Lapeer County Clerk v. Lapeer Circuit Judges

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

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

____________________________________________________________________________________________________________________________

FILED MARCH 12, 2002

LAPEER COUNTY CLERK and MICHIGAN

ASSOCIATION OF COUNTY CLERKS,

Plaintiffs-Appellees,

v 118091

LAPEER CIRCUIT JUDGES,

Defendants-Appellees,

and

LAPEER COUNTY,

Defendant-Appellant.

___________________________________

LAPEER COUNTY CLERK and MICHIGAN

ASSOCIATION OF COUNTY CLERKS,

Plaintiffs-Appellees,

v 118102

LAPEER CIRCUIT JUDGES,

Defendants-Appellants,

and

LAPEER COUNTY,

Defendant-Appellee.

___________________________________
PER CURIAM

The plaintiffs filed this superintending control action

challenging the Lapeer Circuit Court’s plan for the operation

of the family division of the circuit court. The Court of

Appeals granted part of the relief sought, finding that the

plan improperly denied the county clerk the right and duty to

function as clerk of the court for the family division. We

conclude that the Court of Appeals lacked jurisdiction of the

superintending control action, and reverse.

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 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

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 1999-02 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.

On February 9, 2000, the Acting Director of Trial Court

Services for the State Court Administrative Office advised the

circuit court that

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.

2000-01 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. 2000-01, 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 legal authorized duties as clerk of the court for

the family division of the circuit court.1

Lapeer County intervened as a party defendant, and the

defendants filed motions to dismiss, arguing that the Court of

Appeals lacked subject matter jurisdiction. The circuit court

also claimed that the clerks’ association lacked standing and

that plaintiffs’ complaint failed to state a claim on which

relief could be granted.

The Court of Appeals rejected defendants’ argument that

it lacked subject matter jurisdiction and granted

superintending control. The Court of Appeals declared

unlawful those portions of Local Administrative Order No.

2000-01 that direct family court staff, rather than the county

clerk, to perform the duties assigned to the county clerk by

1
MCL 600.1007 designates the county clerk as the clerk

of the court for the family division.

statute or court rule, and directed the judges of the family

division to permit the county clerk to perform those duties

assigned her by statute or court rule as a clerk of the court

for the family division. It declared lawful the remaining

portions of the administrative order, and dismissed the

clerks’ association’s claims for lack of standing.2

The circuit court and the county filed applications for

leave to appeal. After staying the precedential effect of the

Court of Appeals opinion, we granted leave to appeal, limited

to the issue: “[W]hether the Court of Appeals had subject

matter jurisdiction over the complaint for superintending

control . . . .”3

III

In this case, the issue of subject matter jurisdiction

turns on questions of interpretation of statutes and court

rules, which we review de novo. Hazle v Ford Motor Co, 464

Mich 456, 461; 628 NW2d 515 (2001); Brown v Michigan Health

Care Corp, 463 Mich 368, 374; 617 NW2d 301 (2000); McAuley v

General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998).

2
In re Lapeer Co Clerk, 242 Mich App 497; 619 NW2d 45

(2000).

463 Mich 969 (2001). The order held the remaining

issues raised in the applications in abeyance pending

resolution of the jurisdictional question. In light of our

conclusion that the Court of Appeals lacked jurisdiction, it

is unnecessary to reach those issues, and in those respects

the applications are denied as moot.

Const 1963, art 6, § 10, provides the basis for the

jurisdiction of and procedure in the Court of Appeals:

The jurisdiction of the court of appeals shall

be provided by law and the practice and procedure

therein shall be prescribed by rules of the supreme

court.

In addition to the appellate jurisdiction granted by

MCL 600.308, the Court of Appeals is authorized to hear

certain original actions. MCL 600.310 provides:

The court of appeals has original jurisdiction

to issue prerogative and remedial writs or orders

as provided by rules of the supreme court, and has

authority to issue any writs, directives and

mandates that it judges necessary and expedient to

effectuate its determination of cases brought

before it.

In several court rules, we have exercised that statutory

authority to enable the Court of Appeals to exercise

superintending control jurisdiction.4 MCR 3.302 is the

general jurisdictional provision applicable to all courts with

superintending control jurisdiction:

4
MCR 3.302 makes superintending control the general form

of proceeding for control of lower courts and tribunals:

(A) Scope. A superintending control order

enforces the superintending control power of a

court over lower courts or tribunals.

* * *

control order replaces the writs of certiorari and

prohibition and the writ of mandamus when directed

to a lower court or tribunal.

(D) Jurisdiction.

(1) The Supreme Court, the Court of Appeals,

and the circuit court have jurisdiction to issue

superintending control orders to lower courts or

tribunals. In this rule, the term “circuit court”

includes the Recorder’s Court of the City of

Detroit[5] as to superintending control actions of

which that court has jurisdiction.

(2) When an appeal in the Supreme Court, the

Court of Appeals, the circuit court, or the

recorder’s court is available, that method of

review must be used. If superintending control is

sought and an appeal is available, the complaint

for superintending control must be dismissed.

MCR 7.203 is the specific provision regarding the Court

of Appeals authority to issue such orders:

Enforcement Actions. The [C]ourt [of Appeals] may

entertain an action for:

(1) superintending control over a lower court

or a tribunal immediately below it arising out of

an action or proceeding which, when concluded,

would result in an order appealable to the Court of

Appeals . . . . [Emphasis added.]

This limitation on the superintending control authority

of the Court of Appeals is in contrast to the far broader

superintending control power given by the constitution to the

Supreme Court and the circuit court:

The supreme court shall have general

superintending control over all courts; power to

issue, hear and determine prerogative and remedial

writs; and appellate jurisdiction as provided by

rules of the supreme court. The supreme court

shall not have the power to remove a judge. [Const

1963, art 6, § 4 (emphasis added).]

The Recorder’s Court for the city of Detroit was

abolished by 1996 PA 374.

The circuit court shall have original

jurisdiction in all matters not prohibited by law;

appellate jurisdiction from all inferior courts and

tribunals except as otherwise provided by law;

power to issue, hear and determine prerogative and

remedial writs; supervisory and general control

over inferior courts and tribunals within their

respective jurisdictions in accordance with rules

of the supreme court; and jurisdiction of other

cases and matters as provided by rules of the

supreme court. [Const 1963, art 6, § 13 (emphasis

added).]

The case law interpreting the predecessor court rules had

recognized this distinction between the superintending control

authority of the Supreme Court and circuit court on the one

hand, and the Court of Appeals on the other. As we said in

Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672,

680-681; 194 NW2d 693 (1972):

The Supreme Court has by GCR 1963, 711

provided that the Court of Appeals has the power to

issue superintending control orders which are in

the nature of certiorari, mandamus and

[6]

prohibition.

6
Later in the Genesee Prosecutor opinion we briefly

explained the nature of these common-law writs, which

contemplate intervention by the higher court in a particular

action or proceeding:

The writ of certiorari is for review of errors

of law and our inquiry is limited to determining

“if the inferior tribunal, upon the record made,

had jurisdiction, whether or not it exceeded that

jurisdiction and proceeded according to law.” In

re Fredericks, 285 Mich 262, 267 [280 NW 464]

(1938). In [People v] Flint Municipal Judge [383

Mich 429; 175 NW2d 750 (1970)], we noted that

mandamus would lie to require the magistrate to

perform a clear legal duty. Here it is contended

that the judge acted without jurisdiction and

therefore has a clear legal duty to vacate the

(continued...)

This superintending control has nothing to do

with the general supervisory superintending control

over all courts given to the Supreme Court by

art 6, § 4 of the 1963 Constitution or the

supervisory and general control over inferior

courts and tribunals within their respective

jurisdictions in accordance with rules of the

Supreme Court, given the circuit courts by art 6,

§ 13 of the 1963 Constitution.

No general control of inferior courts exists

in the Court of Appeals.[7]

That principle was also recognized in Morcom v Recorder’s

Court Judge, 15 Mich App 358, 360; 166 NW2d 540 (1968):

[W]e are persuaded that the Supreme Court has

delegated to us only the power to issue such writs

in respect of a particular error in an actual case

and controversy, and that we have not been

delegated superintending control over the general

practices of an inferior court or any judge

thereof.

In sum, then, this Court has general system-wide

superintending control over the lower courts, whereas, in

contrast, the Court of Appeals only has superintending control

in an actual case.

6
(...continued)

guilty plea and reinstate the criminal proceedings

as filed in the information. The writ of

prohibition is a common-law remedy designed to

prevent excesses of jurisdiction. It is a proper

remedy where the court exceeds the bounds of its

jurisdiction or acts in a matter not within its

jurisdiction. Hudson v Judge of Superior Court, 42

Mich 239, 248 [3 NW 850] (1879). [386 Mich 681].

7
GCR 1963, 711, the predecessor of MCR 7.203(C), did not

include the limiting language of current subrule (C)(1). The

addition of that language in 1985 incorporates our decision in

Genesee Prosecutor.

The Court of Appeals opinion cites a number of cases for

the proposition that superintending control is an appropriate

procedure to review the general practices of a lower court.

Some include general language to the effect that the Court of

Appeals, like the Supreme Court and the circuit court, has the

power to issue superintending control orders, e.g., Lockhart

v 36th Dist Judge, 204 Mich App 684; 516 NW2d 76 (1994); In re

Lafayette Towers, 200 Mich App 269; 503 NW2d 740 (1993).

However, none of those cases supports the conclusion that the

Court of Appeals has superintending control jurisdiction over

the general practices of the circuit court.

All the cases cited by the Court of Appeals fall into one

of three categories. Most are cases in which an action was

filed in the circuit court seeking exercise of that court’s

superintending control authority over a lower court or

tribunal, e.g., In re Lafayette Towers, supra; Lockhart,

supra; Saginaw Library Bd v Judges of the 70th Dist Court, 118

Mich App 379; 325 NW2d 777 (1982); Cahill v 15th Dist Judge,

393 Mich 137; 224 NW2d 24 (1974). One of the cases was

brought in the Supreme Court seeking superintending control

over the circuit court. Recorder’s Court Bar Ass’n v Wayne

Circuit Court, 443 Mich 110; 503 NW2d 885 (1993). The

remaining cases involved actions filed in the Court of Appeals

seeking to invoke the limited superintending control

jurisdiction of that Court over the actions of the circuit

court (or Recorder’s Court) in a particular case, as permitted

by MCR 7.203(C)(1). Frederick v Presque Isle Co Circuit

Judge, 439 Mich 1; 476 NW2d 142 (1991) (an action by an

appointed attorney seeking compensation);8 Genesee

Prosecutor, supra (an action by a prosecuting attorney

claiming the circuit court lacked authority to accept a guilty

plea to an uncharged offense over the prosecutor’s objection);

Wayne Co Prosecutor v Recorder’s Court Judge (On Remand), 167

Mich App 282; 421 NW2d 665 (1988) (an action by a prosecutor

challenging the circuit court’s granting of a new trial in a

criminal case).

8
Both the plaintiffs and the Court of Appeals rely

heavily on language in Frederick, in which we held that the

Court of Appeals should have exercised superintending control

over the circuit court. However, Frederick merely stands for

the proposition that superintending control is an appropriate

remedy for a court with jurisdiction to exercise authority

over a lower court when an appeal is not available. In fact,

Frederick and our decision in Recorder’s Court Bar Ass’n well

illustrate the differing superintending control jurisdiction

of this Court and the Court of Appeals. Each case involved a

challenge to action by the lower court regarding the payment

of fees to appointed counsel. In Frederick, the plaintiff

sought payment for the services that he provided in a

particular case. Because the dispute arose out of a

particular action in circuit court, the Court of Appeals had

authority to exercise superintending control under MCR

7.203(C)(1). By contrast, in Recorder’s Court Bar Ass’n, the

plaintiffs challenged the fee schedule for appointed counsel

jointly established by the Wayne Circuit and Detroit

Recorder’s Courts. Because the challenge was to the general

practices of the lower courts, only this Court had

jurisdiction, and the case was properly filed here.

Despite this consistent line of authority, the Court of

Appeals concluded that it could exercise superintending

control jurisdiction in this case. It said:

Pursuant to Const 1963, art 6, § 4 "[t]he

supreme court shall have general superintending

control over all courts . . . ." In contrast,

"[n]o general control of inferior courts exists in

the Court of Appeals." Genesee Prosecutor v

Genesee Circuit Judge, 386 Mich 672, 681; 194 NW2d

693 (1972). Nonetheless, by operation of Const

1963, art 6, § 10, MCL 600.310; MSA 27A.310, MCR

3.302, and MCR 7.203(C) this Court has subject
matter jurisdiction to issue writs of

superintending control to lower courts and

tribunals in those limited cases in which (1) the

general practices of the inferior court or tribunal

are contrary to a clear legal duty, (2) there is no

other adequate remedy, and (3) an action or

proceeding could have been brought in the lower

court or tribunal that, when concluded, would

result in an order appealable to the Court of

Appeals. [242 Mich App 514-515 (emphasis added).]

The Court of Appeals reasoned that the plaintiffs could

have brought an action in the circuit court for a declaratory

judgment or could have challenged the local administrative

order in individual actions in the family division:

In regard to the present controversy,

plaintiff Marlene M. Bruns could have filed a

complaint for a declaratory judgment in the circuit

court challenging, in a specific case or cases, her

displacement as clerk of the court for the family

division of the circuit court. See MCR 2.605.

* * *

In the instant action, defendant circuit court

admitted in its answer that "Judges Preisel and

Higgins refused to allow the county clerk to

perform the clerical duties of the circuit court

with respect to trials in the family division" and

have refused to allow the county clerk "to perform

duties such as opening new cases, maintaining the

care and custody of court records, entering data in

the court's JIS system, performing other courtroom

functions, and for accounting for the finances with

regard to juvenile matters under the jurisdiction

of the family division of the circuit court." In

view of these admissions, we conclude that

plaintiff Bruns could have challenged, in specific

cases, the refusal of the circuit court to allow

her to perform her legally authorized duties by

filing a complaint for declaratory relief in the

circuit court. [242 Mich App 511-512].

The Court of Appeals concluded:

We hold plaintiffs' complaint for a writ of

superintending control is within the subject-matter

jurisdiction of this Court because the criteria set

forth in the court rules have been met. [242 Mich

App 515].

The Court of Appeals analysis fails on a fundamental

level. It concludes that it is sufficient if the party could

have filed an action that would have been appealable to the

Court of Appeals. However, the Court cited no authority

whatsoever for that proposition, and it is plainly contrary to

MCR 7.203(C)(1), which requires that the Court of Appeals may

entertain an action for superintending control arising out of

an action in the lower court or tribunal. Here, there was no

action pending in the Lapeer Circuit Court.9

Moreover, the Court of Appeals conclusion that the

plaintiffs could have sought a declaratory judgment in a

circuit court action is both speculative and highly

questionable. The declaratory judgment rule merely provides

an additional remedy that a party may seek; it does not create

a basis for jurisdiction. MCR 2.605 provides:

(A) Power to Enter Declaratory Judgment.

(continued...)

It may well be that an action for superintending control

is the proper means for the county clerk to challenge the

validity of the circuit court’s administrative order. If so,

however, only this Court has jurisdiction to entertain such an

action. That conclusion is reinforced by the fact that the

circuit court’s plan for the family division was adopted

pursuant to our Administrative Order No. 1997-1, which

directed that circuit courts prepare implementation plans and

submit them to the State Court Administrative Office for

approval. In these circumstances, the circuit court’s

challenged practices were intertwined with our supervisory

9
(...continued)

(1) In a case of actual controversy within its

jurisdiction, a Michigan court of record may

declare the rights and other legal relations of an

interested party seeking a declaratory judgment,

whether or not other relief is or could be sought

or granted.

(2) For the purpose of this rule, an action is

considered within the jurisdiction of a court if

the court would have jurisdiction of an action on

the same claim or claims in which the plaintiff

sought relief other than a declaratory judgment.

The county clerk could not have brought a circuit court

action on the claim made in this case. Such an action would

have sought superintending control over the general practices

of the circuit court, but, under Const 1963, art 6, § 13, the

circuit court only has superintending control jurisdiction

over lower courts. Also, contrary to the Court of Appeals

suggestion, the county clerk could not have raised the

question of the validity of Local Administrative Order No.

2000-1 in a case pending in the family division because the

clerk would not be an interested party in such a proceeding.

control over the court system, making it particularly

inappropriate for the Court of Appeals to intervene to review

the circuit court’s plan.10

The Court of Appeals lacked jurisdiction to issue an

order of superintending control to the circuit court regarding

its plan for the implementation of the family division.

Accordingly, the judgment of the Court of Appeals is

reversed.11

CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and

MARKMAN , JJ., concurred.

10
On its face, the Court of Appeals decision in this case

is limited to the Lapeer circuit plan. However, the

published decision would affect practices in other circuits as

well. See MCR 7.215(C)(2), (I)(1).

11
After oral argument, amicus curiae Michigan Judges

Association filed a motion for leave to file a supplemental

brief. That motion is denied as moot.

Lapeer County Clerk v. Lapeer Circuit Judges

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