DONAJKOWSKI v ALPENA POWER COMPANY
Docket No. 108468
Supreme Court of Michigan
Argued January 20, 1999. Decided June 30, 1999.
460 Mich. 243
Calendar No. 2
In an opinion by Justice YOUNG, joined by Chief Justice WEAVER, and Justices BRICKLEY, TAYLOR, and CORRIGAN, the Supreme Court held:
Under the Michigan contribution statute,
1. While Michigan common law prohibits an intentional tortfeasor from seeking contribution, the Michigan contribution statute,
2. The Civil Rights Act did not impliedly repeal the contribution statute. A repeal may be inferred when it is clear that a subsequent legislative act conflicts with a prior act, or when a subsequent act of the Legislature clearly is intended to occupy the entire field covered by a prior enactment. In this case, the union failed to meet the burden of establishing either of these criteria. Nothing in the Civil
Affirmed.
Justice KELLY, joined by Justice CAVANAGH, dissenting, stated that the defendant employer may not seek contribution from the union for intentional sexual discrimination arising from a collective bargaining agreement provision.
The majority has erroneously read into § 2925a a right to contribution among wilful tortfeasors, despite the fact that the right is lacking from the manifest intent of the Legislature as derived from the words of the act itself. Rather, the language of the statute indicates that the Legislature intended only to permit contribution among negligent, or nonintentional, tortfeasors.
The Fishman Group (by Steven J. Fishman, Paul D. Kramer, Donald H. Scharg and Thomas A. Pinch) for plaintiffs.
Sachs, Waldman, O‘Hare, Helveston, Bogas & McIntosh, P.C. (by Mary Ellen Gurewitz, John R. Runyan, and Marshall J. Widick), for third-party defendant-appellant, Local 286, Utility Workers of America, AFL-CIO.
Amicus Curiae:
Jordan Rossen, General Counsel, and Georgi-Ann Oshagan, Associate General Counsel, for International Union, UAW.
YOUNG, J. We granted leave in this case to address the scope of the Michigan contribution statute,
I
FACTS AND PROCEDURAL HISTORY
Plaintiff Christina Donajkowski began working for defendаnt Alpena Power Company in 1985. In 1986, she became a meter reader, and the first female member of Local 286, Utility Workers of America, AFL-CIO.1 Plaintiff Beth McDonald joined Donajkowski as a meter reader and member of the union in 1989. Later that year, Alpena Power and the union negotiated a three-year collective bargaining agreement that created a new classification entitled “general labor/meter reader.” Donajkowski and McDonald were placed in this new classification. Pursuant to the agreement, the wage range for the new classification was between $7.50 and $10.50 an hour.
Because the members of the new classification, which included two men, had been making more than $10.50 an hour before the agreement, the agreement froze their wages. The two men in the general labor/meter reader classification moved into other classifications before the agreement took effect, leaving only plaintiffs Donajkowski and McDonald in the general labor/meter reader classification. The agreement provided pay increases for the other union classifications. There were no women in these other classifications.
When Alpena Power and the union could not agree on a new contract in 1992, Alpena Power instituted the terms of its last best offer and union members worked without a contract. Defendant‘s last best offer maintained the basic structure of the 1989 collective bargaining agreement insofar as it maintained the maximum wage for the general labor/meter reader classification while providing increases for the other classifications. The effect of these terms was to freeze the wages of the three female union members—all of whom were in the general labor/meter reader classification—while granting increases for the remaining classifications, which were populated by male union members. However, nonunion female employees also received pay increases during this period.
In 1993, plaintiffs and the union filed suit against Alpena Power alleging sex discrimination in violation of the Civil Rights Act,
II
THE PARTIES’ ARGUMENTS
The parties correctly assert that a claim for sex discrimination sounds in tort. See Stimson v Michigan Bell Telephone Co, 77 Mich App 361, 366, n 3; 258 NW2d 227 (1977). Our Legislature has declared that there is a right of contribution among joint tortfeasors:
Except as otherwise provided in this act, when 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even
though judgment has not been recovered against all or any of them. [ MCL 600.2925a(1) ;MSA 27A.2925(1)(1) .]
The defendant employer contends that, to the extent it is liable to plaintiffs for sex discrimination, the union is liable as a joint tortfeasor under the statute. For its part, the union contends: (1) an intentional tortfeasor may not seek contribution, and (2) the Civil Rights Act should be construed as prohibiting any attempt by an employer to seek contribution from a union.
As explained below, we are not persuaded by the union‘s arguments, and we conclude, as did the trial court and the Court of Appeals, that the plain language of the contribution statute рermits defendant to pursue a third-party claim against the union.
III
STANDARD OF REVIEW
We review questions of statutory construction de novo. McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). In construing a statute, our purpose is to ascertain and to give effect to the Legislature‘s intent. Reardon v Mental Health Dep‘t, 430 Mich 398, 407; 424 NW2d 248 (1988). If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). We must give the words of a statute their
IV
ANALYSIS
A. THE CONTRIBUTION STATUTE
At common law, courts have often drawn distinctions between intentional and nonintentional tortfeasors vis-à-vis their right to seek contribution.5 Indeed, Michigan common law prohibits an intentional tortfeasor from seeking contribution.6 However, our Legislature has not seen fit to maintain that common-law distinction in our statutory scheme. Thus, unlike a number of other states, our contribution statute does not include any limitation or prohibition concerning intentional tortfeasors.7 Whatever the pol-
The union relies upon a number of cases addressing the distinction between intentional and nonintentional tortfeasors. Most of those cases dealt with the common law. See Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970), overruled in
The only Michigan case that directly addresses the statutory contribution rule is Hunt v Chrysler, 68 Mich App 744, 747-750; 244 NW2d 16 (1976), where the Court concluded that an intentional tortfeasor may bring an action for contribution under the statute. The union does cite one federal case, In re Air Crash at Detroit Metropolitan Airport, 791 F Supp 1204, 1226 (ED Mich, 1992), wherein the federal district court stated that “Michigan courts have ruled that an intentional tortfeasor may not recover contribution under the [contribution statute].” However the court in In re Air Crash was mistaken; no Michigan court has so held. The court in In re Air Crash confused the Michigan common-law rule with that established in the Michigan contribution statute, and essentially relied on dicta from the cases it cited for this proposition.9 We conclude that, on the basis of its plain and unambiguous terms, the Michigan contribu-
B. THE CIVIL RIGHTS ACT
The union also argues that the Civil Rights Act should be read to preclude an action for contribution brought by an employer against a union. The union does not point to any language in the act requiring or even hinting at such a result. Instead, the union relies on a case involving title VII, the federal counterpart to our Civil Rights Act. In Northwest Airlines v Transport Workers Union of America, 451 US 77, 90-95; 101 S Ct 1571; 67 L Ed 2d 750 (1981), the United States Supreme Court found that title VII did not provide an employer charged with a civil rights violation with a right to contribution from the union. The Court also concluded that, in the absence of congressional authorization, the Court was without authority to grant an employer such a right. Id. at 95-98.
While we often examine federal law in construing our Civil Rights Act, Michigan law is not analogous to federal law on this point. Under federal law, there is no statutory right to contribution, whereas in Michigan there is. Under these circumstances, Northwest Airlines is wholly inapplicable.11
We will only infer the repeal of a statute in narrow circumstances, and there is a strong presumption against such a finding. House Speaker v State Administrative Bd, 441 Mich 547, 563; 495 NW2d 539 (1993). A repeal may be inferred: (1) when it is clear that a subsequent legislative act conflicts with a prior act, or (2) when a subsequent act of the Legislature clearly is intended to occupy the entire field covered by a prior enactment. Id. Here, the union has failed to meet the heavy burden of establishing either of these criteria. Nothing in the Civil Rights Act directly conflicts with the contribution statute, nor is there any evidence that the Civil Rights Act was intended to address, much less completely occupy, the field of contribution. Under these circumstances, there is absolutely no basis for finding that the contribution statute has been impliedly repealed by the Civil Rights Act.
C. PUBLIC POLICY
Finally, the union argues that public policy precludes an employer from seeking contribution from a union. We are unaware of, and the union has failed to identify the source of, any free-standing public policy that would operate to protect a wrongdoer from paying for its own discriminatory actions. Indeed, the articulated legislative policy of this state is that discrimination in employment on the basis of sex is forbidden.
V
RESPONSE TO THE DISSENT
We find it easier to consolidate our response to the dissent, rather than providing it piecemeal.
The dissent has taken on the leviathan burden of justifying the position that plaintiffs’ union may escape liability for its alleged role in fostering employment discrimination in the workplace. Stripped to its essentials, the dissent would hold that a union may conspire to discriminate on the basis of sex, and, when called to account at the bar of justice for its role in that conspiracy by the others charged, escape liability. Thus, the dissent would grant this union a blanket immunity from contribution that is unavailable to any other person, corporation, or entity in our state.
To make the matter plain, the legal question posed by this case is simple: Where a plaintiff has alleged that the terms of a collective bargaining agreement negotiated by her employer and her union discriminate against her on the basis of her gender, may the union escape liability for its asserted complicity in that act of discrimination? As set forth above, we hold that the union is accountable for its role in any alleged discrimination in the workplace and is subject to a contribution action as a joint tortfeasor. By contrast, the dissent concludes that a union alleged to be
The dissent‘s answer to this charge is that the plaintiffs are free to file a discrimination suit against their union. The dissent fails to point out that this is true in all cases involving joint tortfeasors; a plaintiff is always free to file suit against any or all tortfeasors. Yet, our Legislature has seen fit to allow contribution among joint tortfeasors, even when the plaintiff chooses not to sue all of them.13 The dissent‘s recognition that plaintiffs are free to sue their union also sеems to contradict the dissent‘s primary argument, that plaintiffs here (and, perhaps, plaintiffs in general) need the assistance of their union in order to maintain a discrimination suit. We find it odd that the dissent urges union litigation support as its primary policy rationale for avoiding contribution liability. While assisting union members with litigation may be a laudatory union object, surely it is secondary to the union‘s core duty to negotiate and administer labor agreements. The irony here is that plaintiffs contend that their union negotiated pay provisions that were
A. THE DISSENT‘S STATUTORY CONSTRUCTION ARGUMENT
The linchpin of the dissent‘s argument that a union charged with discrimination in the workplace may not be held accountable for such discrimination is its “construction” of the contribution statute. The dissent acknowledges that the contribution statute, according to its plain terms, allows contribution among “joint tortfeasors.” The dissent further recognizes that the statute does not distinguish between joint tortfeasors whose conduct injures by intentional design and those whose conduct injures by negligence. Notwithstanding the absence of any supporting language in the statute, the dissent finds a legislative intent to distinguish between the two kinds of joint tortfeasors.
The dissent relies in part on one of our longstanding rules of statutory construction—that statutes enacted in derogation of the common law are narrowly construed. After properly stating the rule, however, the dissent immediately misapplies it.14
Despite evidence of a legislative intent to eliminate any distinction between negligent and intentional tortfeasors, the dissent attempts to revive the contrary dicta from Moyses by pointing out that our Legislature has not seen fit to overrule that dicta. Aside from the obvious fallacy in this argument (why would this or any other court expect the Legislature to react to dicta?), we note that the Legislature only amended
In response to the dissent‘s legislative acquiescence argument, we must take this opportunity to observe that legislative acquiescence is an exceedingly poor indicator of legislative intent. Justice TAYLOR took great pains to point this out last term in Rogers v Detroit, 457 Mich 125, 163-166; 579 NW2d 840 (1998), and his remarks regarding the majority opinion in that case apply equally to the dissent here:
[The majority‘s legislative acquiescence argument] is remarkable indeed and is perhaps what former Harvard University Law School Professor Thomas Reed Powell meant when he said in discussing legislative acquiescence arguments of this type:
“[C]ongress has a wonderful power that only judges and lawyers know about. Congress has a power to keep
I believe that the majority‘s legislative factual history argument ... is, as Justice Scalia so aptly said of similar legislative history arguments, “frail substitute[] for bicameral vote upon the text of a law and its presentment to the [executive].” Thompson v Thompson, 484 US 174, 192; 108 S Ct 513; 98 L Ed 2d 512 (1988). In fact, if such “history” tells us anything, its meaning eludes me. At the very most, it is a “history” that allows the reader, with equal plausibility, to pose a conclusion of his own that differs from that of the majority.2
As is clear, in my view, this case is an excellent example of the misuse of the doctrine of legislative acquiescence. Indeed, whether it can ever be appropriate to use legislative acquiescence has in the past been the subject of heated debate on this Court. In Autio v Proksch Construction Co, 377 Mich 517, 527; 141 NW2d 81 (1966), Justice SOURIS described it as “a pernicious evil designed to relieve a court of its duty of self-correction” and indicated that it “has been examined and rejected by this Court before, but its current resurrection demands we perform the task once more lest our silence be construed as signifying its unanswerable validity.” In the course of his discussion, Justice SOURIS quoted language from Van Dorpel v Haven-Busch Co, 350 Mich 135, 145-146; 85 NW2d 97 (1957), which is worthy of consideration:
“Now this beguiling doctrine of legislative assent by silence possesses a certain undeniable logic and charm. Nor are we oblivious to the flattery implicit therein; double flattery, in fact; flattery both to the profound learning and wisdom of the particular supreme court which has spoken, and flattery to a presumably alert and еagerly responsive State legislature. One pictures the legislators of our various States periodically clamoring and elbowing each other in their zeal to get at the pearls of wisdom embalmed in the
latest decisions and advance sheets of their respective supreme courts—and thenceforth indicating their unbounded approval by a vast and permanent silence.
“Yet there are several dark shadows in this picture. For one, it suggests a legislative passion for reading and heeding the decisions of our supreme courts which we suspect may be scarcely borne out by the facts. For another, pushed too far such a doctrine suggests the interesting proposition that it is the legislatures which have now become the ultimate courts of last resort in our various States; that if they delay long enough to correct our errors those errors thus become both respectable and immutably frozen; and, finally, the larger and more dismal corollary that if enough people persist long enough in ignoring an injustice it thereby becomes just.”
If it has not been clear in our prеvious decisions, we wish to make it clear now: “legislative acquiescence” is a highly disfavored doctrine of statutory construction; sound principles of statutory construction require that Michigan courts determine the Legislature‘s intent from its words, not from its silence.
Finally, we note that the dissent would use legislative acquiescence to bind the Legislature not only to our past holdings, but also to mere dicta. We think it presumptuous to bind the Legislature to that which we do not even bind ourselves. Hett v Duffy, 346 Mich 456, 461; 78 NW2d 284 (1956), overruled on other grounds in Weller v Mancha (On Rehearing), 353 Mich 189, 194; 91 NW2d 352 (1958).18 Heaven forbid if the Legislature is obligated to respond to every
The language of the contribution statute plainly allows contribution among joint tortfeasors of all stripes. We are unconvinced by the dissent‘s effort to look beyond the words of the statute and find a distinction between intentional and negligent tortfeasors that is otherwise unapparent.
B. THE DISSENT‘S VIEWS ON THE CIVIL RIGHTS ACT
Again we agree with the generic proposition propounded by the dissent that Michigan courts frequently look to the federal law arising under title VII for guidance in construing our own Civil Rights Act. Koester v City of Novi, 458 Mich 1, 11-12; 580 NW2d 835 (1998).
However, we disagree that the Northwest Airlines decision provides aid to the union‘s attempt to avoid contribution liability for discrimination in which the union participated. As stated by the Supreme Court in Northwest, title VII contained no provision touching upon contribution and there was no federal statute authorizing contribution. In the absence of any federal statute supporting a contribution action, the Supreme Court declined to impose one, believing this to be a legislative prerogative of the Congress. This is precisely the opposite of our situation; Michigan‘s Legislature has exercised its prerogative by creating a general right of contribution among joint tortfeasors. This being the case, Northwest is entirely inapposite and provides no support for the dissent‘s position.
As stated previously, we find no basis for a “free floating” public policy argument that the union may escape liability for its alleged participation in gender discrimination. Without a single citation of authority, the dissent suggests a public policy based upon the following:
A union is designed to advance the interests of its members. . . . By permitting an employer to seek contribution from [it], the majority creates a conflict of interest, placing a union and its members in an adversarial posture . . . [and] denying [employees] access to legal representation from their unions. [Post at 275-276.]
We find no inherent contradiction between the union‘s duty to its members and its obligation to avoid participating in discriminatory practices prohibited by the
Surely, all would agree that the goal of the
VI
CONCLUSION
In light of the plain language of the contribution statute, we find no evidence of a legislative intent to preclude an employer from seeking contribution from a union in this context. Accordingly, we affirm the decision of the Court of Appeals.
WEAVER, C.J., and BRICKLEY, TAYLOR, and CORRIGAN, JJ., concurred with YOUNG, J.
KELLY, J. (dissenting). The majority has erred by holding that an employer, sued for discrimination under a collective bargaining agreement, may seek contribution from the union that negotiated the agree-
The effect of the majority opinion is to deprive union members of union legal representation under the guise of vindicating their Michigan civil rights. Although the majority purports to advance the laudable goal of eradicating discriminatory employment practices, it undermines this goal by placing employees and their unions in an adversarial position. In addition, it prohibits employees from acquiring legal representation from their union, thereby increasing the costs of litigation.
STANDARD OF REVIEW
This case involves statutory interpretation, which is a question of law subject to de novo review. Co Bd of Co Rd Comm‘rs v Michigan Property & Casualty Guaranty Ass‘n, 456 Mich 590, 610; 575 NW2d 751 (1998). The primary purpose of statutory interpretation is to ascertаin and effectuate legislative intent. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998).
When promulgating new laws, the Legislature is presumed to be familiar with the rules of statutory construction and existing laws on the same subject. Malcolm v East Detroit, 437 Mich 132, 139; 468 NW2d 479 (1991); People v Tracy, 186 Mich App 171, 177; 463 NW2d 457 (1990). Therefore, the language of a statute should be read in light of previously established rules of common law. Nummer v Dep‘t of Treasury, 448 Mich 534, 544; 533 NW2d 250 (1995).
Any word or phrase that has a unique meaning at common law should be interpreted as having the same meaning when used in a statute dealing with the same subject. Pulver v Dundee Cement Co, 445 Mich 68, 75; 515 NW2d 728 (1994). Because well-settled common-law principles must not be abolished by implication, an ambiguous statute that contravenes common law should be interpreted to make the least change in the common law. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 652-653; 513 NW2d 799 (1994).
THE CONTRIBUTION STATUTE
At common law, as a general rule, contribution was not recoverable between joint wrongdoers or tortfeasors. O‘Dowd v General Motors Corp, 419 Mich 597, 603; 358 NW2d 553 (1984). The Legislature partially abrogated this common-law bar by adopting
In Moyses, this Court recognized that the phrase “joint tortfeasor” had a unique meaning at common law. Id., 329-331. It explained:
In general [“(t)he legal phrase ‘joint tortfeasor‘“] was, and still is, that where two (or more) persons owe to another the same duty and by their common neglect of that
duty such other is injured, the two (or more) have committed a joint tort and therefore are joint tortfeasors. [Id., 329 (emphasis added).]
Although the majority attempts to circumvent this unique meaning, it fails to provide support for the assertion that “joint tortfeasor” did not acquire a unique meaning. Moreover, Moyses rejected the majority‘s conclusions by explicitly excepting wilful or intentional wrongdoers.
Addressing whether joint tortfeasors are entitled to seek contribution under then
Stimulated by the national advancement of principles set forth in the Uniform Contribution Among Tortfeasors Act [UCATA] . . . the tendency of other courts to provide by judicial action the right of contribution on behalf of all but intentional wrongdoers, and the compelling admonitions of modern writers like Prosser,4 we have decided to overrule what is left of Michigan‘s common-law bar of contribution between or among “wrong-doers,” wilful or intentional wrongdoers excepted. [Id., 334 (emphasis added).]
The present version of
Except as otherwise provided in this act, when 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for thе same wrong-ful death, there is a right of contribution among them even
though judgment has not been recovered against all or any of them. [ MCL 600.2925a(1) ;MSA 27A.2925(1)(1) .]
The majority correctly observes the absence of a right of contribution among wilful tortfeasors in this provision. Emphasizing that the Michigan contribution statute is based on the UCATA, the majority finds it “particularly noteworthy that the Michigan Legislature declined to adopt the subsection of the uniform act prohibiting an intentional tortfeasor from seeking contribution.” Ante at 250, n 7.
However, the majority disregards the fact that the predecessor to
The majority also cites Autio v Proksch Construction Co6 for Justice SOURIS’ views regarding legislative acquiescence. Ante at 260. Coincidentally, Justice BLACK‘S poignant response to those comments is equally applicable today:
In the resultant circumstances it is--for the time being--useless to write much more against what I look upon as a judicial disease; a disease which--if not quickly cured--is bound to destroy the only substance which sustains our judicial system. That substance is public confidence in the intellectually steadfast devotion of judges to law as it is written; distinguished from law judges want ordained. . . . The time has come for all lawyers and judges of Michigan
to resign themselves to this real, if temporal, usurpation of legislative power. Too, the minority seated here must philosophically accept the situation until our personnel is changed. . . . * * *
At one time students and citizens, lay and professional, were taught that everyone is presumed to know the law, and hence is duty bound to act in accord therewith. But how may even skilled lawyers, and correspondingly skilled subordinate court judges, “know the law” when they are taught that the law in the books is not law at all, unless upon litigatory test a bare majority of this very ordinary Supreme Court happens to like it? [Id., 540-542 (BLACK, J., dissenting).]
Regarding “legislative acquiescence,” Justice BLACK added:
“[T]he doctrine of legislative reliance upon and acceptance of judicial interpretation has its value and its place. . . . In today‘s instance, unless we are to ignore a constantly employed axiom (that the legislature enacts with the Court‘s interpretational decisions in one hand as it writes and votes with the other), we have here most of the more or less conclusive reasons why the doctrine of legislative acceptance should be applied. When a legislature, confronted constantly with unanimous interpretations . . . , deliberately re-enacts without change such an interpreted statutory proviso, . . . it seems to me that any judge who fails to apply the mentioned doctrine wittingly or unwittingly violates the law.” [Id., 545-546 (citation omitted).]
Returning to the immediate case, the Legislature previously amended the statute in the wake of Moyses,7 but chose not to expressly eliminate the dis-
However, the majority curiously concludes that this absence supports a finding that “the Legislature has unambiguously provided that contribution may be had between tortfeasors without regard to the intentional character of their acts . . . .” Ante at 250. The majority has erroneously read into the statute a right to contribution among wilful tortfeasors. It has done so despite the fact that the right is lacking from the manifest intent of the Legislature as derived from the words of the act itself. In re S R, 229 Mich App 310, 314; 581 NW2d 291 (1998).
As previously discussed, the phrase “joint tortfeasor” has a unique meaning at common law, referring to two or more persons who have commonly neglected a duty to another. Moyses, supra at 329. A phrase that acquires a unique meaning at common law should be interpreted as having that same meaning when used in а statute dealing with the same subject. Pulver, supra at 75.
Given the Legislature‘s presumptive familiarity with rules of statutory interpretation,8 the language of the statute indicates that the Legislature intended only to permit contribution among negligent, or nonintentional, tortfeasors. Had the Legislature intended to permit contribution among intentional tortfeasors, it
THE CIVIL RIGHTS ACT
The language of the
In Northwest Airlines v Transport Workers Union of America,9 an employer paid male cabin attendants higher wages than its female attendants pursuant to a fixed-wage scheme contained in a collective bargaining agreement. As a result, the employer was held liable to its female employees for backpay, because its collectively bargained wage differentials violated the
Assuming that the unions bore significant responsibility for the discriminatory practices, the United States Supreme Court nevertheless concluded that the employer was not entitled to contribution for intentional discrimination. Id., 90, 95. It explained
The majority here attempts to distinguish federal law by stating that there is no statutory right to contribution under federal law. Although Michigan law contains a statutory right to contribution, the majority disregards the absence of any provision permitting contribution for intentional tortfeasors.10 Instead, the majority has created a right to contribution for intentional tortfeasors in addition to the statutory rights created by the
PUBLIC POLICY
Finally, the majority finds itself “unaware of . . . any free-standing public policy” precluding an employer from seeking contribution from a union. Ante at 253. I believe that, as a matter of public pol-
Union counsel presented persuasive comment regarding this policy during oral argument, asserting:
[I]f in fact whenever there is alleged discrimination the union is going to find itself hauled into court defending itself at great expense and unable to assist its members, as it may very well want to do, that is not going to assist enforcement of the [Civil Rights] Act. It is going to deter enforcement of the act. The union here is not able to help its members. It is put at cross purposes with its members, and the employer ought not be able to create, at its will, . . . a barrier between the union and its members which precludes the union from giving the assistance it
needs. If the union has, in fact, injured its members and the members are so convinced, they can sue it. But where the employer is able in this instance as it would be under this Court of Appeals decision, if the employer is able to separate the union from its members, and to put the employees who have sued, in this instance the three women, in a position where their union realizes that if the employees prevail the union is going to be probably bankrupt and possibly even--it‘s possible that if the union lost here and if the employer prevailed, that because it is a small and voluntary unincorporated association, as most unions are, most unions are unincorporated associations, it is possible that liability could be imposed upon the individual members. What I‘m saying is that it does not serve the policy of [the Michigan Civil Rights Act] to permit an employer to do that. To permit an employer essentially to punish the bargaining unit, to drag the union into court when the employees have not chosen to do so, to put the union at cross-purposes with its members, and to essentially put the union members who have chоsen to exercise their rights under [the Michigan Civil Rights Act], to put them in a position where their fellow union members see them, rightfully if this decision is upheld, as having endangered the union and possibly having endangered their co-workers. It allows the employer to punish the union, to punish the bargaining unit, to put it at great risk, because some employees have chosen to sue their employer. And I would suggest to you that that is very much counter to the public policy of [the Michigan Civil Rights Act]. And in fact it is extremely destructive to the policy of the act.
Also, permitting an employer to seek contribution from a union will discourage discrimination victims from pursuing claims by denying them access to legal representation from their unions. As demonstrated in the immediate case, union counsel originally represented plaintiffs, but was forced to withdraw after the defendant employer filed a motion to disqualify counsel on grounds of conflict of interest.
Finally, liability from contribution claims could damage the financial stability of unions, reducing or eliminating their ability to represent and negotiate on behalf of their members. This result would clearly violate Michigan public policy.
CONCLUSION
Given that the majority‘s decision contradicts the manifest intent of the Legislature, federal law, and state public policy, I respectfully dissent. I would reverse the judgment of the Court of Appeals and conclude that the defendant employer may not seek contribution from the union for intentional sexual discrimination arising from a collective bargaining agreement provision.
CAVANAGH, J., concurred with KELLY, J.
Notes
The majority opinion observes that “a plaintiff is always free to file suit against any or all tortfeasors.” Ante at 255. Despite the absence of any supporting statutory language, it then conclusively states, “our Legislature has seen fit to allow contribution among joint tortfeasors, even when the plaintiff chooses not to sue all of them.” Id. However, the majority fails to recognize the distinction between joint (negligent) and intentional tortfeasors. Moyses v Spartan Asphalt Paving Co, 383 Mich 314, 329; 174 NW2d 797 (1970). The weakness of the majority opinion‘s holding is evidenced by its reliance on its own unsupported conclusions.
The majority also asserts that “this Court has already dismissed the dissent‘s argument.” Ante at 255, n 13. Ironically, the majority then cites a Michigan case recognizing the distinction between intentional and nonintentional tortfeasors, Caldwell v Fox, 394 Mich 401, 416; 231 NW2d 46 (1975), as well as a New Jersey case, Markey v Skog, 129 NJ Super 192; 322 A2d 513 (1974).
(“Complete disinterest [sic]“; “Belief that other measures have a stronger claim on the limited time and energy of the body“; “Belief that the bill is sound in principle but politically inexpedient to be connected with“; “Unwillingness to have the bill‘s sponsors get credit for its enactment“; “Belief that the bill is sound in principle but defective in material particulars“; “Tentative approval, but belief that action should be withheld until the problem can be attacked on a broader front“; “Indecision, with or without one or another of the foregoing attitudes also“; “Belief that the matter should be left to be handled by the normal processes of judicial development of decisional law, including the overruling of outstanding decisions to the extent that the sound growth of the law requires“; “Positive approval of existing law аs expressed in outstanding decisions of the Supreme Court“; “Ditto of the courts of appeals’ decisions also“; “Ditto also of district court decisions“; “Ditto also of one or more varieties of outstanding administrative
determinations“; “Etc., etc., etc., etc., etc.“) [Report to the Attorney General, Using and Misusing Legislative History: A Re-Evaluation of the Status of Legislative History in Statutory Interpretation, U S Dep‘t of Justice, Office of Legal Policy, January 5, 1989, p 113, n 485, citing Hart & Sacks, The Legal Process: Basic Problems in the Making and Application of Law, pp 1395-1396 (tent ed, 1958).]The initial predecessor to
It shall be lawful for all persons having a claim or cause of action against 2 or more joint tort-feasors to compound, settle with, and discharge, at any time prior to rendition of a judgment in said action, any and everyone or more of said joint tort-feasors for such sum as such person may deem fit, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the remaining joint tort-feasors, against whom such person, or persons, has such claim or cause of action, and not so released. [
MCL 691.562 ;MSA 27.1683(2) (repealed).]
In 1961,
It shall be lawful for all persons having a claim or cause of action against 2 or more joint tort-feasors to compound, settle with, and discharge, at any time prior to rendition of a judgment in said action, any and every one or more of said joint tort-feasors for such sum as such person may deem fit, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the remaining joint tort-feasors, against whom such person, or persons, has such claim or cause of action, and not so released. [
MCL 600.2925(2) ;MSA 27A.2925(2) (repealed).]
Quoting Prosser, Torts (2d ed), § 46, this Court added:
“It seems quite clear that the rule denying contribution in favor of negligent tortfeasors is in full retreat, and that in due course of time the pressure of opinion will compel its abolition. As to wilful wrongdoers, or those who are guilty of the more flagrant forms of misconduct, there is no indication of any desire or tendency to relax the original rule.” [Id., 335-336.]
The majority aptly recognizes that the Legislature amended the contribution statute in 1974 to adopt “most of the provisions of the 1955 revision of the uniform act.” Ante at 249, n 7. However, interpreting these revisions, this Court continued to recognize the distinction between intentional and nonintentional tortfeasors in Downie v Kent Products, Inc, 420 Mich 197, 217; 362 NW2d 605 (1984), explaining:
There is a substantive right to contribution on the part of a nonintentional tortfeasor who has paid more than his pro-rata share of the common liability. [Id., citing
MCL 600.2925a(1) , (2);MSA 27A.2925(1)(1) , (2) (emphasis added).]
Notwithstanding the 1974 amendments, this Court continued to limit contribution to nonintentional tortfeasors. Id.
* * *(a) Except as otherwise provided in this Act, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
(c) There is no right of contribution in favor of any tortfeasor who has intentionally [wilfully or wantonly] caused or contributed to the injury or wrongful death. [12 ULA 194 (emphasis added).]
A number of other states havе adopted subdivision 1(c) in some form. See
Thus, it is particularly noteworthy that the Michigan Legislature declined to adopt the subsection of the uniform act prohibiting an intentional tortfeasor from seeking contribution.
In Moyses, this Court explained that the contribution statute permitted contribution only among joint tortfeasors, not among several tortfeasors. Id. at 327. Referring to the common law, this Court held that it permitted contribution among joint and several tortfeasors, but not among intentional tortfeasors. Following the release of Moyses, the Legislature amended the statute to permit liability among both joint and several tortfеasors. However, it chose not to amend the statute to provide for contribution among intentional tortfeasors, implicitly accepting this Court‘s conclusion.Our Court of Appeals has previously recognized that
“Congress has given unions wide authority and great discretion to reconcile the competing interests of the employees whom they represent so that they might speak with one voice when they confront management at the bargaining table. Congressional validation of collective action, however, necessarily involves extinguishing many of the contract and economic rights belonging to union members and, instead, vesting the power to act in their behalf with their chosen representative, the union.” [Farmington Hills v Farmington Hills Police Officers Ass‘n, 79 Mich App 581, 590; 262 NW2d 866 (1977), quoting Crenshaw v Allied Chemical Corp, 387 F Supp 594, 598-599 (ED Va, 1975); see also Barkley v Detroit, 204 Mich App 194, 214; 514 NW2d 242 (1994) (TAYLOR, P.J., dissenting).]
As we previously noted, in enacting the contribution statute, our Legislature chosе to abandon all of the restrictions that the common law
imposed on contribution actions among joint tortfeasors. As the dissent recognizes, the contribution statute at issue here was based upon the model contribution act that itself retained the prohibition recognized in our common law after Moyses that intentional tortfeasors could not maintain a contribution action.The fact that our Legislature did not include this restriction in adopting its version of the model contribution act is significant to any good-faith effort to give meaning to the Legislature‘s intent. Gibson v Neelis, 227 Mich App 187, 194; 575 NW2d 313 (1997) (“[D]eviation from the language in a model act is presumed to be deliberate“). The deletion of the model act‘s provision restricting contribution among intentional tortfeasors is clearly inconsistent with an intent to maintain any distinction between intentional and negligent tortfeasors.