সোমবার, ২ জানুয়ারী, ২০১২


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“Rule Forty-two. All persons more than a mile high to leave the
court.” Everybody looked at Alice.
“I’m not a mile high,” said Alice . . ., “besides, that’s not a regular
rule: You invented it just now.”
“It’s the oldest rule in the book,” said the King.
“Then it ought to be Number One,” said Alice.
The King turned pale, and shut his notebook hastily.1
In our government of separated powers, it is axiomatic that the
legislature makes the laws, the executive branch enforces the laws,
and the judiciary interprets the laws. Judges, however, sometimes
use preferential, or “dice-loading,”2 rules to “interpret” laws without
regard to the plain meaning of the language in a statute. This
mode of interpretation often permits judges to usurp legislative
power. The proper method of interpretation requires a judge to try
to discern the fair meaning of the statutory text, free from diceloading
The use of preferential rules is one of a handful of practices
that allows interpreters to disregard the text of a statute. A better
known—but equally illegitimate—practice is the use of legislative
history. The United States Supreme Court itself has recently repudiated
the use of legislative history to discern the meaning of a clear
statute: “We see no reason to give greater weight to the views of two
Senators than to the collective votes of both Houses, which are memorialized
in the unambiguous statutory text.”3 This is a basic
tenet of textualism, an interpretive philosophy that promotes adherence
to the actual text of statutes. Justice Antonin Scalia has
explained that “[a] text should not be construed strictly, and it
should not be construed leniently; it should be construed reasona-
* The authors are Chief Justice of the Michigan Supreme Court and Law
Clerk to Chief Justice Corrigan, respectively. We are indebted to legal interns
Thomas Flickinger and Jill Tucker for their assistance on this article.
1. LEWIS CARROLL, THE ANNOTATED ALICE, 156 (Martin Gardner ed., Wings
Books 1998) (1960).
2. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of the
United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF
3. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 457 (2002).
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bly, to contain all that it fairly means.”4 When a statute is unambiguous,
it does not “require a narrowing construction or application
of any other canon or interpretive tool.”5
In addition to legislative history, Justice Scalia has characterized
many so-called dice-loading rules of construction as illegitimate.
These preferential rules include the rule of lenity,6 the rule
that statutes in derogation of the common law are narrowly construed,
and the rule that remedial statutes are broadly construed.
Justice Scalia states:
To the honest textualist, all of these preferential rules and presumptions
are a lot of trouble. It is hard enough to provide a
uniform, objective answer to the question whether a statute, on
balance, more reasonably means one thing than another. But
it is virtually impossible . . . when there is added, on one or the
other side of the balance, a thumb of indeterminate weight. . . .
How implausible an implausibility can be justified by the ‘liberal
construction’ that is supposed to be accorded remedial
statutes? And how clear is an ‘unmistakably clear’ statement?
There are no answers to these questions, which is why these
artificial rules increase the unpredictability, if not the arbitrariness,
of judicial decisions.7
We share Justice Scalia’s distrust of certain dice-loading rules,
particularly the rule that remedial legislation should be liberally
construed. Justice Scalia questions the ability of judges to apply the
remedial rule of preference in a principled manner. For instance,
exactly what is remedial?8 Everything that is not penal? How liberal
is a liberal construction? Is a liberal construction one that
“makes the statutory rule or principle apply to more things or in
more situations than would be the case under a strict construction”?
9 Or is it one in which “the intention of a remedial statute
will always prevail over the literal sense of its terms”?10 The latter
view particularly should trouble anyone who values our democratic
system of government. Judges lack authority to employ a “liberal
4. Scalia, supra note 2, at 23. R
5. Barnhart, 534 U.S. at 461.
6. Scalia, supra note 2, at 28. Justice Scalia concedes that the rule of lenity R
may be “validated by sheer antiquity.” Id. at 29.
7. Id. at 28.
8. See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 CASE
W. RES. L. REV. 581, 583 (1990).
ed. 2001).
10. Robinson v. Harmon, 117 N.W. 664, 665 (Mich. 1908).
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construction” as an excuse to subvert the plain, unambiguous legislative
Part I of this paper discusses Michigan cases dating from the
1970s in which a “remedial” statute was construed “liberally” at the
expense of the statute’s plain meaning. Part II contends that the
Michigan Supreme Court has recently moved towards a textualist
approach that consciously avoids use of dice-loading rules. A recent
Michigan case, State Farm Fire & Casualty Co. v. Old Republic
Insurance Co.11 is a helpful case study in assigning meaning to every
word in a statute’s text. Finally, Part III explains that one so-called
preferential rule “can be considered merely an exaggerated statement
of what normal, no-thumb-on-the-scales interpretation would
produce anyway.”12 In particular, the rule that statutes involving
waivers of governmental immunity should be construed narrowly
falls into this category, and, we argue, does not actually load the
dice at all.
“Why, if a fish came to me, and told me he was going on a journey, I
should say ‘With what porpoise?’ ”
“Don’t you mean ‘purpose’?” said Alice.
“I mean what I say,” the Mock Turtle replied in an offended tone.13
Most judges agree that statutory interpretation begins with the
text. When the words of a statute are unambiguous, the task should
end there—if the legislature has clearly spoken, nothing is left to
construe. If, on the other hand, the text is internally inconsistent
or ambiguous, “traditional tools of statutory construction” may be
employed to resolve the ambiguity.14
Unfortunately, some judges use dice-loading rules to avoid
grappling with the actual text of a statute. That is, even when faced
with an unambiguous statute, some judges nonetheless employ
preferential rules. This disregard for statutory text is a hallmark of
judicial legislation.
Two 1970s-era cases, one decided by the Michigan Court of Appeals
and the other by the Michigan Supreme Court, elevated the
rule that remedial statutes are to be liberally construed above the
11. 644 N.W.2d 715 (Mich. 2002).
12. Scalia, supra note 2, at 29. R
13. CARROLL, supra note 1, at 137.
14. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council Inc., 467 U.S. 837,
842–43 & n.9 (1984); see also People v. McIntire, 599 N.W.2d 102 (Mich. 1999).
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actual text of statutes: White v. Motor Wheel Corp.15 and Deziel v. Difco
Laboratories, Inc.16
A. White v. Motor Wheel Corp.
At issue in White v. Motor Wheel Corp. was whether the plaintiff’s
claim of employment discrimination was timely filed under the
Michigan State Fair Employment Practices Act (FEPA).17 Section
7(b) of FEPA provided:
Any individual claiming to be aggrieved by an alleged unlawful
employment practice may, by himself or his agent, make, sign
and file with the board, within 90 days after the alleged act of discrimination,
a verified complaint in writing, which shall state the
name and address of the person, employer, labor organization
or employment agency alleged to have committed the unlawful
employment practice complained of . . . .18
White sent an unsworn letter to the Michigan Civil Rights Commission
claiming that he had been unlawfully terminated within the
prescribed 90-day time period. He did not, however, verify his complaint
until more than five months after his termination.19
The Commission initially determined that White’s unverified
letter satisfied the statutory requirement. A referee thereafter ruled
in White’s favor and the defendant-employer appealed. The circuit
court “felt bound by the 90-day requirement of the FEPA,” and
On review, the Michigan Court of Appeals reversed, disregarding
the statutory language’s requirement of a verified complaint.
In its opinion, the majority discovered a “major conflict” over the
meaning of the term “verified complaint.”21 Incredibly, the majority
did not identify any conflict in the statutory term itself. In fact,
the appellate court and the defendant apparently agreed on the
meaning of the term.
The real conflict revolved around the meaning of the term
“file.” Specifically, the court stated, “We find that the ‘charge’ was
filed [within the statutory period] . . . not . . . the date of the verifi-
15. 236 N.W.2d 709 (Mich. Ct. App. 1975).
16. 268 N.W.2d 1 (Mich. 1978).
17. White, 236 N.W.2d at 710; MICH. COMP. LAWS ANN. § 423.301-.311 (West
2000), repealed by P.A.1976, No. 453, § 804.
18. White, 236 N.W.2d at 710 (quoting MICH. COMP. LAWS ANN. § 423.307
(West 2000), repealed by P.A.1976, No. 453, § 804).
19. Id.
20. Id. at 711.
21. Id.
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cation.”22 In other words, the plaintiff had submitted an unverified
complaint within the statutory period, which the majority held had
been “filed.” Despite the clear statutory language requiring a plaintiff
to file a “verified complaint” within 90 days, the majority decided
that an unverified complaint sufficed.
In essence, the majority rewrote the plain language of the statute
to validate an untimely filing. To justify its reasoning, the majority
stated that “[a]s a remedial statute, we must construe the
FEPA liberally so as to assure the effectuation of its stated remedial
purposes.”23 The court divined an unstated statutory purpose and
elevated it above the clear text requiring the timely filing of a verified
complaint. Thus, the court subverted unambiguous legislation
by applying a dice-loading rule at the expense of the plain statutory
B. Deziel v. Difco Laboratories, Inc.
The same type of judicial legislation that was evident in White is
also apparent in Deziel. Three cases were consolidated in Deziel to
consider “when and under what conditions alleged mental disorders
. . . are compensable under [Michigan’s] Worker’s Disability
Compensation Act of 1969.”24 The three plaintiffs believed they
were physically unable to work although none of them were actually
physically unable to work.
The facts of these consolidated cases follow:25
1. Mary Deziel handled test tubes, mixtures and chemicals in the
course of her employment. She claimed to suffer headaches, tension,
anxiety, and dizziness after dropping a tube of iodine. She
had suffered no physical injury.
2. Yusuf Bahu experienced “cultural dissonance” after immigrating
to this country. He had assumed “the position of a child” to
his wife’s “position of the de facto parent.”26 He claimed that he
was too physically incapacitated for a stressful job at a Chrysler
stamping machine.
3. Harold McKenzie became nervous when other workers took
defective parts that he was responsible for counting and put them
on new vehicles. His compulsive perfectionism allegedly rendered
him physically unable to work.
22. Id.
23. Id.
24. Deziel v. Difco Labs., Inc., 268 N.W.2d 1, 2 (Mich. 1978).
25. Id. at 3–6.
26. Id. at 22.
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No medical evidence established that the three plaintiffs were
physically unable to work. Rather, they subjectively perceived themselves
as unable to work because of a mental condition. The statute
at issue in Deziel (quoted for the first time by the Deziel dissent)
An employee, who receives a personal injury arising out of and in the
course of his employment by an employer who is subject to this act
at the time of the injury, shall be paid compensation as provided
in this act. In case of death resulting from the personal
injury to the employee, compensation shall be paid to the employee’s
dependents as provided in this act. Time of injury or
date of injury as used in this act in the case of a disease or in
the case of an injury not attributable to a single event shall be
the last day of work in the employment in which the employee
was last subjected to the conditions resulting in disability or
The majority focused on the “plaintiff’s own perception of reality.”
28 The majority was not concerned that the statute did not contain
the words “an employee who receives or perceives a personal
injury.” The majority held:
[A]s a matter of law, that in cases involving mental (including
psychoneurotic or psychotic) injuries, once a plaintiff is found
disabled and a personal injury is established, it is sufficient that
a strictly subjective causal nexus be utilized by referees and the
WCAB to determine compensability. Under a “strictly subjective
causal nexus” standard, a claimant is entitled to compensation
if it is factually established that claimant honestly perceives some
personal injury incurred during the ordinary work of his employment
“caused” his disability.29
The court supported its conclusion by reasoning that “a subjective
standard is mandated by the requirement that remedial legislation
be construed liberally.”30 In addition, the court stated, the
“very general notion of causation was and should always be read
progressively or liberally.”31 Further, the court said, “[t]he spirit in
which compensation laws were enacted should not be lost in legalistic
tort niceties. It is with these equitable concepts in mind that this
27. MICH. COMP. LAWS ANN. § 418.301(1) (West 2000), quoted in Deziel, 268
N.W.2d at 20 n.2 (Coleman, J., dissenting) (emphasis added).
28. Deziel, 268 N.W.2d at 11.
29. Id.
30. Id.
31. Id. at 14–15.
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court adopts the subjective standard in cases involving mental disabilities
and injuries.”32
The majority never identified any ambiguity in the statute itself
to justify its resort to the dice-loading rule of liberal construction.
As the dissent pointed out, the majority injected ambiguity by inventing
a vague “honest perception” standard,33 which could “only
invite confusion, difficulty for the finder of fact and increased
These two cases demonstrate the problems that arise from casual
use of the rule that remedial statutes should be liberally construed.
Applying the preferential rule without regard to whether a
statute is ambiguous inevitably leads to judicial legislation. Preferential
rules grant judges a license to elevate their own policy preferences
above the clear meaning of the legislation. When judges
ignore the statutory text, clear guidelines are lost. No standards
exist to govern how “liberally” the statute is to be construed. The
remedial rule of preference is thus difficult—if not impossible—to
apply in a principled, consistent manner.
“[A] hill can’t be a valley, you know. That would be nonsense—”
The Red Queen shook her head. “You may call it ‘nonsense’ if you
like,” she said, “but I’ve heard nonsense, compared with which that
would be as sensible as a dictionary!”35
32. Id. at 15.
33. Id. at 21 (Coleman, J., dissenting). As the dissent states:
The language chosen to set forth the majority’s standard is particularly disturbing
because of its ambiguity. If a claimant “honestly perceives” that
“some” work-related “personal injury” “caused” his mental disability, then
causal nexus is established, regardless of prior psychiatric history. For instance,
if a worker “honestly perceives” that a broken finger “caused” his
mental disorder, is nexus to be established? What if the injury is a scraped
elbow? Surely the statute minimally requires some medical evidence connecting
the injury and subsequent mental disorder before nexus is established.
Id. at 21 n.3.
34. Id. at 26 (Coleman, J., dissenting). As the dissent stated, the majority implicitly
repealed the statutory requirement that “some medical evidence connecting
the injury and subsequent medical disorder before nexus is established.” Id. at 21
n.3. Following Deziel, the Michigan Legislature amended the Worker’s Compensation
Act to provide that: “Mental disabilities shall be compensable when arising out
of actual events of employment, not unfounded perceptions thereof.” MICH.
COMP. LAWS ANN. § 418.301(2) (West 2000). See Robertson v. DaimlerChrysler
Corp., 641 N.W.2d 567, 573–74 (Mich. 2002) (clarifying the meaning of this provision
and overruling the Deziel interpretation).
35. CARROLL, supra note 1, at 207.
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To avoid the problems that arise from the use of preferential
rules, the careful analyst must understand and apply the proper
mode of construction. In interpreting statutes, the objective meaning
of the text, not the drafter’s subjective intent, is the true object
of inquiry. Judges cannot depose legislators to ask them what they
meant to say. Courts have no institutional capacity to discover what
each individual legislator subjectively believed. Even if courts had
that ability, they lack the authority to elevate legislators’ subjective
intentions above the law itself. The law, not the lawmaker’s intent,
is what matters in our system of government. As Justice Scalia put
it: “Men may intend what they will; but it is only the laws that they
enact which bind us.”36 Next, we review two recent Michigan cases
that adhere to a textualist approach.
A. Maier v. General Telephone Co. of Michigan
In Maier v. General Telephone Co. of Michigan, the concurrence to
an order denying leave to appeal explained certain problems with
the appellate court’s interpretation of the statute.37 The “first principle
of statutory interpretation is that the words expressed in the statute
are the law.”38 When a statute is unambiguous, courts have no authority
to resort to legislative history. Instead, the law must be applied
as written. The words contained in a law passed by the
legislature and signed by the governor control. Legislative history
does not. We are not governed in a fair, democratic manner if “the
meaning of a law [is] determined by what the lawgiver meant,
rather than what the lawgiver promulgated.”39
Cognizant of these fundamental principles, the Michigan Supreme
Court no longer subscribes to the so-called “absurd result”
doctrine.40 Under this doctrine, judges ignore the plain language
of a statute whenever they deem the result required by the statute
to be absurd or unjust. A judge has no authority to disregard a law
validly enacted by the representatives of the people merely because
the judge dislikes the outcome. A judge’s personal predilection regarding
what is unjust or absurd simply is not relevant.
The Maier concurrence further opined that judges should not
apply dice-loading rules to subvert an unambiguous statute. A
judge’s first obligation is to determine whether a statute has a clear
36. Scalia, supra note 2, at 17. R
37. Maier v. Gen. Tel. Co. of Mich., 645 N.W.2d 654, 654 (Mich. 2002) (Corrigan,
C.J., concurring).
38. Id. at 655 (emphasis in original).
39. Id. at 656.
40. Id. at 655 (citing People v. McIntire, 599 N.W.2d 102 (Mich. 1999)).
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meaning. If it does, then the judge merely applies the language of
the statute. If the statute is unclear, the judge should then attempt
to determine the “objectified” legislative intent underlying the unclear
words. If the statute remains unclear, only then may a preferential
rule be applied.
B. Crowe v. Detroit
Another Michigan case, Crowe v. Detroit, exemplifies that preferential
rules have no place in our jurisprudence when a statute is
unambiguous.41 In Crowe, the Michigan Supreme Court construed
M.C.L. § 418.161, part of the Worker’s Disability Compensation Act
Police officers, fire fighters, or employees of the police or fire
departments, or their dependents, in municipalities or villages
of this state providing like benefits, may waive the provisions of
this act and accept like benefits that are provided by the municipality
or village but shall not be entitled to like benefits
from both the municipality or village and this act; however, this
waiver shall not prohibit such employees or their dependents
from being reimbursed under section 315 for the medical expenses
or portion of medical expenses that are not otherwise
provided for by the municipality or village. This act shall not
be construed as limiting, changing, or repealing any of the provisions
of a charter of a municipality or village of this state relating
to benefits, compensation, pensions, or retirement
independent of this act, provided for employees.42
The city of Detroit offered an alternative benefits plan to police
officers. The plaintiff, Officer Crowe, elected to receive benefits
under the alternative plan and thus to waive WDCA benefits.
However, benefit payments under the alternative plan after 25 years
were typically less than benefits that would have been available at
that point under the WDCA.43 Thus, after receiving benefits for 25
years under the alternative plan, the plaintiffs sought to revoke
their prior waivers of WDCA benefits.
The issue in Crowe was whether the plaintiffs could revoke their
prior waivers of WDCA benefits. Both the court of appeals and the
supreme court decided that the plaintiffs could not. The supreme
court reasoned that the plain language of the statute provided that
41. Crowe v. City of Detroit, 631 N.W.2d 293 (Mich. 2001).
42. MICH. COMP. LAWS ANN. § 418.161(1)(c) (West 2000), quoted in Crowe, 631
N.W.2d at 295 n.1.
43. Crowe, 631 N.W.2d at 295.
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the beneficiaries’ elections of an alternative plan waived their rights
under the WDCA.44 Further, claimants are not “entitled to like
benefits from both the municipality or village and [the
WDCA] . . . .”45
The dissent in Crowe argued that the court should have applied
the preferential rule construing remedial statutes liberally.46 The
majority, however, declined to apply the preferential rule because
the statute was not ambiguous. The majority explained that even “if
the statutory language were ambiguous, our first duty is to attempt
to discern the legislative intent underlying the ambiguous words.
Only if that inquiry is fruitless, or produces no clear demonstration
of intent, does a court resort to the remedial preferential rule relied
on in the dissent.”47
Crowe thus makes clear that the remedial rule of preference
may be used only as a last resort, even where a statute is ambiguous.
Judges should not load the dice for or against a particular result
unless and until they have exhausted all possible means of discerning
the objective meaning of the text.
C. State Farm & Casualty Co. v. Old Republic Insurance Co.
Discerning the fair meaning of a text is often challenging. It
requires a rigorous, careful examination of simple, everyday words.
Judges should honor the well-known principle that they “must give
effect to every word, phrase, and clause in a statute, and avoid an
interpretation that would render any part of the statute surplusage
or nugatory.”48 When choosing between competing interpretations
of a statute, a court must determine which interpretation is best
supported by the entire text, not merely cherry-picking phrases favored
by one party or the other. A careful analysis of the text is
essential to this approach.
State Farm & Casualty Co. v. Old Republic Insurance Co. illustrates
that even the smallest word can be of paramount importance.49 In
that case, the driver of a rented truck crashed the vehicle into his
own bakery. A dispute arose between the respective insurers of the
44. Id. at 297.
45. Id. (quoting Mich. Comp. Laws § 418.161(1)(c) (2002)).
46. Crowe, 631 N.W.2d at 304 (Cavanagh, J., dissenting).
47. Id. at 300.
48. State Farm Fire & Cas. Co. v. Old Republic Ins. Co., 644 N.W.2d 715, 717
(Mich. 2002) (citing Wickens v. Oakwood Healthcare Sys., 631 N.W.2d 686, 690
(Mich. 2002)).
49. State Farm Fire & Cas. Co., 644 N.W.2d 715. The facts which follow are
derived from the discussion in the case. See id. at 716.
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truck and the bakery. The truck was insured by Old Republic, in a
policy in which the driver was not named, while State Farm insured
the bakery. State Farm paid the driver for the damages and then
sued Old Republic for indemnification.
Michigan insurance law recognizes a “household exclusion.”50
It excludes from insurance coverage any damages to “[p]roperty
owned by a person named in a property protection insurance policy
. . . if the person named . . . was the . . . operator of a vehicle
involved in the motor vehicle accident out of which the property
damage arose.”51 The supreme court examined the statute to determine
whether the driver had to be named in “the” (particular)
insurance policy covering the vehicle, or merely in “a” property protection
The court held that the text of the statutory household exclusion
was unambiguous. The driver had to be named in “a” property
protection insurance policy and be “the” operator of an involved
vehicle.53 The court ultimately remanded to determine whether
the driver was named in any no-fault property protection policy.
The dissent opined otherwise, arguing that the phrase “by a
person named in a property protection insurance policy” refers to
the situation “when the individual has a policy for the vehicle involved
in the accident. . . . [U]se of the article ‘a’ is dictated by
grammatical construction of the sentence.”54 The majority rejected
the dissent’s interpretation—an interpretation that rewrote the statute:
“The Legislature chose the specific construction of the sentence
and was not bound by any particular language or structure.”55
If the word “the” would have more clearly expressed what the legislature
was attempting to say, the sentence could have been easily
These three cases together reflect that statutory interpretation
in Michigan adheres to the principles consistently articulated by
Justice Scalia. The court applies statutes as written if they are unambiguous,
even where the result may appear absurd and use of a
dice-loading rule would yield a different result. Even where a statute’s
plain meaning is ambiguous, a court should attempt to discern
the objective legislative intent reflected in the ambiguous
words rather than resort immediately to preferential rules. Each
50. See, e.g., id.
51. MICH. COMP. LAWS ANN. § 500.3123(1)(b) (West 2000).
52. State Farm Fire & Cas. Co., 644 N.W.2d at 717.
53. Id. at 717–18.
54. Id. at 720.
55. Id. at 718.
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“word, phrase, and clause in a statute” must be given effect, even to
the point of analyzing the differences between minute words such
as “a” and “the” in a statute, as in State Farm Fire & Casualty Co.56
Humpty Dumpty began again. “They’ve a temper, some of them—particularly
verbs: they’re the proudest—adjectives you can do anything
with, but not verbs—however, I can manage the whole lot of them!
Impenetrability! That’s what I say!57
Some courts use phrases that imply use of a dice-loading rule
when, in truth, the courts are merely couching a textualist analysis
in preferential terminology. This phenomenon has arisen in the
context of governmental immunity and the exceptions to it.
Courts often state that governmental immunity “is to be
broadly construed and the statutory exceptions . . . are to be narrowly
construed.”58 While this proposition sounds like a dice-loading
rule, it arguably misstates what the court is actually doing.
Recognizing that exceptions to governmental immunity are narrowly
drawn is a valid mode of textual interpretation because the
court is not imposing non-textual values into the statute. In other
words, this maxim is not a preferential rule created out of thin air.
It is preferential only in the sense that the text of the statute itself is
preferential. The plain language of Michigan’s immunity statutes
reveals that the legislature itself has made a policy choice in favor of
immunity and against exceptions. The immunity granted to the
government is very broad while the statutory exceptions are narrowly
drawn. Two Michigan cases demonstrate this proposition.
A. Nawrocki v. Macomb County Road Commission
In Nawrocki, the Michigan Supreme Court considered Michigan’s
“highway exception” to governmental immunity.59 In deciding
the case, the court analyzed the statutory language granting
immunity. The statute provides: “Except as otherwise provided in
this act, a governmental agency is immune from tort liability if the
governmental agency is engaged in the exercise or discharge of a
governmental function.”60 This grant of immunity is broadly
worded. The government is immune from any tort liability any
56. See id. at 717.
57. CARROLL, supra note 1, at 269.
58. See, e.g., Horace v. City of Pontiac, 575 N.W.2d 762, 764 (Mich. 1998).
59. Nawrocki v. Macomb County Rd. Comm’n, 615 N.W.2d 702 (Mich. 2000).
60. MICH. COMP. LAWS ANN. § 691.1407(1) (West 2000).
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time the government performs government functions, unless the
immunity statutes provide otherwise.
Five statutory exceptions to immunity exist in Michigan: the
highway exception,61 the motor vehicle exception,62 the public
building exception,63 the proprietary function exception,64 and the
governmental hospital exception.65 The highway exception is
drawn very narrowly as it applies to the state and county road commissions.
It “extends only to the improved portion of the highway
designed for vehicular travel and shall not include sidewalks, crosswalks,
or any other installation outside of the improved portion of
the highway designed for vehicular travel.”66
In Nawrocki, the Michigan Supreme Court stated that it was
“compelled to strictly abide by these statutory conditions and restrictions
in deciding the instant cases.”67 This analysis is not earth
shattering. The court merely applied the unambiguous terms of
the highway exception statute. Courts must give the words of the
statutes their fair, ordinary meaning.68 If clear conditions and restrictions
on the availability of the exception exist, then courts may
apply the exception only if those conditions are met. Thus, in
Nawrocki, the court held that the government cannot be liable for
failing to “install, maintain, repair, or improve traffic control devices”
since they were not part of the road itself as required by the
statutory exception.69
B. Stanton v. City of Battle Creek
Stanton v. City of Battle Creek analyzed the narrow motor vehicle
exception to governmental immunity; specifically, it considered
whether a forklift is a “motor vehicle” under the statute.70 The
plaintiff sued the city of Battle Creek, claiming to have suffered injuries
as a result of faulty brakes on a city-owned forklift. The plaintiff
was unloading hardware for the city and had closed his truck
door when the forklift suddenly rolled forward and struck him.
61. MICH. COMP. LAWS ANN. § 691.1402 (West 2000).
62. MICH. COMP. LAWS ANN. § 691.1405 (West 2000).
63. MICH. COMP. LAWS ANN. § 691.1406 (West 2000).
64. MICH. COMP. LAWS ANN. § 691.1413 (West 2000).
65. MICH. COMP. LAWS ANN. § 691.1407(4) (West 2000).
66. MICH. COMP. LAWS ANN. § 691.1402(1) (West 2000), quoted in Nawrocki v.
Macomb County Rd. Comm’n, 615 N.W.2d 702, 711 (Mich. 2000).
67. Nawrocki, 615 N.W.2d at 711.
68. See MICH. COMP. LAWS ANN. § 8.3a (West 1994).
69. Nawrocki, 615 N.W.2d at 723.
70. Stanton v. City of Battle Creek, 647 N.W.2d 508 (Mich. 2002). The following
facts are drawn from the court’s discussion of the case. Id.
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The city sought summary disposition on the basis of governmental
immunity. The circuit court granted the motion, and the court of
appeals affirmed.
On its review, the Michigan Supreme Court noted that the statute
adopting the motor vehicle exception did not define the term
“motor vehicle.”71 Turning to lay dictionaries to define the common
term, the court then observed that some dictionary definitions
of the term include forklifts while others do not.72 Faced with varying
definitions, the court determined that since the motor vehicle
exception is narrowly drawn while the statute affords broad immunity
to the government, the narrowest definition of “motor vehicle”
would “most closely effectuate[ ] the Legislature’s intent.”73 Using
a narrow definition, the court ruled that a forklift is not a motor
vehicle, and upheld governmental immunity.
The dissent in Stanton argued that a forklift is a motor vehicle.
74 The dissent opined that competing maxims of statutory construction
were involved: (1) words must be given their ordinary
meaning, but (2) exceptions to governmental immunity must be
construed narrowly.75 The dissent claimed that the majority had
departed from the common meaning of “motor vehicle” by applying
a narrow definition.
The majority did not venture from the ordinary meaning of
the term “motor vehicle” when it adopted a dictionary definition.
The dictionary supplied the common meaning of the term. Since
the exception for motor vehicles is narrow, a narrow definition of
the term is justified. Thus, the majority adhered to textualist
The Stanton and Nawrocki cases clarify that the maxim that governmental
immunity statutes should be broadly construed while the
exceptions to it are construed narrowly is not a true dice-loading
rule. Rather, the maxim merely implements the plain meaning of
Michigan’s immunity statutes.76 The courts are not imposing a preferential
approach but are merely discerning the plain meaning of
the statute and applying it to the facts of the case.
71. Id. at 511.
72. Id. at 512.
73. Id. at 512.
74. Id. at 514 (Kelly, J., concurring in part and dissenting in part).
75. Id.
76. Perhaps the rule could be worded differently to avoid the preferential
tone. Courts are on firmer ground when they state, e.g., that the statutory language
granting governmental immunity is broadly worded and the exceptions to it are
drafted narrowly.
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“The cause of lightning,” Alice said very decidedly, for she felt quite
certain about this, “is the thunder—no, no!” she hastily corrected herself.
“I meant the other way.”
“It’s too late to correct it,” said the Red Queen: “When you’ve once said
a thing, that fixes it, and you must take the consequences.”77
When the judicial branch does not honor the separation of
powers but instead usurps the powers of another branch, the stability
of our system of government is undermined. As noted in Part I,
many problems arise when courts legislate under the guise of a
preferential rule by, e.g., construing so-called “remedial” statutes
“liberally” rather than reasonably. Judges have a solemn obligation
to interpret laws in accordance with their plain meanings, and not
to load the dice for a favored result.
Michigan’s jurisprudence in recent years has moved away from
the use of dice-loading preferential rules, consistent with the mode
of statutory interpretation advocated by Justice Scalia. This movement
has not been undermined by the language in governmental
immunity cases referring to “broad” and “narrow” constructions.
While governmental immunity cases sometimes use preferential terminology,
they actually reflect a fair reading of the text of the relevant
statutory provisions. In doing so, the Michigan Supreme Court
has honored separation of powers principles and acted to prevent
abuses engendered by dice-loading preferential rules.
77. CARROLL, supra note 1, at 323.
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