in Re Bradley Estate

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
In re BRADLEY ESTATE
Docket No. 145055. Argued March 6, 2013 (Calendar No. 8). Decided July 26, 2013.
Nancy Mick, as personal representative of the estate of Stephen Bradley, filed a contempt
of court petition in the Kent County Probate Court against the Kent County Sheriff’s
Department. Mick had obtained an order from the probate court on August 12, 2004, requiring
that her brother, Bradley, be taken into custody for a psychiatric evaluation. The sheriff’s
department failed to execute the pick-up order, and Bradley fatally shot himself on August 21,
2004. Mick originally filed a wrongful-death action against the sheriff’s department in the Kent
Circuit Court, which the circuit court dismissed on the basis of governmental immunity, MCL
691.1407. Mick then filed in the probate court a civil contempt petition that replicated the
contents of her previous wrongful death complaint, asserting that the estate had suffered damages
as a result of the sheriff’s department’s failure to execute the pick-up order, including but not
limited to the damages set forth in the wrongful-death statute, MCL 600.2922. The sheriff’s
department moved for summary disposition, arguing that under MCL 691.1407 it was immune
from Mick’s claim because she was essentially asking for tort damages. The probate court,
David M. Murkowski, J., denied the motion. The sheriff’s department appealed that decision in
the circuit court, which reversed. The circuit court, James R. Redford, J., concluded that Mick’s
claim for indemnification under MCL 600.1721 for losses caused by the contempt was barred by
the governmental tort liability act (GTLA), MCL 691.1401 et seq., because the underlying cause
of action was based in tort. The circuit court remanded the case to the probate court for entry of
summary disposition in favor of the sheriff’s department. Mick appealed by leave granted. The
Court of Appeals, HOEKSTRA, P.J., and MARKEY and BORRELLO, JJ., reversed, concluding that
the GTLA did not apply. 296 Mich App 31 (2012). The Supreme Court granted the sheriff’s
department’s application for leave to appeal to consider whether Mick’s claim for civil contempt
indemnification damages under MCL 600.1721 was barred by the GTLA. 493 Mich 866 (2012).
In an opinion by Justice KELLY, joined by Chief Justice YOUNG and Justices MARKMAN,
ZAHRA, and VIVIANO, the Supreme Court held:
The phrase “tort liability” as used in MCL 691.1407(1) of the GTLA encompasses all
legal responsibility for civil wrongs, other than a breach of contract, for which a remedy may be
obtained in the form of compensatory damages. MCL 600.1721 imposes tort liability because it
authorizes an award of compensatory damages to remedy a noncontractual civil wrong. Thus,
MCL 691.1407(1) of the GTLA provides governmental agencies with immunity from civil
contempt petitions seeking compensatory damages under MCL 600.1721.
1. Under MCL 691.1407(1), a governmental agency is generally immune from tort
liability if the governmental agency is engaged in the exercise or discharge of a governmental
function. A “tort” is an act that has long been understood in Michigan’s common law as a civil
wrong that arises from the breach of a legal duty other than the breach of a contractual duty for
which a remedy may be obtained in the form of compensatory damages. As commonly
understood, the word “liability” refers to the state or quality of being liable, and “liable” means
to be legally responsible. Thus, “tort liability” as used in MCL 691.1407(1) means all legal
responsibility arising from a noncontractual civil wrong for which a remedy may be obtained in
the form of compensatory damages. It follows that “tort liability” is not limited to traditional tort
claims. Rather, in determining the applicability of MCL 691.1407(1), courts must consider the
entire claim and the focus must be on the nature of the liability rather than the type of action
pleaded; the nature of the liability will often be reflected in the available remedy. Courts
considering whether a claim involves tort liability should first focus on the nature of the duty that
gives rise to the claim. If the wrong alleged is premised on the breach of a contractual duty, then
no tort has occurred, and the GTLA is inapplicable. If the wrong is premised on the breach of a
noncontractual duty, then the GTLA might apply to bar the claim. In that instance, the court
must further consider the nature of the liability the claim seeks to impose. If the action permits
an award of damages to a private party as compensation for an injury caused by the
noncontractual civil wrong, then the action, no matter how it is labeled, seeks to impose tort
liability and the GTLA applies.
2. MCL 600.1721 states that if contemptuous conduct has caused an actual loss or injury
to any person, the court shall order the defendant to pay that person a sum sufficient to indemnify
the person. The elements necessary to establish entitlement to relief under MCL 600.1721 are
essentially the same elements necessary to establish a tort, i.e., a legal duty, breach of that duty,
causation, and injury. The misconduct that might result in a finding of contempt involves the
neglect or violation of a duty under MCL 600.1701 or the failure to perform an act or duty under
MCL 600.1715. Thus, the misconduct is a noncontractual civil wrong. Because the first
sentence of MCL 600.1721 authorizes a court to order a contemnor to indemnify the person
whose losses were caused by the contemptuous conduct, the statute permits an award of damages
to a private party as compensation for an injury caused by a noncontractual civil wrong.
Accordingly, MCL 600.1721 contemplates what is, in essence, a tort suit for money damages,
and a civil contempt petition seeking indemnification under the statute seeks to impose tort
liability. It follows that a party who elects to pursue the statutory remedy available under MCL
600.1721 will be barred from obtaining relief against governmental agencies because those
entities are entitled to immunity from tort liability under MCL 691.1407(1) of the GTLA. Courts
are prohibited from exercising their contempt powers by punishing a governmental agency’s
contemptuous conduct through an award of indemnification damages under MCL 600.1721.
3. In this case, Mick sought compensatory damages for Bradley’s death under MCL
600.1721. Thus, her petition sought to impose tort liability on a governmental agency. Had
Mick sought to invoke the probate court’s inherent contempt powers, i.e., to fine or imprison a
contemnor, or had she otherwise established the applicability of an exception to governmental
immunity, her claim might have survived summary disposition, but she did not. Consequently,
because a civil contempt petition seeking indemnification damages under MCL 600.1721 seeks
to impose tort liability, and a sheriff’s department is immune from tort liability, Mick’s claim
was barred by governmental immunity under MCL 691.1407(1), and the sheriff’s department
was entitled to summary disposition under MCR 2.116(C)(7).
Judgment of the Court of Appeals reversed; case remanded to the probate court for entry
of an order granting summary disposition in favor of the sheriff’s department.
Justice CAVANAGH, dissenting, would have affirmed the result reached by the Court of
Appeals. Justice CAVANAGH agreed with the majority that in determining whether an action
imposes tort liability, the focus must be on the nature of the liability rather than the type of action
pleaded. Contrary to the conclusion of the majority, a compensatory contempt sanction does not
impose tort liability, primarily because that sanction is based on the contemptuous act itself. A
contemptuous act is an act of disobedience to the court’s ordinary exercise of its duties.
Contemptuous conduct is not synonymous with the breach of a traditional tort duty because
liability arising from tortious conduct stems from a breach of one’s duty to another, not the
breach of an obligation owed to the court. While the purpose of the relief sought may be a
relevant inquiry when determining whether a type of liability is tort liability for purposes of the
GTLA, the nature of the remedy is not dispositive. Thus, a compensatory contempt sanction
does not impose tort liability simply because one of the purposes it serves, like tort damages, is
remedial.
Justice MCCORMACK, dissenting, disagreed with the majority’s assertion that all
noncontractual civil wrongs, including civil contempt, are torts, and would have affirmed the
judgment of the Court of Appeals. Justice MCCORMACK agreed with the majority that “tort
liability” refers to legal responsibility arising from a tort, but concluded that contempt of court is
not a tort no matter what remedy for contempt is imposed, and would not have interpreted the
GTLA as granting immunity to governmental agencies from contempt sanctions under MCL
600.1721. Civil contempt does not sound in tort, and civil contempt sanctions do not impose tort
liability. Tort law imposes a duty to avoid harmful conduct deemed tortious. Contempt law
imposes a duty to obey the court. The duties are fundamentally different, as are their origins and
the purposes they serve. While tort liability may lead to relief in the form of compensatory
damages, that is not the only remedy available for tortious conduct, and compensatory damages
are not unique to tort law. Neither the language of the GTLA nor the language of the contempt
statute, MCL 600.1701, provide any basis for concluding that governmental actors are not
subject to all of the permissible sanctions for contempt.
©2013 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED JULY 26, 2013
STATE OF MICHIGAN
SUPREME COURT
In re BRADLEY ESTATE
NANCY MICK, Personal Representative of
the ESTATE OF STEPHEN BRADLEY,
Deceased,
Petitioner-Appellee,
v No. 145055
KENT COUNTY SHERIFF’S
DEPARTMENT,
Respondent-Appellant.
BEFORE THE ENTIRE BENCH
MARY BETH KELLY, J.
In this case, we decide whether a civil contempt petition that seeks
indemnification damages under MCL 600.1721 imposes “tort liability” within the
meaning of MCL 691.1407(1) of the governmental tort liability act (GTLA), MCL
691.1401 et seq. Given the Legislature’s use of the common-law term “tort,” we hold
that “tort liability” as used in MCL 691.1407(1) of the GTLA encompasses all legal
responsibility for civil wrongs, other than a breach of contract, for which a remedy may
be obtained in the form of compensatory damages. We further hold that MCL 600.1721
imposes “tort liability” because it authorizes an award of indemnification, or
compensatory, damages to remedy a noncontractual civil wrong. Consequently, MCL
691.1407(1) of the GTLA provides governmental agencies with immunity from civil
contempt petitions seeking indemnification damages under MCL 600.1721. Because the
Court of Appeals reached a contrary conclusion, we reverse the judgment of the Court of
Appeals and remand this case to the probate court for entry of an order granting summary
disposition in favor of respondent.
I. FACTS AND PROCEDURAL HISTORY
In the summer of 2004, petitioner, Nancy Mick, became increasingly concerned
about the mental health of her brother, Stephen Bradley. She noticed that Bradley had
grown “more agitated and violent,” and he had admitted to her that he was suicidal.
Petitioner feared that if Bradley did not receive help “he could kill himself and his
family.” As a result, in August 2004, she petitioned the Kent County Probate Court for
Bradley’s hospitalization, averring that Bradley was a danger to himself and his family.
She accompanied her petition with a supplemental petition for examination and
hospitalization, requesting a court order directing a peace officer to take Bradley into
protective custody.
The probate court granted the petitions that same day and issued an order requiring
that Bradley submit to psychiatric examination and requiring his hospitalization. The
order specified that a “peace officer shall take [Bradley] into protective custody and
2
transport him . . . to [Cornerstone Community Mental Health or any community mental
health contract facility].” Petitioner immediately submitted the order to respondent, the
Kent County Sheriff’s Department, for execution and provided additional details to the
sergeant on duty concerning how petitioner expected Bradley to react to being taken into
custody and the fact that Bradley possessed several firearms.
Respondent, however, did not timely execute the probate court’s order. In the
days that followed, petitioner contacted respondent twice in regard to Bradley’s situation,
and each time respondent assured her that the pickup would take place as soon as
possible. Ultimately, respondent never attempted to take Bradley into protective custody
and, nine days after the probate court entered its order, Bradley committed suicide.
After Bradley’s suicide, petitioner wrote to Kent County Sheriff Lawrence A.
Stelma, requesting an internal investigation, which ultimately concluded that the failure
to execute the order was “an obvious case of simple neglect in that this petition was not
executed in the manner that mental health petitions normally are handled.”1 Stelma
informed petitioner by letter of the investigation’s findings, confirming that the order had
not been executed and describing respondent’s failure as “an unusual occurrence” that did
“not reflect any policy or procedure on the part of the Sherriff’s Department . . . .”
1
The investigation revealed that the sergeant who initially received the order could not
execute it because she was on duty alone. She passed it onto the next sergeant who, in
turn, assigned it to a deputy. The deputy, waylaid by other police business, passed the
order to another officer who indicated that the order would be executed the following
day. The order eventually came to rest at a police substation where it remained until the
internal investigator found it on August 25, 2004. The investigation report indicated that
“it appears as though [the officers] were all somewhat cognizant that the [order] was
there; however, no one took initiative to either execute the [order] or access the computer
to ascertain if the [order] had been served.”
3
More than two years later, petitioner, acting as personal representative of
Bradley’s estate, filed a wrongful death suit against respondent and Stelma, alleging that
they were grossly negligent in their failure to execute the probate court order and that
their negligence was the proximate cause of Bradley’s death. The circuit court dismissed
the case on governmental immunity grounds, opining that respondent was not a legal
entity that could be sued and that Stelma was individually immune from suit under the
GTLA.
Petitioner did not appeal the circuit court’s dismissal. Instead, she filed a petition
for civil contempt in the probate court against respondent. The petition alleged that
respondent’s violation of the probate court’s order constituted contempt of court, entitling
her to indemnification damages pursuant to MCL 600.1721. The petition replicated the
contents of petitioner’s wrongful death complaint and sought damages “including, but not
limited to, all of those damages set forth in the Michigan Wrongful Death Statute, MCL
600.2922, et seq.” 2
Respondent moved for summary disposition, arguing that it was immune from
liability under MCL 691.1407(1) of the GTLA because petitioner sought to impose tort
liability in the guise of a civil contempt petition.3 The probate court denied respondent’s
2
Both the complaint and petition alleged that respondent “failed and refused to execute
the Order issued by the Kent County Probate Court notwithstanding its mandate, delivery
of the Order to [respondent], and the repeated inquiry regarding execution of the Order.”
3
Respondent also alleged that (1) petitioner failed to submit an affidavit from a person
witnessing the contemptuous act as required by MCR 3.606(A), (2) respondent was not a
legal entity capable of being sued, and (3) petitioner failed to show either a willful
violation of the probate court order or the requisite causal link between the alleged
contempt and Bradley’s suicide as required by MCL 600.1701. These arguments are not
4
motion reasoning that “[g]overnmental immunity does not insulate a contemnor from the
contemnor’s refusal or negligence to obey a court order.” The probate court
acknowledged an “overlap of remedies between a court[’s] power of contempt and a
compensation that may be argued under tort,” but concluded that this overlap did not
impede a court’s inherent authority to punish contempt.
Respondent appealed the probate court’s ruling to the circuit court, which reversed
and remanded the case to the probate court for entry of an order granting summary
disposition in favor of respondent. Relying on the definition of “tort liability” articulated
in Tate v Grand Rapids,4 the circuit court concluded that petitioner’s civil contempt
petition was based in tort because the petition sought damages under the wrongful death
statute. The circuit court, therefore, held that petitioner’s claim was barred by the GTLA.
While cognizant of courts’ inherent authority to punish contempt, the circuit court
concluded that the scope of that inherent authority is limited to the power to punish by
fine or imprisonment. Because petitioner did not invoke the probate court’s inherent
power to punish contempt by either fine or imprisonment, but instead sought
indemnification damages pursuant to MCL 600.1721, the court did not consider its
holding—that petitioner’s claim is barred by the GTLA—as infringing on courts’
inherent contempt powers.
before this Court.
4
Tate v Grand Rapids, 256 Mich App 656, 660; 671 NW2d 84 (2003).
5
The Court of Appeals granted petitioner’s application for leave to appeal and, in a
published opinion per curiam, reversed the circuit court’s decision.5 The Court of
Appeals held that the GTLA does not immunize governmental agencies from “tort-like”
damages sought pursuant to MCL 600.1721.6 Relying on Tate7 and Ross v Consumers
Power Co (On Rehearing),8 the Court of Appeals opined that whether a “contempt claim
can survive a governmental immunity challenge is controlled not by the nature of the
damages sought, but by whether [the] contempt action is a cause of action that is separate
and distinct from one that is grounded in tort liability.”9 The Court of Appeals explained:
In accord with the Ross Court’s holding that the GTLA will not bar
recovery simply because the underlying facts could have also established a
tort cause of action, we conclude that tort-like damages are recoverable in a
contempt action assuming contempt can be proved. Thus, whether the
GTLA implicates the viability of Mick’s contempt action rests on whether
Mick can successfully plead and establish a contempt cause of action. The
nature of the damages being requested has no role in determining whether
the action is barred by [the] GTLA. Consequently, the circuit court erred
when it dismissed this case merely because the damages sought were
similar to tort damages.[10]
5
In re Bradley Estate, 296 Mich App 31; 815 NW2d 799 (2012).
6
Id. at 38-39.
7
Tate, 256 Mich App at 660-661.
8
Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 647-648; 363 NW2d 641
(1984).
9
In re Bradley Estate, 296 Mich App at 38-39.
10
Id. at 39 (citation omitted).
6
We granted respondent’s application for leave to appeal to consider whether “petitioner’s
claim for civil contempt indemnification damages under MCL 600.1721 is barred by the
[GTLA].”11
II. STANDARD OF REVIEW
We review de novo a decision on a motion for summary disposition.12 Under
MCR 2.116(C)(7), summary disposition is appropriate when a claim is barred by
governmental immunity.13 A party filing suit against a governmental agency bears the
burden of pleading his or her claim in avoidance of governmental immunity.14
We also review de novo issues of statutory interpretation.15 When construing a
statute, we consider the statute’s plain language and we enforce clear and unambiguous
language as written.16 While terms must be construed according to their plain and
ordinary meaning, words and phrases “as may have acquired a peculiar and appropriate
meaning in the law, shall be construed and understood according to such peculiar and
appropriate meaning.”17 Moreover, when the Legislature chooses to employ a common-
11
In re Bradley Estate, 493 Mich 866 (2012).
12
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
13
Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998).
14
Odom v Wayne Co, 482 Mich 459, 478-79; 760 NW2d 217 (2008).
15
Driver v Naini, 490 Mich 239, 246; 802 NW2d 311 (2011).
16
Id. at 246-247.
17
MCL 8.3a.
7
law term without indicating an intent to alter the common law, the term will be
interpreted consistent with its common-law meaning.18
III. ANALYSIS
Since Michigan became a state in 1837, Michigan jurisprudence has recognized
the preexisting common-law concept of sovereign immunity, which immunizes the
“sovereign” state from all suits to which the state has not consented, including suits for
tortious acts by the state.19 This common-law concept of sovereign immunity has since
been replaced in Michigan by the GTLA and is codified by MCL 691.1407(1), which
limits a governmental agency’s exposure to tort liability.
Specifically, MCL 691.1407(1), which is at the center of this litigation, broadly
provides that “a governmental agency is immune from tort liability if the governmental
agency is engaged in the exercise or discharge of a governmental function.”20 Under the
statute, all suits that seek to impose “tort liability” for an agency’s discharge of a
governmental function are barred by the GTLA, subject to several exceptions that the
Legislature has expressly provided for in the GTLA and in other statutes authorizing suit
against governmental agencies.21 While conceding that none of these exceptions applies
18
Stone v Williamson, 482 Mich 144, 170; 753 NW2d 106 (2008) (opinion by
CAVANAGH, J.).
19
Ross, 420 Mich at 598.
20
Emphasis added. Likewise, individual governmental officers and employees may be
entitled to immunity from “tort liability.” See MCL 691.1407(2) and (5).
21
See Mack v Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002). The statutory
exceptions contained in the GTLA are: (1) the highway exception, MCL 691.1402, (2)
the motor vehicle exception, MCL 691.1405, (3) the public building exception, MCL
8
to the instant case, petitioner asserts that the immunity afforded by the GTLA is
inapplicable because a civil contempt petition seeking indemnification damages does not
seek to impose tort liability.
Whether a contempt order imposing indemnification damages imposes tort
liability is not readily apparent; the GTLA does not define the phrase “tort liability” and
our caselaw has not offered a definition of the phrase. Moreover, the contempt statutes
under which petitioner brings suit include no express reference to the imposition of “tort
liability.” The civil contempt petition in the instant case is based on the general contempt
statute of MCL 600.1701, a provision of the Revised Judicature Act (RJA), MCL
600.101 et seq., that identifies potentially punishable contemptuous conduct. This
provision, which is a codification of courts’ power at common law to punish
contemptuous conduct,22 states in relevant part:
The supreme court, circuit court, and all other courts of record, have
power to punish by fine or imprisonment, or both, persons guilty of any
neglect or violation of duty or misconduct in all of the following cases:
* * *
(c) All attorneys, counselors, clerks, registers, sheriffs, coroners, and
all other persons in any manner elected or appointed to perform any judicial
or ministerial services, for any misbehavior in their office or trust, or for
any willful neglect or violation of duty, for disobedience of any process of
691.1406, (4) the governmental hospital exception, MCL 691.1407(4), (5) the proprietary
function exception, MCL 691.1413, and (6) the sewage system event exception, MCL
691.1417.
22
In re Contempt of Dougherty, 429 Mich 81, 91 n 14; 413 NW2d 392 (1987), citing
Const 1963, art 6, § 1.
9
the court, or any lawful order of the court, or any lawful order of a judge of
the court or of any officer authorized to perform the duties of the judge.
* * *
(g) Parties to actions, attorneys, counselors, and all other persons for
disobeying any lawful order, decree, or process of the court.[23]
By its plain terms, MCL 600.1701 allows courts to exercise their inherent contempt
powers for the purpose of either coercing a contemnor to comply with the court’s order
(civil contempt) or punishing a contemnor for contemptuous conduct (criminal contempt)
by imposing a “fine or imprisonment, or both . . . .”24
In addition to the coercive and punitive sanctions permitted for civil and criminal
contempt under MCL 600.1701, a court, in a civil contempt proceeding, may also order
indemnification of those persons who have sustained losses as a result of contemptuous
conduct under MCL 600.1721.25 This statute, on which petitioner relies, provides that
“[i]f the alleged misconduct has caused an actual loss or injury to any person the court
shall order the defendant to pay such person a sufficient sum to indemnify him . . . .”26
23
MCL 600.1701 (emphasis added). See also MCL 600.1715(2) (providing punishment
for contemptuous conduct consisting of “the omission to perform some act or
duty . . . .”).
24
See also MCL 600.1715(1), which generally limits the fine for contempt to not more
than $7,500 and the term of imprisonment to no more than 93 days.
25
A contempt proceeding seeking indemnification damages is a civil contempt
proceeding. In re Contempt of Dougherty, 429 Mich at 111 (“A proper civil contempt
proceeding [may] seek[] . . . to compensate the complainant for actual loss.”).
26
MCL 600.1721.
10
The contemptuous misconduct referred to in these contempt statutes, however,
does not clearly constitute tortious action such that petitioner’s civil contempt petition
would necessarily impose tort liability for purposes of the GTLA. Whether petitioner’s
claim is barred by the GTLA thus requires two related inquires. First, we must determine
the meaning of the phrase “tort liability” as used in MCL 691.1407(1) of the GTLA; and,
second, we must decide whether a civil contempt petition seeking indemnification
damages under MCL 600.1721 seeks to impose tort liability, such that the GTLA would
prohibit petitioner’s claim.
A. TORT LIABILITY
As noted, the GTLA does not define the phrase “tort liability,” nor has this Court
previously determined the meaning of that phrase. The lower courts applied the
definition of “tort liability” articulated by the Court of Appeals in Tate, a case involving a
statute that imposes strict liability on dog owners for injuries resulting from dog bites.27
In Tate, the plaintiff sought to avoid application of the GTLA by arguing that strict-
liability actions fell outside the scope of tort liability.28 In rejecting the plaintiff’s
argument, the Court of Appeals explained, “The GTLA unambiguously grants immunity
from all tort liability, i.e., all civil wrongs for which legal responsibility is recognized,
regardless of how the legal responsibility is determined, except as otherwise provided in
the GTLA.”29
27
Tate, 256 Mich App at 658.
28
Id. at 659.
29
Id. at 660. Consistent with this definition, the Court of Appeals explained that “strict
11
We do not necessarily disagree with Tate’s general understanding of the phrase
“tort liability.” However, in our judgment, Tate’s definition is incomplete and fails to
acknowledge the historical underpinnings of the word “tort” as that word has been used
in our common law for more than a hundred years. Mainly, a “tort” is an act that has
long been understood as a civil wrong that arises from the breach of a legal duty other
than the breach of a contractual duty.30 For example, English common-law courts have
for centuries recognized a civil wrong as an infringement on private rights belonging to
individuals and divided civil wrongs into two categories: those sounding in contract and
those sounding in tort.31 The Queen’s Bench has acknowledged this division in a case
liability is based on tort law and may result in tort liability, i.e., civil liability for wrongful
conduct.” Id.
30
As Sir Edward Coke explained, “wrong or injury is in French aptly called tort; because
injury and wrong is wrested or crooked, being contrary to that which is right and
straight.” I Coke, The First Part of the Institutes of the Laws of England (Butler’s 1st
American ed, 1853), p 158b.
31
See Sinclair v Brougham, [1914] AC 398 (HL), 415 (1914) (Viscount Haldane, LC)
(“[B]roadly speaking, so far as proceedings in personam are concerned, the common law
of England really recognises (unlike the Roman law) only actions of two classes, those
founded on contract and those founded on tort.”); id. at 432 (Lord Dunedin) (“The
English common law has various actions which, under a classification which I understand
to be really one of modern growth, are divided into actions in respect of contract and of
tort.”); Bryant v Herbert, 3 CPD 389, 390 (1878) (Bramwell, LJ) (“One may observe
there is no middle term; the statute supposes all actions are founded either on contract or
on tort. So that it is tort, if not contract, contract if not tort.”). These English common-
law cases are consistent with the understanding of tort espoused by Sir William
Blackstone in his 1771 Commentaries, which make the same distinction:
Personal actions are such whereby a man claims a debt, or personal
duty, or damages in lieu thereof: and, likewise, whereby a man claims a
satisfaction in damages for some injury done to his person or property. The
former are said to be founded on contracts, the latter upon torts or
wrongs . . . . Of the former nature are all actions upon debt or promises; of
12
involving a bailee’s liability for injury to the plaintiff’s horse, in which it concluded that
the legal basis for the plaintiff’s claim was a tort and that damages to compensate for the
injury should be allowed. Lord Justice Smith explained:
[I]f in order to make out a cause of action it is not necessary for the
plaintiff to rely on a contract, the action is one founded on tort; but, on the
other hand, if, in order successfully to maintain his action, it is necessary
for him to rely upon and prove a contract, the action is one founded upon
contract.[32]
The Queen’s Bench, then, recognized only two types of civil wrongs, those involving
contractual wrongs and those involving the breach of some other legal duty, the latter of
which is a tort and is remedied through an award of compensatory damages.33
the latter all actions for trespasses, nuisances, assaults, defamatory words
and the like. [3 Blackstone, Commentaries on the Laws of England (Jones
ed., 1976), p *117.]
32
Turner v Stallibrass, 1 QB 56, 58 (1898) (A.L. Smith, LJ). See also id. at 59 (Rigby,
LJ) (“The rule is that, if the plaintiff, in order to shew [sic] a cause of action, must rely on
a contract, the action is one founded on contract; otherwise it is one of tort.”).
33
As noted, this understanding of a tort is reflected in Sir William Blackstone’s
Commentaries. Aside from recognizing that only two types of civil wrongs exist,
Blackstone’s Commentaries also repeatedly confirm that tort actions involve a particular
type of compensation—compensatory damages. See 3 Blackstone, p *138 (stating that
“[t]he satisfactory remedy for this injury of false imprisonment” is that “the party shall
recover damages for the injury he has received”); 3 Blackstone, pp **145-146 (stating
that the proper remedy for the wrongful taking of goods is “the restitution of the goods
themselves so wrongfully taken, with damages for the loss sustained by such unjust
invasion,” and that the law in this regard “contents itself in general with restoring, not the
thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction in
damages”); 3 Blackstone, p *220 (stating that when a private person suffers damage by a
public nuisance, the remedies by suit are “[b]y action on the case for damages; in which
the party injured shall only recover satisfaction for the injury sustained; but cannot
thereby remove the nuisance”).
13
Michigan common law, which has its roots in English common law, has likewise
recognized this distinction between torts and contracts as the two types of civil wrongs.34
For example, in Churchill v Howe,35 this Court considered whether a debtor’s liability
was limited to the parties’ contractual relations. In concluding that the creditor’s
allegations of fraud sounded in tort, we acknowledged the general principles that a tort
requires a “wrong independent of a contract” and that “the distinguishing feature of a tort
[is] that it consists in the violation of a right given or neglect of a duty imposed by law,
and not by contract.”36 Stated differently, and as this Court has repeatedly recognized in
the nearly one hundred years since Churchill, when a party breaches a duty stemming
from a legal obligation, other than a contractual one, the claim sounds in tort.37
34
As former Chief Justice of the Michigan Supreme Court THOMAS M. COOLEY
recognized in Cooley, A Treatise on the Law of Torts (2d ed, 1888), p 2, “It is customary
in the law to arrange the wrongs for which individuals may demand legal redress into two
classes: the first embracing those which consist in a mere breach of contract, and the
second those which arise independent of contract.”
35
Churchill v Howe, 186 Mich 107; 152 NW 989 (1915).
36
Id. at 111, 114 (citation and quotation marks omitted).
37
See, e.g., O’Neill v James, 138 Mich 567, 573; 101 NW 828 (1904) (quoting caselaw
stating that a party who commits a wrong independent of contract “brings himself within
the operation of a principle of the law of torts”) (citation and quotation marks omitted);
Hart v Ludwig, 347 Mich 559, 563; 79 NW2d 895 (1956) (approvingly quoting caselaw
stating that as a general rule, to support a cause of action in tort, there “must be some
breach of duty distinct from breach of contract”) (citation and quotation marks omitted);
Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 246-247; 531
NW2d 144 (1995) (holding that the duty not to retaliate against an employee for filing a
workers’ compensation claim arises independently from the employment contract and
thus sounds in tort).
14
Our common law likewise incorporates the concept that a tort necessarily involves
compensation to an injured party for the wrong committed by a tortfeasor.38 As we
explained in Wilson v Bowen,39 a case involving an award of damages for malicious
prosecution, “the purpose of an action of tort is to recover the damages which the plaintiff
has sustained from an injury done him by the defendant; that compensation to the
plaintiff is the purpose in view . . . .”
Given the foregoing, it is clear that our common law has defined “tort” to be a
civil wrong, other than a breach of contract, for which the court will provide a remedy in
the form of compensatory damages. Accordingly, because the word “tort” has “acquired
a peculiar and appropriate meaning” in our common law, and because the Legislature is
presumed to be aware of the common law when enacting legislation, we conclude that the
term “tort” as used in MCL 691.1407(1) is a noncontractual civil wrong for which a
remedy may be obtained in the form of compensatory damages.40
38
Stillson v Gibbs, 53 Mich 280, 284; 18 NW 815 (1884) (“The purpose of an action for
tort is to recover the damages which the plaintiff has sustained from an injury done him
by the defendant.”); Kalembach v Michigan Cent R Co, 87 Mich 509, 524; 49 NW 1082(1891) (MCGRATH, J., dissenting) (recognizing that recovery for a tort requires “a wrong
as well as damage”).
39
Wilson v Bowen, 64 Mich 133, 141; 31 NW 81 (1887).
40
MCL 8.3a; Ford Motor Co v City of Woodhaven, 475 Mich 425, 439; 716 NW2d 247
(2006) (“[C]ommon-law meanings are assumed to apply . . . in the absence of evidence to
indicate contrary meaning.”) (citation and quotation marks omitted). This definition is
consistent with modern authorities’ understanding of the term “tort” as “[a] civil wrong,
other than breach of contract, for which a remedy may be obtained, [usually] in the form
of damages; a breach of a duty that the law imposes on persons who stand in a particular
relation to one another.” Black’s Law Dictionary (9th ed); see also Prosser & Keeton,
Torts (5th ed), § 1, p 2.
15
Our analysis, however, requires more. MCL 691.1407(1) refers not merely to a
“tort,” nor to a “tort claim” nor to a “tort action,” but to “tort liability.” The term “tort,”
therefore, describes the type of liability from which a governmental agency is immune.
As commonly understood, the word “liability,” refers to liableness, i.e., “the state or
quality of being liable.”41 To be “liable” means to be “legally responsible[.]”42
Construing the term “liability” along with the term “tort,” it becomes apparent that the
Legislature intended “tort liability” to encompass legal responsibility arising from a tort.
We therefore hold that “tort liability” as used in MCL 691.1407(1) means all legal
responsibility arising from a noncontractual civil wrong for which a remedy may be
obtained in the form of compensatory damages.43
In reaching this holding, we are cognizant of our decision in Ross, on which the
Court of Appeals relied in concluding that “tort-like damages are recoverable in a
contempt action” against a governmental entity.44 Our opinion in Ross actually
concerned nine cases, including Rocco v Department of Mental Health. In that case, the
plaintiffs’ decedent was murdered while he was a patient at a hospital administered by
41
Random House Webster’s College Dictionary (2001). Similarly, Black’s Law
Dictionary (7th ed) defines “liability” as “[t]he quality or state of being legally obligated
or accountable; legal responsibility to another or to society, enforceable by civil remedy
or criminal punishment” and as “a financial or pecuniary obligation[.]”
42
Random House Webster’s College Dictionary (2001).
43
Petitioner argues that this understanding of tort liability is overly inclusive, but offers
no alternative definition for the term “tort.” Moreover, while our definition of “tort” is
stated in broad terms, it is consistent with the common-law understanding of that term as
adopted by our Legislature in MCL 691.1407(1).
44
In re Bradley Estate, 296 Mich App at 39.
16
two state agencies. The plaintiffs filed a two-count complaint alleging both negligence
and breach of an implied contract. We held that the GTLA barred the plaintiffs’
negligence claim, but that the plaintiffs’ second claim, breach of an implied contract, was
not barred. The defendants had argued that the plaintiffs’ contract claim should be
dismissed because “most of the allegations contained in Counts I and II are
identical . . . .”45 In rejecting that argument, we stated:
We recognize that plaintiffs have and will attempt to avoid [MCL
691.1407(1)] of the governmental immunity act by basing their causes of
action on theories other than tort. Trial and appellate courts are routinely
faced with the task of determining whether the essential elements of a
particular cause of action have been properly pleaded and proved. If a
plaintiff successfully pleads and establishes a non-tort cause of action,
[MCL 691.1407(1)] will not bar recovery simply because the underlying
facts could have also established a tort cause of action.[46]
Petitioner and the Court of Appeals interpret this passage from Ross to mean that
the label of the action controls in determining whether an action imposes tort liability and
that, if the claim is not a traditional tort, then the GTLA is inapplicable and “tort-like”
damages are recoverable. Ross, however, made no such pronouncement and did not
consider the meaning of “tort liability,” which is the question that is now before this
Court. Instead, consistent with our holding in this case, Ross merely recognized that the
GTLA does not bar a properly pleaded contract claim.47
45
Ross, 420 Mich at 647.
46
Id. at 647-648 (emphasis added).
47
Id. at 647-648; id. at 693-694 (opinion by LEVIN, J.) (“The language of [MCL
691.1407(1)], however, speaks only to immunity from tort liability; it does not grant
immunity from contract claims.”).
17
In addition, our holding clarifies that Ross’s pronouncement, that “non-tort
cause[s] of action” are not barred by the GTLA, should not be interpreted as limiting the
GTLA’s application to only traditional tort claims.48 The Legislature’s express decision
to use the word “liability” in describing the governmental immunity available under MCL
691.1407(1), rather than “action” or “claim,” indicates that our focus must be on the
nature of the liability rather than the type of action pleaded. For this reason, we decline
to limit the GTLA’s application to suits expressly pleaded as traditional tort claims, as
petitioner would have us hold.49 Further, because the nature of the liability will often be
reflected in the remedy available, we disagree with the Court of Appeals’ statement that
“[t]he nature of the damages being requested has no role in determining whether the
action is barred by the GTLA.”50 Instead, because a tort, by definition, encompasses an
award of compensatory damages, the nature of the damages is precisely relevant in
48
Ross, 420 Mich at 647-648.
49
To follow petitioner’s suggestion, which Justice MCCORMACK also appears to
advocate, would exalt form over substance when, instead, we have long recognized that a
party’s choice of label for a cause of action is not dispositive and “the gravamen of [a]
plaintiff’s action is determined by considering the entire claim.” Maiden, 461 Mich at
135. Moreover, we have held on numerous occasions that some causes of action that are
not traditional torts nonetheless impose tort liability within the meaning of the GTLA.
See, e.g., Donajkowski v Alpena Power Co, 460 Mich 243, 247; 596 NW2d 574 (1999)
(sex discrimination in violation of the Civil Rights Act); Phillips, 448 Mich at 248-249(retaliatory discharge in violation of Worker’s Disability Compensation Act); Loweke v
Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 165; 809 NW2d 553 (2011)
(statutory duties may give rise to tort claim); see also Cuddington v United Health Servs,
Inc, 298 Mich App 264, 275; 826 NW2d 519 (2012) (statutory “retaliation torts”); 4041-
49 W Maple Condo Ass’n v Countrywide Home Loans, Inc, 282 Mich App 452, 459; 768
NW2d 88 (2009) (failure to provide notice under foreclosure statute).
50
In re Bradley Estate, 296 Mich App at 39.
18
determining whether the type of liability imposed is tort liability.51 Accordingly,
regardless of how a claim is labeled, courts must consider the entire claim, including the
available damages, to determine the nature of the liability imposed.52
In summary, several principles emerge from our explication of the phrase “tort
liability” that will guide courts charged with the task of determining whether a cause of
action imposes tort liability for purposes of the GTLA. Courts considering whether a
claim involves tort liability should first focus on the nature of the duty that gives rise to
the claim. If the wrong alleged is premised on the breach of a contractual duty, then no
tort has occurred, and the GTLA is inapplicable.53 However, if the wrong is not premised
51
Indeed, to ignore the type of the damages sought would be to ignore the correlation
between the wrong alleged and the available remedy. See Nat’l Copper Co v Minnesota
Mining Co, 57 Mich 83, 93; 23 NW 781 (1885) (“[D]amage alone does not give a right of
action; there must be a concurrence of wrong and damage.”). As we have explained, tort
damages traditionally take the form of compensatory damages. See, e.g., Wilson, 64
Mich at 141. Although other remedies might be available in some circumstances, “‘an
action for damages is the essential remedy for a tort,’” and “‘in all such cases it is solely
by virtue of the right to damages that the wrong complained of is to be classed as a tort.’”
Prosser & Keeton, Torts (5th ed), § 1, p 2 n 6, quoting Salmond, Law of Torts (12th ed),
p 9.
52
Justice MCCORMACK pens an eloquent and engaging discussion of the sui generis
nature of contempt, one that we do not necessarily disagree with regarding contempt.
Where we do differ, however, is in our belief that this case presents a more nuanced
issue, namely whether a petitioner can recast a wrongful death claim that is barred by the
GTLA as a claim for civil contempt and obtain indemnification damages under MCL
600.1721, which are exactly the same as those damages sought under the wrongful death
statute. We see the issue differently, but have not “confuse[d] legal categories” in the
least.
53
In that instance, we emphasize that the plaintiff would be limited to the recovery of
contract damages. If a plaintiff seeks the recovery of tort damages stemming from the
breach of a contractual duty, then the plaintiff’s claim would be insufficient as a matter of
law under MCR 2.116(C)(8).
19
on a breach of a contractual duty, but rather is premised on some other civil wrong, i.e.,
some other breach of a legal duty, then the GTLA might apply to bar the claim. In that
instance, the court must further consider the nature of the liability the claim seeks to
impose. If the action permits an award of damages to a private party as compensation for
an injury caused by the noncontractual civil wrong, then the action, no matter how it is
labeled, seeks to impose tort liability and the GTLA is applicable.54
B. CIVIL CONTEMPT INDEMNIFICATION DAMAGES
The civil contempt petition in this case alleges that respondent’s contemptuous
misconduct, prohibited by MCL 600.1701, caused Bradley’s suicide and seeks
indemnification damages under MCL 600.1721. Because petitioner’s civil contempt
petition seeks indemnification under MCL 600.1721, we must construe the language of
that provision to determine whether such petitions impose tort liability. The provision
states:
If the alleged misconduct has caused an actual loss or injury to any
person the court shall order the defendant to pay such person a sufficient
54
This step of the analysis is fundamental to determining whether an action involving a
noncontractual civil wrong seeks to impose tort liability. This is because, in some
instances, a noncontractual civil wrong might exist, but instead of seeking compensation
to remedy the harm, the plaintiff elects some other remedy, thus rendering governmental
immunity inapplicable. For example, a plaintiff may ask a court to enforce his or her
rights under the law. See Lash v Traverse City, 479 Mich 180, 196; 735 NW2d 628
(2007) (recognizing that governmental immunity barred a plaintiff’s private cause of
action seeking monetary damages for an alleged statutory violation, but noting that the
plaintiff could enforce the statute by seeking declaratory or injunctive relief); Hadfield v
Oakland Co Drain Comm’r, 430 Mich 139, 152 n 5; 422 NW2d 205 (1988) (opinion by
BRICKLEY, J.) (“Generally, we do not view actions seeking only equitable relief, such as
abatement or injunction, as falling within the purview of governmental immunity.”),
overruled on other grounds by Pohutski v City of Allen Park, 465 Mich 675 (2002).
20
sum to indemnify him, in addition to the other penalties which are imposed
upon the defendant. The payment and acceptance of this sum is an absolute
bar to any action by the aggrieved party to recover damages for the loss or
injury.[55]
Although we have not previously considered whether this language imposes “tort
liability,” this Court has implicitly recognized that the elements necessary to establish
entitlement to relief under this provision are essentially the same elements necessary to
establish a tort, i.e., a legal duty, breach of that duty, causation, and injury. In Holland v
Weed,56 for example, we explained that the predecessor of MCL 600.1721
authorizes this imposition [of indemnification damages] in place of a fine,
and it is for the purpose of protecting the civil rights and remedies of the
party, and to compensate him for the injury or loss occasioned by the
misconduct alleged; and it is only when an actual loss or injury has been
produced to the party by the misconduct alleged, and that is made to appear
to the satisfaction of the court, and some sum sufficient to compensate the
party or indemnify him is adjudged, that the court can impose the costs and
expenses to be paid by such party.[57]
Stated differently, the plain language of MCL 600.1721 requires a showing of
contemptuous misconduct that caused the person seeking indemnification to suffer a loss
55
MCL 600.1721 (emphasis added).
56
Holland v Weed, 87 Mich 584, 587-588; 49 NW 877 (1891).
57
Emphasis added. The statute was substantially similar when Holland was decided. It
provided:
If an actual loss or injury has been produced to any party, by the
misconduct alleged, the court shall order a sufficient sum to be paid by the
defendant to such party to indemnify him, and to satisfy his costs and
expenses, instead of imposing a fine upon such defendant; and in such case,
the payment and acceptance of such sum shall be an absolute bar to any
action by such aggrieved party, to recover damages for such injury or loss.
[How Stat § 7277.]
21
or injury and, if these elements are established, requires the court to order the contemnor
to pay “a sufficient sum to indemnify” the person for the loss.
A closer examination of the statutory language confirms that it contains all the
elements of a tort claim in the guise of a contempt claim. Under the first sentence of the
statute, the “alleged misconduct,” which is a necessary element of any contempt claim,
stems from the “neglect or violation of [a] duty” under MCL 600.1701 or the “omission
to perform an act or duty” under MCL 600.1715. Thus, the “alleged misconduct” is
synonymous with the legal duty and breach of that duty recognized in traditional tort law.
Clearly, this misconduct, which arises from the relevant contempt statute—not a
contractual relationship between the parties—is a noncontractual civil wrong.
Because the nature of the duty that gives rise to a civil contempt claim is clearly
premised on a noncontractual civil wrong, we must further consider the nature of the
liability imposed. The first sentence of MCL 600.1721 also requires that this misconduct
“cause[]” the petitioner’s “actual loss or injury,” thus paralleling the other two elements
recognized in a traditional tort claim: causation and damages. Because the first sentence
of MCL 600.1721 authorizes a court to order a contemnor to “indemnify” the petitioner
for the loss caused by the contemptuous misconduct, the statute clearly sanctions legal
responsibility, or liability, in the form of compensatory damages.58 Plainly, the first
58
“Indemnify” is commonly understood to mean “to compensate for damage or loss
sustained, expense incurred[.]” Random House Webster’s College Dictionary (2001).
And we have previously characterized the relief provided under MCL 600.1721 as
compensatory. See In re Contempt of Dougherty, 429 Mich at 98.
22
sentence of MCL 600.1721 contemplates what is, in essence, a tort suit for money
damages.59
Additional support for this conclusion is found in the second sentence of MCL
600.1721, which provides that “[t]he payment and acceptance of this sum is an absolute
bar to any action by the aggrieved party to recover damages for the loss or injury.” That
is, the Legislature expressly recognized that a civil contempt claim seeking
indemnification damages functions as a substitute for any underlying claim and, thus,
bars monetary recovery that could have been achieved in a separate cause of action. As
the Legislature acknowledged, the statutory remedy, then, is effectively a proxy for a tort
claim.60
59
Justice CAVANAGH posits that a civil contempt petition seeking indemnification
damages under MCL 600.1721 does not impose tort liability because the liability
imposed arises, not from the breach of a “tort duty,” but from the breach of an “obligation
owed to the court.” The Legislature, however, did not use the phrase “tort duty” in MCL
691.1407(1), but instead used the phrase “tort liability” thereby invoking consideration of
all noncontractual civil wrongs consistent with the common-law meaning of “tort.”
Moreover, while Justice CAVANAGH agrees that the purpose of the relief sought is
relevant to determining whether tort liability exists, he ignores that MCL 600.1721
expressly permits an award of compensatory damages to “any person” who suffered an
injury as a result of the contemptuous act and does not award indemnification damages to
the court, which is the party owed a duty under Justice CAVANAGH’s analysis. Stated
otherwise, a civil contempt petition seeking indemnification damages under MCL
600.1721 does not seek to redress the harm a court may have suffered as a result of the
contemptuous act; rather, such a petition seeks to compensate the person who suffered
injury from that civil wrong, and therefore the petition is squarely within the meaning of
“tort liability.”
60
Justice MCCORMACK does not analyze the express statutory language of MCL
600.1721 and instead relies on a series of inferences to discern the meaning of the law.
Specifically, Justice MCCORMACK reads MCL 600.1701(c) as an express indication that
the Legislature intended to waive any claim that government contemnors are immune
from liability for civil contempt indemnification damages. However, the express
23
Given that the statutory language of MCL 600.1721 clearly permits the payment
of compensatory damages to a petitioner for a noncontractual civil wrong, we thus hold
that a civil contempt petition seeking indemnification damages under MCL 600.1721
seeks to impose “tort liability.”61 It follows that a party that elects to pursue the statutory
remedy available under MCL 600.1721 will be barred from obtaining relief against
governmental agencies because those entities are entitled to immunity from “tort
statutory language of MCL 600.1701 does not include “defendant,” as that term is used in
MCL 600.1721, among the listed state actors, and we would draw no such inference.
Compare MCL 600.1721 and MCL 600.1701 with other statutes expressly waiving
governmental immunity, including the Elliot-Larsen Civil Rights Act, MCL 37.2103(g),
MCL 37.2201(a), and MCL 37.2202 (defining “employer” to expressly include state
actors who are in turn liable for certain discriminatory conduct); and the Persons with
Disabilities Civil Rights Act, MCL 37.1103(g), MCL 37.1201(b), and MCL 37.1202
(same). Nor do we view MCL 691.1407(6), as Justice MCCORMACK does, to inform the
meaning of “tort liability” used in MCL 691.1407(1). MCL 691.1407(6), which grants
immunity to guardian ad litems from “civil liability,” is simply not implicated in this
case. We also do not believe the Legislature’s placement of the contempt statutes in the
RJA has any relevance to the meaning of “tort liability.”
61
Contrary to our holding, petitioner asserts that her contempt petition cannot be
classified as a tort because there is not “a hint anywhere” in Michigan jurisprudence
suggesting that contempt is a tort. Our discussion in Holland, 87 Mich at 587-588,
referred to earlier in this opinion, suggests otherwise. Moreover, petitioner makes this
argument without any reference to the statutory language of MCL 600.1721, which as we
have explained supports the conclusion that a civil contempt claim seeking
indemnification damages imposes tort liability. In any case, we are not alone in
recognizing that a civil contempt claim asking for compensatory damages imposes tort
liability. See, e.g., Dodson v Dodson, 380 Md 438, 453; 845 A2d 1194 (2004) (“This
litigation, although labeled a civil contempt action, was in essence a tort suit for money
damages . . . .”); Parker v United States, 153 F2d 66, 70 (CA 1, 1946) (“An order
imposing a compensatory fine in a civil contempt proceeding is . . . somewhat analogous
to a tort judgment for damages caused by wrongful conduct.”); Vuitton et Fils SA v
Carousel Handbags, 592 F2d 126, 130 (CA 2, 1979) (noting that imposition of a
compensatory fine for civil contempt is analogous to a tort judgment for damages);
Thompson v Cleland, 782 F2d 719, 722 (CA 7, 1986) (noting the same).
24
liability” under MCL 691.1407(1) of the GTLA. The logical result of this conclusion is
that courts are prohibited from exercising their contempt powers by punishing a
governmental agency’s contemptuous conduct through an award of indemnification
damages under MCL 600.1721.
Our holding, however, should not be interpreted as constraining courts’ inherent
contempt powers. While our holding does constrain a court’s statutory authority to order
punishment in the form of compensation in a civil contempt proceeding against a
governmental entity,62 our holding does not infringe on those powers of contempt that are
inherent in the judiciary, as recognized in our Constitution and codified by the
Legislature.63 Inherent in the judicial power is the power to prescribe acts that are
punishable as contempt through fine or imprisonment, or both.64 This inherent judicial
power to punish contempt, which is essential to the administration of the law, does not
include the power to mete out certain punishments for contemptuous acts beyond those
62
The Legislature authorized the award of compensatory damages in the contempt
context with the enactment of 1846 RS, ch 121, § 21, the original predecessor of MCL
600.1721.
63
See Const 1963, art 6, § 1; Langdon v Judges of Wayne Circuit Court, 76 Mich 358,
367; 43 NW 310 (1889) (“The [contempt] statutes are in affirmation of the common-law
power of courts to punish for contempts . . . .”).
64
As this Court explained in In re Huff, 352 Mich 402, 415-416; 91 NW2d 613 (1958):
There is inherent power in the courts, to the full extent that it existed
in the courts of England at the common law, . . . to adjudge and punish for
contempt . . . . Such power, being inherent and a part of the judicial power
of constitutional courts, cannot be limited or taken away by act of the
legislature nor is it dependent on legislative provision for its validity or
procedures to effectuate it. [Citation omitted.]
25
contempt powers inherent in the judiciary.65 Clearly, the punishment the Legislature
authorized in MCL 600.1721, compensation for contemptuous misconduct, is not
encompassed by the judiciary’s inherent power to punish contempt. Because our holding
only involves the GTLA’s application to civil contempt petitions that seek
indemnification damages under MCL 600.1721, it does not infringe on courts’ inherent
power to punish contempt by fine or imprisonment, or both.66 Moreover, our definition
of “tort liability” does not encompass contempt proceedings that seek to invoke courts’
inherent contempt powers; although those proceedings undoubtedly involve a
noncontractual civil wrong, the sanction sought does not impose legal responsibility in
the form of compensation for the harm done.67
65
See Nichols v Judge of Superior Court of Grand Rapids, 130 Mich 187, 192-195; 89
NW 691 (1902) (indicating that the Legislature cannot determine what acts constitute
contempt or constrain courts’ power to punish those contemptuous acts, but that it may
prescribe certain punishments); Langdon, 76 Mich at 367 (recognizing that the
Legislature cannot curtail courts’ contempt powers, but that it may “regulate[] the mode
of proceeding and prescribe[] what punishment may be inflicted”). Justice MCCORMACK
concedes that the Legislature can regulate the courts’ contempt powers. As Nichols and
Langdon reflect, this regulation includes the ability to prescribe certain punishments, like
that in MCL 600.1721, as long as the regulation does not curtail courts’ inherent power to
punish contemptuous acts. As such, injection of separation of powers principles is
misplaced. Likewise, the suggestion that our decision has “cede[d]” judicial power is
overstated because Michigan courts have never had an inherent power to punish contempt
through an award of compensatory damages.
66
Having concluded that no Michigan court possesses inherent power to award
compensatory damages relating to contempt, we need not address the parties’
disagreement whether the probate court, the powers of which are controlled by the
Legislature, lacks the inherent power to punish contempt through fine or imprisonment.
67
By stating “[e]ven if Michigan did not recognize a wrongful death action,
hypothetically, respondent here could still have been held in contempt,” Justice
MCCORMACK errs in insinuating that a Court’s inherent contempt powers include the
ability to award compensatory damages to a third party for loss or injury. The fact that
26
C. APPLICATION
The civil contempt petition at issue here alleges that respondent negligently failed
to execute the probate court’s order, constituting contemptuous misconduct under MCL
600.1701. The petition alleges that this misconduct caused Bradley’s suicide and seeks
indemnification damages for his death under MCL 600.1721. Notably, the damages
petitioner seeks in her contempt petition are exactly the same damages that petitioner
sought under the wrongful death statute68 in her previous lawsuit, which was dismissed
on governmental immunity grounds. Indeed, the petition substantively replicated
petitioner’s prior complaint and sought damages “including, but not limited to, all of
those damages set forth in the Michigan Wrongful Death Statute.” (Citation omitted.)
Through her civil contempt petition, then, petitioner plainly seeks compensatory damages
for Bradley’s death. Thus, her civil contempt petition seeks to impose tort liability.69
Had petitioner sought to invoke the probate court’s inherent contempt powers, i.e.,
to fine or imprison a contemnor, or had petitioner otherwise established the applicability
of an exception to governmental immunity, then petitioner’s claim might have survived
summary disposition. However, petitioner’s civil contempt petition did not invoke the
the Legislature added the ability to impose tort liability to the Court’s powers as a
possible remedy for contempt does not resolve the issue whether that particular remedy
may be used against governmental agencies in the face of the GTLA. If MCL 600.1721
did not exist, then Justice MCCORMACK’s point would be valid.
68
MCL 600.2922.
69
We do not disagree with the concern that this Court must safeguard the power of the
judicial branch, but note that this case did not involve the willful violation of a court
order and the consequential offense to the issuing court, which is the very essence of
contempt of court.
27
court’s inherent powers of contempt, and she concedes that none of the GTLA’s
exceptions are applicable. Consequently, because a civil contempt petition seeking
indemnification damages under MCL 600.1721 seeks to impose tort liability, and
respondent is immune from tort liability, petitioner’s claim is barred by governmental
immunity under MCL 691.1407(1). Respondent is therefore entitled to summary
disposition under MCR 2.116(C)(7).
IV. CONCLUSION
Consistent with the Legislature’s intent, our decision clarifies that the phrase “tort
liability” as used in MCL 691.1407(1) encompasses all legal responsibility arising from
noncontractual civil wrongs for which a remedy may be obtained in the form of
compensatory damages. We further recognize that the plain language of MCL 600.1721
authorizes an award of indemnification damages to remedy a noncontractual civil wrong
and, thus, falls squarely within the meaning of “tort liability.” Because MCL
691.1407(1) immunizes governmental agencies from tort liability, governmental entities
are immune from civil contempt petitions seeking indemnification damages. Petitioner
has pleaded such a claim here and because she has not otherwise established the
applicability of an exception to the GTLA, respondent is entitled to immunity under
28
MCL 691.1407(1). We reverse the judgment of the Court of Appeals and remand this
case to the probate court for entry of an order granting summary disposition in favor of
respondent.
Mary Beth Kelly
Robert P. Young, Jr.
Stephen J. Markman
Brian K. Zahra
David F. Viviano
29
STATE OF MICHIGAN
SUPREME COURT
In re BRADLEY ESTATE
____________________________________
NANCY MICK, Personal Representative
of the ESTATE OF STEPHEN BRADLEY,
Deceased,
Petitioner-Appellee,
v No. 145055
KENT COUNTY SHERIFF’S
DEPARTMENT,
Respondent-Appellant.
CAVANAGH, J. (dissenting).
At issue in this case is whether an order imposing a compensatory contempt
sanction under MCL 600.17211 imposes “tort liability” for the purposes of MCL
691.1407(1) of the governmental tort liability act (GTLA), MCL 691.1401 et seq. The
majority holds that the Legislature intended to grant governmental defendants immunity
from such orders, reasoning that MCL 600.1721 has a compensatory purpose and that a
1
MCL 600.1721 states:
If the alleged misconduct has caused an actual loss or injury to any
person the court shall order the defendant to pay such person a sufficient
sum to indemnify him, in addition to the other penalties which are imposed
upon the defendant. The payment and acceptance of this sum is an absolute
bar to any action by the aggrieved party to recover damages for the loss or
injury.
petition for a compensatory contempt sanction under MCL 600.1721 is essentially a tort
claim. Although the majority provides an insightful summary of the legal history of tort
actions, the majority fails to provide an equally insightful explanation of the nature of
civil contempt, which, in my view, leads the majority to its erroneous conclusion that an
order imposing a compensatory contempt sanction imposes “tort liability” for the
purposes of the GTLA. Rather, I would hold that a compensatory contempt sanction does
not impose tort liability, primarily because that sanction is based on the contemptuous act
itself. Thus, I respectfully dissent and would affirm the result reached by the Court of
Appeals.
I. OVERVIEW OF CONTEMPT PROCEEDINGS
In In re Contempt of Dougherty, 429 Mich 81, 104-107; 413 NW2d 392 (1987),
we considered whether “anticipatory contempt” was a proper use of the court’s contempt
power, holding that the future intent to violate a court order was not subject to the court’s
contempt power. That issue is not present in this case; however, In re Contempt of
Dougherty is helpful because it provides an excellent analysis of the sui generis nature of
contempt proceedings. Id. at 90-91. Specifically, In re Contempt of Dougherty
recognized that “contempts are ‘neither wholly civil nor altogether criminal . . . .’” Id. at
91, quoting Gompers v Bucks Stove & Range Co, 221 US 418, 441; 31 S Ct 492; 55 L Ed
797 (1911). Further, we explained that it is often necessary to characterize a contempt
proceeding as criminal or civil and that the determining difference is the character and
purpose of the punishment imposed on the contemnor. Id. at 92-93, quoting Gompers,
221 US at 441 (“‘If it is for civil contempt the punishment is remedial, and for the benefit
2
of the complainant. But if it is for criminal contempt the sentence is punitive, to
vindicate the authority of the court.’”).
To aid courts in characterizing civil and criminal contempt proceedings, In re
Contempt of Dougherty explained that the process is civil if the contemnor refuses to do
an act ordered by the court, whereas the process is criminal if the contemnor commits a
forbidden act. Id. at 94-96, quoting Gompers, 221 US at 443, and People ex rel Attorney
General v Yarowsky, 236 Mich 169, 171-172; 210 NW 246 (1926). The purpose of
criminal contempt is to penalize and “operate[] in terrorem . . . to prevent a repetition of
the offense in similar cases,” and the purpose of civil contempt is to coerce the contemnor
to comply with the court’s order for the benefit of the opposing party. In re Contempt of
Dougherty, 429 Mich at 95-96 (quotation marks and citations omitted). In re Contempt
of Dougherty acknowledged, however, that “there are two types of civil contempt
sanctions, coercive and compensatory.” Id. at 97. The purpose of the compensatory fine
in a civil contempt proceeding is to compensate the complainant. Id. at 98. The
complainant’s “‘right, as a civil litigant, to the compensatory fine is dependent upon the
outcome of the basic controversy.’” Id., quoting United States v United Mine Workers of
America, 330 US 258, 303-304; 67 S Ct 677; 91 L Ed 884 (1947). In re Contempt of
Dougherty, 429 Mich at 98, concluded that
there are three sanctions which may be available to a court to remedy or
redress contemptuous behavior: (1) criminal punishment to vindicate the
court’s authority; (2) coercion, to force compliance with the order; and (3)
compensatory relief to the complainant.
3
II. A COMPENSATORY CONTEMPT SANCTION IS NOT “TORT LIABILITY”
I agree with the majority that a proper analysis of this case should begin by
defining “tort liability” for the purposes of MCL 691.1407(1), and, next, it must be
determined whether a compensatory sanction for civil contempt constitutes tort liability.
Further, I appreciate the majority’s thoughtful approach to providing a common-law
definition of “tort” as “a civil wrong, other than a breach of contract, for which the court
will provide a remedy in the form of compensatory damages.” Ante at 15. Most
importantly, I agree with the majority that “our focus must be on the nature of the
liability rather than the type of action pleaded,” ante at 18, and the first focus should be
“on the nature of the duty that gives rise to the claim,” ante at 19.
Under MCL 600.1721, “any person” who suffers “actual loss or injury” caused by
the defendant’s “alleged misconduct” may file a petition or motion seeking remedial
relief in the form of a compensatory contempt sanction. As the majority acknowledges,
the reference in MCL 600.1721 to “alleged misconduct” illustrates that such a petition or
motion is based on the general contempt statute, MCL 600.1701. Thus, without an act of
contempt, there is no basis for liability under MCL 600.1721. At its core, a
contemptuous act is an “act of disobedience” to the court’s “ordinary exercise of its
duties,” and, “[w]ithout authority to act promptly and independently the courts could not
administer public justice or enforce the rights of private litigants.” Gompers, 221 US at
450, citing Bessette v W B Conkey Co, 194 US 324; 24 S Ct 665; 48 L Ed 997 (1904).
Despite the fact that a compensatory sanction based on civil contempt is primarily
4
remedial in nature,2 i.e., it “is for the purpose of protecting the civil rights and remedies
of the party, and to compensate him for the injury or loss by the misconduct alleged,”
Holland v Weed, 87 Mich 584, 587-588; 49 NW 877 (1891), the liability imposed
nevertheless arises from the party’s disobedience to a court order.
As a result, I disagree with the majority that the “alleged misconduct,” which
serves as the basis for liability under MCL 600.1721, is “synonymous” with a traditional
tort duty and its breach. Ante at 22. This is because, generally stated, liability arising
from tortious conduct stems from a breach of one’s duty to another, not the breach of an
obligation owed to the court.3 Additionally, as Justice MCCORMACK astutely explains,
2
See In re Contempt of Dougherty, 429 Mich at 93 (noting that “a civil contempt
proceeding may have a punitive, as well as remedial effect”); Gompers, 221 US at 443(“It is true that either form of imprisonment has also an incidental effect. For if the case
is civil and the punishment is purely remedial, there is also a vindication of the court’s
authority. On the other hand, if the proceeding is for criminal contempt and the
imprisonment is solely punitive, to vindicate the authority of the law, the complainant
may also derive some incidental benefit from the fact that such punishment tends to
prevent a repetition of the disobedience. But such indirect consequences will not change
imprisonment which is merely coercive and remedial, into that which is solely punitive in
character, or vice versa.”).
3
Compare Black’s Law Dictionary (9th ed), p 998 (defining “tortious liability” as
“[l]iability that arises from the breach of a duty that (1) is fixed primarily by the law, (2)
is owed to persons generally, and (3) when breached, is redressable by an action for
unliquidated damages”) (emphasis added), and ante at 15 n 40 (stating that a “tort” is a
“‘breach of a duty that the law imposes on persons who stand in particular relation to
one another’”), quoting Black’s Law Dictionary (9th ed) (emphasis added), with
Gompers, 221 US at 450 (explaining that a party subject to a court’s order cannot “make
himself a judge of the validity of orders” because a court must be enabled “to enforce its
judgments and orders necessary to the due administration of law and the protection of the
rights of suitors”) (citation omitted) (emphasis added), and In re Contempt of Rapanos,
143 Mich App 483, 496; 372 NW2d 598 (1985) (“Civil contempt proceedings are
instituted to preserve and enforce the rights of private parties to suits and to compel
5
there may be civil wrongs that are neither a tort nor a contract. See post at 2-3. Indeed, a
“civil wrong” may be defined as “[a] violation of noncriminal law, such as a tort, a
breach of contract or trust, a breach of statutory duty, or a defect in performing a public
duty; the breach of a legal duty treated as the subject matter of a civil proceeding.”
Black’s Law Dictionary (9th ed), p 1751 (emphasis added). A petition or motion for a
compensatory contempt sanction could be classified as a claim based on a civil wrong in
that it is based on a breach of a legal duty owed to the court; however, I disagree with the
majority that the fact that a noncontractual civil wrong is at issue means that tort liability
is imposed. See ante at 22-23. Rather, I think that the nature of the legal duty is relevant.
In other words, I do not think that simply because a civil legal duty exists and is not a
contractual duty, that a breach of that duty necessarily imposes tort liability.
Because the “alleged misconduct” under MCL 600.1721 is distinguishable from
tortious conduct, the compensatory quality of tort damages and of a contempt sanction
imposed under MCL 600.1721 is the only potentially relevant similarity shared by the
two types of liability.4 While I agree with the majority that the purpose of the relief
obedience to orders and decrees made to enforce those rights and to administer the
remedies to which the court has found the parties entitled.”) (emphasis added).
4
In support of its conclusion that MCL 600.1721 imposes tort liability for the purposes of
the GTLA, the majority also looks to the second sentence of MCL 600.1721, which states
that “[t]he payment and acceptance of this sum is an absolute bar to any action by the
aggrieved party to recover damages for the loss or injury.” I agree that MCL 600.1721
bars an action for damages that are caused by the contemptuous conduct; however, I do
not see how that fact supports the majority’s holding that a compensatory contempt
sanction imposes tort liability. The fact that a compensatory contempt sanction, referred
to as a “sum” in the statute, bars a subsequent action at law does not mean that the
Legislature likened the two forms of liability. Rather, in my view, the Legislature
realized that a compensatory contempt sanction has a similar remedial purpose to tort
6
sought may be a relevant inquiry when determining whether a type of liability is tort
liability for the purposes of the GTLA, the nature of the remedy sought should not be
dispositive when analyzing a claim for purposes of MCL 691.1407(1).5 Thus, I do not
think that a compensatory contempt sanction imposes tort liability simply because it may
serve a similar remedial purpose as tort damages.
I also think that, in certain circumstances, characterizing a compensatory contempt
sanction as serving a compensatory purpose to the exclusion of any other purpose may
oversimplify the nature of the contempt proceeding itself. See Gompers, 221 US at 443(recognizing the “incidental effect[s],” i.e., the overlapping purposes, of civil and
criminal contempt). Specifically, I think that when a party subject to a court order has the
present obligation and ability to comply, the prospect of a compensatory sanction may
work hand-in-hand with coercive monetary sanctions.6 “When the purpose of the
liability and, thus, the Legislature decided to bar actions at law to avoid providing a
windfall to a petitioner under MCL 600.1721.
5
Like the majority, I disagree with the Court of Appeals to the extent that it held that the
nature of the damages sought in an action has “no role in determining whether the action
is barred by the GTLA.” In re Bradley Estate, 296 Mich App 31, 39; 815 NW2d 799
(2012). But I agree with the Court of Appeals to the extent it explained that, when
analyzing whether a compensatory contempt sanction falls within the scope of tort
liability under MCL 691.1407(1), the inquiry depends on whether the “contempt action is
a cause of action that is separate and distinct from one that is grounded in tort liability.”
Id. (emphasis added). Additionally, I do not find relevant the majority’s statement that
the GTLA grants immunity from “tort liability,” while not expressly referring to a “tort
duty.” It goes without saying that in order for a tort or liability resulting from a tort to
exist, a tort duty must exist; thus, in my view, the majority’s analysis appears to rest on
the fact that petitioner seeks remedial relief under MCL 600.1721.
6
See In re Contempt of Dougherty, 429 Mich at 99 (stating that “a coercive sanction is
proper where the contemnor, at the time of the contempt hearing, is under a present duty
to comply with the order and is in present violation of the order”); DeGeorge v Warheit,
7
sanction is to make a party or person comply, the trial court, in exercising its discretion,
must ‘consider the character and magnitude of the harm threatened by continued
contumacy, and the probable effectiveness of any suggested sanction in bringing about
the result desired.’” In re Moroun, 295 Mich App 312, 337; 814 NW2d 319 (2012),
quoting In re Contempt of Dougherty, 429 Mich at 98, quoting United Mine Workers of
America, 330 US at 304 (quotation marks omitted). In my view, the compensatory
contempt sanction, which is measured by the actual loss caused by the contemptuous
conduct, serves a similar purpose as a coercive contempt sanction; the primary difference
is that the former is retrospective, whereas the latter is prospective. A coercive contempt
sanction attempts to avoid actual loss altogether by sanctioning present noncompliance,
while a compensatory contempt sanction reimburses a petitioner’s actual loss. Practically
speaking, the possibility that the contumacious party may still be sanctioned after his or
her ability to comply with the order has expired, will encourage the contumacious party
to comply with the court order before his or her ability to do so has expired.7
276 Mich App 587, 592; 741 NW2d 384 (2007) (“Civil contempt proceedings seek
compliance through the imposition of sanctions of indefinite duration, terminable upon
the contemnor’s compliance or inability to comply.”).
7
As the majority notes, governmental defendants are not typically immune from
equitable suits. See ante at 20 n 54. As a result, I question whether it may be an
unforeseen consequence of the majority’s holding to immunize governmental defendants
from compensatory contempt sanctions when those defendants are not immune from the
imposition of an equitable order. Indeed, the losses recovered under MCL 600.1721
typically arise from a violation of such an equitable order, not from a wrong that may be
remedied with tort damages. Moreover, I think that the Legislature, through the
enactment of MCL 600.1721, has recognized that it would be unjust to preclude the
recovery of losses sustained simply because the contemnor is not under a present duty to
comply with the court order. The majority asserts that because MCL 600.1721 allows
“any person” to petition or move for a compensatory contempt sanction, the purpose of
8
To conclude, I would hold that the contemptuous act itself is an integral part of
imposing liability under MCL 600.1721, and the duty one owes to a court is
distinguishable from a tort duty. While the common-law definition of “tort” is admittedly
broad, holding that a compensatory contempt sanction amounts to “tort liability”
unreasonably stretches the traditionally understood concept of a “tort” claim by not
appreciating that a tort duty is not simply any noncontractual civil duty imposed by the
law. Thus, I would conclude that the Legislature, when granting immunity from tort
liability under the GTLA, did not intend that governmental defendants would be immune
from compensatory contempt sanctions.
Michael F. Cavanagh
the statute is to compensate a private individual. That may be a purpose of the statute,
but, in my view, the majority oversimplifies the context of when a petition or motion
under MCL 600.1721 may be brought and ignores that any loss covered by the statute
was sustained as a result of a violation of a court order. For that reason, I think that a
motion or petition brought under MCL 600.1721 is simply too far removed from the
common-law understanding of tort liability to conclude that the Legislature, when
enacting the GTLA, thought of a compensatory contempt sanction as imposing tort
liability.
9
STATE OF MICHIGAN
SUPREME COURT
In re BRADLEY ESTATE
NANCY MICK, Personal Representative of
the ESTATE OF STEPHEN BRADLEY,
Deceased,
Petitioner-Appellee,
v No. 145055
KENT COUNTY SHERIFF’S
DEPARTMENT,
Respondent-Appellant.
MCCORMACK, J. (dissenting).
The majority holds that the governmental tort liability act’s (GTLA)1 grant of
immunity to governmental agencies from “tort liability,” as referred to in MCL
691.1407(1), applies to civil contempt. The majority’s analysis rests entirely on two
closely related propositions. First, the GTLA grants immunity from legal responsibility
arising from a tort. I agree. Second, all noncontractual civil wrongs, including civil
contempt, are torts. I respectfully disagree. Civil contempt does not sound in tort, and
contempt sanctions of any kind simply do not impose tort liability. Furthermore, and not
surprisingly, the GTLA does not provide any basis for concluding that our Legislature
1
MCL 691.1401 et seq.
intended to grant immunity for contempt of court. Nor does the contempt statute, MCL
600.1701, provide any basis for concluding that governmental actors are not subject to all
of its remedies. Because I believe that the majority confuses legal categories, and in light
of the plain meaning of both the GTLA and the contempt statute, I respectfully dissent
and would affirm the judgment of the Court of Appeals.
I. CIVIL LIABILITY
A. AN ABBREVIATED TAXONOMY OF “CIVIL WRONGS”
Very generally speaking, there are two categories of legal wrongs that may result
in civil liability. One category encompasses acts that violate a personal right, which
includes the common-law subjects of property, tort, contract, trust, and restitution. A
second category encompasses acts not against the person, but rather against the
sovereign, or acts against interests the sovereign deems worthy of protection. These acts
are the subject of environmental law, securities law, and consumer law, to name a few.
These examples are hardly exhaustive. But they suffice to show that the legal system
imposes liability in a wide variety of contexts, either to address harms committed against
citizens or, instead, to enforce rules imposed by the state or its subdivisions.
The majority begins its analysis by examining caselaw and legal dictionaries in
search of a definition of the term “tort.” It ultimately articulates this one: “a civil wrong,
other than a breach of contract, for which the court will provide a remedy in the form of
compensatory damages.”2 But this definition offers little guidance, first because “civil
2
Ante at 15.
2
wrong” is itself a term of art and, moreover, because, as noted in the previous paragraph,
there are many noncontractual civil wrongs that are not torts.
The English legal tradition recognized courts of “law,” the Court of Queen’s
Bench, and “equity,” the Court of Chancery. Though complementary, the two operated
separately and independently.3 Our modern system has abolished these distinctions, but
has adopted aspects of and rules from both.4 Civil liability sounding in neither contract
nor tort is not uncommon. Breach of trust, for example, has its roots in the rules of equity
and the Court of Chancery, separate and distinct from both contract and tort.5 A trustee
relationship imposes fiduciary duties, the breach of which results in liability.6 Though
trust law can well be understood as a half sibling of contract law, it cannot be reduced to
3
The majority’s historical analysis, attempting to illustrate that at common law all civil
wrongs were either contract or tort, relies only on in personam actions brought in courts
of law and thereby misses the larger point. See ante at 12 n 31, quoting Sinclair v
Brougham, [1914] AC 398 (HL), 415 (1914) (Viscount Haldane, LC) (“[S]o far as
proceedings in personam are concerned, the common law of England really
recognizes . . . only actions of two classes, those founded on contract and those founded
on tort.”) (emphasis added). As a result, the majority’s analysis misses an important
point. Contempt is not a private wrong, but rather a wrong against the sovereign.
4
See 1963 Const, art 6, § 5 (“The supreme court shall by general rules establish, modify,
amend and simplify the practice and procedure in all courts of this state. The distinctions
between law and equity proceedings shall, as far as practicable, be abolished. The office
of master in chancery is prohibited.”); MCL 600.223(4) (stating that this Court has the
authority to promulgate and amend general rules governing practices and procedure in
this Court and all other courts of record, including but not limited to the authority “to
abolish, as far as practicable, distinctions between law and equity”).
5
See 1 Restatement Trusts, 3rd, Introductory Note, p 3; Seipp, Trust and fiduciary duty
in the early common law, 91 BU L R 1011 (2011).
6
See MCL 700.7901.
3
contract. A breach of trust stems not from the violation of a bargained-for-exchange, but
rather from duties arising out of the special relationship of the parties. That is, it was not
considered a tort, and at common law the only available remedy was in equity. Another
example is provided by the law of restitution and unjust enrichment. It is based on
principles of equity; it sounds in neither contract nor tort, yet it shares characteristics of
both. Restitution recognizes the need for compensation in instances when the receipt and
retention of a benefit by a person without payment made to the person providing that
benefit would result in injustice.7 Consider also easements by prescription. An action to
establish a prescriptive easement certainly cannot be recognized as based in contract
because permissive use destroys the claim.8 Nor is it based in tort. Like actions to quiet
title, actions for a prescriptive easement are equitable in nature.9 State and governmental
entities are immune from prescriptive easements not because of the broad language of the
GTLA. Rather, that immunity is conferred by an exception to the statute of limitations
for actions for recovery or possession of real property.10
Our legal system imposes liability in many other contexts as well, even apart from
the criminal justice system. A familiar example would be civil infractions. A parking
ticket results in a legal obligation to pay money. But a parking infraction is not a tort, a
7
1 Restatement of Restitution and Unjust Enrichment, 3d, § 1, p 3; Sherwin, Restitution
and equity: An analysis of the principle of unjust enrichment, 79 Tex L R 2083 (2001).
8
Banach v Lawera, 330 Mich 436, 440-442; 47 NW2d 679 (1951).
9
Mulcahy v Verhines, 276 Mich App 693, 698; 742 NW2d 393 (2007).
10
See MCL 600.5821(1) and (2).
4
breach of contract, or a crime. It is simply a municipal ordinance violation.11 And
perhaps the most essential power of any government—the power to tax—imposes legal
obligations. Yet, again, tax liability does not sound in either tort or contract.12 A
comprehensive discussion of these two subjects is beyond the scope of this dissent. But
both civil infractions and tax law impose civil liability in ways different from tort or
contract. The obligations they impose serve to vindicate the interests of the sovereign.
They do not serve to vindicate personal rights; they are not mechanisms for righting
private wrongs or securing compliance to a mutual obligation.
B. THE NATURE OF TORTS
William Prosser once observed that “a really satisfactory definition of a tort is yet
to be found. The numerous attempts which have been made to define the term have
succeeded only in achieving language so broad that it includes other matters than torts, or
else so narrow that it leaves out some torts themselves.”13 Fundamentally, a tort action
11
See MCL 600.8701 et seq.
12
But consider the Internal Revenue Code’s treatment of deductions for business
expenses. 26 USC 162. The Code recognizes that “ordinary and necessary expenses”
are, generally, deductible. 26 USC 162(a). These expenses include tort liabilities, if
incurred in the ordinary course. See 26 USC 461(h)(2)(C) (discussing the timing these
deductions). However, a “fine or similar penalty paid to a government for the violation
of any law” is not deductible. 26 USC 162(f). The code treats tort liability distinctly
from other civil penalties, recognizing the different policy rationales driving both. See
Tank Truck Rentals, Inc. v Comm’r of Internal Revenue, 356 US 30; 78 S Ct 507; 2 L Ed
2d 562 (1958). This example underscores the important difference between civil wrongs
against persons and those against the sovereign.
13
Prosser & Keeton, Torts (5th ed), § 1, pp 1-2. The majority’s definition of a tort—
anything that cannot be classified as either breach of contract or a crime—falls within the
first class of error Prosser describes.
5
protects a person’s interest in a range of personal interests: physical security and
autonomy;14 emotional security and other intangible interests, such as privacy and
reputation;15 and personal economic security and opportunity.16 While tort liability may
lead to relief in the form of compensatory money damages, this is not the only remedy
available for tortious conduct. A tortfeasor may be restrained by an injunction, and may
be liable for restitution, punitive, or nominal damages.
Moreover, compensatory damages are not unique to tort law. Compensatory
damages are a common remedy in actions based in contract, for example, as expectation
or consequential damages. Or for an example closer to contempt, our Legislature has
even provided for compensatory damages for victims of crime in the Crime Victim’s
Rights Act.17 In short, tort liability does not hinge on an award of compensatory
damages, and the availability of compensatory damages is not unique to tort law.
14
See Tinkler v Richter, 295 Mich 396, 401; 295 NW 201 (1940) (civil assault and
battery); Giddings v Rogalewski, 192 Mich 319, 326; 158 NW 951 (1916) (civil trespass).
15
See Roberts v Auto-Owners Ins Co, 422 Mich 594, 597-598; 374 NW2d 905 (1985)
(discussing, without deciding, whether intentional infliction of emotional distress is a
viable claim in Michigan); Pallas v Crowley, Milner & Co, 322 Mich 411, 416; 33 NW2d
911 (1948) (right of privacy); Mitan v Campbell, 474 Mich 21, 24; 706 NW2d 420
(2005) (defamantion).
16
See Cedroni Assoc, Inc v Tomblinson, Harburn Assoc, Architects & Planners, Inc, 492
Mich 40, 45; 821 NW2d 1 (2012) (tortious interference with a business expectancy);
Good Housekeeping Shop v Smitter, 254 Mich 592, 596-597; 236 NW 872 (1931) (unfair
competition and common-law trademark).
17
MCL 780.751 et seq.
6
Rather, the sine qua non of a tort is the breach of a duty owed to a fellow citizen.
And, although tort liability has been extended to some extent in recent decades with
increased reliance on doctrines like public nuisance, classic tort liability is rooted in the
common-law duties all citizens owe to one another.18
C. CONTEMPT OF COURT
Contempt of court is altogether different. It stems from a violation of an
obligation owed not to any person, but to the court itself. Contempt does not serve to
protect private rights; it serves to protect the power of the courts. Contempt has been
described as a “power of self-defense,” intended to sanction “those who interfere with the
orderly conduct of [court] business or disobey orders necessary to the conduct of that
business . . . .”19 This purpose—to protect the power of the judiciary—is evidenced not
only by modern cases, but also by contempt’s historical roots. It comes as no surprise
that contempt of court is not discussed in any leading tort treatise, nor is it discussed
within the comprehensive framework of tort law by the Restatement, two observations
18
See 2 Dobbs, The Law of Torts (2nd ed), § 251, p 1 (“No defendant is liable for
negligence unless he is under a legal duty to use care.”); see also Elbert v City of
Saginaw, 363 Mich 463, 475; 109 NW2d 879 (1961) (stating that when there is no legal
duty, there can be no actionable negligence, and that “the sine qua non of negligence law
[is] the requirement (a ‘duty’) that people in an ordered society must conform to a certain
standard of conduct in their relations one with another”).
19
Young v United States ex rel Vuitton et Fils SA, 481 US 787, 820-821; 107 S Ct 2124;
95 L Ed 2d 740 (1987) (Scalia, J., concurring); see also In re Contempt of Robertson, 209
Mich App 433, 436; 531 NW2d 763 (1995) (stating that contempt is a “wilful act,
omission or statement that tends to . . . impede the functioning of a court”).
7
which further reveal the majority’s error.20 The common law did not consider contempt a
tort, and the Queen’s Bench would not have understood it as such. Rather, contempt of
court was viewed at common law as criminal in nature.21 While modern cases
distinguish civil contempt,22 and though indemnification damages in a contempt
proceeding may resemble tort damages in certain respects, labeling contempt a tort is to
ignore fundamental differences between the two.
Implicit in the majority’s analysis is that all legal wrong fits neatly into one of
three categories: criminal, contractual, or tortious. The law is not so neat. Modern
Michigan cases have recognized contempt proceedings as “quasi-criminal” in nature.23
Nor is Michigan alone. The United States Supreme Court has described contempt
proceedings as “sui generis—neither civil actions nor prosecutions for offenses, within
the ordinary meaning of those terms—and exertions of the power inherent in all courts to
enforce obedience, something they must possess in order properly to perform their
20
See, e.g., Dobbs, The Law of Torts (2nd ed); Prosser & Keeton, Torts (5th ed);
Restatement Torts, 2d; Restatement Torts, 3d.
21
In Blackstone’s Commentaries on the Laws of England, contempt of court is discussed
as a public wrong, or crime. See 4 Blackstone, Commentaries on the Laws of England
(Jones ed., 1976), pp **286-287 (discussing contempt as a crime and unique in that it
could be punished by summary conviction, without trial by jury).
22
See Gompers v Bucks Stove & Range Co, 221 US 418, 441; 31 S Ct 492; 55 L Ed 797(1911).
23
Porter v Porter, 285 Mich App 450, 456; 776 NW2d 377 (2009), citing In re Contempt
of Dougherty, 429 Mich 81, 90; 413 NW2d 392 (1987).
8
functions.”24 They “are neither wholly civil nor altogether criminal.”25 Rather, an act of
contempt “may partake of the characteristics of both.”26
As this discussion demonstrates, courts have often struggled to classify contempt
as anything but sui generis. While modern cases label contempt as either “civil” or
“criminal,” this distinction does not lead to the conclusion that civil contempt is a tort.
The distinction between criminal and civil contempt has not always been clear,27 but the
dividing line has focused on the nature of the punishment or sanction.28 But no matter
the label, even “if the case is civil and the punishment is purely remedial, there is also a
vindication of the court’s authority.”29 Though different labels may be applied, at its core
a contempt action is fundamental to a court’s power to effectuate its orders. 30
24
Myers v United States, 264 US 95, 103; 44 S Ct 272; 68 L Ed 577 (1924). Other cases
have cast off the qualifier “quasi” altogether. See Gompers v United States, 233 US 604,
610; 34 S Ct 693; 58 L Ed 1115 (1914) (“If [acts of contempt] are not criminal, we are in
error as to the most fundamental characteristic of crimes as that word has been
understood in the English speech.”).
25
Gompers, 221 US at 441.
26
Id. (citation and quotation marks omitted).
27
For a thorough historical analysis, consider Dudley, Jr., Getting beyond the
civil/criminal distinction: A new approach to the regulation of indirect contempts, 79 Va
L R 1025 (1993).
28
Gompers, 221 US at 441; see also In re Contempt of Dougherty, 429 Mich at 91-93,
discussing Gompers, 221 US 418.
29
Gompers, 221 US at 443.
30
An important distinction in criminal contempt is the right to trial by jury before the
sanction may be imposed. Bloom v Illinois, 391 US 194, 209; 88 S Ct 1477; 20 L Ed 2d
522 (1968).
9
D. A TORT BY ANY OTHER NAME?
A more apt comparison for contempt of court can be found not in tort law, but
instead in the various legal sanctions provided by our court rules. Like the contempt
power, these sanctions serve to enforce the orderliness of court proceedings. Sometimes,
courts may impose the equivalent of compensatory damages for a violation of the court
rules, such as when a party who files vexatious pleadings or makes vexatious discovery
demands is sanctioned by having to pay the other party’s costs. But these are not tort
damages, nor are they unavailable against municipal litigants under the GTLA.
The majority cites several cases in which courts have drawn analogies between
civil contempt and tort in support of its conclusion that civil contempt is a tort.31 These
cases do not support the majority’s conclusion; they suggest only that a civil contempt
petition is analogous to a tort claim. But the majority offers these cases in support of the
separate proposition that civil contempt is a tort.32 Analogies are by definition
comparable, but not interchangeable. They are related, but they are not equivalent. The
majority is correct that one analogous feature of these two distinct civil wrongs is that
31
Ante at 24 n 61, citing Dodson v Dodson, 380 Md 438, 453; 845 A2d 1194 (2004);
Parker v United States, 153 F2d 66, 70 (CA 1, 1946); Vuitton et Fils SA v Carousel
Handbags, 592 F2d 126, 130 (CA 2, 1979); Thompson v Cleland, 782 F2d 719, 722 (CA
7, 1986).
32
In particular, the majority insists that petitioner’s contempt of court claim in this case
simply “recast[s]” her immunity-barred wrongful death action. This misses the core
point. Neither a contempt of court petition nor a wrongful death suit is a disguise for the
other. They are separate legal theories, serving separate purposes, predicated on different
wrongs. That, under the facts of this case, both may lead to a similar remedy does not
make them the same. Even if Michigan did not recognize a wrongful death action,
hypothetically, respondent here could still have been held in contempt for failing to carry
out a lawful court order if petitioner could prove the elements of contempt.
10
both can result in compensatory liability. But the similarity ends there. Tort law
imposes a duty to avoid harmful conduct deemed tortious. Contempt law imposes a duty
to obey the court. These duties are fundamentally different, as are their origins, and the
purposes they serve.
Even assuming, purely for argument’s sake, that a similarity to tort were sufficient
to subject civil contempt to the same immunity rules as tort, I believe that the Legislature
has foreclosed that immunity here. For while I agree with the majority that contempt
sanctions are not among the five statutory exceptions to the GTLA’s grant of immunity,
the GTLA does not apply in cases in which a separate statute gives rise to direct evidence
that the Legislature intended to waive the state’s immunity to liability.33 The contempt
statute specifically includes “[a]ll attorneys, counselors, clerks, registers, sheriffs,
coroners, and all other persons in any manner elected or appointed to perform any
judicial or ministerial services”34 as those subject to the court’s contempt power. By
specifically including these governmental actors as among those who may be deemed
33
The majority’s discussion of waiver is incomplete. It correctly notes the five statutory
GTLA exceptions, but does not meaningfully address the other areas in which the
Legislature has waived immunity. “[T]here are other areas outside the GTLA where the
Legislature has allowed specific actions against the government to stand, such as the
Civil Rights Act.” Mack v Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002), citing MCL
37.2103(g), MCL 37.2202(a), and Manning v City of Hazel Park, 202 Mich App 685,
699; 509 NW2d 874 (1993) (recognizing that governmental immunity is not a defense to
claims brought under the Civil Rights Act because the act specifically includes the state
and its political subdivisions and their agents as employers covered by the act. See also
the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq. (specifically
including the state and its political subdivisions as persons subject to the provisions of the
act at MCL 37.1103(g)).
34
MCL 600.1701(c) (emphasis added).
11
contemnors, the Legislature has waived any claim that they are immune from contempt
liability. Further, the contempt statute does not distinguish among those parties to which
its various sanctions, including indemnification damages, apply.
II. STATUTORY INTENT
I believe the majority’s premise that contempt is a tort leads it to gloss over the
relevant statutory texts too quickly. The express language of both the GTLA and the
contempt statute undermines the majority’s conclusion that the GTLA is intended to grant
governmental agencies immunity from compensatory contempt sanctions. The GTLA
does not refer to contempt explicitly or implicitly, and, likewise, the contempt statute
does not refer to governmental immunity in any way. Given that contempt remedies are
not generally understood to be “tort” damages, surely the Legislature would have made
its intentions clear if it had sought to include contempt remedies in the immunity statute.
As previously noted, certain governmental actors are specifically included as within the
scope of the contempt statute,35 establishing that governmental actors can be held in
contempt. Further, the compensatory remedy of the contempt statute does not limit
against whom indemnification damages apply.36
The GTLA itself demonstrates that the Legislature knew how to use different
language when it intended to grant immunity beyond tort liability. MCL 691.1407(1),
35
Id.36
See MCL 600.1721.
12
which the majority relies on, states that “a governmental agency is immune from tort
liability if the governmental agency is engaged in the exercise or discharge of a
governmental function.”37 In MCL 691.1407(6), however, the GTLA does not use the
term “tort liability,” but instead states that “[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.”38 Because “liability for an injury to a
person or damage to property” encompasses tort liability, the Legislature’s use of the
term “civil liability” in § 1407(6) suggests a broader scope of immunity than that found
in § 1407(1). When the Legislature uses different words in the same statute, they should
be assigned different meanings whenever possible.39
The codification of the contempt power underscores the same conclusion. The
Legislature did not use the word “tort” to describe the conduct it prohibits in the
contempt statute. It did not use the word “tort” to describe the available sanctions. And
there is more support: The Legislature did not include contempt in chapter 29 of the
Revised Judicature Act, “Provisions Concerning Specific Actions,”40 a chapter codifying
37
Emphasis added.
38
Emphasis added.
39
See 2A Singer & Singer, Sutherland Statutory Construction (7th ed), § 46:6, p 252
(“The use of different terms within similar statutes generally implies that different
meanings were intended.”).
40
MCL 600.2901 et seq.
13
miscellaneous tort actions including malpractice,41 defamation,42 and damage or waste to
land.43 Rather, contempt is given its own chapter, in keeping with its unique nature.44
Further, refusing to apply the GTLA here will not negatively impact the
functioning of governmental agencies because governmental actors, I believe, generally
avoid behavior “directly tending to interrupt [court] proceedings,”45 do not habitually
engage in “willful neglect or violation of duty,”46 and generally refrain from “disobeying
any lawful order, decree, or process of the court.”47 Even given the egregious facts of
this case, respondent vigorously contests whether a contempt finding was proper.
Respondent argues that there was no willful violation of the probate court order and,
assuming there was, that indemnification damages were nevertheless improper because
there was no causal link between the contempt and Bradley’s suicide.48 These would be
issues worthy of consideration on remand if my position prevailed and they provide
41
MCL 600.2912.
42
MCL 600.2911.
43
MCL 600.2919.
44
MCL 600.1701 et seq.
45
MCL 600.1701(a) and (b).
46
MCL 600.1701(c).
47
MCL 600.1701(g).
48
Indemnification damages under MCL 600.1721 require a causal link: “If the alleged
misconduct has caused an actual loss or injury to any person the court shall order the
defendant to pay such person a sufficient sum to indemnify him, in addition to the other
penalties which are imposed upon the defendant.” (Emphasis added.)
14
additional hurdles that might prove fatal to petitioner’s claim for indemnification
damages.
III. THE INHERENT POWER OF THE JUDICIARY
Finally, the majority’s analysis concludes that the GTLA’s immunity grant to
contemnors is not an infringement on the court’s inherent contempt power because the
GTLA only applies to the contempt remedies provided by the Revised Judicature Act,49
but not to the judiciary’s “inherent contempt power,” which the majority concludes is
limited to coercive fines and imprisonment. While my analysis does not rest on this
distinction, I believe the majority fails to satisfactorily explain why any particular
remedy, and indemnification damages in particular, is somehow outside the Court’s
inherent contempt power, except, perhaps, because this sanction is codified in the
Revised Judicature Act.50 That codification would render the remedy not part of the
court’s inherent power is inconsistent with both this Court’s past pronouncement that
contempt statutes are “merely declaratory of what the law was before its passage,”51 and,
as the majority concedes,52 with the fact that indemnification damages have been
49
MCL 600.1715 and MCL 600.1721.
50
See MCL 600.1721. But also codified are coercive civil contempt and criminal
contempt. MCL 600.1715.
51
In re Chadwick, 109 Mich 588, 600; 67 NW 1071 (1896) (citation and quotation marks
omitted); see also In re Huff, 352 Mich 402, 415; 91 NW2d 613 (1958) (“There is
inherent power in the courts . . . independent of, as well as by reason of statute, which is
merely declaratory and in affirmation thereof, to adjudge and punish for contempt . . . .”).
52
Ante at 25 n 62.
15
recognized by Michigan contempt statutes dating back well before adoption of the 1963
Constitution.53 And while it has been recognized that the Legislature can regulate the
court’s exercise of the contempt power, that regulation cannot abridge or, crucially,
curtail the power.54 An intrusion of that nature into the courts’ inherent powers would
violate the separation-of-powers principle.55 But the majority fails to acknowledge this
principle, or explain how the removal of an entire class of sanctions is merely regulatory
and not instead a curtailment.56 If, counterfactually, the GTLA expressly prohibited
53
See 1846 RS, ch 121, § 21, the original predecessor of MCL 600.1721.
54
In re Chadwick, 109 Mich at 599-600.
55
Id. at 600 (stating that if the Legislature could curtail the courts’ jurisdiction to hear
contempt cases “it might encroach upon both the judicial and executive departments, and
draw to itself all the powers of government, and thereby destroy that admirable system of
checks and balances to be found in the organic framework of both the Federal and State
institutions, and a favorite theory in the governments of the American people”) (citation
and quotation marks omitted).
56
The power to curtail the judiciary’s inherent contempt power is with this Court, not the
Legislature. 1963 Const, art 6, § 4 (“The supreme court shall have general
superintending control over all courts; power to issue, hear and determine prerogative and
remedial writs; and appellate jurisdiction as provided by rules of the supreme court.”).
The majority relies on Langdon v Judges of Wayne Circuit Court, 76 Mich 358, 367; 43
NW 310 (1889), for the proposition that the GTLA merely “‘regulate[s] the mode of
proceeding and prescribe[s] what punishment may be inflicted.’” Ante at 26 n 65.
Langdon, however, addressed only the question of whether the circuit court had
jurisdiction, as granted by statute, to hold the defendant in criminal contempt. Id. at 374
(“The assignments of error do not raise any question of irregularity in the proceedings,
but solely the question of jurisdiction, and this is the only question we are called upon to
decide.”). Whether removal of an entire category of available contempt sanctions is
regulatory was simply not a question before the Langdon Court. The majority’s reliance
on Nichols v Judge of Superior Court of Grand Rapids, 130 Mich 187; 89 NW 691(1902), is similarly misplaced. See ante at 26 n 65. The Nichols Court did not pronounce
that the Legislature had broad power to prescribe contempt punishments. Rather, the
Nichols Court warned that this Court’s past jurisprudence, including Langdon, “must not
16
indemnification damages as a remedy for contempt of court, that restriction would be, at
the least, constitutionally questionable. The very fact that legislative restrictions on
judicial powers raise constitutional questions is another reason not to interpret the GTLA
as having done so. It is well established that courts should construe acts of the
Legislature to avoid constitutional questions whenever possible.57
IV. CONCLUSION
I agree with the majority’s basic premise that “tort liability” refers to “legal
responsibility arising from a tort.”58 Because I conclude that contempt of court is not a
tort, no matter what remedy for contempt is imposed, I would not interpret the GTLA as
granting immunity to governmental agencies from contempt sanctions under MCL
600.1721. Whether petitioner here can demonstrate that respondent’s conduct was a legal
cause of Stephen Bradley’s death, whether his death constitutes an “actual loss or injury”
to petitioner within the meaning of MCL 600.1721, or, as a threshold matter, whether a
finding of contempt here was proper, are issues not before us.
The practical import of this case is probably limited, given that civil contempt is
fairly rare and that the facts of a case giving rise to the possibility of indemnification
be understood as assenting to the proposition that the legislature, under the guise of
regulation, may destroy a constitutional power of the courts.” Nichols, 130 Mich at 193
(citation and quotation marks omitted).
57
See In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38,
490 Mich 295, 307; 806 NW2d 683 (2011) (“[C]ourts have a duty to construe a statute as
constitutional unless its unconstitutionality is clearly apparent.”) (citation and quotation
marks omitted).
58
Ante at 16.
17
damages for civil contempt are rarer still. But the underlying principles are important.
As a matter of good doctrinal bookkeeping, civil contempt is not the same as tort, and
civil contempt penalties are not the same as tort liability. Although the majority is correct
that, as it happens, petitioner seeks indemnification under the contempt statute after
having been denied a claim for wrongful death, the majority’s holding will also apply to
future cases in which, unlike here, a governmental actor’s contemptuous conduct has no
obvious tort analogue simply because the sanction can be viewed as compensatory.
But even beyond getting the basic legal categories here correct, this Court should
be hesitant to cede the judiciary’s power to impose exceptional remedies in those
exceptional cases in which they may be warranted for failure to heed judicial orders.
This Court should, instead, safeguard the power of the judicial branch. No other branch
will.
I would affirm the Court of Appeals and remand this case to the probate court for
further proceedings.
Bridget M. McCormack
18