In re BRADLEY ESTATE
Docket No. 145055
Supreme Court of Michigan
July 26, 2013
494 Mich 367
Argued March 6, 2013 (Calendar No. 8).
Dоcket No. 145055. Argued March 6, 2013 (Calendar No. 8). Decided July 26, 2013.
Nancy Mick, as personal representative of the estate of Stephen Bradley, filed a contempt of court petition in the Kent County Probate Court against the Kent County Sheriff‘s Department. Mick had obtained an order from the probate court on August 12, 2004, requiring that her brother, Bradley, be taken into custody for a psychiatric evaluation. The sheriff‘s department failed to execute the pick-up order, and Bradley fatally shot himself on August 21, 2004. Mick originally filed a wrongful-death action against the sheriff‘s department in the Kent Circuit Court, which the circuit court dismissed on the basis of governmental immunity,
The phrase “tort liability” as used in
- Under
MCL 691.1407(1) , a governmental agency is generally immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. A “tort” is an act that has long been understood in Michigan‘s common law as a civil wrong that arises from the breach of a legal duty other than the breach of a contractual duty for which a remedy may be obtained in the form of compensatory damages. As commonly understood, the word “liability” refers to the state or quality of being liable, and “liable” means to be legally responsible. Thus, “tort liability” as used inMCL 691.1407(1) means all legal responsibility arising from a noncontractual civil wrong for which a remedy may be obtained in the form of compensatory damages. It follows that “tort liability” is not limited to traditional tort claims. Rather, in determining the applicability ofMCL 691.1407(1) , courts must consider the entire claim and the focus must be on the nature of the liability rather than the type of action pleaded; the nature of the liability will often be reflected in the available remedy. Courts considering whether a claim involves tort liability should first focus on the nature of the duty that gives rise to the claim. If the wrong alleged is premised on the breach of a contractual duty, then no tort has occurred, and the GTLA is inapplicable. If the wrong is premised on the breach of a noncontractual duty, then the GTLA might apply to bar the claim. In that instance, the court must further consider the nature of the liability the claim seeks to impose. If the action permits an award of damages to a private party as compensation for an injury caused by the noncontractual civil wrong, then the action, no matter how it is labeled, seeks to impose tort liability and the GTLA applies. MCL 600.1721 states that if contemptuous conduct has caused an actual loss or injury to any person, the court shall order the defendant to pay that person a sum sufficient to indemnify the person. The elements necessary to establish entitlement to reliefunder MCL 600.1721 are essentially the same elements necessary to establish a tort, i.e., a legal duty, breach of that duty, causation, and injury. The misconduct that might result in a finding of contempt involves the neglect or violation of a duty underMCL 600.1701 or the failure to perform an act or duty underMCL 600.1715 . Thus, the misconduct is a noncontractual civil wrong. Because the first sentence ofMCL 600.1721 authorizes a court to order a contemnor to indemnify the person whose losses were caused by the contemptuous conduct, the statute permits an award of damages to a private party as compensation for an injury caused by a noncontractual civil wrong. Accordingly,MCL 600.1721 contemplates what is, in essence, a tort suit for money damages, and a civil contempt petition seeking indemnification under the statute seeks to impose tort liability. It follows that a party who elects to pursue the statutory remedy available underMCL 600.1721 will be barred from obtaining relief against governmental agencies because those entities are entitled to immunity from tort liability underMCL 691.1407(1) of the GTLA. Courts are prohibited from exercising their contempt powers by punishing a governmental agency‘s contemptuous conduct through an award of indemnification damages underMCL 600.1721 .- In this case, Mick sought compensatory damages for Bradley‘s death under
MCL 600.1721 . Thus, her petition sought to impose tort liability on a governmental agency. Had Mick sought to invoke the probate court‘s inherent contempt powers, i.e., to fine or imprison a contemnor, or had she otherwise established the applicability of an exception to governmental immunity, her claim might have survived summary disposition, but she did not. Consequently, because a civil contempt petition seeking indemnification damages underMCL 600.1721 seeks to impose tort liability, and a sheriff‘s department is immune from tort liability, Mick‘s claim was barred by governmental immunity underMCL 691.1407(1) , and the sheriff‘s department was entitled to summary disposition under MCR 2.116(C)(7).
Judgment of the Court of Appeals reversed; case remanded to the probate court for entry of an order granting summary disposition in favor of the sheriff‘s department.
Justice CAVANAGH, dissenting, would have affirmed the result reached by the Court of Appeals. Justice CAVANAGH agreed with the majority that in determining whether an action imposes tort liability, the focus must be on the nature of the liability rather than the type of action pleaded. Contrary to the conclusion of the majority, a compensatory contempt sanction does not impose tort liability, primarily because that sanction is based on the contemp-
Justice MCCORMACK, dissenting, disagreed with the majority‘s assertion that all noncontractual civil wrongs, including civil contempt, are torts, and would have affirmed the judgment of the Court of Appeals. Justice MCCORMACK agreed with the majority that “tort liability” refers to legal responsibility arising from a tort, but concluded that contempt of court is not a tort no matter what remedy for contempt is imposed, and would not have interpreted the GTLA as granting immunity to governmental agencies from contempt sanctions under
CONTEMPT — GOVERNMENTAL IMMUNITY — RECOVERY OF DAMAGES — NONTORT CAUSES OF ACTION.
Under the governmental tort liability act (GTLA),
Timothy T. Taylor for Nancy Mick.
Varnum LLP (by Peter A. Smit, Adam J. Brody, and Gary J. Mouw) for the Kent County Sheriff‘s Department.
Amici Curiae:
Plunkett Cooney (by Mary Massaron Ross and Hilary A. Ballentine) for the Michigan Municipal League, the Michigan Municipal League Liability and Property Pool, the Michigan Townships Association, and the Public Corporation Law Section of the State Bar of Michigan.
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Aaron D. Lindstrom, Assistant Solicitor General, for the Department of the Attorney General.
OPINION OF THE COURT
MARY BETH KELLY, J. In this case, we decide whether a civil contempt petition that seeks indemnification damages under
I. FACTS AND PROCEDURAL HISTORY
In the summer of 2004, petitioner, Nancy Mick, became increasingly concerned about the mental health of her brother, Stephen Bradley. She noticed that Bradley had grown “more agitated and violent,” and he had admitted to her that he was suicidal. Petitioner feared that if Bradley did not receive help “he could kill himself and his family.” As a result, in August 2004, she petitioned the Kent County Probate Court for Bradley‘s hospitalization, averring that Bradley was a danger to himself and his family. She accompanied her petition with a supplemental petition for examination and hospitalization, requesting a court order directing a peace officer to take Bradley into protective custody.
The probate court granted the petitions that same day and issued an order requiring that Bradley submit to psychiatric examination and requiring his hospitalization. The order specified that a “peace officer shall take [Bradley] into protective custody and transport him... to [Cornerstone Community Mental Health or any community mental health contract facility].” Petitioner immediately submitted the order to respondent, the Kent County Sheriff‘s Department, for execution and provided additional details to the sergeant on duty
Rеspondent, however, did not timely execute the probate court‘s order. In the days that followed, petitioner contacted respondent twice in regard to Bradley‘s situation, and each time respondent assured her that the pickup would take place as soon as possible. Ultimately, respondent never attempted to take Bradley into protective custody and, nine days after the probate court entered its order, Bradley committed suicide.
After Bradley‘s suicide, petitioner wrote to Kent County Sheriff Lawrence A. Stelma, requesting an internal investigation, which ultimately concluded that the failure to execute the order was “an obvious case of simple neglect in that this petition was not executed in the manner that mental health petitions normally are handled.”1 Stelma informed petitioner by letter of the investigation‘s findings, confirming that the order had not been executed and describing respondent‘s failure as “an unusual occurrence” that did “not reflect any policy or procedure on the part of the Sheriff‘s Department....”
More than two years later, petitioner, acting as personal representative of Bradley‘s estate, filed a wrong-
Petitioner did not appeal the circuit court‘s dismissal. Instead, she filed a petition for civil contempt in the probate court against respondent. The petition alleged that respondent‘s violation of the probate court‘s order constituted contempt of court, entitling her to indemnification damages pursuant to
Respondent moved for summary disposition, arguing that it was immune from liability under
Respondent appealed the probate court‘s ruling to the circuit court, which reversed and remanded the case to the probate court for entry of an order granting summary disposition in favor of respondent. Relying on the definition of “tort liability” articulated in Tate v Grand Rapids, the circuit court concluded that petitioner‘s civil contempt petition was based in tort because the petition sought damages under the wrongful death statute. The circuit court, therefore, held that petitioner‘s claim was barred by the GTLA. While cognizant of courts’ inherent authority to punish contempt, the circuit court concluded that the scope of that inherent authority is limited to the power to punish by fine or imprisonment. Because petitioner did not invoke the probate court‘s inherent power to punish contempt by either fine or imprisonment, but instead sought indemnification damages pursuant to
The Court of Appeals granted petitioner‘s application for leave to appeal and, in a published opinion per curiam, reversed the circuit court‘s decision.5 The Court of Appeals held that the GTLA does not immunize governmental agencies from “tort-like” damages
In accord with the Ross Court‘s holding that the GTLA will not bar recovery simply because the underlying facts could have also established a tort cause of action, we conclude that tort-like damages are recoverable in a contempt action assuming contempt can be proved. Thus, whether the GTLA implicates the viability of Mick‘s contempt action rests on whether Mick can successfully plead and establish a contempt cause of action. The nature of the damages being requested has no role in determining whether the action is barred by [the] GTLA. Consequently, the circuit court erred when it dismissed this case merely because the damages sought were similar to tort damages.10
We granted respondent‘s application for leave to appeal to consider whether “petitioner‘s claim for civil contempt indemnification damages under
II. STANDARD OF REVIEW
We review de novo a decision on a motion for summary disposition.12 Under MCR 2.116(C)(7), summary
We also review de novo issues of statutory interpretation.15 When construing a statute, we consider the statute‘s plain language and we enforce clear and unambiguous language as written.16 While terms must be construed according to their plain and ordinary meaning, words and phrases “as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”17 Moreover, when the Legislature chooses to employ a common-law term without indicating an intent to alter the common law, the term will be interpreted consistent with its common-law meaning.18
III. ANALYSIS
Since Michigan became a state in 1837, Michigan jurisprudence has recognized the preexisting common-law concept of sovereign immunity, which immunizes the “sovereign” state from аll suits to which the state has not consented, including suits for tortious acts by the state.19 This common-law concept of sovereign immunity has since been replaced in Michigan by the
Specifically,
Whether a contempt order imposing indemnification damages imposes tort liability is not readily apparent; the GTLA does not define the phrase “tort liability” and our caselaw has not offered a definition of the phrase. Moreover, the contempt statutes under which petitioner brings suit include no express reference to the imposition of “tort liability.” The civil contempt petition in the instant case is based on the general contempt statute of
The supreme court, circuit court, and all other courts of record, have power to punish by fine or imprisonment, or both, persons guilty of any neglect or violation of duty or misconduct in all of the following cases:
* * *
(c) All attorneys, counselors, clerks, registers, sheriffs, coroners, and all other persons in any manner elected or appointed to perform any judicial or ministerial services, for any misbehavior in their office or trust, or for any willful neglect or violation of duty, for disobediencе of any process of the court, or any lawful order of the court, or any lawful order of a judge of the court or of any officer authorized to perform the duties of the judge.
* * *
(g) Parties to actions, attorneys, counselors, and all other persons for disobeying any lawful order, decree, or process of the court.23
By its plain terms,
The contemptuous misconduct referred to in these contempt statutes, however, does not clearly constitute tortious action such that petitioner‘s civil contempt petition would necessarily impose tort liability for purposes of the GTLA. Whether petitioner‘s claim is barred by the GTLA thus requires two related inquires. First, we must determine the meaning of the phrase “tort liability” as used in
A. TORT LIABILITY
As noted, the GTLA does not define the phrase “tort liability,” nor has this Court previously determined the meaning of that phrase. The lower courts applied the definition of “tort liability” articulated by the Court of Appeals in Tate, a case involving a statute that imposes strict liability on dog owners for injuries resulting from
We do not necessarily disagree with Tate‘s general understanding of the phrase “tort liability.” However, in our judgment, Tate‘s definition is incomplete and fails to acknowledge the historical underpinnings of the word “tort” as that word has been used in our common law for more than a hundred years. Mainly, a “tort” is an act that has long been understood as a civil wrong that arises from the breach of a legal duty other than the breach of a contractual duty.30 For example, English common-law courts have for centuries recognized a civil wrong as an infringement on private rights belonging to individuals and divided civil wrongs into two categories: those sounding in contract and those sounding in tort.31
[I]f in order to make out a cause of action it is not necessary for the plaintiff to rely on a contract, the action is one founded on tort; but, on the other hand, if, in order successfully to maintain his action, it is necessary for him to rely upon and prove a contract, the action is one founded upon contract.32
The Queen‘s Bench, then, recognized only two types of civil wrongs, those involving contractual wrongs and those involving the breach of some other legal duty, the latter of which is a tort and is remedied through an
Michigan common law, which has its roots in English common law, has likewise recognized this distinction between torts and contracts as the two types of civil wrongs.34 For example, in Churchill v Howe,35 this Court considered whether a debtor‘s liability was limited to the parties’ contractual relations. In concluding that the creditor‘s allegations of fraud sounded in tort, we acknowledged the genеral principles that a tort requires a “wrong independent of a contract” and that “the distinguishing feature of a tort [is] that it consists in the violation of a right given or neglect of a duty imposed by law, and not by contract.”36 Stated differently, and as this Court has repeatedly recognized in the
Our common law likewise incorporates the concept that a tort necessarily involves compensation to an injured party for the wrong committed by a tortfeasor.38 As we explained in Wilson v Bowen,39 a case involving an award of damages for malicious prosecution, “the purpose of an action of tort is to recover the damages which the plaintiff has sustained from an injury done him by the defendant; that compensation to the plaintiff is the purpose in view....”
Given the foregoing, it is clear that our common law has defined “tort” to be a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of compensatory damages. Accordingly, because the word “tort” has “acquired a peculiar and appropriate meaning” in our common law, and because the Legislature is presumed to be aware of the
Our analysis, however, requires more.
We recognize that plaintiffs have and will attempt to avoid [
MCL 691.1407(1) ] of the governmental immunity act by basing their causes of action on theories other than tort. Trial and appellate courts are routinely faced with the task of determining whether the essential elements of a particular cause of action have been properly pleaded and proved. If a plaintiff successfully pleads and establishes a non-tort cause of action, [MCL 691.1407(1) ] will not bar recovery simply because the underlying facts could have also established a tort cause of action.46
Petitioner and the Court of Appeals interpret this passage from Ross to mean that the label of the action controls in determining whether an action imposes tort
In addition, our holding clarifies that Ross‘s pronouncement, that “non-tort cause[s] of action” are not barred by the GTLA, should not be interpreted as limiting the GTLA‘s application to only traditional tort claims.48 The Legislature‘s exрress decision to use the word “liability” in describing the governmental immunity available under
because the nature of the liability will often be reflected in the remedy available, we disagree with the Court of Appeals’ statement that “[t]he nature of the damages being requested has no role in determining whether the action is barred by the GTLA.”50 Instead, because a tort, by definition, encompasses an award of compensatory damages, the nature of the damages is precisely relevant in determining whether the type of liability imposed is tort liability.51 Accordingly, regardless of how a claim is labeled, courts must consider the entire claim, including the available damages, to determine the nature of the liability imposed.52
In summary, several principles emerge from our explication of the phrase “tort liability” that will guide
The civil contempt petition in this case allеges that respondent‘s contemptuous misconduct, prohibited by
If the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to the other penalties which are imposed upon the defendant. The payment and acceptance of this sum is an absolute bar to any action by the aggrieved party to recover damages for the loss or injury.55
Although we have not previously considered whether this language imposes “tort liability,” this Court has implicitly recognized that the elements necessary to establish entitlement to relief under this provision are essentially the same elements necessary to establish a tort, i.e., a legal duty, breach of that duty, causation, and injury. In Holland v Weed,56 for example, we explained that the predecessor of
authorizes this imposition [of indemnification damages] in place of a fine, and it is for the purpose of protecting the civil rights and remedies of the party, and to compensate him for the injury or loss occasioned by the misconduct alleged; and it is only when an actual loss or injury has been produced to the party by the misconduct alleged, and that is made to appear to the satisfaction of the court, and some sum sufficient to compensate the party or indemnify
him is adjudged, that the court can impose the costs and expenses to be paid by such party.57
Stated differently, the plain language of
A closer examination of the statutory language confirms that it contains all the elements of a tort claim in the guise of a contempt claim. Under the first sentence of the statute, the “alleged misconduct,” which is a necessary element of any contempt claim, stems from the “neglect or violation of [a] duty” under
Because the nature of the duty that gives rise to a civil contempt claim is clearly premised on a noncontractual civil wrong, we must further consider the nature of the liability imposed. The first sentence of
Additional support for this conclusion is found in the second sentence of
Given that the statutory language of
Our holding, however, should not be interpreted as constraining courts’ inherent contempt powers. While our holding does constrain a court‘s statutory authority to order punishment in the form of compensation in a civil contempt proceeding against a governmental entity,62 our holding does not infringe on those powers of contempt that are inherent in the judiciary, as recognized in our Constitution and codified by the Legislature.63 Inherent in the judicial power is the power to prescribe acts that are punishable as contempt through
C. APPLICATION
The civil contempt petition at issue here alleges that respondent negligently failed to execute the probate court‘s order, constituting contemptuous misconduct under
Had petitioner sought to invoke the probate court‘s inherent contempt powers, i.e., to fine or imprison a contemnor, or had petitioner otherwise established the applicability of an exception to governmental immunity, then petitioner‘s claim might have survived summary disposition. However, petitioner‘s civil contempt petition did not invoke the court‘s inherent powers of contempt, and she concedes that none of the GTLA‘s exceptions are applicable. Consequently, because a civil contempt petition seeking indemnification damages under
IV. CONCLUSION
Consistent with the Legislature‘s intent, our decision clarifies that the phrase “tort liability” as used in
YOUNG, C.J., and MARKMAN, ZAHRA, and VIVIANO, JJ., concurred with KELLY, J.
CAVANAGH, J. (dissenting). At issue in this case is whether an order imposing a compensatory contempt sanction under
I. OVERVIEW OF CONTEMPT PROCEEDINGS
In In re Contempt of Dougherty, 429 Mich 81, 104-107; 413 NW2d 392 (1987), we considered whether “anticipatory contempt” was a proper use of the court‘s contempt power, holding that the future intent to violate a court order was not subject to the court‘s contempt power. That issue is not present in this case; however, In re Contempt of Dougherty is helpful because it provides an excellent analysis of the sui generis nature of contempt proceedings. Id. at 90-91. Specifically, In re Contempt of Dougherty recognized that “contempts are ‘neither wholly civil nor altogether criminal....‘” Id. at 91, quoting Gompers v Bucks Stove & Range Co, 221 US 418, 441; 31 S Ct 492; 55 L Ed 797 (1911). Further, we explained that it is often necessary to characterize a contempt proceeding as criminal or civil and that the determining difference is the character and purpose of the punishment imposed on the contemnor. Id. at 92-93, quoting Gompers, 221 US at 441 (” ‘If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.’ “).
To aid courts in characterizing civil and criminal contempt proceedings, In re Contempt of Dougherty explained that the process is civil if the contemnor
there are three sanctions which may be available to a court to remedy or redress contemptuous behavior: (1) criminal punishment to vindicate the court‘s authority; (2) coercion, to force compliance with the order; and (3) compensatory relief to the complainant.
II. A COMPENSATORY CONTEMPT SANCTION IS NOT “TORT LIABILITY”
I agree with the majority that a proper analysis of this case should begin by defining “tort liability” for the purposes of
Under
As a result, I disagree with the majority that the “alleged misconduct,” which serves as the basis for liability under
Because the “alleged misconduct” under
I also think that, in certain circumstances, characterizing a compensatory contempt sanction as serving a compensatory purpose to the exclusion of any other purpose may oversimplify the nature of the contempt proceeding itself. See Gompers, 221 US at 443 (recognizing the “incidental effect[s],” i.e., the overlapping purposes, of civil and criminal contempt). Specifically, I think that when a party subject to a court order has the present obligation and ability to comply, the prospect of a compensatory sanction may work hand-in-hand with coercive monetary sanctions.6 “When the purpose of the sanction is to make a party or person comply, the trial court, in exercising its discretion, must ‘consider the
MCCORMACK, J. (dissenting). The majority holds that the governmental tort liability act‘s (GTLA)1 grant of immunity to governmental agencies from “tort liability,” as referred to in
I. CIVIL LIABILITY
A. AN ABBREVIATED TAXONOMY OF “CIVIL WRONGS”
Very generally speaking, there are two categories of legal wrongs that may result in civil liability. One category encompasses acts that violate a personal right, which includes the common-law subjects of property, tort, contract, trust, and restitution. A second category encompasses acts not against the person, but rather against the sovereign, or acts against interests the sovereign deems worthy of protection. These acts are the subject of environmental law, securities law, and consumer law, to name a few. These examples are hardly exhaustive. But they suffice to show that the legal system imposes liability in a wide variety of contexts, either to address harms committed against citizens or, instead, to enforce rules imposed by the state or its subdivisions.
The majority begins its analysis by examining case-law and legal dictionaries in search of a definition of the term “tort.” It ultimately articulates this one: “a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of compensatory damages.”2 But this definition offers little guidance, first because “civil wrong” is itself a term of art and,
The English legal tradition recognized courts of “law,” the Court of Queen‘s Bench, and “equity,” the Court of Chancery. Though complementary, the two operated separately and independently.3 Our modern system has abolished these distinctions, but has adopted aspects of and rules from both.4 Civil liability sounding in neither contract nor tort is not uncommon. Breach of trust, for example, has its roots in the rules of equity and the Court of Chancery, separate and distinct from both contract and tort.5 A trustee relationship imposes fiduciary duties, the breach of which results in liability.6 Though trust law can well be understood as a half sibling of contract law, it cannot be reduced to contract. A breach of trust stems not from the violation
Our legal system imposes liability in many other contexts as well, even apart from the criminal justice system. A familiar example would be civil infractions. A parking ticket results in a legal obligation to pay money. But a parking infraction is not a tort, a breach of contract, or a crime. It is simply a municipal ordinance
B. THE NATURE OF TORTS
William Prosser once observed that “a really satisfactory definition of a tort is yet to be found. The numerous attempts which have been made to define the term have succeeded only in achieving language so broad that it includes other matters than torts, or else so narrow that it leaves out some torts themselves.”13 Fundamentally, a tort action protects a person‘s interest in a range
Moreover, compensatory damages are not unique to tort law. Compensatory damages are a common remedy in actions based in contract, for example, as expectation or consequential damages. Or for an example closer to contempt, our Legislature has even provided for compensatory damages for victims of crime in the Crime Victim‘s Rights Act.17 In short, tort liability does not hinge on an award of compensatory damages, and the availability of compensatory damages is not unique to tort law.
Rather, the sine qua non of a tort is the breach of a duty owed to a fellow citizen. And, although tort liability has been extended to some extent in recent decades with increased reliance on doctrines like public nui-
C. CONTEMPT OF COURT
Contempt of court is altogether different. It stems from a violation of an obligation owed not to any person, but to the court itself. Contempt does not serve to protect private rights; it serves to protect the power of the courts. Contempt has been described as a “power of self-defense,” intended to sanction “thоse who interfere with the orderly conduct of [court] business or disobey orders necessary to the conduct of that business....”19 This purpose---to protect the power of the judiciary---is evidenced not only by modern cases, but also by contempt‘s historical roots. It comes as no surprise that contempt of court is not discussed in any leading tort treatise, nor is it discussed within the comprehensive framework of tort law by the Restatement, two observations which further reveal the majority‘s error.20 The common law did not consider contempt a tort, and the Queen‘s Bench would not have understood it as such. Rather, contempt of court was viewed at common law as
Implicit in the majority‘s analysis is that all legal wrong fits neatly into one of three categories: criminal, contractual, or tortious. The law is not so neat. Modern Michigan cases have recognized contempt proceedings as “quasi-criminal” in nature.23 Nor is Michigan alone. The United States Supreme Court has described contempt proceedings as “sui generis---neither civil actions nor prosecutions for offenses, within the ordinary meaning of those terms---and exertions of the power inherent in all courts to enforce obedience, something they must possess in order properly to perform their functions.”24 They “are neither wholly civil nor altogether criminal.”25 Rather, an act of contempt “may partake of the characteristics of both.”26
D. A TORT BY ANY OTHER NAME?
A more apt comparison for contempt of court can be found not in tort law, but instead in the various legal sanctions provided by our court rules. Like the contempt power, these sanctions serve to enforce the orderliness of court proceedings. Sometimes, courts may impose the equivalent of compensatory damages for a violation of the court rules, such as when a party who files vexatious pleadings or makes vexatious discovery demands is sanctioned by having to pay the other party‘s costs. But these are not tort damages, nor are they unavailable against municipal litigants under the GTLA.
Even assuming, purely for argument‘s sake, that a similarity to tort were sufficient to subject civil contempt to the same immunity rules as tort, I believe that the Legislature has foreclosed that immunity here. For while I agree with the majority that contempt sanctions are not among the five statutory exceptions to thе
II. STATUTORY INTENT
I believe the majority‘s premise that contempt is a tort leads it to gloss over the relevant statutory texts too quickly. The express language of both the GTLA and the contempt statute undermines the majority‘s conclusion that the GTLA is intended to grant governmental
The GTLA itself demonstrates that the Legislature knew how to use different language when it intended to grant immunity beyond tort liability.
The codification of the contempt power underscores the same conclusion. The Legislature did not use the word “tort” to describe the conduct it prohibits in the contempt statute. It did not use the word “tort” to describe the available sanctions. And there is more support: The Legislature did not include contempt in chapter 29 of the Revised Judicature Act, “Provisions Concerning Specific Actions,”40 a chapter codifying miscellaneous tort actions including malpractice,41 defamation,42 and damage or waste to land.43 Rather, contempt is given its own chapter, in keeping with its unique nature.44
Further, refusing to apply the GTLA here will not negatively impact the functioning of governmental agencies because governmental actors, I believe, generally avoid behavior “directly tending to interrupt [court] proceedings,”45 do not habitually engage in “willful neglect or violation of duty,”46 and generally refrain from “disobeying any lawful order, decree, or process of the court.”47 Even given the egregious facts of this case, respondent vigorously contests whether a
III. THE INHERENT POWER OF THE JUDICIARY
Finally, the majority‘s analysis concludes that the GTLA‘s immunity grant to contemnors is not an infringement on the court‘s inherent contempt power because the GTLA only applies to the contempt remedies provided by the Revised Judicature Act,49 but not to the judiciary‘s “inherent contempt power,” which the majority concludes is limited to coercive fines and imprisonment. While my analysis does not rest on this distinction, I believe the majority fails to satisfactorily explain why any particular remedy, and indemnification damages in particular, is somehow outside the Court‘s inherent contempt power, except, perhaps, because this sanction is codified in the Revised Judicature Act.50 That codification would render the remedy not part of the court‘s inherent power is inconsistent with both this Court‘s past pronouncement that contempt statutes are “merely declaratory of what the law was before
IV. CONCLUSION
I agree with the majority‘s basic premise that “tort liability” refers to “legal responsibility arising from a tort.”58 Because I conclude that contempt of court is not a tort, no matter what remedy for contempt is imposed, I would not interpret the GTLA as granting immunity to governmental agencies from contempt sanctions under
The practical import of this case is probably limited, given that civil contempt is fairly rare and that the facts of a case giving rise to the possibility of indemnification damages for civil contempt are rarer still. But the underlying principles are important. As a matter of good doctrinal bookkeeping, civil contempt is not the same as tort, and civil contempt penalties are not the same as tort liability. Although the majority is correct that, as it happens, petitioner seeks indemnification under the contempt statute after having been denied a claim for wrongful death, the majority‘s holding will also apply to future cases in which, unlike here, a governmental actor‘s contemptuous conduct has no obvious tort analogue simply because the sanction can be viewed as compensatory.
But even beyond getting the basic legal categories here correct, this Court should be hesitant to cede the judiciary‘s power to impose exceptional remedies in those exceptional cases in which they may be warranted for failure to heed judicial orders. This Court should, instead, safeguard the power of the judicial branch. No other branch will.
I would affirm the Court of Appeals and remand this case to the probate court for further proceedings.
Notes
If the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to the other penalties which are imposed upon the defendant. The payment and acceptance of this sum is an absolute bar to any action by the aggrieved party to recover damages for the loss or injury.
Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof: and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs.... Of the former nature are all actions upon debt or promises; of the latter all actions for trespasses, nuisances, assaults, defamatory words and the like. [3 Blackstone, Commentaries on the Laws of England (Jones ed., 1976), p *117.]Ante at 394 n 61, citing Dodson v Dodson, 380 Md 438, 453; 845 A2d 1194 (2004); Parker v United States, 153 F2d 66, 70 (CA 1, 1946); Vuitton et Fils SA v Carousel Handbags, 592 F2d 126, 130 (CA 2, 1979); Thompson v Cleland, 782 F2d 719, 722 (CA 7, 1986).
See In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 307; 806 NW2d 683 (2011) (“[C]ourts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.“) (citation and quotation marks omitted).If an actual loss or injury has been produced to any party, by the misconduct alleged, the court shall order a sufficient sum to be paid by the defendant to such party to indemnify him, and to satisfy his costs and expenses, instead of imposing a fine upon such defendant; and in such case, the payment and acceptance of such sum shall be an absolute bar to any action by such aggrieved party, to recover damages for such injury or loss. [How Stat § 7277.]
There is inherent power in the courts, to the full extent that it existed in the courts of England at the common law, to adjudge and punish for contempt... Such power, being inherent and a part of the judicial power of constitutional courts, cannot be limited or taken away by act of the legislature nor is it dependent on legislative provision for its validity or procedures to effectuate it. [Citation omitted.]