46TH CIRCUIT TRIAL v. CRAWFORD, 480 Mich. 1119 (2008)


46TH CIRCUIT TRIAL COURT, Plaintiff, Counter-Defendant, Third-Party Defendant-Appellee, v. COUNTY OF CRAWFORD and CRAWFORD COUNTY BOARD OF COMMISSIONERS, Defendants, Counter-Plaintiffs, Third-Party Plaintiffs-Appellants, and KALKASKA COUNTY, Intervening Third-Party Plaintiff, Counter-Defendant-Appellant, and OTSEGO COUNTY, Third-Party Defendant.

Nos. 132986, 132987, 132988.Supreme Court of Michigan.
March 21, 2008.

Reported below: 273 Mich App 342.

KELLY, J.

Leave to Appeal Denied March 21, 2008.

MARKMAN, J. (concurring).

The “inherent powers” doctrine provides trial courts with the authority to bring a funding claim against the legislative branch where “a statutory function, the overall operation of the court, or a constitutional function is in jeopardy.”Employees Judge of the Second Judicial Dist Court v Hillsdale Co, 423 Mich 705, 717-719 (1985). Bringing such a claim necessarily includes employing attorneys, and it is obvious that courts themselves have no independent means of obtaining funds for this purpose. Therefore, counties are the only funding source available.

I write separately only to highlight this reality, while recognizing that the outcome in this case may appear anomalous or unfair to the taxpayers of defendant counties who now have to pay the costs of a lawsuit in which they hav prevailed. However, once an “inherent powers” lawsuit has been initiated by a trial court, as occurred here, I do not see any alternative outcome.

Thus, it is to point out the obvious: where an “inherent powers” case looms imminent, it is incumbent upon the people themselves to urge upon their elected officials — both legislative and judicial — that they avoid litigation by making appropriate accommodations with each other. For if this fails, and if a lawsuit is initiated, whatever its eventual outcome, the taxpayers will be responsible for attorney fees on both sides. That is, in the context of an “inherent powers” dispute, there is simply no alternative to an assertion of direct self-government for avoiding a substantial attorney-fee burden upon the taxpayers. There is simply no alternative to the people communicating to their elected officials their views about whether litigation should be initiated by these officials ostensibly on their behalf.

The significance of this Court’s decision in the underlying case, 46th Circuit Trial Court v Crawford Co, 476 Mich 131, 149-150 (2006), is that a very high standard must be satisfied before a trial court can prevail in an “inherent powers” claim and compel additional funding by the county. Presumably, this standard will deter the filing of all but the most constitutionally compelling “inherent powers” lawsuits, those in which the court simply cannot perform its most essential judicial functions. Id. at 160.

While this new and stronger standard may be of modest consolation to the taxpayers in the three defendant counties, I believe this case, which restores proper constitutional standards, will help taxpayers in other counties to avoid a similar situation in the future.

I would grant leave to appeal.