Opinion
No. 130966.
October 20, 2006.
Certified Question Declined October 20, 2006.
The motion to file amicus curiae brief is considered, and it is granted. The question certified by the United States Bankruptcy Court for the Eastern District of Michigan is considered, and the Court respectfully declines the request to answer the certified question.
I concur in the order declining to answer the question certified by the United States Bankruptcy Court for the Eastern District of Michigan, because I continue to question this Court's constitutional authority to hear questions certified from federal courts. See, e.g., In re Certified Questions (Melson v Prime Ins Syndicate, Inc), 472 Mich 1225 (2005); Proposed Amendment of MCR 7.305, 462 Mich 1208 (2000); In re Certified Question (Wayne Co v Philip Morris, Inc), 622 NW2d 518 (2001); In re Certified Question (Kenneth Henes Special Projects Procurement, Marketing Consulting Corp v Continental Bio-mass Industries, Inc), 468 Mich 109 (2003). Justice YOUNG also questioned this Court's authority to answer questions certified by the federal courts. Justice LEVIN also questioned this Court's authority. Therefore, I decline to answer the question in this case.
See In re Certified Question (Wayne Co v Philip Morris, Inc), 622 NW2d 518 (2001) (YOUNG, J., concurring).
See In re Certified Question (Bankey v Storer Broadcasting Co), 432 Mich 438, 462-471 (1989) (separate opinion by LEVIN, J.).
I concur in the order declining to answer the question certified by the United States Bankruptcy Court for the Eastern District of Michigan. The question certified is when an instrument should be deemed recorded where the register of deeds has failed to maintain an entry book as required by MCL 565.24. I concur in declining to answer this question because the failure of certain of our state's registers of deeds to comply with the statutory mandate presents a political issue that must be addressed and resolved by the political branches of our state government.
MCL 565.24 provides: "Every register of deeds shall keep an entry book of deeds and an entry book of mortgages. . . ." An instrument is deemed recorded at the time noted in the entry book. MCL 565.25(4). Despite this clear statutory mandate, it appears that the registers of deeds in several Michigan counties, including Wayne, Oakland, Macomb, and Kalamazoo counties, do not keep entry books.
This Court's obligation is to discern the legislative intent that may reasonably be inferred from the words expressed in a statute. Jones v Dep't of Corrections, 468 Mich 646, 655 (2003). The text of MCL 565.25(4) is very clear. An instrument is deemed recorded at the time noted in the entry book. The statutory scheme thus prescribes a particular method for determining the time of recordation. Certain of the registers have rendered it impossible to follow the statutorily mandated method by their failure to maintain entry books. It is not our role to rewrite the statute where the registers have failed to maintain entry books.
Although this Court lacks any authority to amend the statute to address this problem, I nonetheless recognize that the registers' failure to maintain entry books may seriously undermine the certainty and stability of our system for recording deeds and mortgages. The registers' failure to follow the statutorily prescribed method tends to make it more difficult in many cases to discern when an instrument has been recorded. The responsibility for addressing this matter lies with the political branches of our government. The registers of deeds are executive branch officials over whom this Court does not exercise general supervisory authority.
A possible solution to this problem may he with the Legislature. That body may wish to consider whether to modernize the statutorily prescribed method of recordation. An argument may exist that the mandatory use of entry books is an outdated means of recordation in light of technological advances in the ability to gather and store information. That is a policy judgment for the Legislature to make. It is not the role of this Court to second-guess the elected representatives of the people in deciding whether and how to address this problem.
I concur with the order declining to answer this question certified by the United States Bankruptcy Court for the Eastern District of Michigan. In this matter, the United States Bankruptcy Court asks this Court to explain property priorities when the register of deeds has failed to comply with the state's recording statute. In effect, this Court is being asked to create extra-statutory rules regarding property priority claims. Given that our Legislature has prescribed how such priorities are to be resolved, the request essentially requires this Court to write a new priority statute. This is a task better suited to the legislative process.
I write separately to alert the citizens of this state that elected officials in many counties currently do not comply with the requirement of MCL 565.24 to maintain an entry book of deeds, mortgages, and levies to note the day, hour, and minute of receipt. By neglecting this duty, the registers of deeds permit a cloud of uncertainty to gather over every real estate instrument filed in these counties.
This is the second time in the recent past that this issue of non-compliance with the Michigan recording statute has been brought to this Court's attention. See Central Ceiling Partition v Dep't of Commerce, 470 Mich 877 (2004); 474 Mich 990 (2005). In Central Ceiling, this Court fruitlessly monitored for 18 months the Wayne County Register of Deeds' purported effort to comply with its statutory recording responsibilities. The Wayne County Register's failure in this regard has led to a property crisis and increased costs to citizens buying and selling property in that county. See Paul Egan, Wayne County Deed Logjam Will Cost You, The Detroit News, April 6, 2006.
It is unsettling, to say the least, that register of deeds offices throughout the state are flouting the basic statutory obligation to record real estate instruments properly. Property rights hold such fundamental importance in our republic that every governmental entity entrusted with the responsibility to safeguard such rights ought to be fully committed to this endeavor. See "Property," National Gazette, March 29, 1792, Hunt, ed., Writings of James Madison (New York; Putnam, 1906), vol VI, p 102. ("Government is instituted to protect property of every sort; as well as that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.") (emphasis in original).
Without question, the property interests of thousands of homeowners, mortgage companies, lienholders, and others are jeopardized when registers of deeds throughout the state are derelict in their statutory duty to note in an entry book the day, hour, and minute they receive an instrument for filing. Such noncompliance breeds insecurity in economic transactions, injects confusion into our laws (bankruptcy law, in this case), and raises serious questions about the commitment of elected officials in this state to protect basic property rights. Indeed, the Michigan Land Title Association, which appeared in this matter as amicus curiae, warns that increasing uncertainty in real estate filings will raise the cost of title insurance throughout the state.
For these reasons, I urge the state Legislature and county commissions to investigate and take the necessary steps to ensure that the property rights of Michigan citizens are protected.
For the reasons set forth in my dissenting statement in In re Certified Questions (Melson v Prime Ins Syndicate, Inc), 472 Mich 1225, 1231 (2005), I believe that this Court, in refusing to answer the instant certified question, not only demonstrates a lack of comity with the certifying court but even more significantly contributes to the distortion of our system of judicial federalism by ceding responsibility for the interpretation of Michigan law and thereby diminishing the control of the people of Michigan over the development of their own law.
What makes this Court's failure to carry out its constitutional responsibility particularly egregious in the instant case is that it pertains to one of a diminishing number of areas of law in which the state judiciary still maintains primary authority, property law. The erosion in recent decades of the position of the state judiciary within our federal system is unmistakable, and yet this Court acquiesces in the further relinquishment of its authority to interpret the law of this state on behalf of the people of this state. Instead, a court that is not accountable to the people of this state will render a determination concerning an essential question of Michigan property law.
The United States Bankruptcy Court has certified the following question to this Court: "When is an instrument deemed recorded when a recorder of deeds fails to maintain an entry book?" It is hard to imagine a more fundamental question concerning the orderly operation of a system premised upon private property rights. It is also hard to imagine a question that, if left unanswered, will sow more confusion and chaos in this system.
This same question was recently before this Court in Central Ceiling Partition, Inc v Dep't of Commerce, 470 Mich 877 (2004). We resolved that case on the basis of its "limited facts," but avoided the larger question of when instruments are deemed recorded when the register of deeds fails to satisfy its statutory obligation to memorialize the filing of such instruments in a proper entry book. That the consequence of this question was well understood by this Court is evidenced by the extraordinary monitoring that this Court subsequently undertook with regard to the operations of the Wayne County Register of Deeds.
Thus the question persists: When is an instrument deemed recorded? That is, at what point will certain fundamental rights in private property arise? What are the consequences for these rights when the government fails to carry out its legal duties? Which parties will be affected adversely in their property rights when the government fails to carry out such duties? There is perhaps no area of law in which certainty, clarity, and predictability are more essential than in the realm of property law, and it has always been a paramount responsibility of this Court to uphold these values.
The question certified here is a difficult one, as anyone reading Central Ceiling can surmise, and reasonable arguments have been made by both sides, as well as in amicus curiae briefs. But this is no argument for this Court to fail to address and resolve this question; rather, it is an argument to the contrary.
For, in the end, this question will not go unanswered; it will not be unresolved. The bench and bar, as well as all those affected by our system of property law, will eventually be made cognizant of what Michigan law requires and order will be restored to our state's recording system. But it will not be through any action undertaken by this Court in the fulfillment of its basic constitutional responsibilities, but instead through a decision of the federal bankruptcy court. And as a result, this Court, as the highest court of our state, will have failed to carry out its first obligation to interpret the law of this state. And, as a further result, the scope of self-government belonging to the people of our state will have been diminished.
When later chapters are written in the decline of American judicial federalism, the actions of this Court in regularly refusing to answer certified questions will be entitled to at least a footnote — one of bewilderment concerning the disinterest of this Court, almost alone among state courts in the United States, in asserting the sovereign interests of this state by answering certified questions. It is immensely regrettable that the United States Bankruptcy Court, as with the other federal courts before it whose certified questions have also gone unanswered, seems better to understand the role of the Michigan Supreme Court within our system of federalism than does this Court itself.
In defense of their positions not to answer the certified question in this case, Justice CORRIGAN asserts that the question posed is a "political issue that must be addressed and resolved by the political branches of our state government," and Justice YOUNG asserts that the question posed "requires this Court to write a new priority statute." However, (a) the question posed — under MCL 565.24, when is an instrument deemed recorded when a recorder of deeds fails to maintain an entry book? — no more constitutes a "political question" than any other question of statutory interpretation. There is nothing in providing an answer to this question that would interfere in the remotest with any constitutional commitment of the issue to a coordinate political department; (b) underscoring this is the fact that this Court dealt with this identical issue two years ago in Central Ceiling without so much as a murmuring that we might thereby be embroiling ourselves in a "political question"; (c) further underscoring this is the fact that the certifying court itself does not view this as a "political question" and will, in fact, now be deciding it for the people of Michigan in light of this Court's failure to do so; (d) moreover, no one is seeking to have this Court "rewrite" MCR 565.24 or any other law, but simply to exercise its core judicial power and say what the present law means.
Orders Entered November 7, 2006:
PROPOSED AMENDMENT OF RULE 3.411 OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the Court is considering an amendment of Rule 3.411 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will be considered at a public hearing by the Court before a final decision is made. The schedule and agendas for public hearings are posted on the Court's website, www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its current form.
[The present language would be amended as indicated below.]
RULE 3.411. CIVIL ACTION TO DETERMINE INTERESTS IN LAND.
(A)-(G) [Unchanged.]
(H) Judgment Binding Only on Parties to Action. Except for title acquired by adverse possession t The judgment determining a claim to title, equitable title, right to possession, or other interests in lands under this rule, determines only the rights and interests of the known and unknown persons who are parties to the action, and of persons claiming through those parties by title accruing after the commencement of the action.
(I) [Unchanged.]
Staff Comment: This proposed amendment would clarify that a judgment determining an interest in land does not apply to claims settled under the principle of adverse possession. Under longstanding Michigan case law, interests in lands acquired by adverse possession are effective against all the world, not just those individuals who are parties to the action. See, for example, Lawson v Bishop, 212 Mich 691 (1920), and Gorte v Dep't of Transportation, 202 Mich App 161 (1993).
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk in writing or electronically by March 1, 2007, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. All comments will be posted on the Court's website. When filing a comment, please refer to ADM File No. 2006-29.
PROPOSED AMENDMENT OF RULES 7.204 AND 7.205 OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the Court is considering amendments of Rules 7.204 and 7.205 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for public hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The present language would be amended as indicated below.]
RULE 7.204. FILING APPEAL OF RIGHT; APPEARANCE.
(A) Time Requirements. The time limit for an appeal of right is jurisdictional. See MCR 7.203(A). The provisions of MCR 1.108 regarding computation of time apply. For purposes of subrules (A)(1) and (A)(2), "entry" means the date a judgment or order is signed, or the date that data entry of the judgment or order is accomplished in the issuing tribunal's register of actions.
(1) [Unchanged.]
(2) An appeal of right in a criminal case must be taken
(a) in accordance with MCR.6.425(F) (G)(3);
(b) within 42 days after entry of an order denying a timely motion for the appointment of a lawyer pursuant to MCR 6.425(F) (G)(1);
(c) within 42 days after entry of the judgment or order appealed from; or
(d) within 42 days after the entry of an order denying a motion for a new trial, for judgment directed verdict of acquittal, or for resentencing to correct an invalid sentence, if the motion was filed within the time provided by in MCR 6.419(B), MCR 6.429(1), or MCR 6.431(A)(1) , as the case may be.
A motion for rehearing or reconsideration of a motion mentioned in subrules (A)(1)(b) or (A)(2)(d) does not extend the time for filing a claim of appeal, unless the motion for rehearing or reconsideration was itself filed within the 21- or 42-day period.
(3) [Unchanged.]
(B)-(H) [Unchanged.]
RULE 7.205. APPLICATION FOR LEAVE TO APPEAL.
(A) Time Requirements. An application for leave to appeal must be filed within
(1) 21 days after entry of the judgment or order to be appealed from or within other time as allowed by law or rule.; or (2) 21 days after the entry of an order denying a motion for new trial a motion for rehearing or reconsideration, or a motion for other post-judgment relief, if the motion was filed within the initial 21-day appeal period or within further time the trial court may have allowed during that 21-day period.
For purposes of this rule subrules (A)(2) and (A)(2). "entry" means the date a judgment or order is signed, or the date that data entry of the judgment or order is accomplished in the issuing tribunal's register of actions.
(B)-(E) [Unchanged.]
(F) Late Appeal.
(1)-(3) [Unchanged.]
(4) The limitation provided in subrule (F)(3) does not apply to an application for leave to appeal by a criminal defendant if the defendant files an application for leave to appeal within 21 days after the trial court decides a motion for a new trial, for directed verdict of acquittal, to withdraw a plea, or to correct an invalid sentence, if the motion was filed within the6-month period prescribed time provided in MCR 6.310(C). MCR 6.419(B). MCR 6.429(B). and MCR 6.431(A). or if
(a)-(c) [Unchanged.]
A motion for rehearing or reconsideration of a motion mentioned in subrule (F)(4) does not extend the time for filing an application for leave to appeal, unless the motion for rehearing or reconsideration was itself filed within 21 days after the trial court decides the motion mentioned in subrule (F)(4). and the application for leave to appeal is filed within 21 days after the court decides the motion for rehearing or reconsideration.
A defendant who seeks to rely on one of the exceptions in subrule (F)(4) must file with the application for leave to appeal an affidavit stating the relevant docket entries, a copy of the register of actions of the lower court, tribunal, or agency, or other documentation showing that the application is filed within the time allowed.
(5) [Unchanged.]
(G) [Unchanged.]
Staff Comment: The proposed amendment of Rule 7.204 of the Michigan Court Rules would make various technical changes. The proposed amendment of Rule 7.205 of the Michigan Court Rules would clarify how a motion for a new trial, a motion for rehearing or reconsideration, or a motion for other postjudgment relief tolls the time within which to file an application for leave to appeal to the Court of Appeals.
The staff comment is not an authoritative construction by the Court. A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by March 1, 2007, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2005-36. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/ resources/administrative/index.htm.