June 18, 2015, Introduced by Reps. Cox, Webber, Chatfield, Schor, McBroom, Crawford, Kivela, Iden, Johnson, Sheppard, LaVoy, Cole and Runestad and referred to the Committee on Financial Liability Reform.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending section 308a (MCL 600.308a), as added by 1980 PA 110,
and by adding sections 308b, 308c, 308d, 308e, 308f, and 308g.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
308a. (1) An action under section 32 of article 9 IX of
the
state constitution of 1963 may or
under subsection (2) may be
commenced
only in the court of appeals. ,
or in the circuit court
in
the county in which venue is proper, at the option of the party
commencing
the action.
(2) A local unit of government may bring an action in the
court of appeals to enforce the provisions of sections 25 to 31 of
article IX of the state constitution of 1963.
(3) (2)
The jurisdiction of the court of
appeals shall be
under this section is invoked by a taxpayer or a local unit of
government
filing an action by a taxpayer as
plaintiff according to
the court rules governing procedure in the court of appeals.
(4) (3)
A taxpayer shall not bring or maintain an An action
under
this section unless the action is seeking money damages for
this state's failure to adequately fund a state-required activity
or service must be commenced within 1 year after the cause of
action
accrued. accrues. An
action under this section seeking a
declaratory judgment may be commenced at any time that sections 25
to 31 of article IX of the state constitution of 1963 are being
violated as alleged in the complaint.
(4)
The unit of government shall be named as defendant. An
officer
of any governmental unit shall be sued in his or her
official
capacity only and shall be described as a party by his or
her
official title and not by name. If an officer dies, resigns, or
otherwise
ceases to hold office during the pendency of the action,
the
action shall continue against the governmental unit and the
officer's
successor in office.
(5)
The court of appeals may refer an action to the circuit
court
or to the tax tribunal to determine and report its findings
of
fact if substantial fact finding is necessary to decide the
action.
(5) (6)
A plaintiff who If the
taxpayer or, if a local unit of
government is the plaintiff, the local unit of government prevails
in
an action commenced under this section, shall receive from the
defendant shall pay the taxpayer or local unit of government the
costs
incurred by the plaintiff taxpayer
or local unit of
government in maintaining the action.
Sec. 308b. (1) A taxpayer who commences an action under
section 308a(1) shall name the applicable local unit of government
as defendant in the action. An officer of a local unit of
government must be sued in his or her official capacity only and
must be described as a party by his or her official title and not
by name. If an officer dies, resigns, or otherwise ceases to hold
office during the pendency of the action, the action continues
against the local unit of government and the officer's successor in
office.
(2) The court shall not require the plaintiff in an action
under section 308a to state allegations in the complaint with any
greater specificity or particularity than is required of a
plaintiff generally in a civil action or to attach to the complaint
any document or thing that would not be required generally to be
attached to a complaint in a civil action.
(3) The plaintiff in an action under section 308a shall file
all of the following with the clerk of the court of appeals:
(a) Five copies of the complaint, 1 of which must be signed.
The complaint must include a statement as to whether the plaintiff
believes that the action raises factual questions that will require
resolution by the court.
(b) Proof that a copy of the complaint and any other documents
filed with the court were served on every named defendant and the
department of attorney general.
(c) The filing fee.
(4) A defendant named in an action under section 308a shall
file all of the following with the clerk of the court of appeals
within 21 days after the complaint is served on the defendant:
(a) Five copies of an answer to the complaint, 1 of which is
signed. The answer must include a statement as to whether the
defendant believes that the action raises factual questions that
will require resolution by the court.
(b) Proof that a copy of the answer and any other documents
filed with the court were served on every named party.
Sec. 308c. (1) After an answer is filed under section 308b,
the chief judge of the court of appeals shall promptly assign a
panel of the court to commence proceedings in the action.
(2) A panel to which an action is assigned under subsection
(1) may refer the action to the special master created under
section 308d to conduct pretrial proceedings and a trial to receive
evidence and arguments of law and to issue a written report for the
court that contains findings of fact and conclusions of law. The
special master shall conduct the proceedings as expeditiously as
due consideration of the facts and issues of law requires.
(3) If a panel to which an action is assigned under subsection
(1) determines that the issues framed in the pleadings only present
questions of law, the panel may elect not to refer the action to
the special master.
(4) After receiving a report from the special master under
subsection (2) or if the panel elects not to refer the action to
the special master, the panel to which an action is assigned under
subsection (1) shall establish and notify the parties of a schedule
for filing briefs in response to the special master's report or
based on the issues framed in the pleadings, as applicable, and for
oral argument.
Sec. 308d. (1) The position of special master for assisting
the court of appeals in carrying out its responsibilities under
section 32 of article IX of the state constitution of 1963 or under
section 308a(2) is created in the court of appeals.
(2) The special master shall, upon assignment by a panel of
the court of appeals under section 308c, take evidence and receive
arguments on issues of law and issue a written report to the court
recommending the disposition of the case. The supreme court shall
establish the rules for proceedings before the special master.
(3) The supreme court shall appoint an individual to serve as
the special master. The special master shall continue in office at
the pleasure of the supreme court.
(4) The supreme court shall establish the qualifications
required to serve as special master. The qualifications must
include, at a minimum, that the individual be an attorney who has
experience in the operations of local units of government that
would enable the individual to assist the court of appeals in
expeditiously and meaningfully processing claims in actions under
section 308a.
Sec. 308e. (1) The court of appeals shall process an action
under section 308a to a decision as rapidly as possible, consistent
with achieving justice and assuring the enforcement of the intent
of the electors of this state as expressed in the section of the
state constitution of 1963 that is the subject of the action. The
court of appeals shall give the action priority over other cases
pending before the court, except cases that have a higher priority
under rules adopted by the supreme court.
(2) Both of the following apply in an action under section
308a:
(a) Except as provided in subdivision (b), this state or the
responsible department or agency of this state has the burden of
proving compliance with sections 25 to 31 of article IX of the
state constitution of 1963. There is no presumption of compliance.
Compliance must be established through evidence introduced by this
state or the responsible department or agency.
(b) If the plaintiff is a local unit of government that has
twice brought and lost actions under section 308a, there is a
presumption that this state or the responsible department or agency
has complied with sections 25 to 31 of article IX of the state
constitution of 1963. The local unit of government has the burden
of proving noncompliance.
Sec. 308f. (1) Section 5(3) of the Paul Harvey transparency
act applies if the activity or service required is the subject of
an action under section 308a and, within 6 months after the action
is filed, the court of appeals has not finally adjudicated both of
the following questions:
(a) Whether, based on the claims asserted in the complaint,
the subject activity or service is required by state law within the
meaning of section 29 of article IX of the state constitution of
1963.
(b) If the adjudication under subdivision (a) is that the
activity or service is required by state law, whether the
legislature has appropriated and disbursed sufficient funding
necessary to pay the affected local units of government for any
necessary increased costs of the required activities and services,
as required by section 29 of article IX of the state constitution
of 1963.
(2) If the court of appeals or, following an appeal, the
supreme court adjudicates in an action under section 308a that this
state has not met its funding obligation under section 29 of
article IX of the state constitution of 1963, section 5(3) of the
Paul Harvey transparency act applies until the legislature does 1
of the following:
(a) Appropriates and disburses sufficient funding to meet its
responsibilities to the affected local units of government under
section 29 of article IX of the state constitution of 1963.
(b) Eliminates or rescinds the subject requirement.
(c) Changes or modifies the subject requirement to reduce the
cost of providing the activity or service and appropriates and
provides for the disbursement of sufficient funding necessary to
pay the affected local units of government for the cost of
providing the activity or service under the changed or modified
requirements as required by section 29 of article IX of the state
constitution of 1963.
Sec. 308g. (1) If, following a final adjudication by the court
of appeals of the questions described in section 308f(1) that is
adverse to the plaintiff, an application for leave to appeal to the
supreme court is filed by the plaintiff, the supreme court shall
make a rapid decision on the application. The supreme court shall
give the application priority over nonemergency matters pending
before the court. If the application is granted, the court's review
of the merits of the appeal shall be given priority over other
nonemergency matters pending before the court.
(2) While an application or appeal under this section is
pending before the supreme court, the court shall stay the
obligation of local units to comply with the subject required
activity or service pending final adjudication by the court.
However, if the supreme court determines that the plaintiff is not
likely to prevail on the merits, a stay under this subsection is
not mandatory, but may be issued in the discretion of the court.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No. ___ or House Bill No. 4753 (request no.
02598'15) of the 98th Legislature is enacted into law.