DANIEL P MCMANAMON V CHARTER TWP OF REDFORD
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STATE OF MICHIGAN
COURT OF APPEALS
DANIEL P. MCMANAMON,
FOR PUBLICATION
May 27, 2003
9:00 a.m.
Plaintiff-Appellant,
v
No. 235816
Wayne Circuit Court
LC No. 99-920173-CZ
CHARTER TOWNSHIP OF REDFORD,
Defendant-Appellee,
Updated Copy
July 7, 2003
and
KEVIN KELLEY and MILES R. HANDY, II,
Defendants.
Before: O'Connell, P.J., and White and B.B. MacKenzie*, JJ.
O'CONNELL, P.J. (dissenting).
I respectfully dissent from the majority's opinion in this matter. In my view, the majority
has improperly created a new cause of action under the Employee Right to Know Act (ERKA),1
MCL 423.501 et seq. I would affirm the trial court's decision granting defendant Charter
Township of Redford's motion for summary disposition.
The rules of statutory construction are well established:
The primary goal of judicial interpretation of statutes is to ascertain and
give effect to the Legislature's intent. If the plain and ordinary meaning of a
statute is clear, judicial construction is neither necessary nor permitted. We may
1
ERKA only allows for an action to "compel compliance with this act." MCL 423.511. The
majority expands this right to include an independent action for injunctive relief and damages.
While the act allows for an award of damages, it does so only in concert with an action to compel
compliance.
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not speculate regarding the probable intent of the Legislature beyond the words
expressed in the statute. When reasonable minds may differ with respect to the
meaning of a statute, the courts must look to the object of the statute, the harm it
is designed to remedy, and apply a reasonable construction that best accomplishes
the purpose of the statute. [Silver Creek Drain Dist v Extrusions Div, Inc, 245
Mich App 556, 562-563; 630 NW2d 347 (2001), lv gtd 466 Mich 860 (2002)
(citations omitted).]
ERKA provides in pertinent part:
If an employer violates this act, an employee may commence an action in
the circuit court to compel compliance with this act. . . . Failure to comply with
an order of the court may be punished as contempt. In addition, the court shall
award an employee prevailing in an action pursuant to this act the following
damages:
(a) For a violation of this act, actual damages plus costs.
(b) For a wilful and knowing violation of this act, $200.00 plus costs,
reasonable attorney's fees, and actual damages. [MCL 423.511.]
According to the plain language of the act, see Silver Creek Drain Dist, supra, the only
cause of action that initially can be filed under the act is an action "to compel compliance with
this act." MCL 423.511. Because plaintiff did not commence an action "to compel compliance
with this act," his cause of action was properly dismissed for failure to state a claim on which
relief could be granted. See MCR 2.116(C)(8). Specifically, plaintiff filed an action merely for
"violation" of the act and requested injunctive relief, the latter of which is not contemplated by
the act. See MCL 423.511. The majority finds an ambiguity in the statute and construes it in
favor of plaintiff. However, the plain language of plaintiff 's complaint simply does not
constitute an action to compel compliance, see MCR 2.116(C)(8). Thus, statutory "construction
is neither necessary nor permitted" in this case. Silver Creek Drain Dist, supra.
Because plaintiff failed to correctly plead his case and did not amend his complaint,2 the
trial court had no choice but to dismiss it. MCR 2.116(B)(1), and (C)(8). I believe that the
procedural mechanism required by ERKA is important to assure exhaustion of remedies, to give
the defendant a chance to comply with the act, and to allow valid claims for damages to be
2
Plaintiff did not move to amend his complaint and merely argued that the trial court should
have allowed amendment before ruling on defendant's motion for summary disposition. This is
an insufficient request to amend a pleading. See MCR 2.118.
-2-
brought to circuit court. Therefore, the majority has improperly created a new cause of action
under ERKA.3
I would affirm the trial court's decision.
/s/ Peter D. O'Connell
3
I see ERKA as similar to the Freedom of Information Act (FOIA), MCL 15.231 et seq. Under
the FOIA, one cannot maintain an independent action for damages, but must sue for compliance
with the act and may recover attorney fees, costs, and damages expended in pursuing the
compliance action. See, e.g., MCL 15.240. In my opinion, ERKA, like the FOIA, allows an
action for compliance with the recovery of only those fees, costs, and damages incurred in
procuring compliance. Compare MCL 423.511.
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