MSC: Justice Kelly fires cannon at majority's disapproval of canon

The continuing underlying tension among justices of the Michigan Supreme Court concerning how to best interpret statutes bubbled to the surface again late last week.

All seven justices agreed that the Court of Appeals reached the right result in reinstating a whistleblower case involving Katherine M. Ernsting, who worked as the special assistant to the president of Ave Maria College in Ann Arbor. But four justices felt that the COA took an unnecessary detour.

Ernsting began talking to the U.S. Department of Education, which was investigating the school's administration of federal student financial aid programs. To reward her cooperation with the DOE, the school fired her, according to her whistleblower complaint.

Washtenaw County Circuit Court Judge Timothy P. Connors tossed the suit. He ruled that under MCL 15.361(d)(v), the DOE was not a "law enforcement agency" and therefore could not be a "public body."

The Court of Appeals reversed in a 2-1 decision. Writing for the majority, Judge Kurtis T. Wilder, joined by Judge Alton Davis, parsed the statute to first provide that a federal agency, as opposed to a state or local agency, is a public body under the statute. Judge Wilder then determined that because the DOE is vested with investigatory power, it qualifies as a law enforcement agency for whistleblower purposes.

Judge Brian Zahra disagreed with this last point. Judge Wilder replied:

We respectfully disagree with the dissent's view that the term "law enforcement agency" as more narrowly construed by this Court in In re Faketty, 121 Mich App 266, 271; 328 NW2d 551 (1982), is applicable here. ...
Whereas there was a narrow context in which this Court in Faketty considered whether the Department of Corrections was a law enforcement agency under JCR 1969, 13, here, because remedial statutes like the WPA are liberally construed in favor of the persons intended to be benefited, Brown v Mayor of Detroit, 271 Mich App 692, 706; 723 NW2d 464 (2006), we conclude that the DOE, with its power to conduct civil and criminal investigations in order to enforce the laws under its purview, constitutes a law enforcement agency within the meaning of the WPA.

Up in the Michigan Supreme Court, none of the justices quibbled with the outcome, but Chief Justice Clifford Taylor, and Justices Maura Corrigan, Robert Young and Stephen Markman added an asterisk to the court's denial of leave to appeal.

We take this opportunity to note that, although we generally agree with the approach in the Court of Appeals majority opinion, it was unnecessary for that opinion to state, 274 Mich App 506, 518 (2007), that "remedial statutes like the WPA are liberally construed in favor of the persons intended to be benefited, Brown v Mayor of Detroit, 271 Mich App 692, 706; 723 NW2d 464 (2006)." Rather, as this Court later stated in its own opinion in Brown, 478 Mich 589, 593-594, when addressing the same statutory provision that is at issue in this case, MCL 15.361(d), "[t]he statutory language in this case is unambiguous," and "[i]f the statutory language is unambiguous, the Legislature is presumed to have intended the meaning expressed in the statute and judicial construction is not permissible."

Both Justices Michael Cavanagh and Elizabeth Weaver, in separate statements, indicated that they would deny leave and leave it at that.

But the majority's statement caused Justice Marilyn Kelly to take a "canon shot" at the majority:

I dissent from that part of the order admonishing the Court of Appeals majority for utilizing the canon of construction that calls for remedial statutes to be construed liberally. I disagree with including that statement for two reasons. First, because it is completely unnecessary to the resolution of the case, it has no force and, therefore, adds nothing to the order. Second, the canon that remedial statutes must be liberally construed is one of the oldest and most respected tools of construction in all the law. ...
Given this canon's long history and wide acceptance, and because the Whistleblowers' Protection Act is remedial in nature, it was entirely appropriate for the Court of Appeals majority to apply the canon in this case. And although the members of the majority can reject the tool for themselves, they should not scold other judges for choosing not to do the same.

The full text of the order is here.