Keagan Farris v. John H McKaig III ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
JAMES FARRIS, Next Friend of KEAGAN FOR PUBLICATION
FARRIS, May 17, 2018
9:00 a.m.
Plaintiff-Appellant,
v No. 337366
Antrim Circuit Court
JOHN H. MCKAIG, III, LC No. 2016-009053-NM
Defendant-Appellee.
Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.
O’BRIEN, J.
James Farris, plaintiff’s father and acting as plaintiff’s next friend, appeals as of right the
trial court’s order granting defendant’s motion for summary disposition under MCR 2.116(C)(7).
We affirm.
In 2010, defendant was appointed as plaintiff’s lawyer-guardian ad litem (LGAL) in child
protective proceedings involving plaintiff’s parents. As a result of those proceedings, both of
plaintiff’s parents’ parental rights were terminated. James appealed the termination, and our
Supreme Court eventually remanded the case to the trial court “for reconsideration in light of In
re Sanders, 495 Mich. 394; 852 NW2d 524 (2014),” which had abolished the one-parent doctrine.
In re Farris, 497 Mich. 959 (2015). James’s parental rights were subsequently reinstated, and
plaintiff now resides with his father.
After the reinstatement of James’s parental rights, plaintiff, through next friend James,
filed this suit against defendant for legal malpractice stemming from defendant’s role as
plaintiff’s LGAL. The complaint alleged that defendant had breached his duty as LGAL to
plaintiff by failing to “inform[] himself of the true facts” of the child protective proceedings and
failing to adequately advocate for plaintiff.
Defendant moved for summary disposition under MCR 2.116(C)(7), arguing that he was
entitled to governmental immunity under MCL 691.1407(6), which grants a guardian ad litem
(GAL) immunity from civil liability when acting within the scope of the GAL’s authority. In
response, James argued that MCL 691.1407(6) was only applicable to GALs, not LGALs.
Following a hearing, the trial court held that LGALs are a “subset” of GALs and, therefore, are
entitled to governmental immunity under MCL 691.1407(6). The trial court granted summary
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disposition for defendant because the allegations in the complaint were solely related to actions
undertaken by defendant in his role as LGAL.
On appeal, James, as plaintiff’s next friend, argues that the trial court erred by concluding
that LGALs are entitled to immunity under MCL 691.1407(6). We disagree.
“We review de novo a trial court’s grant of summary disposition.” Innovation Ventures v
Liquid Mfg, 499 Mich. 491, 506; 885 NW2d 861 (2016). We also review de novo the availability
of governmental immunity, Norris v Lincoln Park Police Officers, 292 Mich. App. 574, 578; 808
NW2d 578 (2011), and issues of statutory interpretation, Estes v Titus, 481 Mich. 573, 578-579;
751 NW2d 493 (2008). With regard to a motion for summary disposition pursuant to MCR
2.116(C)(7), we review the affidavits, pleadings, and other documentary evidence presented by
the parties, and we accept as true the plaintiff’s well-pleaded allegations that are not contradicted
by documentary evidence. Oliver v Smith, 290 Mich. App. 678, 683; 810 NW2d 57 (2010).
At issue in this case is a provision of the Governmental Tort Liability Act (GTLA), MCL
691.1401 et seq. The purpose of the GTLA is to limit governmental tort liability. Genesee Co
Drain Comm’r v Genesee Co, 309 Mich. App. 317, 321; 869 NW2d 635 (2015). Thus, the
GTLA’s grant of immunity is broad, and exceptions are narrowly construed. Nawrocki v
Macomb Co Rd Comm, 463 Mich. 143, 158; 615 NW2d 702 (2000). Under the GTLA, “[a]
guardian ad litem is immune from civil liability for an injury to a person or damage to property if
he or she is acting within the scope of his or her authority as guardian ad litem.” MCL
691.1407(6). However, the GTLA does not define “guardian ad litem.” Therefore, it is
necessary for us to interpret the statute and determine whether “guardian ad litem” as used in
MCL 691.1407(6) applies to LGALs.
In reviewing questions of statutory interpretation, we must discern and give effect to the
Legislature’s intent. Putkamer v Transamerica Ins Corp of America, 454 Mich. 626, 631; 563
NW2d 683 (1997). “To do so, we begin by examining the most reliable evidence of that intent,
the language of the statute itself.” Whitman v City of Burton, 493 Mich. 303, 311; 831 NW2d
223 (2013). “If the language of a statute is clear and unambiguous, the statute must be enforced
as written and no further judicial construction is permitted.” Id. When interpreting an undefined
statutory term, the term “must be accorded its plain and ordinary meaning.” Brackett v Focus
Hope, Inc, 482 Mich. 269, 276; 753 NW2d 207 (2008). Consulting a lay dictionary is proper
when defining common words or phrases that lack a unique legal meaning, but when the
statutory term is a legal term of art, the term “must be construed in accordance with its peculiar
and appropriate legal meaning.” Id. “Guardian ad litem” is a legal term of art, see King v
Emmons, 283 Mich. 116, 124-125; 277 N.W. 851 (1938), and, therefore, resort to a legal
dictionary to determine its meaning is appropriate, see Ford Motor Co v City of Woodhaven, 475
Mich. 425, 440; 716 NW2d 247 (2006).
“Guardian ad litem” is defined in Black's Law Dictionary (10th ed) as “[a] guardian, usu.
a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor
party.” Black's Law Dictionary (10th ed) defines “guardian” as “[s]omeone who has the legal
authority and duty to care for another’s person or property, esp. because of the other’s infancy,
incapacity, or disability.” Thus, we must decide whether an LGAL is someone appointed by the
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court to appear in a lawsuit on behalf of a minor and has the legal authority and duty to care for
the minor’s person or property. We conclude that an LGAL is.
MCL 712A.17c(7) provides that “[i]n a proceeding under section 2(b) or (c) of this
chapter, the court shall appoint a lawyer-guardian ad litem to represent the child.” The LGAL’s
duties are laid out in MCL 712A.17d(1), which provides in pertinent part as follows:
A lawyer-guardian ad litem’s duty is to the child, and not the court. The
lawyer-guardian ad litem’s powers and duties include at least all of the following:
(a) The obligations of the attorney-client privilege.
(b) To serve as the independent representative for the child’s best interests,
and be entitled to full and active participation in all aspects of the litigation and
access to all relevant information regarding the child.
(c) To determine the facts of the case by conducting an independent
investigation including, but not limited to, interviewing the child, social workers,
family members, and others as necessary, and reviewing relevant reports and
other information. The agency case file shall be reviewed before disposition and
before the hearing for termination of parental rights. Updated materials shall be
reviewed as provided to the court and parties. . . .
(d) To meet with or observe the child and assess the child’s needs and
wishes with regard to the representation and the issues in the case . . . .
* * *
(f) To explain to the child, taking into account the child’s ability to
understand the proceedings, the lawyer-guardian ad litem’s role.
(g) To file all necessary pleadings and papers and independently call
witnesses on the child’s behalf.
* * *
(i) To make a determination regarding the child’s best interests and
advocate for those best interests according to the lawyer-guardian ad litem’s
understanding of those best interests, regardless of whether the lawyer-guardian
ad litem’s determination reflects the child’s wishes. The child’s wishes are
relevant to the lawyer-guardian ad litem’s determination of the child’s best
interests, and the lawyer-guardian ad litem shall weigh the child’s wishes
according to the child’s competence and maturity. Consistent with the law
governing attorney-client privilege, the lawyer-guardian ad litem shall inform the
court as to the child’s wishes and preferences.
(j) To monitor the implementation of case plans and court orders, and
determine whether services the court ordered for the child or the child’s family
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are being provided in a timely manner and are accomplishing their purpose. The
lawyer-guardian ad litem shall inform the court if the services are not being
provided in a timely manner, if the family fails to take advantage of the services,
or if the services are not accomplishing their intended purpose.
(k) Consistent with the rules of professional responsibility, to identify
common interests among the parties and, to the extent possible, promote a
cooperative resolution of the matter through consultation with the child’s parent,
foster care provider, guardian, and caseworker.
(l) To request authorization by the court to pursue issues on the child’s
behalf that do not arise specifically from the court appointment.
(m) To participate in training in early childhood, child, and adolescent
development.
Based on the duties of an LGAL, it is clearly a guardian; after an LGAL is appointed in child
protective proceedings, it has the statutory authority and duty to care for the child by advocating
for the child’s best interests. And because an LGAL is a guardian appointed by the court to
appear in child protective proceedings on the minor-child’s behalf, it satisfies the dictionary
definition of “guardian ad litem.”
However, this does not end our discussion. MCL 712A.13a indicates that, in child
protective proceedings, a GAL is distinct from an LGAL. MCL 712A.13a states in pertinent part
as follows:
(1) As used in this section and sections 2, 6b, 13b, 17c, 17d, 18f, 19, 19a,
19b, and 19c of this chapter:
* * *
(f) “Guardian ad litem” means an individual whom the court appoints to
assist the court in determining the child’s best interests. A guardian ad litem does
not need to be an attorney.
(g) “Lawyer-guardian ad litem” means an attorney appointed under
section 17c of this chapter. A lawyer-guardian ad litem represents the child, and
has the powers and duties, as set forth in section 17d of this chapter. . . .
Despite the fact that MCL 712A.13a differentiates between a GAL and an LGAL, MCL
712A.13a(1) begins with the qualifier, “As used in this section and sections 2, 6b, 13b, 17c, 17d,
18f, 19, 19a, 19b, and 19c of this chapter . . . .” MCL 712A.13a(1) does not state that its
definitions are applicable to MCL 691.1407. “By specifically limiting the applicability of [these
definitions] to certain statutory provisions, the Legislature expressed a clear intent that the
definition[s] should not be applied elsewhere.” People v Mazur, 497 Mich. 302, 314; 872 NW2d
201 (2015). Moreover, MCL 712A.13a is not part of the GTLA; rather it is part of the Probate
Code, and “the paramount purpose of the juvenile section of the Probate Code is to provide for
the well-being of children.” In re Macomber, 436 Mich. 386, 390; 461 NW2d 671 (1990).
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Though this purpose does not conflict with the GTLA’s purpose of limiting governmental tort
liability, Genesee Co Drain Comm’r, 309 Mich. App. at 321, we need not read these statutes in
harmony—or in pari materia—because their scopes and aims “are distinct and unconnected,”
Mazur, 497 Mich. at 313. Accordingly, the fact that a GAL is defined separately from an LGAL
in MCL 712A.13a(1) does not affect our interpretation of what the Legislature intended by using
“guardian ad litem” in MCL 691.1407(6).
Nonetheless, the distinction is significant to the extent that it signifies that there are
differences between a GAL and an LGAL. For instance, a GAL need not be an attorney, while
an LGAL must be an attorney. MCL 712A.13a(1)(f) and (g). A GAL, after conducting an
independent investigation, “shall make a report in open court or file a written report of the
investigation and recommendations.” MCR 5.121(C). The GAL’s report and any subsequent
reports “may be received by the court and may be relied on to the extent of their probative
value.” MCR 5.121(D)(1). And interested parties have a right to “examine and controvert
reports received into evidence” and can cross-examine the GAL that made the report. MCR
5.121(D)(2)(a)-(c). An LGAL, like a GAL, must conduct an independent investigation, MCL
712A.17d(1)(b), but, unlike a GAL, “[t]he court or another party shall not call [an LGAL] as a
witness to testify regarding matters related to the case,” and an LGAL’s “file of the case is not
discoverable,” MCL 712A.17d(3). And while the court must appoint an LGAL in a child
protective proceeding, MCL 712A.17c(7), a court is not required to appoint a GAL in such
proceedings; MCL 712A.17c(10) provides, “To assist the court in determining a child’s best
interests, the court may appoint a guardian ad litem for a child involved in a proceeding under
this chapter.” (Emphasis added). Perhaps the starkest difference between the two is that, unlike
an LGAL, appointment of a GAL “does not create an attorney-client relationship,” and
“[c]ommunications between that person and the guardian ad litem are not subject to the
attorney-client privilege.” MCR 5.121(E)(1). In addition to these differences, an LGAL has the
statutory duties outlined earlier, which do not apply to a GAL.
Though these differences are numerous, we are not convinced that the Legislature
intended for an LGAL to be considered distinct from a GAL for purposes of MCL 691.1407(6).
The LGAL is a unique entity in Michigan. Its duty in a child protective proceeding is to the
child, MCL 712A.17d(1), but it is “[t]o serve as the independent representative for the child’s
best interests,” MCL 712A.17d(1)(b) (emphasis added), as determined by “the lawyer-guardian
ad litem’s understanding of those interests, regardless of whether the lawyer-guardian ad litem’s
determination reflects the child’s wishes,” MCL 712A.17d(1)(i) (emphasis added). Thus, an
LGAL serves the same basic function as a GAL: independently investigating, determining, and
representing the child’s best interests.
But, as indicated, an LGAL must serve this purpose differently; an LGAL is not tasked
with simply assisting the court in determining the child’s best interests, but rather is an active
participant in the proceedings. Like a party’s attorney, an LGAL may advocate for a position,
MCL 712A.17d(1)(i), call witnesses, MCL 712A1d7(1)(g), and is “entitled to full and active
participation in all aspects of the litigation,” MCL 712A.17d(1)(b). However, an LGAL is not a
party’s attorney; it is an independent representative of the child’s best interests.
Indeed, MCL 712A.13a separately defines an “attorney” for purposes of child protective
proceedings, stating that, as used in this section,
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“Attorney” means, if appointed to represent a child in a proceeding under section
2(b) or (c) of this chapter, an attorney serving as the child’s legal advocate in a
traditional attorney-client relationship with the child, as governed by the
Michigan rules of professional conduct. An attorney defined under this
subdivision owes the same duties of undivided loyalty, confidentiality, and
zealous representation of the child’s expressed wishes as the attorney would to an
adult client. For the purpose of a notice required under these sections, attorney
includes a child’s lawyer-guardian ad litem. [MCL 712A.13a(1)(c).]
And MCL 712A.17d(2) provides that, when a child’s interests differ from the LGAL’s
determination of the child’s best interests, the court has discretion to appoint an attorney for the
child. In pertinent part, that section provides
If, after discussion between the child and his or her lawyer-guardian ad litem, the
lawyer-guardian ad litem determines that the child’s interests as identified by the
child are inconsistent with the lawyer-guardian ad litem’s determination of the
child’s best interests, the lawyer-guardian ad litem shall communicate the child’s
position to the court. If the court considers the appointment appropriate
considering the child’s age and maturity and the nature of the inconsistency
between the child’s and the lawyer-guardian ad litem’s identification of the
child’s interests, the court may appoint an attorney for the child. An attorney
appointed under this subsection serves in addition to the child’s lawyer-guardian
ad litem. [MCL 712A.17d(2).]
Thus, an attorney for the child is distinct from an LGAL; an LGAL is an advocate for the child’s
best interests as determined by the LGAL, MCL 712A.17d(1)(b) and (i), whereas an attorney for
the child serves in the traditional sense of an attorney: an advocate for the child’s interests as
determined by the child, MCL 712A.13a(1)(c); MCL 712A.17d(2). While there will often not be
a need for this distinction, we find it significant because it emphasizes that an LGAL is unique; it
is an advocate in the proceedings—like an attorney—but it is not necessarily an advocate for a
party. Rather, an LGAL is an advocate for the child’s best interests.
In this role, an LGAL, although distinct from a GAL, serves the same purpose as a GAL:
representing the child’s best interests. MCL 712A.17c(10); MCL 712A.17d(1)(b). What
constitutes the child’s best interests is ultimately a professional judgment call made by the LGAL
or GAL, independent of the child’s wishes, although those wishes are considered as part of the
GAL or LGAL’s determination. In contrast, an attorney for the child, if appointed, advocates for
the child’s interests, regardless of what those interests are. Thus, although an LGAL functions
like an attorney and its duties go beyond those of a GAL, its duties ultimately conform to those
of a GAL: investigating and independently determining the child’s best interests and then serving
those interests. Accordingly, because an LGAL fits into the dictionary definition of “guardian ad
litem” and serves the same purpose as a GAL in child protective proceedings, we broadly
interpret “guardian ad litem” as used in the GTLA, Nawrocki, 463 Mich. at 158, and conclude
that the Legislature intended for LGALs to be immune “from civil liability for an injury to a
person or damage to property if he or she is acting within the scope of his or her authority as” an
LGAL, MCL 691.1407(6).
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We find further support for this conclusion based on the context in which the Legislature
enacted MCL 691.1407(6) and its subsequent creation of LGALs. In Bullock v Huster, 209 Mich
App 551, 553; 532 NW2d 202 (1994), vacated and remanded 451 Mich. 884 (1996) (Bullock I), a
GAL was sued for negligence stemming from her role in a custody dispute. The GAL argued
that she was entitled to immunity under MCL 691.1407, which, at that time, did not include the
provision extending immunity to GALs. Id. at 554-555. This Court disagreed, concluding that
the statute was a “comprehensive review of governmental immunity” that explicitly “failed to
include GALs within the class of persons entitled to immunity.” Id. at 555. The Court explained
that “[w]here the Legislature undertakes such broad reform, the expression of one thing in the
resulting statute may be deemed the exclusion of another.” Id. Shortly after the release of
Bullock I, the Legislature amended MCL 691.1407 to include the current subsection expressly
granting GALs immunity from civil liability. Bullock v Huster (On Remand), 218 Mich. App.
400, 403-404; 554 NW2d 47 (1996) (Bullock II). Our Supreme Court subsequently vacated
Bullock I and remanded it to this Court, id. at 402, and this Court held on remand that the GAL
was “immune from liability for any injuries to [the] plaintiff caused when [the] defendant was
acting within the scope of her authority as a guardian ad litem for [the] plaintiff in the underlying
child custody suit,” id. at 405.
However, when the Legislature amended MCL 691.1407 following Bullock I, LGALs did
not exist; LGALs were not codified until 1998. See 1998 PA 480. Prior to that time, courts were
required to appoint an attorney to represent the child in child protective proceedings. See, e.g.,
1998 PA 474. The role and responsibilities of that attorney were left largely undefined by
statute, and instead were informed by the obligations that an attorney owed a client generally.
See In re AMB, 248 Mich. App. 144, 221-227; 640 NW2d 262 (2001) (“In both the Child
Protection Law and the Juvenile Code, the Legislature made clear that a child’s attorney has the
same duties that any other client’s attorney would fulfill when necessary.”).1 This changed with
the passage of 1998 PA 480 and its creation of LGALs and all of their statutory duties. MCL
712A.17d(1); see also In re AMB, 248 Mich. App. at 224 n 188. As explained, an LGAL is tasked
with the statutory responsibility of representing the child’s best interests—like a GAL—and not
fulfilling the role of a traditional attorney in the attorney-client relationship.
James urges us to invoke the maxim of expression unius est exclusion alterius—that the
express mention of one thing is to the exclusion of all others—to conclude that the Legislature’s
failure to amend MCL 691.1407(6) to explicitly include LGALs after the enactment of 1998 PA
480 indicates that the Legislature intended to exclude LGALs from MCL 691.1407(6)’s grant of
immunity. However, that is true only if the Legislature recognized LGALs as being distinct
from GALs. If, on the other hand, the Legislature recognized LGALs as type of GAL, there
would be no need to mention LGALs in MCL 691.1407(6) because they were already included
in the statute’s reference to GALs. See Kater v Brausen, 241 Mich. App. 606, 609-610; 617
1
Although In re AMB was decided after the creation of LGALs, the issue in the case did not
relate to an LGAL but to an attorney for the child appointed under the earlier version of MCL
712A.17c. See In re AMB, 248 Mich. App. at 222; see also id. at 224 n 188 (acknowledging that
1998 PA 480 “changed the relationship between the child and the child’s lawyer”).
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NW2d 40 (2000) (explaining that the Legislature did not intend to exclude “temporary
guardians” from application of MCL 722.26b(1) by failing to expressly list them in that section
because “the Legislature recognized temporary guardians as a subgroup of ordinary guardians”
and, therefore, there was “no need to mention them”).
The Legislature is presumed to be familiar with the rules of statutory construction, Alma
Piston Co v Dep’t of Treasury, 236 Mich. App. 365, 370; 600 NW2d 144, 147 (1999), and “to be
aware of the existence of the law in effect at the time of its enactments,” Malcolm v City of East
Detroit, 437 Mich. 132, 139; 468 NW2d 479 (1991). Thus, when the Legislature enacted 1998
PA 480, it was aware that the governmental immunity granted to GALs in MCL 691.1407(6)
was to be broadly interpreted and exceptions narrowly construed. See Nawrocki, 463 Mich. at
158, citing Ross v Consumers Power Co, 420 Mich. 567, 618; 363 NW2d 641 (1984). Therefore,
after enacting 1998 PA 480, there was no need for the Legislature to amend MCL 691.1407(6) to
include LGALs because, by crafting an LGAL’s purpose to reflect that of a GAL, the Legislature
intended for an LGAL to be considered a “guardian ad litem” when that term is broadly
interpreted for purposes of governmental immunity.2
2
We also note that, given the importance of an LGAL’s ability to make independent decisions
regarding the child’s best interest, we have no doubt that the Legislature intended to include
LGALs in the class of GALs afforded immunity under MCL 691.1407(6). When this Court
issued its opinion in Bullock I, Judge Fitzgerald, in a concurring opinion, wrote:
I write separately . . . to express my concern that disgruntled parents who are
dissatisfied with a custody decision may retaliate by suing the guardian ad litem,
ostensibly on behalf of the child. I am concerned that guardians ad litem, whose
services are consistently used in cases involving termination of parental rights and
child neglect and used with increasing frequency in custody cases to protect the
interests of children, may be reluctant to serve as guardians ad litem if they are
forced to defend their actions . . . . [Bullock I, 209 Mich. App. at 557
(FITZGERALD, J., concurring).]
A trial court is required to appoint an LGAL in a child protective proceeding, and the touchstone
of an LGAL’s role is its statutory responsibility to protect the best interests of the child. The
Legislature enabled LGALs to accomplish this by granting them statutory independence and
autonomy; an LGAL is required to conduct an independent investigation and determine—free
from outside influence—the child’s best interests. This independence and autonomy is essential
to accomplishing the LGAL’s task; yet it would be inherently compromised in the absence of
immunity. See Short by Oosterhous v Short, 730 F Supp 1037, 1039 (D Colo, 1990) (“Fear of
liability to one of the parents can warp judgment that is crucial to vigilant loyalty for what is best
for the child; the guardian’s focus must not be diverted to appeasement of antagonistic parents.”).
In tasking LGALs with the independence to determine the child’s best interests and advocate on
behalf of those interests, we believe that the Legislature intended for LGALs to be immune so as
to allow them to accomplish this goal free from considerations unrelated to the child’s best
interest.
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The dissent provides a unique resolution to the problem before us, but its conclusion does
not appear grounded the principles of statutory interpretation. At issue before us is whether the
Legislature intended to include LGALs in its use of “guardian ad litem” in MCL 691.1407(6).
The dissent believes that “guardian ad litem” as used in the GTLA should be defined by the
duties of a GAL set forth in MCR 5.121(C). The dissent would hold that, if the duty for which
the LGAL is sued “is also one performed by a GAL” as defined in MCR 5.121(C), then “the
Legislature intended to protect the party performing that duty whether called a GAL or an
LGAL.” However, the dissent provides no support for its conclusion that the Legislature
intended to define this statutory term by reference to a court rule. As stated, the Legislature is
presumed familiar with the rules of statutory interpretation, and had it intended for us to interpret
MCL 691.1407(6) through reference to a court rule, it certainly could have used language to
reflect that intent. See Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich. 488, 505-506; 475
NW2d 704 (1991) (“[W]e believe that if the Legislature had intended such an interpretation . . .
if would adopt explicit language clarifying that intent.”). Thus, we disagree with the dissent’s
conclusion that this statutory term used by the Legislature should be interpreted through a court
rule promulgated by the Judiciary, and instead adhere to the basic principles of statutory
interpretation that we have explained throughout this opinion.3
For these reasons, we conclude that the Legislature intended for LGALs to be immune
from civil liability under MCL 691.1407(6) when acting in their role as an LGAL. Because the
allegations in this case all relate to defendant’s actions while acting in his role as an LGAL, the
trial court properly granted summary disposition to defendant.4
3
Further, interpreting a Legislative term through reference to a court rule, without any indication
that this is the Legislature’s intent, potentially violates the separation of powers doctrine. Court
rules were created by our Supreme Court, and that Court has the power to amend those rules.
See MCR 1.201. If we were to interpret “guardian ad litem” as used in MCL 691.1407(6) by
reference to MCR 5.121(C), our Supreme Court would have effectively defined, and at any point
could redefine, that term. Obviously, this is not the judiciary’s role. See Wilson v Arnold, 5
Mich. 98, 104 (1858) (“It is for the court to declare what the law is—not to make it.”); see also
Mich Residential Care Ass’n v Dep’t of Social Servs, 207 Mich. App. 373, 377; 526 NW2d 9
(1994) (“The constitutional duty of courts is to interpret and apply the law, not to enact laws.”).
4
We note that judicial mechanisms remain in place to prevent abuse, misconduct, and
irresponsibility of LGALs. First, an LGAL’s immunity only attaches to conduct within the scope
of the LGAL’s duties. MCL 691.1407(6). Second, the court monitors the LGAL’s performance,
see, e.g. MCR 3.915(2), and can remove the LGAL if necessary, MCL 712A.17c(9). Third, an
LGAL is simply another advocate in our adversary system; whatever position an LGAL takes
during a proceeding can be addressed and rebutted by the other parties, thereby ensuring that the
trial court will be apprised of the facts and can issue an informed decision. Finally, an LGAL
may be subject to punishment by the Attorney Grievance Commission if his or her conduct fails
to meet the standards set forth in the Michigan Rules of Professional Conduct.
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Affirmed.
/s/ Colleen A. O'Brien
/s/ Michael J. Kelly
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