Donajkowski v. Alpena Power Co.

Kelly, J.

(dissenting). The majority has erred by holding that an employer, sued for discrimination under a collective bargaining agreement, may seek contribution from the union that negotiated the agree*265ment. The majority’s response unfortunately misrepresents my position, inter alia, by stating, “the dissent would hold that a union may conspire to discriminate on the basis of sex, and, when called to account at the bar of justice for its role in that conspiracy by the others charged, escape liability.” Ante at 254. It goes almost without saying that plaintiffs are entitled to file a discrimination claim against their union.1

The effect of the majority opinion is to deprive union members of union legal representation under the guise of vindicating their Michigan civil rights. Although the majority purports to advance the laudable goal of eradicating discriminatory employment practices, it undermines this goal by placing employees and their unions in an adversarial position. In addition, it prohibits employees from acquiring legal representation from their union, thereby increasing the costs of litigation.

STANDARD OF REVIEW

This case involves statutory interpretation, which is a question of law subject to de novo review. Oakland *266Co Bd of Co Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998). The primary purpose of statutory interpretation is to ascertain and effectuate legislative intent. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998).

When promulgating new laws, the Legislature is presumed to be familiar with the rules of statutory construction and existing laws on the same subject. Malcolm v East Detroit, 437 Mich 132, 139; 468 NW2d 479 (1991); People v Tracy, 186 Mich App 171, 177; 463 NW2d 457 (1990). Therefore, the language of a statute should be read in light of previously established rules of common law. Nummer v Dep’t of Treasury, 448 Mich 534, 544; 533 NW2d 250 (1995).

Any word or phrase that has a unique meaning at common law should be interpreted as having the same meaning when used in a statute dealing with the same subject. Pulver v Dundee Cement Co, 445 Mich 68, 75; 515 NW2d 728 (1994). Because well-settled common-law principles must not be abolished by implication, an ambiguous statute that contravenes common law should be interpreted to make the least change in the common law. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 652-653; 513 NW2d 799 (1994).

THE CONTRIBUTION STATUTE

At common law, as a general rule, contribution was not recoverable between joint wrongdoers or tortfeasors. O'Dowd v General Motors Corp, 419 Mich 597, 603; 358 NW2d 553 (1984). The Legislature partially abrogated this common-law bar by adopting *267predecessors to MCL 600.2925a; MSA 27A.2925(1),2 and this Court abolished the remnants of it in Moyses v Spartan Asphalt Paving Co, 383 Mich 314, 329; 174 NW2d 797 (1970).3 O’Dowd, supra at 603.

In Moyses, this Court recognized that the phrase “joint tortfeasor” had a unique meaning at common law. Id., 329-331. It explained:

In general [“(t)he legal phrase ‘joint tortfeasor’ ”] was, and still is, that where two (or more) persons owe to another the same duty and by their common neglect of that *268duty such other is injured, the two (or more) have committed a joint tort and therefore are joint tortfeasors. [Id., 329 (emphasis added).]

Although the majority attempts to circumvent this unique meaning, it fails to provide support for the assertion that “joint tortfeasor” did not acquire a unique meaning. Moreover, Moyses rejected the majority’s conclusions by explicitly excepting wilful or intentional wrongdoers.

Addressing whether joint tortfeasors are entitled to seek contribution under then § 2925, we explained:

Stimulated by the national advancement of principles set forth in the Uniform Contribution Among Tortfeasors Act [ucata] . . . the tendency of other courts to provide by judicial action the right of contribution on behalf of all but intentional wrongdoers, and the compelling admonitions of modem writers like Prosser,[4] we have decided to overrule what is left of Michigan’s common-law bar of contribution between or among “wrong-doers,” wilful or intentional wrongdoers excepted. [Id., 334 (emphasis added).]

The present version of § 2925a states the following right of contribution among joint tortfeasors:

Except as otherwise provided in this act, when 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even *269though judgment has not been recovered against all or any of them. [MCL 600.2925a(l); MSA 27A.2925(1)(1).]

The majority correctly observes the absence of a right of contribution among wilful tortfeasors in this provision. Emphasizing that the Michigan contribution statute is based on the UCATA, the majority finds it “particularly noteworthy that the Michigan Legislature declined to adopt the subsection of the uniform act prohibiting an intentional tortfeasor from seeking contribution.” Ante at 250, n 7.

However, the majority disregards the fact that the predecessor to § 2925a similarly failed to expressly prohibit intentional tortfeasors from seeking contribution. Despite the absence of such a prohibition, this Court interpreted both the common law and the predecessor to § 2925a to conclude that intentional tortfeasors were barred from seeking contribution. Moyses, supra at 334.5 This is “particularly noteworthy” because the Michigan Legislature failed to expressly permit contribution among intentional tortfeasors when it enacted the present version of § 2925a.

*270Silence by the Legislature following judicial construction of a statute suggests consent to that construction. Craig v Larson, 432 Mich 346, 353; 439 NW2d 899 (1989). Rejecting this proposition, the majority recites a plethora of scholarly writings to support its proposition that “ ‘legislative acquiescence’ is a highly disfavored doctrine of statutory construction . . . .” Ante at 258-261. These writings may provide interesting fodder for legal debate, but the better analysis relies on established precedent cited by courts of this state. I rely on Wikman v City of Novi, 413 Mich 617, 638; 322 NW2d 103 (1982), Wehmeier v W E Wood Co, 377 Mich 176, 191; 139 NW2d 733 (1966), In re Clayton Estate, 343 Mich 101, 106-107; 72 NW2d 1 (1955), Baks v Moroun, 227 Mich App 472, 489; 576 NW2d 413 (1998), Glancy v Roseville, 216 Mich App 390, 394; 549 NW2d 78 (1996), aff’d 457 Mich 580; 577 NW2d 897 (1998), and Generou v Kalamazoo Regional Psychiatric Hosp, 192 Mich App 295, 304; 480 NW2d 638 (1991).

The majority also cites Autio v Proksch Construction Co6 for Justice Souris’ views regarding legislative acquiescence. Ante at 260. Coincidentally, Justice Black’s poignant response to those comments is equally applicable today:

In the resultant circumstances it is — for the time being-useless to write much more against what I look upon as a judicial disease; a disease which — if not quickly cured — is bound to destroy the only substance which sustains our judicial system. That substance is public confidence in the intellectually steadfast devotion of judges to law as it is written; distinguished from law judges want ordained. . . . The time has come for all lawyers and judges of Michigan *271to resign themselves to this real, if temporal, usurpation of legislative power. Too, the minority seated here must philosophically accept the situation until our personnel is changed ....
* * *
At one time students and citizens, lay and professional, were taught that everyone is presumed to know the law, and hence is duty bound to act in accord therewith. But how may even skilled lawyers, and correspondingly skilled subordinate court judges, “know the law” when they are taught that the law in the books is not law at all, unless upon litigatory test a bare majority of this very ordinary Supreme Court happens to like it? [Id., 540-542 (Black, J., dissenting).]

Regarding “legislative acquiescence,” Justice Black added:

“[T]he doctrine of legislative reliance upon and acceptance of judicial interpretation has its value and its place. ... In today’s instance, unless we are to ignore a constantly employed axiom (that the legislature enacts with the Court’s interpretations! decisions in one hand as it writes and votes with the other), we have here most of the more or less conclusive reasons why the doctrine of legislative acceptance should be applied. When a legislature, confronted constantly with unanimous interpretations . . . , deliberately re-enacts without change such an interpreted statutory proviso, ... it seems to me that any judge who fails to apply the mentioned doctrine wittingly or unwittingly violates the law.” [Id., 545-546 (citation omitted).]

Returning to the immediate case, the Legislature previously amended the statute in the wake of Moyses,7 but chose not to expressly eliminate the dis*272tinction between intentional and nonintentional tortfeasors. Hence, presumably, it ratified the distinction.

However, the majority curiously concludes that this absence supports a finding that “the Legislature has unambiguously provided that contribution may be had between tortfeasors without regard to the intentional character of their acts . . . .” Ante at 250. The majority has erroneously read into the statute a right to contribution among wilful tortfeasors. It has done so despite the fact that the right is lacking from the manifest intent of the Legislature as derived from the words of the act itself. In re S R, 229 Mich App 310, 314; 581 NW2d 291 (1998).

As previously discussed, the phrase “joint tortfeasor” has a unique meaning at common law, referring to two or more persons who have commonly neglected a duty to another. Moyses, supra at 329. A phrase that acquires a unique meaning at common law should be interpreted as having that same meaning when used in a statute dealing with the same subject. Pulver, supra at 75.

Given the Legislature’s presumptive familiarity with rules of statutory interpretation,8 the language of the statute indicates that the Legislature intended only to permit contribution among negligent, or nonintentional, tortfeasors. Had the Legislature intended to permit contribution among intentional tortfeasors, it *273would have so provided. Therefore, the majority has erred by interpreting § 2925a in a manner that contravenes common-law principles.

the civil rights act

The language of the Michigan Civil Rights Act closely parallels language adopted by the Equal Employment Opportunity Commission, the agency vested by Congress to enforce title vn, defining sexual discrimination. Radtke v Everett, 442 Mich 368, 381; 501 NW2d 155 (1993). Although the majority criticizes the defendant union for relying on federal authority, this Court often turns to federal precedent for guidance in reaching a decision. Id., 381-382; Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 525; 398 NW2d 368 (1986).

In Northwest Airlines v Transport Workers Union of America,9 an employer paid male cabin attendants higher wages than its female attendants pursuant to a fixed-wage scheme contained in a collective bargaining agreement. As a result, the employer was held hable to its female employees for backpay, because its collectively bargained wage differentials violated the Equal Pay Act and title VII. Id., 79-82. The employer then sought contribution from the unions that negotiated the collective bargaining agreement with it. Id., 82.

Assuming that the unions bore significant responsibility for the discriminatory practices, the United States Supreme Court nevertheless concluded that the employer was not entitled to contribution for intentional discrimination. Id., 90, 95. It explained *274that neither title vn nor the Equal Pay Act provided employers with a right to contribution for intentional discrimination, and a general right to contribution did not exist under common law. Id., 92-96. It also declined to create a right to contribution in addition to the statutory rights created in the Equal Pay Act and title VII. Id., 98.

The majority here attempts to distinguish federal law by stating that there is no statutory right to contribution under federal law. Although Michigan law contains a statutory right to contribution, the majority disregards the absence of any provision permitting contribution for intentional tortfeasors.10 Instead, the majority has created a right to contribution for intentional tortfeasors in addition to the statutory rights created by the Michigan Civil Rights Act, but attempts to attribute its creation to the Legislature. Ante at 262. Consequently, the majority erroneously asserts that “Northwest is entirely inapposite.”

PUBLIC POLICY

Finally, the majority finds itself “unaware of . . . any free-standing public policy” precluding an employer from seeking contribution from a union. Ante at 253. I believe that, as a matter of public pol*275icy, precluding an employer from seeking contribution from a union protects the relationship between a union and its members. A union is designed to advance the interests of its members.11 Although the majority emphasizes that “the union’s core duty [is] to negotiate and administer labor agreements,”12 it fails to explain how undermining this relationship advances this goal. By permitting an employer to seek contribution from the union, the majority creates a conflict of interest, placing a union and its members in an adversarial posture.

Union counsel presented persuasive comment regarding this policy during oral argument, asserting:

[I]f in fact whenever there is alleged discrimination the union is going to find itself hauled into court defending itself at great expense and unable to assist its members, as it may very well want to do, that is not going to assist enforcement of the [Civil Rights] Act. It is going to deter enforcement of the act. The union here is not able to help its members. It is put at cross purposes with its members, and the employer ought not be able to create, at its will, ... a barrier between the union and its members which precludes the union from giving the assistance it *276needs. If the union has, in fact, injured its members and the members are so convinced, they can sue it. But where the employer is able in this instance as it would be under this Court of Appeals decision, if the employer is able to separate the union from its members, and to put the employees who have sued, in this instance the three women, in a position where their union realizes that if the employees prevail the union is going to be probably bankrupt and possibly even — it’s possible that if the union lost here and if the employer prevailed, that because it is a small and voluntary unincorporated association, as most unions are, most unions are unincorporated associations, it is possible that liability could be imposed upon the individual members. What I’m saying is that it does not serve the policy of [the Michigan Civil Rights Act] to permit an employer to do that. To permit an employer essentially to punish the bargaining unit, to drag the union into court when the employees have not chosen to do so, to put the union at cross-purposes with its members, and to essentially put the union members who have chosen to exercise their rights under [the Michigan Civil Rights Act], to put them in a position where their fellow union members see them, rightfully if this decision is upheld, as having endangered the union and possibly having endangered their co-workers. It allows the employer to punish the union, to punish the bargaining unit, to put it at great risk, because some employees have chosen to sue their employer. And I would suggest to you that that is very much counter to the public policy of [the Michigan Civil Rights Act]. And in fact it is extremely destructive to the policy of the act.

Also, permitting an employer to seek contribution from a union will discourage discrimination victims from pursuing claims by denying them access to legal representation from their unions. As demonstrated in the immediate case, union counsel originally represented plaintiffs, but was forced to withdraw after the defendant employer filed a motion to disqualify counsel on grounds of conflict of interest.

*277The majority asserts that my position will provide unions with a “free pass” to participate in sexual discrimination. It fails, however, to explain how my position would preclude plaintiffs from directly filing suit against its union for discriminatory conduct. Curiously, the majority attempts to disguise its interference with the employee-union relationship as “vindicating Michigan’s civil rights laws.” To the contrary, the majority undermines this goal by denying discrimination victims access to union legal representation.

Finally, liability from contribution claims could damage the financial stability of unions, reducing or eliminating their ability to represent and negotiate on behalf of their members. This result would clearly violate Michigan public policy.

CONCLUSION

Given that the majority’s decision contradicts the manifest intent of the Legislature, federal law, and state public policy, I respectfully dissent. I would reverse the judgment of the Court of Appeals and conclude that the defendant employer may not seek contribution from the union for intentional sexual discrimination arising from a collective bargaining agreement provision.

CAVANAGH, J., concurred with KELLY, J.

The mjyority opinion observes that “a plaintiff is always free to file suit against any or all tortfeasors.” Ante at 255. Despite the absence of any supporting statutory language, it then conclusively states, “our Legislature has seen fit to allow contribution among joint tortfeasors, even when the plaintiff chooses not to sue all of them.” Id. However, the majority fails to recognize the distinction between joint (negligent) and intentional tortfeasors. Moyses v Spartan Asphalt Paving Co, 383 Mich 314, 329; 174 NW2d 797 (1970). The weakness of the majority opinion’s holding is evidenced by its reliance on its own unsupported conclusions.

The majority also asserts that “this Court has already dismissed the dissent’s argument.” Ante at 255, n 13. Ironically, the majority then cites a Michigan case recognizing the distinction between intentional and nonintentional tortfeasors, Caldwell v Fox, 394 Mich 401, 416; 231 NW2d 46 (1975), as well as a New Jersey case, Markey v Skog, 129 NJ Super 192; 322 A2d 513 (1974).

The initial predecessor to § 2925a provided:

It shall be lawful for all persons having a claim or cause of action against 2 or more joint tort-feasors to compound, settle with, and discharge, at any time prior to rendition of a judgment in said action, any and everyone or more of said joint tort-feasors for such sum as such person may deem fit, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the remaining joint tort-feasors, against whom such person, or persons, has such claim or cause of action, and not so released.- [MCL 691.562; MSA 27.1683(2) (repealed).]

In 1961, § 2925(2) was amended to provide:

It shall be lawful for all persons having a claim or cause of action against 2 or more joint tort-feasors to compound, settle with, and discharge, at any time prior to rendition of a judgment in said action, any and every one or more of said joint tort-feasors for such sum as such person may deem fit, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the remaining joint tort-feasors, against whom such person, or persons, has such claim or cause of action, and not so released. [MCL 600.2925(2); MSA 27A.2925(2) (repealed).]

Overruled in part on other grounds in Caldwell, n 1 supra. In Moyses, this Court noted that § 2925 fell short of its intended purpose of providing a right to “contribution between or among jointly liable or severally liable but not wilful tortfeasors.” Id., 327. As noted by the majority, subsequent cases have maintained the distinction between intentional and nonintentional tortfeasors. Johnson v Bundy, 129 Mich App 393, 400; 342 NW2d 567 (1983); Fidelity & Deposit Co of Maryland v Newman, 109 Mich App 620, 625-626; 311 NW2d 821 (1981).

Quoting Prosser, Torts (2d ed), § 46, this Court added:

“It seems quite clear that the rule denying contribution in favor of negligent tortfeasors is in full retreat, and that in due course of time the pressure of opinion will compel its abolition. As to wilful wrongdoers, or those who are guilty of the more flagrant forms of misconduct, there is no indication of any desire or tendency to relax the original rule.” [Id., 335-336.]

The majority aptly recognizes that the Legislature amended the contribution statute in 1974 to adopt “most of the provisions of the 1955 revision of the uniform act.” Ante at 249, n 7. However, interpreting these revisions, this Court continued to recognize the distinction between intentional and nonintentional tortfeasors in Downie v Kent Products, Inc, 420 Mich 197, 217; 362 NW2d 605 (1984), explaining:

There is a substantive right to contribution on the part of a nonintentional tortfeasor who has paid more than his pro-rata share of the common liability. [Id,., citing MCL 600.2925a(l), (2); MSA 27A.2925(1)(1), (2) (emphasis added).]

Notwithstanding the 1974 amendments, this Court continued to limit contribution to nonintentional tortfeasors. Id.

377 Mich 517, 527; 141 NW2d 81 (1966).

In Moyses, this Court explained that the contribution statute permitted contribution only among joint tortfeasors, not among several tortfeasors. Id. at 327. Referring to the common law, this Court held that *272it permitted contribution among joint and several tortfeasors, but not among intentional tortfeasors. Following the release of Moyses, the Legislature amended the statute to permit liability among both joint and several tortfeasors. However, it chose not to amend the statute to provide for contribution among intentional tortfeasors, implicitly accepting this Court’s conclusion.

Malcolm, supra at 139.

451 US 77, 80-81; 101 S Ct 1571; 67 L Ed 2d 750 (1981).

As noted by the majority, a federal district court has similarly concluded that intentional tortfeasors are not entitled to contribution under the Michigan contribution statute. In re Air Crash at Detroit Metropolitan Airport, 791 F Supp 1204 (ED Mich, 1992), affd 86 F3d 498 (CA 6, 1996). Although the majority accuses the district court of erroneously relying on dicta, the district court astutely recognized that the “right to contribution in Michigan is controlled entirely by statute, since there was no right to contribution at common law.” Id., 1234 (citation omitted). Contrary to the majority’s assertion, the district court concluded that the employer was not entitled to contribution on the basis of the Michigan statutes and case law. Id., 1235.

Our Court of Appeals has previously recognized that

“Congress has given unions wide authority and great discretion to reconcile the competing interests of the employees whom they represent so that they might speak with one voice when they confront management at the bargaining table. . . . Congressional validation of collective action, however, necessarily involves extinguishing many of the contract and economic rights belonging to union members and, instead, vesting the power to act in their behalf with their chosen representative, the union.” [Farmington Hills v Farmington Hills Police Officers Ass’n, 79 Mich App 581, 590; 262 NW2d 866 (1977), quoting Crenshaw v Allied Chemical Corp, 387 F Supp 594, 598-599 (ED Va, 1975); see also Barkley v Detroit, 204 Mich App 194, 214; 514 NW2d 242 (1994) (Taylor, P.J., dissenting).]

Ante at 255.