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Brief in Support of the Petition Challenging the Constitutionality of 2013 PA 164

STATE OF MICHIGAN

IN THE COURT OF APPEALS

______________________________________________________________________________

THOMAS R. OKRIE, et al.,

Plaintiffs,

v

STATE OF MICHIGAN,

GOVERNOR RICK SNYDER,

MICHIGAN DEPARTMENT

OF TECHNOLOGY, MANAGEMENT

AND BUDGET, OFFICE OF

RETIREMENT SERVICES,

STATE EMPLOYEES RETIREMENT

SYSTEM, MICHIGAN PUBLIC

SCHOOL EMPLOYEES RETIREMENT

SYSTEM, and MICHIGAN DEPARTMENT

OF TREASURY,

Defendants.

______________________________________________________________________

Gary P. Supanich (P45547)

LAW OFFICE OF GARY P. SUPANICH

Attorney for Plaintiffs

117 North First Street, Suite 111

Ann Arbor, MI 48104

(734) 276-656

www.michigan-appeal-attorney.com

Patrick M. Fitzgerald (P69964)

Joshua Booth (P53947)

Margaret Nelson (P30342)

MICHIGAN DEPARTMENT OF ATTORNEY GENERAL

State Operations Division

Attorneys for Defendants

P.O. Box 30754

Lansing, MI 48909

(517) 373-1162

_____________________________________________________________________

PLAINTIFFS' BRIEF IN SUPPORT OF THEIR PETITION CHALLENGING THE CONSTITUTIONALITY OF 2013 PA 164

TABLE OF CONTENTS

TABLE OF AUTHORITIES. i

STATEMENT OF JURISDICTION.. v

STATEMENT OF QUESTIONS. vi

INTRODUCTION...................................................... 1

STATEMENT OF THE FACTS.................................. 2

LEGAL STANDARD.................................................. 8

ARGUMENT. 9

I. TRANSFERRING THE COURT OF CLAIMS FROM THE 30TH JUDICIAL CIRCUIT (INGHAM CIRCUIT COURT) TO THE COURT OF APPEALS PURSUANT TO 2013 PA 64 ("THE ACT") VIOLATES THE DOCTRINE OF THE SEPARATION OF POWERS UNDER CONST 1963, ART 3, § 2..... 9

A. The Separation of Powers Doctrine. 9

B. The Constitutional Creation of the Court of Appeals as an Intermediate Appellate Court 10

C. Shifting the Jurisdiction of the Court of Claims to the Court of Appeals Violates the Separation of Powers Doctrine under the Michigan Constitution. 13

1. The Act interferes with the fundamental jurisdictional character of the Court of Appeals as an intermediate appellate court under Const 1963, art 6, § 1.. 13

2. Elected judges of the Court of Appeals cannot simultaneously be members of the Court of Appeals and assigned or appointed on a permanent basis for renewable two-year terms as members of a lower court subject to appellate review by the Court of Appeals. 15

II. THE ACT VIOLATES ARTICLE 6, § 8 OF THE MICHIGAN CONSTITUTION BY DIRECTING THE SUPREME COURT TO APPOINT JUDGES ON THE COURT OF APPEALS TO SIT ON A PERMANENT BASIS FOR RENEWABLE TWO-YEAR TERMS AS MEMBERS OF THE COURT OF CLAIMS, AND THUS HOLD INCOMPATIBLE OFFICES IN VIOLATION OF MCL 15.182..... 17

III. THE ACT VIOLATES ARTICLE 6, § 8 OF THE MICHIGAN CONSTITUTION BY TRANSFERRING THE FUNCTIONS OF A CIRCUIT COURT, A CONSTITUTIONAL COURT, TO THE COURT OF APPEALS...... 24

IV. THE ACT VIOLATES PLAINTIFFS' DUE PROCESS RIGHTS TO AN OBJECTIVE, DELIBERATIVE, AND REASONED ADJUDICATION BEFORE A NEUTRAL DECISION-MAKER IN VIOLATION OF US CONST, AM XIV, AND CONST 1963, ART 1, § 17..... 24

V. GIVING IMMEDIATE EFFECT TO THE ACT VIOLATES ARTICLE 4, § 27 OF THE 1963 MICHIGAN CONSTITUTION BECAUSE IT FAILED TO OBTAIN TWO-THIRDS VOTE OF THE MEMBERS OF THE HOUSE OF REPRESENTATIVES..... 24

CONCLUSION AND RELIEF. 26

TABLE OF AUTHORITIES

Cases

Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311 (1977)..................................... 9 n 3

Allen v Circuit Judge for Kent County, 37 Mich 474 (1877)....................................................................... 20

City of Pontiac Retired Employees Assoc v Schimmel, 726 F3d 767 (CA6 2013), rehearing en banc granted and vacated by 2013 U.S. App. LEXIS 22856 (6th Cir. Nov. 8, 2013)............................................................ 25

Civil Service Commission v Auditor General, 302 Mich 673 (1942). ..................................................... 10

Finlayson v West Bloomfield Township, 320 Mich 350 (1948)....................................................................... 19

Frey v Dep't of Mgmt & Budget, 429 Mich 315 (1987)................................................................................... 24

Gray v Clerk of Common Pleas, 366 Mich 588 (1962)............................................................................... 9, 10

Hammel v Speaker of House of Representatives, 297 Mich App 641 (2012), lv den 493 Mich 973 (2013)... 25

Heath v Circuit Judge for Kent County, 37 Mich 372 (1877)....................................................................... 13

Hinky Dinky Supermarket, Inc v Dep't of Community Health, 261 Mich App 604 (2004)............................. 22

In re Adams Est, 257 Mich App 230 (2003).............. 22

In re Application of Governor, Jurisdiction of Court of Appeals, 381 Mich 1 (1968)................................ 11, 18

In re Brant's Estate, 269 Mich 201 (1934)................ 13

In re Brock, 442 Mich 101 (1993)............................. 22

In re Districting for Court of Appeals, 372 Mich 227 (1964).................................................................... 8, 17

In re Manufacturer's Freight Forwarding Co, 294 Mich 57 (1940).......................................................... 13

In re 1976 PA 267, 400 Mich 660 (1977)..................... 9

Judicial Attorneys Association v State of Michigan, 459 Mich 291 (1998)................................................. 10

Kates v Reading, 254 Mich 158 (1931) .................... 10

Lapeer County Clerk v Lapeer Circuit Judges, 465 Mich 559 (2002)........................................................ 11

Lassiter v Dep't of Social Services of Durham Co, 452 US 184 (1981) .......................................................... 22

Lim v Dep't of Transportation, 167 Mich App 751 (1988)....................................................................... 12

Littsey v Bd. of Governors of Wayne State University, 108 Mich App 406 (1981)......................................... 12

Marbury v Madison, 5 US 137 (1803)...................... 13

Mistretta v United States, 488 US 361 (1989)...... 9 n 3

Mooney v Unemployment Compensation Com, 336 Mich 344 (1953)........................................................ 20

Morrison v Olson, 487 US 654 (1988).................. 9 n 3

Parkwood Ltd Dividend Hous Ass'n v State Hous Dev Auth, 468 Mich 763 (2003)....................................... 12

People v Tyrer, 385 Mich 484 (1971). ..................... 11

Petition of Crawford, 311 Mich 70 (1945)................. 20

St Joseph Township v Berrien County Board of Supervisors, 363 Mich 295 (1961)............................ 19

Swift v Wayne Circuit Judges, 64 Mich 479 (1887).. 13

Taylor v Auditor General, 360 Mich 146 (1960), 12, 19

Township of Dearborn v Dearborn Township Clerk, 334 Mich 673 (1952)................................................. 10

Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980.................................................... 3

Wayne County Chief Executive v Governor, 230 Mich App 258 (1998)......................................................... 19

Constitutional Provisions

Const 1963, art 1, § 17......................................... vi, 22

Const 1963, art 3, § 2 .......................... vi, 9, 15, 17, 22

Const 1963, art 4, § 18............................................... 4

Const 1963, art 4, § 27......................................... vi, 24

Const 1963, art 6, § 1......................... 10, 13, 17, 20, 22

Const 1963, art 6, § 8 .............................. vi, 17, 20, 22

Const 1963, art 6, § 10 ............................................. 10

Const 1963, art 6, § 13.............................................. 20

US Const, Am V.................................................. vi, 22

US Const, Am XIV.............................................. vi, 22

Statutes

MCL 15.182................................................... vi, 17, 18

MCL 168.409 et seq.................................................. 17

MCL 600.308........................................................ 5, 11

MCL 600.310............................................................ 11

Court Rules

MCR 2.112........................................................... 14 n5

MCR 2.116(C)(8)......................................................... 2

MCR 2.116(C)(10)............................................... 2, 3, 4

MCR 2.116(I)(1)...................................................... 3, 4

MCR 7.203.......................................................... 11, 12

MCR 7.206.............................................................................. 14, n5

Other Authority

Code of Judicial Conduct, Canon 4(c)...................... 16

John V. Orth, Options for An Independent Judiciary in Michigan (Symposium, February 9, 2010): Judicial Selection - A View From The Outside, 56 Wayne L Rev 715 (Fall 2010).................................................. 15

Senate Bill No. 652........................................... passim

10 Michigan Law Practice 2d Courts § 41.......... 12, 13

10 Michigan Law and Practice 2d, Courts, § 44........................... 20

2011 PA 38................................................................. 2

2012 PA 436............................................................. 25

2013 PA 164...................................................... passim

PLAINTIFFS' STATEMENT OF JURISDICTION

Senate Bill No. 652, restructuring the Court of Claims and altering its jurisdiction, was introduced on October 24, 2013, passed on November 6 with immediate effect, and signed by Governor Snyder on November 13, 2013 as Public Act 164 of 2013 (''the Act") [EX. 1]. Pursuant to the Act, "[t]he court of appeals has exclusive original jurisdiction over any action challenging the validity of section 6404, 6410, 6413 or 6419." See Senate Bill No. 652, § 308(4). In this action, Plaintiffs are challenging the validity of all these sections referenced in § 308(4). Therefore, this Court has exclusive original jurisdiction over the present action.

STATEMENT OF THE QUESTIONS

I. DOES TRANSFERRING THE COURT OF CLAIMS FROM THE 30TH JUDICIAL CIRCUIT (INGHAM CIRCUIT COURT) TO THE COURT OF APPEALS PURSUANT TO 2013 PA 64 ("THE ACT") VIOLATE THE DOCTRINE OF THE SEPARATION OF POWERS UNDER CONST 1963, ART 3, § 2?

II. DOES THE ACT VIOLATE ARTICLE 6, § 8 OF THE MICHIGAN CONSTITUTION BY DIRECTING THE SUPREME COURT TO APPOINT JUDGES ON THE COURT OF APPEALS TO SIT ON A PERMANENT BASIS FOR RENEWABLE TWO-YEAR TERMS AS MEMBERS OF THE COURT OF CLAIMS, AND THUS HOLD INCOMPATIBLE OFFICES IN VIOLATION OF MCL 15.182?

III. DOES THE ACT VIOLATE ARTICLE 6, § 8 OF THE MICHIGAN CONSTITUTION BY TRANSFERRING THE FUNCTIONS OF THE 30TH JUDICIAL CIRCUIT COURT, A CONSTITUTIONAL COURT, TO THE COURT OF APPEALS?

IV. DOES TRANSFERRING THE COURT OF CLAIMS FROM THE 30TH JUDICIAL CIRCUIT TO THE COURT OF APPEALS PURSUANT TO THE ACT VIOLATE PLAINTIFFS' DUE PROCESS RIGHTS TO AN OBJECTIVE, DELIBERATIVE, AND REASONED ADJUDICATION BEFORE A NEUTRAL DECISION-MAKER IN VIOLATION OF US CONST, AM XIV, AND CONST 1963, ART 1, § 17?

V. DOES GIVING IMMEDIATE EFFECT TO THE ACT VIOLATE ARTICLE 4, § 27 OF THE 1963 MICHIGAN CONSTITUTION BECAUSE SENATE BILL NO. 652 FAILED TO OBTAIN TWO-THIRDS VOTE OF THE MEMBERS OF THE HOUSE OF REPRESENTATIVES?

INTRODUCTION

Plaintiffs primarily challenge the constitutionality of 2013 PA 164 ("the Act") shifting the jurisdiction of the Court of Claims from the 30th Judicial Court to the Court of Appeals as violative of the separation of powers doctrine under the state constitution and the due process clauses under the federal and state constitutions. Under the doctrine of the separation of powers, no branch of governmental may encroach under the powers of another. The 1963 Michigan Constitution created the Court of Appeals as an intermediate appellate court between the Supreme Court and circuit courts of general jurisdiction and other legislatively-created courts of limited jurisdiction, such as the Court of Claims. Therefore, under the separation of powers doctrine, the Legislature does not have the power to interfere with the essential constitutionally-created jurisdiction of the Court of Appeals as an intermediate appellate court. Further, the Court of Appeals exercises its appellate jurisdiction by reviewing judgments and decrees of inferior courts, including the Court of Claims. By shifting the jurisdiction of the Court of Claims to the Court of Appeals, the Act thus creates the situation whereby the Court of Appeals, acting simultaneously as an appellate court and a lower court subject to appellate review, reviews itself. Moreover, elected judges on the Court of Appeals cannot hold incompatible offices by serving as permanent members of a lower court itself subject to appellate review. This constitutes a fundamental violation of Plaintiffs' due process rights under the federal and state constitutions to an objective, deliberative, and reasoned adjudication before an independent and neutral decision-maker.

STATEMENT OF FACTS

Since 1978, the Court of Claims has operated as a function of the Ingham Circuit Court (the 30th Judicial Circuit) whose central location was seen as neutral court providing a fair hearing for litigants, as well as saving the State of Michigan money by alleviating the need for the Attorney General to defend cases in different circuit courts across the state. Cases opened in the Court of Claims were thus assigned to a 30th Judicial Circuit Court judge, or any judge the State Court Administrator assigned to that circuit to exercise the jurisdiction of the Court of Claims.

Accordingly, pursuant to the Court of Claims Act in effect, Plaintiff Thomas R. Okrie, representing other similarly situated state and public school employees, filed a Verified Class Action Complaint against the State of Michigan (Okrie et al. v State of Michigan et al., No. 13-93-MK) with the Ingham Circuit Court functioning as the Court of Claims on July 9, 2013. Plaintiffs alleged that, under the doctrine of promissory estoppel, the State breached its contract with them by subjecting their state pensions to taxation pursuant to 2011 PA 38 after they had made irrevocable retirement and employment termination decisions based upon the State's promise that their pensions were exempt from state and local income tax. The case was assigned by blind draw to Ingham Circuit Court Judge Rosemarie Aquilina.

On August 9, 2013, the State filed a Motion for Summary Disposition under MCR 2.116(C)(8) and (C)(10), claiming that there was no breach of contract because the Legislature had the exclusive power over taxation, and thus the Office of Retirement Services (ORS) could not enter into a contract binding the State as to a tax-exempt pension. On August 14, 2013, Plaintiffs filed a Motion for Summary Disposition pursuant to MCR 2.116(C)(10) and MCR 2.116(I)(1) claiming that there was no genuine issue of material fact that the State breached its contract under the doctrine of promissory estoppel based upon the Supreme Court's decision in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980). Plaintiffs also filed a Motion for Class Certification, stating this case is suitable for treatment as a class action. Subsequently, on September 26, 2013, Plaintiffs filed an Amended Verified Class Action Complaint with the Court of Claims, adding claims for unjust enrichment and breach of employment contract under state law, as well as claims under the state and federal constitutions for violations of the Contract Clause, the Takings Clause, and Substantive and Procedural Due Process.

On October 9, 2013, Judge Aquilina held a hearing before a packed court-room of retired state and public school employees in Ingham Circuit Court on the parties' Motions for Summary Disposition and Plaintiffs' Motion for Class Certification. Before hearing these motions, Judge Aquilina granted Plaintiffs' oral motion to file their Amended Verified Class Action Complaint. After hearing argument from counsel, Judge Aquilina stated that her decision would be immediately appealed as it presented difficult legal issues that required diligent analysis, and that she would issue a written opinion before December 4, 2013.

Thereafter, on October 24, 2013, Senate Bill No. 652 was introduced and referred to the Committee on Judiciary, proposing to shift the jurisdiction of the Court of Claims to the Court of Appeals. On October 30, 2013, a substitute bill was reported favorably by the Committee, with a recommendation for immediate effect.[1] After suspending the rules, the Senate passed the bill with immediate effect (26 in favor, 11 opposed, 1 excused) on October 30, 2013. Exercising her constitutional right of protest under Const 1963, art 4, § 18, Senator Whitmer protested against the whirlwind passage of Senate Bill 652, stating in part:

By moving the jurisdiction of our state's Court of Claims from the Ingham County Circuit Court, where it stands now, to a Court of Appeals handpicked by the Supreme Court, you are unnecessarily interfering with judicial oversight and trying to shift power from judges elected by the people to judges appointed by partisans. [Journal of the Senate (October 30, 2013), p 1690]

The bill then went to the House of Representatives, which referred it to the Committee on Governmental Operations on October 31, 2013.

The next day, on November 1, 2013, Plaintiffs filed a Motion for Summary Disposition pursuant to MCR 2.116(C)(10) and MCR 2.116(I)(1) as to the claims added in the Amended Verified Class Action Complaint regarding the breach of an employment contract and unjust enrichment under state law, as well as the claims under the state and federal constitutions for violations of the Contract Clause, the Takings Clause and the Substantive and Procedural Due Process Clauses. The Court of Claims scheduled a hearing on Plaintiffs' Motion for Summary Disposition for 9:00 a.m. on Friday, December 13, 2013.

On November 5, 2013, the House Committee on Governmental Operations recommended Senate Bill No. 652 without amendment on November 5, 2013, and the bill immediately went for a public hearing in the House.[2] Despite public opposition, Senate Bill No. 652 was passed with immediate effect, even though it failed to obtain two-thirds of the votes in the House of Representatives as required by the Michigan Constitution (57 votes in favor, 52 votes opposed).

On the same day, November 5, 2013, Judge Aquilina also entered an Opinion and Order denying Plaintiffs' Motion for Summary Disposition on the breach of contract claim based upon the doctrine of promissory estoppel, but granting the State's Motion for Summary Disposition as to this cause of action, and dismissing Plaintiffs' Motion for Class Certification "as moot." The next day, November 6, 2013, the State filed another Motion for Summary Disposition as to the claims asserted in Plaintiffs' Amended Verified Class Action Complaint.

On November 7, 2013, Senate Bill No. 652 returned to the Senate, where it was enrolled. On November 12, it was presented to Governor Snyder, who signed it into law on November 13, 2013 as Public Act 164 of 2013, with immediate effect.

On November 14, 2013, the day after the bill was signed, the Michigan Supreme Court, pursuant to the Act, issued an order appointing four judges of the Court of Appeals to sit on the Court of Claims for terms expiring May 1, 2015. They are: Hon. Michael J. Talbot (Court of Appeals District 1); Hon. Pat M. Donofrio (Court of Appeals District 2); Hon. Deborah A. Servitto (Court of Appeals District 2); and Hon. Amy Ronayne Krause (Court of Appeals District 4). Judge Talbot was appointed chief judge.

Because the Court of Appeals is "one of the highest volume intermediate appellate courts in the country," and not a trial court, see http://courts.mi.gov/courts/coa, it is not equipped with a case management system to handle administratively the filings of a trial court, such as the Court of Claims. Thus, on November 14, 2013, Michael Talbot, Chief Judge of the Court of Claims, issued Administrative Order 2013-1:

Effective November 12, 2013, the staff of the Thirtieth Circuit of Michigan, who have been deputized by the Clerk of the Court of Claims, are authorized to process all pleadings, documents, and fees; and to enter orders and opinions, on behalf of the Court of Claims for a period of 60 days from the Clerk's Certification of this order, or until further order of this Court.

In addition, on November 14, 2013, Judge Talbot as Chief Judge of the Court of Claims issued the following order regarding "All Matters Pending in the Court of Claims as of November 13, 2013:

Proceedings in all matters pending in the Court of Claims as of the November 12, 2013, effective date of 2013 PA 164 are STAYED for a period of 30 days from the date of the clerk's certification of this order.

Jerome W. Zimmer, Jr., Clerk of the Michigan Court of Appeals, acting as the Clerk of the Court of Claims, certified the order on November 14, 2013.

Thereafter, on November 25, 2013, Plaintiffs timely filed a Motion for Reconsideration of Judge Aquilina's November 5, 2013 Opinion and Order with the Court of Appeals acting as the Court of Claims, in compliance with the Court's November 14, 2013 orders.

Plaintiffs now challenge the constitutionality of 2013 PA 164 shifting the jurisdiction of the Court of Claims to the Court of Appeals. For present purposes, the key elements of 2013 PA 164 are the following:

· the transfer of the Court of Claims from the jurisdiction of the 30th Circuit Court to the Court of Appeals

· the designation by the Supreme Court of four Court of Appeals' judges to sit as judges on the Court of Claims for two-year renewable terms

· the transfer of all matters pending in the Court of Claims as of the amendatory act's effective date (November 12, 2013) to the clerk of the Court of Appeals, acting as the clerk of the Court of Claims, for assignment to a Court of Appeals judge sitting as a Court of Claims judge.

· the immediate effect given to the Act

LEGAL STANDARD

Whether a violation of the separation of powers doctrine under the state constitution, or the due process clauses under the federal and state constitutions, has occurred is a question of law. While the Legislature and the Governor have "the sole and exclusive right to the law-making power in the government of our State," the Supreme Court has the "separate duty of constitutional construction as it relates to legislation creating the court of appeals." In re Districting for Court of Appeals, 372 Mich 227, 228 (1964).

ARGUMENT

I. TRANSFERRING THE COURT OF CLAIMS FROM THE 30TH JUDICIAL CIRCUIT (INGHAM CIRCUIT COURT) TO THE COURT OF APPEALS PURSUANT TO 2013 PA 64 VIOLATES THE DOCTRINE OF THE SEPARATION OF POWERS UNDER CONST 1963, ART 3, § 2.

A. The Separation of Powers Doctrine

The Michigan Constitution "divides the powers of government among three branches of government and commits to each branch exclusive exercise of the functions properly belonging to it, except as otherwise provided in the Constitution." In re 1976 PA 267, 400 Mich 660, 662 (1977), citing Const 1963, art 3, § 2; see also Const 1963, art 6, § 1.[3] "This separation of powers is designed to preserve the independence of the three branches of government." In re 1976 PA 267, supra at 662. Under the doctrine of the separation of powers, judicial power, as distinguished from executive and legislative power, is thus vested in the courts as a separate entity. Gray v Clerk of Common Pleas, 366 Mich 588, 594-595 (1962). Because the judiciary is an independent department of the State, it derives none of its judicial powers from either the legislative or executive branches, and courts cannot be hampered or limited in the discharge of their functions by the either of the other branches of government. Id. Since judicial powers are conferred by the Michigan Constitution, and not by a legislative act, the Michigan Constitution confers upon the judiciary all the authority necessary to exercise its powers as a coordinate branch of government. Id.; see also Judicial Attorneys Association v State of Michigan, 459 Mich 291, 300 (1998), citing Gray, supra. If there is any ambiguity as to the duties imposed upon a judicial officer, "the doubt should be resolved in favor of the traditional separation of governmental powers." Township of Dearborn v Dearborn Township Clerk, 334 Mich 673, 689 (1952), quoting Civil Service Commission v Auditor General, 302 Mich 673, 683 (1942).

B. The Constitutional Creation of the Court of Appeals as an Intermediate Appellate Court

The 1963 Michigan Constitution created the Court of Appeals as an intermediate appellate court between the Supreme Court and circuit courts of general jurisdiction and legislatively-created courts of limited jurisdiction. Specifically, Article 6, § 1 of the 1963 Michigan Constitution 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 to and serving in each house.

Further, under the Michigan Constitution, "[t]he jurisdiction of the Court of Appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the Supreme Court." Const 1963, art 6, § 10.

As a result, the Supreme Court was no longer "the only appellate court in Michigan," but became "the Court of last resort in a bi-level appellate system." People v Tyrer, 385 Mich 484, 485 (1971). "The principal function of the Court of Appeals is to hear appeals of right from the trial courts of general jurisdiction." Id. Pursuant to MCL 600.308, the Court of Appeals has jurisdiction of appeals, whether by right or upon leave granted, from all final judgments from the circuit courts and other lower courts, such as the Court of Claims. See MCR 7.203. In addition to the appellate jurisdiction granted by MCL 600.308, the Court of Appeals is authorized to hear certain original actions, pursuant to MCL 600.310, which provides:

The court of appeals has original jurisdiction to issue prerogative and remedial writs or orders as provided by rules of the supreme court, and has authority to issue any writs, directives and mandates that it judges necessary and expedient to effectuate its determination of cases brought before it.

See Lapeer County Clerk v Lapeer Circuit Judges, 465 Mich 559, 566-567 (2002) ("In several court rules, we have exercised that statutory authority to enable the Court of Appeals to exercise supervisory control jurisdiction.")

While the Court of Appeals was conceived as a constitutional court exercising appellate jurisdiction, see In re Application of Governor, Jurisdiction of Court of Appeals, 381 Mich 1 (1968) (split opinions providing no answer whether the Court of Appeals had the jurisdiction to entertain or to designate one of its members to sit as a one-man grand juror),[4] the Court of Claims was created by the Legislature, and not the Michigan Constitution, and so "derives its powers only from the act of the Legislature and subject to the limitations therein imposed." Taylor v Auditor General, 360 Mich 146, 150 (1960), overruled in part by Parkwood Ltd Dividend Hous Ass'n v State Hous Dev Auth, 468 Mich 763 (2003); Littsey v Bd. of Governors of Wayne State University, 108 Mich App 406 (1981). Being a court of legislative creation, the Court of Claims has explicit and limited statutory powers. Lim v Dep't of Transportation, 167 Mich App 751, 753 (1988). Nevertheless, because the Court of Claims is considered a division of the circuit court, parties before it are thus entitled to an appeal of right to the Court of Appeals from final orders or judgments of the Court of Claims, and the Court of Appeals may also grant leave to appeal of an order of the Court of Claims that is not final. MCR 7.203.

Because the Michigan Constitution vested judicial power exclusively in one court of justice, the Constitution thereby incorporated the concept that the State has a single court with several divisions, each devoting its attention to a certain level of judicial administration. See 10 Michigan Law Practice 2d Courts § 41, Chapter 3: Creation and Legislative Control, n. 1984, citing Constitutional Comment on Mich Const, art 6, § 1. Thus, unless authorized by the Michigan Constitution, "the legislature cannot abolish, reorganize, divide, or consolidate constitutional courts, nor alter, destroy, increase, or diminish the essentials of the jurisdiction, functions, or judicial powers so conferred upon them." 10 Michigan Law Practice 2d Courts § 41, Chapter 3: Creation and Legislative Control, n 1988 citing In re Manufacturer's Freight Forwarding Co, 294 Mich 57 (1940); In re Brant's Estate, 269 Mich 201 (1934); and Heath v Circuit Judge for Kent County, 37 Mich 372 (1877). Accordingly, while the Legislature may create courts, it cannot diminish, enlarge or interfere with the jurisdiction of a court whose fundamental jurisdictional character is set out in the constitution itself. See Marbury v Madison, 5 US 137 (1803).

C. Shifting the Jurisdiction of the Court of Claims to the Court of Appeals Violates the Doctrine of the Separation of Powers under the Michigan Constitution.

1. The Act interferes with the fundamental jurisdictional character of the Court of Appeals as an intermediate appellate court under Const 1963, art 6, § 1.

As a preliminary observation, a court consists in its jurisdiction and functions, not in its title or name. Kates v Reading, 254 Mich 158, 162 (1931). Further, an inferior court is one that is lower in rank and authority. Swift v Wayne Circuit Judges, 64 Mich 479, 481 (1887). An appellate court is primarily a court of review, exercising its appellate jurisdiction over judgments of lower trial courts.[5] Created by the Michigan Constitution as an intermediate appellate court, the Court of Appeals thus stands between the Supreme Court and the trial courts. By shifting the jurisdiction of the Court of Claims to the Court of Appeals, the Act, however, erodes the clear constitutional division of judicial power between a superior, constitutionally-created appellate court and an inferior trial court whose orders, judgments and decrees are subject to appellate review. In so doing, the Act creates the unprecedented situation of having the Court of Appeals act simultaneously as an intermediate appellate court and a trial court of limited jurisdiction whose orders, judgments and decrees are subject to appellate review by the Court of Appeals. The elimination of the constitutional distinction between a higher court reviewing a lower court and the lower court subject to appellate review by a higher court puts the Court of Appeals in the constitutionally impermissible position of reviewing itself. Simply put, there is no legal authority to justify such an anomalous situation. For these reasons, this Court should thus find that the Act interferes with the fundamental jurisdictional character of the Court of Appeals set forth in the Michigan Constitution in violation of the doctrine of the separation of powers under Const 1963, art 3, § 2.

2. Elected judges of the Court of Appeals cannot simultaneously be members of the Court of Appeals and assigned or appointed on a permanent basis for renewable two-year terms as members of a lower court subject to appellate review by the Court of Appeals

The Michigan Constitution also forbids an elected judge of the Court of Appeals from being simultaneously a member of the Court of Appeals, a constitutional appellate court, and a permanent member of the Court of Claims, a legislatively-created trial court of limited jurisdiction whose decisions are subject to review by the Court of Appeals. By having the Supreme Court designate the four judges on the Court of Appeals to serve simultaneously on a permanent basis for renewable two-year terms as members of the Court of Claims, the Act interferes with the judicial independence of the Court of Appeals to perform its constitutionally mandated duties as an intermediate appellate court that is separate and apart from the trial court being reviewed. See John V. Orth, Options for An Independent Judiciary in Michigan (Symposium, February 9, 2010): Judicial Selection - A View From The Outside, 56 Wayne L Rev 715, 718-719, n. 18-21 (Fall 2010) (footnotes omitted).

In this regard, the Act creates a particular separation of powers problem regarding the interplay between the Court of Appeals and the Court of Claims, as constituted by the Act. Specifically, the Code of Judicial Conduct, Canon 4(c) provides that "[a] judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges." Assuming that an elected judge on the Court of Appeals could also simultaneously be designated by the Supreme Court to serve on a permanent basis as a member of the Court of Claims for a renewable two-year term, the question necessarily arises whether such a judge, performing dual offices and functions, could consult with the Court of Appeals' staff personnel (i.e., staff attorneys and the clerk's office) or with other judges on the Court of Appeals to aid said judge in carrying out his or her adjudicative responsibilities as a Court of Claims judge. The Code of Judicial Conduct would allow it, yet it undermines any viable distinction between the Court of Appeals, a higher constitutionally-created appellate tribunal reviewing lower court decisions, and the Court of Claims, an inferior statutorily created court of limited jurisdiction subject to appellate review by the Court of Appeals. This again would put the Court of Appeals in the constitutionally untenable position of reviewing itself, eroding the constitutional distinction between an appellate court independently reviewing a lower court and the lower trial court itself subject to review.

Based upon the foregoing, the Legislature's transference of the jurisdiction of the Court of Claims from the 30th Judicial Circuit to the Court of Appeals, statutorily directing that four of its judges, as designated by the Supreme Court, serve on a permanent basis as judges on the Court of Claims for renewable two-year terms, interferes with the judicial power exercised by the Court of Appeals under Const 1963, art 6, § 1, in violation of the doctrine of the separation of powers under Const 1963, art 3, § 2.

II. THE ACT VIOLATES ARTICLE 6, § 8 OF THE MICHIGAN CONSTITUTION BY DIRECTING JUDGES ON THE COURT OF APPEALS TO SIT ON A PERMANENT BASIS FOR TWO-YEAR RENEWABLE TERMS AS APPOINTED MEMBERS OF THE COURT OF CLAIMS, AND THUS HOLD INCOMPATIBLE OFFICES IN VIOLATION OF MCL 15.182.

The Michigan Constitution of 1963 requires that judges on the Court of Appeals be elected by district. Const 1963, Art 6, § 8. The statute that sets the eligibility requirements for judge on the intermediate appellate court implements this constitutional provision. See MCL 168.409 et seq. Thus, if a Court of Appeals judge is elected to fill that judicial office in a different manner, it violates the Michigan Constitution. In re Districting for Court of Appeals, 372 Mich 227 (1964) (unanimously concluding that elective districts for judges of Court of Appeals had to consist of a county or counties, and the splitting of a county or counties would be violative of the Constitution and election districts must be as nearly as possible of equal population).

It goes without saying that the Legislature may not repeal a constitutional provision by statute. To amend the Michigan Constitution requires a voter initiative or a constitutional convention. In short, because the plain language of the Michigan Constitution controls, any doubts about whether the Act may allow the Supreme Court to appoint or assign a judge elected to sit on the Court of Appeals to sit at the same time on a permanent basis for a renewable two-year term as a member of the Court of Claims must be given to the voters of the State of Michigan to decide.

For that reason, elected judges of the Court of Appeals cannot sit individually on a legislatively-created, non-constitutional court, such as the Court of Claims. Simply stated, constitutional limitations prevent the Legislature from directing the Supreme Court to assign elected appellate judges of the Court of Appeals on a permanent basis for two-year renewable terms as unelected members of the Court of Claims performing functions that pertain to a trial judge sitting on a non-constitutional lower court. Once elected to serve as judges on the Court of Appeals, the Michigan Constitution does not permit them to sit on a permanent basis as members on another court, and thereby hold incompatible offices in violation of the Incompatible Offices Act, MCL 15.182.

Appellate judging on the intermediate appellate court is the sole office of judges on the Court of Appeals. Thus, judging cases with other appellate judges is their sole elective function for which they are qualified to serve in office under the Constitution. Moreover, as appellate judges on a constitutionally-created court, Court of Appeals' judges sit on three-member panels hearing and deciding cases collectively as a body, and not individually as a trial judge. See In re Application of Governor, supra, 381 Mich at 1. As such, Court of Appeals' judges are not elected to serve as a single appellate judge acting alone, nor are they elected to serve as permanent members on another court or to fulfill any other incompatible judicial office on a permanent basis. Accordingly, the Constitution does not allow elected judges of the Court of Appeals, as members of a constitutional court, to be assigned or appointed to sit individually on a permanent basis for two-year renewable terms on a legislatively-created court, non-constitutional court, such as the Court of Claims. See Taylor, supra, 360 Mich at 150; Wayne County Chief Executive v Governor, 230 Mich App 258, 272 (1998).

In this instance, the proper remedy is to invalidate the Act, entering an order granting quo warranto since the Court of Appeals' judges assigned by the Supreme Court on a permanent basis to be judges on the Court of Claims for renewable two-year terms were not properly elected to sit on that court. Simply stated, when judges are not elected to serve as permanent members of a court or to fill a judicial office on a permanent basis without having met the election requirements, they are exercising unauthorized judicial power. For that reason, any statute purporting to confer power on a judge to serve as a permanent member of a court that requires a judge on that court to be elected to that court in order to fill the designated judicial office on a permanent basis is unconstitutional. In such a situation, the proper remedy is to issue a writ of quo warranto against the judge to direct that he or she not fill the office. St Joseph Township v Berrien County Board of Supervisors, 363 Mich 295 (1961) (trial court properly refused to grant injunction to stop election because legal remedy of quo warranto available to address allegation that proper election procedure not followed), Finlayson v West Bloomfield Township, 320 Mich 350 (1948) (plaintiff's remedy to test the validity of township election was by quo warranto); Petition of Crawford, 311 Mich 70 (1945), (where plaintiff requested court to correct election irregularities, the quo warranto cause of action is an adequate remedy at law).

III. THE ACT VIOLATES ARTICLE 6, § 8 OF THE MICHIGAN CONSTITUTION BY TRANSFERRING THE FUNCTIONS OF THE 30TH JUDICIAL CIRCUIT COURT, A CONSTITUTIONAL COURT, TO THE COURT OF APPEALS.

The 1963 Michigan Constitution recognized the circuit court as a constitutional court of general jurisdiction. Const 1963, art 6, § 1. Because circuit courts are created by the Michigan Constitution, their jurisdiction, whether original or appellate, may not be transferred to local courts created by the Legislature. 10 Michigan Law and Practice 2d, Courts, § 44, citing Allen v Circuit Judge for Kent County, 37 Mich 474 (1877). Specifically, pursuant to Article 6, § 13 of the 1963 Michigan Constitution, the Legislature may only determine "what causes may be instituted in circuit courts, not control over the general powers of such courts." 10 MLP 2d, Courts, § 44, citing Mooney v Unemployment Compensation Com, 336 Mich 344 (1953). Because the Court of Claims functions as a division of the circuit court, divesting the circuit court of jurisdiction over cases formerly granted to the Court of Claims violates the constitutional limits on the Legislature's power to prescribe the jurisdiction of a constitutional court. Accordingly, transferring functions that are under the sole, exclusive jurisdiction of the circuit court violates these constitutional provisions, thus diminishing the constitutional power of the circuit court afforded by Const 1963, art 6, § 13.

Further, by mandating that Court of Appeals' judges serve as permanent members for renewable two-year terms on the Court of Claims, the Act diminishes the jurisdiction of the circuit court in violation of the Michigan Constitution. Indeed, the Act enlarges the jurisdiction of the Court of Appeals at the same time that it diminishes the jurisdiction of the circuit court, in violation of the Michigan Constitution.

Finally, by creating a separate Court of Claims outside of the circuit court's jurisdiction, the Legislature has impermissibly modified the constitutional scheme. In fact, under the statutory scheme that the Legislature has modified, the jurisdiction to hear Court of Claims cases (against the State) could be decided either by the Court of Claims sitting in Ingham County (under the 1978 statute) or by the Circuit Court judge in the county in which the case arose by the filing of a suit by a Plaintiff residing in that county. If the Legislature wished to divest the Ingham County Circuit Court of having any special role in deciding Court of Claims cases against the State, it was free to modify or rescind the 1978 statutory enactment. However, to create lawfully a separate Court of Claims, the Legislature had to preserve intact the role of the circuit court judges in deciding Court of Claims cases, such as transferring original jurisdiction of cases filed against the State to a circuit court judge in a county where the plaintiff lives. But to create a wholly new trial court, as the Act appears to do, requires a constitutional amendment, altering or modifying the broad grant of jurisdiction given by the Michigan Constitution to the circuit court. For that reason, the Act runs afoul of the provisions that make the Court of Claims a division of the circuit court under the 1963 Michigan Constitution.

IV. TRANSFERRING THE COURT OF CLAIMS FROM THE 30TH JUDICIAL CIRCUIT TO THE COURT OF APPEALS PURSUANT TO THE ACT VIOLATES PLAINTIFFS' DUE PROCESS RIGHTS TO AN OBJECTIVE, DELIBERATIVE, AND REASONED ADJUDICATION BEFORE A NEUTRAL DECISION-MAKER IN VIOLATION OF US CONST, AM XIV, AND CONST 1963, ART 1, § 17.

Besides the violations of Article 3, § 2 and Article 6, §§ 1 and 8 under the state constitution, the Act also violates the due process clauses under the state and federal constitutions. Both the Michigan Constitution and the United States Constitution preclude the government from depriving a person of life, liberty, or property without due process of law. US Const, Ams V, XIV; Const 1963, art 1, sec 17; Hinky Dinky Supermarket, Inc v Dep't of Community Health, 261 Mich App 604, 605 (2004). The essence of due process is to ensure fundamental fairness. Lassiter v Dep't of Social Services of Durham Co, 452 US 18, 24 (1981). In re Brock, 442 Mich 101, 111 (1993), In re Adams Est, 257 Mich App 230, 233-234 (2003). In basic terms, both the federal and state constitutions reflect a commitment to objective, deliberative, and reasoned adjudication before a neutral decision-maker.

By altering the jurisdictional character of the Court of Appeals as an intermediate appellate court, and the circuit court as a court of general jurisdiction whose orders, judgments and decrees are subject to appellate review in a constitutionally-tiered judicial system under Const 1963, art 6, § 1, the Act violates Plaintiffs' due process rights to an objective, deliberative and reasoned adjudication before a neutral decision-maker in violation of both the federal and state constitutions. This is particularly true of the cases that were pending in the Court of Claims before randomly assigned judges of the Ingham Circuit Court when Senate Bill No. 652, after a whirlwind process, was enacted into law and given immediate effect. Indeed, this accelerated process, lacking any deliberation, smacks of forum shopping by Governor Snyder, a party defendant in this and other lawsuits against the State, seeking to reassign pending cases to judges potentially more favorable to him.

In addition, given that the present case against the State of Michigan presents complex questions of law that eventually will be resolved by appellate courts, as Judge Aquilina perceptively recognized, the Act violates Plaintiffs' due process rights to have a reasoned and fair adjudication before a neutral appellate decision-maker. Here, the Act impermissibly entrusts the Supreme Court with the power to handpick the four Court of Appeals' judges to serve simultaneously on a permanent basis for renewable two-year terms as members of the Court of Claims. Besides eroding the constitutional separation between the Court of Appeals as an intermediate appellate court and lower courts subject to appellate review, the Act predetermines the judges in those cases against the State that may come before the State's highest court in the event of an appeal. By designating the four Court of Appeals' judges who will also serve two-year renewable terms on a permanent basis as appointed members of the Court of Claims, the Court has thus called into question the existence of an objective, deliberative and reasoned adjudication before a neutral appellate decision-maker from the start.

V. GIVING IMMEDIATE EFFECT TO SENATE BILL NO. 652 VIOLATES ARTICLE 4, § 27 OF THE 1963 MICHIGAN CONSTITUTION BECAUSE IT FAILED TO OBTAIN TWO-THIRDS VOTE OF THE MEMBERS OF THE HOUSE OF REPRESENTATIVES.

Generally, the Michigan Constitution makes bills effective 90 days after the end of the legislative session in which they are passed. Specifically, Article 4, § 27 of the Michigan Constitution provides:

No Act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by two-thirds vote of the members elected to and serving in each house."

Thus, the general rule is subject to the immediate effect exception that permits the Legislature to "give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house." Const 1963, art 4, § 27 (Emphasis added.) In Frey v Dep't of Mgmt & Budget, 429 Mich 315, 333 (1987), the Supreme Court discussed the framers' intent for this constitutional provision as follows:

Several delegates expressed concern that granting the Legislature the power to give immediate effect to any law would endanger the referendum because it would not give the people time to gather signatures for petitions to prevent the law from going into effect. Also, there was the danger that statutes would be passed without giving people adequate time to become acquainted with the statutes and adjust to them before they went into effect. To reduce this danger, the framers decided to maintain the requirement that no act passed by the Legislature could take immediate effect unless passed by a two-thirds vote of the elected members of each house. (Emphasis added.)

Here, the Michigan Legislature has ignored the constitutional requirement for the Act to take immediate effect. Specifically, the vote in the House of Representatives (57 votes in favor, 52 opposed) failed to satisfy the two-thirds vote requirement for an act to take immediate effect. Simply put, the Legislature brazenly violated the Michigan Constitution's express limitation on its power to give laws immediate effect.

Although this Court ruled in Hammel v Speaker of House of Representatives, 297 Mich App 641, 651 (2012), lv den 493 Mich 973 (2013) that "[t]he constitutional provisions at issue permit the manner in which they are applied to be determined by adoption of the rules of House," the recent decision of the Sixth Circuit panel in City of Pontiac Retired Employees Assoc v Schimmel, 726 F3d 767 (CA6 2013), rehearing en banc granted and vacated by 2013 U.S. App. LEXIS 22856 (6th Cir. Nov. 8, 2013), exposed this Court's reasoning in Hammel as thoroughly specious. Specifically, City of Pontiac Retired Employees Association concerned whether the Emergency Manager Bill, 2012 PA 436, was lawfully given immediate effect because it was passed with less a two-thirds majority immediately after the citizens of the State of Michigan had just rejected a previous incarnation of the law in a democratically-initiated referendum. There, Judge Gwin, writing the majority opinion, noted:

This reasoning makes little sense. The Michigan Constitution expressly limits the Legislature's power to give laws immediate effect. Yet, the Michigan Court of Appeals says that the Michigan Legislature has the power to decide whether that constitutional limitation applies? Alternatively, the court of appeals also made the illogic finding that the plaintiffs failed to show irreparable harm because the "plaintiffs' ability to vote and the effectiveness of their vote have not been impaired." [726 F3d at 775].

As a result, the Sixth Circuit panel remanded the case to the district court to "consider whether the Michigan Supreme Court would overrule Hammel." Id. As Judge Gwin noted:

There is good reason to believe it would. The Michigan constitutional provision seems obviously directed at restricting its Legislature's ability to give bills immediate effect unless a real two-thirds of the elected members in each house agree. And the court of appeals's belief that house members do not need to vote on immediate effect if they have had a chance to vote on the underlying legislation turns Michigan Constitution, article IV, § 27 on its head. [Id.]

Here, as in the Emergency Manager case, Michigan should be governed by the democratic rule of law, not the power of the fait accompli.

CONCLUSION AND RELIEF

Based upon the foregoing, Plaintiffs respectfully request that this Court (1) stay all proceedings in the Court of Claims of the present case and all pending cases until this Court resolves the constitutional challenges to 2013 PA 164; (2) find that 2013 PA 164 violates the doctrine of separation of powers under the state constitution and Plaintiffs' rights to due process under the state and federal constitutions by transferring the Court of Claims from the 30th Judicial Circuit (Ingham Circuit Court) to the Court of Appeals; (3) remand this case to the jurisdiction of Judge Aquilina of the 30th Judicial Circuit for further proceedings in that forum; and (4) award attorney fees and costs to Plaintiffs, as well as any relief that this Court deems necessary as a matter of law and equity.

Respectfully Submitted,

LAW OFFICE OF GARY P. SUPANICH

__________________________

Gary P. Supanich (P45547)

Attorney for Plaintiffs

117 North First St., Suite 111

Ann Arbor, MI 48104

Dated: December 13, 2013 (734) 276-6561


[1] The Floor Summary and the Summary as passed by the Senate prepared by the Senate Fiscal Agency Bill Analysis completed on October 30, 2013 notes that "the Court of Appeals currently has excess capacity that could absorb the Court of Claims caseload without adding judgeships."

[2] According to the State Bar of Michigan:

The swift passage of this legislation did not allow the State Bar to advocate a position before the Legislature under the provisions of Michigan Supreme Court Administrative Order 2004-01, which restricts formal action on legislation until 14 days after notice has been posted on the State Bar website. (The 14-day waiting period typically is not a problem; the State Bar's normal timeframe for the adoption of policy position encourages effective notice to members, widespread input, and careful review and consideration of all viewpoints. . . .)

Although the State Bar could not take a position on SB 652, we were able to serve as a resource for timely, reliable information about the bill to interested members, sections, and local bars. Importantly, despite the bill's swift enactment, the legal community as a whole has been actively engaged in providing input. Two sections of the State Bar-the Appellate Practice Section and the Negligence Section-were able to adopt positions under their own bylaws in time to offer testimony before the House committee considering the bill. Their positions, and the subsequent position of the Elder Law section, can be accessed here. [www.michbar.org/eBlasts/advisory11-15-13.cfm]

For the record, it should be noted that these three sections of the State Bar opposed the legislation. In particular, the Appellate Practice Section, of which the undersigned attorney is a member, explained its opposing position as follows:

SB 652 would change the makeup of the Court of claims so it is made up of 4 Court of Appeals judges. However, the bill does not change or address MCL 600.308, which provides that final judgments of the Court of Claims are appealable of right to the Court of Appeals, thus, appeals from the Court of Appeals judges sitting as Court of Claims judges will be taken to the Court of Appeals, which is unprecedented. It is questionable how this will proceed, whether this comports with due process, how the appellate judges will be selected for this task, etc. The Section also believes that having four judges of the COA having to serve as trial court judges will also delay the processing of appeals. [Id.]

[3] As the United States Supreme Court recognized in Mistretta v United States, 488 US 361, 382 (1989), the constitutional separation of powers doctrine is concerned about "the encroachment or aggrandizement of one branch at the expense of the other." It is also concerned about disruptions of the "proper balance" between the branches that prevent one branch from "accomplishing its constitutionally assigned functions." Morrison v Olson, 487 US 654, 695 (1988). Unlike the United States Constitution, "the Michigan Constitution is not a grant of power to the Legislature . . . but rather, it is a limitation on general legislative power." Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311, 317-318 (1977).

[4] In his dissenting opinion in In re Application of Governor denying jurisdiction with which three other justices concurred, Justice O'Hara noted:

The judicial article (art. 6, § 8) also provides that "the supreme court may prescribe by rule that the court of appeals sit in divisions" and that Each such division shall consist of not fewer than three judges." We construe this section of the judicial article as some indication that judges of the appellate Court were not intended to sit individually as one-man grand jurors." [381 Mich at 12].

In his separate dissenting opinion denying jurisdiction, Justice Adams noted:

"It is beyond question that the purpose of the creation of the Court of Appeals was to create an intermediate appellate court to provide speedy, adequate, and final review of the majority of appeals of cases from the trial courts of this State." [381 Mich at 19.]

Justice Adams went on to point out that since its inception on January 1, 1965, the Court of Appeals "has found itself without the necessary manpower to execute that mission." Id. at 20.

[5] This was recognized by Chief Justice Young in his comments concurring with the Court's adoption of the amendments to MCR 2.112 and MCR 7.206 establishing special pleading requirements in actions alleging a violation of the Headlee Amendment:

The Court of Appeals is not a trial court. In Michigan, the circuit courts and other lower courts are generally vested with the responsibility of aiding the parties in developing the facts that define and ultimately decide their claims and defenses. Trial courts are designed efficiently to preside over discovery matters, pretrial hearings, and ultimately a trial on the merits. Those are the means that our system of justice uses to fully and efficiently develop the facts underlying the parties' claims. None of the tools available to our circuit courts for processing trials are available in the Court of Appeals. Thus, the Court of Appeals is poorly suited and equipped for factual development of new claims. The Court of Appeals primary function is revisionary; it reviews claims and defenses and assesses their merits well after the parties have had the opportunity fully to develop the facts in the lower courts. As such, the Court of Appeals is ill-equipped to evaluate the claims and defenses in a complex and fact-intensive original action without the assistance of the parties in developing the factual bases for their claims and defenses.

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