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,
Advance Sheets Version
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 an order that
granted plaintiff, Oshtemo Charter Township, a preliminary injunction enjoining the
implementation of the road commission’s decision to void a portion of plaintiff’s truck route
ordinance. Plaintiff cross-appealed. We hold that the trial court misinterpreted MCL
257.726(3), the statute 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-tractor 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 defendants 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(3), effective January 13, 2009, to provide:
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 the 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
regarding the designation of 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 contested streets and opened those streets to use by heavy
trucks. Plaintiff commenced the present lawsuit in the Kalamazoo Circuit Court on June 4, 2009,
with the filing of a 10-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) the likelihood that the applicant will prevail on the merits; (2) a demonstration that the
applicant will suffer irreparable injury if the relief is not granted; (3) whether harm to the
applicant in the absence of temporary relief outweighs the harm to the opposing party if relief is
granted; and (4) harm to the public interest if the injunction is issued. The trial court then
concluded that factors (2), (3), 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 [sic],
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 substantially [sic]
likelihood that Osthemo [sic] will be successful at the—on the merits, and that
absent amendment the County Road Commission would not have 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 in court.
The trial court then gave effect to its bench ruling by entering an order granting a
preliminary injunction on June 22, 2009.
On appeal, the road commission argues that the trial 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.
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
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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 trial 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” pursuant to “1951 PA 51, MCL 247.671 to 247.675.” The trial 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 designated
“county primary road[s]” pursuant to 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 Treasury, 477 Mich 170, 174; 730 NW2d
722 (2007). What the trial court overlooked, however, is the interpretive doctrine 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), pp 20-21, Justice Antonin Scalia
described the doctrine as follows:
I acknowledge an interpretive doctrine of what the 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 case 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
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
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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(1) establishes a truck safety fund and MCL 247.675(2) establishes a truck safety
commission that 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 referred to 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 to 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). The
structure of the last sentence of MCL 257.726(3) indicates that 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 as 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 trial 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 this case for further proceedings. We need not address the additional issues raised on
appeal because 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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