LAPEER COUNTY CLERK V LAPEER CIRCUIT COURT
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e
Maura D. Corrigan
J u s t ic e s
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JULY 22, 2003
In re LAPEER COUNTY CLERK
__________________________
LAPEER COUNTY CLERK,
Plaintiff,
v
No.
121400
LAPEER CIRCUIT COURT,
Defendant,
and
COUNTY OF LAPEER,
Intervening Defendant.
____________________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
The
Lapeer
County
Clerk
has
filed
a
superintending control pursuant to MCR 3.302.
complaint
for
We are called
to determine whether Lapeer Circuit Court Local Administrative
Order No. 2002-01 (LAO 2002-01)1 impermissibly assigns duties
of the county clerk to the staff of the family division of the
circuit court.
We note, however, that a new plan for the
operation of the family division of the circuit court must be
agreed upon by July 1, 2003. See Supreme Court Administrative
Order No. 2003-2. This administrative order requires that the
clerk
be
given
the
opportunity
to
participate
in
the
development of the plan provisions for managing court records,
and
the
clerk
may
file
a
statement
of
concurrence
or
disagreement with the records- management portion of the plan.
The order also calls for mediation of disagreements at the
Supreme Court’s direction.
Because LAO 2002-01 is no longer
the operative plan, having expired on July 1, 2003, we decline
to comment on it specifically, but we issue this opinion
pursuant to our rule-making authority, Const 1963, art 6, § 5,
to
provide
guidance
administrative
orders.
to
courts
The
as
complaint
they
for
craft
future
superintending
control is dismissed.
After careful review of the constitution, we conclude
that the clerk of the court must have the care and custody
the court records.
of
Further, the circuit court clerk is to
1
Although plaintiff refers to LAO 2000-01 in her brief,
the Lapeer Circuit Court is currently operating under LAO
2002-01.
Plaintiff did recognize LAO 2002-01 in her
supplemental pleading and explained that LAO 2002-01 did not
alter her position.
2
perform ministerial duties that are noncustodial as required
by the court.
Because
a
clerk’s
care
and
custody
function
is
contemplated by Const 1963, art 6, § 14, as evidenced by our
historical understanding of that provision, the circuit court
cannot interfere with the circuit court clerk’s constitutional
obligation to perform that function.
however, is a limited one.
The custodial function,
In acting as custodian of the
records, the clerk is responsible for ensuring the safekeeping
of the records.
Having care and custody of the records,
however, does not imply ownership of the records. Rather, the
clerk’s custodial function entails safeguarding the records on
behalf
of
the
circuit
court,
and
making
those
records
available to their owner, which is the circuit court.
The
clerk is also obligated to make the records available to the
public, when appropriate.
Beyond
records,
having
the
the
circuit
care
and
court
custody
clerk
the
court’s
also
is
of
to
perform
noncustodial ministerial duties as directed by the court. The
determination of the precise noncustodial ministerial duties
that
are
existence,
to
be
performed
scope,
and
by
form,
the
is
clerk,
a
including
matter
of
their
court
administration and is therefore reserved exclusively for the
judiciary under Const 1963, art 3, § 2, Const 1963, art 6, §
3
1, and Const 1963, art 6, § 5.
includes
the
discretion
to
This judicial authority
create,
abrogate,
and
divide
between the clerk and other staff, noncustodial ministerial
functions concerning court administration.
I.
FACTUAL
AND
PROCEDURAL HISTORY
In Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559,
561-564; 640 NW2d 567 (2002), this Court summarized the
factual history of the case.
In 1996 PA 388, the Legislature created the
family division of the circuit court. See MCL
600.1001 et seq., effective January 1, 1998. The
act
consolidated
in
the
family
division
jurisdiction of many types of proceedings formerly
heard in the circuit court and the probate court.
See MCL 600.1021.
MCL 600.1011(1) provides for the development
of a plan for the operation of the family division
in each judicial circuit:
“Not later than July 1, 1997, in each judicial
circuit, the chief circuit judge and the chief
probate judge or judges shall enter into an
agreement that establishes a plan for how the
family division will be operated in that circuit
. . . .”
On February 25, 1997, this Court issued
Administrative
Order
No.
1997-1,
entitled
“Implementation of the Family Division of the
Circuit Court.” The order required all chief
circuit and probate judges to “develop a plan for
the implementation and operation of the family
division, and to identify the manner in which
services will be coordinated to provide effective
and efficient services to families by the family
division of the circuit court.” Chief judges were
required to seek input from judges, court staff,
and other entities providing service to families
within the jurisdiction or who will be affected by
4
the operation of the family division. The order
required filing of plans with the State Court
Administrative Office and approval by that office
before implementation.
According to the affidavit of the chief judge
of the Lapeer Circuit Court, he followed the
implementation directive and met with the judges in
the circuit. It was agreed that the family division
would be staffed with the employees of the probate
court, who were trained in and accustomed to
dealing with juvenile cases and other matters
formerly within the jurisdiction of the probate
court. To implement the plan, Local Administrative
Order No. 2000-1 was adopted on February 2, 2000,
providing:
“In order to implement the changes required by
the legislation creating the Family Division of the
Circuit Court (PA 374 and 388 of 1996), to enhance
and clarify the procedures to be followed in the
new Family Court, to clarify the role of the County
Clerk in the operations of the Family Court, to
merge the procedures previously followed in
juvenile,
child
protective
proceedings
and
ancillary proceedings into the Family Court, to
maintain the Court's data entry system, and to
adopt new procedures for efficient administration
of the Family Court, the Court issues the following
administrative order:
“1. The County Clerk will continue to accept
pleadings, maintain files and complete entries into
the Court's data system in all domestic cases and
PPOs and shall be responsible for the care and
maintenance of those records.
“2. The Family Court staff will continue to
accept filings, maintain files, prepare orders and
complete entries into the Court's data system in
all juvenile cases, child protective proceedings,
name changes, adoptions, and ancillary proceedings
and shall be responsible for the care and
maintenance of those records.
“3. The Family Court staff will be responsible
for scheduling all juvenile cases, child protective
proceedings, name changes, adoptions, and ancillary
5
proceedings. In addition, the Family Court staff
will
be
responsible
for
making
referrals,
scheduling hearings, preparation of orders and
arranging pretrials and trials in domestic cases.
The Family Court staff will make appropriate
entries into the Court's data systems of these
proceedings.
“4. The County Clerk staff will continue to
manage the motion day dockets, no-progress docket
and non-service dismissals in domestic cases. The
County Clerk staff will continue to attend the
domestic motion docket sessions of the Family Court
and make appropriate entries into the Court's data
system of those proceedings.
“5. The Family Court staff shall continue to
be responsible for all filing fees, receipts,
disbursements and accountings for support payments,
restitution, administrative and program fees, and
child care funds received in juvenile cases, child
protective proceedings, name changes, adoptions and
ancillary proceedings. The County Clerk shall
continue to accept all filing fees in domestic
cases for the Family Court.
“6. Local Administrative Order 1999-2
hereby rescinded and replaced by this order.
is
“This order is issued pursuant to MCR 8.112
and will be effective upon approval by the State
Court Administrator. The matters covered in this
order will be reviewed on an ongoing basis and this
order will expire on December 31, 2000, unless
extended by order of the Court.”[2]
On February 9, 2000, the Acting Director of
Trial
Court
Services
for
the
State
Court
Administrative Office advised the circuit court
that
2
As stated above, LAO 2002-01 replaced LAO 2000-01. The
only substantive change was that LAO 2002-01 gave the clerk
responsibility for proceedings regarding name changes and
deleted the references to name changes found in paragraphs 2,
3, and 5.
6
“we
have
reviewed
the
above
referenced
Administrative Order and find that it conforms with
the requirements of MCR 8.112(B). This order is
being accepted and filed until advised by your
court of any change.”
The Lapeer County Clerk and the
Association of County Clerks filed this
action in the Court of Appeals requesting
superintending control. Their complaint
among other things:
Michigan
original
a writ of
alleged,
“17. The Court's Administrative Order, No.
2000-1 violates Michigan's Constitution, laws, and
court rules by preventing the Clerk from performing
her constitutional and statutorily mandated duties.
Specifically,
by
issuing
and
implementing
Administrative Order No. 2000-1, the Court usurped
the Clerk's constitutional and statutory duties
with respect to Paragraphs 2, 3, and 5 of the
Order.
* * *
“18. Both family division judges in Lapeer
County (Judges Preisel and Higgins) prohibit the
County Clerk from performing her circuit court
duties with respect to juvenile matters by
preventing her from opening new cases, maintaining
the care and custody of the court records, entering
data into the Court's JIS system, performing court
room functions, preventing the Clerk from assisting
the public as well as other judicial staff and
employees, and accounting for the court's finances.
* * *
“20. Judges Higgins and Preisel further refuse
to allow the County Clerk to perform as Clerk of
the circuit court with respect to trials.”
Plaintiffs' complaint requested the Court of
Appeals to declare unlawful the Lapeer Circuit
Court administrative order, and to direct the
judges of the family division of the Lapeer Circuit
Court to comply with Const 1963, art 6, § 14,
statutes, and court rules by permitting the county
clerk to perform her legally authorized duties as
7
clerk of the court for the family division of the
circuit court.
Lapeer County, the local funding unit, intervened.
The
Court of Appeals granted the county clerk’s request for
superintending control.
In re Lapeer Co Clerk, 242 Mich App
497; 619 NW2d 45 (2000).
This Court granted defendants’
application for leave to appeal3 and issued an opinion per
curiam holding that the Court of Appeals lacked subject-matter
jurisdiction over plaintiff’s complaint and reversing the
judgment of the Court of Appeals.
465 Mich 574.
Plaintiff then filed a complaint with this Court for an
order of superintending control, and the case was scheduled
for oral argument as on leave granted.4
II.
STATEMENT
OF
JURISDICTION
This Court has jurisdiction over plaintiff’s complaint
for an order of superintending control as an original action.
Id.
III.
CONSTITUTIONAL RULE -MAKING AUTHORITY
As stated above, the contested administrative order, LAO
2002-01 must be replaced by a new administrative order by
July 1, 2003.
2003-2.
See Supreme Court Administrative Order No.
467 Mich ___ (2003).
3
463 Mich 969 (2001).
4
466 Mich 1222 (2002).
8
Under this administrative
order, the clerk must be given the opportunity to participate
in the development of the plan provisions for managing court
records, and the clerk may file a statement of concurrence or
disagreement with the records management portion of the plan.
The order also calls for mediation of disagreements at the
Supreme Court’s direction.
In light of the impending new local administrative order,
we need not specifically comment on the now-superseded plan
and, instead, address it in our capacity to make rules for the
judiciary pursuant to Const 1963, art 6, § 5,5 which entrusts
this Court with the authority and duty to prescribe general
rules governing the practice and procedure of all courts in
the state.
Accordingly, we invoke our rule-making authority
to clarify the underlying issue, which undoubtedly affects the
practice
and
procedure
of
the
courts
of
this
state.
Therefore, we find it appropriate to address the issue of the
constitutional functions of the circuit court clerk to provide
guidance to circuit courts in crafting future administrative
5
Const 1963, art 6, § 5 provides:
The supreme court shall by general rules
establish, modify, amend and simplify the practice
and procedure in all courts of this state. The
distinctions between law and equity proceedings
shall, as far as practicable, be abolished. The
office of master in chancery is prohibited.
9
orders.
IV.
A.
CONSTITUTIONAL ANALYSIS
THE CONSTITUTIONAL DUTIES
OF A
CIRCUIT COURT CLERK
The threshold inquiry is what duties, if any, inhere in
the position of clerk of the circuit court.
The office of the county clerk is constitutionally based,
thus we commence our analysis by examining the constitution
itself.
When interpreting the constitution, our task is to
give effect to the common understanding of the text:
“A constitution is made for the people and by
the people. The interpretation that should be given
it is that which reasonable minds, the great mass
of the people themselves, would give it. ‘For as
the Constitution does not derive its force from the
convention which framed, but from the people who
ratified it, the intent to be arrived at is that of
the people, and it is not to be supposed that they
have looked for any dark or abstruse meaning in the
words employed, but rather that they have accepted
them in the sense most obvious to the common
understanding, and ratified the instrument in the
belief that that was the sense designed to be
conveyed.’ (Cooley's Const Lim 81).” [Traverse City
School Dist v Attorney Gen, 384 Mich 390, 405; 185
NW2d 9 (1971).]
Words
must
be
given
their
ordinary
meanings,
and
constitutional convention debates and the address to the
people are relevant, although not controlling. People v Nash,
418 Mich 196, 209; 341 NW2d 439 (1983) (opinion by BRICKLEY ,
J.).
Further, every provision must be interpreted in the
light of the document as a whole, and no provision should be
construed to nullify or impair another.
10
In re Probert, 411
Mich 210, 232-233 n 17; 308 NW2d 773 (1981).
Under our constitution, the county clerk serves in the
unique posture of being both an executive officer and an
officer of the judicial branch.
Const 1963, art 7, § 4
provides:
There shall be elected for four-year terms in
each organized county a sheriff, a county clerk, a
county treasurer, a register of deeds and a
prosecuting attorney, whose duties and powers shall
be provided by law. The board of supervisors in any
county may combine the offices of county clerk and
register of deeds in one office or separate the
same at pleasure. [Emphasis added.]
Const 1963, art 6, § 14 provides:
The clerk of each county organized for
judicial purposes or other officer performing the
duties of such office as provided in a county
charter shall be clerk of the circuit court for
such county. The judges of the circuit court may
fill a vacancy in an elective office of county
clerk
or
prosecuting
attorney
within
their
respective jurisdictions.
In providing that the county clerk is to be the clerk of
the circuit court, Const 1963, art 6, § 14 is silent regarding
specific duties to be performed by the clerk in its judicial
capacity.
In fact, although since 18356 the constitution has
provided that the county clerk shall also function as clerk of
the court, the duties of the clerk in its judicial capacity
have never been enumerated in any version of our constitution.
Because the text of the constitution itself provides no clear
6
See Const 1835, art 6, § 5.
11
answer, we must examine other sources to ascertain the common
understanding of the term “clerk of the circuit court.”
The office of clerk of the court existed in Michigan
before statehood.
In 1823, the United States Congress passed
an act that provided, “there shall be but one clerk of the
Supreme Court of the territory of Michigan, who shall perform
all the duties of the clerk of said court[.]” See Scott v
Detroit Young Men’s Society’s Lessee, 1 Doug 119, 140 (1843).
The county clerk was charged with the duties of the clerk of
the circuit court in 1830. Whallon v Circuit Judge for Ingham
Co, 51 Mich 503, 511; 16 NW 876 (1883).
The office of the
circuit court clerk was incorporated into our constitution in
1835.
Const 1835, art 6, § 5.
Evidence suggests that the
provision in the 1835 constitution arose out of necessity, for
at that time
judges travelled a circuit and could not suitably
carry out the ministerial functions of the circuit
court. Since a county clerk was maintaining county
records and files, it was natural to delegate the
judicial ministerial functions to the county
clerk’s office. Circuit court documents could then
be filed and maintained daily at a fixed location
in each county, instead of at those select times
the circuit judge was in the county. [Metzger &
Conley, Relationship of the county clerk to the
circuit court, 60 Mich BJ 849 (1981).]
In other words, it appears that the people ratifying Const
1835, art 6, § 5 understood that the circuit court clerk was
to have the care and custody of court records.
12
As such, we
conclude that the clerk has a constitutional obligation to
have the care and custody of the circuit court’s records and
that the circuit court may not abrogate this authority.
See
In the Matter of Head Notes to the Opinions of the Supreme
Court, 43 Mich 640, 643; 8 NW 552 (1880)(“the essential duties
[of a constitutional officer] cannot be taken away, as this in
effect would result in the abolishment of the office . . .”).
In addition to the clerk’s custodial duties, there are
undoubtedly numerous other duties that have historically been
performed for the circuit court by the clerk.
Although the
complete scope of these noncustodial duties is unclear, what
is clear is that throughout the history of the office, these
noncustodial duties have been purely ministerial in nature.
For example, the Revised Statutes of 1838, tit 1, ch 6, § 10,
provided that upon court recess, the clerk of the circuit
court was to make a complete record of all cases finally
determined and present the record to the judge at the start of
the next term.
In 1840, the law provided that the court clerk
would be paid ten cents a folio for making a complete record
of a case if required to do so by a party.
Whitwell, 6 Mich 474, 486 (1859).7
7
See Emery v
Court clerks also computed
Significantly, these early laws setting forth the duties
of the clerk were subject to repeal, demonstrating that
although the clerk’s duties remained ministerial, the exact
nature of the duties was subject to change. Id.
13
amounts
due
on
bonds,8
generated
transcripts,9
filed
transcripts,10 entered and docketed judgments,11 advertised
writs
judgment,12
of
received
court
certified
papers,14
and
transmitted
filed
stipulations,13
certified
copies
of
proceedings to the Supreme Court,15 certified various court
documents,16 and accepted court filings.17
Court clerks could
not undertake nonministerial functions, such as assessing
damages in a contested action,18 exercising any judicial power
individuals,19
over
warrants.20
or
taking
complaints
and
issuing
In addition, it was well understood that these
noncustodial ministerial functions were subject to change.
8
Id. at 487.
9
Lathrop v Hicks, 2 Doug 223, 227 (1846).
10
Jewett v Bennett, 3 Mich 198, 199 (1854).
11
Id.
12
Drew v Dequindre, 2 Doug 93, 96 (1845).
13
Farrand v Bentley, 6 Mich 281, 283 (1859).
14
Id.
15
Duffield v Detroit, 15 Mich 474, 478 (1867).
16
Id. at 477.
17
Clay v Penoyer Creek Improvement Co, 34 Mich 204, 206
(1876).
18
O’Flynn v Holmes, 8 Mich 95, 97 (1860).
19
People v Swift, 59 Mich 529, 547; 26 NW 694 (1886).
20
People v Colleton, 59 Mich 573, 576; 26 NW 771 (1886).
14
Emery, supra at 486 (stating that, although at one time the
clerk
was
required
to
make
records
of
proceedings,
the
statutes requiring the records were repealed).
There is no evidence that the common understandings of
the custodial and ministerial functions of the circuit court
clerk have changed significantly since the enactment of the
constitution of 1835.
See, e.g., Sabbe v Wayne Co, 322 Mich
501, 503; 33 NW2d 921 (1948) (describing the role of county
clerks
in
the
circuit
court
as
“purely
ministerial”).
Therefore, it appears that at the time the people ratified the
constitution of 1963, the common understanding of the term
“clerk of the circuit court” was that the clerk was to (1)
have the care and custody of the court records and (2) perform
noncustodial duties that are ministerial in nature, although
those noncustodial ministerial duties are subject to change.
B. THE CUSTODIAL FUNCTION
As stated above, the historical evidence surrounding
Const 1963, art 6, § 14 suggests that the circuit court clerk
is obliged to have the care and custody of the court’s
records.
one
Because we conclude that this custodial function is
contemplated
by
the
ratifiers
of
the
constitutional
provision, the constitution must be interpreted as mandating
this role.
Accordingly, we hold that the circuit court clerk
must perform the custodial function, which the circuit court
15
may not abrogate.
The
scope
of
the
custodial
function
is
limited.
Historically, circuit court clerks acted as guardians of court
records, ensuring their safekeeping as the judges rode from
circuit to circuit.
The circuit court clerk’s role of having
the care and custody of the records must not be confused with
ownership of the records.
As custodian, the circuit court
clerk takes care of the records for the circuit court, which
owns the records.
Nothing in the constitutional custodial
function gives the circuit court clerk independent ownership
authority over court records.
Accordingly, the clerk must
make those records available to their owner, the circuit
court.
The clerk is also obligated to make the records
available to members of the public, when appropriate.
C.
THE NONCUSTODIAL MINISTERIAL FUNCTION
In addition to the custodial function, the constitution
contemplates noncustodial ministerial duties.
In order to
determine the scope of a circuit court clerk’s noncustodial
ministerial duties, because they are subject to change, we
must first ascertain who has the authority to define the
noncustodial ministerial duties of the court clerk. Again, we
turn first to the constitutional text.
Our constitution
specifically addresses the doctrine of separation of powers:
The powers of government are divided
three
branches:
legislative,
executive
16
into
and
judicial. No person exercising powers of one branch
shall exercise powers properly belonging to another
branch except as expressly provided in this
constitution. [Const 1963, art 3, § 2.]
As stated above, the constitution expressly provides that
the county clerk, an executive officer, shall also be an
officer of the judicial branch.
It does not follow, however,
that the executive branch then has the ability to control that
aspect of the judicial branch.
Const 1963, art 6, § 1 provides:
The judicial power of the state is vested
exclusively in one court of justice which shall be
divided into one supreme court, one court of
appeals, one trial court of general jurisdiction
known as the circuit court, one probate court, and
courts of limited jurisdiction that the legislature
may establish by a two-thirds vote of the members
elected and serving in each house. [Emphasis
added.]
Further, Const 1963, art 6, § 5 provides:
The supreme court shall by general rules
establish, modify, amend and simplify the practice
and procedure in all courts of this state. The
distinctions between law and equity proceedings
shall, as far as practicable, be abolished. The
office of master in chancery is prohibited.
[Emphasis added.]
Again, no constitutional provision should be construed to
nullify
or
impair
another.
In
re
Probert,
supra.
To
interpret Const 1963, art 7, § 4 (“[t]here shall be . . . a
county clerk . . . whose duties and powers shall be provided
by law”) to grant the executive branch the power to dictate
the ministerial administration of the circuit court would
17
nullify both art 6, § 1 (providing that the judicial power of
the state is vested exclusively in one court of justice) and
art 6, § 5 (providing that the Supreme Court shall establish,
modify, amend, and simplify the practice and procedure in all
courts of this state).
Further, to so interpret art 7, § 4 would violate the
separation of powers doctrine of art 3, § 2.
Although the
county clerk is expressly made an officer of the judiciary,
neither art 7, § 4 nor art 6, § 14 expressly provides that the
county
clerk
or
any
other
executive-branch
official
may
prescribe the ministerial operations of court practice and
procedure.
Rather, that power is expressly and exclusively
vested in the Supreme Court under art 6, § 5:
The
judicial
powers
derived
from
the
Constitution include rulemaking, supervisory and
other administrative powers as well as traditional
adjudicative ones.
They have been exclusively
entrusted to the judiciary by the Constitution and
may not be diminished, exercised by, nor interfered
with by the other branches of government without
constitutional authorization. [In re 1976 PA 267,
400 Mich 660, 663; 225 NW2d 635 (1977).]
Indeed,
the
power
of
the
judiciary
to
direct
its
ministerial operations has been noted for well over a century.
In Allor v Bd of Auditors of Wayne Co, 43 Mich 76, 97; 4 NW
492 (1880), this Court held:
[N]o court, in the exercise of its functions,
can be lawfully subjected to the control or
interference of any executive or ministerial
authority, or can receive directions for any
18
purpose except from such other courts as are
authorized
by
the
Constitution
to
have
“superintending control over inferior courts.” No
court has a right to allow any other interference
or to submit to it.
And in this same regard it is also very
clearly settled by the Constitution that judicial
power can only be vested in courts and judicial
officers[.]
In Whallon, supra at 508, the Court explained that the circuit
court clerks “are officers of the court, and subject to its
direction in all things necessary to a proper administration
of the law during its sessions.”
Further, in Smith v Kent
Circuit Judge, 139 Mich 463, 464; 102 NW 971 (1905), the Court
noted that the clerk of the circuit court, although also an
executive officer, is subject to all legitimate court orders:
The county clerk is a constitutional officer
(Const. § 12, art. 6), and is by that section made
the clerk of the circuit court of such county.
Section 221, 1 Comp. Laws, requires him to attend
every term of court; gives him the care of all the
records, seals, books, and papers pertaining to the
office of the clerk of such court, and filed or
deposited therein. Neither the Constitution nor the
statute prescribes his duties. He is therefore
subject to all the legitimate orders of the court
of which he is clerk. [Emphasis added.]
Finally, in McDougall v Schanz, 461 Mich 15, 30-31; 597 NW2d
148
(1999),
this
Court
recently
addressed
its
exclusive
constitutional authority regarding rules governing practice
and
procedure
concluded
in
the
that
if
administration,
it
administration
a
court
prevails
19
rule
over
of
the
concerns
contrary
courts
only
and
court
statutory
provisions.
Therefore, we hold that prescribing the exact nature of
a clerk’s noncustodial ministerial functions is a matter of
practice and procedure in the administration of the courts.
Accordingly,
the
authority
to
prescribe
the
specific
noncustodial ministerial duties of the clerk of the circuit
court lies exclusively with the Supreme Court under Const
1963, art 6, § 5.
As such, the judiciary is vested with the constitutional
authority
to
noncustodial
direct
the
circuit
ministerial
court
duties
clerk
to
pertaining
perform
to
court
administration as the Court sees fit. This authority includes
the discretion to create duties, abolish duties, or divide
duties between the clerk and other court personnel, as well as
the right to dictate the scope and form of the performance of
such noncustodial ministerial duties.
IV.
EFFECT
OF
STATUTES
AND
COURT RULES
Prescribing the duties that arise under the clerk’s
noncustodial
ministerial
function
procedure and administration.
is
a
matter
of
court
We have already concluded that
the constitution grants this Court the exclusive authority to
determine, as a matter of court administration, which duties
comprise the noncustodial ministerial functions of the circuit
court
clerk
and
how
those
duties
20
are
to
be
performed.
Therefore, should the Legislature enact statutory duties that
conflict with this Court’s enumeration of duties in the court
rules, the court rules must prevail.
McDougall, supra.
This
does not mean, however, that any statute pertaining to the
duties of the clerk of the circuit court violates separation
of powers.
Rather, if there is no inherent conflict between
the statutes and the court rules, “[w]e are not required to
decide whether [the] statute is a legislative attempt to
supplant the Court’s authority.”
Id. at 24, quoting People v
Mateo, 453 Mich 203, 211; 551 NW2d 891 (1996).
We conclude that the statutes pertaining to the duties of
the county clerk are in harmony with our court rules.
MCR
8.110(C)(3) clearly provides that the chief judge of the court
has the power to direct matters relating to the administration
of the court:
As director of the administration of the
court, a chief judge shall have administrative
superintending power and control over the judges of
the court and all court personnel with authority
and responsibility to:
(a) supervise caseload management and monitor
disposition of the judicial work of the court;
(b) direct the apportionment and assignment
of the business of the court, subject to the
provisions of MCR 8.111;
(c) determine the hours of the court and the
judges; coordinate and determine the number of
judges and court personnel required to be present
at any one time to perform necessary judicial and
administrative work of the court, and require their
21
presence to perform that work;
(d)
supervise the performance of all court
personnel, with authority to hire, discipline, or
discharge such personnel, with the exception of a
judge's secretary and law clerk, if any;
(e)
coordinate
judicial
and
personnel
vacations and absences, subject to the provisions
of subrule (D);
* * *
(h) effect compliance by the court with all
applicable court rules and provisions of the law;
and
(i) perform any act or duty or enter any order
necessarily incidental to carrying out the purposes
of this rule. [Emphasis added.]
MCR 8.105 sets forth the general duties of circuit court
clerks:
(A) Office Hours. The office of the clerk of
every court of record must be open, and the clerk
or deputy clerk must be in attendance, during
business hours on all days except Saturdays,
Sundays, and legal holidays, and at other times
that the court is in session.
(B) Court Records and Reporting Duties. The
clerk of every circuit court shall maintain court
records[21] and make reports as prescribed by MCR
8.119.
(C) Notice of Judgments, Orders, and Opinions.
Notice of a judgment, final order, written opinion
or findings filed or entered in a civil action in a
court of record must be given forthwith in writing
21
We note that, in this context, it is clear that the word
“maintain” refers to the clerk’s custodial duty. See Random
House Webster’s College Dictionary (2001), which defines
“maintain” as “1. to keep in existence or continuance;
preserve.”
22
by the court clerk to the attorneys of record in
the case, in the manner provided in MCR 2.107.
(D) Filing of Assurance of Discontinuance
Under MCL 445.870 . . . . The clerk of every
judicial circuit shall, without charge, receive and
file an assurance of discontinuance accepted by the
Attorney General under MCL 445.870 . . . .
MCR 8.119 sets forth the duties of circuit court clerks
regarding court records and reports:
(A) Applicability. This rule applies to all
actions in every trial court except that subrule
(D)(1) does not apply to civil infractions.
(B) Records Standards. The clerk of the court
shall comply with the records standards in this
rule and as prescribed by the Michigan Supreme
Court.
(C) Filing of Papers. The clerk of the court
shall endorse on the first page of every document
the date on which it is filed. Papers filed with
the clerk of the court must comply with Michigan
Court Rules and Michigan Supreme Court records
standards. The clerk of the court may reject papers
which do not conform to MCR 2.113(C)(1) and MCR
5.113(A)(1).
(D) Records Kept by the Clerk. The clerk of
the court of every trial court shall keep records
in the form and style the court prescribes and in
accordance with Michigan Supreme Court records
standards and local court plans. A court may adopt
a computerized, microfilm, or word-processing
system for maintaining records that substantially
complies with this subrule.
(1) Indexes and Case Files. The clerk shall
keep and maintain records of each case consisting
of a numerical index, an alphabetical index, a
register of actions, and a case file in such form
and style as may be prescribed by the Supreme
Court. . . .
* * *
23
(2)
Calendars.
The
clerk
may
maintain
calendars of actions. A calendar is a schedule of
cases ready for court action that identifies times
and places of activity.
* * *
(4) Other Records. The clerk shall keep in
such form as may be prescribed by the court, other
papers, documents, materials, and things filed with
or handled by the court including but not limited
to wills for safekeeping, exhibits and other
discovery materials, requests for search warrants,
marriage records, and administrative activities.
(E) Access to Records. The clerk may not
permit any record or paper on file in the clerk's
office to be taken from it without the order of the
court.
(1) Unless access to a file, a document, or
information contained in a file or document is
restricted by statute, court rule, or an order
entered pursuant to subrule (F), any person may
inspect pleadings and other papers in the clerk's
office and may obtain copies as provided in subrule
(E)(2) and (E)(3).
(2) If a person wishes to obtain copies of
papers in a file, the clerk shall provide copies
upon
receipt
of
the
reasonable
cost
of
reproduction. If the clerk prefers, the requesting
person may be permitted to make copies at personal
expense under the direct supervision of the clerk.
Except for copies of transcripts or as otherwise
directed by statute or court rule, a standard fee
may be established for providing copies of papers
in a file.
* * *
(4) Every court, shall adopt an administrative
order pursuant to MCR 8.112(B) to
(a) make reasonable regulations necessary to
protect its public records and prevent excessive
and unreasonable interference with the discharge of
24
its functions;
* * *
(G) Reporting Duties.
(1) The clerk of every court shall submit
reports and records as required by statute and
court rule.
(2) The clerk of every court shall submit
reports or provide records as required by the State
Court Administrative Office, without costs.
[Emphasis added.]
MCL 600.571 provides:
The county clerk of each county shall
(a) Be the clerk of the circuit court for the
county.
(b) Attend the circuit court sessions.
(c) Appoint in counties with more than 1
circuit
judge or
having
more
than
100,000
population but less than 1,000,000 a deputy for
each judge and approved by the judge to attend the
court sessions. Each deputy shall receive a salary
of at least $6,500.00.
(d) On the first day of each court term render
an accounting to the court of all funds, stocks or
securities deposited with the court clerk pursuant
to court order.
(e) Within 10 days after the beginning of each
court term pay over to the county treasurer all
fees belonging to the county received during the
preceding court term together with an accounting
thereof.
(f) Have the care and custody of all the
records, seals, books and papers pertaining to the
office of the clerk of such court, and filed or
deposited therein, and shall provide such books for
entering the proceedings in said court, as the
judge thereof shall direct.
25
(g) Perform such duties as may be prescribed
by court rule. Whenever in any statute of this
state, the designation "register in chancery"
occurs, it shall be deemed to apply to the clerk of
the circuit court. [Emphasis added.]
We find no conflict in the court rules and the statutes
in this area, and note that this reinforces our analysis of
the historical understanding of the role of the circuit court
clerk as discussed above.
MCL 600.571(f) and (g) merely
codify the historical understanding of the dual nature of the
clerk’s
function:
function,
while
subsection
subsection
g
f
refers
refers
to
to
the
the
custodial
noncustodial
ministerial function.
In addition, MCL 600.1007 provides:
As with circuit court, the county clerk is the
clerk of the court for the family division of the
circuit court.
Finally, MCL 600.1027 provides, in pertinent part:
(1) At the time of commencing an ancillary
guardianship or limited guardianship proceeding in
the family division of circuit court, the party
commencing the proceeding shall pay a $50.00 filing
fee to the family division of circuit court.
* * *
(3) The clerk of the court, on or before the
fifth day of the month following the month in which
any fees are collected under this section, shall
transmit to the county treasurer all fees collected
under this section during the preceding month.
Within 15 days after receiving the fees, the county
treasurer shall transmit all fees collected to the
state treasurer for deposit in the state court fund
created by section 151a. [Emphasis added.]
26
Taken together, the statutes merely reiterate art 6, §
14 and provide that the circuit court clerk must have the
care and custody of court records and exercise the duties
prescribed by court rule, including attending court sessions
and transmitting fees received.
Although the statutes, like
the court rules, set forth broad areas of responsibility,
they
refrain
from
specifying
exactly
what
those
responsibilities entail and how the clerk shall perform those
responsibilities.
Rather, the statutes provide that either
the judge22 or the court rules23 shall prescribe the exact
noncustodial ministerial duties of the clerk.
the
statutes
codify
the
historical
In so doing,
custodial
and
noncustodial, ministerial functions of the circuit court
clerks.
VI. CONCLUSION
The constitutionally created office of the clerk of the
circuit court must have the care and custody of the court
records and can perform noncustodial ministerial functions
of the court. The custodial function requires that the clerk
act
as
guardian
of
the
records,
providing
for
their
safekeeping. The clerk’s noncustodial ministerial duties are
directed by the Court, as the determination of the precise
22
MCL 600.571(f).
23
MCL 600.571(g).
27
noncustodial ministerial duties to be performed is a matter
of
court
administration
entrusted
exclusively
to
the
judiciary under Const 1963, art 3, § 2 and Const 1963, art
6, §§ 1, 5.
The complaint for superintending control is dismissed.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
CAVANAGH, J.
I concur in the result only.
Michael F. Cavanagh
28
S T A T E
O F
M I C H I G A N
SUPREME COURT
In re LAPEER COUNTY CLERK
___________________________________
LAPEER COUNTY CLERK,
Plaintiff,
v
No. 121400
LAPEER CIRCUIT COURT,
Defendant,
and
COUNTY OF LAPEER,
Intervening Defendant.
___________________________________
KELLY, J. (concurring in part and dissenting in part).
I agree that intervening circumstances render moot the
issues presented in this case.
However, they will arise
again and require judicial resolution.
Therefore, I agree
that the Court should address the issues at this time.
I
write separately to indicate that I believe that certain of
the majority's findings and its legal analysis are incorrect.
SEPARATION
OF POWERS --PRUDENTIAL CONCERNS
-
The complex environment of the trial court requires that
we allow chief judges to manage the day-to-day operation of
their courts.
Judicial Attorneys Ass'n v Michigan, 459 Mich
291, 298-299; 586 NW2d 894 (1998).
rules
provide
administration
chief
of
judges
their
Accordingly, our court
latitude
courts
to
in
adapting
their
the
particular
circumstances.1
1
For instance, MCR 8.110(C) provides, in part:
(2) As the presiding officer of the court, a
chief judge shall:
* * *
(c) initiate policies concerning the court's
internal operations and its position on external
matters affecting the court;
* * *
(3) As director of the administration of the
court, a chief judge shall have administrative
superintending power and control over the judges of
the court and all court personnel with authority
and responsibility to:
(a) supervise caseload management and monitor
disposition of the judicial work of the court,
(b) direct the apportionment and assignment of
the business of the court, subject to the
provisions of MCR 8.111;
* * *
(f) supervise court finances, including financial
planning, the preparation and presentation of budgets,and
(continued...)
2
Our Legislature is also cognizant of the needs of the
circuit courts.
Hence, it drafted MCL 600.571 to give them
discretion in determining how best to utilize the services
of the county clerks.
I find no conflict between the
statutes regulating the duties of the clerk of the circuit
court and our court rules.
The majority apparently agrees with this conclusion.
Ante at 22-29.
Yet, it engages in further analysis.
In
doing so, it holds that, as a matter of constitutional law,
the judiciary alone may regulate the noncustodial duties of
the clerk of the circuit court.
By reaching this issue, the
majority violates the principle that we will not address a
constitutional question unless necessary. Booth Newspapers,
Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507
NW2d 422 (1993).
However, because I do not believe that the
majority's analysis supports its conclusion, I offer the
following counter-analysis.
COUNTER -ANALYSIS
The Michigan Constitution vests this Court with the
1
(...continued)
financial reporting;
* * *
(i) perform any act or duty or enter any order
necessarily incidental to carrying out the purposes
of this rule.
3
authority to prescribe the rules of practice and procedure
in the courts.
Const 1963, art 6, § 5.
These attributes of
judicial authority "may not be diminished, exercised by, nor
interfered with by the other branches of government without
constitutional authorization."
In re 1976 PA 267, 400 Mich
660, 663; 255 NW2d 635 (1977).
Moreover, this Court has long recognized that
[i]t is simply impossible for a judge to do
nothing but judge; a legislator to do nothing but
legislate; a governor to do nothing but execute
the laws. The proper exercise of each of these
three great powers of government necessarily
includes some ancillary inherent capacity to do
things which are normally done by the other
departments.
Thus, both the legislative department and the
judicial department have certain housekeeping
chores which are prerequisite to the exercise of
legislative and judicial power. And, to accomplish
those housekeeping chores both departments have
inherently a measure of administrative authority
not unlike that primarily and exclusively vested
in the executive department. [Wayne Circuit Judges
v Wayne Co, 383 Mich 10, 20-21; 172 NW2d 436
(1969), superseded by 386 Mich 1; 190 NW2d 228
(1971)(On Rehearing).]
The
majority
carries
this
rationale
much
further,
asserting that, if art 7, § 4 applied to the county clerk's
duties as clerk of the court, it would necessarily violate
the separation of powers clause.
I believe this assertion
is inaccurate.
Our constitution, in detailing the requirements of the
separation of powers, provides:
4
The powers of the government are divided into
three branches; legislative, executive, and
judicial. No person exercising the powers of one
branch shall exercise powers properly belonging to
another branch except as expressly provided in
this constitution. [Const 1963, art 3, § 2.]
Thus, while our constitution mandates separation of powers,
that mandate is qualified to allow the exercise of one
branch's
power
by
another
expressly provides for it.
branch
when
the
constitution
It appears to me that art 7, §
4 contains one such qualification.
Article 7, § 4 provides that: "There shall be . . . a
county clerk . . . whose duties shall be provided by law."
We
have
consistently
held
that,
when
the
constitution
requires that details be provided by law, the Legislature
alone can provide those details.
People v Bulger, 462 Mich
495, 508-509; 614 NW2d 103 (2000).2
There is no reason to
deviate in this case from our previous holdings.
There is some support for the conclusion that the
drafters of the constitution made the county clerk the clerk
of the circuit court to provide a check against judicial
power.3
Consequently, it is possible that art 7, § 4 was
2
The majority apparently believes that, if it interprets
art 7, § 4 so that it applies to the clerk's ministerial
noncustodial duties, the executive branch would be empowered
to define those duties. Ante at 18-19. I believe this is an
error that has misled the majority in its analysis.
3
See, e.g., the comments of Delegate Paul V. Gadola, a
(continued...)
5
intended to set limits on the power of the judiciary by
taking advantage of the constitutional qualification to
separation of powers.
If this were the case, there would be
no discord between art 7, § 4 and art 3, § 2.4
If we ascribe to art 7, § 4 the meaning that I believe
the framers of the constitution intended, it would scarcely
render
ineffectual
the
power
of
the
judicial
branch.
Although the Legislature would have the authority to enact
laws regulating the duties of the clerk of the circuit court,
it would be bound by the same principles that constrain us.
Thus, it could not extend the duties of the clerk beyond
3
(...continued)
retired circuit judge, who stated:
Remember that the clerk is the one that has
charge of all the records of the circuit court.
The clerk writes the journal. And, you know, the
circuit judges can’t conceal too much, because
every day there is a diary written of their doings
and they sign it every day, and you can find it
1,000 years from now if the records are kept. [1
Official Record, Constitutional Convention 1961, p
1371.]
4
There are possibly other policy considerations at work
as well. For instance, the drafters could have been concerned
about cost and efficiency. By providing that the county clerk
serves as a depository for most of the documents in a county,
the drafters potentially made access to important documents
more efficient. Also, the drafters may have been concerned
that requiring the clerk to perform all the ministerial duties
of the circuit court would be too costly. Thus, they may have
included a fiscal pressure valve within art 7, § 4 to allow
the Legislature to limit the clerks' duties when the clerks
become inefficient.
6
those that are purely ministerial; it could do no more than
designate which ministerial noncustodial duties the clerk
might perform.
I
conclude
that
the
constitution
has
provided
the
Legislature with the authority to define and limit the
ministerial noncustodial duties that the clerk of the circuit
court may perform. However, because neither the constitution
nor any legislative enactments at present limit the clerk's
ministerial
duties,
the
clerk
is
subject
to
all
the
legitimate orders of the court. MCL 600.571(g); Smith v Kent
Circuit Judge, 139 Mich 463, 464; 102 NW 1905 (1905).
CONCLUSION
I agree with the majority's conclusion that the issues
presented in this case are moot but should be addressed at
this time.
Additionally, I agree that the constitution
protects the clerk's function as custodian of circuit court
records.
Finally, I agree that there is no conflict between
the statutes regulating the duties of the clerk of the court
and the court rules.
Beyond these limited observations, I cannot agree with
the majority opinion.
Marilyn Kelly
7
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