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Progress Michigan v. Attorney General

Court of Appeals of Michigan

June 19, 2018

PROGRESS MICHIGAN, Plaintiff-Appellee,
v.
ATTORNEY GENERAL, Defendant-Appellant.

          Court of Claims LC No. 17-000093-MZ

          Before: Meter, P.J., and Gadola and Tukel, JJ.

          PER CURIAM.

         In Docket No. 340921, defendant, Attorney General (AG) Bill Schuette acting in his official capacity, appeals as of right the denial of summary disposition by the Court of Claims, arguing that the Court of Claims erred in finding that plaintiff, Progress Michigan, could amend its complaint to comply with the requirements of the Court of Claims Act, MCL 600.6401 et seq. In Docket No. 340956, defendant applied for leave to appeal, arguing that plaintiff failed to comply with the statute of limitations under the Freedom of Information Act (FOIA), MCL 15.231 et seq. This Court granted leave to appeal and consolidated the two appeals. Progress Mich. v Attorney General, unpublished order of the Court of Appeals, entered December 20, 2017 (Docket No. 340956). For the reasons stated, we reverse and remand for entry of summary disposition in favor of defendant.

         After reviewing public records it had received through other FOIA requests, plaintiff alleges that it learned that defendant and his staff were performing official functions using personal e-mail accounts. Consequently, on September 27, 2016, plaintiff made a request pursuant to the FOIA. The request covered all e-mails sent or received by a group of 21 AG Department staff members using personal e-mail accounts in the performance of any official function, from the date of November 1, 2010, onward. On October 19, 2016, defendant denied plaintiff's request. Defendant stated that he did not possess any such records meeting plaintiff's description, except for a single e-mail, which was not subject to disclosure because it was attorney work product. On November 26, 2016, plaintiff filed an internal appeal of the denial, which by letter dated December 12, 2016, defendant again denied.

         On April 11, 2017, plaintiff filed its original complaint in this action in the Court of Claims. Plaintiff's complaint contained two counts: (1) violation of the FOIA and (2) failure to preserve state records under the Management and Budget Act, MCL 18.1101, et seq. On May 16, 2017, defendant moved for summary disposition, arguing, in relevant part, that plaintiff's complaint was subject to dismissal for failure to comply with the Court of Claims Act's requirement that a claimant must sign and verify its claim, see MCL 600.6431(1), as the complaint was unsigned by plaintiff and unverified.

         On May 26, 2017, plaintiff filed an amended complaint, which contained allegations identical to those in the original complaint. This time, however, the amended complaint was signed and verified. On June 13, 2017, defendant again moved for summary disposition on the amended complaint. First, defendant argued that procedurally improper claims cannot be cured by virtue of an amendment of a complaint because the timing requirements of the Court of Claims Act applies to "claims, " not "complaints." Thus, defendant argued that complaints can be amended but claims cannot, as the two terms are not equivalent. Second, defendant argued that even if plaintiff could amend its complaint to comply with the requirements of the Court of Claims Act, it nevertheless was time-barred by the FOIA's statute of limitations, which provides for a 180-day limitations period. This was so, defendant argued, because the amended complaint was filed more than 180 days after the denial of plaintiff's FOIA request and, thus, could only be deemed valid if it related back to the filing date of the original complaint. Defendant argued, however, that because the amended complaint did not add a claim or defense, a requirement to constitute an amended complaint under the Michigan Court Rules, it was not a proper amended complaint, and its filing therefore could not relate back to the date of the filing of the original complaint. Thus, defendant argued that plaintiff's claim was time-barred by the FOIA's statute of limitations.

         The Court of Claims denied defendant's motion for summary disposition with respect to plaintiff's FOIA claim. The Court of Claims rejected defendant's distinction between a "claim" and a "complaint, " holding that plaintiff had complied with the signature and verification requirements of the Court of Claims Act when it filed its amended complaint within the one-year statutory period in MCL 600.6431(1). The Court of Claims also held that the amended complaint related back to the filing of the original complaint, so plaintiff had complied with the FOIA's statute of limitations. Regarding plaintiff's count pertaining to an alleged violation of the Management and Budget Act, the Court of Claims granted summary disposition in favor of defendant because it found that the act does not provide a private right of action. Plaintiff has not appealed the Court of Claims' dismissal of the Management and Budget Act count. Thus, the only count pertinent to these appeals is plaintiff's FOIA count.

         I. PLAINTIFF'S CHALLENGE TO THIS COURT'S JURISDICTION

         On appeal, plaintiff contests this Court's jurisdiction over defendant's appeals. In Docket No. 340921, defendant appealed as of right under MCR 7.203(A)(1) the denial of summary disposition. And in Docket No. 340956, defendant applied for leave to appeal, which this Court granted under MCR 7.203(B)(1).

         "Whether this Court has jurisdiction to hear an appeal is always within the scope of this Court's review." Chen v Wayne State Univ, 284 Mich.App. 172, 191; 771 N.W.2d 820 (2009). "The jurisdiction of the Court of Appeals is governed by statute and court rule." Id. Because "[t]his Court reviews de novo the proper interpretation of statutes and court rules as questions of law, " this Court reviews de novo the question whether it has jurisdiction. Id.

         MCR 7.203(A)(1) provides that this Court "has jurisdiction of an appeal of right filed by an aggrieved party from . . . [a] final judgment or final order of the circuit court, or court of claims, as defined in MCR 7.202(6)." In turn, MCR 7.202(6)(a)(v) defines a "final judgment" or "final order" as "an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee under MCR 2.116(C)(7)."

         Plaintiff argues that the denial of summary disposition by the Court of Claims did not deny defendant governmental immunity because there is no governmental immunity for disclosure of public records, and, even if governmental immunity did apply to disclosure of public records, the FOIA had acted as a waiver of such immunity. However, plaintiff's challenge to this Court's jurisdiction fails.

         The Michigan Supreme Court stated in Fairley v Dep't of Corrections, 497 Mich. 290, 297; 871 N.W.2d 129 (2015), that "while MCL 600.6431 does not 'confer governmental immunity, ' it establishes conditions precedent for avoiding the governmental immunity conferred by the" Governmental Tort Liability Act, MCL 691.1401 et seq. Thus, contrary to plaintiff's position, defendant's assertion that plaintiff failed to comply with MCL 600.6431(1) does constitute a claim that he was entitled to governmental immunity. As a result, the Court of Claims' denial of summary disposition constituted a denial of governmental immunity to a governmental party, and the order thus constituted a final order under MCR 7.202(6)(a)(v). Therefore, that aspect of the order is appealable of right under MCR 7.203(A)(1), thereby providing this Court with jurisdiction over the claim of appeal in Docket No. 340921. See also Watts v Nevils, 477 Mich. 856 (2006); Walsh v Taylor, 263 Mich.App. 618, 625; 689 N.W.2d 506 (2004). Further, whether there is actually a governmental immunity defense to an alleged failure to ...


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