unambiguous language in the more recently enacted URAA, noting that the statute explicitly states that it creates an “additional method” of authenticating notarial acts.
The dissent responds, first, that
The dissent labels the majority’s approach a “non-interpretation” and a “non-harmonization” of the URAA and the RJA, while criticizing my characterization of it as a reasonable application of basic principles of statutory construction.
To the contrary, the dissent fails to explain why his “harmonization” is pre-eminent where the dissent gives little, if any, weight to the URAA’s explicit statement that it “provides an additional method of proving notarial acts.”
I also disagree with the dissent that the URAA renders nugatory the provisions of the RJA merely because, as a matter of practice, the public and the bar might preferentially choose to use the more liberal statute. If the Legislature can create two differing methods to accomplish the same act, then the fact that one is preferred does not render the other “nugatory” in a legal sense. See The American Heritage Dictionary of the English Language, New College Edition (1978) (defining “nugatory” as “[h]aving no power; invalid; inoperative: a nugatory statute”). Foreign affidavits to be used in judicial proceedings can still be certified under the RJA. The RJA will be neither invalid nor inoperative as a result of this decision.
Although the majority and the dissent readily expose the flaws apparent in the other’s analysis of the URAA and the RJA, I cannot conclude that either construction is entirely unfaithful to the statutory language or departs from the exacting judicial philosophy that has marked this Court in recent years. Since I believe that the Legislature has created in the URAA an alternative to the RJA for proving notarial acts, including those required in judicial proceedings, I decline to join the dissent. Like the dissent, I believe that the Legislature should dispel much of the confusion generated by the URAA and the RJA for the benefit of future litigants. I hope it will do so. However, until that time, I favor a resolution that is least unsettling and disruptive to the rule of law in Michigan, and so I concur with the result to reverse the Court of Appeals.
It is not just the members of this Court who have struggled to reconcile the provisions of these two statutes. The Court of Appeals has twice considered this issue. Initially, it held that the more specific requirements of the RJA controlled over the requirements of the URAA and affirmed summary disposition in favor of defendants. Apsey v Mem Hosp, unpublished opinion per curiam of the Court of Appeals, issued April 19, 2005 (Docket No. 251110). After granting reconsideration, one member of the original panel urged a different reading of the statutes, while a majority of the panel continued to hold that the RJA controlled over the URAA, but reversed the trial court and gave plaintiffs an opportunity to remedy the defect. Apsey v Mem Hosp (On Reconsideration),
Post at 145.
Dissenting Opinion
(dissenting). I respectfully dissent. I would deny leave to appeal and uphold the judgment of the Court of Appeals. I would also call on the Legislature to promptly clarify its intentions concerning the need for the certification of foreign affidavits used in Michigan judicial proceedings.
Although the range of support from amici curiae for plaintiffs cross-application is impressive— encompassing the Michigan Trial Lawyers Association, the Michigan Defense Trial Counsel, and the State Bar of Michigan— their briefs and the majority opinion are ultimately unpersuasive, in my judgment, because each fails to accord any meaning to
Unquestionably, considerable confusion is introduced by the Uniform Recognition of Acknowledgments Act (URAA), which states, in part:
This act provides an additional method of proving notarial acts. Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state. [MCL 565.268. ]
However, the most obvious means of reconciling and harmonizing
In response to Justice Young’s concurring opinion, I do not assert that the majority opinion renders § 2102 nugatory “merely because, as a matter of practice, the public and the bar might preferentially choose to use the more liberal statute.” Ante at 141. Rather, I assert this because the majority opinion replaces “must” with “may,” and thereby renders § 2102 “trifling, of little or no consequence, inconsequential,” Webster’s New Collegiate Dictionary (4th ed)— that is, “nugatory.” In so doing, the majority opinion departs from what the concurring justice correctly describes as “the exacting judicial philosophy that has marked this Court in recent years.” Ante at 141.
The concurring opinion also errs in characterizing the dispute between the majority and dissenting opinions as one in which the majority adheres to the dispositional rule that “later-in-time” statutes control while the dissent adheres to the rule that more specific statutes control. As useful as such maxims may be where statutes stand in irreconcilable conflict and where it must be determined which is to trump the other, it is first the obligation of a court to seek to harmonize or reconcile statutes so
That is, the process of harmonization, which is simply another name for one aspect of the process of interpretation, precedes the application of dispositional maxims of the sort identified by the concurring opinion. See Klapp v United Ins Group Agency, Inc, 468 Mich 459, 473;
The § 2102 “problem”— and I would acknowledge it as such— is easily and quickly remediable by the Legislature. By contrast, the “problem” caused to our jurisprudence by this Court reading the law in a manner that is unsupported by its language is considerably less easily and quickly remediable.
The majority opinion asserts that its harmonization “does not render the phrase nugatory” because “[i]f a party chooses to use this method, the affidavit still ‘must be authenticated’ in the same manner.” Ante at 132 n 8. But, of course, the majority opinion’s specified condition— “if a party chooses to use this method”— drains the remainder of its statement of any coherence, for this is the very question in controversy— must a party choose to use this method? The Legislature says “yes,” and the majority opinion says “no.” The majority opinion does “equity” in the guise of statutory interpretation, distorting both legal concepts in the process.
The majority states, “We question how the Legislature could have signaled more clearly its intent that the URAA should function as an alternative to