Recent Court Decisions Identifying Acts for Legislative Action: A Report to the Michigan Law Revision Commission
and Recommendations to the Legislature
I. Introduction.
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 Court of Appeals’ decisions released in 2000. These three cases identify Acts and a common law rule as candidates for legislative reform. The three opinions are:
Diehl v. Danuloff, 242 Mich. App. 120, 618 N.W.2d 83 (2000)(whether court-appointed psychologists enjoy immunity from suit either under the Government Tort Liability Act or under common law)
People v. Stephan, 241 Mich. App. 482, 616 N.W.2d 188 (2000)(resolution of conflict between insanity statute and guilty-but-mentally-ill statute)
In the Matter of RFF, 242 Mich. App. 188, 617 N.W.2d 745 (2000) (termination of biological father’s parental rights under the Adoption Code)
II. Tort Immunity of Court-Appointed Psychologists.
A. Background.
The Government Tort Liability Act, M.C.L. § 691.1407 (GTLA) extends immunity for acts of negligence to the following categories of persons:
· officers and employees of a governmental agency
· volunteers acting on behalf of a governmental agency
· members of a board, council, commission, or task force of a governmental agency
· judges, legislators, and the elective or highest appointive executive officials of all levels of government
In Bullock v. Huster, 209 Mich. App. 551, 532 N.W.2d 202, vacated and remanded, 451 Mich. 884, 549 N.W.2d 573, on remand, 218 Mich. App. 400, 554 N.W.2d 47 (1996), the guardian ad litem of a minor child was sued for allegedly failing to conduct an adequate investigation prior to making a recommendation to the court. The Court of Appeals in that case found that the GTLA does not include guardians ad litem within the class of persons entitled to immunity and, accordingly, held that the intent of the Legislature was to exclude guardians ad litem from the scope of governmental tort immunity. Following an amendment to the GTLA to extend governmental immunity to guardians ad litem, the Michigan Supreme Court reversed the Court of Appeals in Bullock. On remand, the Court of Appeals dismissed the lawsuit.
B. The Diehl v. Danuloff Decision.
As part of a custody dispute involving two children, the trial court ordered defendant Lyle Danuloff to perform a full psychological evaluation of the family unit and make a custody recommendation to the court. He recommended that the father be awarded custody of the children, which recommendation the court followed.
Subsequently, the children’s grandparents brought a negligence action against Danuloff, alleging that he had conducted the custody evaluation in a negligent manner. The core of their complaint was that the children’s father had been charged and convicted of sexually abusing the children.
The trial court granted summary disposition, finding inter alia that Danuloff was entitled to absolute immunity at common law.
In this case of first impression, the Court of Appeals, drawing on its earlier decision in Bullock, concluded that because court-appointed private psychologists are not expressly included within the class of persons entitled to immunity under the GTLA, that is was the Legislature’s intent to exclude them.
The Court went on to examine whether court-appointed psychologists should nevertheless be accorded common law quasi-judicial immunity. In reviewing the case law in other jurisdictions, the Court found that with virtual uniformity, courts in other jurisdictions (e.g., Nevada, Utah, Alaska) have granted quasi-judicial immunity to individuals who perform functions analogous to those performed by defendant Danuloff in the present case. The Court of Appeals held, therefore, that quasi-judicial immunity extends to court-appointed psychologists ordered to conduct evaluations and make recommendations to the trial court in custody disputes.
Question Presented
Should the Government Tort Liability Act be amended to codify the holding in Diehl v. Danuloff?
Recommendation
The Commission recommends that the Legislature amend the Government Tort Liability Act to codify the holding in the Diehl decision by including court-appointed psychologists among the class of persons protected under the Act.
III. Resolution of Conflict Between Insanity Statute and
Guilty-But-Mentally-Ill Statute
A. Background.
In 1994, the Legislature amended the insanity statute to require criminal defendants who assert an insanity defense to prove insanity by a preponderance of the evidence. Prior law placed the burden on the prosecutor to prove beyond a reasonable doubt that the defendant was not legally insane. However, the Legislature did not amend the guilty-but-mentally-ill (GBMI) statute in the same manner. As a consequence, when the trial court instructs the jury on the requirements of both the insanity and GBMI statutes, the instructions state that the defendant bears the burden of proving mental illness and legal insanity for an insanity verdict, but that the prosecutor bears the burden of proving lack of insanity for purposes of the GBMI statute. These instructions contradict each other and create an irreconcilable conflict for the jury trying to apply them.
B. The People v. Stephan Decision.
In People v. Stephan, the prosecutor argued before the Court of Appeals that when the Legislature amended the insanity statute in 1994, it implicitly repealed that portion of the GBMI statute that requires the prosecutor to prove mental illness beyond a reasonable doubt.
Although it was sympathetic with the plight of judges, juries, and prosecutors in resolving this statutory conflict, the Court of Appeals declined to accept the prosecutor’s argument. The Court stated that “our due regard for the doctrine of separation of powers precludes our invading the province of the Legislature by inferring that any statute has been implicitly amended, repealed, or partially repealed. . . . Therefore, we defer to the Legislature to make these necessary changes.”
Question Presented
Should the GBMI statute be amended to comport with the 1994 amendments to the insanity statute?
Recommendation
The Commission recommends that the Legislature examine this question and make whatever changes are necessary to resolve this statutory conflict.
IV. Termination of Biological Father’s Parental Rights
under the Adoption Code.
A. Background.
The Adoption Code, M.C.L. § 710.39, creates two categories of putative fathers -- “do-nothing” and “do-something” fathers -- and provides different standards for termination of the rights of each. Section 39(1) of the Adoption Code deals with the first group. Putative fathers who have established no custodial relationship with the child, and who have provided no support for the mother or child prior to the notice of hearing, may have their parental rights terminated if the court finds that it would not be in the best interests of the child to grant custody to him.
The second group is dealt with under Section 39(2) of the Adoption Code. The parental rights of fathers who have established some kind of custodial or support relationship prior to the notice of hearing may have their parental rights terminated only through proceedings under the Probate Code (in essence, termination for abuse or neglect).
B. The In re RFF Decision.
In In the Matter of RFF, the biological father argued that he was entitled to be treated as a father who had provided support to the mother or child, and thus entitled to the parental termination procedure of Section 39(2). It was undisputed that he had not established a custodial relationship with RFF. However, the biological father argued that the only reason he did not provide support to either the mother or child is that she had concealed her pregnancy from him until less than a month before the child’s birth, and that the adoption agency had assured him that the costs of the pregnancy were being paid by the prospective adoptive parents.
The Court concluded that the Legislature did not consider the case of the rights of a deceived father when it amended the Adoption Code in 1998. The Court stated that “the Legislature should reexamine § 39 and evaluate whether it is appropriate to place a father who has been deceived about a pregnancy in subsection 39(1) or subsection 39(2) or whether it is appropriate to create third subsection to address this specific problem.” 617 N.W.2d at 201.
In her dissent from the Supreme Court’s denial of leave to appeal, Chief Justice Maura Corrigan expressed concerns over the potential equal protection defects of Sections 39(1) and 39(2) of the Adoption Code in that the Code treats putative fathers who are not deceived as to the pregnancy differently from those who are. In re RFF, 618 N.W.2d 575 (2000)(leave to appeal denied; Corrigan, J., dissenting).
Question Presented
Should the Legislature amend the Adoption Code to address termination of the parental rights of biological fathers who are deceived as to the existence of the pregnancy?
Recommendation
This issue presents a very complex matter that requires careful examination. The Commission, therefore, takes no position on this question at this time and makes no recommendation to the Legislature. The Commission will be studying this matter in the future.
A. Taxation of Paralegal Costs under M.C.L. § 600.2405.
In response to the Court of Appeals’ decision in Joerger v. Gordon Food Service, Inc., 224 Mich. App. 167 (1997)(paralegal costs not recoverable as part of an award of attorney fees), in its 1997 Annual Report the Commission recommended to the Legislature that it amend M.C.L. § 600.2405 to provide that paralegal expenses be included as an item of recoverable costs in civil litigation.
On October 24, 2000, the Supreme Court adopted Rule 2.626 of the Michigan Court Rules, effective January 1, 2001, to provide that an award of attorney fees may include an award for the time and labor of any legal assistant who contributed nonclerical, legal support under the supervision of an attorney.
B. Judicial Overruling of Dedes v. Asch.
In Dedes v. Asch, 446 Mich. 99, 521 N.W.2d 488 (1994), the Michigan Supreme Court was asked to interpret the phrase "the proximate cause" contained in the Government Tort Liability Act. The Court held in Dedes that the Legislature’s use of the definite article “the” to modify the term “proximate cause" did not mean "the sole proximate cause." Instead, the Court interpreted the words, “the proximate cause,” to mean "a proximate cause" of the plaintiff's injuries. Consequently, the school bus driver in Dedes was not immune from suit when children were hit by a passing car immediately after alighting from the school bus.
In its 1996 Annual Report, the Commission recommended legislative overruling of Dedes v. Asch. In 2000, the Supreme Court overruled Dedes v. Asch in Robinson v. City of Detroit, 613 N.W.2d 307. The Court held that the phrase “the proximate cause” used in the GTLA means “the one most immediate, efficient, and direct cause preceding an injury, not ‘a proximate cause.’” 613 N.W.2d at 311.