Lapeer Cty. Abstract & Title Co. v. LAPEER CTY. REG. OF DEEDS

• Decision Date: 22 December 2004
• Docket Number: No. 245911, No. 245912.
• Citation: 691 N.W.2d 11,264 Mich. App. 167
• Parties: LAPEER COUNTY ABSTRACT & TITLE COMPANY and Don Schultz, Plaintiffs-Appellees, v. LAPEER COUNTY REGISTER OF DEEDS, County of Lapeer, and Lapeer County Board of Commissioners, Defendants-Appellants. Lapeer County Abstract & Title Company and Don Schultz, Plaintiffs-Appellants, v. Lapeer County Register of Deeds, County of Lapeer, and Lapeer County Board of Commissioners, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

691 N.W.2d 11

264 Mich. App. 167

LAPEER COUNTY ABSTRACT & TITLE COMPANY and Don Schultz, Plaintiffs-Appellees, v. LAPEER COUNTY REGISTER OF DEEDS, County of Lapeer, and Lapeer County Board of Commissioners, Defendants-Appellants.

Lapeer County Abstract & Title Company and Don Schultz, Plaintiffs-Appellants, v. Lapeer County Register of Deeds, County of Lapeer, and Lapeer County Board of Commissioners, Defendants-Appellees.

Nos. 245911, 245912.

Court of Appeals of Michigan.

Submitted September 8, 2004, at Detroit.

Decided October 21, 2004, at 9:05 a.m.

Released for Publication December 22, 2004.

Plunkett & Cooney, P.C. (by Jeffrey C. Gerish and Patricia Irving Cwiek), Bloomfield Hills, for the plaintiffs.

Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. (by Marcia L. Howe), Farmington Hills, for the defendants.

Michael J. Hagerty, Lansing, for the Michigan Land Title Association.

Miller, Canfield, Paddock and Stone, P.L.C. (by Michael J. Hodge and Robert A. LeFevre), Lansing, for the Michigan Association of Registers of Deeds.

Before: SCHUETTE, P.J., and BANDSTRA and METER, JJ.

BANDSTRA, J.

This case presents questions of law regarding the authority of a county register of deeds to provide copies of real estate records it maintains to members of the public. The specific question raised is whether a register of deeds may condition the sale of such copies in microfilm format or at a reduced bulk rate on the purchaser's contractual agreement that it will not provide copies of the records to third parties. We hold that a county register of deeds has the authority to enter into such a contract under the statute pertaining to inspection of records in a register of deeds office, MCL 565.551, and related statutes. Further, we hold that the actions by the county of register of deeds here were not in violation of either the Headlee Amendment, Const 1963, art 9, § 31, or the Freedom of Information Act (FOIA), MCL 15.231 et seq.

Background Facts

The critical facts are essentially undisputed. Before the fall of 2001, plaintiffs were allowed to purchase paper copies of records from defendant Lapeer County Register of Deeds¹ office at a discounted bulk rate. However, in the fall of 2001, when plaintiffs sought to obtain microfilm copies, defendant refused to provide microfilm copies or the discounted bulk price unless plaintiffs would agree to a contract that included a restriction against their providing copies of the records obtained to third parties. The practical effect of this was apparently that plaintiffs could, like any member of the general public, obtain paper copies of records from defendant at the ordinary price, i.e., without a bulk rate discount, with no restriction on providing copies to third parties, but that they could not obtain microfilm copies or the benefit of a bulk rate price without agreeing to the proposed contract. Also, on December 7, 2001, plaintiffs made a request under the FOIA for microfilm copies of instruments recorded in defendant's office. Defendant denied this request.

Plaintiffs filed a complaint alleging, in pertinent part,² that defendant (1) violated MCL 565.551, the inspection of records act (IORA),³ by refusing to provide plaintiffs with microfilm copies of records, (2) violated the FOIA by denying plaintiffs' FOIA request, and (3) violated the Headlee Amendment, Const 1963, art 9, § 31, by charging fees for copies of documents that greatly exceeded the cost of providing the copies. These claims were decided on cross-motions for summary disposition.

With respect to the IORA claim, the trial court's order stated that defendant was allowed to respond to requests for records under MCL 565.551 by providing paper copies and that it was not required to provide microfilm copies. The order further prohibited defendant from conditioning the provision of records on how they could be used.⁴ Defendant appeals the latter part of this order.

The trial court granted summary disposition in favor of defendant on the FOIA and Headlee claims. In their cross-appeal, plaintiffs challenge those decisions and also challenge the portion of the trial court order allowing defendant to provide paper, rather than microfilm, copies of records.

Standard of Review

We review de novo the grant or denial of a motion for summary disposition. Monat v. State Farm Ins. Co., 469 Mich. 679, 682, 677 N.W.2d 843 (2004). Similarly, statutory interpretation is a question of law that we review de novo. Golf Concepts v. Rochester Hills, 217 Mich.App. 21, 26, 550 N.W.2d 803 (1996).

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Neal v. Wilkes, 470 Mich. 661, 665, 685 N.W.2d 648 (2004). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Draprop Corp. v. City of Ann Arbor, 247 Mich.App. 410, 415, 636 N.W.2d 787 (2001). The first criterion in determining legislative intent is the specific language of the statute. Rose Hill Ctr., Inc. v. Holly Twp., 224 Mich.App. 28, 32, 568 N.W.2d 332 (1997). "If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written." Wickens v. Oakwood Healthcare Sys., 465 Mich. 53, 60, 631 N.W.2d 686 (2001). "In reviewing the statute's language, every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory." Id.

Analysis

A. The IORA and Related County Authority Statutes

In connection with the alleged violation of the IORA, MCL 565.551, the trial court stated that "administrative authority must be affirmatively or plainly granted, for doubtful power does not exist" and that defendant "failed to point to any provision in [MCL 565.551] that authorizes [it] to impose any condition on the post sale use of the copied records." The trial court also stated that defendant "implicitly acknowledge[d] that there is no legal reason to impose any restriction on the resale of copies" because it allowed resale of paper copies of the records. The trial court concluded that, while defendant has no duty to sell microfilm copies, it has no authority to impose any restriction on their resale if it does so.

As noted earlier, defendant challenges this order because it limits defendant's ability to enter into "special arrangements" with customers, like plaintiffs, who want bulk rate paper copies or microfilm copies of records. Specifically, defendant challenges the provision of the order disallowing contracts by which purchasers are required to agree not to reproduce purchased copies for others to use. On the other hand, plaintiffs argue that the order impermissibly allows defendant to provide paper, not microfilm, copies of records.

The following provisions establish the statutory background for a party to obtain copies of records from a register of deeds office. The IORA provides:

(1) A register of deeds shall furnish proper and reasonable facilities for the inspection and examination of the records and files in his or her office, and for making memorandums or transcripts from the records and files during the usual business hours, to an individual having a lawful purpose to examine the records and files. However, the custodian of the records and files may make reasonable rules and regulations with reference to the inspection and examination of the records and files as is [sic, are] necessary to protect the records and files and to prevent interference with the regular discharge of the duties of the register of deeds.

(2) If an individual requests a reproduction of a record or file of a register of deeds, the register of deeds shall do 1 of the following, at the register of deeds' option:

(a) Reproduce the record or file for the individual pursuant to the records media act, [MCL 24.401 to MCL 24.403], using a medium selected by the register of deeds. Unless a different fee is provided for by law, the fee for a reproduction under this subdivision other than a paper copy shall not exceed the reasonable costs to the register of deeds.

(b) Provide equipment for the individual to reproduce the record or file pursuant to [MCL 24.401 to 24.403], using a medium selected by the register of deeds. Unless a different fee is provided for by law, the fee for a reproduction under this subdivision other than a paper copy shall not exceed the reasonable costs to the register of deeds.

(c) Authorize the individual to reproduce the record or file on the premises using equipment provided by that individual. This subdivision does not apply unless the individual requests authorization to reproduce the record or file using equipment provided by that individual.

(3) A register of deeds may prohibit the reproduction of an instrument temporarily left with the register of deeds to be recorded in the register of deeds' office. [MCL 565.551].

In addition, the Revised Judicature Act, MCL 600.2567(1)(b), provides that a register of deeds "is entitled" to a fee of "$1.00 per page" for "copies of any records or papers."

It appears to be undisputed that at all relevant times plaintiffs, like any member of the general public, could obtain paper copies of records from defendant at this $1 a page cost without agreeing to any restriction on the use of copies so obtained. The first issue we consider is whether defendant may condition the bulk sale of copies at a reduced rate or the sale of microfilmed copies on a party agreeing to restrictions on the uses of records purchased.

Defendant first argues that special arrangements of the type at issue constitute "reasonable rules and regulations" permitted by MCL 565.551(1). We disagree. As set forth above, MCL 565.551(1) generally pertains only to the in-office inspection of records, while subsection 2 pertains to the reproduction of these records. More specifically, the "reasonable rules and regulations" language, on...