LAPEER COUNTY CLERK v LAPEER CIRCUIT COURT
Docket No. 121400
Supreme Court of Michigan
July 22, 2003
469 MICH 146
Argued December 11, 2002 (Calendar No. 12).
In an opinion by Chief Justice CORRIGAN, joined by Justices WEAVER, TAYLOR, YOUNG, and MARKMAN, the Supreme Court held:
The county clerk‘s complaint for an order of superintending control is dismissed.
1. Under
2. Apart from the circuit court clerk‘s constitutionally provided function as custodian of the court‘s records, the clerk of the circuit court is also to perform noncustodial ministerial duties as directed by the court. The determination of the noncustodial ministerial duties to be performed by the circuit court clerk is a matter of court administration and is therefore reserved exclusively for the judiciary under
3. While the general duties of the circuit court clerk are delineated in
Justice CAVANAGH concurred in the result only.
Justice KELLY, concurring in part and dissenting in part, stated that the majority was correct in determining that the issues were rendered moot but are likely to arise again and require judicial resolution, that the county clerk‘s duties as circuit court clerk includes a constitutional function as custodian of the circuit court records, and that there is no conflict between the statutes regulating the duties of the clerk of the court and the court rules.
The majority erred in concluding that, as a matter of constitutional law, the judiciary alone may regulate the noncustodial duties of the clerk of the circuit court. Because
Dismissed.
PUBLIC OFFICERS - COUNTY CLERKS - CIRCUIT COURT CLERKS - DUTIES.
Beyond being the custodian of court records, the role of the county clerk as clerk of the circuit court is purely ministerial and the exact nature of the ministerial functions is a matter of practice and procedure consigned by the constitution to the Supreme Court, and also is subject to the legitimate orders of the circuit court relating to the administration of the circuit court (
Miller, Canfield, Paddock & Stone, P.L.C. (by Michael J. Hodge, Robert A. LeFevre, and Polly Ann Synk), for the plaintiff.
Lange & Cholack, P.C. (by Craig W. Lange, Eric W. Cholack, Barbara F. Doolittle, and Tara R. Schemansky), for the intervening defendant Lapeer County.
OPINION OF THE COURT
CORRIGAN, C.J. The Lapeer County Clerk has filed a complaint for superintending control pursuant to
After careful review of the Constitution, we conclude that the clerk of the court must have the care and custody of the court records. Further, the circuit court clerk is to perform ministerial duties that are noncustodial as required by the court.
Because a clerk‘s care and custody function is contemplated by
Beyond having the care and custody of the court‘s records, the circuit court clerk is also to perform noncustodial ministerial duties as directed by the court. The determination of the precise noncustodial ministerial duties that are to be performed by the clerk, including their existence, scope, and form, is a matter of court administration and is therefore reserved exclusively for the judiciary under
I. FACTUAL AND PROCEDURAL HISTORY
In Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559, 561-564; 640 NW2d 567 (2002), this Court summarized the factual history of the case.
In 1996 PA 388, the Legislature created the family division of the circuit court. See
MCL 600.1001 et seq., effective January 1, 1998. The act consolidated in the family division jurisdiction of many types of proceedings formerly heard in the circuit court and the probate court. SeeMCL 600.1021 .
MCL 600.1011(1) provides for the development of a plan for the operation of the family division in each judicial circuit:“Not later than July 1, 1997, in each judicial circuit, the chief circuit judge and the chief probate judge or judges shall enter into an agreement that establishes a plan for how the family division will be operated in that circuit . . . .”
On February 25, 1997, this Court issued Administrative Order No. 1997-1, entitled “Implementation of the Family Division of the Circuit Court.” The order required all chief circuit and probate judges to “develop a plan for the implementation and operation of the family division, and to identify the manner in which services will be coordinated to provide effective and efficient services to families by the family division of the circuit court.” Chief judges were required to seek input from judges, court staff, and other entities providing service to families within the jurisdiction or who will be affected by the operation of the family division. The order required filing of plans with the State Court Administrative Office and approval by that office before implementation.
According to the affidavit of the chief judge of the Lapeer Circuit Court, he followed the implementation directive and met with the judges in the circuit. It was agreed that the
family division would be staffed with the employees of the probate court, who were trained in and accustomed to dealing with juvenile cases and other matters formerly within the jurisdiction of the probate court. To implement the plan, Local Administrative Order No. 2000-1 was adopted on February 2, 2000, providing:
“In order to implement the changes required by the legislation creating the Family Division of the Circuit Court (PA 374 and 388 of 1996), to enhance and clarify the procedures to be followed in the new Family Court, to clarify the role of the County Clerk in the operations of the Family Court, to merge the procedures previously followed in juvenile, child protective proceedings and ancillary proceedings into the Family Court, to maintain the Court‘s data entry system, and to adopt new procedures for efficient administration of the Family Court, the Court issues the following administrative order:
“1. The County Clerk will continue to accept pleadings, maintain files and complete entries into the Court‘s data system in all domestic cases and PPOS and shall be responsible for the care and maintenance of those records.
“2. The Family Court staff will continue to accept filings, maintain files, prepare orders and complete entries into the Court‘s data system in all juvenile cases, child protective proceedings, name changes, adoptions, and ancillary proceedings and shall be responsible for the care and maintenance of those records.
“3. The Family Court staff will be responsible for scheduling all juvenile cases, child protective proceedings, name changes, adoptions, and ancillary proceedings. In addition, the Family Court staff will be responsible for making referrals, scheduling hearings, preparation of orders and arranging pretrials and trials in domestic cases. The Family Court staff will make appropriate entries into the Court‘s data systems of these proceedings.
“4. The County Clerk staff will continue to manage the motion day dockets, no-progress docket and non-service dismissals in domestic cases. The County Clerk staff will continue to attend the domestic motion docket sessions of
the Family Court and make appropriate entries into the Court‘s data system of those proceedings.
“5. The Family Court staff shall continue to be responsible for all filing fees, receipts, disbursements and accountings for support payments, restitution, administrative and program fees, and child care funds received in juvenile cases, child protective proceedings, name changes, adoptions and ancillary proceedings. The County Clerk shall continue to accept all filing fees in domestic cases for the Family Court.
“6. Local Administrative Order 1999-2 is hereby rescinded and replaced by this order.
“This order is issued pursuant to
MCR 8.112 and will be effective upon approval by the State Court Administrator. The matters covered in this order will be reviewed on an ongoing basis and this order will expire on December 31, 2000, unless extended by order of the Court.”2On February 9, 2000, the Acting Director of Trial Court Services for the State Court Administrative Office advised the circuit court that
“we have reviewed the above referenced Administrative Order and find that it conforms with the requirements of
MCR 8.112(B) . This order is being accepted and filed until advised by your court of any change.”The Lapeer County Clerk and the Michigan Association of County Clerks filed this original action in the Court of Appeals requesting a writ of superintending control. Their complaint alleged, among other things:
“17. The Court‘s Administrative Order, No. 2000-1 violates Michigan‘s Constitution, laws, and court rules by preventing the Clerk from performing her constitutional and statutorily mandated duties. Specifically, by issuing and implementing Administrative Order No. 2000-1, the Court usurped the
Clerk‘s constitutional and statutory duties with respect to Paragraphs 2, 3, and 5 of the Order.
* * *
“18. Both family division judges in Lapeer County (Judges Preisel and Higgins) prohibit the County Clerk from performing her circuit court duties with respect to juvenile matters by preventing her from opening new cases, maintaining the care and custody of the court records, entering data into the Court‘s JIS system, performing court room functions, preventing the Clerk from assisting the public as well as other judicial staff and employees, and accounting for the court‘s finances.
* * *
“20. Judges Higgins and Preisel further refuse to allow the County Clerk to perform as Clerk of the circuit court with respect to trials.”
Plaintiffs’ complaint requested the Court of Appeals to declare unlawful the Lapeer Circuit Court administrative order, and to direct the judges of the family division of the Lapeer Circuit Court to comply with
Const 1963, art 6, § 14 , statutes, and court rules by permitting the county clerk to perform her legally authorized duties as clerk of the court for the family division of the circuit court.
Lapeer County, the local funding unit, intervened. The Court of Appeals granted the county clerk‘s request for superintending control. In re Lapeer Co Clerk, 242 Mich App 497; 619 NW2d 45 (2000). This Court granted defendants’ application for leave to appeal3 and issued an opinion per curiam holding that the Court of Appeals lacked subject-matter jurisdiction over plaintiff‘s complaint and reversing the judgment of the Court of Appeals. 465 Mich 574.
II. STATEMENT OF JURISDICTION
This Court has jurisdiction over plaintiff‘s complaint for an order of superintending control as an original action. Id.
III. CONSTITUTIONAL RULE-MAKING AUTHORITY
As stated above, the contested administrative order, LAO 2002-01 must be replaced by a new administrative order by July 1, 2003. See Supreme Court Administrative Order No. 2003-2. 467 Mich cxi (2003). Under this administrative order, the clerk must be given the opportunity to participate in the development of the plan provisions for managing court records, and the clerk may file a statement of concurrence or disagreement with the records management portion of the plan. The order also calls for mediation of disagreements at the Supreme Court‘s direction.
In light of the impending new local administrative order, we need not specifically comment on the now-superseded plan and, instead, address it in our capacity to make rules for the judiciary pursuant to
IV. CONSTITUTIONAL ANALYSIS
A. THE CONSTITUTIONAL DUTIES OF A CIRCUIT COURT CLERK
The threshold inquiry is what duties, if any, inhere in the position of clerk of the circuit court.
The office of the county clerk is constitutionally based, thus we commence our analysis by examining the Constitution itself. When interpreting the Constitution, our task is to give effect to the common understanding of the text:
“A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. ‘For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.’ (Cooley‘s Const Lim 81).” [Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971).]
Under our Constitution, the county clerk serves in the unique posture of being both an executive officer and an officer of the judicial branch.
There shall be elected for four-year terms in each organized county a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney, whose duties and powers shall be provided by law. The board of supervisors in any county may combine the offices of county clerk and register of deeds in one office or separate the same at pleasure. [Emphasis added.]
The clerk of each county organized for judicial purposes or other officer performing the duties of such office as provided in a county charter shall be clerk of the circuit court for such county. The judges of the circuit court may fill a vacancy in an elective office of county clerk or prosecuting attorney within their respective jurisdictions.
In providing that the county clerk is to be the clerk of the circuit court,
The office of clerk of the court existed in Michigan before statehood. In 1823, the United States Congress passed an act that provided, “there shall be but one clerk of the Supreme Court of the territory of Michigan, who shall perform all the duties of the clerk of said court[.]” See Scott v Detroit Young Men‘s Society‘s Lessee, 1 Doug 119, 140 (1843). The county clerk was charged with the duties of the clerk of the circuit court in 1830. Whallon v Circuit Judge for Ingham Co, 51 Mich 503, 511; 16 NW 876 (1883). The office of the circuit court clerk was incorporated into our Constitution in 1835.
judges travelled a circuit and could not suitably carry out the ministerial functions of the circuit court. Since a county clerk was maintaining county records and files, it was natural to delegate the judicial ministerial functions to the county clerk‘s office. Circuit court documents could then be filed and maintained daily at a fixed location in each county, instead of at those select times the circuit judge was in the county. [Metzger & Conley, Relationship of the county clerk to the circuit court, 60 Mich BJ 849 (1981).]
In addition to the clerk‘s custodial duties, there are undoubtedly numerous other duties that have historically been performed for the circuit court by the clerk. Although the complete scope of these noncustodial duties is unclear, what is clear is that throughout the history of the office, these noncustodial duties have been purely ministerial in nature. For example, the Revised Statutes of 1838, tit 1, ch 6, § 10, provided that upon court recess, the clerk of the circuit court was to make a complete record of all cases finally determined and present the record to the judge at the start of the next term. In 1840, the law provided that the court clerk would be paid ten cents a folio for making a complete record of a case if required to do so by a party. See Emery v Whitwell, 6 Mich 474, 486 (1859).7 Court clerks also computed amounts due on bonds,8 generated transcripts,9 filed transcripts,10
There is no evidence that the common understandings of the custodial and ministerial functions of the circuit court clerk have changed significantly since the enactment of the Constitution of 1835. See, e.g., Sabbe v Wayne Co, 322 Mich 501, 503; 33 NW2d 921 (1948) (describing the role of county clerks in the circuit court as “purely ministerial“). Therefore, it appears that at the time the people ratified the Constitution of 1963, the common understanding of the term “clerk of the circuit court” was that the clerk
B. THE CUSTODIAL FUNCTION
As stated above, the historical evidence surrounding
The scope of the custodial function is limited. Historically, circuit court clerks acted as guardians of court records, ensuring their safekeeping as the judges rode from circuit to circuit. The circuit court clerk‘s role of having the care and custody of the records must not be confused with ownership of the records. As custodian, the circuit court clerk takes care of the records for the circuit court, which owns the records. Nothing in the constitutional custodial function gives the circuit court clerk independent ownership authority over court records. Accordingly, the clerk must make those records available to their owner, the circuit court. The clerk is also obligated to make the records available to members of the public, when appropriate.
In addition to the custodial function, the Constitution contemplates noncustodial ministerial duties. In order to determine the scope of a circuit court clerk‘s noncustodial ministerial duties, because they are subject to change, we must first ascertain who has the authority to define the noncustodial ministerial duties of the court clerk. Again, we turn first to the constitutional text. Our Constitution specifically addresses the doctrine of separation of powers:
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. [
Const 1963, art 3, § 2 .]
As stated above, the Constitution expressly provides that the county clerk, an executive officer, shall also be an officer of the judicial branch. It does not follow, however, that the executive branch then has the ability to control that aspect of the judicial branch.
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 by a two-thirds vote of the members elected and serving in each house. [Emphasis added.]
Further,
The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all
courts of this state. The distinctions between law and equity proceedings shall, as far as practicable, be abolished. The office of master in chancery is prohibited. [Emphasis added.]
Again, no constitutional provision should be construed to nullify or impair another. In re Probert, supra. To interpret
Further, to so interpret art 7, § 4 would violate the separation of powers doctrine of
The judicial powers derived from the Constitution include rulemaking, supervisory and other administrative powers as well as traditional adjudicative ones. They have been exclusively entrusted to the judiciary by the Constitution and may not be diminished, exercised by, nor interfered with by the other branches of government without constitutional authorization. [In re 1976 PA 267, 400 Mich 660, 663; 225 NW2d 635 (1977).]
[N]o court, in the exercise of its functions, can be lawfully subjected to the control or interference of any executive or ministerial authority, or can receive directions for any purpose except from such other courts as are authorized by the Constitution to have “superintending control over inferior courts.” No court has a right to allow any other interference or to submit to it.
And in this same regard it is also very clearly settled by the Constitution that judicial power can only be vested in courts and judicial officers[.]
In Whallon, supra at 508, the Court explained that the circuit court clerks “are officers of the court, and subject to its direction in all things necessary to a proper administration of the law during its sessions.” Further, in Smith v Kent Circuit Judge, 139 Mich 463, 464; 102 NW 971 (1905), the Court noted that the clerk of the circuit court, although also an executive officer, is subject to all legitimate court orders:
The county clerk is a constitutional officer (
Const. § 12, art. 6 ), and is by that section made the clerk of the circuit court of such county. Section 221, 1 Comp. Laws, requires him to attend every term of court; gives him the care of all the records, seals, books, and papers pertaining to the office of the clerk of such court, and filed or deposited therein. Neither the Constitution nor the statute prescribes his duties. He is therefore subject to all the legitimate orders of the court of which he is clerk. [Emphasis added.]
Finally, in McDougall v Schanz, 461 Mich 15, 30-31; 597 NW2d 148 (1999), this Court recently addressed its exclusive constitutional authority regarding rules
Therefore, we hold that prescribing the exact nature of a clerk‘s noncustodial ministerial functions is a matter of practice and procedure in the administration of the courts. Accordingly, the authority to prescribe the specific noncustodial ministerial duties of the clerk of the circuit court lies exclusively with the Supreme Court under
As such, the judiciary is vested with the constitutional authority to direct the circuit court clerk to perform noncustodial ministerial duties pertaining to court administration as the Court sees fit. This authority includes the discretion to create duties, abolish duties, or divide duties between the clerk and other court personnel, as well as the right to dictate the scope and form of the performance of such noncustodial ministerial duties.
IV. EFFECT OF STATUTES AND COURT RULES
Prescribing the duties that arise under the clerk‘s noncustodial ministerial function is a matter of court procedure and administration. We have already concluded that the Constitution grants this Court the exclusive authority to determine, as a matter of court administration, which duties comprise the noncustodial ministerial functions of the circuit court clerk and how those duties are to be performed. Therefore, should the Legislature enact statutory duties that conflict with this Court‘s enumeration of duties in the court rules, the court rules must prevail. McDougall,
We conclude that the statutes pertaining to the duties of the county clerk are in harmony with our court rules.
As director of the administration of the court, a chief judge shall have administrative superintending power and control over the judges of the court and all court personnel with authority and responsibility to:
(a) supervise caseload management and monitor disposition of the judicial work of the court;
(b) direct the apportionment and assignment of the business of the court, subject to the provisions of
MCR 8.111 ;(c) determine the hours of the court and the judges; coordinate and determine the number of judges and court personnel required to be present at any one time to perform necessary judicial and administrative work of the court, and require their presence to perform that work;
(d) supervise the performance of all court personnel, with authority to hire, discipline, or discharge such personnel, with the exception of a judge‘s secretary and law clerk, if any;
(e) coordinate judicial and personnel vacations and absences, subject to the provisions of subrule (D);
* * *
(h) effect compliance by the court with all applicable court rules and provisions of the law; and
MCR 8.105 sets forth the general duties of circuit court clerks:
(A) Office Hours. The office of the clerk of every court of record must be open, and the clerk or deputy clerk must be in attendance, during business hours on all days except Saturdays, Sundays, and legal holidays, and at other times that the court is in session.
(B) Court Records and Reporting Duties. The clerk of every circuit court shall maintain court records21 and make reports as prescribed by
MCR 8.119 .(C) Notice of Judgments, Orders, and Opinions. Notice of a judgment, final order, written opinion or findings filed or entered in a civil action in a court of record must be given forthwith in writing by the court clerk to the attorneys of record in the case, in the manner provided in
MCR 2.107 .(D) Filing of Assurance of Discontinuance Under
MCL 445.870 . . . . The clerk of every judicial circuit shall, without charge, receive and file an assurance of discontinuance accepted by the Attorney General underMCL 445.870 . . . .
(A) Applicability. This rule applies to all actions in every trial court except that subrule (D)(1) does not apply to civil infractions.
(B) Records Standards. The clerk of the court shall comply with the records standards in this rule and as prescribed by the Michigan Supreme Court.
(C) Filing of Papers. The clerk of the court shall endorse on the first page of every document the date on which it is filed. Papers filed with the clerk of the court must comply with Michigan Court Rules and Michigan Supreme Court records standards. The clerk of the court may reject papers which do not conform to MCR 2.113(C)(1) andMCR 5.113(A)(1) .(D) Records Kept by the Clerk. The clerk of the court of every trial court shall keep records in the form and style the court prescribes and in accordance with Michigan Supreme Court records standards and local court plans. A court may adopt a computerized, microfilm, or word-processing system for maintaining records that substantially complies with this subrule.
(1) Indexes and Case Files. The clerk shall keep and maintain records of each case consisting of a numerical index, an alphabetical index, a register of actions, and a case file in such form and style as may be prescribed by the Supreme Court. . . .
* * *
(2) Calendars. The clerk may maintain calendars of actions. A calendar is a schedule of cases ready for court action that identifies times and places of activity.
* * *
(4) Other Records. The clerk shall keep in such form as may be prescribed by the court, other papers, documents, materials, and things filed with or handled by the court including but not limited to wills for safekeeping, exhibits and other discovery materials, requests for search warrants, marriage records, and administrative activities.
(E) Access to Records. The clerk may not permit any record or paper on file in the clerk‘s office to be taken from it without the order of the court.
(1) Unless access to a file, a document, or information contained in a file or document is restricted by statute, court rule, or an order entered pursuant to subrule (F), any person may inspect pleadings and other papers in the
clerk‘s office and may obtain copies as provided in subrule (E)(2) and (E)(3). (2) If a person wishes to obtain copies of papers in a file, the clerk shall provide copies upon receipt of the reasonable cost of reproduction. If the clerk prefers, the requesting person may be permitted to make copies at personal expense under the direct supervision of the clerk. Except for copies of transcripts or as otherwise directed by statute or court rule, a standard fee may be established for providing copies of papers in a file.
* * *
(4) Every court, shall adopt an administrative order pursuant to
MCR 8.112(B) to(a) make reasonable regulations necessary to protect its public records and prevent excessive and unreasonable interference with the discharge of its functions;
* * *
(G) Reporting Duties.
(1) The clerk of every court shall submit reports and records as required by statute and court rule.
(2) The clerk of every court shall submit reports or provide records as required by the State Court Administrative Office, without costs. [Emphasis added.]
The county clerk of each county shall
(a) Be the clerk of the circuit court for the county.
(b) Attend the circuit court sessions.
(c) Appoint in counties with more than 1 circuit judge or having more than 100,000 population but less than 1,000,000 a deputy for each judge and approved by the judge to attend the court sessions. Each deputy shall receive a salary of at least $6,500.00.
(d) On the first day of each court term render an accounting to the court of all funds, stocks or securities deposited with the court clerk pursuant to court order.
(e) Within 10 days after the beginning of each court term pay over to the county treasurer all fees belonging to the county received during the preceding court term together with an accounting thereof. (f) Have the care and custody of all the records, seals, books and papers pertaining to the office of the clerk of such court, and filed or deposited therein, and shall provide such books for entering the proceedings in said court, as the judge thereof shall direct.
(g) Perform such duties as may be prescribed by court rule. Whenever in any statute of this state, the designation “register in chancery” occurs, it shall be deemed to apply to the clerk of the circuit court. [Emphasis added.]
We find no conflict in the court rules and the statutes in this area, and note that this reinforces our analysis of the historical understanding of the role of the circuit court clerk as discussed above.
In addition,
As with circuit court, the county clerk is the clerk of the court for the family division of the circuit court.
Finally,
(1) At the time of commencing an ancillary guardianship or limited guardianship proceeding in the family division of circuit court, the party commencing the proceeding shall pay a $50.00 filing fee to the family division of circuit court.
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(3) The clerk of the court, on or before the fifth day of the month following the month in which any fees are collected under this section, shall transmit to the county treasurer all fees collected under this section during the preceding month. Within 15 days after receiving the fees, the county treasurer shall transmit all fees collected to the state treasurer for deposit in the state court fund created by section 151a. [Emphasis added.]
Taken together, the statutes merely reiterate
VI. CONCLUSION
The constitutionally created office of the clerk of the circuit court must have the care and custody of the court records and can perform noncustodial ministerial functions of the court. The custodial function requires that the clerk act as guardian of the records, providing for their safekeeping. The clerk‘s noncus
The complaint for superintending control is dismissed.
WEAVER, TAYLOR, YOUNG, and MARKMAN, JJ., concurred with CORRIGAN, C.J.
CAVANAGH, J., concurred in the result only.
KELLY, J. (concurring in part and dissenting in part). I agree that intervening circumstances render moot the issues presented in this case. However, they will arise again and require judicial resolution. Therefore, I agree that the Court should address the issues at this time. I write separately to indicate that I believe that certain of the majority‘s findings and its legal analysis are incorrect.
SEPARATION OF POWERS—PRUDENTIAL CONCERNS
The complex environment of the trial court requires that we allow chief judges to manage the day-to-day operation of their courts. Judicial Attorneys Ass‘n v Michigan, 459 Mich 291, 298-299; 586 NW2d 894 (1998). Accordingly, our court rules provide chief judges latitude in adapting the administration of their courts to their particular circumstances.1
Our Legislature is also cognizant of the needs of the circuit courts. Hence, it drafted
The majority apparently agrees with this conclusion. Ante at 165-170. Yet, it engages in further analysis. In doing so, it holds that, as a matter of constitutional law, the judiciary alone may regulate the noncustodial duties of the clerk of the circuit court. By reaching this issue, the majority violates the principle that we will not address a constitutional question unless necessary. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). However, because I do not believe
COUNTER-ANALYSIS
The Michigan Constitution vests this Court with the authority to prescribe the rules of practice and procedure in the courts.
Moreover, this Court has long recognized that
[i]t is simply impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws. The proper exercise of each of these three great powers of government necessarily includes some ancillary inherent capacity to do things which are normally done by the other departments.
Thus, both the legislative department and the judicial department have certain housekeeping chores which are prerequisite to the exercise of legislative and judicial power. And, to accomplish those housekeeping chores both departments have inherently a measure of administrative authority not unlike that primarily and exclusively vested in the executive department. [Wayne Circuit Judges v Wayne Co, 383 Mich 10, 20-21; 172 NW2d 436 (1969), superseded by 386 Mich 1; 190 NW2d 228 (1971) (On Rehearing).]
The majority carries this rationale much further, asserting that, if
The powers of the government are divided into three branches; legislative, executive, and judicial. No person exercising the powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. [
Const 1963, art 3, § 2 .]
Thus, while our Constitution mandates separation of powers, that mandate is qualified to allow the exercise of one branch‘s power by another branch when the Constitution expressly provides for it. It appears to me that
There is some support for the conclusion that the drafters of the Constitution made the county clerk the clerk of the circuit court to provide a check against judicial power.3 Consequently, it is possible that
If we ascribe to
I conclude that the Constitution has provided the Legislature with the authority to define and limit the ministerial noncustodial duties that the clerk of the circuit court may perform. However, because neither the Constitution nor any legislative enactments at present limit the clerk‘s ministerial duties, the clerk is subject to all the legitimate orders of the court.
I agree with the majority‘s conclusion that the issues presented in this case are moot but should be addressed at this time. Additionally, I agree that the Constitution protects the clerk‘s function as custodian of circuit court records. Finally, I agree that there is no conflict between the statutes regulating the duties of the clerk of the court and the court rules.
Beyond these limited observations, I cannot agree with the majority opinion.
Notes
(2) As the presiding officer of the court, a chief judge shall:(c) initiate policies concerning the court‘s internal operations and its position on external matters affecting the court; * * * (3) As director of the administration of the court, a chief judge shall have administrative superintending power and control over the judges of the court and all court personnel with authority and responsibility to: (a) supervise caseload management and monitor disposition of the judicial work of the court, (b) direct the apportionment and assignment of the business of the court, subject to the provisions of MCR 8.111 ; * * * (f) supervise court finances, including financial planning, the preparation and presentation of budgets, and financial reporting; * * * (i) perform any act or duty or enter any order necessarily incidental to carrying out the purposes of this rule.
Remember that the clerk is the one that has charge of all the records of the circuit court. The clerk writes the journal. And, you know, the circuit judges can‘t conceal too much, because every day there is a diary written of their doings and they sign it every day, and you can find it 1,000 years from now if the records are kept. [1 Official Record, Constitutional Convention 1961, p 1371.]
The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state. The distinctions between law and equity proceedings shall, as far as practicable, be abolished. The office of master in chancery is prohibited.