OSHTEMO CHARTER TOWNSHIP V KALAMAZOO COUNTY ROAD COMMISSION
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STATE OF MICHIGAN
COURT OF APPEALS
OSHTEMO CHARTER TOWNSHIP,
Plaintiff-Appellee/Cross-Appellant,
v
FOR PUBLICATION
April 29, 2010
9:05 a.m.
No. 292980
Kalamazoo Circuit Court
LC No. 2009-000307-CZ
KALAMAZOO COUNTY ROAD
COMMISSION,
Defendant-Appellant/CrossAppellee,
and
ALAMO TOWNSHIP and KALAMAZOO
CHARTER TOWNSHIP,
Defendants-Appellees.
Before: METER, P.J., AND ZAHRA AND DONOFRIO, JJ.
PER CURIAM.
Defendant Kalamazoo County Road Commission appeals by leave granted from an order
that granted plaintiff Oshtemo Charter Township’s request for a preliminary injunction and,
thereby, enjoined the implementation of the road commission’s decision to void a portion of
plaintiff’s Truck Route Ordinance. We hold that the trial court misinterpreted MCL 257.726(3),
the statue authorizing the road commission to resolve the dispute among several townships in
this matter. We conclude that a typographical error exists on the face of MCL 257.726(3). The
trial court erred when it failed to employ the interpretive doctrine known as scrivener’s error
when construing MCL 257.726(3). We vacate the preliminary injunction and remand this case
for further proceedings.
On March 27, 2007, plaintiff adopted its Truck Route Ordinance No. 478. The ordinance
designates, “to the exclusion of all other roads,” certain specific streets traversing the township
for use by heavy trucks, including double-trailer gravel trucks. It also expressly bars any person
from operating “a truck or truck-trailer and semi-trailer or truck-tractor and trailer combination,
or truck and trailer combination with a combined carrying capacity of over five (5) tons in
Oshtemo Charter Township on any road other than a designated truck route,” except as expressly
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provided elsewhere in the ordinance. According to the road commission, this ordinance bars
double-trailer gravel trucks from using three streets within plaintiff township, Tenth Street, Ninth
Street, and H Avenue. This prohibition of the use of these three streets has the effect of routing
the truck traffic to roads in Alamo Township and Kalamazoo Charter Township and off the roads
that provide the most direct routes of access to US 131. Plaintiff’s ordinance became effective
on May 4, 2007.
Subsequently, the Michigan Legislature enacted 2008 PA 539, which amended MCL
257.726, effective January 13, 2009, to provide:
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If a township has established any prohibition or limitation under
subsection (1) [on the operation of trucks or other commercial vehicles] on any
county primary road that an adjoining township determines diverts traffic onto a
border highway or street shared by the township and the adjoining township, the
adjoining township may submit a written objection to the county road commission
having jurisdiction over the county primary road, along with a copy to the
township that established the prohibition or limitation, on or before the later of
March 1, 2009, or 60 days after the township approves the prohibition or
limitation. The written objection shall explain how the prohibition or limitation
diverts traffic onto the border highway or street shared by the township and the
adjoining township. The county road commission shall then investigate the
objection. The township and adjoining township shall cooperate with that
investigation and negotiate in good faith to resolve the objection. If the objection
is not resolved within 60 days after the township receives a copy of the written
objection, the county road commission has the authority to, and shall, either
approve or void the prohibition or limitation that is the subject of the objection
within 60 days thereafter, which decision shall be final. For purposes of this
subsection, “county primary road” means a highway or street designated as a
county primary road pursuant to 1951 PA 51, MCL 247.671 to 247.675.
Significantly, a review of MCL 247.671 to 247.675 reveals a complete absence of any provisions
designating “a highway or street as a county primary road . . . .”
In February 2009, both Alamo Township and Kalamazoo Charter Township filed written
objections with the road commission with respect to plaintiff’s Truck Route Ordinance. When
the three townships involved in this case could not resolve the dispute, the road commission held
a public hearing on the objections and, pursuant to MCL 257.726(3), declared the Truck Route
Ordinance void with regard to the three respective streets and opened those streets to use by
heavy trucks. Plaintiff township commenced the present lawsuit in the Kalamazoo Circuit Court
on June 4, 2009, with the filing of a ten-count complaint, which sought, in part, the issuance of a
preliminary injunction that would stay the road commission’s decision and prevent heavy trucks
from using the contested streets.
The trial court heard plaintiff’s request for a preliminary injunction on June 22, 2009.
Following the close of arguments, the trial court granted plaintiff’s request for a preliminary
injunction from the bench. The trial court began its bench ruling by observing that plaintiff’s
entitlement to the requested injunction depended on the results of the balancing of four factors:
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(1) harm to the public interest if the injunction issues; (2) whether harm to the applicant in the
absence of temporary relief outweighs the harm to the opposing party if relief is granted; (3) the
likelihood that the applicant will prevail on the merits; and (4) a demonstration that the applicant
will suffer irreparable injury if the relief is not granted. The trial court then concluded that
factors (1), (2), and (4) were a “wash” and “equally balanced out” between the opposing sides. It
opined that “the real question is[,] given that everything else is equally balanced out, does
plaintiff have the likelihood of success on the merits.”
The trial court, focusing on an apparent typographical error in the last sentence of MCL
257.726(3), resolved this question as follows:
The Court is aware that there is – there are notes from the complier [sic]
who does in fact provide that the destination [sic] set forth in the ordinance, in
fact is either typographical or some clerical error, and that the legislature could in
fact have, or should have probably meant to include a different reference with
regard to the definition of county primary roads.
The court is then – thus faced with the very interesting dilemma of
interpreting the statue [sic] in a way that actually provides for justification for the
Road Commission action. Or interpreting the statue [sic] as it’s written with some
questions in terms of whether the Road Commission had the authority to void the
ordinance, as it presently existed at the time of the hearings in May.
This court after much deliberation and recognizing, to be honest, that
either status quo is not going to substantially impact the citizens of these
communities to any great extent. It believes that it should follow the lead of our
Supreme Court and hold that the language that is written is the language that is
written.
Therefore, the court does believe as written there is a substantial
likelihood that Osthemo [sic] will be successful at the – on the merits, and that
absent amendment the County Road Commission would not have the authority to
mediate or determine the relative positions of the townships in this matter.
Therefore, having determined that three, four – two, three and four are a
wash in terms of the balances that are necessary, and having determined that as to
item one there is a likelihood of success on the part of Osthemo [sic]. The court
will grant a preliminary injunction in this matter pending further action of the
court.
The court then effectuated its bench ruling and entered an order of preliminary injunction
on June 22, 2009.
On appeal, the road commission argues that the court erred as a matter of law when it
found that plaintiff is likely to prevail because a typographical error contained in MCL
257.726(3) removed from the road commission the power to nullify plaintiff’s ordinance.
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This Court reviews a trial court’s decision to issue a preliminary injunction for an abuse
of discretion. Thermatool Corp v Borzym, 227 Mich App 366, 372; 575 NW2d 334 (1998). We
review de novo questions of statutory interpretation. See City of Romulus v Dep’t of
Environmental Quality, 260 Mich App 54, 64; 678 NW2d 444 (2003).
MCL 257.726(1)(c) authorizes local authorities, such as plaintiff
township, to enact ordinances that designate only certain highways or streets
within their jurisdiction for use by trucks or other commercial vehicles. MCL
257.726(3) establishes a procedure by which townships that adjoin a township
that enacts such an ordinance may challenge the ordinance when the prohibition
or limitation placed on “any county primary road” “diverts traffic onto a border
highway or street shared by the township and the adjoining township . . . .”
The trial court based its decision that plaintiff was likely to prevail on the merits on a
literal application of the language of MCL 257.726(3). The court concluded that, in accordance
with the last sentence of the statute, the road commission was authorized to resolve conflicts over
prohibitions or limitations placed on a street or highway designated as a “county primary road”
by “1951 PA 51, MCL 247.671 to 247.675.” The court then noted that the statutory provisions
codified at MCL 247.671 through MCL 247.675 contain no “county primary road
designation[s]” and, therefore, the three streets at issue could not be “county primary road[s]”
within the meaning of MCL 247.671 to MCL 247.675. If the streets at issue were not “county
primary road[s],” then the road commission lacked the authority to nullify any portion of
plaintiff’s Truck Route Ordinance.
The trial court correctly observed that, as a general rule, clear statutory language must be
enforced as written. Fluor Enterprises, Inc v Dep't of Treas, 477 Mich 170, 174; 730 NW2d 72
(2007). What the trial court overlooked, however, is the principle of statutory construction
known as scrivener’s error. In his book, A Matter of Interpretation: Federal Courts and the Law,
(New Jersey: Princeton University Press, 1997), p 20, Justice Scalia described the doctrine as
follows:
I acknowledge an interpretive doctrine of what old writers call lapsus linguae
(slip of the tongue), and what our modern cases call “scrivener’s error,” where on
the very face of the statute it is clear to the reader that a mistake of expression
(rather than of legislative wisdom) has been made. For example, a statute may
say “defendant” when only “criminal defendant” (i.e., not “civil defendant”)
makes sense. The objective import of such a statute is clear enough, and I think it
not contrary to sound principles of interpretation, in such extreme cases, to give
the totality of context precedence over a single word. (citations omitted).
Applying this doctrine to the here, we conclude that it is apparent that a typographical error
exists in MCL 257.726(3).
MCL 257.726(3) applies, in accordance with its plain language, to challenges raised to
prohibitions or limitations placed on a “county primary road.” The statute defines the term
“county primary road” as “a highway or street designated as a county primary road pursuant to
1951 PA 51, MCL 247.671 to 247.675.” (Emphasis added.) However, MCL 247.671 repeals all
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acts and portions of acts that are inconsistent with 1951 PA 51. MCL 247.672 establishes the
effective date of the act as June 1, 1951. MCL 247.673 precludes the act from taking effect
unless Senate Bill No. 41 of the 1951 session is enacted into law and becomes effective. MCL
247.674 empowers the state transportation commission to issue certain types of bonds. Finally,
MCL 247.675 establishes a truck safety fund and a truck safety commission, the latter of which
is to “control the expenditures of the truck safety fund” and ensure that the funds are spent in the
manners authorized by MCL 247.675(4).
A further review of 1951 PA 51 reveals that the provisions governing the designation of
county primary roads are set forth in §§ 1 through 5 of the act, MCL 247.651 through MCL
247.655. A juxtaposition of the provisions of MCL 247.651 through MCL 247.655 against the
provisions of MCL 247.671 through MCL 247.675 makes clear that one of the statutory
references found in the last sentence of MCL 257.726(3) is the product of a clerical error, i.e.,
there was an accidental substitution of a “7” for a “5” in the first statutory citation, MCL
247.671. Significantly, the provisions referenced in MCL 257.726(3) provide no means to
effectuate the text of MCL 257.726(3), whereas the provisions found in MCL 247.651 and MCL
247.655 do.
By construing the phrase “MCL 247.671 to 247.675” as “MCL 247.651 to 247.675” the
provisions found in 1951 PA 51 that pertain specifically to the designation of county primary
roads are thus incorporated into MCL 257.726(3). The inclusion of the provisions found at MCL
247.651 to MCL 247.655 is also consistent with the overall text of MCL 257.726(3). Based on
the structure of the last sentence of MCL 257.726(3), the citation that follows the public act
citation was meant to be a parallel citation that provides the statutory equivalent to the public act
citation; 1951 PA 51 is codified from MCL 247.651 through MCL 247.675. Furthermore, the
last sentence of MCL 257.726(3) clearly indicates that the statutory reference contained therein
was meant to include the provisions within 1951 PA 51 that provide for the designation of a
highway or street as a county primary road. The text of MCL 257.726(3) clearly reflects the
Legislature’s intent to create a process by which disputes arising from prohibitions or limitations
placed on county primary roads are resolved.
The trial court’s conclusion that it had to enforce MCL 257.726(3) as written renders
MCL 257.726(3) nugatory because the provisions cited do not pertain to the designation of
county primary roads; therefore, absent a means to determine whether the highway or street at
issue constitutes a county primary road, MCL 257.726(3) cannot be applied to resolve any
dispute arising from a prohibition or limitation placed on any highway or street. A court should
avoid assigning any construction to a statute that renders any part of the statute nugatory, Jenkins
v Patel, 471 Mich 158, 167; 684 NW2d 346 (2004).
The court’s assessment of plaintiff’s likelihood of success was predicated on an error in
statutory construction. Accordingly, we vacate the grant of a preliminary injunction and remand
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this case for further proceedings. We need not address the additional issues raised on appeal, as
they are not yet ripe for review.
We vacate the preliminary injunction and remand for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
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