Michigan v. Attorney Gen.

• Decision Date: 27 July 2020
• Docket Number: Calendar No. 1, Docket No. 158151,Docket No. 158150
• Citation: 506 Mich. 74,954 N.W.2d 475
• Parties: Progress MICHIGAN, Plaintiff-Appellant, v. ATTORNEY GENERAL, Defendant-Appellee.
• Court: Michigan Supreme Court

506 Mich. 74

954 N.W.2d 475

Progress MICHIGAN, Plaintiff-Appellant,

v.ATTORNEY GENERAL, Defendant-Appellee.

Docket No. 158150

Docket No. 158151

Calendar No. 1

Supreme Court of Michigan.

Argued January 8, 2020

Decided July 27, 2020

Cavanagh, J. Plaintiff, Progress Michigan, filed a request under Michigan's Freedom of Information Act (FOIA), MCL 15.231 et seq. , with defendant, then Attorney General William Schuette, seeking the disclosure of certain e-mail messages sent or received by Schuette or certain employees of his department.¹ The request was denied, and plaintiff brought suit in the Court of Claims, challenging that denial. Defendant moved for summary disposition, but the Court of Claims denied the motion with regard to the FOIA claim. The Court of Appeals reversed, reasoning that this Court's decision in Scarsella v. Pollak , 461 Mich. 547, 607 N.W.2d 711 (2000), rendered plaintiff's initial complaint a nullity, such that it could not be amended, and that the statutory period of limitations elapsed before the second complaint was filed. Progress Mich. v. Attorney General , 324 Mich. App. 659, 673-674, 922 N.W.2d 654 (2018). Scarsella does not apply in this context, and plaintiff complied with the statutory requirements necessary to sustain its claim under the FOIA. Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the Court of Claims for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff filed its FOIA request on September 27, 2016, seeking the disclosure of all e-mail messages sent or received by 21 employees of defendant's department² using personal e-mail accounts in the performance of any official function since November 1, 2010. Defendant denied the request on October 19, 2016, stating that only a single e-mail message met plaintiff's description and that the e-mail message was not subject to disclosure because it was exempt from disclosure under the FOIA as attorney work product. Plaintiff filed an internal appeal on November 26, 2016; defendant denied the appeal on December 12, 2016.

Plaintiff filed its complaint³ in the Court of Claims on April 11, 2017, alleging that defendant's denial violated the FOIA and that defendant had failed to preserve state records under the Management and Budget Act (MBA), MCL 18.1101 et seq. On May 16, 2017, in lieu of filing an answer, defendant moved for summary disposition under MCR 2.116(C)(4), (7), and (8). Defendant argued, in part, that plaintiff's complaint was subject to dismissal because it was not signed and verified as required by MCL 600.6431(1) of the Court of Claims Act (COCA), MCL 600.6401 et seq. Plaintiff filed a nearly identical amended complaint on May 26, 2017. The allegations were the same, but the amended complaint was verified—that is, it was signed by plaintiff's executive director and sworn to before the Ingham County Clerk. Defendant once again moved for summary disposition under MCR 2.116(C)(4), (7), and (8), this time arguing that the amended complaint was untimely because it was filed outside the FOIA's 180-day period of limitations (i.e., more than 180 days after October 19, 2016).⁴ See MCL 15.240.

The Court of Claims granted defendant's motion with respect to plaintiff's claim under the MBA but denied defendant's motion for summary disposition of the FOIA claim, holding that plaintiff had complied with MCL 600.6431(1) and the applicable statute of limitations. The Court of Claims, citing the language of MCL 600.6431 and our decision in McCahan v. Brennan , 492 Mich. 730, 822 N.W.2d 747 (2012), concluded that to be compliant, the notice or claim had to be filed within the specified period (1 year), and it rejected defendant's position that a plaintiff is limited to only one opportunity to meet that requirement. On that basis, the Court of Claims concluded that plaintiff's amended complaint was timely filed under MCL 600.6431. The Court of Claims also rejected defendant's argument that plaintiff's amended complaint was untimely because it was filed outside the FOIA's 180-day limitations period. Relying on MCL 600.5856(a), the Court of Claims concluded that the statutory period of limitations was tolled at the time the original complaint was filed and that the amendment related back to the date of the original complaint because the claim asserted in the amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original pleading.

Defendant appealed in the Court of Appeals.⁵ The Court of Appeals first rejected plaintiff's argument that the Court lacked jurisdiction in Docket No. 340921 because the Court of Claims’ denial of summary disposition was not a "final judgment" or "final order" under MCR 7.202(6). Progress Mich. , 324 Mich. App. at 665-666, 922 N.W.2d 654. Plaintiff argued that the Court of Claims did not deny defendant governmental immunity because there is no governmental immunity applicable to plaintiff's claim under the FOIA. The Court of Appeals determined that because defendant asserted that compliance with MCL 600.6431(1) was a condition precedent to avoiding governmental immunity, see Fairley v. Dep't of Corrections , 497 Mich. 290, 297, 871 N.W.2d 129 (2015), the denial of defendant's motion amounted to " ‘an order denying governmental immunity to a governmental ... official,’ " making it a "final order under MCR 7.202(6)(a)(v)." Progress Mich. , 324 Mich. App. at 665-666, 922 N.W.2d 654 (citation omitted). The Court went on to conclude that, regardless, it had jurisdiction over the appeal because it had granted leave to appeal in Docket No. 340956. Id. at 666, 922 N.W.2d 654.

The Court of Appeals then concluded that although the original complaint was timely, the bar-to-claim language of MCL 600.6431 was triggered because it was not signed and verified. Id. at 670-671, 922 N.W.2d 654. The Court analogized the unverified complaint in this case to the medical malpractice complaint filed in Scarsella , 461 Mich. at 549, 607 N.W.2d 711. In that case, the plaintiff did not include with the complaint the affidavit of merit (AOM) required under MCL 600.2912d ; because of the plaintiff's failure to include the statutorily required AOM, this Court had held that the complaint was " ‘insufficient to commence the plaintiff's malpractice action’ " and insufficient to toll the limitations period. Progress Mich. , 324 Mich. App. at 671, 922 N.W.2d 654, quoting Scarsella , 461 Mich. at 550, 607 N.W.2d 711. The Court of Appeals reasoned that because the complaint in this case was not verified, the claim could not be maintained because it "lacked legal validity from its inception" and was a "nullity."

Progress Mich. , 324 Mich. App. at 673, 922 N.W.2d 654. Because "there was nothing pending that could be amended," the amended complaint did not cure the defect of the original complaint, and any attempt by plaintiff to amend the complaint under MCR 2.118 was ineffectual. Id. (quotation marks omitted). Because the amended complaint was filed outside the FOIA's 180-day statute of limitations, neither could it commence the action on its own. Id. at 674 n. 3, 922 N.W.2d 654. The Court reversed and remanded to the Court of Claims for entry of summary disposition in favor of defendant. Id. at 674, 922 N.W.2d 654.

We granted leave and directed the parties to address: "(1) whether there is a sovereign or governmental immunity defense to the failure to disclose public records pursuant to the [FOIA]; (2) if so, whether that immunity is waived by the FOIA; (3) whether the notice and verification requirements of the [COCA], see MCL 600.6431(1), are applicable to [an] FOIA appeal; (4) if so, whether the Court of Appeals erred when it held that the plaintiff's failure to follow the verification requirement in its original complaint, which was filed within one year after the FOIA claim accrued, MCL 600.6431(1), rendered the complaint ‘invalid from its inception’ and incapable of amendment; and (5) whether the Court of Appeals erred when it held that the verified amended complaint, also filed within the one-year period, could not ‘relate back’ to the date of the original complaint for purposes of compliance with the 180-day limitations period of the FOIA." Progress Mich. v. Attorney General , 503 Mich. 982, 982-983, 923 N.W.2d 886 (2019).

II. STANDARD OF REVIEW

Plaintiff's challenge to the jurisdiction of the Court of Appeals requires us to interpret the COCA, which presents a statutory question this Court reviews de novo. Parkwood Ltd. Dividend Housing Ass'n v. State Housing Dev. Auth. , 468 Mich. 763, 767, 664 N.W.2d 185 (2003). The availability of governmental immunity presents a question of law that is likewise reviewed de novo. Bauserman v. Unemployment Ins. Agency , 503 Mich. 169, 179, 931 N.W.2d 539 (2019).

III. ANALYSIS

In our order granting plaintiff's application for leave to appeal, we asked the parties to address (1) whether there is a sovereign or governmental immunity defense to the failure to disclose public records under the FOIA and (2) if so, whether that immunity is waived by the FOIA. Progress Mich. , 503 Mich. at 982-983, 923 N.W.2d 886. Plaintiff argues that there is no sovereign or governmental immunity defense to its claim under the FOIA because this Court has previously recognized a common-law mandamus action to compel disclosure of public documents against the state that was not barred by immunity; moreover, the subsequently enacted FOIA explicitly waives any immunity. Defendant agrees that under the FOIA, he is subject to suit but argues that he is entitled to a sovereign-immunity defense in the FOIA suit because plaintiff's originally filed unverified complaint did not comply with MCL 600.6431. The Court of Appeals, citing Fairley , 497 Mich. at 297, 871 N.W.2d 129, considered the issue of plaintiff's compliance with MCL 600.6431 as an issue of immunity, reasoning that the verification requirement was a condition precedent for avoiding governmental...