ZIEGLER v. WARDEN, 114234 (Mich. 1-27-2000)

607 N.W.2d 59

JOSEPH R. ZIEGLER AND RONDAL PASS, Plaintiffs-Appellants, v. WARDEN, MARQUETTE BRANCH PRISON, Defendant-Appellee.

No. 114234(34).Supreme Court of Michigan.
January 27, 2000.

Marquette CC: 97-033330-CZ

On order of the Court, the motion for reconsideration of this Court’s order of August 31, 1999 is considered, and it is DENIED, because it does not appear that the order was entered erroneously.

Corrigan, J., concurs and states as follows:

I join the order denying plaintiffs’ motion for reconsideration of the August 31, 1999, order denying plaintiffs’ application for leave to appeal from the decision of the Court of Appeals because plaintiffs fail to argue that wardens are not state officials who may be sued in the Court of Claims. Se Mitcham v Detroit, 355 Mich. 182, 203 (1959) (a party may not simply assert error and then leave it to this Court to make his argument and search for authority to sustain or reject his position). Instead, plaintiffs argue that the circuit court had jurisdiction over their claims because they sued defendant in his personal, rather than official, capacity. This action arises from defendant’s enforcing of the doc written policy regarding jailhouse lawyers. It is clearly against defendant in his official capacity. See Carlton v Dep’t of Corrections, 215 Mich. App. 490, 500-501 (1996).

Kelly, J., dissents and states as follows:

I would grant plaintiffs’ motion for reconsideration and remand this case to the Court of Appeals for consideration in light of Neal v Dep’t of Corrections (On Rehearing), 232 Mich. App. 730; 592 N.W.2d 370 (1998). In Neal, the Court of Appeals held that the Court of Claims does not have exclusive jurisdiction over suits against wardens. Therefore, the trial court erred in dismissing plaintiffs’ claim on jurisdictional grounds.

While it is true that the Court of Appeals has convened a special panel to examine the Neal decision, that panel is considering an unrelated issue in Neal, i.e., whether the Department of Corrections is a “public service agency” for purposes of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. There appears to be no dispute before the conflict panel concerning whether a circuit court has jurisdiction over a suit against a warden. Even if Neal
is decided differently on the question before the panel, its holding regarding the Court of Claims’ jurisdiction over suits against wardens is well founded. Consequently, the Court should remand this case to the Court of Appeals.