Recent Court Decisions Identifying Statutes for Legislative Action:
A Report to the Michigan Law Revision Commission
and Recommendations to the Legislature
As part of its statutory charge to examine current judicial decisions for the purpose of discovering defects in the law and to recommend needed reforms, the Michigan Law Revision Commission undertook a review of three Michigan Supreme Court opinions and one Michigan Court of Appeals' decision released in 1999. These four cases identify Acts and common law rules as candidates for legislative reform. The four opinions are:
Donajkowski v. Alpena Power Co., 460 Mich. 243, 596 N.W.2d 574 (1999)(whether the Michigan Civil Rights Act implicitly repeals the Michigan Contribution Act)
People v. McIntire, 461 Mich. 147, 599 N.W.2d 102 (1999)(whether an obligation to provide truthful answers is an implicit condition of an immunity agreement under M.C.L. § 767.6, M.S.A. § 28.946)
Ritchie-Gamester v. City of Berkley, 597 N.W.2d 517 (Mich. S. Ct. 1999)(the standard of care that co-participants in recreational activities owe to each other)
Rembert v. Ryan's Family Steak Houses, Inc., 235 Mich. App. 118, 596 N.W.2d 208 (1999)(whether a pre-dispute agreement to arbitrate employment discrimination claims is valid)
II. Implied Repeal of the Michigan Civil Rights Act
by the Michigan Contribution Act.
The Michigan Contribution Act, M.C.L. § 600.2925a(1), M.S.A. § 27A.2925(1)(1), provides in part:
[W]hen 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
A claim for sex discrimination is considered an intentional tort. Stimson v. Michigan Bell Telephone Co., 77 Mich. App. 361, 366 n.3, 258 N.W.2d 227 (1977).
B. The Donajkowski v. Alpena Power Co. Decision.
Plaintiff Donajkowski brought an employment discrimination claim against Alpena Power under the Michigan Civil Rights Act claiming sex-based wage discrimination. Her union joined her as a party-plaintiff. Following the dismissal of the union, Alpena Power brought a third-party claim seeking contribution from the union in the event the employer was found liable to the plaintiff. Alpena Power argued that the union was jointly liable for any wage discrimination flowing from the collective bargaining agreement because that agreement was the result of negotiations between Alpena Power and the union.
The Supreme Court began its analysis with the observation that, unlike contribution schemes in other states, the Legislature has not drawn a distinction between intentional and negligent tortfeasors vis-a-vis their right to seek contribution. Donajkowski, 460 Mich. at 250-51. The Court concluded that on the basis of the plain and unambiguous language of the Act, contribution among intentional tortfeasors is allowed under the Michigan Contribution Act.
Turning to the central issue of whether the Civil Rights Act impliedly repeals the Contribution Act, the Court concluded:
We will only infer the repeal of an Act in narrow circumstances, and there is a strong presumption against such a finding. . . . A repeal may be inferred: (1) when it is clear that a subsequent legislative act conflicts with a prior act, or (2) when a subsequent act of the Legislature clearly is intended to occupy the entire field covered by a prior enactment. . . . Here, the union has failed to meet the heavy burden of establishing either of these criteria.
Id., 460 Mich. at 253.
The final argument that the union pressed was based on a broad, undefined public policy argument against permitting contribution from a union to an employer. The Court responded that the articulated legislative policy of Michigan is that employment discrimination is illegal, and that if the union was jointly responsible with the employer in discriminating, then as a wrongdoer it should not escape liability. Id., 460 Mich. at 253-54.
1. Should the Michigan Contribution Act be amended to except contribution in cases involving intentional torts?
2. Should the Michigan Contribution Act be amended to except contribution in employment discrimination cases?
In reference to the first question, the Commission considers this issue to be one of public policy of which the Legislature should be aware. However, the Commission makes no specific recommendation.
In reference to the second question, the Commission makes no recommendation.
III. The Obligation to Provide Truthful Answers As An Implicit Condition
of An Immunity Agreement under M.C.L. § 767.6, M.S.A. § 28.946.
The immunity statute, M.C.L. § 767.6, M.S.A. § 28.946, provides in relevant part:
No witness shall upon such inquiry be required to answer any questions, or shall be convicted for contempt upon refusal to do so, when the answers might tend to incriminate him. A written order granting to such witness immunity from such incrimination may be entered by said judge pursuant to a written motion by the prosecuting attorney . . . , which order shall set forth verbatim the questions which such witness refused to answer . . . . No person required to answer such questions shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate him.
If an immunized witness provides false testimony before a grand jury, the witness is subject to prosecution for perjury. See M.C.L. § 767.19d, M.S.A. § 28.959(4).
B. The People v. McIntire Decision.
The immunized witness, McIntire, had been arrested and charged with open murder and felony-firearm. After receiving the grant of immunity, he provided an account of his activities on the night of the homicide to a one-man grand jury, but his testimony did not clearly implicate him in the murder. Nine years later, following interrogation by Michigan state police, an accomplice implicated himself and McIntire in the murder. McIntire was tried and found guilty of four counts of perjury. The murder and felony-firearm charges were dismissed by the trail court on the basis of the grant of immunity.
The Court of Appeals reversed. It read into the immunity statute a requirement that a witness given transactional immunity is obligated as a condition of the grant of immunity to answer truthfully questions put to him. The Court of Appeals concluded that the Legislature could not have intended a perjury charge to be the sole consequence for testifying falsely before a one-man grand jury.
The Supreme Court reversed the Court of Appeals. It concluded that the text of the statute is clear and unambiguous. The immunity statute "simply does not condition transactional immunity on truthful testimony." McIntire, 599 N.W.2d at 106. In response to the Court of Appeals' conclusion that the Legislature did not deal with the prospect of false testimony in a transactional immunity situation, the Supreme Court stated that the Legislature did address this possibility by enacting a separate section of the criminal code expressly prohibiting perjury in any grand jury proceeding. Id., 599 N.W.2d at 109. The Court added in a footnote that prosecutors are free to condition a request for a grant of immunity to include a requirement of truthful testimony.
Should the immunity statue be amended to impose truthful testimony as a condition of the grant of immunity?
The Commission recommends that the Legislature amend the immunity statute to provide that truthful testimony is a condition of an immunity agreement.
IV. The Appropriate Standard of Care
in the Context of Recreational Activities.
The Supreme Court case law addressing the duty of care that participants in recreational activities owe to each other dates back to 1932. In Williams v. Wood, 260 Mich. 322, 244 N.W. 490 (1932), the Court held that co-participants in a recreational activity owe a duty of ordinary care to one another. Subsequent Court of Appeals' decisions have reached different conclusions. In one case, the Court of Appeals held that a participant in a sporting activity consents to the risk of injury inherent in the contest. See Higgins v. Pfeiffer, 215 Mich. App. 423, 546 N.W.2d 645 (1996). In another case decided in 1996, the Court of Appeals stated that one does not ordinarily consent to another's negligence. See Schmidt v. Youngs, 215 Mich. App. 222, 544 N.W.2d 743 (1996).
Other jurisdictions have generally taken one of two approaches to this issue. In a few states (Nevada, Wisconsin), ordinary care is the standard. The majority of courts have adopted a "reckless or intentional conduct" or a "wilful and wanton or intentional misconduct" standard (Connecticut, Kentucky, New Jersey, Texas, California, Ohio, Massachusetts, New York, Missouri). The rationales for departing from an ordinary care standard include (1) that a participant assumes the risk of the activity, (2) that a participant consents to conduct normally associated with the activity, and (3) an ordinary care standard would raise fears of litigation and discourage participation in recreational activities and sports.
B. The Ritchie-Gamester v. City of Berkley Decision.
In Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 597 N.W.2d 517 (1999), the plaintiff suffered a knee injury while ice skating after another skater who was skating backwards ran into her. The Supreme Court noted that the Legislature has yet to modify the common law of torts regarding recreational activities except in two narrow areas, roller skating (see Roller Skating Safety Act, M.C.L. § 445.1721 et seq.), and snow skiing (see Ski Area Safety Act, M.C.L. § 408.321 et seq.). These two acts are in essence assumption of risk statutes. They provide that participants assume the risk of dangers inherent in the activity of roller-skating and alpine skiing, respectively.
The Court joined the majority of jurisdictions and adopted a reckless misconduct standard as the standard of care for co-participants in recreational activities. The Court did so on the basis that that standard "most accurately reflects the actual expectations of participants in recreational activities." Id., 597 N.W.2d at 525. A reckless misconduct standard "also encourages vigorous participation in recreational activities, while still providing protection for egregious conduct." Id. The Court added:
[P]articipants' mutual agreement to play a game may be described as an "implied contract" between all the participants, or a voluntary participant could be described as "assuming the risks" inherent in the sport. No matter what terms are used, the basic premise is the same: When people engage in a recreational activity, they have voluntarily subjected themselves to certain risks inherent in that activity.
Id., 597 N.W.2d at 523-24.
The concurrence pointed out that "it is just as likely that many would choose not to participate in these activities because the recklessness standard might encourage dangerous behavior . . . . This heightened possibility of injury and unavailability of recovery would discourage vigorous participation, or any participation at all, by those who are less bold, . . . These questions warn us that such policy issues are difficult for courts." Id., 597 N.W.2d 530.
Should the Legislature enact a comprehensive recreational activity liability law?
The Commission recommends that the Legislature take no action.
V. The Validity of a Pre-Dispute Agreement
to Arbitrate Employment Discrimination Claims.
The majority of federal and state courts have held that a pre-dispute agreement to arbitrate a statutory employment discrimination claim is valid, provided that the arbitration procedures are fair and the agreement waives no substantive rights and remedies.
B. The Rembert v. Ryan's Family Steak Houses Decision.
In Rushton v. Meijer, Inc., 225 Mich. App. 156, 570 N.W.2d 271 (1997), a three-member panel of the Court of Appeals held that a pre-dispute arbitration agreement to settle an employment discrimination claim is invalid as a matter of public policy. In Rembert v. Ryan's Family Steak Houses, Inc., 235 Mich. App.118, 596 N.W.2d 208 (1999), a seven-member conflicts panel of the Court of Appeals superseded the Rushton case. The Court joined the majority of U.S. courts and held that as long as no rights or remedies accorded by the civil rights statute are waived, and as long as the procedure is fair, employers may contract with their employees to arbitrate statutory civil rights claims. The Court noted that Michigan statutes evidence a policy favoring arbitration:
Our Legislature significantly advanced the public policy favoring arbitration in 1961 when it enacted the Michigan arbitration act . . . .
"Obviously, if the Legislature wanted to preclude pre-dispute agreements to arbitrate civil rights claims, it would have excluded such claims by name, just as it excluded collective bargaining agreements and certain real estate claims."
* * * *
[O]ur Legislature could have drafted these [civil rights] statues to preclude predispute agreements to arbitrate civil rights employment claims, just as it may amend these statues to preclude arbitration agreements, Because the Legislature has not done so, we will not infer that this was its intent.
Rembert, 596 N.W.2d at 214-15, 227 (quoting from the dissenting opinion of then Judge Taylor in Rushton).
Should the Legislature amend the Michigan civil rights acts to codify the legal status of pre-dispute agreements to arbitrate employment discrimination claims?
The Commission recommends that the Legislature take no action.
An Annual Report Footnote:
Extension of the Equitable Parent Doctrine to a
Non-Biological Father Who Is Not Married to the Child's Mother.
In its 1998 Annual Report the Commission reviewed a Michigan Court of Appeals' decision dealing with the equitable parent doctrine. Van v. Zahorik, 227 Mich. App. 90, 575 N.W.2d 566 (1997). Briefly, the equitable parent doctrine originated in Atkinson v Atkinson, 160 Mich. App. 601, 408 N.W.2d 516 (1987). In the Atkinson case a child was born during the parties' marriage. Subsequently, the plaintiff husband, who was not the child's biological father, filed for divorce and sought custody or visitation of the child. The defendant wife defended on the ground that the plaintiff was not the biological father of the child. The trial court ruled that because of the lack of a biological relationship, the plaintiff did not have any parental rights. The Court of Appeals reversed and remanded, holding that, under the circumstances, the plaintiff was an equitable parent with rights equivalent to those of a biological parent.
An equitable parent is, in short, entitled to all rights and subject to all duties of a natural parent. However, the equitable parent doctrine has been applied in Michigan only in cases in which the child was born while the parties were married.
In Van v. Zahorik, plaintiff and defendant were not married, but did cohabit from 1986 to 1991. Plaintiff claimed that although the parties ceased living together in 1991, they continued to have a "sporadic" relationship for several years. During the course of their relationship, two children were born, one in 1989 and the other in 1993. Plaintiff alleged that defendant told him that he was the father of the children. According to plaintiff, he cared for and supported both children during and after his relationship with defendant. However, plaintiff alleged that from the time he began a relationship with another woman, defendant denied him the opportunity to exercise his normal parenting time with the minor children. Plaintiff therefore filed a complaint seeking to establish his paternity.
In the paternity action defendant denied telling plaintiff that he was the father of the children. Blood tests confirmed that he was not in fact the biological father. Defendant moved for summary disposition, claiming that because plaintiff was not the biological father and could not establish that he was the equitable parent of the children, he had no parental rights. Plaintiff argued that he qualified as an equitable parent.
The Court of Appeals affirmed the trial court's ruling that because plaintiff and defendant were never married, plaintiff had no grounds upon which to claim he was entitled to equitable relief in the form of parental rights.
The Commission presented the following questions to the Legislature: (1) Should the equitable parent doctrine be legislatively repealed or should it be codified? (2) If codified, should the equitable parent doctrine be extended to cover cases where the non-biological parent is not married to the natural parent of the child? The Commission recommended that the Legislature take no action.
On July 7, 1999, the Michigan Supreme Court affirmed the Court of Appeals' decision. Van v. Zahorik, 460 Mich. 320, 597 N.W.2d 15 (1999). The Court made three important observations. First, "[a]s a general rule, making social policy is a job for the Legislature, not the courts." Id., 597 N.W.2d at 18. Second, "the Legislature has provided a comprehensive statutory scheme to deal with such issues in the Child Custody Act . . . . The Child Custody Act is the exclusive means for pursuing [custody] rights." Id., 597 N.W.2d at 19. Third, "the Legislature, not the judiciary, is the appropriate entity to weigh the sensitive public policy issues in creating or extending parental rights to persons with no biological or marital link to a child. Therefore, we will not extend the doctrines of equitable parenthood or equitable estoppel outside the context of marriage." Id., 597 N.W.2d at 23.
The Commission believes that the question of extending the equitable parent doctrine implicates serious public policy issues. For this reason, the Commission makes no specific recommendation to the Legislature.