20231207_C363697_43_363697.Opn.Ord.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CB, by Next Friend and Guardian DEBBIE FOR PUBLICATION
MACIKA, December 7, 2023
9:05 a.m.
Plaintiff-Appellant,
v No. 363697
Livingston Circuit Court
LIVINGSTON COUNTY COMMUNITY MENTAL LC No. 22-000284-AW
HEALTH,
Defendant-Appellee.
Before: HOOD, P.J., and JANSEN and FEENEY, JJ.
HOOD, P.J.
Plaintiff, CB, through his mother and guardian, Debbie Macika, appeals by right the trial
court’s order denying his petition for a writ of mandamus related to Medicaid-funded benefits.
Defendant, Livingston County Community Mental Health (LCCMH), eventually provided the
services that CB sought to compel through mandamus; some before the trial court issued its order,
and some while this appeal was pending. This rendered the issue of mandamus moot, but not
damages. We affirm in part, reverse in part, and remand for further proceedings to address
damages.
I. BACKGROUND
This case arises out of LCCMH’s failure to provide CB certain services to which CB was
entitled and which LCCMH was required to provide under Medicaid. The underlying facts of this
case are not largely in dispute.
CB is a man with cerebral palsy, an intellectual disability, and speech impairments. He is
quadriplegic and cannot talk. His mother, Macika, is his guardian. Because of these disabilities,
CB was authorized to receive certain Medicaid-funded services, including Community Living
Support (CLS) and “respite care services.” CLS services are meant to help individuals like CB
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remain in their communities and avoid institutionalization.1 Respite care services are provided
intermittently to relieve the recipient’s family during times when they would be providing unpaid
care.2 Depending on a beneficiary’s plan of service, respite care services can be provided in
licensed foster care homes, licensed camps, or as in CB’s case, in the home.3 This Court has
previously summarized these Medicaid-funded services as follows:
Michigan offers funding and support to qualifying individuals with
disabilities to help them live independently in their home communities instead of
in institutionalized care facilities. This program is called Community Living
Support (CLS) and is authorized by a Medicaid waiver from the federal government
called the Habilitation Supports Waiver (HSW). The CLS program furthers
participants’ “self-determination by allowing them to structure their own support
services based on their medical needs.” The HSW is financed through “capitation
procedures,” which “means that the federal government provides [prepaid inpatient
health plans (PIHPs)] . . . with a fixed amount of funding for each person
participating in the CLS program, regardless of how many services the entity
ultimately provides to the recipient. The PIHP then determines how to allocate
these funds to recipients.” [Wiesner v Washtenaw Co Community Mental Health,
340 Mich App 572, 577; 986 NW2d 629 (2022) (citations omitted; alteration in
original).]
The CLS and respite services were part of CB’s “Individual Plan of Service (IPOS). Individuals
like CB, who choose to receive CLS services, go through a “person-centered planning process,”
which results in an IPOS and a corresponding budget for CLS services. See Wiesner, 340 Mich
App at 578. “The IPOS describes the services that have been deemed ‘medically necessary’ for
each recipient based on criteria defined in Michigan’s Medicaid Provider Manual.” Id. (quotation
marks and citation omitted). The budget ostensibly reflects the costs of the services and supports
necessary to implement the IPOS. Here, this amounted to 25 hours of CLS and 6 hours of respite
services each week. CB’s respite services were to be in-home, as opposed to a foster care center
or camp. These services were authorized to start in June 2021.
LCCMH is a community mental health service provider, and was the service provider
responsible for CB’s services. It had a prepaid inpatient health plan (PIHP) contract with the
Michigan Department of Health and Human Services (MDHHS), the state department responsible
for administering Medicaid funds and programing in Michigan, to provide all medically necessary
1
Michigan Medicaid Provider Manual, Behavioral Health and Intellectual and Developmental
Disability Supports and Services, p 111-112. Available at https://www.mdch.state.mi.us/dch-
medicaid/manuals/MedicaidProviderManual.pdf.
2
Michigan Medicaid Provider Manual, Behavioral Health and Intellectual and Developmental
Disability Supports and Services, p 126. Available at
https://www.mdch.state.mi.us/dchmedicaid/manuals/MedicaidProviderManual.pdf.
3
Michigan Medicaid Provider Manual, Behavioral Health and Intellectual and Developmental
Disability Supports and Services, p 127. Available at
https://www.mdch.state.mi.us/dchmedicaid/manuals/MedicaidProviderManual.pdf.
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services to CB. This Court has previously described the regulatory and organizational background
for this relationship:
The MDHHS “contracts with regional prepaid inpatient health plans
(‘PIHPs’), which are public managed care organizations that receive funding and
arrange and pay for Medicaid services.” The MDHHS “has supervisory and
policymaking authority over the PIHPs and must ensure that PIHPs retain oversight
and accountability over any subcontractors. PIHPs subcontract with community
organizations that provide or arrange for mental health services for recipients . . . .”
[Wiesner, 340 Mich App at 577 (citations omitted; alteration in original).]
In this case, LCCMH was a community mental health service provider and mental health authority
that contracted with MDHHS and one of Michigan’s ten regional PIHPs to provide Medicaid-
funded services to, among others, adults with mental illness or developmental disabilities who
lived in Livingston County.4
There is no dispute about LCCMH’s intended function or that it was the provider
responsible for providing CB with services for his disabilities. But CB did not receive his
authorized services for approximately two years due to LCCMH’s failure or inability to find
suitable providers. Although the services were authorized to start in June 2021, CB did not receive
CLS services until September 2022, and at-home respite care services until June 2023.
Because of the delay, in March 2022, CB sought and received a “Medicaid Fair Hearing”
before an administrative law judge (ALJ). MDHHS delegates authority to the Michigan Office of
Administrative Hearings and Rules to hear and issue decisions on behalf of MDHHS. A “Medicaid
Fair Hearing” is an administrative hearing that allows beneficiaries (or providers) to contest actions
taken by MDHHS, their contracted agencies, or managed care entities. During this process,
LCCMH stipulated that the CLS and respite care services at issue were medically necessary and it
had not provided them.
On July 8, 2022, the ALJ issued a written decision granting summary disposition in favor
of CB. After that decision, LCCMH was required to provide the services as promptly and
expeditiously as possible, but not later than 72 hours after the order. See 42 CFR § 428.424(a). In
a certification order dated July 18, 2022, one week after the 72-hour deadline, LCCMH stated that
it had not been able to comply with the decision and order and that its expected compliance date
was “unknown.”
In August 2022, in an effort to enforce the ALJ’s order, CB filed a complaint for mandamus
and ex parte motion to show cause. Through the complaint, CB requested three specific forms of
relief. First, he requested the trial court to issue a writ of mandamus compelling LCCMH to
provide the services ordered by the ALJ. Second, CB requested that the court issue an order to
show cause, ordering LCCMH to answer the complaint within seven days of service and setting a
show cause hearing. Finally, he sought damages under MCL 600.4431, including “compensation
4
These sorts of community mental health service providers are defined and authorized under
MCL 330.1204 of the Mental Health Code, MCL 330.1001 et seq.
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for [CB]’s isolation at home and mental suffering” due to LCCMH’s failure to timely comply with
the ALJ’s order.
In September 2022, the trial court held a show-cause hearing, and LCCMH explained that,
despite the difficulties in obtaining workers to provide services to CB (and others), it had finally
been able to do so. This new worker would begin providing services to CB within days.
Accordingly, the trial court adjourned the matter to allow the new worker time to begin.
More than a month later, the parties returned for a follow-up hearing, and CB was satisfied
with the new worker with respect to CLS services. However, CB’s counsel expressed concern
with whether the worker could provide respite services. LCCMH’s counsel explained that there
were a number of alternatives available for respite services, such as a respite camp or group home.
CB’s counsel countered that the purpose of the six hours of respite care in CB’s plan was to provide
services at his home while giving his mother a rest; the respite camp meanwhile would have
required CB’s mother to drive three hours round trip each week. Regardless, LCCMH’s counsel
stated that the new worker was willing to provide respite services to CB and that LCCMH would
ensure such services were provided by the worker. CB’s counsel noted that as of that day, they
had yet to receive respite care services.
At the conclusion of the second hearing, the trial court denied CB’s request for a writ of
mandamus. Without taking evidence, it concluded that LCCMH had “done their duty in providing
proper care for this citizen . . . giving the attendant care, and then with the respite care.”
(According to CB, at the time, LCCMH had yet to provide respite care.) It also stated, “I imagine
you both are going to continue to work in good faith to make this thing happen, to get the respite
care.” The trial court did not explicitly analyze the four-part test for mandamus.5 It later entered
an order denying the writ of mandamus for the reasons stated on the record. The trial court,
however, did not address CB’s damages claim under MCL 600.4431.
This appeal followed. According to CB, on June 4, 2023, during the pendency of this
appeal, LCCMH began providing the respite services required in CB’s individual plan of service.
CB now describes the mandamus portion of the relief sought through this appeal as moot.
II. MOOTNESS
Originally, on appeal, CB argued that the trial court abused its discretion by denying his
petition for a writ of mandamus. But prior to oral argument on this appeal, CB, through counsel,
filed a supplement indicating that LCCMH began providing respite care services in June 2023.
(As stated, LCCMH began providing CLS services after CB filed the complaint and motion for
show cause.) CB claims this renders his mandamus issue moot. We agree that this development
5
In Citizens for Higgins Lake Legal Levels v Roscommon Co Bd of Comm’rs, 341 Mich App
161, 1780179; 884 NW2d 257 (2016), this Court confirmed that “[t]o obtain the extraordinary
remedy of a writ of mandamus, the plaintiff must show that (1) the plaintiff has a clear, legal
right to performance of the specific duty sought, (2) the defendant has a clear legal duty to
perform, (3) the act is ministerial, and (4) no other adequate legal or equitable remedy exists that
might achieve the same result” (quotation marks and citation omitted).
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renders the mandamus issue moot, but not the issue of damages. See Ziegler v Brown, 339 Mich
390, 395; 63 NW2d 677 (1954) (explaining that mandamus will be denied when the issue is moot
and the writ serves no purpose). See also Equity Funding, Inc v Milford, 342 Mich App 342, 352-
354; 994 NW2d 859 (2022) (noting that a claim for damages caused by malicious filing of false
lien not rendered moot by subsequent discharge of the lien).
A. STANDARD OF REVIEW
We review for an abuse of discretion the trial court’s decision on a writ of mandamus.
Citizens for Higgins Lake Legal Levels v Roscommon Co Bd of Comm’rs, 341 Mich App 161, 177-
178; 988 NW2d 841 (2022). “A court abuses its discretion when its decision is outside the range
of reasonable and principled outcomes.” Id. at 178 (quotation marks and citation omitted). “A
trial court necessarily abuses its discretion when it makes an error of law.” Pirgu v United Servs
Auto Ass’n, 499 Mich 269, 274; 884 NW2d 257 (2016). “Issues involving mootness are questions
of law” that we review de novo. Equity Funding, 342 Mich App at 348.
B. LAW AND ANALYSIS
We are required to address mootness when it arises. Equity Funding, 342 Mich App at
349. Regarding mootness and the extent of judicial power, we have previously stated:
Judicial power pertains to the right of courts of proper jurisdiction to
determine actual cases and controversies arising between adversaries. To ensure
that the judiciary only exercises “judicial power” and does not usurp the power of
other branches of government, Michigan courts and federal courts have developed
justiciability doctrines, including mootness, to ensure that cases are appropriately
before the court. If an issue is moot, the court may not adjudicate the claim. [Id.
(citations omitted).]
The issue here is the grant or denial of the writ of mandamus. A writ of mandamus is
unnecessary when the underlying issue becomes moot. See Ziegler, 339 Mich at 395. See also
Carlson v Wyman, 189 Mich 402, 403; 155 NW 418 (1915) (demonstrating that a writ of
mandamus is unnecessary when the issue becomes moot). Mandamus is a remedy of extraordinary
power, but narrowly defined usage. See Higgins Lake, 341 Mich App at 178 ( “[M]andamus is an
extraordinary remedy and it will not lie to review or control the exercise of discretion vested in a
public official or administrative body”) (quotation marks and citation omitted; alteration in
original). Our Supreme Court stated in Ziegler v Brown that “[t]his court has repeatedly held that
the writ of mandamus is one of grace and not of right, and will be granted only where the duty that
it sought to be enforced is clear and positive.” Ziegler, 339 Mich at 395 (emphasis added). The
Ziegler Court stated that a writ of mandamus will not be issued “to compel the doing of a useless
thing” or “if the question is moot and the granting of a writ of mandamus would serve no
purpose . . . .” Id.At this point, issuing the writ would serve no purpose. CB filed suit to compel LCCMH
to provide the services in his individual plan of service as confirmed by the ALJ. This included
CLS and respite care services. Before the conclusion of the hearing before the trial court, LCCMH
began providing CLS services. According to CB’s supplemental notice, LCCMH eventually
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began providing at home respite care services during the pendency of this appeal. In other words,
there is nothing left to compel. Because neither this Court nor the trial court can fashion a remedy
related to the complaint for mandamus, the question of the propriety of the trial court’s denial of
the writ is now moot. Unlike the issuance of mandamus, the question of damages under MCL
600.4431 is, as discussed below, very much still alive and an issue on which the trial court may
still grant relief. Cf. Equity Funding, 342 Mich App at 352-354. As discussed below, on remand,
to resolve the damages issue, the trial court must address the propriety of the relief CB sought,
even if it cannot issue the writ.
III. DAMAGES
CB argues that the trial court erred by failing to address whether he was entitled to damages
under MCL 600.4431. We agree.
A. STANDARD OF REVIEW
At the threshold, the parties appear to dispute the standard of review. As noted, we review
a trial court’s decision on a petition for a writ of mandamus for an abuse of discretion, but questions
of law de novo. Higgins Lake, 341 Mich App at 177-178. This includes interpretation of a statute.
Berry v Garrett, 316 Mich App 37, 41; 890 NW2d 882 (2016). “A trial court necessarily abuses
its discretion when it makes an error of law.” Pirgu, 499 Mich at 274. LCCMH asserts without
citation that the applicable standard of review for damages under MCL 600.4431 is clear error.
That is incorrect. It is accurate that “[t]his Court reviews the trial court’s determination of damages
following a bench trial for clear error.” Alan Custom Homes, Inc v Krol, 256 Mich App 505, 513;
667 NW2d 379 (2003) (emphasis added). But this standard does not apply here, where the trial
court did not hold a bench trial or evidentiary hearing, or make any determination regarding
damages. Rather, the entire portion of CB’s claim was left wholly unaddressed.
B. LAW AND ANALYSIS
CB’s damages claim turns on the meaning of MCL 600.4431, a statute authorizing money
damages in mandamus actions. Regarding statutory interpretation, this Court has previously
stated:
The goal of statutory interpretation is to determine and apply the intent of the
Legislature. The first step in determining legislative intent is to examine the specific
language of the statute. If the language is clear and unambiguous, judicial
construction is neither required nor permitted, and courts must apply the statute as
written. The provisions of a statute must be read in the context of the entire statute
to produce a harmonious whole. This Court must consider the object of the statute
and the harm it is designed to remedy, and apply a reasonable construction that best
accomplishes the statute's purpose. [Yopek v Brighton Airport Ass’n, Inc, 343 Mich
App 415, 424; ___ NW2d ___ (2022) (quotation marks and citations omitted).]
We may not read something into the statute “that is not within the manifest intent of the Legislature
as derived from the words of the statute itself.” McQueer v Perfect Fence Co, 502 Mich 276, 286;
917 NW2d 584 (2018) (quotation marks and citation omitted). A statute must be read as a whole,
Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009), and we “must give effect to every
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word, phrase, and clause in a statute and avoid an interpretation that would render any part of the
statute surplusage or nugatory,” State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142,
146; 644 NW2d 715 (2002).
Here, under its plain terms, the statutory provision at issue, MCL 600.4431, does not limit
damages awards to plaintiffs who successfully obtain a writ of mandamus. MCL 600.4431
provides: “Damages and costs may be awarded in an action for mandamus. No damages may be
allowed in mandamus against a public officer who, in good faith, acted erroneously.” We agree
with CB that nothing in the statute’s plain language limits its application to the issuance of a writ
of mandamus. Instead, MCL 600.4431 language provides that damages are permitted “in an action
for mandamus.” Nothing about this language limits damages to a successful action for mandamus,
which is to say, the issuance of a writ is not a precondition to damages. To hold otherwise would
impermissibly add language into the statute. See McQueer, 502 Mich at 286.
This interpretation is in harmony with the broader statute. For example, in MCL 600.4411,
our Legislature provided for a fine related to mandamus. But it expressly conditioned the $250
fine on “[w]henever mandamus is directed,” in other words, whenever the writ of mandamus is
issued. See MCL 600.4411 (emphasis added). MCL 600.4431 contains no such express language.
See In re MCI Telecom Complaint, 460 Mich 396, 412; 596 NW2d 164 (1999) (“In general, where
statutes relate to the same subject matter, they should be read, construed, and applied together to
distill the Legislature’s intent.”). This is consistent with this Court’s prior analysis, albeit in an
unpublished opinion, addressing fines related to mandamus. See Coloma Emergency Med Serv,
Inc v Dep’t of Community Health, unpublished per curiam opinion of the Court of Appeals, issued
March 6, 2012 (Docket Nos. 300416 and 300599), p 4 (“The imposition of a fine is conditioned
on the writ of mandamus, whereas a damage award is not conditioned on the writ of mandamus.
If the Legislature had intended to condition an award of damages on the issuance of a writ of
mandamus, the Legislature could have so stated in subsection 4431.”).6 For us to condition
damages under MCL 600.4431 on success in obtaining a writ of mandamus would not only require
us to insert language into MCL 600.4431, but it would require us to render the language in MCL
600.4411 as surplusage.
Although damages under MCL 600.4431 are not conditioned on successfully obtaining the
writ of mandamus, they are tethered to the merits of the underlying mandamus action. In other
words, to obtain damages under MCL 600.4431, a plaintiff must have a meritorious claim seeking
a writ of mandamus in the first place—even if it is subsequently rendered moot. CB acknowledges,
and even suggests, this commonsense limitation. To hold otherwise would be inconsistent with
the text, context, and legislative purpose of MCL 600.4431. On its terms, MCL 600.4431 only
allows damages “in an action for mandamus.” The damages provision is also contained within
Chapter 44 of the Revised Judicature Act of 1961, MCL 600.1 et seq., which has four sections all
dealing with mandamus actions. Damages, therefore, must be tied to a viable mandamus action.
If MCL 600.4431 provided for damages, so long as a plaintiff brought a meritless mandamus action
6
Unpublished opinions of this Court are not binding authority but may be considered for their
persuasiveness. See Legacy Custom Builders, Inc v Rogers, ___ Mich App ___, ___; ___ NW2d
___ (2023) (Docket No. 359213); slip op at 9.
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along with their request, then it would effectively be a standalone damages provision, not tied to
any underlying claim. Instead, we conclude that the Legislature did not choose to enact a damages
provision unrelated to a viable claim. Rather, it conditioned MCL 600.4431 on a meritorious
mandamus claim even if the court does not grant the requested writ.
Contrary to LCCMH’s argument, the trial court does not appear to have considered the
damages component of CB’s claim at all, let alone the good-faith exception embedded in MCL
600.4431. Its discussion of “good faith” was only in reference to the propriety of granting or
denying mandamus, not damages. And, although there is a good-faith exception available, it would
not apply. MCL 600.4431’s good-faith exception applies only to “a public officer.” See MCL
600.4431. LCCMH is not a public officer. It is an organization. More specifically, LCCMH is a
community mental health service provider and mental health authority created pursuant to
Michigan’s Mental Health Code. MCL 330.1205(9) of the Mental Health Code classifies “a
community mental health authority” as “a public governmental body.” And the overarching
statutory framework that encompasses MCL 600.4431 distinguishes entities like LCCMH from
public officers. Compare MCL 600.4431 (providing a good-faith exception for public officers
who make an error while acting in good faith) with MCL 600.4411 (providing fines under certain
conditions when a court issues mandamus against “any public officer, body or board, corporation
or corporate officer”) (emphasis added). Because LCCMH is a public governmental body, rather
than a public officer, public officers within LCCMH might avail themselves of the good-faith
defense under MCL 600.4431, but LCCMH remains potentially exposed to the statutorily-
authorized damages. Accordingly, the good-faith exception is inapplicable.7
Finally, it is immaterial to the question of damages that LCCMH eventually began
providing services. See Mercer v Lansing, 274 Mich App 329, 330, 334; 733 NW2d 89 (2007)
(holding that a plaintiff may be able to recover damages against a defendant “for [its] failure to
comply in the past”). See also Equity Funding, 342 Mich App at 352-354 (holding that lien
discharge mooted claims for declarative relief and to quiet title but lien discharge did not render
moot damages for slander-of-title claim because past damage could still be compensated). CB’s
damages claim relates to injury incurred during the period that there was no dispute he was entitled
to the services, but LCCMH failed to provide them. Therefore, CB could (and can) seek damages
for LCCMH’s past failure to provide services. See Intl Union, United Auto, Aerospace &
Agricultural Implement Workers of America-UAW v O’Rourke, 388 Mich 578, 584-585; 202
NW2d 290 (1972) (indicating that mootness of an action for a writ of mandamus does not preclude
damages under MCL 600.4431). Holding otherwise would allow defendants to evade damages
7
We also question whether the good-faith exception would be inapplicable for another reason.
LCCMH never argued that it acted erroneously. MCL 600.4431’s good-faith exception only
applies when a public officer acted in good faith and acted erroneously. From the outset,
LCCMH never contested its legal duty or CB’s right to the services at issue. Critically, at the
first hearing before the circuit court, LCCMH’s counsel explicitly stated that it did not act
erroneously. Rather, LCCMH argued that it was simply unable to provide services until a new
worker was hired. This may provide an independent basis for the unavailability of the good-faith
exception under MCL 600.4431.
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solely by complying with their legal duties after a plaintiff filed suit, but before a trial court decides
whether to issue the writ.
The trial court’s decision on mandamus did not resolve the issue of damages for past
noncompliance, or the noncompliance related to respite services that continued well into this
appeal. The trial court therefore erred by failing to address CB’s request for damages under MCL
600.4431. Acknowledging that the court cannot issue the writ because there is nothing left to
compel, on remand, the trial court nonetheless must address the merits of whether CB had a valid
claim for mandamus in order to address the remaining question of whether CB is entitled to
damages and costs for LCCMH’s past noncompliance.
IV. CONCLUSION
We affirm in part, reverse in part, and remand for the trial court to determine whether
plaintiff is entitled to damages pursuant to MCL 600.4431 and the extent of those damages if any.
We retain jurisdiction.
/s/ Noah P. Hood
/s/ Kathleen Jansen
/s/ Kathleen A. Feeney
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Court of Appeals, State of Michigan
CB V LIVINGSTON COUNTY COMMUNITY MENTAL HEALTH Noah P. Hood
Presiding Judge
Docket No. 363697
Kathleen Jansen
LC No. 22-000284-AW
Kathleen A. Feeney
Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 21 days of the Clerk’s
certification of this order, and they shall be given priority on remand until they are concluded. As stated
in the accompanying opinion, on remand, the trial court must consider whether plaintiff is entitled to
damages under MCL 600.4431 and the extent of those damages if any. In doing so, the trial court must
consider whether plaintiff would have been entitled to relief if his petition for the writ of mandamus were
not rendered moot by defendant’s subsequent compliance with its legal duty. The proceedings on remand
are limited to these issues.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within
seven days after entry, appellants shall file with this Court copies of all orders entered on remand.
Appellant may file a supplemental brief within 21 days of the trial court’s issuance of its
findings on remand. Appellee shall have 21 days thereafter to file a reply brief.
The transcript of all proceedings on remand shall be prepared and filed within 21 days after
completion of the proceedings.
_______________________________
Presiding Judge
December 7, 2023