Apsey v. Memorial Hospital

120 477 Mich 120 v MEMORIAL

APSEY HOSPITAL May 1, Docket No. 129134. Decided 2007. Apsey Apsey,Jr., brought malpractice

Sue H. and Robert a medical against Hospital; action in the Shiawassee Circuit Court Memorial D.O.; Tobe, Deering, D.O.; Deering, Russell H. H. James James H. D.O., PC.; Radiology Consultants, and Shiawassee EC. The trial judge, Lostracco, J., granted summary disposition Gerald D. for the accompanying defendants because affidavit of merit the com- by plaint Pennsylvania notary public, was a notarized but did not notary’s authority a required include court certification of the as 600.2102(4). by judge MCL The found that this rendered the nudity complaint plaintiffs ap- affidavit a and the invalid. The pealed, alleging that the affidavit was sufficient under MCL Recognition Acknowledg- section Uniform of (URAA), seq. Act Appeals, ments 565.261 et of The Court Cavanagh, EJ., Gage, JJ., opinion and Jansen and affirmed designated published opinion per curiam, April 19, as a issued ( 251110). granted 2005 Docket No. of The Court then opinion unpublished reconsideration and vacated its earlier in an (Docket order, 251110). 2, entered June No. On reconsidera- tion, Appeals, (Cavanagh, EJ., the Court and JJ. Gage, Jansen dissenting), proceedings, reversed and remanded further es- sentially reaffirming prior opinion, its which held that the URAA specific requirements did not more diminish the formal and 600.2102(4) requirements and these more formal con- officially trolled when an affidavit is to be received and considered judiciary. Appeals, however, gave opinion The Court of prospective only application, because it would be unfair dismiss plaintiffs’ case because of their reliance on the URAA. 266 App defendants, exception Mich The with the sought Hospital, appeal Supreme Court, Memorial leave to in the plaintiffs sought appeal cross-appellants. leave to Supreme argument Court directed the clerk to schedule oral on grant applications peremptory action, whether to take or other (2006), argument. Mich and heard oral Memorial joined opinion Taylor In an Justice Chief Justice Kelly, Supreme and Justices Corrigan, Cavanagh, Weaver, held,-. provides method The URAA an additional alternative method, method proving an additional the URAA notarial acts. As 600.2102(4) replace MCL method. not the earlier-enacted does 600.2102(4) by is the remains an MCL not invalidated URAA and partyA method of of out-of-state affidavits. additional attestation 600.2102(4) may an MCL use either method to validate affidavit. nugatory provides for the Governor to not rendered because appoint affidavits. a commissioner to authenticate out-of-state Although likely not be under the such affidavits would admissible 600.2102(4), URAA, they and, would admissible under MCL be 600.2102(4) thus, nugatory by Supreme MCL is not rendered the 600.2102(4) that the URAA and MCL Court’s alternative, plaintiffs’ coequal provide was methods. affidavit and valid admissible. joined concurring, by stated Justice Justice Cavanagh, Kelly, 600.2102(4) majority’s interpretation

that the of MCL and the supported supplied URAA is further written material to the Michigan Legislature before the URAA. Law it enacted Both the report prefatory Review Commission’s on the URAA and the note prepared by to the URAA the National Conference of Commission- ers on Uniform State indicated that URAA was meant to Laws the provide of that no additional method authentication and existing fully statutes to effectuate the had to be overturned retaining Legislature URAA. In the did not intend Moreover, prevail it to over the failed the URAA. Court of interpret uniformly interpretations the URAA with the of other to enacting required the states URAA as MCL 565.269. only concurring in the to reverse the Justice result Young, Appeals, dissent each Court of stated that the and the compelling of the URAA MCL 600.2102 offered construction and (RJA) that, Revised Act because of the of the Judicature statutes, unique nature the conflict between these neither majority’s entirely unfaithful to nor dissent’s construction statutory language departs exacting judicial philoso- from Young urged Supreme years. phy in recent Justice Legislature dispel generated by and the the confusion the URAA by majority reached because RJA. He concurred with the result in URAA an to the RJA for created alternative overlap proving the result notarial acts where the two and because unsettling Michigan. disruptive to the in is least rule law 477 Mich 120 Reversed proceedings. and remanded to trial for court further dissenting, deny Justice appeal, would leave to Markman, uphold judgment Appeals, of the Court of and call on the promptly clarify concerning its intentions the need foreign Michigan judicial certification of affidavits used in proceedings. He would reconcile and harmonize MCL 565.268 of the URAA and MCL 600.2102 of the Revised Judicature Act recognizing § applies judicial to the use of affidavits in proceedings applies and the URAA to all uses of affidavits outside scope judicial proceedings, respecting thus both the lan- guage § foreign in 2102 that affidavits “must be authenticated” procedures under the provision set language forth and the “provides in MCL 565.268 that the URAA an additional method of acts,” scope notarial judicial proceed- albeit outside the ings. perfect provisions While a harmonization of these is not possible, gives a harmonization that meaning reasonable to both provisions preferred majority’s “harmonization,” should be to the gives meaning which § no at all to 2102. Negligence — — Malpractice — Medical Affidavits of Merit Notarization. authenticating

The methods for provided out-of-state affidavits 600.2102(4) of the Revised Judicature Act and in the Uni- Recognition form Acknowledgments Act, seq., MCL 565.261 et alternative, coequal are authentication, means for such and a party may use either method to validate an affidavit. Granzotto, Mark (by EC. Mark Granzotto), and Jef- Zilinski, frey S. for Sue H. Apsey and Robert Apsey, Jr. Cline, Cline, (by Glenn M. Simmington and Griffin Brown), Jose T. for Memorial Hospital. Coté,

Willingham & EC. (by Michael W. Stephenson sandMatthew K. Eayok), Grover, scadHackney, Hoover & (by Bean Randy J. Hackney Suhhi), and Loretta B. for Tobe, Russell H. D.O.; James H. Deering, D.O.; James H. Deering, D.O., EC.; and Shiawassee Radiology Con- sultants, EC.

Amici Curiae: v Memorial Opinion of the Court Heller, (by Wartell, P.C.

Maddin, Hauser, Roth & R. (by Cary Walinsky & Fink), Cooper and H. Mark Trial Counsel. Defense Michigan for Cooper), General, Casey, Thomas L. Cox, Attorney Michael A. and Robert General, Meingast Heather S. and Solicitor General, Depart- for the Welliver, Attorneys Assistant Community Health. ment of Parker), Christensen, (by David R. PC. & Charfoos and State Section Michigan Negligence ofBar for State Elder Law Section. Michigan Bar of Adams, Adams), and Barbara L. (by & P.C. Shermeta Parker), R. for Christensen, (by PC. David & Charfoos Bar Association. Michigan Creditors Lawyers Trial Asso- Michigan M. for Linda Galante ciation. Weber,

Kerr, (by Joanne Geha Swan- and PC. Russell Schulte, son, Sneyd), and Michael A. Daniel J. Society. Medical Michigan State Firm, (by Googasian), Dean M. The P.C. Googasian Closen, and Michael for National Timothy Reiniger Notary Association. Firm, A. (by George Googasian PC. Googasian Michigan. for State Bar of Googasian),

and Dean M. James, Olsman, (by & PC. Jules B. Olsman Mueller for Better Care. A. for Citizens Phyllis Figiel), of what question presents J. This case KELLY, out-of-state affidavits necessary for authentication to determine whether parties The ask us Michigan. (RJA) 600.2102(4) Act of the Revised Judicature 477 Mich 120 [May- conflicts with the Uniform Recognition of Acknowl- MCL 565.261 et edgements (URAA), Act seq., and to discern the meaning of MCL 565.268 and its relation to 600.2102(4). findWe no conflict between the 600.2102(4). URAA and MCL The Legislature intended the URAA to serve as an alternative to MCL 600.2102(4) for authenticating out-of-state affidavits. Court of erred in concluding that MCL 600.2102(4) controlled because more specific. Therefore, it erroneously found that signature of a notary public on an affidavit taken out of state must “be certified the clerk of any court of record in county where such affidavit shall taken, be under the seal of 600.2102(4). said court.” MCL The Court of Appeals give failed to adequate weight consideration to the language of MCL 565.268 that makes the URAA an additional method of attestation. Apsey Mem Hosp (On Reconsideration), 666; Mich App 702 NW2d We reverse the judgment of the Court of Appeals and remand this case to the trial court further proceedings consistent with opinion. this

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Sue Apsey went to Memorial Healthcare Center for an exploratory laparotomy, which resulted in the re- moval of a large ovarian cyst. Medical complications followed this procedure. allege Plaintiffs that various acts of malpractice medical caused her to become septic, necessitating several follow-up surgeries.

Plaintiffs’ affidavit of merit was prepared in Pennsyl- vania, and notary public who signed it came from state. A normal notarial appears seal on document, but no other certification accompanied seal. Plaintiffs later provided certification, further but Hospital Memorial Opinion of the Court had of limitations statutory period the not until after cause of action. malpractice medical run on their summary disposition plain- Defendants moved for motion. It granted the claims.1 The trial court tiffs’ further certifi- provide failure to plaintiffs’ that found 600.2102(4) rendered required cation as result, As a notarization insufficient. out-of-state nullity. Without the affidavit was ruled affidavit, complaint complete, was not plaintiffs’ having action failed for never been their cause of commenced. properly reconsideration, arguing that

Plaintiffs moved for under but the the affidavit was sufficient Although it did not trial court denied reconsideration. reasoning, compliance the court stated give its changed not have its decision. MCL 565.262 would with opinion an Appeals On the Court of issued appeal, that, basing It if it were its decision April 2005. stated URAA, the affidavit in this case would be solely on the 600.2102(4) changed this. But it found that MCL valid. 600.2192 significance in the fact that MCL It found RJA, material pre- in the which deals with appears that, It reasoned on the other sented to the courts. hand, among governing the URAA the statutes appears of real It concluded that the conveyance property. to the URAA’s is not on documents submitted emphasis courts. focused on the final

The Court of also Appeals in this act dimin- “Nothing in MCL 565.268: sentence notarial recognition accorded to ishes or invalidates that this It reasoned acts other laws of this state.” appellant in this Court. Memorial is not Defendant Subsequent opinion are to defendants in this to “defendants” references D.O., D.O.; Deering, D.O.; Deering, Tobe, James H. H. James H. Russell Consultants, EC.; Radiology EC. and Shiawasee 477 Mich

sentence indicated that the URAA did not diminish more formal specific requirements of MCL 600.2102(4). And it found that these more formal re- quirements controlled when the affidavit is to be offi- cially received and judiciary. considered Given this, Court of affirmed the trial court’s dismissal of the case in a published opinion curiam per (Docket 19, of the Court of Appeals, April issued 251110). No. 2, 2005,2

On June Appeals granted Court of reconsideration and vacated opinion. 9, On June 2005, it published issued its opinion on reconsideration. decision, In a split of the Court of Appeals past decision, reaffirmed its issuing essentially the opinion. same But it decided to give decision only prospective application. It found that it would be fun- damentally unfair to dismiss plaintiffs’ case of because plaintiffs’ reliance on the URAA. It determined that the justice interests of would best be served by allowing plaintiffs’ claim to proceed. Apsey, 266 Mich at App 681-682.

Judge Mark CAVANAGH dissented. He argued that the URAA provided an alternative method of the notary actually notarized the document. He concluded that the URAA was a response to advances in technology and that the Legislature intended both it and MCL provide 600.2102 to legal methods of authenticating out-of-state affidavits. Id. at 685-686 (CAVANAGH, J., dissenting). sought

Defendants leave to appeal Court, in this plaintiffs sought leave to cross-appeal. This Court di- rected the clerk to argument schedule oral on whether

2 Unpublished order in Docket No. 251110. 127 Memorial v peremptory or take other applications grant 7.302(G)(1). 474 Mich 1135 to MCR pursuant action (2006).

II. STANDARD of review questions are of law statutory interpretation Issues Ameribank, de Dressel v 468 that this Court reviews novo. (2003). 557, 561; 664 The fundamental Mich NW2d is to goal statutory construction primary rule v Legislature’s Twp Secretary intent. Casco effectuate (2005). 571; To State, 566, Mich 701 NW2d task, by reviewing the text of the accomplish this we start statute, and, unambiguous, if it will enforce the we presumed because the statute as written pos- Id. meaning expressed. have intended Whenever sible, meaning. every given word of a statute should be made surplusage And no word should be treated as Warren, 415, 24; n nugatory. 462 Mich People NW2d 691

m. THE URAA PROVIDES AN ALTERNATIVE METHOD OF ATTESTATION AND AUTHENTICATION 600.2102(4) require The URAA and MCL different 600.2102 certifications out-of-state affidavits. MCL provides, part: by any person

In the of cases where law affidavit States, any residing in of the or in another state United country, may judicial foreign required, or he received in state, read, proceedings in this to entitle the same to be it as follows: must be authenticated (4) any If be taken in other of the United such affidavit thereof, any territory may in States or be taken before a by duly appointed and the commissioner commissioned 477 Mich 120 Opinion of the Court therein, governor of this state to take affidavits or before any notary public justice by peace or authorized signa- laws of such state to administer oaths therein. The notary public justice peace, ture such or and the of of fact taking person at the time such of of affidavit notary public whom the same was taken was such before justice peace, by any shall be the clerk court of certified of taken, county record in the where such shall be of affidavit [Emphasis added.] under the seal said court. of 565.262(a) defines “notarial under acts” URAA. It in provides, part:

“Notarial acts” means acts that the laws of this state public perform, including authorize notaries of this state to administering affirmations, taking of oaths and proof acknowledgments instruments, of execution and attesting may performed documents. Notarial acts be out- side this state use in this state with the same effect if performed by notary public by following this state persons pursuant regulations authorized to the laws and governments any other in person addition to other autho- rized the laws of this state: (i) notary public A perform authorized to notarial acts place in the performed. [Emphasis which the act is added.]

It undisputed that an affidavit ais “notarial act” that is controlled the URAA.3 review, On first appear these statutes to be in con- flict. The Court of Appeals majority was troubled and struggled But, this to make the fit together. two attempting them, to harmonize Court of majority severely limited the and application reach fact, applies In defendants concede that the URAA to all notarial acts. judicial proceeding. This would include affidavits offered in a Defendants’ any argument concession undermines that MCL 600.2102 was retained exception judicial to carve out an to the URAA for affidavits used in proceedings. Apsey v Memorial 129 the text of the ways unsupported by in the URAA Legislature. While was URAA and unintended the stat- Appeals the Court of to read appropriate 4 doing so the Court’s method materia pari utes Legislature provided guidance has incorrect. was The Court of read the the URAA. on how to statutes other attempting used it before should have harmonizing the statutes. means of indicated how In MCL 600.2102. MCL meant to interact with URAA was provides: 565.268 date of performed prior

A act effective notarial provides act. This act is not affected this act this Nothing in this method notarial acts. additional recognition accorded to act diminishes or invalidates the [Emphasis added.] notarial acts other laws this state. took note of Although Appeals majority the Court of to the 565.268, it focused on the last sentence that, because the of the others. It reasoned exclusion 600.2102(4), this must diminish MCL URAA does not 600.2102(4) to mean that the intended MCL “4 carry object pari into effect the ‘The of the rule in materia is to purpose legislature a as found in harmonious statutes on sub ” (1994), Southwood, 125, 137; ject.’ Jennings 446 521 230 v Mich NW2d 227, 233; General, quoting Wayne Mich 229 NW 911 Co v Auditor pari which relate to the same Statutes in materia are those things, thing, persons or

person or the same class of or which or purpose. It is rule that in construction of have a common provisions, statute, all particular in the of its or general subject, having relating the same to the same statutes it, together purpose, consti- he read in connection with should times, containing law, tuting although enacted at different one Co, Michigan [Detroit the other. Bell Tel no reference one to (1965).] 543, 558; Mich NW2d 477 Mich 120

Opinion of the Court trump requirements of the URAA. But this reason- ing is not supported by complete text of MCL 565.268.

The final sentence in light must be read of what precedes it. The second sentence of MCL 565.268 indi- cates that the URAA is an additional or alternative method of proving notarial acts. anAs “additional” method, the replace URAA does not the prior method. Instead, it is intended to stand a coequal as with it. Because the two are methods alternative and coequal, the URAA does not diminish invalidate “the recog- nition accorded to notarial acts other laws of this 600.2102(4) state.” MCL Simply, 565.268. MCL is not invalidated the URAA. It remains additional method of attestation of out-of-state affidavits. Because alternatives, the two methods exist as a party may use either to validate an affidavit.

Under the doctrine sociis,5 of noscitur a a phrase must be read in A phrase context. must be construed in light it, of the phrases around not in a vacuum. Its context it gives meaning. Services, v Koontz Ameritech Inc, 304, 318; 466 Mich 645 NW2d 34 Similarly, it is a that, well-settled rule of law when construing a statute, a court must read it as a whole. CG Timmis & Co v Co, Guardian Alarm 416, 421; 468 Mich 662 NW2d (2003); Arrowhead Dev Co v Co Livingston Rd Comm, 505, 516; 413 Mich (1982); 322 NW2d 702 Layton v Seward Corp, 418, 427; 320 Mich 31 NW2d 678 (1948). Without proper rule, adherence to this Court of Appeals could not effectuate the intent behind the URAA. rejected Court of Appeals interpretation we

use in the reading belief that the URAA as an alterna- (7th ed). Dictionary “It is known its associates.” Black’s Law Memorial out-of-state affidavits authenticating tive method 600.2102(4) course, Of a nugatory. render MCL would a a statute such interpret should not reviewing court Warren, 462 Mich at nugatory. render it manner as to when an nugatory A is rendered 429 n 24. statute or effect.6 But our meaning give fails interpretation damage does no such of MCL 565.268 600.2102(4). repeal the URAA does not Because a viable means remains effect as provision the latter If a party out-of-state affidavits. authenticating admitted as it, the affidavit can be chooses to use if had decided to follow just party evidence 600.2102(4) meaning has the same URAA. MCL it did of the URAA as before. effect after the enactment authenticating times, it means of At both was viable an out-of-state affidavit. have Legislature signaled how the could question

We should function clearly its intent URAA more than by stating an alternative to MCL 600.2102 additional method of “provides the URAA need not Legislature notarial acts.” MCL 565.268. The it enacts new every given law in a area before repeal in addition to their operate laws that it intends to has the counterparts. Legislature preexisting and interact as it sees to enact laws to function power so, it Court is bound to honor its fit. And when does this intent. case, intent clear Legislature

In this made its URAA, it By enacting 565.268. through MCL an additional method of authentica- wished to create (7th ed) Dictionary “nugatory” or defines as “of no force Black’s Law effect; useless; invalid.” Mich 120 Opinion op the Court tion.7 We respect Despite likely must this decision. decreased in light rigorous use of the URAA’s less 600.2102(4) MCL requirements, meaning. still has Hence, it is not rendered nugatory.8 600.2102(4)

Also, MCL nugatory is not rendered provides because it for the Governor a appoint commissioner to authenticate out-of-state affidavits. Under language, the statute’s Michigan’s Governor could appoint person who is not a notary to authen- ticate any affidavits in state territory of the United 600.2102(4). States. MCL Such likely affidavits would not be admissible under the URAA. But could they be 600.2102(4). used because of MCL this, Given 600.2102 is not rendered nugatory under interpre- our tation of Instead, the URAA. meaning has valid and effect, if rarely even it is used. Negligence The brief amicus curiae of the Section of the State Bar of Michigan makes the uncontested assertion that 24 states and the District 600.2102(4). comply requirements of Columbia will not with the of MCL heavily populated California, Florida, This list includes states such as Massachusetts, Jersey, may provided New and Texas. This fact have Legislature additional motivation for the to create an additional method authenticating affidavits. rewriting rendering nugatory Justice Markman accuses us of

phrase opinion “must be authenticated” as used MCL 600.2102. This phrase nugatory. noted, does not render the repeatedly As we have 600.2102 still can be used as an alternative means of authentication. If a party method, chooses use this the affidavit still “must be authenti such, cated” in phrase the same manner. As continues to have meaning. rewriting Instead, This effectuating Court is not the statute. it is language intent behind considering written together language MCL 600.2102 with the URAA. The of the URAA change indicates that the intended to MCL 600.2102 to longer authenticating render it no the exclusive means of out-of-state Legislature, affidavits. To discern the true intent of the the statutes must together, be read and no one section should be taken in isolation. This is where Justice Markman’s review fails. 133 v Memorial Opinion of the Court 600.2102 as contrast, application a strict By authenticating affidavits would only method of Only by ignoring nugatory. of MCL 565.268 part render an additional method provides act “[t]his sentence arrive at defendants’ notarial acts” could we earlier, there is no reason outcome. As discussed desired meaning full can both statutes provide to do so when we Therefore, reverse to one another. we as alternatives Appeals.9 of the Court of judgment 9 issues similar to the one we face Courts other states have faced They consistently today. that the uniform act have come to the conclusion Co, Rumph Land authentication. v Lester creates an alternative means of 1147; (1943), provides example. In Ark SW2d 916 an excellent case, predated enactment of the an Arkansas statute that required acknowledgement act uniform by a certificate as to the “the certificate shall be authenticated executed, officer, acknowledg- if the official character of such court, by Deputy a Clerk or Clerk of a

ment is taken or, acknowledgment presiding judge court if the is taken Public, by by Notary Record of the a a Clerk of a Court of County, acknowledgment Parish or District which the 9(2) 1149, quoting § Ark Acts 169 [Id. of 1943 taken.” at added).] (emphasis that, despite language, Supreme this The Arkansas Court concluded system acknowledgement merely an alternative that was statute was acknowledgement the uniform act: words, merely permissive. Acknowl- In other Act 169 of 1943 is taken, just edgments may certified and authenticated still be taken, hand, may heretofore; acknowledgments he on the other Acknowledgment the Uniform certified and authenticated under (1) way; Act, ways open: the old of 1943. Two are which Act 169 (2) way way the same under Act 169 of 1943. Either reaches e., [Rumph, goal: right 1149.] Ark at i. to be recorded. Howard, 188; (1923), Tenn 253 SW 961 First Nat’l Bank v See also 56; Co, Valley App 480 P2d Avco Dev 14 Ariz Nat’l Bank Arizona v 477 Mich 120 Concurring Opinion by Kelly, J. lays Legislature MCL 565.268 out how the intended to deal with MCL 600.2102 and the URAA. The URAA an additional method of authenticating out-of-state affidavits, and either may method be used as an alter- plaintiffs native to other.10 Because complied with URAA, their affidavit was admissible.

tv. conclusion Because of the unambiguous language of MCL 565.268, there is no conflict between the URAA and 600.2102(4). The URAA was enacted as an addi- tional means of dealing with all notarial acts. This includes affidavits. Because of the unambiguous lan- guage of MCL provides URAA an alterna- tive method of authenticating out-of-state affidavits. The Court of Appeals erred in holding that plaintiffs’ affidavit was insufficient and inadmissible despite compliance with the URAA. We reverse the judgment of Appeals Court of and remand this case the trial court for further proceedings. jurisdic- We do not retain tion. C.J., and

Taylor, Cavanagh, Weaver, Corrigan, JJ., concurred J. KELLY, with

KELLY, J. I (concurring). it, Given that authored I fully concur in I opinion. write this sepa- rate concurrence to address additional why reasons I believe the Court has reached the correct conclusion in strongly disagree We with Justice Maekman that the “most obvious reconciling harmonizing” means of provisions these two find exception that MCL 600.2102 to the URAA. Post at 143. carves out Again, give this fails to effect to MCL 565.268. The “most obvious” means accomplishing this task is to follow instructions of the provisions and treat the as alternative means of authentication. v Memorial Concurring J. Kelly, the two explains why further following this case. dem- to coexist and continue means of authentication simply repeal did not why onstrates 600.2102(4). explanation an added It also offers to harmonize MCL attempt the Court of how 600.210(4) of Acknowl- Recognition the Uniform with Legislature’s actually Act subverted edgements intent. 600.2102(4) Uni- and the of MCL

Our (URAA), Act Acknowledgements Recognition form certain written supported by seq., MCL 565.261 et before it Legislature to the supplied matter that was is the importance Of particular enacted the URAA. and rec- report Commission’s Law Revision Michigan was created ommendations. The commission It (LCA), seq. 4.1101 et Council Act MCL Legislative in law to the changes charged recommending with 4.1403. The LCA also created Legislature. MCL It is this Bureau. MCL 4.1105. Legislative Service bills with compare pending responsibility bureau’s MCL avoiding for the conflicts. existing purpose laws 4.1108(a). may legislation also recommend The bureau commission. MCL Council or the Legislative to the Legisla- its recommendations to the Along 4.1109. with proposed bills ture, Legislative may Council submit 4.1104(4). MCL the recommendations. implement brought no Law Revision Commission Michigan in on Legislature’s report attention its conflicts to Rather, the advised report specifically the URAA. in order to repeal any that it need not laws stated, It “The act does not the URAA. fully effectuate legis- repeal any existing the amendment or require in adopted Uniform Act Michigan in but the old lation Commission, Third Michigan ....” Law Revision 477 MICH Concurring Opinion by Kelly, J. Annual Report, 1968. The reason no such action had to be taken of proposed language was because later became MCL 565.268.1 specialized

Given the Michigan function of the Law Commission, Revision report its carries extra weight assisting court’s of statutes. As the Legislature created the commission specifically to aid it in drafting legislation and identifying conflicts law, report is a particularly useful tool in discerning legislative intent. case,

In this the report explains why MCL 600.2102 was retained. The Legislature did repeal not it because the commission advised that there was no need to do so. As the URAA was meant to provide an additional authentication, method of there was no need to repeal MCL Instead, 600.2102. by enacting 565.268, URAA made clear that there would be an additional and alternative method of authenticating affidavits. The report commission’s argument that, belies the by re- taining the Legislature intended it to trump the URAA.

The report specifically indicated to the National Conference of Commissioners on Uniform State Laws prepared the Michigan URAA. Law Revision Commission, Third Annual Report, 1968. The national prepared commissioners 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 provides: MCL 565.268 performed prior A notarial act to the effective date of this act by provides not affected this act. This act an additional method of Nothing notarial acts. in this act diminishes or invalidates recognition accorded to notarial acts other laws of this state. [Emphasis added.] Memorial Concurring J. Kelly, because, like good law. This is 600.2102 remain MCL report, it told Law Revision Commission’s Michigan existing that it need not overturn Legislature prefatory The fully effectuate the URAA. statutes to existing need to amend there was no note stated “in was addi- acknowledgement law because URAA demonstrates statutes. This recognition tion to” other repeal took no action to why 600.2102. why explains these materials provided

The advice it MCL 600.2102 on the books when left And it informs our the URAA. adopted This language provision of MCL 565.268. enactment pro- included to streamline the URAA was dealing a method of by making It did so the URAA cess. any existing additional with notarial acts that was enactment, MCL 600.2102. including before to harmonize MCL Appeals attempted The Court of conflicted attempts 600.2102 with the URAA. But its intent that the URAA be inter- Legislature’s with in other states that have enacted preted as has been inter- “This act shall be so provides: it. MCL 565.269 of those states as to make uniform laws preted 565.269 enact it.” of the term “shall” in MCL which Use Burton v Reed mandatory City Hosp Corp, is a directive. 745, 752; 471 Mich 691 NW2d uniform, the making far the URAA But from gaping exception appli- Appeals interpretation creates to the only Michigan. Contrary requirements cable actually isolated the Court of enacted the every from other state has Michigan helps 565.269 demon- language of MCL URAA. Legislature’s not been the that this could have strate the URAA and MCL intended interaction between 138 477 Mich Opinion by Young, J.

600.2102. The Court Appeals of erred in failing to follow the directive of MCL 565.269.

These materials provide substantial evidence that this Court properly interpreted the statutes this case.

CAVANAGH, J., J. KELLY, concurred with YOUNG, J. (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 compel- ling but competing constructions of the Uniform Rec- (URAA) ognition of Acknowledgements Act and MCL 600.2102 of the Revised (RJA), Judicature Act and, in my view, neither construction is unprincipled.1 Both sides invoke legitimate, well-established canons of statutory construction justify to their respective posi- short, tions. In this is a rare instance where our just It is not struggled members of this Court who have to provisions reconcile the these two statutes. The Court of has Initially, twice considered this issue. specific it held that the more requirements of requirements the RJA controlled over the of the URAA summary disposition and affirmed Apsey in favor of defendants. v Mem Hosp, unpublished opinion per Appeals, curiam of the Court of issued (Docket 251110). April 19, 2005 granting reconsideration, No. After one original panel urged member of the reading statutes, a different of the panel while a continued to hold that the RJA controlled URAA, over the but gave plaintiffs reversed the trial court and opportunity remedy (On Apsey Hosp the defect. v Mem Reconsidera tion), 666; App Moreover, Mich 702 NW2d 870 in their briefs Court, parties filed with this themselves and the numerous amici aligning curiae thoroughly with either side have competing debated the approaches construing Also, the URAA and the RJA. the Court of Appeals subsequently questioned has published correctness of its and, despite decision in this case pending the fact that this case was Court, before this step convening took the special unorthodox panel conflict to consider whether its decision in this case was correct. See White Institute, v Barbara Ann Karmanos Cancer order of the Court (Docket Appeals, 270320). February 23, entered No. Memorial Young, J. yield do not statutory rules conventional reconcile how to regarding answer unequivocal an to conflict. appear that statutes of the two provisions language unambiguous plain, majority honors The that URAA, noting enacted recently more in the “additional creates an that states explicitly statute majority The authenticating notarial acts.2 method” of using believe, Legislature, that the theorizes, correctly I intent, signal to statutory language the appropriate of authen- method a restrictive prescribing capable method as a more lenient approving later tication then expressly enactment without to the prior an alternative no doubt of I have that earlier statute. repealing alternative, more to ability provide Legislature’s having negate to without statutory regime, lenient that The believes restrictive one. more in this an intent clearly signaled such has case. 600.2102 dic- first, that MCL responds, dissent received that are to be affidavits

tates that out-of-state authenticated” “must be judicial proceedings and, requirements, stringent its more accordance with that of the provision, second, specific the more general provision, the more RJA, govern must also The dissent believes URAA, overlap. when the two an insufficient language method” the “additional for both statutes that the intended signal Moreover, the concludes dissent as alternatives. coexist “nugatory” construction renders majority’s that the RJA. more restrictive Importantly, “notarial acts” is the URAA definition of MCL 565.268. by the RJA. MCL

very encompasses also covered those broad and 565.262(a) (“ state the laws of this means acts that ‘Notarial acts’ including perform, the admin public of this state authorize notaries affirmations, taking proof of execution and acknowl istering of oaths and documents.”). instruments, attesting edgements 477 Mich 120 Young, J. majority’s approach

The dissent labels the a “non- interpretation” and a “non-harmonization” of the criticizing my RJA, URAAand the while characteriza- application principles tion of it as a reasonable of basic statutory process, construction.3 In the the dissent suggestion approach recoils at the that his and the majority’s approach are alternatives, reasonable as he only believes that his is the one that truly harmonizes the URAAand the RJA. contrary, explain why

To the the dissent fails to his pre-eminent gives “harmonization” is where the dissent any, weight explicit little, if to the URAA’s statement “provides that it an additional method of no- expressly tarial acts.”4 Given that the URAA encom- passes acts, all notarial if the URAA’smethods are not “additional” to the RJA’s methods where the statutes overlap, phase then I cannot conceive that the “addi- any significance. tional method” has The dissent criti- majority failing give cizes the for to effect to the word prey “must,” but meanwhile falls to the same criticism respect phrase with to the “additional method.” The approach only dissent’s cannot be the true means of majority harmonization where it criticizes the dering statutory language nugatory for ren- proceeds and to do explain why Legis- the same. The dissent does not the all-encompassing lature could not have created an al- methodology proving ternative notarial acts and why superior thus his construction is the harmonization Legislature apparently of the statutes. The intended the URAAand the RJA to coexist as alternatives where they overlap, majority attempted respect and the has to Legislature’s the Therefore, will. I believe that the best 3 Post at 145.

4 MCL 565.268. v Memorial Markman, J. Dissenting both to statutes allows of the two “harmonization” intended. apparently coexist, Legislature as the URAA that the dissent with disagree I also merely the RJA provisions nugatory renders and the bar public because, practice, as a matter more liberal to use the choose might preferentially differing can create two Legislature If the statute. that act, then the the same accomplish to methods fact “nugatory” the other does not render preferred one is Dictionary Heritage The American sense. See legal Edition (1978) College Language, New English invalid; “[h]aving power; no “nugatory” (defining statute”). Foreign affidavits a nugatory inoperative: be certified can still proceedings in judicial be used nor neither invalid will be The RJA under the RJA. this decision. as a result of inoperative readily expose the dissent Although URAA analysis of the in the other’s apparent the flaws either construction that RJA, I cannot conclude and the language statutory unfaithful entirely has that judicial philosophy exacting from departs I believe years. in recent Since this Court marked an alternative in the URAA has created those acts, including notarial RJA for to the join decline to I proceedings, in judicial required that the dissent, I Like the believe dissent. by the generated of the confusion dispel much

should I litigants. future benefit of the RJA for the URAA and time, I favor a However, until do so. it will hope to the disruptive unsettling that is least resolution result the and so I concur with Michigan, in rule of law Appeals. Court of reverse the to I dissent. respectfully I MARKMAN, (dissenting). J. of judgment the uphold appeal to deny leave would 477 MICH Dissenting Opinion Markman, J. Appeals. the I call the Legisla- Court of would also on ture to promptly clarify concerning its intentions the foreign need for the certification of affidavits used in Michigan judicial proceedings. range the amici curiae

Although support from plaintiffs cross-application is impressive— encompass- ing Michigan Lawyers Association, Trial the Michi- Counsel, gan Trial Defense the State Bar of their Michigan— opinion briefs and the majority are ultimately unpersuasive, my in judgment, because each fails to any meaning accord to MCL which foreign states that affidavits “must be authenticated” by the in procedures set forth It not law. to read “technically,” this “narrowly,” “crabbedly,” law “liter- ally,” “unreasonably,” or to “conservatively” conclude that “must be it says. authenticated” means what The majority opinion simply would transform what Legislature has written into “may be authenticated.”1 Although result, I am sympathetic this and would urge the Legislature to consider an amendment to that effect, it authority is not within Court’s modify this language law, the clear even where there is a consensus such within bar for a result.

Unquestionably, considerable confusion is introduced by the Uniform Recognition Acknowledgments Act (URAA), states, which in part: majority opinion asserts that its “does harmonization not render phrase nugatory” party method, “[i]f because a chooses to use this affidavit be in the same manner.” Ante at 132 still ‘must authenticated’ But, course, majority specified opinion’s n 8. party condition— “if a chooses to use this method”— drains remainder of statement of any coherence, very question must controversy— party for this is the in Legislature says “yes,” choose to use this method? The and the opinion says majority opinion “equity” guise “no.” The does statutory interpretation, legal distorting concepts process. both Apsey 143 Memorial Dissenting by Markman, J. of proving an additional method provides

This act or Nothing in this act diminishes invalidates notarial acts. by acts other laws of recognition accorded notarial the 565.268.] [MCL state. this reconciling of and

However, most obvious means the is to 600.2102 and MCL 565.2682 harmonizing MCL only to use of former— the recognize applicable that the specific is the more proceedings— affidavits judicial the best these and therefore latter provisions, of of to the use affidavits applicable only understood as judicial proceedings. the of Such a harmo- scope outside nization, all harmonizations must imperfect while 2102, be, language respect- §of while also respects the URAA, the the of the albeit outside ing language these sphere. perfect harmonization of judicial While gives a harmonization that possible, not provisions is pre- to both should be meaning provisions reasonable no at gives meaning to a that ferred “harmonization” contrast, majority’s In “harmo- provision. all to one nization,” of the fully respecting language while URAA, language no to the respect would accord observed, the Appeals correctly § 2102. As the Court makes certifica- majority’s interpretation “basically 600.2102(4) requirement tion worthless (On Reconsideration), v Mem nugatory.” Hosp 4;n 870 666, 266 Mich 677 NW2d App 702 states, question could have The “We how clearly signaled should as an more its intent that the URAA function stating ‘provides than to MCL 600.2102 URAA alternative ” agree Ante I acts.’ at 131. an additional method notarial hardly However, equally could this. it is true that with concerning signaled clearly § than intent” “have more providing that acts be” authenticated under the certain notarial “must clarity provision. not the procedures of here is issue equally § it with clear 2102. but how to reconcile URAA 477 Mich 120 Dissenting Opinion Markman, J. Young’s concurring

In response opinion, Justice I § do not that the majority opinion assert renders “merely because, as a matter nugatory practice, public might bar choose to preferentially use Rather, the more liberal Ante at I statute.” 141. assert this the majority opinion because “must” with replaces “may,” § thereby “trifling, renders of little or no consequence, inconsequential,” New Webster’s Col- (4th ed)— legiate Dictionary is, that In “nugatory.” so doing, majority the opinion departs from what justice concurring correctly describes as “the exacting judicial philosophy that has marked this in recent years.” Ante at 141.

The concurring also opinion errs in characterizing the dispute majority between the and dissenting opin- ions one in as which the majority adheres to the dispositional rule that “later-in-time” statutes control while the dissent adheres to 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 trump is to other, it is of obligation a court to seek to first or harmonize reconcile so statutes that neither must be trumped out of agree existence. “To make laws harmonize with laws is the best mode of interpreting Halkerston, 70; them.” see Maxims also Nowell v Titan (2002) Co, 478, 483; Ins 466 Mich 648 157 NW2d (“In... tension,... a case of it duty to, is our if possible, reasonably construe them give both so to them.”). each; meaning is, to to harmonize is, That the process harmonization, which is sim- ply another name aspect process for one of the interpretation, precedes application dispositional maxims of the sort the concurring opinion. identified Inc, See United Ins Klapp Group Agency, 468 Mich 145 v Memorial Dissenting Markman, J. opinion under- 459, 473; This 663 NW2d harmonize; opinion does not. No majority to takes occur where one fairly can be said to “harmonization” meaning or practical without utterly ends up statute 677; Haven, 667, 460 Mich v South Koenig effect. (“[A] (1999) meaning to duty give is to court’s NW2d 99 at avoid, possible, and to if all of a statute all sections overly one broad nullifying another.”). a ought interpreted to such “Words ... be 94a. operation.” Reports Coke way as to have some they effect, may are to received with so “Words be Bacon, Maxims, reg 3. “Words effect.” produce some v Livingston, Rickets effectively.” understood should be (NY 1800). Ct, If 97, Sup 2 Johns Cas nugatory § render genuinely does not opinion is concurring difficult opinion, view nugatory ever be rendered imagine when a statue would physi- A statute need not be by judicial construction. and set ablaze in cally legal out of a code ripped merely rendered it is nugatory; in order be bonfire consequence. no that a statute be rendered of necessary Here, § of 2102 transformed from operative word there no circumstance “may,” simply “must” to could ever statutory in which the shell remains from the any applicability pertinence separate have to differentiate concurring opinion fails URAA. is an harmonization— which what imperfect between and a non- necessarily must be— all harmonizations between The difference is difference harmonization. non-interpretation. and a acknowledge I The 2102 and would “problem”— § by the easily quickly remediable as such— contrast, caused to our “problem” Legislature. By the law in man- reading this Court jurisprudence considerably language unsupported ner that is remediable. easily quickly less

Case Details

Case Name: Apsey v. Memorial Hospital

Court Name: Michigan Supreme Court

Date Published: May 1, 2007

Citation: 730 N.W.2d 695

Docket Number: Docket 129134

Court Abbreviation: Mich.