Opinion
ADM File No. 2003-59.
November 27, 2007.
On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, the following amendments of Rules 2.112 and 7.206 of the Michigan Court Rules are adopted, effective January 1, 2008.
[Additions are indicated by underlining and deletions are indicated by strikeover.]
Rule 2.112 Pleading Special Matters
(A)-(G)[Unchanged.]
(H) Statutes, Ordinances, or Charters. In pleading a statute, ordinance, or municipal charter, it is sufficient to identify it, without stating its substance, except as provided in subrule (M).
(I)-(L) [Unchanged.]
(M) Headlee Amendment Actions. In an action alleging a violation of Const 1963, art 9, §§ 25-34, the factual basis for the alleged violation or a defense must be stated with particularity. In an action involving Const 1963, art 9, § 29, the plaintiff must state with particularity the type and extent of the harm and whether there has been a violation of either the first or second sentence of that section. In an action involving the second sentence of Const 1963, art 9, § 29, the plaintiff must state with particularity the activity or service involved. All statutes involved in the case must be identified, and copies of all ordinances and municipal charter provisions involved, and any available documentary evidence supportive of a claim or defense, must be attached to the pleading. The parties may supplement their pleadings with additional documentary evidence as it becomes available to them.
Rule 7.206 Extraordinary Writs, Original Actions, and Enforcement Actions.
(A)-(C) [Unchanged.]
(D) Actions for Extraordinary Writs and Original Actions.
(1) Filing of Complaint. To commence an original action, the plaintiff shall file with the clerk:
(a) for original actions filed under Const 1963, art 9, §§ 25-34, 5 copies of a complaint (one signed) that conforms to the special requirements of MCR 2.112(M), and which indicates whether there are any factual questions that must be resolved; for all other extraordinary writs and original actions, 5 copies of a complaint (one signed), which may have copies of supporting documents or affidavits attached to each copy;
(b)-(d) [Unchanged.]
(2) Answer. The defendant or any other interested party must file with the clerk within 21 days of service of the complaint and any supporting documents or affidavits:
(a) for original actions filed under Const 1963, art 9, §§ 25-34, 5 copies of an answer to the complaint (one signed) that conforms to the special requirements of MCR 2.112(M), and which indicates whether there are any factual questions that must be resolved; for all other extraordinary writs and original actions, 5 copies of an answer to the complaint (one signed), which may have copies of supporting documents or affidavits attached to each copy.
(b)-(c)[Unchanged.]
(3) [Unchanged.]
(E) [Unchanged.]
Staff Comment: The amendments establish special pleading requirements in actions alleging a violation of the Headlee Amendment, Const 1963, art 9, §§ 25-34. The amendments require that a complaint or answer state the factual basis for an alleged violation or defense with particularity. Additionally, documentary evidence supportive of a claim or defense must be attached to the pleading as an exhibit.
The staff comment is not an authoritative construction by the Court.
APPENDIX A
Note: the underscored text represents the newly adopted amendments affecting Headlee Amendment actions.
Michigan Court Rule 2.112 — Pleading Special Matters
(A)-(G) [Unchanged.]
(H) Statutes, Ordinances, or Charters. In pleading a statute, ordinance, or municipal charter, it is sufficient to identify it, without stating its substance, except as provided in subrule (M).
(I)-(L) [Unchanged.]
(M) Headlee Amendment Actions. In an action alleging a violation of Const 1963, art 9, §§ 25-34, the factual basis for the alleged violation or a defense must be stated with particularity. In an action involving Const 1963, art 9, § 29, the plaintiff must state with particularity the type and extent of the harm and whether there has been a violation of either the first or second sentence of that section. In an action involving the second sentence of Const 1963, art 9, § 29, the plaintiff must state with particularity the activity or service involved. All statutes involved in the case must be identified, and copies of all ordinances and municipal charter provisions involved, and any available documentary evidence supportive of a claim or defense, must be attached to the pleading. The parties may supplement their pleadings with additional documentary evidence as it becomes available to them.
Michigan Court Rule 7.206 — Extraordinary Writs, Original Actions, and Enforcement Actions.
(A)-(C) [Unchanged.]
(D) Actions for Extraordinary Writs and Original Actions.
(1) Filing of Complaint. To commence an original action, the plaintiff shall file with the clerk:
(a) for original actions filed under Const 1963, art 9, §§ 25-34, 5 copies of a complaint (one signed) that conforms to the special requirements of MCR 2.112(M), and which indicates whether there are any factual questions that must be resolved; for all other extraordinary writs and original actions, 5 copies of a complaint (one signed), which may have copies of supporting documents or affidavits attached to each copy;
(b)-(d) [Unchanged.]
(2) Answer. The defendant or any other interested party must file with the clerk within 21 days of service of the complaint and any supporting documents or affidavits:
(a) for original actions filed under Const 1963, art 9, §§ 25-34, 5 copies of an answer to the complaint (one signed) that conforms to the special requirements of MCR 2.112(M), and which indicates whether there are any factual questions that must be resolved; for all other extraordinary writs and original actions, 5 copies of an answer to the complaint (one signed), which may have copies of supporting documents or affidavits attached to each copy.
(b)-(c)[Unchanged.]
(3) [Unchanged.]
I concur with this Court's adoption of the amendments to MCR 2.112 and 7.206. I write to respond to Justice Weaver's assertion that the "amendments are another attempt by the majority to reduce the ability of the average taxpayer, who is unlikely to have legal experience, to seek enforcement of the Headlee Amendment. . . ." Justice Weaver's criticisms ignore the practical difficulties associated with the Court of Appeals exercise of original jurisdiction over Headlee claims.
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The Headlee Amendment vests original jurisdiction in the Court of Appeals for claims arising under its provisions. The people of the state of Michigan chose to vest the Court of Appeals with original jurisdiction, and we are without authority to circumvent the import of what the constitution requires. We are, however, confronted with certain practical difficulties that inhere when an appellate court, such as the Court of Appeals, is required to exercise original jurisdiction over complex legal claims that require factual development.
Const 1963, art 9, §§ 25 to 34.
Id., § 32 ("Any taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article and, if the suit is sustained, shall receive from the applicable unit of government his costs incurred in maintaining such suit.").
The Court of Appeals is not a trial court. In Michigan, the circuit courts and other lower courts are generally vested with the responsibility of aiding the parties in developing the facts that define and ultimately decide their claims and defenses. Trial courts are designed efficiently to preside over discovery matters, pretrial hearings, and ultimately a trial on the merits. Those are the means that our system of justice uses to fully and efficiently develop the facts underlying the parties' claims.
The Michigan Constitution expressly provides that the circuit court is Michigan's trial court. Const 1963, art 6, § 1 ("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. . . ." [Emphasis added.]).
None of the tools available to our circuit courts for processing trials are available in the Court of Appeals. Thus, the Court of Appeals is poorly suited and equipped for factual development of new claims. The Court of Appeals primary function is revisionary; it reviews claims and defenses and assesses their merits well after the parties have had the opportunity fully to develop the facts in the lower courts. As such, the Court of Appeals is ill-equipped to evaluate the claims and defenses in a complex and fact-intensive original action without the assistance of the parties in developing the factual bases for their claims and defenses.
Justice Weaver's criticisms fail to recognize how the practical difficulties associated with the Court of Appeals exercise of original jurisdiction over Headlee claims have affected the very same claimants whose cause she purports to trumpet. This Court and the Court of Appeals have experienced repeated frustration with evaluating complaints that only assert generalized claims based on the Headlee Amendment. Pursuant to MCR 7.206(A), plaintiffs filed complaints asserting only generalized factual allegations. As with other fact-intensive claims, generalized pleading proved problematic because of the complex and fact-intensive nature of Headlee claims. As a result, the Court of Appeals dismissed several complaints for a failure to state a claim on which relief could be granted. Following those dismissals, this Court was in no better position than the Court of Appeals to evaluate the generalized pleadings.
See MCR 2.111(B)(1).
See MCR 2.112(B) (requiring that claims of fraud and mistake "must be stated with particularity").
See, e.g., Duverney v Big Creek Mentor Utility Auth, unpublished order of the Court of Appeals, entered January 10, 2003 (Docket No. 243866); Ben Drew Co v Ontwa Twp, unpublished order of the Court of Appeals, entered June 9, 2003 (Docket No. 248286); see also Wayne Co Bd of Comm'rs v Wayne Co Airport Auth, 253 Mich App 144, 169-170 (2002) (dismissing claims with prejudice on motion for summary disposition when the plaintiff failed to substantiate claims of Headlee violations).
See, e.g., Duverney v Big Creek-Mentor Utility Auth, 469 Mich 1042 (2004) (vacating and remanding for the plaintiffs to "amend their complaint so as to more specifically allege a violation of Const 1963, art 9, § 31."); Ben Drew Co, LLC v Ontwa Twp, 472 Mich 886 (2005) (denying leave to appeal).
Justice Weaver argues that the amendments are "unfair and overly burdensome" because they "require legal reasoning by the average non-lawyer taxpayer. . . ." Complexity, however, pervades Headlee claims. This Court has, by necessity, recognized two distinct claims that may be pursued under article 9, § 29. Each claim under § 29 involves separate and distinct factual support. It would indeed be an injustice if a complaint were dismissed due to a misunderstanding of which claim the plaintiff intended to advance. The amendments to MCR 2.112 and 7.206 are designed to prevent such an unfortunate result.
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See Adair v Michigan, 470 Mich 105, 111 (2004) (distinguishing the "maintenance of support" [MOS] provision and the "prohibition on unfunded mandates" [POUM] provision); Const 1963, art 9, § 29.
For a MOS claim, a plaintiff must show "`(1) that there is a continuing state mandate, (2) that the state actually funded the mandated activity at a certain proportion of necessary costs in the base year of 1978-1979, and (3) that the state funding of necessary costs has dipped below that proportion in a succeeding year.'" Adair, supra at 111 (citation omitted). For a POUM claim, a plaintiff must show "that the state-mandated local activity was originated without sufficient state funding after the Headlee Amendment was adopted or, if properly funded initially, that the mandated local role was increased by the state without state funding for the necessary increased costs." Id.
The amendments do nothing to increase either the complexity of the issues or the facts necessary to ultimately prove or disprove either type of claim under § 29. Rather, instead of leaving the Court of Appeals to guess about the basis of the claim and the factual support for it, the rules now require that the parties frame their claims and present their factual support at the outset of the proceeding.
Justice Weaver also argues that the requirement of five copies of the complaint and the plaintiff's supporting documents will prove to be cost prohibitive for Headlee claimants. I simply note that the copying requirements (steps four, five, and six in Justice Weaver's "six detailed legal procedural steps") are consistent with the copying requirements for all other original actions in the Court of Appeals.
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The amendments to MCR 2.112 and 7.206 that this Court adopts today serve to ensure that all parties involved in a Headlee claim — plaintiffs included — receive a full, fair, and accurate judicial assessment of the issues presented in their claims and defenses. The amendments are not a great disservice to the average taxpayer as Justice Weaver contends. Rather, they serve to remedy the otherwise unavoidable practical issues involved in the Court of Appeals exercise of original jurisdiction over claims that involve complex factual questions. This approach ensures fairness to all parties.
CORRIGAN, J., concurred with YOUNG, J.
I dissent from the majority's adoption of the court rule amendments of MCR 2.112 and 7.206 because the court rule amendments require particularized fact pleading in Headlee Amendment claims and effectively reduce the right of any taxpayer of the state to bring a suit to enforce the provisions of the Headlee Amendment.
[T]he Headlee Amendment was "part of a nationwide `taxpayers revolt' . . . to limit legislative expansion of requirements placed on local government, to put a freeze on what they perceived was excessive government spending, and to lower their taxes both at the local and the state level." Durant v State Bd of Ed, 424 Mich 364, 378 (1985).
The Headlee Amendment, presented in an initiative petition, Proposal E, that Michigan voters ratified during the November 7, 1978, general election, added §§ 25 to 34 to article 9 of the Michigan Constitution. Appendix A sets forth the amendments of MCR 2.112 and 7.206 affecting actions concerning the Headlee Amendment provisions enacted by the voters.
The court rule amendments are another attempt by the majority to reduce the ability of the average taxpayer, who is unlikely to have legal experience, to seek enforcement of the Headlee Amendment because the court rule amendments make it more difficult for the average nonlawyer taxpayer to exercise his or her constitutional right to file a suit to seek enforcement of the Headlee Amendment provisions.
The court rule amendments are unfair and overly burdensome because they require the nonlawyer taxpayer to perform six detailed legal procedural steps whenever that taxpayer seeks enforcement of the Headlee Amendment. Specifically, in order to bring suit to enforce the Headlee Amendment, the nonlawyer taxpayer must:
(1) "state with particularity the type and extent of the harm,"
(2) identify whether the complaint is with respect to the state's reduction of "the state financed proportion of the necessary costs of any existing activity or service" required of local government or whether the complaint concerns a failure by the state to appropriate additional funds for any new activity or service beyond that required by existing law and, if the latter applies, state with particularity the activity or service involved, see Const 1963, art 9, § 29,
(3) identify all pertinent statutes,
(4) provide five copies of a complaint for an original action,
(5) provide five "copies of all ordinances and municipal charter provisions involved," and
(6) include "any available documentary evidence supportive of a claim or defense."
The creation of these six additional legal pleading requirements for bringing a claim under the Headlee Amendment will often result in a difficult obstacle and an expensive burden for the average taxpayer. Such results are contrary to the intent of the Headlee Amendment.
In Adair v Michigan, 470 Mich 105, 144 (2004), I dissented from the majority's previous attempt to discourage the enforcement of the Headlee Amendment. In that case, I objected to the majority of four's evisceration of standing to bring suit under the Headlee Amendment when that majority, through its judicially created broad application of res judicata requirements, sought to preclude taxpayer claims. There I stated:
Const 1963, art 9, § 29 provides in part:
"The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the [level] of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs."
Standing to pursue violations of this section, as well as other sections of the Headlee Amendment, is given to all taxpayers in the state. Const 1963, art 9, § 32 provides:
" Any taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of the Article, and, if the suit is sustained, shall receive from the applicable unit of government his costs incurred in maintaining such suit. [Emphasis added.]"
* * *
Art 9, § 32 gives " any taxpayer of the state" standing to enforce the provisions of the Headlee Amendment. This grant of standing is consistent with the amendment's purpose, which, as explained by this Court, is to limit the expansion of legislative requirements placed on local governments. . . . Consequently, it is extremely doubtful that the people of this state would have expected their ability to enforce the Headlee Amendment to be hampered by the broad application of res judicata that the majority imposes. Rather, as explained below, a "common understanding" of the people would suggest the opposite conclusion — that the Constitution's grant of standing under art 9, § 32 to " any taxpayer" is just that — a broad grant of standing that permits any taxpayer to pursue actions necessary to enforce the provisions of the Headlee Amendment. [ Id. at 142-145 (some emphasis added).]
Under the new court rule amendments, the average nonlawyer taxpayer will be required to "state with particularity the type and extent of the harm" alleged and to identify (1) whether the complaint is with respect to the state's reduction of "the state financed proportion of the necessary costs of any existing activity or service" required of local units of government or (2) whether the complaint concerns a failure by the state to appropriate additional funds (to be disbursed to local units of government) for any new activity or service beyond that required by existing law. These unduly burdensome requirements will likely discourage taxpayers from attempting to seek enforcement of the Headlee Amendment because filing a claim will often be too difficult and too expensive for the average nonlawyer taxpayer.
A nonlawyer taxpayer who wants to bring an action to enforce the Headlee Amendment, but who cannot afford the assistance of legal counsel, will be unduly burdened by these court rule amendments, because the court rule amendments require legal reasoning by the average nonlawyer taxpayer and, further, because collecting the voluminous records that must be filed with the complaint will be difficult for the taxpayer to accomplish, given the likelihood that the average nonlawyer taxpayer lacks both the legal experience and the funds required to properly file a complaint. Lawyers are trained professionally how to research statutes and ordinances and how to properly plead claims supported by relevant evidence. Under the new court rule amendments, the average taxpayer, untrained in the law, will have to complete these additional six procedural pleading requirements just to file a complaint. As such, the average taxpayer will essentially be required to "fill the shoes of an attorney," a nearly insurmountable task for some people, which will likely result in a reduction in the number of Headlee Amendment complaints filed.
This result is inconsistent with art 9, §§ 29 and 32 and contrary to the people's understanding that " any taxpayer" would have a fair opportunity to seek enforcement of the Headlee Amendment. The right to have a fair opportunity to bring a Headlee Amendment claim is a constitutionally guaranteed right available to all taxpayers, not just those who have attended law school or those who can afford to employ attorneys for their assistance.
I dissent from the adoption of the court rule amendments of MCR 2.112 and MCR 7.206. The court rule amendments are contrary to the intent of the Headlee Amendment, frustrate the broad grant of standing provided to taxpayers by § 32, and will essentially preclude the average taxpayer from seeking enforcement of the Headlee Amendment provisions.
CAVANAGH, J., concurred with WEAVER, J.