CARTER v DTN MANAGEMENT COMPANY
Docket No. 165425
Michigan Supreme Court
July 29, 2024
Argued January 11, 2024 (Calendar No. 4).
Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Elizabeth T. Clement
Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions: Kathryn L. Loomis
CARTER v DTN MANAGEMENT COMPANY
Docket No. 165425. Argued January 11, 2024 (Calendar No. 4). Decided July 29, 2024.
Karen Carter brought an action in the Ingham Circuit Court against DTN Management Company (doing business as DTN MGT), which owned and operated the apartment complex where she lived, after she slipped and fell on an icy sidewalk in the complex on January 20, 2018. Carter filed the complaint, alleging negligence based on premises liability and breach of statutory duties, on April 13, 2021. Defendant moved for summary disposition under
In an opinion by Justice BOLDEN, joined by Chief Justice CLEMENT and Justices BERNSTEIN, CAVANAGH, and WELCH, the Supreme Court held:
The Supreme Court was within its authority to enter AO 2020-3 and AO 2020-18 under the powers reserved to it under
1.
2. Generally, under
3. This case was unlike both Gladych and Buscaino, in which there was a direct conflict between a court rule and the tolling statute. In this case, there was no conflict between the COVID-19 administrative orders and a statute because those orders did not toll the running of statutory limitations periods, but instead affected the counting of the relevant time period for purposes of
4. The adoption of AO 2020-3 and AO 2020-18 was also a valid exercise of the Supreme Court‘s reserved power to exert superintending control over all courts under
5. Plaintiff‘s injury occurred on January 10, 2018. March 10, 2020, was the effective date of AO 2020-3. On that date, plaintiff had 10 months left to file a timely lawsuit. The days from March 10, 2020, through June 19, 2020, were not included for purposes of
Court of Appeals judgment affirmed; case remanded to the Ingham Circuit Court for further proceedings.
Justice VIVIANO, joined by Justice ZAHRA, dissenting, disagreed with the majority and the Court of Appeals that the administrative orders were within the Supreme Court‘s constitutional authority. He would have reaffirmed the holding in Gladych that statutes of limitations are substantive in nature because they represent policy decisions rather than matters of mere court administration, and he noted that the majority‘s holding had significantly undermined Gladych‘s precedential value. Given that statutes of limitation are substantive, the administrative orders were outside the Supreme Court‘s authority to regulate practice and procedure under
FILED July 29, 2024
STATE OF MICHIGAN
SUPREME COURT
KAREN CARTER, Plaintiff-Appellee,
v No. 165425
DTN MANAGEMENT COMPANY, doing business as DTN MGT, Defendant-Appellant.
BEFORE THE ENTIRE
BOLDEN, J.
In 2020, a deadly respiratory virus reached pandemic proportions and affected the entire world, including Michigan. During the peak of the pandemic, Michigan declared a state of emergency. Government leaders were required to make difficult decisions to protect public health, safety, and well-being, while ensuring that the branches of government they oversaw functioned amid the unprecedented challenges presented by the pandemic. This Court fulfilled its role by enacting two administrative orders regarding how the pandemic would affect litigation deadlines.1 These orders affected filing deadlines during the pendency of the state of emergency.
Four years later, this Court must now decide whether these administrative orders were constitutional. Ordinarily, a plaintiff has three years after an injury occurs during which they can file a timely lawsuit to recover damages.
Like the Court of Appeals, we now hold that the administrative orders were constitutional. Carter v DTN Mgt Co, 345 Mich App 378; 5 NW3d 372 (2023). Thus, we affirm. In light of this holding, we remand this case to the Ingham Circuit Court for further proceedings not inconsistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
A. LEGAL BACKGROUND AND CONTEXT
In early 2020, scientists found that a newly discovered respiratory virus, known as COVID-19, was the cause of a deadly outbreak that would quickly spread throughout the globe.2 See, e.g., U.S. Centers for Disease Control and Prevention, CDC Museum COVID-19 Timeline <https://www.cdc.gov/museum/timeline/covid19.html> (accessed May 30, 2024) [https://perma.cc/GUM6-MH2B]. During 2020, COVID-19 rapidly spread throughout the United States, resulting in the death and serious illness of significant numbers of people. In re Certified Questions From the US Dist Court, Western Dist of Mich, 506 Mich 332, 338; 958 NW2d 1 (2020). It was “one of the most threatening public-health crises of modern times.” Id. at 337. The World Health Organization declared COVID-19 to be a pandemic. Id.; World Health Organization, WHO Director-General‘s Opening Remarks at the Media Briefing on COVID-19—11 March 2020 <https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020> (accessed July 10, 2024) [https://perma.cc/Y8MH-CCK3] (explaining the severity of COVID-19 during March 2020, classifying COVID-19 as a pandemic, and stating that “[p]andemic is not a word to use lightly or carelessly“).
In response to COVID-19, states of emergency were declared in each of the United States. See, e.g., National Academy for State Health Policy, States’ COVID-19 Public Health Emergency Declarations <https://nashp.org/state-tracker/states-covid-19-public-health-emergency-declarations/> (accessed July 11, 2024) [https://perma.cc/M9RQ-4MT9]. This includes Michigan, where Governor Gretchen Whitmer declared a state of emergency here on March 10, 2020. Executive Order No. 2020-4.
Out of concern for how COVID-19 affected our administration of the courts, within two weeks of that emergency declaration, this Court, absent dissent, adopted the first of our three COVID-19-related administrative orders. Administrative Order No. 2020-3; 505 Mich cxxvii (2020). As originally published on March 23, 2020, AO 2020-3 stated:
In light of the continuing COVID-19 pandemic and to ensure continued access to courts, the Court orders that:
For all deadlines applicable to the commencement of all civil and probate case types, including but not limited to the deadline for the initial filing of a pleading under MCR 2.110 or a motion raising a defense or an objection to an initial pleading underMCR 2.116 , and any statutory prerequisites to the filing of such a pleading or motion, any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes ofMCR 1.108(1) .3This order is intended to extend all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency declared by the Governor related to
COVID-19. Nothing in this order precludes a court from ordering an expedited response to a complaint or motion in order to hear and resolve an emergency matter requiring immediate attention. We continue to encourage courts to conduct hearings remotely using two-way interactive video technology or other remote participation tools whenever possible.
This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses. Courts must have a system in place to allow filings without face-to-face contact to ensure that routine matters, such as filing of estates in probate court and appointment of a personal representative in a decedent‘s estate, may occur without unnecessary delay and be disposed via electronic or other means. [Available at <https://perma.cc/Q97F-F5KJ>.]
On April 23, 2020, Governor Whitmer issued an executive order explaining that it was “reasonable and necessary to temporarily suspend and toll” all deadlines on civil and probate proceedings, citing AO 2020-3. Executive Order No. 2020-58. On May 1, 2020, AO 2020-3 was amended, again without dissent, to clarify its language. Administrative Order No. 2020-3; 505 Mich cxliv (2020).4
In Administrative Order No. 2020-3, the Supreme Court issued an order excluding any days that fall during the State of Emergency declared by the Governor related to COVID-19 for purposes of determining the deadline applicable to the commencement of all civil and probate case types under
MCR 1.108(1) . Effective Saturday, June 20, 2020, that administrative order is rescinded, and the computation of time for those filings shall resume. For time periods that started before Administrative Order No. 2020-3 took effect, the filers shall have the same number of days to submit their filings on June 20, 2020, as they had when the exclusion went into effect on March 23, 2020. For filings with time periods that did not begin to run because of the exclusion period, the filers shall have the full periods for filing beginning on June 20, 2020. [Administrative Order No. 2020-18; 505 Mich clviii (2020), available at <https://perma.cc/3RGY-P5MN>.]
A staff comment to AO 2020-18 further explained:
Note that although the order regarding computation of days entered on March 23, 2020, it excluded any day that fell during the State of Emergency declared by the Governor related to COVID-19, which order was issued on March 10, 2020. Thus, the practical effect of Administrative Order No. 2020-3 was to enable filers to exclude days beginning March 10, 2020. This timing is consistent with the executive orders entered by the Governor regarding the tolling of statutes of limitation. [Id. at 505 Mich clviii-clix.]
B. FACTS AND PROCEEDINGS IN THIS CASE
Plaintiff, Karen Carter, alleges that around 7:40 a.m. on January 10, 2018, while she was walking to her car to leave for work, she slipped and fell on an icy sidewalk at the apartment complex where she was a resident. The fall resulted in injuries to plaintiff‘s leg that required surgery.
On April 13, 2021, plaintiff sued DTN Management Company, the owner and operator of the apartment complex, raising counts of negligence sounding in premises liability and breach of a statutory duty to keep all common residential areas fit for their intended use under
For the sake of simplifying the procedural complexity of this case, the following time line is helpful:
| Date | Explanation |
|---|---|
| January 10, 2018 | Plaintiff sustains injuries, triggering statute of limitations |
| March 10, 2020 | COVID-19 exclusion period begins |
| June 19, 2020 | COVID-19 exclusion period ends |
| June 20, 2020 | Normal computation of time resumes |
| January 11, 20218 | Final day to file without COVID-19 exclusion period |
| April 13, 2021 | Plaintiff sues |
| April 20, 2021 | Final day to file with COVID-19 exclusion period |
Plaintiff appealed as of right. The Court of Appeals reversed, holding that AO 2020-3 excluded days from the computation of time under
Defendant applied for leave to appeal in this Court. We granted leave and directed the parties to address “whether this Court possessed the authority to issue Administrative Order Nos. 2020-3 and 2020-18.” Carter v DTN Mgt Co, 511 Mich 1025 (2023). After hearing arguments, we directed the parties to file supplemental briefing, addressing “(1) whether Gladych v New Family Homes, Inc, 468 Mich 594, 600 (2003), correctly held that statutes of limitations are substantive in nature; and, if not (2) whether Gladych should be overturned. See Robinson v City of Detroit, 462 Mich 439 (2000).” Carter v DTN Mgt Co, 513 Mich 1006 (2024). We now resolve the appeal.
II. ANALYSIS
A. STANDARD OF REVIEW
This case reaches this Court by way of plaintiff‘s initial appeal of the trial court‘s grant of defendant‘s motion for summary disposition. On appeal, we review grants and denials of summary disposition de novo. Ray v Swager, 501 Mich 52, 61-62; 903 NW2d 366 (2017). Substantively, this case concerns a question of our constitutional authority, which is a constitutional question that we also review de novo. Bauserman v Unemployment Ins Agency, 509 Mich 673, 686-687; 983 NW2d 855 (2022). Court rules are also interpreted de novo. Tyler v Findling, 508 Mich 364, 369; 972 NW2d 833 (2021). To the extent that this case asks us to interpret the administrative orders of this Court for their legal meaning rather than their legal authority, that is also a question of law that we review de novo. See CAM Constr v Lake Edgewood Condo Ass‘n, 465 Mich 549, 553; 640 NW2d 256 (2002) (explaining that “interpretation of a court rule, like a matter of statutory interpretation, is a question of law“). De novo review means we review the legal issues independently without deferring to the legal interpretation of the lower courts. Safdar v Aziz, 501 Mich 213, 217; 912 NW2d 511 (2018).
B. SOURCES OF CONSTITUTIONAL AUTHORITY
The authority of each branch of government is subject to constitutional rights, responsibilities, and limitations. The state Constitution divides the powers of government among its three branches to preserve their independence. In re 1976 PA 267, 400 Mich 660, 662; 255 NW2d 635 (1977). The separation-of-powers provision of the Michigan Constitution explains: “The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”
Specific to the role of judicial power within the separation-of-powers doctrine, we have said:
As a term that both defines the role of the judicial branch and limits the role of the legislative and executive branches, it is clear that the scope of the “judicial power” is a matter of considerable constitutional significance. Given the final authority of the judicial branch to accord meaning to the language of the constitution, the term “judicial power” cannot ultimately be defined by the Legislature any more than “unreasonable searches and seizures” or the “equal protection of the laws” can ultimately be defined by the Legislature.
The “judicial power,” although not specifically defined in the Michigan Constitution, is distinct from both the legislative and executive powers. As former Justice THOMAS COOLEY has written:
It is the province of judicial power [] to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make law for the benefit and welfare of the state. [Cooley, A Treatise on the Constitutional Limitations (Little, Brown & Co, 1886) at 92.]
The “judicial power” has traditionally been defined by a combination of considerations:
the existence of a real dispute, or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making. [Nat‘l Wildlife Fed v Cleveland Cliffs Iron Co, 471 Mich 608, 613-615; 684 NW2d 800 (2004), overruled on other grounds by Lansing Sch Ed Ass‘n v Lansing Bd of Ed, 487 Mich 349, 352 (2010)].
Thus, this case requires us to consider whether the administrative power to enter the orders at issue was within the judicial power. Our judicial power is generally thought of as the power to ” ‘hear and decide controversies, and to make binding orders and judgments respecting them.’ ” Johnson v Kramer Bros Freight Lines, Inc, 357 Mich 254, 258; 98 NW2d 586 (1959) (citation omitted). But beyond that, “the constitutional responsibility to superintend the administration of justice throughout the State” falls on us, and “[t]hat this Court has the inherent power to fulfill [this] mandate cannot be doubted.” Wayne Circuit Judges v Wayne Co, 383 Mich 10, 20-21; 172 NW2d 436 (1969), superseded 386 Mich 1 (1971).
To answer this question, we look to two constitutional provisions that articulate the powers the Constitution assigns to our branch and, specifically, to our Court. These powers, colloquially, are known as the power of superintending control and the power to regulate practice and procedure.
First, the Constitution has provided that this Court “shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court.”
Second, the Constitution directs that this Court “shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state.”
C. STATUTES OF LIMITATIONS
Statutes of limitations present a time frame during which a plaintiff may bring a lawsuit seeking damages, and after which a claim is untimely and barred. In Michigan, most statutes of limitations are specified in Chapter 58 of the Revised Judicature Act (RJA),
This Court has also enacted a court rule to provide guidance to potential litigants about how the statutory limitations period—in this case, three years—is to be computed. We have said:
In computing a period of time prescribed or allowed by these rules, by court order, or by statute, the following rules apply:
(1) The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order.
(2) If a period is measured by a number of weeks, the last day of the period is the same day of the week as the day on which the period began.
(3) If a period is measured by months or years, the last day of the period is the same day of the month as the day on which the period began. If what would otherwise be the final month does not include that day, the last day of the period is the last day of that month. For example, “2 months” after January 31 is March 31, and “3 months” after January 31 is April 30. [
MCR 1.108 ].
In addition to
The statutes of limitations or repose are tolled in any of the following circumstances:
(a) At the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.
(b) At the time jurisdiction over the defendant is otherwise acquired.
(c) At the time notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.
Statutes of limitations are at the intersection of the shared separation of powers contemplated by
The overlapping powers are obvious—the Legislature makes the policy determination of the time limit that plaintiffs have for seeking relief in our courts, and this Court instructs how the time limits will be calculated. It is this overlap that presents the parties’ exact dispute—whether this Court had the authority to enter AO 2020-3 and AO 2020-18 or whether those orders are unconstitutional because the Court usurped the authority of the legislative branch by adopting them.
In a case involving the ability of the Legislature to enact evidentiary rules, this Court adopted a new rule seeking to clarify the legislative-judicial separation of powers. McDougall, 461 Mich 15. We held that there was a distinction between substantive law and matters of practice and procedure and that ” ‘[i]f a particular court rule contravenes a legislatively declared principle of public policy, having as its basis something other than court administration . . . the [court] rule should yield.’ ” Id. at 30-31, quoting Joiner & Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich L R 623, 635 (1957) (alterations in original).
This is not the first time this Court has considered the overlapping powers of the judicial and legislative branches of the state in the context of statutes of limitations. A few years after deciding McDougall, we held that “[s]tatutes regarding periods of limitations are substantive in nature.” Gladych, 468 Mich at 600.10 In reaching this holding, Gladych expressly overruled this Court‘s prior approach in Buscaino v Rhodes, 385 Mich 474, 480; 189 NW2d 202 (1971), which considered statutes of limitations to be procedural and broadly within this Court‘s power to modify. Gladych, 468 Mich at 595. We reiterated that with statutes of limitations, the court rule controls where a statute concerns a matter that is purely procedural, but the court rule should yield if the statute is based on something other than court administration. Id. at 600, citing McDougall, 461 Mich at 26-27, 31 (quotation marks and citation omitted).
The specific issue in Gladych was whether the running of the statutory limitations period was tolled when the plaintiff made three unsuccessful attempts to serve the defendant before the limitations period lapsed. Gladych, 468 Mich at 595-596. We held that the mere act of filing a complaint did not toll the running of a statutory limitations period, but rather
III. DISCUSSION
We begin by noting a distinction between this case and our prior cases that have required us to interpret statutes of limitations. This case is unlike both Gladych and
Buscaino, in which the questions were whether the plaintiffs’ actions—timely filing a complaint but failing to serve the defendants with notice within the applicable limitations period—were in dispute. Buscaino, 385 Mich at 484; Gladych, 468 Mich at 607. In those cases, there was a direct conflict between a court rule and the tolling statute, and we were tasked with determining which authority plaintiffs were to follow. See, e.g., Buscaino, 385 Mich at 484. Here, there was no such conflict between the COVID-19 administrative orders and a statute because, as the Court of Appeals properly held, AO 2020-3 and AO 2020-18 did not toll statutes of limitations, but instead, they affected the counting of the relevant time period for purposes of
To reach this conclusion, we start by looking at the text of our orders. Our first order made clear that “any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes of
that AO 2020-3 would affect how we “counted [days] when computing the relevant time period.” Carter, 345 Mich App at 375.
When we rescinded AO 2020-3 with AO 2020-18, we again explained that the effect of the administrative orders was limited to the computation of time. Recall the text of that order, which stated:
In Administrative Order No. 2020-3, the Supreme Court issued an order excluding any days that fall during the State of Emergency declared by the Governor related to COVID-19 for purposes of determining the deadline applicable to the commencement of all civil and probate case types under
MCR 1.108(1) . Effective Saturday, June 20, 2020, that administrative order is rescinded, and the computation of time for those filings shall resume. For time periods that started before Administrative Order No. 2020-3 took effect, the filers shall have the same number of days to submit their filings on June 20, 2020, as they had when the exclusion went into effect on March 23, 2020. For filings with time periods that did not begin to run because of the exclusion period, the filers shall have the full periods for filing beginning on June 20, 2020. [AO 2020-18; 505 Mich at clviii].
Breaking this down, our first sentence, again, explains that AO 2020-3 affected
This provision is not relevant to our analysis because the parties do not raise disputes concerning the last day of the period. The question, rather, is about the “period of time . . . [which] is not included.”
The language could not have been clearer. AO 2020-3 and AO 2020-18 affected the computation of days.
Affecting the computation of days by administrative order is well within the judicial power because it falls within our authority to “modify, amend and simplify the practice and procedure in all courts of this state.”
We note that the amended language of AO 2020-3 also made an inconsequential reference to executive orders when it explained, “This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses, nor does it suspend or toll any time period that must elapse before the commencement of an action or proceeding.” AO 2020-3, as amended at 505 Mich at cxxviii. Although not relevant to our holding here, our language in fact specified that the effects of our orders were not to toll the running of any time period.
governing civil and probate cases.
This goes back to what distinguishes this case from Gladych and Buscaino. Those cases, again, directly affected the particular plaintiffs’ inability to meet statutory criteria necessary to toll the running of their statutory limitations periods. Those cases did not address notice given to all possible litigants across the state about how days falling within statutes of limitations are to be calculated or counted. Again, a “tolling statute” is defined as a “law that interrupts the running of a statute of limitations in certain situations, as when the defendant cannot be served with process in the forum jurisdiction.” Black‘s Law Dictionary (11th ed). It is specifically tied to “certain situations” related to the specific parties in a lawsuit, just as Michigan‘s tolling statute tolls in the situations related to what a plaintiff does relative to filing the complaint, serving the complaint on the defendant, and acquiring jurisdiction over the defendant. See
Just as the calculation of time under
the computation of time—as a constitutional exercise of judicial power over practice and procedure—and tolling—which is considered to be substantive law within the province of the Legislature by Gladych—is that computation of time affects all possible litigants, whereas tolling relates to one party‘s specified actions relative to the other. See, e.g., Mair v Consumers Power Co, 419 Mich 74, 83; 348 NW2d 256 (1984) (“The tolling statute‘s attention to when the defendant is notified of the action against him is consistent with the overall purpose of the statute of limitations. Tolling occurs in situations where the extension of time will not disadvantage the defendant as a result of his unawareness of the need to preserve evidence and prepare a defense. Thus, the tolling statute takes away any harshness that might occur if the plaintiff, in good faith, commenced a suit without having the merits adjudicated and later learned that because of that mistake
Through their words and effect, therefore, AO 2020-3 and AO 2020-18 affected the computation of time. They were constitutional exercises of our reserved powers under
Further, we hold that AO 2020-3 and AO 2020-18 were also valid exercises of our reserved power to exert “superintending control over all courts[.]”
At the time AO 2020-3 and AO 2020-18 were effectuated, this Court unanimously and without dissent agreed that the powers were reasonable and necessary for the administration of justice. COVID-19 presented an unprecedented, deadly, and widespread public health crisis. See In re Certified Questions, 506 Mich at 337. The same day that AO 2020-3 was enacted, an executive order instituted a statewide travel ban that did not permit travel throughout Michigan unless it was for a specified purpose—which did not include filing lawsuits. See Executive Order No. 2020-21. For litigants or their attorneys without access to electronic filing, COVID-19 would have entirely compromised their access to justice by holding the public health crisis, and its corresponding regulatory restrictions, against them—unless this Court exercised its superintending control to ensure that access was protected. Beyond filing concerns, COVID-19 may have affected attorneys’ ability to communicate with clients to gather information necessary to organize
and file complaints. This is precisely what AO 2020-3 and AO 2020-18 intended to do and exactly what they accomplished.
AO 2020-3 and AO 2020-18 were time-limited responses to an exigency of unprecedented proportion.16 They uniformly
IV. APPLICATION
Plaintiff‘s injury occurred on January 10, 2018. March 10, 2020, was the effective date of AO 2020-3. On that date, plaintiff had 10 months left to file a timely lawsuit. The days from March 10, 2020, through June 19, 2020, were “not included for purposes of
V. CONCLUSION
In effectuating AO 2020-3 and AO 2020-18, we acted under the powers reserved to us under
Kyra H. Bolden
Elizabeth T. Clement
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
VIVIANO, J. (dissenting).
The majority holds that our administrative orders issued at the beginning of the COVID-19 pandemic that had the effect of broadly tolling the running of statutory limitations periods by 102 days were valid exercises of both (1) our power to regulate practice and procedure and (2) our power to assume superintending control over all state courts. In so holding, the majority broadly expands our authority beyond that granted to us in the Constitution and tramples over separation-of-powers principles. I would conclude that issuing administrative orders extending deadlines for the initial filing of pleadings was beyond our constitutional authority. However, because the lower courts have not yet addressed plaintiff‘s alternative argument that equitable tolling is warranted in this case because she relied on our administrative orders, I would remand to the trial court for it to address that issue.
I. FACTS AND PROCEDURAL HISTORY
The majority lays out in more detail the relevant facts and procedural history, but for reference, it is helpful to briefly restate a few key points. On March 10, 2020, in response to the emerging COVID-19 pandemic, Governor Whitmer issued Executive Order No. 2020-4, declaring a state of emergency. On March 23, 2020, we issued Administrative Order No. 2020-3, which stated, in relevant part:
In light of the continuing COVID-19 pandemic and to ensure continued access to courts, the Court orders that:
For all deadlines applicable to the commencement of all civil and probate case-types, including but not limited to the deadline for the initial filing of a pleading under
MCR 2.110 or a motion raising a defense or an objection to an initial pleading underMCR 2.116 , and any statutory prerequisites to the filing of such a pleading or motion, any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes ofMCR 1.108(1) .This order is intended to extend all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency declared by the Governor related to COVID-19. . . .
This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses. Courts must have a system in place to allow filings without face-to-face contact to ensure that routine matters, such as filing of estates in probate court and appointment of a personal representative in a decedent‘s estate, may occur without unnecessary delay and be disposed via electronic or other means. [Administrative Order No. 2020-3, 505 Mich cxxvii (2020), available at <https://perma.cc/Q97F-F5KJ>.]
On April 23, 2020, Governor Whitmer issued Executive Order No. 2020-58, which purported to toll civil and probate filing deadlines, stating in relevant part:
1. Consistent with Michigan Supreme Court Administrative Order No. 2020-3, all deadlines applicable to the commencement of all civil and probate actions and proceedings, including but not limited to any deadline
for the filing of an initial pleading and any statutory notice provision or other prerequisite related to the deadline for filing of such a pleading, are suspended as of March 10, 2020 and shall be tolled until the end of the declared states of disaster and emergency.
2. Consistent with Michigan Supreme Court Administrative Order No. 2020-3, this order does not prohibit or restrict a litigant from commencing an action or proceeding whenever the litigant may choose, nor does it suspend or toll any time period that must elapse before the commencement of an action or proceeding.1
On June 12, 2020, we issued Administrative Order No. 2020-18, which rescinded AO 2020-3 effective June 20, 2020, and stated:
In Administrative Order No. 2020-3, the Supreme Court issued an order excluding any days that fall during the State of Emergency declared by the Governor related to COVID-19 for purposes of determining the deadline applicable to the commencement of all civil and probate case types under
MCR 1.108(1) . Effective Saturday, June 20, 2020, that administrative order is rescinded, and the computation of time for those filings shall resume. For time periods that started before Administrative Order No. 2020-3 took effect, the filers shall have the same number of days to submit their filings on June 20, 2020, as they had when the exclusion went into effect on March 23, 2020. For filings with time periods that did not begin to run because of the exclusion period, the filers shall have the full periods for filing beginning on June 20, 2020. [Administrative Order No. 2020-18, 505 Mich clviii (2020), available at <https://perma.cc/3RGY-P5MN>.]
That same day, Governor Whitmer issued Executive Order No. 2020-122, which rescinded Executive Order No. 2020-58 effective June 20, 2020.2 Thus, the purported effect of our
administrative orders, issued in conjunction with Governor Whitmer‘s executive orders, was to extend all filing deadlines by 102 days—the number of days from March 10 to June 19, 2020.
Regarding the present case, plaintiff‘s claim accrued on January 10, 2018, and had a three-year statutory limitations period under
II. ANALYSIS
A. SEPARATION OF POWERS AND THE AUTHORITY OF THIS COURT
Our state government is divided into three coequal branches: the legislative
Bartkowiak v Wayne Co, 341 Mich 333, 344; 67 NW2d 96 (1954), quoting 11 Am Jur, Constitutional Law, § 198, p 900.
At issue in this case is the scope of our judicial power. With limited exceptions not applicable here, “the judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish . . . .”
Our ability to change the law through court rules and administrative orders is limited by the Constitution. Specifically,
as its basis something other than court administration[,] the court rule should yield,” id. at 30-31 (cleaned up).3
As for our superintending-control authority,
B. STATUTES OF LIMITATIONS ARE SUBSTANTIVE IN NATURE AND ARE NOT SUBJECT TO OUR AUTHORITY OVER PRACTICE AND PROCEDURE
We have previously held that “[s]tatutes regarding periods of limitation are substantive in nature.” Gladych v New Family Homes, Inc, 468 Mich 594, 600; 664 NW2d 705 (2003). As a result, to the extent that a statute of limitations contradicts a court rule, the statute controls. Id. at 601. The majority takes no position on whether Gladych was correct or whether it should be overturned. But because we directed the parties to file supplemental briefs on whether Gladych was correctly decided or should be overturned,
Carter v DTN Mgt Co, 513 Mich 1006 (2024), it is worth briefly explaining why I believe Gladych‘s conclusion is sound. Gladych recognized that public policies form the basis for statutes of limitations:
“By enacting a statute of limitations, the Legislature determines the reasonable period of time given to a plaintiff to pursue a claim. The policy reasons behind statutes of limitations include: the prompt recovery of damages, penalizing plaintiffs who are not industrious in pursuing claims, security against stale demands, relieving defendants’ fear of litigation, prevention of fraudulent claims, and a remedy for general inconveniences resulting from delay.” [Gladych, 468 Mich at 600, quoting Nielsen v Barnett, 440 Mich 1, 8-9; 485 NW2d 666 (1992) (citations omitted in Gladych).]
Statutes of limitations have their basis in more than just “court administration,” and disregarding or substantively amending a statute of limitations would contravene these legislatively declared public-policy principles. McDougall, 461 Mich at 30-31.
The majority attempts to distinguish Gladych from the present case, contending that the administrative orders we issued in response to the COVID-19 pandemic did not directly conflict with the statute of limitations. Rather than tolling the running of the statutory limitations period, the majority says, AO 2020-23 and AO 2020-18 merely “affected the counting of the relevant time period for purposes of
In attempting to make a semantic distinction, the majority elevates form over substance, paying attention only to what the administrative orders purported to do while ignoring their practical effects. The majority is correct that the administrative orders purported to exclude days that fell during the state of emergency issued by the Governor related to COVID-19 from being included in the computation of time under
But the practical effect of the orders “was to toll statutory limitations periods.” Browning v Buko, 510 Mich 917, 917 (2022) (VIVIANO, J., dissenting).5
On the other hand, the practical effect of AO 2020-3 and AO 2020-18 was to broadly extend the statutory limitations period by 102 days. See Compagner v Burch, ___ Mich App ___, ___; ___ NW3d ___; slip op at 19 (2023) (Docket No. 359699) (contrasting “the minor, procedural effects of
temporal duration, designed purely to ensure that filings are not due when the courts are closed, and can properly be characterized as falling within the ‘practice and procedure’ bailiwick of the Supreme Court” with the effects of AO 2020-3, which “are vast, indefinite in duration, purporting to apply throughout the entirety of a state of emergency period that was itself wholly undefined, potentially limitless, repeatedly extended, and bounded by nothing beyond the Governor‘s sole discretion“). And this extension of statutory limitations periods occurred despite the fact that courts remained open during the COVID-19 pandemic. Id. at ___; slip op at 18.
Establishing rules for how to calculate time when the last day of a period falls on a day a court is closed is purely an issue of court administration. In order to function, courts must know how to compute time when a filing is received on a day the court is closed.7
On the other hand, a multimonth extension of statutory limitations periods during a time when courts remained open has its basis in more than mere “court administration” and contravenes the legislatively declared public-policy principles that we have recognized form the basis for such limitations periods.
The label we placed on the action in our administrative orders—purporting to affect only the computation of time under
Our Constitutional authority is not so broad, as we lack authority to redefine the limits of our judicial power.
To illustrate the problem with the majority‘s analysis, consider the following. This Court could issue an administrative order stating:
For all deadlines applicable to the commencement of all civil case-types, including but not limited to the deadline for the initial filing of a pleading under
MCR 2.110 or a motion raising a defense or an objection to an initial pleading underMCR 2.116 , and any statutory prerequisites to the filing of such a pleading or motion, any day that falls during the first 365 days after the claim accrued is not included for purposes ofMCR 1.108(1) .
Under the majority‘s analysis, that would be a valid exercise of our administrative authority under
significantly undermines it. The majority says that if an administrative action from this Court is so broad that it “affects all possible litigants” instead of just “specific parties in a lawsuit,” Gladych is distinguishable. Ante at 20-21. It is difficult to see what significant precedential value is left of Gladych in light of the majority‘s holding. Contrary to the majority‘s conclusion, because the administrative orders at issue conflict with the statute of limitations, which is substantive in nature, issuing the administrative orders was beyond our powers under
By holding otherwise, the majority disregards
Nothing in
not a proper basis for this Court acting in the name of the Legislature.” People v Gilbert, 414 Mich 191, 198; 324 NW2d 834 (1982). The concept of ” ‘separation of powers’ was obviously not instituted with the idea that it would promote governmental efficiency” but rather “as a bulwark against tyranny.” United States v Brown, 381 U.S. 437, 443; 85 S Ct 1707; 14 L Ed 2d 484 (1965).8 It is our duty to ensure that the branches of government—including our own branch—operate within the constitutionally established boundaries, particularly during times of crisis. See South Bay United Pentecostal Church v Newsom, ___ US ___, ___; 141 S Ct 716, 718; 209 L Ed 2d 22 (2021) (statement of Gorsuch, J.) (“Even in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution.“). We did not hesitate to enforce these principles during the COVID-19 pandemic when we determined that the Governor overstepped her constitutional authority. See In re Certified Questions, 506 Mich 332; 958 NW2d 1 (2020).9
Particularly concerning is what amounts to, at a minimum, the appearance of collusion between this Court and the Governor to extend statutory limitations periods. Our
administrative orders and Governor Whitmer‘s executive orders were intertwined, referencing each other and working together in an attempt to deviate from statutes of limitations that had been validly enacted by the Legislature. It is improper for one branch to encroach on the functions of another, Bartkowiak, 341 Mich at 344, but the effects of an encroachment and the potential deprivation of liberty are exacerbated when two branches work together to encroach on the functions of the third branch. While I do not believe my colleagues and I issued our administrative orders in bad faith, unlike with the legislative process, the public had no ability to observe our discussions and deliberations regarding our administrative orders, nor did they have an ability to provide input on those orders. Even the appearance of this Court‘s working with the Governor to usurp the Legislature‘s authority risks eroding public confidence in the judicial system and the functioning of our government as a whole.
For these reasons, I would hold that issuing AO 2020-3 and AO 2020-18 exceeded our authority under
C. THIS COURT CANNOT CREATE EXCEPTIONS TO STATUTES OF LIMITATIONS THROUGH SUPERINTENDING CONTROL
The majority also holds that the administrative orders were valid exercises of our
expanding the scope of our superintending authority beyond anything contemplated in the caselaw the majority relies on.
The majority relies on In re Probert, 411 Mich 210, 230; 308 NW2d 773 (1981), and In re Huff, 352 Mich at 418-419, for the proposition that “we have previously established that exercising this power is permissible during exigent circumstances.” Ante at 22. But those cases discussed our superintending control over specific judges, not a broad exercise of authority over the entire judiciary with respect to all civil and probate cases. Significantly, In re Probert never held that our superintending authority allows us to amend or deviate from legislatively enacted substantive law. On the contrary, In re Probert recognized that the purpose of our superintending-control authority is ” ‘to keep the courts themselves “within bounds” and to insure the harmonious working of our judicial system.’ ” In re Probert, 411 Mich at 229-230, quoting In re Huff, 352 Mich at 418 (some quotation marks omitted). We acknowledged the “great breadth of the power“:
” ‘The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. Moreover, if required, the tribunals having authority to exercise it will, by virtue of it, possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted. This power is not limited by forms of procedure or by the writ used for its exercise. Furthermore, it is directed primarily to inferior tribunals, and its relation to litigants is only incidental.’ ” [In re Probert, 411 Mich at 230, quoting In re Huff, 352 Mich at 417-418 (some quotation marks omitted).]
There are two important takeaways from this passage. First, while our superintending authority is broad and extraordinary, nothing in In re Probert indicates that
Second, the last sentence of the quoted passage from In re Probert demonstrates that issuing the administrative orders was outside the scope of our superintending authority. Unlike when this Court properly exercises superintending control, the actions here were not “directed primarily to inferior tribunals,” and the impacts of AO 2020-3 and AO 2020-18 on litigants were far more than “incidental.” In re Probert, 411 Mich at 230 (citations and quotation marks omitted). That is evident in this very case. The effect of the majority‘s holding is that the defendant in this case is now subject to potential liability that it would not otherwise have been subject to. Finally, relying on our superintending-control authority to extend the statute of limitations would carry the same separation-of-powers concerns discussed above.
For these reasons, I would conclude that issuing AO 2020-3 and AO 2020-18 was not authorized by our superintending-control authority.
D. EQUITABLE TOLLING
Plaintiff argues that even if this Court did not have authority to issue AO 2020-3, we should apply equitable tolling as to her because she relied on our administrative order to her detriment. The lower courts did not address this issue because the trial court interpreted AO 2020-3 as extending only deadlines that fell within the state of emergency declared by Governor Whitmer, whereas the deadline in this case was well after that period had ended.
In my dissenting statement in Browning, I discussed the history of equitable tolling of the running of statutory limitations periods when courts were completely closed or inaccessible during wartime. See generally Browning, 510 Mich at 919-921 (VIVIANO, J.,
dissenting). This common-law rule does not appear to support our administrative orders, because they were not limited to situations in which the courts were closed. Although I could not locate any Michigan cases discussing wartime court closures, this Court has discussed the interplay between the Court‘s equity power and statutes negating the application of equity. We have rejected the notion that we “may, under the veil of equity, supplant a specific policy choice adopted on behalf of the people of Michigan by their elected representatives in the Legislature.” Devillers v Auto Club Ins Ass‘n, 473 Mich 562, 589; 702 NW2d 539 (2005); see also id. at 590 (“A court‘s equitable power is not an unrestricted license for the court to engage in wholesale policymaking . . . .“).
On the other hand, “a categorical redrafting of a statute in the name of equity violates fundamental principles of equitable relief and is a gross departure from the proper exercise of the ‘judicial power.’ ” Devillers, 473 Mich at 590 n 65, quoting
Because the lower courts did not address equitable tolling, in light of my conclusion that our administrative orders are unconstitutional, I would remand this case to the trial court for it to address the issue in the first instance.
III. CONCLUSION
I do not question that these administrative orders were well-intentioned at the uncertain time when they were issued—indeed, I voted for them along with the other members of the Court. In my view, “[t]ime and reflection—which we did not have in abundance when the orders were issued—[has] reveal[ed] that we were wrong.” Browning, 510 Mich at 922 (VIVIANO, J., dissenting). As Justice Felix Frankfurter once said, “[w]isdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v Union Planters Nat‘l Bank & Trust Co, 335 U.S. 595, 600; 69 S Ct 290; 93 L Ed 259 (1949) (Frankfurter, J., dissenting). That has particular resonance here. If we are not clear-eyed about our own missteps, this Court as an institution will surely lose credibility when we evaluate—as we must from time to time—whether our coordinate branches have themselves exceeded their constitutional powers. And unfortunately, the Court‘s administrative intrusion into the legislative sphere is not an isolated case.12
David F. Viviano
Brian K. Zahra
Notes
Consistent with Michigan Supreme Court Administrative Order No. 2020-18, all deadlines applicable to the commencement of all civil and probate actions and proceedings, including but not limited to any deadline for the filing of an initial pleading and any statutory notice provision or other prerequisite related to the deadline for filing of such a pleading, are tolled from March 10, 2020 to June 19, 2020.
In computing a period of time prescribed or allowed by these rules, by court order, or by statute, the following rules apply:
(1) The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order.
(2) If a period is measured by a number of weeks, the last day of the period is the same day of the week as the day on which the period began.
(3) If a period is measured by months or years, the last day of the period is the same day of the month as the day on which the period began. If what would otherwise be the final month does not include that day, the last day of the period is the last day of that month. For example, “2 months” after January 31 is March 31, and “3 months” after January 31 is April 30.
Although McDougall addressed our rulemaking authority specifically, not our ability to issue administrative orders, the conclusion that this Court is not authorized to use its authority over practice and procedure to modify substantive law is logically applicable to administrative orders that purport to govern practice and procedure. Notably, neither party argues that McDougall‘s framework is inapplicable to this case.For time periods that started before Administrative Order No. 2020-3 took effect, the filers shall have the same number of days to submit their filings on June 20, 2020, as they had when the exclusion went into effect on March 23, 2020. For filings with time periods that did not begin to run because of the exclusion period, the filers shall have the full periods for filing beginning on June 20, 2020. [Administrative Order No. 2020-18, 505 Mich at clviii.]
Of course, the administrative orders at issue in this case did not purport to directly exercise superintending control over the Legislature. Nevertheless, Mahaney demonstrates that our superintending-control powers are bounded by separation-of-powers principles.The “general superintending control” which the Supreme Court possesses . . . “over all inferior courts,” does not extend to the judicial action of the legislative houses in the cases where it has been deemed necessary to confer judicial powers upon them with a view to enable them to perfect their organization and perform their legislative duties. The houses are not “inferior Courts,” in the sense of the constitution, but, as legislative organizations, are vested with certain powers of final decision, for reasons which are clearly imperative. [People ex rel Drake v Mahaney, 13 Mich 481, 493 (1865).]
See Browning, 510 Mich at 922 n 25 (noting that this is not “the only recent instance in which this Court‘s rulemaking has invaded the legislative sphere. See Amended Administrative Order No. 2020-17, 506 Mich lxxiv, lxxvii (2020) (VIVIANO, J., dissenting) (noting that our Court had, without proper authority, issued rules suspending statutes on landlord-tenant proceedings); see also Amendments of Michigan Court Rules 2.403, 2.404, and 2.405, 508 Mich clxi, clxxv (2021) (VIVIANO, J., dissenting) (noting that changes to our rules on the case evaluation process appeared to put our rules in direct conflict with statutes on the topic).“).[t]he last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order. [
MCR 1.108(1) ].
While the practical effect of AO 2020-3, at its farthest limits, gave litigants an additional 102 days to file their claims, we only know this with the benefit of hindsight. This raises the fundamental issue with the majority‘s reasoning: it is backward-looking, examining the effect of AO 2020-3 from the benefit of two years of experience and hindsight. However, at the time AO 2020-3 was issued in March 2020, no one knew the breadth of the impact that COVID-19 would have on our court system. Many presumed the pandemic would run its course in a matter of days or weeks. Moreover, and perhaps more importantly, the courts across the state were simply unprepared to immediately facilitate faceless, electronic filings or remote hearings. While the majority observes that Ottawa County was a leader in the move toward electronic filings, the Michigan Supreme Court was, presumably, concerned not only with Ottawa County, but every county and court system within the state. . . . In other words, what of the courts that were not open, or that, for some period of time, could not accept court filings? I must presume that the Supreme Court, when issuing AO 2020-3, was considering those corner cases when crafting the order. [Compagner v Burch, ___ Mich App ___, ___; ___ NW3d ___ (June 1, 2023) (Docket No. 359699) (K. F. KELLY, P.J., concurring in part and dissenting in part), slip op at 5-6.]