Lapeer County Clerk v. Lapeer Circuit Court

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________

FILED JULY 22, 2003

In re LAPEER COUNTY CLERK

__________________________

LAPEER COUNTY CLERK,

Plaintiff,

v No. 121400

LAPEER CIRCUIT COURT,

Defendant,

and

COUNTY OF LAPEER,

Intervening Defendant.

____________________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, C.J.

The Lapeer County Clerk has filed a complaint for

superintending control pursuant to MCR 3.302. We are called

to determine whether Lapeer Circuit Court Local Administrative

Order No. 2002-01 (LAO 2002-01)1 impermissibly assigns duties

of the county clerk to the staff of the family division of the

circuit court. We note, however, that a new plan for the

operation of the family division of the circuit court must be

agreed upon by July 1, 2003. See Supreme Court Administrative

Order No. 2003-2. This administrative order requires that the

clerk 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. Because LAO 2002-01 is no longer

the operative plan, having expired on July 1, 2003, we decline

to comment on it specifically, but we issue this opinion

pursuant to our rule-making authority, Const 1963, art 6, § 5,

to provide guidance to courts as they craft future

administrative orders. The complaint for superintending

control is dismissed.

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

1
Although plaintiff refers to LAO 2000-01 in her brief,

the Lapeer Circuit Court is currently operating under LAO

2002-01. Plaintiff did recognize LAO 2002-01 in her

supplemental pleading and explained that LAO 2002-01 did not

alter her position.

2

perform ministerial duties that are noncustodial as required

by the court.

Because a clerk’s care and custody function is

contemplated by Const 1963, art 6, § 14, as evidenced by our

historical understanding of that provision, the circuit court

cannot interfere with the circuit court clerk’s constitutional

obligation to perform that function. The custodial function,

however, is a limited one. In acting as custodian of the

records, the clerk is responsible for ensuring the safekeeping

of the records. Having care and custody of the records,

however, does not imply ownership of the records. Rather, the

clerk’s custodial function entails safeguarding the records on

behalf of the circuit court, and making those records

available to their owner, which is the circuit court. The

clerk is also obligated to make the records available to the

public, when appropriate.

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 Const 1963, art 3, § 2, Const 1963, art 6, §

3

1, and Const 1963, art 6, § 5. This judicial authority

includes the discretion to create, abrogate, and divide

between the clerk and other staff, noncustodial ministerial

functions concerning court administration.

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.

See MCL 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

4

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

5

 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.”[2]

On February 9, 2000, the Acting Director of

Trial Court Services for the State Court

Administrative Office advised the circuit court

that

2
As stated above, LAO 2002-01 replaced LAO 2000-01. The

only substantive change was that LAO 2002-01 gave the clerk

responsibility for proceedings regarding name changes and

deleted the references to name changes found in paragraphs 2,

3, and 5.

6

“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

7

 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.

Plaintiff then filed a complaint with this Court for an

order of superintending control, and the case was scheduled

for oral argument as on leave granted.4

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 ___ (2003). Under this administrative

3
463 Mich 969 (2001).

4
466 Mich 1222 (2002).

8

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 Const 1963, art 6, § 5,5 which entrusts

this Court with the authority and duty to prescribe general

rules governing the practice and procedure of all courts in

the state. Accordingly, we invoke our rule-making authority

to clarify the underlying issue, which undoubtedly affects the

practice and procedure of the courts of this state.

Therefore, we find it appropriate to address the issue of the

constitutional functions of the circuit court clerk to provide

guidance to circuit courts in crafting future administrative

5
Const 1963, art 6, § 5 provides:

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.

9

orders.

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 Gen, 384 Mich 390, 405; 185

NW2d 9 (1971).]

Words must be given their ordinary meanings, and

constitutional convention debates and the address to the

people are relevant, although not controlling. People v Nash,

418 Mich 196, 209; 341 NW2d 439 (1983) (opinion by BRICKLEY ,

J.). Further, every provision must be interpreted in the

light of the document as a whole, and no provision should be

construed to nullify or impair another. In re Probert, 411

10

Mich 210, 232-233 n 17; 308 NW2d 773 (1981).

Under our constitution, the county clerk serves in the

unique posture of being both an executive officer and an

officer of the judicial branch. Const 1963, art 7, § 4

provides:

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.]

Const 1963, art 6, § 14 provides:

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, Const 1963, art 6, § 14 is silent regarding

specific duties to be performed by the clerk in its judicial

capacity. In fact, although since 18356 the constitution has

provided that the county clerk shall also function as clerk of

the court, the duties of the clerk in its judicial capacity

have never been enumerated in any version of our constitution.

Because the text of the constitution itself provides no clear

6
See Const 1835, art 6, § 5.

11

answer, we must examine other sources to ascertain the common

understanding of the term “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. Const 1835, art 6, § 5. Evidence suggests that the

provision in the 1835 constitution arose out of necessity, for

at that time

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 other words, it appears that the people ratifying Const

1835, art 6, § 5 understood that the circuit court clerk was

to have the care and custody of court records. As such, we

12

conclude that the clerk has a constitutional obligation to

have the care and custody of the circuit court’s records and

that the circuit court may not abrogate this authority. See

In the Matter of Head Notes to the Opinions of the Supreme

Court, 43 Mich 640, 643; 8 NW 552 (1880)(“the essential duties

[of a constitutional officer] cannot be taken away, as this in

effect would result in the abolishment of the office . . .”).

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

7
Significantly, these early laws setting forth the duties

of the clerk were subject to repeal, demonstrating that

although the clerk’s duties remained ministerial, the exact

nature of the duties was subject to change. Id.

13

amounts due on bonds,8 generated transcripts,9 filed

transcripts,10 entered and docketed judgments,11 advertised

writs of judgment,12 certified and filed stipulations,13

received court papers,14 transmitted certified copies of

proceedings to the Supreme Court,15 certified various court

documents,16 and accepted court filings.17 Court clerks could

not undertake nonministerial functions, such as assessing

damages in a contested action,18 exercising any judicial power

over individuals,19 or taking complaints and issuing

warrants.20 In addition, it was well understood that these

noncustodial ministerial functions were subject to change.

8
Id. at 487.

9
Lathrop v Hicks, 2 Doug 223, 227 (1846).

10
Jewett v Bennett, 3 Mich 198, 199 (1854).

11
Id.

12
Drew v Dequindre, 2 Doug 93, 96 (1845).

13
Farrand v Bentley, 6 Mich 281, 283 (1859).

14
Id.

15
Duffield v Detroit, 15 Mich 474, 478 (1867).

16
Id. at 477.

17
Clay v Penoyer Creek Improvement Co, 34 Mich 204, 206

(1876).

18
O’Flynn v Holmes, 8 Mich 95, 97 (1860).

19
People v Swift, 59 Mich 529, 547; 26 NW 694 (1886).

20
People v Colleton, 59 Mich 573, 576; 26 NW 771 (1886).

14

Emery, supra at 486 (stating that, although at one time the

clerk was required to make records of proceedings, the

statutes requiring the records were repealed).

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 was to (1)

have the care and custody of the court records and (2) perform

noncustodial duties that are ministerial in nature, although

those noncustodial ministerial duties are subject to change.

B. THE CUSTODIAL FUNCTION

As stated above, the historical evidence surrounding

Const 1963, art 6, § 14 suggests that the circuit court clerk

is obliged to have the care and custody of the court’s

records. Because we conclude that this custodial function is

one contemplated by the ratifiers of the constitutional

provision, the constitution must be interpreted as mandating

this role. Accordingly, we hold that the circuit court clerk

must perform the custodial function, which the circuit court

15

may not abrogate.

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.

C. THE NONCUSTODIAL MINISTERIAL FUNCTION

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

16

 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.

Const 1963, art 6, § 1 provides:

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, Const 1963, art 6, § 5 provides:

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 Const 1963, art 7, § 4 (“[t]here shall be . . . a

county clerk . . . whose duties and powers shall be provided

by law”) to grant the executive branch the power to dictate

the ministerial administration of the circuit court would

17

nullify both art 6, § 1 (providing that the judicial power of

the state is vested exclusively in one court of justice) and

art 6, § 5 (providing that the Supreme Court shall establish,

modify, amend, and simplify the practice and procedure in all

courts of this state).

Further, to so interpret art 7, § 4 would violate the

separation of powers doctrine of art 3, § 2. Although the

county clerk is expressly made an officer of the judiciary,

neither art 7, § 4 nor art 6, § 14 expressly provides that the

county clerk or any other executive-branch official may

prescribe the ministerial operations of court practice and

procedure. Rather, that power is expressly and exclusively

vested in the Supreme Court under art 6, § 5:

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).]

Indeed, the power of the judiciary to direct its

ministerial operations has been noted for well over a century.

In Allor v Bd of Auditors of Wayne Co, 43 Mich 76, 97; 4 NW

492 (1880), this Court held:

[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

18

 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 governing practice

and procedure in the administration of the courts and

concluded that if a court rule concerns only court

administration, it prevails over contrary statutory

19

provisions.

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 Const

1963, art 6, § 5.

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.

20

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, supra. This

does not mean, however, that any statute pertaining to the

duties of the clerk of the circuit court violates separation

of powers. Rather, if there is no inherent conflict between

the statutes and the court rules, “[w]e are not required to

decide whether [the] statute is a legislative attempt to

supplant the Court’s authority.” Id. at 24, quoting People v

Mateo, 453 Mich 203, 211; 551 NW2d 891 (1996).

We conclude that the statutes pertaining to the duties of

the county clerk are in harmony with our court rules. MCR

8.110(C)(3) clearly provides that the chief judge of the court

has the power to direct matters relating to the administration

of the court:

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

21

 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

(i) perform any act or duty or enter any order

necessarily incidental to carrying out the purposes

of this rule. [Emphasis added.]

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

records[21] 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

21
We note that, in this context, it is clear that the word

“maintain” refers to the clerk’s custodial duty. See Random

House Webster’s College Dictionary (2001), which defines

“maintain” as “1. to keep in existence or continuance;

preserve.”

22

 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 under MCL 445.870 . . . .

MCR 8.119 sets forth the duties of circuit court clerks

regarding court records and reports:

(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) and MCR

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. . . .

* * *

23

 (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

24

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.]

MCL 600.571 provides:

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.

25

 (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. MCL 600.571(f) and (g) merely

codify the historical understanding of the dual nature of the

clerk’s function: subsection f refers to the custodial

function, while subsection g refers to the noncustodial

ministerial function.

In addition, MCL 600.1007 provides:

As with circuit court, the county clerk is the

clerk of the court for the family division of the

circuit court.

Finally, MCL 600.1027 provides, in pertinent part:

(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.

* * *

(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.]

26

 Taken together, the statutes merely reiterate art 6, §

14 and provide that the circuit court clerk must have the

care and custody of court records and exercise the duties

prescribed by court rule, including attending court sessions

and transmitting fees received. Although the statutes, like

the court rules, set forth broad areas of responsibility,

they refrain from specifying exactly what those

responsibilities entail and how the clerk shall perform those

responsibilities. Rather, the statutes provide that either

the judge22 or the court rules23 shall prescribe the exact

noncustodial ministerial duties of the clerk. In so doing,

the statutes codify the historical custodial and

noncustodial, ministerial functions of the circuit court

clerks.

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 noncustodial ministerial duties are

directed by the Court, as the determination of the precise

22
MCL 600.571(f).

23
MCL 600.571(g).

27

noncustodial ministerial duties to be performed is a matter

of court administration entrusted exclusively to the

judiciary under Const 1963, art 3, § 2 and Const 1963, art

6, §§ 1, 5.

The complaint for superintending control is dismissed.

Maura D. Corrigan

Elizabeth A. Weaver

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

CAVANAGH, J.

I concur in the result only.

Michael F. Cavanagh

28

 S T A T E O F M I C H I G A N

SUPREME COURT

In re LAPEER COUNTY CLERK

___________________________________

LAPEER COUNTY CLERK,

Plaintiff,

v No. 121400

LAPEER CIRCUIT COURT,

Defendant,

and

COUNTY OF LAPEER,

Intervening Defendant.

___________________________________

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

1
For instance, MCR 8.110(C) provides, in part:

(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

(continued...)

2

 Our Legislature is also cognizant of the needs of the

circuit courts. Hence, it drafted MCL 600.571 to give them

discretion in determining how best to utilize the services

of the county clerks. I find no conflict between the

statutes regulating the duties of the clerk of the circuit

court and our court rules.

The majority apparently agrees with this conclusion.

Ante at 22-29. 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 that the

majority's analysis supports its conclusion, I offer the

following counter-analysis.

COUNTER -ANALYSIS

The Michigan Constitution vests this Court with the

1
(...continued)

financial reporting;

* * *

(i) perform any act or duty or enter any order

necessarily incidental to carrying out the purposes

of this rule.

3

authority to prescribe the rules of practice and procedure

in the courts. Const 1963, art 6, § 5. These attributes of

judicial authority "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; 255 NW2d 635 (1977).

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 art 7, § 4 applied to the county clerk's

duties as clerk of the court, it would necessarily violate

the separation of powers clause. I believe this assertion

is inaccurate.

Our constitution, in detailing the requirements of the

separation of powers, provides:

4

 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 art 7, §

4 contains one such qualification.

Article 7, § 4 provides that: "There shall be . . . a

county clerk . . . whose duties shall be provided by law."

We have consistently held that, when the constitution

requires that details be provided by law, the Legislature

alone can provide those details. People v Bulger, 462 Mich

495, 508-509; 614 NW2d 103 (2000).2 There is no reason to

deviate in this case from our previous holdings.

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 art 7, § 4 was

2
The majority apparently believes that, if it interprets

art 7, § 4 so that it applies to the clerk's ministerial

noncustodial duties, the executive branch would be empowered

to define those duties. Ante at 18-19. I believe this is an

error that has misled the majority in its analysis.

3
See, e.g., the comments of Delegate Paul V. Gadola, a

(continued...)

5

intended to set limits on the power of the judiciary by

taking advantage of the constitutional qualification to

separation of powers. If this were the case, there would be

no discord between art 7, § 4 and art 3, § 2.4

If we ascribe to art 7, § 4 the meaning that I believe

the framers of the constitution intended, it would scarcely

render ineffectual the power of the judicial branch.

Although the Legislature would have the authority to enact

laws regulating the duties of the clerk of the circuit court,

it would be bound by the same principles that constrain us.

Thus, it could not extend the duties of the clerk beyond

3
(...continued)

retired circuit judge, who stated:

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.]

4
There are possibly other policy considerations at work

as well. For instance, the drafters could have been concerned

about cost and efficiency. By providing that the county clerk

serves as a depository for most of the documents in a county,

the drafters potentially made access to important documents

more efficient. Also, the drafters may have been concerned

that requiring the clerk to perform all the ministerial duties

of the circuit court would be too costly. Thus, they may have

included a fiscal pressure valve within art 7, § 4 to allow

the Legislature to limit the clerks' duties when the clerks

become inefficient.

6

those that are purely ministerial; it could do no more than

designate which ministerial noncustodial duties the clerk

might perform.

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. MCL 600.571(g); Smith v Kent

Circuit Judge, 139 Mich 463, 464; 102 NW 1905 (1905).

CONCLUSION

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.

Marilyn Kelly

7