WILLIAM Q TINGLEY III V 900 MONROE LLC
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
February 22, 2007
9:10 a.m.
WILLIAM Q. TINGLEY, III, WILLIAM Q.
TINGLEY, and DANIEL R. BRADLEY,
Plaintiffs-Appellants,
and
PROTO-CAM, INC., BEND TOOLING, INC.,
and TENNINE CORPORATION,
No. 243171
Kent Circuit Court
LC No. 02-0037230NZ
ON REMAND
Plaintiffs,
v
900 MONROE L.L.C., ROBERT F. WARDROP II,
WILLIAM H. FISHER III, TODD R.
DICKINSON, WARDROP & WARDROP, P.C.,
DICKINSON WRIGHT, PLLC, FISHER &
DICKINSON, P.C., 940 MONROE L.L.C.,
PIONEER INCORPORATED, CITY OF GRAND
RAPIDS, JOHN H. LOGIE, DYKEMA
EXCAVATORS, INC., and FIFTH THIRD
BANCORP,
Official Reported Version
Defendants-Appellees.
Before: Meter, P.J., and Wilder and Borrello, JJ.
BORRELLO, J. (dissenting).
The majority's opinion accurately encapsulates the facts surrounding this case and the
order of our Supreme Court for remand. However, because I disagree with the majority's
assertion that the existence of "a particularized injury" has not been met as that term has been
defined in our Supreme Court's opinion in Nat'l Wildlife Federation v Cleveland Cliffs Iron Co,
471 Mich 608; 684 NW2d 800 (2004), I respectfully dissent.1
1
The conclusions of the lead opinion are somewhat difficult to ascertain as the lead opinion
stated that the "plaintiffs did not allege or make any showing that defendants' actions resulted in
(continued…)
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In Nat'l Wildlife, supra, Justice Markman, writing for the majority, espoused a concern
that, irrespective of legislative intent, the judiciary, in each case presented to it, must retain
judicial requirements for standing. Couched in the concept of "judicial power," Justice Markman
opined that while the Legislature may grant standing to individuals to bring actions under the
Michigan environmental protection act (MEPA), MCL 324.1701 et seq., the judiciary retains the
authority to decide whether the individual or individuals who fostered the action meet the tests
for judicial standing set forth in Lee v Macomb Co Bd of Comm'rs, 464 Mich 726; 629 NW2d
900 (2001). Justice Markman's insistence that litigants satisfy the judicial test for standing was
grounded, in part, on his concerns that
[i]f the Legislature were permitted at its discretion to confer jurisdiction upon this
Court unmoored from any genuine case or controversy, this Court would be
transformed in character and empowered to decide matters that have historically
been within the purview of the Governor and the executive branch. If there is
dispute over the manner in which the Governor is enforcing or administering a
law, such dispute, in the normal course, must be resolved through the executive
process. If there are citizens who believe the Governor is wrongfully or
inadequately enforcing or administering the state's consumer protection or
occupational safety or worker's compensation or revenue laws, it is their right to
petition or lobby the Governor in order to alter these policies. It is also the right
of such citizens to petition or lobby the Legislature in order to cause them to alter
these laws. Finally, of course, it is the right of citizens to participate in the
channels of public debate, and in the political processes, in order to influence
public policies, or to place in public office persons who are more accommodating
to their points of view. Unless there is an individual who has personally been
injured by the Governor's enforcement or administration of these laws, it is not
normally the role of the judicial branch to monitor the work of the executive and
determine whether it is carrying out its responsibilities in an acceptable fashion.
That the Legislature—perhaps even with the acquiescence of the executive—has
purported to impose this role upon the judicial branch does not alter this
constitutional reality. [Nat'l Wildlife, supra at 622-623.]
A common theme throughout Justice Markman's opinion is the concern that courts may only
decide cases where there is an actual controversy, which begins by finding that an individual or
groups have suffered an "injury in fact."
In this case, plaintiffs seek relief through their first amended complaint for violations of
the environmental response act (ERA), MCL 324.20101 et seq., and the hazardous waste
management act (HWMA), MCL 324.11101 et seq.2 MCL 324.11151(1) provides:
(…continued)
actual, particularized injury to them," while in the next paragraph concluding that "[v]iewing this
allegation in a light most favorable to plaintiffs, it states a particularized injury. . . ." Ante at ___.
2
Plaintiffs also raise myriad other issues in their 44-page first amended complaint. However, for
purposes of this appeal, we are limited to a discussion regarding plaintiffs' claims arising from
MCL 324.20101 (ERA) and more specifically, MCL 324.11101 (HWMA).
-2-
If the department finds that a person is in violation of a permit, license,
rule promulgated under this part, or requirement of this part including a corrective
action requirement of this part, the department may issue an order requiring the
person to comply with the permit, license, rule, or requirement of this part
including a corrective action requirement of this part. The attorney general or a
person may commence a civil action against a person, the department, or a health
department certified under section 11145 for appropriate relief, including
injunctive relief for a violation of this part including a corrective action
requirement of this part, or a rule promulgated under this part. An action under
this subsection may be brought in the circuit court for the county of Ingham or for
the county in which the defendant is located, resides, or is doing business. The
court has jurisdiction to restrain the violation and to require compliance. In
addition to any other relief granted under this subsection, the court may impose a
civil fine of not more than $25,000.00 for each instance of violation and, if the
violation is continuous, for each day of continued noncompliance. A fine
collected under this subsection shall be deposited in the general fund of the state.
[Emphasis added.]
Thus, the Legislature conferred on individuals the right to commence an action pursuant
to the HWMA. However, Justice Markman's opinion makes clear that our inquiry into whether a
party has standing does not end with a legislative grant of standing. According to Justice
Markman, to allow the Legislature to dictate standing to the courts would be tantamount to a
relinquishment of this Court's constitutional authority to exercise its "judicial powers." As his
majority opinion noted,
we agree with the United States Supreme Court in Lujan v Defenders of Wildlife,
504 US 555, 578; 111 S Ct 2130; 119 L Ed 2d 351 (1992), which, although
holding, as Lee does, that standing is of constitutional dimension, proceeds to
observe that "[n]othing in this contradicts the principle that 'the . . . injury required
by Art. III may exist solely by virtue of statutes creating legal rights, the invasion
of which creates standing.'" This is affirmed in the concurring opinion of Justice
Kennedy, joined by Justice Souter, in which they similarly observe, "Congress
has the power to define injuries and articulate chains of causation that will give
rise to a case or controversy where none existed before, and we do not read the
Court's opinion to suggest a contrary view." [Nat'l Wildlife, supra at 612 n 4
(citations omitted).]
In this case, it is my opinion that the Legislature has created a cause of action premised on a
violation of the HWMA. In order to discern whether a particularized injury has occurred,
another issue alluded to, but not directly addressed in Nat'l Wildlife, needs to be addressed. That
is: Can the Legislature create a particularized injury without interfering with the constitutional
mandate of the court to exercise its judicial authority to make a determination of standing?
Because I would hold that when the Legislature exercises its traditional role of creating causes of
action, it can at the same time announce a particularized injury without interfering with the
court's traditional role of ascertaining standing, I would affirm the decision of the trial court.
Initial inquiry into whether plaintiffs have suffered an actual injury is when the concepts
of judicial activism and judicial restraint, discussed in the majority and dissenting opinions in
-3-
Nat'l Wildlife, come to the forefront. Where the Legislature has opened the courthouse doors, the
courts should be constrained in their use of the standing doctrine to swing that door shut. We
need to emphasize that a court's inquiry into standing occurs before any discovery and perhaps
even before the filing of any statements or affidavits. Accordingly, deference to the plaintiff
must be given when courts initiate inquiry into whether a particularized injury has occurred, lest
they overstep their judicial power and begin to legislate what types of actions will or will not
curry favor from our Court. Hence, applying these principles to the action before us, I would
find that plaintiffs have standing to bring this action.
For Justice Markman, it is readily apparent that the commencement of an
"environmental" action does not divest the court of its constitutional obligation to engage in an
initial inquiry to discern whether a party has standing. I concur. However, I also glean from the
dissents of Justices Weaver and Kelly in Nat'l Wildlife that all citizens are potentially injured by
violations of our state's laws enacted to protect our shared environment. I share the dissenting
justices' assertion of the heightened potential for injury in actions commenced pursuant to the
environmental protection laws of this state, while at the same time recognizing Justice
Markman's requirement that the injury must be particularized and concrete.
With these concepts in mind, I would hold that adoption of MCL 324.11101 creates a
particularized injury when the HWMA is violated. Contrary to our traditional concepts of
"injury," which are embedded in an economic, social, or physical loss, a particularized injury can
arise, as it does in this case, from a violation of a statute. The fact that the injury is specially laid
out by the Legislature does not eliminate, nor does it interfere with, this Court's judicial authority
to determine standing. The statute confers on any person the status of an enforcer of the act.
Thus, the injury being the violation of the act, any person, such as plaintiffs, may bring a civil
action for enforcement of the act.
Next, the lead opinion contends that even assuming plaintiffs have made a showing of a
particularized injury, they have failed to demonstrate that those injuries would be redressed by a
favorable decision. Absent an ability to foretell the future, it is difficult, if not impossible, for
courts to engage in any analysis regarding the likely outcome of a case premised solely on the
pleadings. Accordingly, I would hold that the requirement that plaintiffs must demonstrate that
their allegations will be "redressed by a favorable decision" requires this Court to find merely
that plaintiffs have set forth in their pleadings sufficient facts to support the elements of their
specific cause of action. In this case, plaintiffs set forth numerous facts that give rise to an
inference of fact that defendants violated the HWMA. Accordingly, I would remand the matter
to the trial court and allow plaintiffs to proceed with their claims that were the subject of this
appeal.
/s/ Stephen L. Borrello
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