Federated Ins. v. Oakland County Rd. Com'n
| Decision Date | 21 June 2006 |
| Docket Number | Docket No. 126886. Calendar No. 5. |
| Citation | 475 Mich. 286,715 N.W.2d 846 |
| Parties | FEDERATED INSURANCE COMPANY and Carl M. Schultz, Inc., Plaintiffs-Appellees, v. OAKLAND COUNTY ROAD COMMISSION, Defendant-Appellee. and Attorney General, Intervenor-Appellant. |
| Court | Michigan Supreme Court |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Kathleen L. Cavanaugh and Robert P. Reichel, Assistant Attorneys General, for the Attorney General.
Clark Hill, P.L.C. (by Elizabeth Jolliffe and Paul C. Smith), Detroit, for the Oakland County Road Commission.
At issue in this case is whether the Attorney General can appeal as an intervenor in this Court on behalf of the people and a state agency when the named losing parties did not themselves seek review in this Court. Notwithstanding the Attorney General's broad statutory authority to intervene in cases, we hold that to pursue such an appeal as an intervenor there must be a justiciable controversy, which in this case requires an appeal by an "aggrieved party." Because neither of the losing parties below filed a timely appeal, and because the Attorney General does not represent an aggrieved party for purposes of this case, there is no longer a justiciable controversy. Under such circumstances, the Attorney General may not independently appeal the Court of Appeals judgment. We therefore dismiss this appeal.
In 1988, Carl M. Schultz, Inc. (hereafter plaintiff), discovered that an underground storage tank and piping system located on its property had released petroleum into the soil. The Department of Natural Resources (DNR) directed plaintiff to take action to remedy this situation, and, in 1991, plaintiff began constructing an on-site treatment system. In 1992, the treatment system began operation, and, in 1993, the DNR approved plaintiff's site investigation work plan.
In 1991, defendant Oakland County Road Commission released petroleum on property adjacent to plaintiff's property. In 1992, plaintiff began to suspect that some of this petroleum had migrated onto its property. By 1995, the DNR concluded that at least some of the petroleum detected on plaintiff's property had originated from defendant's property. In 2000, plaintiff and its insurer, Federated Insurance Company, filed a cost-recovery action against defendant pursuant to provisions of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.20101 et seq., for the added costs associated with the cleanup of petroleum contaminants that had originated from defendant's property.
The trial court granted defendant's motion for summary disposition, concluding that the action was barred by the six-year limitations period found in the NREPA, and the Court of Appeals affirmed. 263 Mich.App. 62, 687 N.W.2d 329 (2004). On behalf of the people of the state and the Michigan Department of Environmental Quality (MDEQ) (the successor to the DNR), which had never been a party in the trial court proceedings or in the appeal in the Court of Appeals, the Attorney General then filed a timely application for leave to appeal in this Court as an intervening appellant. Plaintiffs, however, did not file a timely application for leave to appeal even though they "lost" under the Court of Appeals opinion. This Court granted the Attorney General's application for leave to appeal and denied plaintiffs' cross-application for leave to appeal. 472 Mich. 898, 696 N.W.2d 708 (2005).1
Defendant argues that the Attorney General lacks the authority to intervene to appeal the judgment of the Court of Appeals. Because this issue implicates the constitutional authority of the judiciary and the Attorney General, we review it de novo. Co. Rd. Ass'n of Michigan v. Governor, 474 Mich. 11, 14, 705 N.W.2d 680 (2005).
Following adjudication in the Court of Appeals that resulted in a published opinion, where the parties were plaintiffs Federated Insurance Company and Carl M. Schultz, Inc., and defendant Oakland County Road Commission, the Attorney General, representing the people of the state and the MDEQ, has now sought to appeal in this Court, even though neither of the losing parties in the Court of Appeals sought timely leave to appeal. The Attorney General argues that the Court of Appeals misconstrued MCL 324.20140(1)(a), a statute that the MDEQ frequently litigates. Resolution of whether this intervention and appeal are permissible implicates standing, the "aggrieved party" concept, and what constitutes a justiciable controversy.
As we indicated in Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 612, 684 N.W.2d 800 (2004), citing Lee v. Macomb Co. Bd. of Comm'rs, 464 Mich. 726, 734, 629 N.W.2d 900 (2001), standing refers to the right of a party plaintiff initially to invoke the power of the court to adjudicate a claimed injury in fact. In such a situation it is usually the case that the defendant, by contrast, has no injury in fact but is compelled to become a party by the plaintiff's filing of a lawsuit. In appeals, however, a similar interest is vindicated by the requirement that the party seeking appellate relief be an "aggrieved party" under MCR 7.203(A) and our case law.2 This Court has previously stated, "To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency." In re Estate of Trankla, 321 Mich. 478, 482, 32 N.W.2d 715 (1948), citing In re Estate of Matt Miller, 274 Mich. 190, 194, 264 N.W. 338 (1936).3 An aggrieved party is not one who is merely disappointed over a certain result.4 Rather, to have standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court's power. The only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case.5
With regard to the necessity of a justiciable controversy, it derives from the constitutional requirement that the judiciary is to exercise the "judicial power" and only the "judicial power."
In giving meaning to what the "judicial power" is in our Constitution, we explained in Nat'l Wildlife Federation, supra at 614-615, 684 N.W.2d 800:
The "judicial power" has traditionally been defined by a combination of considerations: the existence of a real dispute or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making.
Perhaps the most critical element of the "judicial power" has been its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute, and one in which the plaintiff has suffered a "particularized" or personal injury. [Citation omitted.][6]
The Attorney General's authority to intervene is found in two statutes.
MCL 14.101 states:
The Attorney General of the State is hereby authorized and empowered to intervene in any action heretofore or hereafter commenced in any court of the State whenever such intervention is necessary in order to protect any right or interest of the State, or of the people of the State. Such right of intervention shall exist at any stage of the proceeding, and the Attorney General shall have the same right to prosecute an appeal, or to apply for a re-hearing or to take any other action or step whatsoever that is had or possessed by any of the parties to such litigation.
Similarly, MCL 14.28 states:
The Attorney General shall prosecute and defend all actions in the supreme court, in which the state shall be interested, or a party; he may, in his discretion, designate one of the assistant attorneys general to be known as the solicitor general, who, under his direction, shall have charge of such causes in the supreme court and shall perform such other duties as may be assigned to him; and the attorney general shall also, when requested by the governor, or either branch of the legislature, and may, when in his own judgment the interests of the state require it, intervene in and appear for the people of this state in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested.
These statutes purport to provide the Attorney General with the authority to prosecute, defend, and intervene in certain "actions." But, this case ceased to be an "action" when the losing parties below (plaintiffs) failed to file a timely application for leave to appeal in this Court. Once plaintiffs' deadline for filing a timely application for leave to appeal expired, the case ceased to be a justiciable controversy.7 To the extent one might read MCL 14.101 or MCL 14.28 as allowing the Attorney General to prosecute an appeal from a lower court ruling without the losing party below also appealing, and without the Attorney General himself being or representing an aggrieved party, the statutes would exceed the Legislature's authority because, except where expressly provided,8 this Court is not constitutionally authorized to hear nonjusticiable controversies.9 Nat'l Wildlife Federation, supra at 614-615, 684 N.W.2d 800. To give these statutes such a reading would contravene an operative presumption of this Court that we presume...
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