Johnson v. White, Docket No. 241414

Citation682 N.W.2d 505,261 Mich. App. 332
Decision Date24 June 2004
Docket NumberDocket No. 241414,Docket No. 241992.
PartiesAmelia D. JOHNSON, a/k/a Amy Johnson, and Harvey C. Johnson, Plaintiffs-Appellees, v. Gregory Darnell WHITE, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Berecz & Klawiter, PLC, (by Marilyn Klawiter), St. Joseph, for the plaintiffs.

Varnum, Riddering, Schmidt & Howlett LLP (by Peter Armstrong), and Michael J. Steinberg and Kary L. Moss, and Lorray S.C. Brown and Lynelle D. Morgan, Grand Rapids, Detroit, Ann Arbor, for the defendant.

Before: SMOLENSKI, P.J., and SAWYER and BORRELLO, JJ.

SMOLENSKI, P.J.

Defendant violated the trial court's January 10, 2001, order granting plaintiffs grandparenting time when he moved his children to Colorado, thus circumventing plaintiffs' visitation. As a result, a judgment of contempt was entered against defendant. Defendant moved to vacate the court's order regarding grandparenting time, arguing that it was void ab initio pursuant to this Court's decision in DeRose v. DeRose, 249 Mich.App. 388, 643 N.W.2d 259 (2002), which held MCL 722.27b unconstitutional. Defendant asserted that because the grandparenting time order was void, the contempt order stemming from its violation was also void. The trial court denied defendant's motion to vacate the grandparenting time order, stating that the DeRose decision had no precedential value because, at the time, leave was pending before the Michigan Supreme Court and, therefore, the decision was not final. The court also refused to vacate the contempt judgment. Defendant appealed from both orders, and the appeals were consolidated.

Subsequently, the trial court waived jurisdiction in this matter in order for plaintiffs to seek enforcement of their grandparenting time in Colorado. Although this action renders the issue of the validity of the grandparenting time order moot, we address it here because of the significant public question it presents and the sheer certainty of this issue being raised on appeal again. Federated Publications, Inc. v. City of Lansing, 467 Mich. 98, 112, 649 N.W.2d 383 (2002). We hold that the DeRose decision should be given full retroactive effect and vacate the trial court's January 10, 2001, order granting plaintiffs grandparenting time because the order is void ab initio. We also find that the court abused its discretion in refusing to vacate the April 22, 2002, judgment of contempt because it failed to give the DeRose decision its proper precedential effect. Accordingly, we reverse that order.

I. The DeRose decision

In 2000, the United States Supreme Court addressed the constitutionality of the state of Washington's third-party visitation statute in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The Court found that the statute, on its face, unconstitutionally infringed on parents' fundamental rights under the federal constitution to rear their children. Id. at 62-64, 120 S.Ct. 2054. The Troxel decision led this Court to address the constitutionality of Michigan's grandparent visitation statute, MCL 722.27b. In DeRose, supra at 394-395, 643 N.W.2d 259, relying on the analysis in Troxel, this Court held that "the lack of standards in the Michigan statute beyond `the best interests of the child,' and specifically the failure of the statute to afford any deference to the custodial parent's decision, renders the Michigan statute unconstitutional as written." Consistent with its decision, the Court vacated the trial court's order granting the plaintiff visitation of the minor child, but it did not address whether its decision should be applied retroactively or have prospective application only; an issue we decide here.1

II. Prospective versus Retroactive Application

The main issue on appeal is whether this Court's decision in DeRose, supra, should be applied retroactively. The retroactive effect of a court's decision is a question of law that this Court reviews de novo. Sturak v. Ozomaro, 238 Mich.App. 549, 559, 606 N.W.2d 411 (1999).

As a general rule, an unconstitutional statute is void ab initio; it is void for any purpose and is as ineffective as if it had never been enacted. Stanton v. Lloyd Hammond Produce Farms, 400 Mich. 135, 144-145, 253 N.W.2d 114 (1977). Pursuant to this rule, decisions declaring statutes unconstitutional have been given full retroactive application. See, e.g., id. at 145, 253 N.W.2d 114; Briggs v. Campbell, Wyant & Cannon Foundry Co., 379 Mich. 160, 150 N.W.2d 752 (1967); Horrigan v. Klock, 27 Mich.App. 107, 183 N.W.2d 386 (1970). Another general rule is that judicial decisions are to be given complete retroactive effect. Michigan Ed. Employees Mut. Ins. Co. v. Morris, 460 Mich. 180, 189, 596 N.W.2d 142 (1999). However, these rules are not blindly followed without concern for principles of justice and fairness. As the Court recognized in Stanton, supra at 147, 253 N.W.2d 114, "certain factual circumstances might warrant the retroactive application of an unconstitutional statute."

In recent decades, Michigan has adopted a flexible approach to determining whether a decision should be applied retroactively or prospectively, which involves the threshold question of

whether that decision is establishing a new principle of law, either by overruling clear past precedent on which the parties have relied or by deciding an issue of first impression where the result would have been unforeseeable to the parties. If the decision does not announce a new principle of law, then full retroactivity is favored. [Michigan Ed Employees, supra at 190-191, 596 N.W.2d 142.]

Where the decision does reflect a new principle of law, our Supreme Court has acknowledged that "`resolution of the retrospective-prospective issue ultimately turns on considerations of fairness and public policy,'" and has employed a three-part test to determine to what extent, if any, a decision should receive retroactive application. Under this test, the Court weighs "`(1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice.'" Id. at 190, 596 N.W.2d 142, quoting Riley v. Northland Geriatric Ctr. (After Remand), 431 Mich. 632, 644-646, 433 N.W.2d 787 (1988).2 However, this test has not been universally employed, and, in some cases, the second and third factors meld together "`because the amount of past reliance will often have a profound effect upon the administration of justice.'" Hall v. Novik, 256 Mich.App. 387, 397 n. 8, 663 N.W.2d 522 (2003), quoting People v. Hampton, 384 Mich. 669, 677, 187 N.W.2d 404 (1971). Therefore, these three factors appear to comprise a guideline test to be utilized by the courts as a decision-making aid, rather than an affirmative test, the outcome of which would mandate the court's decision. See Sturak, supra at 561, 606 N.W.2d 411.

Recently, our Supreme Court embarked on this three-part analysis in Pohutski v. City of Allen Park, 465 Mich. 675, 641 N.W.2d 219 (2002), when it revisited the issue whether § 7 of the governmental tort liability act, MCL 691.1407, permitted a trespass-nuisance exception to governmental immunity. The Court held that no such exception existed under the statute and, in so holding, overruled Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988), and other cases to the contrary. Continuing, the Court stated, "However, because we are mindful of the effect our holding will have on the administration of justice, we conclude that limiting our holding to prospective application is appropriate." Pohutski, supra at 679, 641 N.W.2d 219.

In determining whether to give its decision retroactive effect, the Court first addressed the threshold question, whether the decision established a new principle of law, and concluded, id. at 696, 641 N.W.2d 219, that "practically speaking our holding is akin to the announcement of a new rule of law," given the Court's erroneous interpretations set forth in Hadfield, supra, and Li v. Feldt (After Remand), 434 Mich. 584, 456 N.W.2d 55 (1990). Analyzing the issue under the three-part test, the Pohutski Court stated:

First, we consider the purpose of the new rule set forth in this opinion: to correct an error in the interpretation of 7 of the governmental tort liability act. Prospective application would further this purpose. See Riley, supra at 646, 433 N.W.2d 787. Second, there has been extensive reliance on Hadfield's interpretation of 7 of the governmental tort liability act. In addition to reliance by the courts, insurance decisions have undoubtedly been predicated upon this Court's longstanding interpretation of 7 under Hadfield: municipalities have been encouraged to purchase insurance, while homeowners have been discouraged from doing the same. Prospective application acknowledges that reliance. Third, prospective application minimizes the effect of this decision on the administration of justice. Consideration of recently enacted 2001 PA 222 strengthens our determination to limit our holding to prospective application. 2001 PA 222 amends the governmental tort liability act to provide a remedy for damages or physical injuries caused by a sewage disposal system event. [Pohutski, supra at 697, 641 N.W.2d 219.]

The Court determined that 2001 PA 222 did not apply retroactively and considerations of justice necessitated limiting its holding to prospective application only:

Given the absence of any language indicating retroactive effect, the fortyfive-day notice limit, and the presumption that statutes operate prospectively, we conclude that 2001 PA 222 does not apply retroactively.
Thus, if we applied our holding in this case retroactively, the plaintiffs in cases currently pending would not be afforded relief under Hadfield or 2001 PA 222. Rather, they would become a distinct class of litigants
...

To continue reading

Request your trial
14 cases
  • 46th Circuit Trial Ct. v. CRAWFORD CTY., Docket No. 254179
    • United States
    • Court of Appeal of Michigan (US)
    • 5 Julio 2005
    .......         Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. (by Christopher J. Johnson and Marcelyn A. Stepanski), ...MCR 7.215(C)(2); Johnson v. White, 261 Mich.App. 332, 347, 682 N.W.2d 505 (2004) . .          35. Ashker v. Ford Motor ......
  • People v. Swain.
    • United States
    • Court of Appeal of Michigan (US)
    • 8 Junio 2010
    ...clear and unambiguous language of MCR 6.502(G)(2). In addition, no part of a court rule should be rendered nugatory. Johnson v. White, 261 Mich.App. 332, 348, 682 N.W.2d 505 (2004). If a defendant could obtain relief on a successive motion by only establishing entitlement to relief under MC......
  • Werth v. Bell, 10–2183.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 28 Agosto 2012
    ...denying the application. See People v. Lown, No. 299564, 2012 WL 247775, at *2 (Mich.Ct.App. Jan. 26, 2012) (quoting Johnson v. White, 261 Mich.App. 332, 682 N.W.2d 505, 513 (2004)); Kasben v. Hoffman, 278 Mich.App. 466, 751 N.W.2d 520, 522 (2008). Finally, Werth offers no “reason to think ......
  • People v. Quinn
    • United States
    • Court of Appeal of Michigan (US)
    • 29 Mayo 2014
    ...We agree. “The retroactive effect of a court's decision is a question of law that this Court reviews de novo.” Johnson v. White, 261 Mich.App. 332, 336, 682 N.W.2d 505 (2004). Generally, judicial decisions establishing a new rule of law are given full retroactive effect. Paul v. Wayne Co. D......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT