Apsey v. Memorial Hospital

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED MAY 1, 2007

SUE H. APSEY and ROBERT APSEY, JR.,

Plaintiff-Appellees/Cross-
Appellants,

v No. 129134

MEMORIAL HOSPITAL, doing business as
MEMORIAL HEALTHCARE CENTER

Defendant.
and

RUSSELL H. TOBE, D.O., JAMES H.
DEERING, D.O., JAMES H. DEERING,
D.O., P.C., and SHIAWASSEE
RADIOLOGY CONSULTANTS, P.C.,

Defendants-Appellants/Cross-
Appellees.

BEFORE THE ENTIRE BENCH

KELLY, J.

This case presents the question of what authentication is necessary for out-

of-state affidavits in Michigan. The parties ask us to determine whether MCL

600.2102(4) of the Revised Judicature Act (RJA) conflicts with the Uniform
Recognition of Acknowledgements Act (URAA), MCL 565.261 et seq., and to

discern the meaning of MCL 565.268 and its relation to MCL 600.2102(4). We

find no conflict between the URAA and MCL 600.2102(4). The Legislature

intended the URAA to serve as an alternative to MCL 600.2102(4) for

authenticating out-of-state affidavits.

The Court of Appeals erred in concluding that MCL 600.2102(4) controlled

because it is more specific. Therefore, it erroneously found that the signature of a

notary public on an affidavit taken out of state must “be certified by the clerk of

any court of record in the county where such affidavit shall be taken, under the

seal of said court.” MCL 600.2102(4). The Court of Appeals failed to give

adequate weight and consideration to the language of MCL 565.268 that makes

the URAA an additional method of attestation. Apsey v Mem Hosp (On

Reconsideration), 266 Mich App 666; 702 NW2d 870 (2005). We reverse the

judgment of the Court of Appeals and remand this case to the trial court for further

proceedings consistent with this opinion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Sue Apsey went to Memorial Healthcare Center for an exploratory

laparotomy, which resulted in the removal of a large ovarian cyst. Medical

complications followed this procedure. Plaintiffs allege that various acts of

medical malpractice caused her to become septic, necessitating several follow-up

surgeries.

Plaintiffs’ affidavit of merit was prepared in Pennsylvania, and the notary

public who signed it came from that state. A normal notarial seal appears on the

document, but no other certification accompanied the seal. Plaintiffs later

provided further certification, but not until after the statutory period of limitations

had run on their medical malpractice cause of action.

Defendants moved for summary disposition of plaintiffs’ claims.1 The trial

court granted the motion. It found that plaintiffs’ failure to provide further

certification as required by MCL 600.2102(4) rendered the out-of-state

notarization insufficient. As a result, it ruled that the affidavit was a nullity.

Without the affidavit, plaintiffs’ complaint was not complete, and their cause of

action failed for never having been properly commenced.

Plaintiffs moved for reconsideration, arguing that the affidavit was

sufficient under MCL 565.262, but the trial court denied reconsideration.

Although it did not give its reasoning, the court stated that compliance with MCL

565.262 would not have changed its decision.

On appeal, the Court of Appeals issued an opinion in April 2005. It stated

that, if it were basing its decision solely on the URAA, the affidavit in this case

would be valid. But it found that MCL 600.2102(4) changed this. It found

1
Defendant Memorial Hospital is not an appellant in this Court.
Subsequent references in this opinion to “defendants” are to defendants Russell H.
Tobe, D.O.; James H. Deering, D.O.; James H. Deering, D.O., P.C.; and
Shiawasee Radiology Consultants, P.C.

significance in the fact that MCL 600.2192 appears in the RJA, which deals with

material presented to the courts. It reasoned that, on the other hand, the URAA

appears among the statutes governing the conveyance of real property. It

concluded that the URAA’s emphasis is not on documents submitted to the courts.

The Court of Appeals also focused on the final sentence in MCL 565.268:

“Nothing in this act diminishes or invalidates the recognition accorded to notarial

acts by other laws of this state.” It reasoned that this sentence indicated that the

URAA did not diminish the more formal and specific requirements of MCL

600.2102(4). And it found that these more formal requirements controlled when

the affidavit is to be officially received and considered by the judiciary. Given

this, the Court of Appeals affirmed the trial court’s dismissal of the case in a

published opinion per curiam of the Court of Appeals, issued April 19, 2005

(Docket No. 251110).

On June 2, 2005,2 the Court of Appeals granted reconsideration and vacated

its opinion. On June 9, 2005, it issued its published opinion on reconsideration.

In a split decision, a majority of the Court of Appeals reaffirmed its past decision,

issuing essentially the same opinion. But it decided to give the decision only

prospective application. It found that it would be fundamentally unfair to dismiss

plaintiffs’ case because of plaintiffs’ reliance on the URAA. It determined that the

2
Unpublished order in Docket No. 251110.

interests of justice would best be served by allowing plaintiffs’ claim to proceed.

Apsey, 266 Mich App at 681-682.

Judge Mark Cavanagh dissented. He argued that the URAA provided an

alternative method of proving that the notary actually notarized the document. He

concluded that the URAA was a response to advances in technology and that the

Legislature intended both it and MCL 600.2102 to provide legal methods of

authenticating out-of-state affidavits. Id. at 685-686 (Cavanagh, J., dissenting).

Defendants sought leave to appeal in this Court, and plaintiffs sought leave

to cross-appeal. This Court directed the clerk to schedule oral argument on

whether to grant the applications or take other peremptory action pursuant to MCR

7.302(G)(1). 474 Mich 1135 (2006).

II. STANDARD OF REVIEW

Issues of statutory interpretation are questions of law that this Court

reviews de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151

(2003). The fundamental rule and primary goal of statutory construction is to

effectuate the Legislature’s intent. Casco Twp v Secretary of State, 472 Mich 566,

571; 701 NW2d 102 (2005). To accomplish this task, we start by reviewing the

text of the statute, and, if it is unambiguous, we will enforce the statute as written

because the Legislature is presumed to have intended the meaning expressed. Id.

Whenever possible, every word of a statute should be given meaning. And no

word should be treated as surplusage or made nugatory. People v Warren, 462

Mich 415, 429 n 24; 615 NW2d 691 (2000).

III. THE URAA PROVIDES AN ALTERNATIVE METHOD OF ATTESTATION AND

AUTHENTICATION

The URAA and MCL 600.2102(4) require different certifications for out-

of-state affidavits. MCL 600.2102 provides, in part:

In cases where by law the affidavit of any person residing in
another state of the United States, or in any foreign country, is
required, or may be received in judicial proceedings in this state, to
entitle the same to be read, it must be authenticated as follows:
* * *
(4) If such affidavit be taken in any other of the United States
or in any territory thereof, it may be taken before a commissioner
duly appointed and commissioned by the governor of this state to
take affidavits therein, or before any notary public or justice of the
peace authorized by the laws of such state to administer oaths
therein. The signature of such notary public or justice of the peace,
and the fact that at the time of the taking of such affidavit the person
before whom the same was taken was such notary public or justice
of the peace, shall be certified by the clerk of any court of record in
the county where such affidavit shall be taken, under the seal of said
court. [Emphasis added.]

MCL 565.262(a) defines “notarial acts” under the URAA. It provides, in part:

“Notarial acts” means acts that the laws of this state authorize
notaries public of this state to perform, including the administering
of oaths and affirmations, taking proof of execution and
acknowledgments of instruments, and attesting documents. Notarial
acts may be performed outside this state for use in this state with the
same effect as if performed by a notary public of this state by the
following persons authorized pursuant to the laws and regulations of
other governments in addition to any other person authorized by the
laws of this state:

(i) A notary public authorized to perform notarial acts in the
place in which the act is performed. [Emphasis added.]

It is undisputed that an affidavit is a “notarial act” that is controlled by the

URAA.3

On first review, these statutes appear to be in conflict. The Court of

Appeals majority was troubled by this and struggled to make the two fit together.

But, in attempting to harmonize them, the Court of Appeals majority severely

limited the reach and application of the URAA in ways unsupported by the text of

the URAA and unintended by the Legislature. While it was appropriate for the

Court of Appeals to read the statutes in pari materia,4 the Court’s method of doing

so was incorrect. The Legislature has provided guidance on how to read the

statutes in the URAA. The Court of Appeals should have used it before

attempting other means of harmonizing the statutes.

3
In fact, defendants concede that the URAA applies to all notarial acts.
This would include affidavits offered in a judicial proceeding. Defendants’
concession undermines any argument that MCL 600.2102 was retained to carve
out an exception to the URAA for affidavits used in judicial proceedings.
4
“‘The object of the rule in pari materia is to carry into effect the purpose
of the legislature as found in harmonious statutes on a subject.’” Jennings v
Southwood, 446 Mich 125, 137; 521 NW2d 230 (1994), quoting Wayne Co v
Auditor General, 250 Mich 227, 233; 229 NW 911 (1930).

Statutes in pari materia are those which relate to the same
person or thing, or the same class of persons or things, or which
have a common purpose. It is the rule that in construction of a
particular statute, or in the interpretation of its provisions, all statutes
relating to the same subject, or having the same general purpose,
should be read in connection with it, as together constituting one
law, although enacted at different times, and containing no reference
one to the other. [Detroit v Michigan Bell Tel Co, 374 Mich 543,
558; 132 NW2d 660 (1965).]

In MCL 565.268, the Legislature indicated how the URAA was meant to

interact with MCL 600.2102. MCL 565.268 provides:

A notarial act performed prior to the effective date of this act
is not affected by this act. This act provides an additional method of
proving notarial acts. Nothing in this act diminishes or invalidates
the recognition accorded to notarial acts by other laws of this state.
[Emphasis added.]

Although the Court of Appeals majority took note of MCL 565.268, it focused on

the last sentence to the exclusion of the others. It reasoned that, because the

URAA does not diminish MCL 600.2102(4), this must mean that the Legislature

intended MCL 600.2102(4) to trump the requirements of the URAA. But this

reasoning is not supported by the complete text of MCL 565.268.

The final sentence must be read in light of what precedes it. The second

sentence of MCL 565.268 indicates that the URAA is an additional or alternative

method of proving notarial acts. As an “additional” method, the URAA does not

replace the prior method. Instead, it is intended to stand as a coequal with it.

Because the two methods are alternative and coequal, the URAA does not

diminish or invalidate “the recognition accorded to notarial acts by other laws of

this state.” MCL 565.268. Simply, MCL 600.2102(4) is not invalidated by the

URAA. It remains an additional method of attestation of out-of-state affidavits.

Because the two methods exist as alternatives, a party may use either to validate

an affidavit.

Under the doctrine of noscitur a sociis,5 a phrase must be read in context.

A phrase must be construed in light of the phrases around it, not in a vacuum. Its

context gives it meaning. Koontz v Ameritech Services, Inc, 466 Mich 304, 318;

645 NW2d 34 (2002). Similarly, it is a well-settled rule of law that, when

construing a statute, a court must read it as a whole. G C Timmis & Co v

Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003); Arrowhead Dev

Co v Livingston Co Rd Comm, 413 Mich 505, 516; 322 NW2d 702 (1982); Layton

v Seward Corp, 320 Mich 418, 427; 31 NW2d 678 (1948). Without proper

adherence to this rule, the Court of Appeals could not effectuate the intent behind

the URAA.

The Court of Appeals rejected the interpretation we use in the belief that

reading the URAA as an alternative method of authenticating out-of-state

affidavits would render MCL 600.2102(4) nugatory. Of course, a reviewing court

should not interpret a statute in such a manner as to render it nugatory. Warren,

462 Mich at 429 n 24. A statute is rendered nugatory when an interpretation fails

to give it meaning or effect.6 But our interpretation of MCL 565.268 does no such

damage to MCL 600.2102(4).

5
“It is known by its associates.” Black’s Law Dictionary (7th ed).
6
Black’s Law Dictionary (7th ed) defines “nugatory” as “of no force or
effect; useless; invalid.”

Because the URAA does not repeal MCL 600.2102, the latter provision

remains in effect as a viable means of authenticating out-of-state affidavits. If a

party chooses to use it, the affidavit can be admitted as evidence just as if the party

had decided to follow the URAA. MCL 600.2102(4) has the same meaning and

effect after the enactment of the URAA as it did before. At both times, it was a

viable means of authenticating an out-of-state affidavit.

We question how the Legislature could have signaled more clearly its intent

that the URAA should function as an alternative to MCL 600.2102 than by stating

that the URAA “provides an additional method of proving notarial acts.” MCL

565.268. The Legislature need not repeal every law in a given area before it

enacts new laws that it intends to operate in addition to their preexisting

counterparts. The Legislature has the power to enact laws to function and interact

as it sees fit. And when it does so, this Court is bound to honor its intent.

In this case, the Legislature made its intent clear through MCL 565.268.

By enacting the URAA, it wished to create an additional method of

authentication.7 We must respect this decision. Despite its likely decreased use in

7
The brief amicus curiae of the Negligence Section of the State Bar of
Michigan makes the uncontested assertion that 24 states and the District of
Columbia will not comply with the requirements of MCL 600.2102(4). This list
includes heavily populated states such as California, Florida, Massachusetts, New
Jersey, and Texas. This fact may have provided additional motivation for the
Legislature to create an additional method of authenticating affidavits.

light of the URAA’s less rigorous requirements, MCL 600.2102(4) still has

meaning. Hence, it is not rendered nugatory.8

Also, MCL 600.2102(4) is not rendered nugatory because it provides for

the Governor to appoint a commissioner to authenticate out-of-state affidavits.

Under the statute’s language, Michigan’s Governor could appoint a person who is

not a notary to authenticate affidavits in any state or territory of the United States.

MCL 600.2102(4). Such affidavits likely would not be admissible under the

URAA. But they could be used because of MCL 600.2102(4). Given this, MCL

600.2102 is not rendered nugatory under our interpretation of the URAA. Instead,

it has valid meaning and effect, even if it is rarely used.

By contrast, a strict application of MCL 600.2102 as the only method of

authenticating affidavits would render part of MCL 565.268 nugatory. Only by

ignoring the sentence “[t]his act provides an additional method of proving notarial

8
Justice Markman accuses us of rewriting and rendering nugatory the
phrase “must be authenticated” as used in MCL 600.2102. This opinion does not
render the phrase nugatory. As we have repeatedly noted, MCL 600.2102 still can
be used as an alternative means of authentication. If a party chooses to use this
method, the affidavit still “must be authenticated” in the same manner. As such,
the phrase continues to have meaning.
This Court is not rewriting the statute. Instead, it is effectuating the intent
behind the language written by the Legislature and considering MCL 600.2102
together with the URAA. The language of the URAA indicates that the
Legislature intended to change MCL 600.2102 to render it no longer the exclusive
means of authenticating out-of-state affidavits. To discern the true intent of the
Legislature, the statutes must be read together, and no one section should be taken
in isolation. This is where Justice Markman’s review fails.

acts” could we arrive at defendants’ desired outcome. As discussed earlier, there

is no reason to do so when we can provide both statutes full meaning as

alternatives to one another. Therefore, we reverse the judgment of the Court of

Appeals.9

MCL 565.268 lays out how the Legislature intended to deal with MCL

600.2102 and the URAA. The URAA is an additional method of authenticating

9
Courts in other states have faced issues similar to the one we face today.
They have consistently come to the conclusion that the uniform act creates an
alternative means of authentication. Rumph v Lester Land Co, 205 Ark 1147; 172
SW2d 916 (1943), provides an excellent example. In that case, an Arkansas
statute that predated the enactment of the uniform acknowledgement act required
that
“the certificate shall be authenticated by a certificate as to the
official character of such officer, executed, if the acknowledgment is
taken by a Clerk or Deputy Clerk of a court, by the presiding judge
of the court or, if the acknowledgment is taken by a Notary Public,
by a Clerk of a Court of Record of the County, Parish or District in
which the acknowledgment is taken.” [Id. at 1149, quoting § 9(2)
of 1943 Ark Acts 169 (emphasis added).]

The Arkansas Supreme Court concluded that, despite this language, the statute
was merely a system of acknowledgement that was an alternative to the uniform
acknowledgement act:

In other words, Act 169 of 1943 is merely permissive.
Acknowledgments may still be taken, certified and authenticated just
as heretofore; on the other hand, acknowledgments may be taken,
certified and authenticated under the Uniform Acknowledgment Act,
which is Act 169 of 1943. Two ways are open: (1) the old way; or
(2) the way under Act 169 of 1943. Either way reaches the same
goal: i. e., the right to be recorded. [Rumph, 205 Ark at 1149.]

(continued…)

out-of-state affidavits, and either method may be used as an alternative to the

other.10 Because plaintiffs complied with the URAA, their affidavit was

admissible.

IV. CONCLUSION

Because of the unambiguous language of MCL 565.268, there is no conflict

between the URAA and MCL 600.2102(4). The URAA was enacted as an

additional means of dealing with all notarial acts. This includes affidavits.

Because of the unambiguous language of MCL 565.268, the URAA provides an

alternative method of authenticating out-of-state affidavits. The Court of Appeals

erred in holding that plaintiffs’ affidavit was insufficient and inadmissible despite

its compliance with the URAA. We reverse the judgment of the Court of Appeals

(…continued)

See also First Nat’l Bank v Howard, 148 Tenn 188; 253 SW 961 (1923), and

Valley Nat’l Bank of Arizona v Avco Dev Co, 14 Ariz App 56; 480 P2d 671

(1971).

10
We strongly disagree with Justice Markman that the “most obvious
means of reconciling and harmonizing” these two provisions is to find that MCL
600.2102 carves out an exception to the URAA. Post at 3. Again, this fails to
give effect to MCL 565.268. The “most obvious” means of accomplishing this
task is to follow the instructions of the Legislature and treat the provisions as
alternative means of authentication.

and remand this case to the trial court for further proceedings. We do not retain

jurisdiction.

Marilyn Kelly
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan

STATE OF MICHIGAN

SUPREME COURT

SUE H. APSEY and ROBERT APSEY, JR.,

Plaintiff-Appellees/Cross-

Appellants,

v No. 129134

MEMORIAL HOSPITAL, doing business as
MEMORIAL HEALTHCARE CENTER

Defendant.
and

RUSSELL H. TOBE, D.O., JAMES H.
DEERING, D.O., JAMES H. DEERING,
D.O., P.C., and SHIAWASSEE
RADIOLOGY CONSULTANTS, P.C.,

Defendants-Appellants/Cross-

Appellees.

KELLY, J. (concurring).

Given that I authored it, I fully concur in the majority opinion. I write this

separate concurrence to address additional reasons why I believe the Court has

reached the correct conclusion in this case. The following further explains why

the two means of authentication continue to coexist and demonstrates why the

Legislature did not simply repeal MCL 600.2102(4). It also offers an added

explanation of how the Court of Appeals attempt to harmonize MCL 600.210(4)
with the Uniform Recognition of Acknowledgements Act actually subverted the

Legislature’s intent.

Our interpretation of MCL 600.2102(4) and the Uniform Recognition of

Acknowledgements Act (URAA), MCL 565.261 et seq., is supported by certain

written matter that was supplied to the Legislature before it enacted the URAA.

Of particular importance is the Michigan Law Revision Commission’s report and

recommendations. The commission was created by the Legislative Council Act

(LCA), MCL 4.1101 et seq. It is charged with recommending changes in the law

to the Legislature. MCL 4.1403. The LCA also created the Legislative Service

Bureau. MCL 4.1105. It is this bureau’s responsibility to compare pending bills

with existing laws for the purpose of avoiding conflicts. MCL 4.1108(a). The

bureau may also recommend legislation to the Legislative Council or the

commission. MCL 4.1109. Along with its recommendations to the Legislature,

the Legislative Council may submit proposed bills to implement the

recommendations. MCL 4.1104(4).

The Michigan Law Revision Commission brought no conflicts to the

Legislature’s attention in its report on the URAA. Rather, the report specifically

advised the Legislature that it need not repeal any laws in order to fully effectuate

the URAA. It stated, “The act does not require the amendment or repeal of any

existing legislation in Michigan but the old Uniform Act adopted in 1895 . . . .”

Michigan Law Revision Commission, Third Annual Report, 1968. The reason no

such action had to be taken was because of proposed language that later became

MCL 565.268.1

Given the specialized function of the Michigan Law Revision Commission,

its report carries extra weight in assisting a court’s interpretation of statutes. As

the Legislature created the commission specifically to aid it in drafting legislation

and identifying conflicts in the law, its report is a particularly useful tool in

discerning legislative intent.

In this case, the report explains why MCL 600.2102 was retained. The

Legislature did not repeal it because the commission advised that there was no

need to do so. As the URAA was meant to provide an additional method of

authentication, there was no need to repeal MCL 600.2102. Instead, by enacting

MCL 565.268, the URAA made clear that there would be an additional and

alternative method of authenticating affidavits. The commission’s report belies

the argument that, by retaining MCL 600.2102, the Legislature intended it to

trump the URAA.

1
MCL 565.268 provides:

The report specifically indicated to the Legislature that the National

Conference of Commissioners on Uniform State Laws prepared the URAA.

Michigan Law Revision Commission, Third Annual Report, 1968. The national

commissioners prepared a prefatory note to the URAA to aid in its uniform

enactment. This note is also a useful tool in discerning the legislative intent

behind the URAA and in explaining why both it and MCL 600.2102 remain good

law. This is because, like the Michigan Law Revision Commission’s report, it

told the Legislature that it need not overturn existing statutes to fully effectuate the

URAA. The prefatory note stated that there was no need to amend existing

acknowledgement law because the URAA was “in addition to” other recognition

statutes. This demonstrates why the Legislature took no action to repeal MCL

600.2102.

The advice provided by these materials explains why the Legislature left

MCL 600.2102 on the books when it adopted the URAA. And it informs our

interpretation of the language of MCL 565.268. This provision of the URAA was

included to streamline the enactment process. It did so by making the URAA a

method of dealing with notarial acts that was additional to any existing before its

enactment, including MCL 600.2102.

The Court of Appeals attempted to harmonize MCL 600.2102 with the

URAA. But its attempts conflicted with the Legislature’s intent that the URAA be

interpreted as it has been in other states that have enacted it. MCL 565.269

provides: “This act shall be so interpreted as to make uniform the laws of those

states which enact it.” Use of the term “shall” in MCL 565.269 is a mandatory

directive. Burton v Reed City Hosp Corp, 471 Mich 745, 752; 691 NW2d 424

(2005).

But far from making the URAA uniform, the Court of Appeals

interpretation creates a gaping exception applicable only in Michigan. Contrary to

the requirements of MCL 565.269, the Court of Appeals actually isolated

Michigan from every other state that has enacted the URAA. The language of

MCL 565.269 helps demonstrate that this could not have been the Legislature’s

intended interaction between the URAA and MCL 600.2102. The Court of

Appeals erred in failing to follow the directive of MCL 565.269.

These materials provide substantial evidence that this Court properly

interpreted the statutes in this case.

Marilyn Kelly
Michael F. Cavanagh

STATE OF MICHIGAN

SUPREME COURT

SUE H. APSEY and ROBERT APSEY, JR.,

Plaintiff-Appellees,

Cross Appellants,

v No. 129134

MEMORIAL HOSPITAL, doing business as
MEMORIAL HEALTHCARE CENTER

Defendant.
and

RUSSELL H. TOBE, D.O., JAMES H.
DEERING, D.O., JAMES H. DEERING,
D.O., P.C., and SHIAWASSEE
RADIOLOGY CONSULTANTS, P.C.,

Defendants-Appellants, Cross-
Appellees.

YOUNG, J. (concurring in the result only).

I concur in the result to reverse the Court of Appeals. This is a case in

which the majority and the dissent offer two compelling but competing

constructions of the Uniform Recognition of Acknowledgements Act (URAA) and

MCL 600.2102 of the Revised Judicature Act (RJA), and, in my view, neither
construction is unprincipled.1 Both sides invoke legitimate, well-established

canons of statutory construction to justify their respective positions. In short, this

is a rare instance where our conventional rules of statutory interpretation do not

yield an unequivocal answer regarding how to reconcile the provisions of the two

statutes that appear to conflict.

The majority honors the plain, unambiguous language in the more recently

enacted URAA, noting that the statute explicitly states that it creates an

“additional method” of authenticating notarial acts.2 The majority theorizes,

1
It is not just the members of this Court who have struggled to reconcile
the provisions of these two statutes. The Court of Appeals has twice considered
this issue. Initially, it held that the more specific requirements of the RJA
controlled over the requirements of the URAA and affirmed summary disposition
in favor of defendants. Apsey v Mem Hosp, unpublished opinion per curiam of the
Court of Appeals, issued April 19, 2005 (Docket No. 251110). After granting
reconsideration, one member of the original panel urged a different reading of the
statutes, while a majority of the panel continued to hold that the RJA controlled
over the URAA, but reversed the trial court and gave plaintiffs an opportunity to
remedy the defect. Apsey v Mem Hosp (On Reconsideration), 266 Mich App 666;
702 NW2d 870 (2005). Moreover, in their briefs filed with this Court, the parties
themselves and the numerous amici curiae aligning with either side have
thoroughly debated the competing approaches to construing the URAA and the
RJA. Also, the Court of Appeals subsequently has questioned the correctness of
its published decision in this case and, despite the fact that this case was pending
before this Court, it took the unorthodox step of convening a special conflict panel
to consider whether its decision in this case was correct. See White v Barbara Ann
Karmanos Cancer Institute, order of the Court of Appeals, entered February 23,
2007 (Docket No. 270320).
2
MCL 565.268. Importantly, the URAA definition of “notarial acts” is
very broad and encompasses those also covered by the RJA. MCL 565.262(a)
(“‘Notarial acts’ means acts that the laws of this state authorize notaries public of
this state to perform, including the administering of oaths and affirmations, taking
(continued…)

correctly I believe, that the Legislature, using the appropriate statutory language to

signal its intent, is capable of prescribing a restrictive method of authentication

then later approving a more lenient method as an alternative to the prior enactment

without expressly repealing that earlier statute. I have no doubt of the

Legislature’s ability to provide an alternative, more lenient statutory regime,

without having to negate a more restrictive one. The majority believes that the

Legislature has clearly signaled such an intent in this case.

The dissent responds, first, that MCL 600.2102 dictates that out-of-state

affidavits that are to be received in judicial proceedings “must be authenticated” in

accordance with its more stringent requirements, and, second, that the more

specific provision, that of the RJA, must govern the more general provision, the

URAA, when the two overlap. The dissent also believes that the “additional

method” language is an insufficient signal that the Legislature intended for both

statutes to coexist as alternatives. Moreover, the dissent concludes that the

majority’s construction renders “nugatory” the more restrictive RJA.

The dissent labels the majority’s approach a “non-interpretation” and a

“non-harmonization” of the URAA and the RJA, while criticizing my

characterization of it as a reasonable application of basic principles of statutory

(…continued)

proof of execution and acknowledgements of instruments, and attesting

documents.”).

construction.3 In the process, the dissent recoils at the suggestion that his

approach and the majority’s approach are reasonable alternatives, as he believes

that his interpretation is the only one that truly harmonizes the URAA and the

RJA.

To the contrary, the dissent fails to explain why his “harmonization” is pre-

eminent where the dissent gives little, if any, weight to the URAA’s explicit

statement that it “provides an additional method of proving notarial acts.”4 Given

that the URAA expressly encompasses all notarial acts, if the URAA’s methods

are not “additional” to the RJA’s methods where the statutes overlap, then I cannot

conceive that the phase “additional method” has any significance. The dissent

criticizes the majority for failing to give effect to the word “must,” but meanwhile

falls prey to the same criticism with respect to the phrase “additional method.”

The dissent’s approach cannot be the only true means of harmonization where it

criticizes the majority for rendering statutory language nugatory and proceeds to

do the same. The dissent does not explain why the Legislature could not have

created an all-encompassing alternative methodology for proving notarial acts and

thus why his construction is the superior harmonization of the statutes. The

Legislature apparently intended the URAA and the RJA to coexist as alternatives

where they overlap, and the majority has attempted to respect the Legislature’s

3
Post at 6.

4
MCL 565.268.

will. Therefore, I believe that the best “harmonization” of the two statutes allows

both to coexist, as the Legislature apparently intended.

I also disagree with the dissent that the URAA renders nugatory the

provisions of the RJA merely because, as a matter of practice, the public and the

bar might preferentially choose to use the more liberal statute. If the Legislature

can create two differing methods to accomplish the same act, then the fact that one

is preferred does not render the other “nugatory” in a legal sense. See The

American Heritage Dictionary of the English Language, New College Edition

(1978) (defining “nugatory” as “[h]aving no power; invalid; inoperative: a

nugatory statute”). Foreign affidavits to be used in judicial proceedings can still

be certified under the RJA. The RJA will be neither invalid nor inoperative as a

result of this decision.

Although the majority and the dissent readily expose the flaws apparent in

the other’s analysis of the URAA and the RJA, I cannot conclude that either

construction is entirely unfaithful to the statutory language or departs from the

exacting judicial philosophy that has marked this Court in recent years. Since I

believe that the Legislature has created in the URAA an alternative to the RJA for

proving notarial acts, including those required in judicial proceedings, I decline to

join the dissent. Like the dissent, I believe that the Legislature should dispel much

of the confusion generated by the URAA and the RJA for the benefit of future

litigants. I hope it will do so. However, until that time, I favor a resolution that is

least unsettling and disruptive to the rule of law in Michigan, and so I concur with

the result to reverse the Court of Appeals.

Robert P. Young, Jr.

STATE OF MICHIGAN

SUPREME COURT

SUE H. APSEY and ROBERT APSEY, JR.,

Plaintiff-Appellees/

Cross Appellants,

v No. 129134

MEMORIAL HOSPITAL, doing business as
MEMORIAL HEALTHCARE CENTER

Defendant.
and

RUSSELL H. TOBE, D.O., JAMES H.
DEERING, D.O., JAMES H. DEERING,
D.O., P.C., and SHIAWASSEE
RADIOLOGY CONSULTANTS, P.C.,

Defendants-Appellants/ Cross-
Appellees.

MARKMAN, J. (dissenting).

I respectfully dissent. I would deny leave to appeal and uphold the

judgment of the Court of Appeals. I would also call on the Legislature to

promptly clarify its intentions concerning the need for the certification of foreign

affidavits used in Michigan judicial proceedings.

Although the range of support from amici curiae for plaintiff’s cross-

application is impressive-- encompassing the Michigan Trial Lawyers Association,

the Michigan Defense Trial Counsel, and the State Bar of Michigan-- their briefs
and the majority opinion are ultimately unpersuasive, in my judgment, because

each fails to accord any meaning to MCL 600.2102, which states that foreign

affidavits “must be authenticated” by the procedures set forth in that law. It is not

to read this law “technically,” “narrowly,” “crabbedly,” “literally,”

“unreasonably,” or “conservatively” to conclude that “must be authenticated”

means what it says. The majority opinion would simply transform what the

Legislature has written into “may be authenticated.”1 Although I am sympathetic

to this result, and would urge the Legislature to consider an amendment to that

effect, it is not within this Court’s authority to modify the clear language of the

law, even where there is a consensus within the bar for such a result.

Unquestionably, considerable confusion is introduced by the Uniform

Recognition of Acknowledgments Act (URAA), which states, in part:

This act provides an additional method of proving notarial
acts. Nothing in this act diminishes or invalidates the recognition
accorded to notarial acts by other laws of this state. [MCL 565.268.]

1
The majority opinion asserts that its harmonization “does not render the
phrase nugatory” because “[i]f a party chooses to use this method, the affidavit
still ‘must be authenticated’ in the same manner.” Ante at 11 n 8. But, of course,
the majority opinion’s specified condition-- “if a party chooses to use this
method”-- drains the remainder of its statement of any coherence, for this is the
very question in controversy-- must a party choose to use this method? The
Legislature says “yes,” and the majority opinion says “no.” The majority opinion
does “equity” in the guise of statutory interpretation, distorting both legal concepts
in the process.

However, the most obvious means of reconciling and harmonizing MCL 600.2102

and MCL 565.2682 is to recognize that the former-- applicable only to the use of

affidavits in judicial proceedings-- is the more specific of these provisions, and

therefore the latter is best understood as applicable only to the use of affidavits

outside the scope of judicial proceedings. Such a harmonization, while imperfect

as all harmonizations must be, respects the language of § 2102, while also

respecting the language of the URAA, albeit outside the judicial sphere. While a

perfect harmonization of these provisions is not possible, a harmonization that

gives reasonable meaning to both provisions should be preferred to a

“harmonization” that gives no meaning at all to one provision. In contrast, the

majority’s “harmonization,” while fully respecting the language of the URAA,

would accord no respect to the language of § 2102. As the Court of Appeals

correctly observed, the majority’s interpretation “basically makes the certification

requirement in MCL 600.2102(4) worthless or nugatory.” Apsey v Mem Hosp (On

Reconsideration), 266 Mich App 666, 677 n 4; 702 NW2d 870 (2005).

2
The majority states, “We question how the Legislature could have
signaled more clearly its intent that the URAA should function as an alternative to
MCL 600.2102 than by stating that the URAA ‘provides an additional method of
proving notarial acts.’” Ante at 10. I agree with this. However, it is equally true
that the Legislature could hardly “have signaled more clearly its intent”
concerning § 2102 than by providing that certain notarial acts “must be”
authenticated under the procedures of that provision. The issue here is not the
clarity of the URAA but how to reconcile it with the equally clear § 2102.

In response to Justice Young’s concurring opinion, I do not assert that the

majority opinion renders § 2102 nugatory “merely because, as a matter of practice,

the public and the Bar might preferentially choose to use the more liberal statute.”

Ante at 5. Rather, I assert this because the majority opinion replaces “must” with

“may,” and thereby renders § 2102 “trifling, of little or no consequence,

inconsequential,” Webster’s New Collegiate Dictionary (4th ed)-- that is,

“nugatory.” In so doing, the majority opinion departs from what the concurring

justice correctly describes as “the exacting judicial philosophy that has marked

this Court in recent years.” Ante at 5.

The concurring opinion also errs in characterizing the dispute between the

majority and dissenting opinions as one in which the majority adheres to the

dispositional rule that “later-in-time” statutes control while the dissent adheres to

the rule that more specific statutes control. As useful as such maxims may be

where statutes stand in irreconciliable conflict and where it must be determined

which is to trump the other, it is first the obligation of a court to seek to harmonize

or reconcile statutes so that neither must be trumped out of existence. “To make

laws agree or harmonize with laws is the best mode of interpreting them.”

Halkerston, Maxims 70; see also Nowell v Titan Ins Co, 466 Mich 478, 483; 648

NW2d 157 (2002) (“In . . . a case of tension, . . . it is our duty to, if reasonably

possible, construe them both so as to give meaning to each; that is, to harmonize

them.”).

That is, the process of harmonization, which is simply another name for one

aspect of the process of interpretation, precedes the application of dispositional

maxims of the sort identified by the concurring opinion. See Klapp v United Ins

Group Agency, Inc, 468 Mich 459, 473; 663 NW2d 477 (2003). This opinion

undertakes to harmonize; the majority opinion does not. No “harmonization” can

fairly be said to occur where one statute ends up utterly without practical meaning

or effect. Koenig v South Haven, 460 Mich 667, 677; 597 NW2d 99 (1999) (“[A]

court’s duty is to give meaning to all sections of a statute and to avoid, if at all

possible, nullifying one by an overly broad interpretation of another.”). “Words . .

. ought to be interpreted in such a way as to have some operation.” 8 Coke Reports

94a. “Words are to be received with effect, so that they may produce some

effect.” Bacon, Maxims, reg 3. “Words should be understood effectively.”

Rickets v Livingston, 2 Johns Cas 97, 101 (NY Sup Ct, 1800). If the majority

opinion does not genuinely render § 2102 nugatory in the view of the concurring

opinion, it is difficult to imagine when a statue would ever be rendered nugatory

by judicial construction. A statute need not be physically ripped out of a legal

code and set ablaze in a bonfire in order to be rendered nugatory; it is merely

necessary that a statute be rendered of no consequence. Here, the operative word

of § 2102 is transformed from “must” to “may,” and there is simply no

circumstance in which the statutory shell that remains could ever have any

applicability or pertinence separate from the URAA. The concurring opinion fails

to differentiate between an imperfect harmonization-- which is what all

harmonizations must necessarily be-- and a non-harmonization. The difference is

the difference between an interpretation and a non-interpretation.

The § 2102 “problem”-- and I would acknowledge it as such-- is easily and

quickly remediable by the Legislature. By contrast, the “problem” caused to our

jurisprudence by this Court reading the law in a manner that is unsupported by its

language is considerably less easily and quickly remediable.

Stephen J. Markman