Golden v. Faxon , 152 Mich. App. 171 ( 1983 )

152 Mich. App. 171 (1983) 393 N.W.2d 550

GOLDEN
v.
FAXON

Docket No. 64742.

Michigan Court of Appeals.

Decided November 14, 1983.

Law Offices of Clifford J. DeVine (by Clifford J. DeVine and Clifford J. Dovitz), for plaintiff.

Bromberg, Robinson, Shapero, Cohn & Burgoyne, P.C. (by Michael M. Jacob), and Weinbaum, Willis & Abbo, P.C. (by Kent B. Willis), of counsel, for defendant.

Before: D.F. WALSH, P.J., and T.M. BURNS and N. LAMBROS,^[*] JJ.

PER CURIAM.

Defendant, Jack Faxon, 7th District State Senator, appeals, by leave granted, from the denial of his motion to quash service of process.

Defendant's motion to quash service of process, following plaintiff Richard Golden's commencement of suit against him for contract rescission in October, 1981, was based on his constitutional and statutory privilege from civil process during sessions of the Legislature. Const 1963, art 4, § 11 and^[1] MCL 600.1831(3); MSA 27A.1831(3).^[2] The trial court found that recognition of the privilege in this case would result in a denial of due process to plaintiff, since defendant is a necessary party and since the Legislature adjourned sine die in late December, 1981, thereby making defendant immune from civil process between the 1981 and 1982 legislative sessions. See Bishop v Wayne Circuit Judge, 395 Mich. 672, 677; 237 NW2d 465 (1976).

In our judgment, the trial court committed clear error in this case. The constitution and statute provide clearly and unambiguously for the legislators' privilege from civil process during sessions of the Legislature. While consistent late December sine die adjournments of the Legislature may result in a denial of due process because of the inability to effect service of process on an essential litigant, we find that a single late December adjournment did not cause an unreasonably long period of immunity in this case. Bishop v Wayne Circuit Judge, supra, p 677. Plaintiff has not shown that it will be impossible, within the constraints of Const 1963, art 4, § 11, to effect service of process on defendant and to bring defendant before the court to answer his complaint.

Reversed. No costs, a public question.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] as provided by law, senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof.

The constitutional provision was amended by the people at the November 2, 1982, general election, effective December 18, 1982. The sole change effected by the amendment was the addition of the prefatory words "Except as provided by law." There has as of yet been no legislative response to the amendment.

[2] process shall not be served on any senator or representative during sessions of the legislature and for 15 days next before the commencement and after the end of each session.