Bill Text: MI HB5800 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Civil procedure; other; court rules addressing actions under sections 25 to 32 of article IX of the state constitution; recommend revisions. Amends sec. 308a of 1961 PA 236 (MCL 600.308a) & adds secs. 308b, 308c, 308d, 308e, 308f & 308g. TIE BAR WITH: HB 5802'10

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced - Dead) 2010-11-10 - Referred To Second Reading [HB5800 Detail]

Download: Michigan-2009-HB5800-Introduced.html

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HOUSE BILL No. 5800

 

February 9, 2010, Introduced by Reps. Kennedy, McDowell, Mayes and Barnett and referred to the Committee on Judiciary.

 

     A bill to amend 1961 PA 236, entitled

 

"Revised judicature act of 1961,"

 

by amending section 308a (MCL 600.308a), as added by 1980 PA 110,

 

and by adding sections 308b, 308c, 308d, 308e, 308f, and 308g.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 308a. (1) An action under section 32 of article 9 of the

 

state constitution of 1963 may shall be commenced only in the court

 

of appeals. , or in the circuit court in the county in which venue

 

is proper, at the option of the party commencing the action.

 

     (2) The jurisdiction of the court of appeals under this

 

section shall be invoked by a taxpayer filing an action by a

 

taxpayer as plaintiff according to the court rules governing

 

procedure in the court of appeals.

 

     (3) A taxpayer shall not bring or maintain an An action under

 

this section unless the action is seeking money damages for this

 

state's failure to adequately fund a state-required activity or

 

service shall be commenced within 1 year after the cause of action

 

accrued accrues. An action under this section seeking a declaratory

 

judgment may be commenced at any time that sections 25 to 31 of

 

article IX of the state constitution of 1963 are being violated as

 

alleged in the complaint.

 

     (4) The unit of government shall be named as defendant. An

 

officer of any governmental unit shall be sued in his or her

 

official capacity only and shall be described as a party by his or

 

her official title and not by name. If an officer dies, resigns, or

 

otherwise ceases to hold office during the pendency of the action,

 

the action shall continue against the governmental unit and the

 

officer's successor in office.

 

     (5) The court of appeals may refer an action to the circuit

 

court or to the tax tribunal to determine and report its findings

 

of fact if substantial fact finding is necessary to decide the

 

action.

 

     (4) (6) A plaintiff who If the taxpayer prevails in an action

 

commenced under this section, shall receive from the defendant

 

shall pay the taxpayer the costs incurred by the plaintiff taxpayer

 

in maintaining the action.

 

     Sec. 308b. (1) The applicable unit of government shall be

 

named as defendant in an action under section 308a. An officer of

 

any unit of government shall be sued in his or her official

 

capacity only and shall be described as a party by his or her

 

official title and not by name. If an officer dies, resigns, or

 

otherwise ceases to hold office during the pendency of the action,

 

the action shall continue against the unit of government and the

 

officer's successor in office.

 

     (2) The court shall not require the taxpayer in an action

 

under section 308a to state allegations in the complaint with any

 

greater specificity or particularity than is required of a

 

plaintiff generally in a civil action or to attach to the complaint

 

any document or thing that would not be required generally to be

 

attached to a complaint in a civil action.

 

     (3) The taxpayer in an action under section 308a shall file

 

all of the following with the clerk of the court of appeals:

 

     (a) Five copies of the complaint, 1 of which shall be signed.

 

The complaint shall include a statement as to whether the taxpayer

 

believes that the action raises factual questions that will require

 

resolution by the court.

 

     (b) Proof that a copy of the complaint and any other documents

 

filed with the court were served on every named defendant and the

 

office of the attorney general.

 

     (c) The entry fee.

 

     (4) A defendant named in an action under section 308a shall

 

file all of the following with the clerk of the court of appeals

 

within 21 days after the complaint is served on the defendant:

 

     (a) Five copies of an answer to the complaint, 1 of which is

 

signed. The answer shall include a statement as to whether the

 

defendant believes that the action raises factual questions that

 

will require resolution by the court.

 

     (b) Proof that a copy of the answer and any other documents

 

filed with the court were served on every named party.

 

     Sec. 308c. (1) After an answer is filed under section 308b,

 

the chief judge of the court of appeals shall promptly assign a

 

panel of the court to commence proceedings in the action.

 

     (2) A panel to which an action is assigned under subsection

 

(1) may refer the action to the special master created under

 

section 308d to conduct pretrial proceedings and a trial to receive

 

evidence and arguments of law and to issue a written report for the

 

court that contains findings of fact and conclusions of law. The

 

special master shall conduct the proceedings as expeditiously as

 

due consideration of the facts and issues of law requires.

 

     (3) If a panel to which an action is assigned under subsection

 

(1) determines that the issues framed in the pleadings only present

 

questions of law, the panel may elect not to refer the action to

 

the special master.

 

     (4) After receiving a report from the special master under

 

subsection (2) or if the panel elects not to refer the action to

 

the special master, the panel to which an action is assigned under

 

subsection (1) shall establish and notify the parties of a schedule

 

for filing briefs in response to the special master's report or

 

based on the issues framed in the pleadings, as applicable, and for

 

oral argument.

 

     Sec. 308d. (1) The position of special master for assisting

 

the court of appeals in carrying out its responsibilities under

 

section 32 of article IX of the state constitution of 1963 is

 

created in the court of appeals.

 

     (2) The special master shall, upon assignment by a panel of

 

the court of appeals under section 308c, take evidence and receive

 

arguments on issues of law and issue a written report to the court

 

recommending the disposition of the case. The rules for proceedings

 

before the special master shall be as established by the supreme

 

court.

 

     (3) The supreme court shall appoint an individual to serve as

 

the special master. The special master shall continue in office at

 

the pleasure of the supreme court.

 

     (4) The supreme court shall establish the qualifications

 

required to serve as special master. The qualifications shall

 

include, at a minimum, that the individual be an attorney who has

 

experience in the operations of local units of government that

 

would enable the individual to assist the court of appeals in

 

expeditiously and meaningfully processing taxpayers' claims in

 

actions under section 308a.

 

     Sec. 308e. (1) The court of appeals shall process an action

 

under section 308a to a decision as rapidly as possible, consistent

 

with achieving justice and assuring the enforcement of the intent

 

of the electors of this state as expressed in the section of the

 

state constitution of 1963 that is the subject of the action. The

 

court of appeals shall give the action priority over other

 

nonemergency matters pending before the court.

 

     (2) In an action under section 308a, this state or the

 

responsible department or agency of this state has the burden of

 

proving compliance with sections 25 to 31 of article IX of the

 

state constitution of 1963. Compliance shall not be presumed but

 

shall be established through evidence introduced by this state or

 

the responsible department or agency.

 

     Sec. 308f. (1) Section 9 of the 2010 act to implement section

 

29 of article IX of the state constitution of 1963 applies if the

 

activity or service required is the subject of an action under

 

section 308a and, within 6 months after the action is filed, the

 

court of appeals has not finally adjudicated both of the following

 

questions:

 

     (a) Whether, based on the claims asserted in the complaint,

 

the subject activity or service is required by state law within the

 

meaning of section 29 of article IX of the state constitution of

 

1963.

 

     (b) If the adjudication under subdivision (a) is that the

 

activity or service is required by state law, whether the

 

legislature has appropriated and disbursed sufficient funding

 

necessary to pay the affected local units of government for any

 

necessary increased costs of the required activities and services,

 

as required by section 29 of article IX of the state constitution

 

of 1963.

 

     (2) If the court of appeals or, following an appeal, the

 

supreme court adjudicates in an action under section 308a that this

 

state has not met its funding obligation under section 29 of

 

article IX of the state constitution of 1963, section 9 of the 2010

 

act to implement section 29 of article IX of the state constitution

 

of 1963 applies until the legislature does 1 of the following:

 

     (a) Appropriates and disburses sufficient funding to meet its

 

responsibilities to the affected local units of government under

 

section 29 of article IX of the state constitution of 1963.

 

     (b) Eliminates or rescinds the subject requirement.

 

     (c) Changes or modifies the subject requirement to reduce the

 

cost of providing the activity or service and appropriates and

 

provides for the disbursement of sufficient funding necessary to

 

pay the affected local units of government for the cost of

 

providing the activity or service under the changed or modified

 

requirements as required by section 29 of article IX of the state

 

constitution of 1963.

 

     Sec. 308g. (1) If, following a final adjudication by the court

 

of appeals of the questions described in section 308f(1)(a) and (b)

 

that is adverse to the taxpayer, an application for leave to appeal

 

to the supreme court is filed by the taxpayer, the supreme court

 

shall make a rapid decision on the application. The supreme court

 

shall give the application priority over nonemergency matters

 

pending before the court. If the application is granted, the

 

court's review of the merits of the appeal shall be given priority

 

over other nonemergency matters pending before the court.

 

     (2) While an application or appeal under this section is

 

pending before the supreme court, the court may stay the obligation

 

of local units to comply with the subject required activity or

 

service pending final adjudication by the court.

 

     Enacting section 1. This amendatory act does not take effect

 

unless Senate Bill No.____ or House Bill No. 5802(request no.

 

05809'10) of the 95th Legislature is enacted into law.