City of Norton Shores v. Municipal Employees Retirement System

Order Michigan Supreme Court Lansing, Michigan

June 29, 2012 Robert P. Young, Jr., Chief Justice

144358 Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway ____________________________________ Mary Beth Kelly Brian K. Zahra, CITY OF NORTON SHORES, Justices Plaintiff-Appellant, v SC: 144358 COA: 302673 Muskegon CC: 10-047281-AA MUNICIPAL EMPLOYEES’ RETIREMENT SYSTEM OF MICHIGAN, Defendant-Appellee.

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On order of the Court, the application for leave to appeal the November 21, 2011 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

MARKMAN, J. (concurring).

I concur in the majority’s order denying leave to appeal. I write separately only to note that I find Malleis v Employment Security Comm, 340 Mich 78 (1954), which plaintiff relies on heavily, to be of questionable value. Indeed, Hajduk v Revere Copper & Brass, Inc, 268 Mich 220 (1934), an opinion that Malleis quoted with approval, was expressly overruled by Autio v Proksch Constr Co, 377 Mich 517, 526, 535 (1966) (describing Hajduk as a “blatantly erroneous interpretive decision”). Malleis judicially created a six-year limitations period where the Legislature had created none. More recently, this Court has consistently applied statutes as they are written and has declined to add statutory-like provisions when the Legislature has not created such provisions. As this Court has explained, “a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.” Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63, 66 (2002) (declining to add a requirement to object to any deficiencies in a notice of intent before the complaint is filed in a medical malpractice action because “[i]n the absence of such a statutory requirement, we do not have the authority to create and impose an extrastatutory affirmative duty on

the defendant”); see also People v Wager, 460 Mich 118, 121 (1999) (declining to add a requirement to conduct a blood alcohol test within a “reasonable time” because “[n]owhere does the [pertinent statute] impose a requirement concerning the interval of time in which the test must be given”). Therefore, I question the continuing validity of Malleis.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. June 29, 2012 _________________________________________ h0626 Clerk