STATE OF MICHIGAN

IN THE SUPREME COURT

COLOMA CHARTER TOWNSHIP,

Plaintiff/Counterdefendant-Appellee,

Supreme Court No 154556

v Court of Appeals No 325226

Berrien Circuit Court No 13-000317-CZ

BERRIEN COUNTY,

BERRIEN COUNTY SHERIFF’S DEPARTMENT,

Defendants/Counterplaintiffs-Appellants,

and

LANDFILL MANAGEMENT COMPANY, INC., and

HENNESSY LAND COMPANY,

Defendants-Appellants.

_______________________________________________/

JOE HERMAN, SUE HERMAN, JAY JOLLAY,

SARAH JOLLAY, JERRY JOLLAY,

NEAL KREITNER, TONY PETERSON,

LIZ PETERSON, RANDY BJORGE,

ANNETTE BJORGE, and TINA BUCK,

Plaintiffs-Appellees,

Supreme Court No 154557

v Court of Appeals No 325335

Berrien Circuit Court No. 05-003247-CZ

BERRIEN COUNTY,

Defendant-Appellant

______________________________________________/

BRIEF OF AMICUS CURIA

MICHIGAN ASSOCIATION OF COUNTIES

Submitted by:

COHL, STOKER & TOSKEY, PC

Mattis D. Nordfjord (P69780)

Attorneys for Michigan Association of Counties

601 N. Capitol Ave.

Lansing, MI 48933

(517) 372-9000

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TABLE OF CONTENTS

INDEX OF AUTHORITIES........................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

STATEMENT OF FACTS ..............................................................................................................1

ARGUMENT ...................................................................................................................................9

I. ISSUE I: WHETHER THE GUN RANGE BUILDING CURRENTLY USED BY

THE BERRIEN COUNTY SHERIFF’S DEPARTMENT IS ENTITLED TO

PRIORITY OVER THE CONFLICTING TOWNSHIP ZONING AND NOISE

ORDINANCES BY VIRTUE OF THE COUNTY COMMISSIONERS ACT, MCL

46.1 ET SEQ., SPECIFICALLY MCL 46.11(B) AND (D), IS A QUESTION WHICH

CONCERNS WHETHER THE COUNTY’S USE OF THE GUN RANGE

BUILDING SATISFIES HERMAN’S “INDISPENSABLE USE” TEST .....................9

II. ISSUE II: THE COURT OF APPEALS INCORRECTLY REVERSED THE

BERRIEN CIRCUIT COURT’S REVISION OF THE EXISTING PERMANENT

INJUNCTION, THERE HAS BEEN A “SIGNIFICANT CHANGE” IN

CIRCUMSTANCES. ...................................................................................................17

III. ISSUE III: THE COURT OF APPEALS INCORRECTLY REMANDED WITH

INSTRUCTION TO THE TRIAL COURT TO RECONSIDER PLAINTIFFS’

REQUEST FOR ATTORNEY FEES, WHICH CANNOT BE RECOVERED

UNDER MCL 600.1721 AND WHICH, ALTHOUGH AVAILABLE UNDER

INHERENT POWER, HAVE NOT BEEN PROPERLY PLEADED OR

PRESERVED.. .............................................................................................................20

RELIEF REQUESTED ..................................................................................................................23

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INDEX OF AUTHORITIES

Cases

Ali v Detroit,

218 Mich App 581; 554 NW2d 384 (1996) .........................................................................5

AFSCME v Detroit,

468 Mich 388, 400; 662 NW2d 695 (2003) .......................................................................11

Apsey v Mem. Hosp,

477 Mich 120, 132 n. 8; 730 NW2d 695 (2007) ................................................................11

Benton v Maryland,

395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969) ...........................................................19

Bloom v Illinois,

391 US 194; 88 S Ct 1477; 20 L Ed 2d 522 (1968) ...........................................................19

In re Bradley Estate,

494 Mich 367; 835 NW2d 545 (2013) ................................................................... 6, passim

Coloma Charter Twp v Berrien Co,

unpublished order of the Court of Appeals, entered February 13, 2015 ..............................9

Colombo v New York,

405 US 9, 11; 92 S Ct 756; 30 L Ed 2d 762 (1972) ...........................................................19

Corley v Detroit Bd of Ed,

470 Mich 274, 278; 681 NW2d 342 (2004) .......................................................................10

Deardon v Detroit,

403 Mich 257; 269 NW2d 139 (1978) ...............................................................................16

First Protestant Reformed Church v DeWolf,

358 Mich 489, 495; 100 NW2d 254, 257 (1960) ...............................................................17

GC Timmis Co v Guardian Alarm Co,

468 Mich 416, 421; 662 NW2d 710 (2003) .......................................................................11

Genesee County Prosecutor v Genesee Circuit Judge,

386 Mich 672, 684-685; 194 NW2d 693 (1972) ...............................................................19

Genesee County Prosecutor v Genesee Circuit Judge,

391 Mich 115, 121-122; 215 NW2d 145 (1974) ..............................................................19

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Griffith v State Farm Mut Automobile Ins Co,

472 Mich 521, 533; 697 NW2d 895 (2005) .......................................................................11

DeGeorge v Warheit,

276 Mich App 587, 599-600; 741 NW2d 384 (2007) .......................................................19

Herman v Berrien County,

481 Mich 352 (2008) ............................................................................................. 1, passim

Jacobson v Norfolk Development Corp,

483 Mich 885; 759 NW2d 402 (2009) ...............................................................................22

lba Twp v Gratiot Co Drain Comm’r,

493 Mich 265, 277; 831 NW2d 204 (2013) .......................................................................20

Maiden v Rozwood,

461 Mich 109, 118; 597 NW2d 817 (1999) .......................................................................10

McCarthy v Sosnick,

490 Mich 918; 805 NW2d 436 (2011) ...............................................................................21

McCarthy v Sosnick,

491 Mich 942; 815 NW2d 456 (2012) ...............................................................................21

McCarthy v Sosnick,

491 Mich 941; 815 NW2d 491 (2012) ...............................................................................21

McCarthy v Sosnick,

491 Mich 853; 808 NW2d 864 (2012) ...............................................................................21

McDougal v Schanz,

461 Mich 15, 30-31; 597 NW2d 148 (1999) ...............................................................20, 21

McNulty v Watry Indus, Inc,

442 Mich 483; 500 NW2d 477 (1993) ...............................................................................22

Peake v Peake,

469 Mich 962; 671 NW2d 875 (2003) ...............................................................................21

People v Harris,

499 Mich 332, 345; 885 NW2d 832 (2016) .......................................................................11

Pittsfield Charter Twp v Washtenaw Co,

468 Mich 702; 664 NW2d 193 (2003) ................................................................... 2, passim

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Robinson v City of Lansing,

486 Mich 1, 15-16; 782 NW2d 171 (2010) .......................................................................11

Salazar v Buono,

559 US 700, 714-715; 130 S Ct 1803; 176 L Ed 2d 634 (2010) .......................................17

Union Guardian Trust Co v Vogt,

263 Mich 330, 336; 248 NW 639 (1933) ...........................................................................21

United States v Ball,

163 US 662, 671; 16 S Ct 1192; 41 L Ed 300 (1896) ........................................................19

United States v Swift & Co,

286 US 106, 114; 52 S Ct 460, 462; 76 L Ed 999 [1932]. ...........................................17, 18

Vodvarka v Grasmeyer,

259 Mich App 499, 513; 675 NW2d 847 (2003) ...............................................................18

Watkins v Manchester,

220 Mich App 337, 342; 559 NW2d 81 (1996). ................................................................20

White v Ann Arbor,

406 Mich 554, 562; 281 NW2d 283 (1979) .......................................................................11

Wyandotte Electric Supply Co v Electrical Technology Systems, Inc,

499 Mich 127, 150-151; 881 NW2d 95 (2016) .................................................................20

Young v United States ex rel Vuitton et Fils SA,

481 US 787, 803-809; 107 S Ct 2124; 95 L Ed 2d 740 (1987) .........................................19

Statutes

Const 1963, art 3, §2 ................................................................................................................19, 20

Const 1963, art 6, §1 ......................................................................................................................20

Const 1963, art 6, §27 ....................................................................................................................19

Const 1963, art 7, §4 ......................................................................................................................12

Const 1963, art 11, §1 ....................................................................................................................19

MCL 14.28 .....................................................................................................................................19

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MCL 14.41 .....................................................................................................................................19

MCL 14.101 ...................................................................................................................................19

MCL 28.602 .....................................................................................................................................9

MCL 46.1 et seq., see MCL 46.11(b) and (d) .................................................................... 1, passim

MCL 49.41 .....................................................................................................................................19

MCL 49.42 .....................................................................................................................................19

MCL 49.160 ...................................................................................................................................19

MCL 168.80 ...................................................................................................................................19

MCL 600.1721 ................................................................................................................... 1, passim

MCL 691.1402a .............................................................................................................................12

MCL 776.18 ...................................................................................................................................19

Governmental Tort Liability Act,

MCL 691.1407(1) ..............................................................................................................22

Michigan Commission on Law Enforcement Standards Act,

1965 PA 203 ........................................................................................................................9

State of Michigan, Michigan Commission on Law Enforcement Standards

< http://www.michigan.gov/mcoles> (accessed September 2, 2016)

[https://perma.cc/3XY9-M8M6]. ........................................................................................9

Court Rules

MCR 2.116(C)(10) .....................................................................................................................7, 10

MCR 2.116(I)(2) ..........................................................................................................................7, 8

MCR 7.216(C) ...............................................................................................................................21

MCR 7.312(D)(2)(d) ......................................................................................................................21

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1. INTRODUCTION:

The Michigan Association of Counties Status as Amicus Curia

This Court’s September 22, 2017 order granting leave to appeal invites the Michigan

Association of Counties inter alia to file a brief amicus curia. This is that invited brief.

Initial Summary of the Issues Concerning This Court

This Court’s September 22, 2017 order granting leave to appeal goes on to direct the

parties to focus attention on the following:

The parties shall address: (1) whether the gun range currently used by the Berrien

County Sheriff’s Department is given priority under the County Commissioners

Act, MCL 46.1 et seq., specifically MCL 46.11(b) and (d), over a conflicting

township zoning ordinance, see Herman v Berrien County, 481 Mich 352 (2008);

if so, (2) whether the Court of Appeals erred by reversing the Berrien Circuit

Court’s revision of the existing permanent injunction based on changed

circumstances; and (3) whether the Court of Appeals properly vacated the trial

court’s decision to deny the plaintiffs’ request for attorney fees pursuant to MCL

600.1721.

2. STATEMENT OF FACTS:

The Court of Appeals majority adopted the summary of facts of Judge Markey in dissent.

The Michigan Association of Counties considers the Court of Appeals’ summary fair and

balanced, and so repeats its here. The Court of Appeals majority, by way of introduction, said:

These appeals are the continuation of the litigation that resulted in the Herman [v

Berrien Co, 481 Mich 352; 750 NW2d 570 (2008)] decision. We adopt the statement of

facts and procedural history contained in Part I of Judge Markey’s partial dissent, as well

as the statement of the standard of review set forth in Part II (A) of her opinion. Finally,

we also agree with Part III (C) of her opinion addressing criminal contempt.

Judge Markey in turn summarized the facts as follows:

These consolidated appeals concern whether the county’s authority to “ site” and

“erect” buildings pursuant to the county commissioners act (CCA), MCL 46.1 et seq., see

MCL 46.11(b) and (d), has priority over the zoning ordinance of the Charter Township of

Coloma (the township). * * *

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I. FACTUAL AND PROCEDURAL BACKGROUND

These consolidated appeals concern whether a county’s authority under the CCA to

“site” and “erect” buildings, MCL 46.11(b) and (d),1 has priority over the zoning

ordinance of the township with respect to using an open-air, three-sided structure within

which defendant Berrien County Sheriff’s Department conducts firearms training of law

enforcement officers. During their training, the officers fire weapons from inside the

structure toward targets located in a previously constructed shooting range outside the

structure. The shooting range used is one of six outdoor shooting ranges that were the

subject of prior litigation in Docket No 325335 that resulted in our Supreme Court’s

ruling in favor of the plaintiff township residents who sought to enforce the township

ordinance. Herman clarified the Court’s prior decision in Pittsfield Charter Twp v

Washtenaw Co, 468 Mich 702; 664 NW2d 193 (2003), which held that, in general, the

CCA has priority over local ordinances.

At the time of the prior litigation in Docket No. 325335, the 14-acre site at issue

consisted only of an indoor (classroom) firearms’ training building that was adjacent to

the outdoor shooting ranges. In Herman, our Supreme Court reiterated the factual

background of these cases:

This case involves a piece of property that is located in Berrien County and

Coloma Township. The property consists of a 14-acre parcel of land. The property

is controlled by defendant, Berrien County, under a 20-year lease from a party

that is unrelated to this case. The county entered into the lease in March 2005.

The county leased the property with the intention of using it for a firearms

training facility, which various law enforcement agencies would use for training

exercises. Accordingly, in May 2005, the county contracted with DLZ Michigan,

Inc., to design a master plan and conduct a feasibility study for the proposed

facility. This master plan included constructing a building of more than 3,000

square feet at the center of the parcel to serve as a training and support building.

This building would have a parking lot with 24 standard parking spaces (and three

handicapped spaces), multiple outdoor light poles, and a driveway. The facility

would also have numerous outdoor shooting ranges. The ranges were to be set up

like the spokes of a wheel that require the shooter to fire out from the center of the

parcel. The center of the parcel is where the building would be located. . . . The

county initially planned on building the ranges first and erecting the building

later. During the course of this litigation, construction of both the shooting ranges

and the building was started and is now completed. [Herman, 481 Mich at 354-

356 (citations omitted).]

The Court explained that the outdoor shooting ranges violated township ordinances:

Operation of the county’s shooting ranges would contravene several local

ordinances. First, under the township’s zoning ordinance, the shooting ranges are

not a permitted land use given the property’s current zoning status (primary

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agricultural). Additionally, gun clubs are not permitted in this zoning status unless

the Coloma Charter Township Board has issued a special land use permit, which

the county has not received. Finally, the gun ranges produce noise levels that

purportedly exceed the township’s anti-noise ordinance.5 Herman, 481 Mich at

356 & n 5.

The Herman plaintiffs “are a group of individuals who own property located in

close proximity to the shooting ranges.” Id. at 358. “In late November 2005, plaintiffs

filed a declaratory judgment action that aimed to stop operation of the facility. The

complaint alleged that the county’s facility was prohibited by the township’s zoning

ordinance; and the plaintiffs’ amended complaint additionally alleged that the facility

violated the township’s anti-noise ordinance.” Id. Relying on Pittsfield, the circuit court

granted defendant Berrien County (the county) summary disposition and this Court

affirmed in a split decision.2 Our Supreme Court reversed, holding that the CCA

authority extended only to “site” buildings and such land uses that are ancillary to the

county building and indispensable to its normal use. Herman, 481 Mich at 367-369.

Stated otherwise, the Court held that “the scope of the CCA’s priority over [local

regulation] is limited to ancillary land uses that are indispensable to the building’s normal

use.” Id. at 368-369. The Court reasoned that the outdoor shooting ranges were not

indispensable because the indoor training and support could be conducted without the

outdoor shooting ranges being located next to the building. For that reason, the Court

held that “under the CCA, the shooting ranges are not given priority over the township’s

ordinances.” Id. at 370-371. The Court remanded the case to the circuit court for further

proceedings consistent with its opinion. Id. at 371.

On remand, the circuit court entered a permanent injunction on November 10, 2008,

enjoining the county “from utilization of the shooting ranges heretofore constructed by it

in Coloma Township, Berrien County, Michigan.” A copy of the injunction that was

filed in the clerk’s office was signed “approved as to form” by then county counsel R.

McKinley Elliott, who was, in January 2012, elected a member of the county board of

commissioners. The county apparently was never served with the injunction, and there

was no proof of service in the circuit court file.

After the Supreme Court’s decision in Herman, the county began conducting

necessary law enforcement firearms shooting training at an existing private gun club in

the township, known as the Coloma Rod and Gun Club (CRGC). Apparently to

accommodate the additional use, CRGC constructed six additional shooting ranges for

the use of law enforcement firearms training and other firearms shooting. In October

2010, the township brought an action to enjoin CRGC’s expansion of its nonconforming

use. On November 27, 2012, the circuit court ruled in the township’s favor, finding that

the CRGC’s expansion of its gun ranges by adding and using six new pistol bays was a

nuisance per se and ordering the nuisance abated. This order was not appealed.

Seeking to lawfully use the previously constructed shooting ranges adjacent to its

classroom training facility, the county passed a resolution on August 8, 2013, to construct

a “Shooting Range Building” at the outdoor range property. The resolution noted that

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Herman had decided outdoor ranges were not indispensable to the indoor training

building and that the county had unsuccessfully attempted to obtain a special land-use

permit from the township. The resolution then provided:

WHEREAS, Corporate Counsel advised the County Board on August 1, 2013,

that there was legal support for the construction of a shooting range building on

the range area of the Training Facility which would be consistent with the

“indispensable use” standard of the Herman decision, thereby falling under the

authority provided in the [CCA], and exempt from Township regulation.

NOW, THEREFORE, BE IT HEREBY RESOLVED that the Berrien County

Board of Commissioners authorize and directs the County Administrator to

proceed to have a Shooting Range Building designed and constructed on the

shooting range area of the County Training Facility at 7110 Angling Road,

Coloma Charter Township, and authorizes expending the minimal funds

necessary . . . to accomplish said building construction not to exceed $11,500.00;

and take such further necessary action with the landowner to remain consistent

with the County’s lease of said property.

Based on the foregoing resolution, the county constructed an open-air, pole-barn type

structure consisting of a covered cement slab that is completely open on one side, facing

the longest of the previously constructed outdoor shooting ranges. Defendants describe it

as follows:

The Gun Range Building consists of a 43x20 foot concrete pad with, a 42xl6

foot building, comprised of eight (8) 6x6 posts and five (5) 4x6 posts and a full

roof constructed over the concrete pad. All of the posts are permanently cemented

into the ground. Partial walls exist on three (3) sides of the Gun Range Building

with open areas at the top and bottom of each wall. An overhang and awning type

structure exists along the fourth open wall (front side) so as to allow shooting out

to the Current County Range and to provide additional safety for shooting and

sound baffling, and provide a shelter for firearms training. The walls, ceiling, and

overhang are permanent in their construction and the open areas allow for proper

ventilation and drainage, while at the same time, allowing firearms training,

including live firing of weapons, to be conducted within the Gun Range Building

with the actual shooting occurring from within the building out to targets located

at the other end of the Current County Range. The County’s Gun Range Building

was completed in September of 2013, and after completion, it and the Current

County Range were used by the Sheriff and deputies to conduct the required

firearms training . . . .

On November 14, 2013, the Herman plaintiffs filed a motion seeking enforcement

of the 2008 injunction and asking the circuit court to hold the county in civil and criminal

contempt for its violation of the order (Docket No. 325335). Also, on the same date, the

township filed a new action in the circuit court, seeking to enjoin the county and its

sheriff’s department from discharging firearms at the site in violation of the township’s

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zoning ordinance (Docket No. 325226). The circuit court held a number of joint hearings

and issued a series of rulings in 2014 that modified the 2008 injunction, ruled in favor of

the county to allow use of the shooting-range building, and found, after a trial, that the

county was not guilty of criminal contempt.

After an initial evidentiary hearing, the circuit court on January 17, 2014, issued an

opinion and order modifying the 2008 injunction while the litigation was pending and

denying the township’s request for a preliminary injunction. The circuit court, citing Ali v

Detroit, 218 Mich.App. 581; 554 N.W.2d 384 (1996), and dictionary definitions, found

that the county would likely prevail on its claim that the new structure was a “ building”

within the meaning of the CCA. The court reasoned “that the assembly is a permanent

box-like structure having a roof used for firearms skill proficiency assessment and

training. It has three walls that enclose space albeit with gaps for ventilation.” The court

also found that “the assembly was permanently fixed to the ground at a specific location

with a roof and three walls enclosing space for purposes of confining the Sheriff’s

deputies participating in the assessment and training for which the assembly was

specifically designed and constructed.”

The circuit court in its initial opinion and order also rejected plaintiffs’ argument

that the structure could not be a county “building” because it was not listed in the

examples noted in MCL 46.11(d), as cited in Herman, 481 Mich at 367 n 14. The court

ruled that the statute is clear and unambiguous and that the term “county buildings”

includes any “buildings” that are “owned, leased, operated, used or maintained by a

county for activities authorized by law.” The circuit court further ruled that the county’s

motive (to avoid Herman ) was not relevant; what mattered was the result of the county’s

actions. In that regard, the circuit court opined:

The result of the Board’s action was that the shooting range building was

erected and sited near the Classroom. That building was purposely erected and the

site was purposely determined to take advantage of the Ranges which the Board

was advised could then be used for shooting despite Herman because, as an

indispensable use, the shooting would no longer be subject to the [township’s]

ordinances.

The Board had the power to erect “necessary buildings”. Whether the building was

necessary was a [county board] legislative decision which the judiciary should not second

guess.

Nevertheless, the circuit court found that “firearms assessment and training for the

sheriff’s deputies is necessary” and required by MCOLES (Michigan Commission on

Law Enforcement Standards).3 The circuit court explained:

The mandatory MCOLES Annual Firearms Standard for Active Duty Law

Enforcement Officers - Primary Duty Weapon (2010) requires both knowledge

and an annual assessment of mechanical firearms skills proficiency. While the

knowledge component may be taught in the Classroom Building that existed at

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the time Herman was decided, the assessment component requires shooting at

multiple targets, placed at multiple distances, use of cover, close range shooting,

mandatory combat reload, appropriate handling of stoppages, shooting from

different cover positions, shooting with the support hand only, discussions on

deadly force issues, and decision making.

The circuit court also found the evidence supported that use of the building for live-

fire training improved safety and reduced noise. Thus, the circuit court determined “the

record supports a preliminary conclusion that the Board properly exercised its power to

erect a necessary county building [MCL 46.11 (d)] and to determine its site [MCL 46.11

(b)].” (Alterations in original.)

The circuit court also determined that the shooting range adjacent to the open

end of the building met Herman’s “indispensable use” test, opining:

The normal use of the shooting range building is to facilitate safe and quiet

outdoor firearms assessment and training for sheriff’s deputies. . . . The evidence

supports a preliminary finding that the shooting range building could not be used

for outdoor firearms training without shooting. While consuming only a small

fraction of the assessment and training time, the shooting is the essence of the

assessment and training. Safety dictates that the shooting not take place without

the protection offered by the Range. In other words, the Range is indispensable to

the normal use of the shooting range building.

The circuit court then entered an order temporarily modifying its 2008 injunction to

permit the sheriff and actively employed sheriff’s deputies to use the outdoor shooting

range for shooting any weapon carried on duty by the shooter for MCOLES required

annual assessments and recommended training from the confines of the shooting range

building while under the direct supervision of an MCOLES recognized firearms

instructor on Tuesdays, Wednesdays and Thursdays between 8:00 a.m. and 5:00 p.m.,

except on days observed as holidays . . . .

On March 28, 2014, the county moved for summary disposition, seeking dismissal of

the civil and criminal contempt claims. A hearing was held on May 19, 2014, and on the

basis of governmental immunity, see In re Bradley Estate, 494 Mich 367; 835 NW2d 545

(2013), the circuit court granted the motion with respect to plaintiffs’ claim for civil

contempt. The circuit court’s August 20, 2014 order left unresolved the question of

criminal contempt.

The Herman plaintiffs on August 4, 2014, moved for summary disposition on

criminal contempt, but the circuit court ruled that the criminal contempt claims required

assessment of witness credibility at a trial. Later, on December 2, 2014, the court

conducted a trial on the criminal contempt charge and issued an opinion and judgment of

acquittal. The circuit court found that although plaintiffs had proved beyond a reasonable

doubt that the county was aware of the 2008 Herman decision and that the county

violated the injunctive order by beginning use of the outdoor shooting ranges on

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September 4, 2013, the plaintiffs “failed to prove beyond a reasonable doubt that the

violation was willful” because of lack of evidence to support a finding “beyond a

reasonable doubt that the violation was an intentional violation of a known legal duty.”

The circuit court found that all testifying witnesses were credible and determined that no

agent of the county had actual knowledge that the court had entered its 2008 injunctive

order.

The court also found “reasonable doubt that the County had imputed knowledge

through Commissioner Elliott in his then capacity as County’s Corporate Counsel.” There

was no proof of service in the file, and Elliot testified he signed a blank page “approved

as to form” at the request of opposing counsel for an order to close the circuit court file

after the Supreme Court’s decision in Herman. The circuit court also found that the

county board was respectful of the Herman decision and acted on advice of counsel that

its actions would not violate that case, which also created reasonable doubt regarding the

charge of criminal contempt.

With respect to the civil litigation, the township moved for summary disposition

under MCR 2.116(C)(10) on August 29, 2014. The Herman plaintiffs joined in this

motion for summary disposition on September 29, 2014. After hearing arguments on the

motions, the circuit court on October 13, 2014, issued an opinion and order, granting

defendants summary disposition in both cases under MCR 2.116(I)(2). The court

modified its permanent injunctive order in the Herman case (Docket No. 325335), and

denied the township’s request in the new case (Docket No. 325226) to declare that

defendants were in violation the permanent injunctive order; the court also denied the

Herman plaintiffs’ request to enforce the permanent injunction. The court issued a

modified opinion and order on October 23, 2014, that only changed the statement that the

scheduled trial would concern criminal contempt rather than civil contempt.

The circuit court’s analysis in its October 23, 2014, opinion mirrored that of its

opinion of January 17, 2014, when the court denied the township’s request for a

preliminary injunction and granted temporary relief from the 2008 permanent injunction.

The circuit court concluded as a matter of law that the shooting-range structure is a

“county building” under MCL 46.11(b) and (d). The court again concluded that whether

the shooting-range building was “necessary” was a legislative decision and not one that

the court could second guess. But, as in its preliminary ruling, the circuit court again

discussed that firearms’ training was necessary to satisfy MCOLES standards and given

that the shooting-range building “enhanced safety and reduced noise, the Board rationally

concluded that the gun range building was a ‘necessary building’.” The circuit court

ruled, as a matter of law, “the Board properly exercised its power to erect a necessary

county building [MCL 46.11 (d)] and to determine its site [MCL 46.11 (b)].” (Alterations

in original.)

With respect to whether the shooting range adjacent to the shooting-range building

met Herman’s “indispensable use” test, the circuit court once again determined that it

did.

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The normal use of the shooting range building is to facilitate safe and quiet

outdoor firearms training for sheriff’s deputies. This normal use contrasts with

normal use of the nearby Classroom Building at issue in Herman which was for

indoor classroom training . . . . The shooting range building could not be used for

outdoor firearms and training assessment without shooting. While consuming

only a small fraction of the training time, the shooting is the essence of the

training and assessment. Safety dictates that the shooting could not take place

without the protection offered by the Range. In other words, the Range is

indispensable to the normal use of the shooting range building.

Plaintiffs’ ancillary/primary dichotomy has no basis in reason or in Herman. It

is axiomatic that if the Board has the power to site a building, it has the power to

site the building’s normal and primary use. The power to site a building would be

meaningless without the power to site its primary use, and, as Herman held, its

indispensable ancillary uses. Implicit in Herman is that the Board’s power to site

a building includes the power to site its primary use, and the only restraint

imposed by Herman is on the Board’s power to site dispensable ancillary uses. If

shooting is the primary use, it consumes the Herman restraint.

On the basis of this analysis, the circuit court concluded that the county’s authority

under the CCA to site necessary county buildings “trumps [the township’s] zoning and

noise ordinances.” The circuit court therefore denied the plaintiffs’ motion for summary

disposition and granted summary disposition to defendants under MCR 2.116(I)(2).

The circuit court also modified its permanent injunction by providing an exemption

for the one shooting range directly adjacent to and southwest of the open front of the

shooting range building constructed . . . pursuant to Resolution A1308168 . . . for

firearms shooting solely for MCOLES required annual assessments and recommended

training from the confines of the shooting range building while under the direct

supervision of a qualified firearms training instructor.

In each case, the circuit court denied reconsideration by order entered December 11,

2014. Plaintiffs now appeal by right. This Court, by order of February 13, 2015,

consolidated these appeals “to advance the efficient administration of the appellate

process.”4

__________________________________________________________________ 1 MCL 46.11 provides:

A county board of commissioners, at a lawfully held meeting, may do 1 or

more of the following:

* * *

(b) Determine the site of, remove, or designate a new site for a county

building. The exercise of the authority granted by this subdivision is

subject to any requirement of law that the building be located at the county

seat.

* * *

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(d) Erect the necessary buildings for jails, clerks’ offices, and other county

buildings, and prescribe the time and manner of erecting them.

2 Herman v Berrien Co, 275 Mich App 382; 739 NW2d 635 (2007), rev’d 481

Mich 352; 750 NW2d 570 (2008).

3 See Michigan Commission on Law Enforcement Standards Act, 1965 PA 203;

MCL 28.602 et seq.; see also State of Michigan, Michigan Commission on Law

Enforcement Standards < http://www.michigan.gov/mcoles> (accessed September

2, 2016) [https://perma.cc/3XY9-M8M6].

4 Coloma Charter Twp v Berrien Co, unpublished order of the Court of Appeals,

entered February 13, 2015 (Docket Nos 325226 and 325335).

5 The parties have not litigated the merits of whether the shooting ranges violate

the anti-noise ordinance because, up to this point, the main dispute hinged on

whether the shooting ranges were immune from this ordinance. Nonetheless, the

county’s own feasibility study predicted that the gun range would produce noise

levels above 87 decibels extending to approximately 370 of the surrounding acres.

This apparently violates the anti-noise ordinance, which prohibits noise levels

above 65 decibels between 7:00 a.m. and 10:00 p.m. and 55 decibels at all other

times.

__________________________________________________________________

For its part, the Court of Appeals reversed as to the application of MCL 46.11(b) and (d)

and also reversed the circuit court’s modification of its prior injunction.

3. ARGUMENT:

Issue I: Whether the gun range building currently used by the Berrien County Sheriff’s

Department is entitled to priority over the conflicting township zoning and noise

ordinances by virtue of the County Commissioners Act, MCL 46.1 et seq., specifically MCL

46.11(b) and (d), is a question which concerns whether the County’s use of the gun range

building satisfies Herman’s “indispensable use” test.

A. Standard of Review:

This is essentially an issue of statutory construction, and the appropriate standard of

review was previously and correctly posited in Herman, 481 Mich at 358:

The case involves interpretation of the CCA. “Questions of statutory

interpretation are questions of law, which will be reviewed de novo.” In re MCI

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Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999); see also

Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich

75, 80; 467 NW2d 21 (1991).

This appeal also encompasses rulings made on summary disposition. This Court reviews

de novo a trial court’s decision on a motion for summary disposition. Maiden v Rozwood, 461

Mich 109, 118; 597 NW2d 817 (1999). A motion under MCR 2.116(C)(10) tests the factual

sufficiency of a claim and must be supported by affidavits, depositions, admissions, or other

documentary evidence. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004).

The trial court, for its part, must view the proffered evidence in the light most favorable to the

party opposing the motion and properly grants the motion when the undisputed facts establish a

party is entitled to judgment as a matter of law. Maiden, 461 Mich at 120. And the same

principle extends to appellate review.

B. Legal Analysis:

One thing on which all parties and all four lower court judges agree is that this case is

controlled by MCL 46.11(b) and (d). MCL 46.11 provides in relevant part:

A county board of commissioners, at a lawfully held meeting, may do 1 or more

of the following:

(a) Purchase or lease for a term not to exceed 20 years, real estate necessary

for the site of a courthouse, jail, clerk’s office, or other county building in that

county.

(b) Determine the site of, remove, or designate a new site for a county

building. The exercise of the authority granted by this subdivision is subject to

any requirement of law that the building be located at the county seat.

(c) Authorize the sale or lease of real estate belonging to the county, and

prescribe the manner in which a conveyance of the real estate is to be executed.

(d) Erect the necessary buildings for jails, clerks’ offices, and other county

buildings, and prescribe the time and manner of erecting them.

While there are numerous additional subparagraphs in MCL 46.11, these are the four

subdivisions dealing with county buildings.

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In Herman, although this Court held that the entire CCA is “an unambiguous statute”,

481 Mich at 366, nonetheless, in construing MCL 46.11(b) and (d), this Court also took into

consideration subparagraph (a), immediately before interpreting subparagraphs (b) and (d) as

applying to “county buildings”, although the adjective “county” is absent from subparagraph (b).

Given this Court’s general adherence to “textualism”—as this Court most recently held in People

v Harris, 499 Mich 332, 345; 885 NW2d 832 (2016), “The words of the statute provide the best

evidence of legislative intent and the policy choices made by the Legislature,” citing White v Ann

Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979), the insertion of the word “county” into the

“unambiguous” subparagraph (b) may seem, at first blush, improper, but “textualism” includes

as a corollary “contextualism” for well-settled reasons.

The first four subparagraphs of MCL 46.11, even if they were in different statutes

adopted at different times, would, by virtue of their inter-related subject matter, be interpreted in

light of each other and subject to being construed harmoniously. As this Court held in Robinson

v City of Lansing, 486 Mich 1, 15-16; 782 NW2d 171 (2010) (boldfaced emphasis added), where

it similarly read the word “county” into a statute based on context:

Third, subsection (2) cannot be read in isolation, but must be read in

context. Defendant argues, and the Court of Appeals agreed, that because the

Legislature did not expressly use the word “county” in subsection (2), this word

cannot be read into subsection (2). If subsection (2) were to be read in isolation,

defendant and the Court of Appeals might be correct in this analysis because it is

well established that “we may not read into the statute what is not within the

Legislature's intent as derived from the language of the statute.” AFSCME v

Detroit, 468 Mich 388, 400; 662 NW2d 695 (2003). However, it is equally well

established that to discern the Legislature’s intent, statutory provisions are

not to be read in isolation; rather, context matters, and thus statutory

provisions are to be read as a whole. Apsey v Mem. Hosp, 477 Mich 120, 132 n.

8; 730 NW2d 695 (2007) (“To discern the true intent of the Legislature, ... statutes

must be read together, and no one section should be taken in isolation.”); Griffith

v State Farm Mut Automobile Ins Co, 472 Mich 521, 533; 697 NW2d 895 (2005)

(“‘[T]he meaning of statutory language, plain or not, depends on context.’”)

(citation omitted); GC Timmis Co v Guardian Alarm Co, 468 Mich 416, 421; 662

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NW2d 710 (2003) (“‘[W]ords in a statute should not be construed in the void, but

should be read together to harmonize the meaning, giving effect to the act as a

whole.’” ) (citation omitted).[15] “[A]ny attempt to segregate any portion or

exclude any portion [of a statute] from consideration is almost certain to distort

the legislative intent.” 2A Singer & Singer, Statutes and Statutory Construction

(7th ed.), §47.2, p. 282. For the reasons discussed throughout this opinion,

although only subsection (1) expressly refers to “county” highways, we believe

that when MCL 691.1402a is read as a whole, it is clear that both subsections (1)

and (2) only apply to such highways.

Here, the context is that subparagraphs (a)-(d) are not only part of a single statutory section, they

are part of what was originally 1851 PA 156, “AN ACT to define the powers and duties of the

county boards of commissioners of the several counties, and to confer upon them certain local,

administrative, and legislative powers * * *.”

Therefore, not only do MCL 46.11(b) and (d) deal exclusively with “county buildings”,

but “county buildings” in the contextof a “courthouse, jail, clerk’s office1, or other county

building in that county” (boldface emphasis added). Courthouse, jails and clerk’s offices

would be uniformly expected to consist of a foundation permanently affixed to (or into) the

ground, four (or more2 or fewer

3) walls enclosing a space, a roof, and points of ingress and

egress. Although it might be tempting to reject Berrien County’s “Gun Range Building” as

1 Note that subparagraphs (a) and (d) both provide exemplars, but (a) uses the singular possessive

“clerk’s office”, while (d) uses the plural possessive “clerks’ office”. Counties have only a

single elected county clerk, Const 1963, art 7, §4 (providing for “‘a’ county clerk”; art 6, §14

(providing that “‘the’ county clerk” serves as clerk of the circuit court). But the elected county

clerk must appoint one or more deputies, MCL 50.63; see also MCL 50.131 and MCL

600.571(c). For purposes of the issues in this case, the placement of apostrophes is unimportant. 2 There is nothing in MCL 46.11(a)-(d) to suggest that any “county building” which is other than

a rectangular solid would not qualify for exemption from municipal zoning ordinances. The

shape of “county buildings” is a matter for architects and county commissioners to decide, the

Pentagon in Washington, DC is unquestionably a “government building” despite its unique

geometry. 3 From 1946 until 2015, Michigan State University utilized for various purposes (university

police headquarters, dormitories, storage facilities, among other usages) a number of quonset

huts, consisting of one semi-circular metal corrugated tube that functioned in place of a “roof and

two sides”, plus a front and back wall with doors. Again, these peculiar structures could hardly

be deemed anything other than “university buildings”.

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being wholly unlike a courthouse, jail or clerical office, such a simplistic approach would be

wrong. Certainly, one can imagine non-traditional structures that would properly qualify as

“county buildings”—for example, an outdoor stadium. It would not be required that a county

stadium have a roof to qualify as a “county building”.

Nor can it be said that fully enclosing the main activity is required of a “county building”.

Ohio State University’s football stadium is famously a horseshoe shape, but if a county can build

a football stadium to serve a county junior or community college, then a county can choose a

horseshoe shape, or even a pair of parentheses (many high school football facilities have rows of

bleachers parallel to each sideline, with no seating or other obstructions facing either end zone).

And not all stadium bleachers have solid sides; many are open to the air, the seating being but

planks supported by a metallic skeleton.

So Berrien County’s Gun Range Building is a “county building”. In the present case,

Berrien County’s central activity is conducted in and adjacent to the Gun Range Building’s

structural confines. So while the “normal” use of Berrien County’s Gun Range Building is

firearms training, the actual discharge of firearms, cannot be conceptually or practically confined

to merely the moment of firing, but involves the use of firearms from point of discharge to point

of impact of the projectiles, has been constructed by the county for a purpose within its powers;

therefore, this county building is entitled to the protections of the CCA.

Regardless of the outcome in this case, MAC wishes to make abundantly clear that

Berrien County, or any county, could, without question, construct a completely enclosed gun

range and properly invoke MCL 46.11(b) to insulate such a county building against any

complaint predicated on a township or city zoning or similar ordinance. The FBI has an indoor

gun range at its Hoover Building headquarters, where agents train and practice with handguns,

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rifles, and automatic weapons, and many police agencies have basement firing ranges (among

other types of indoor ranges).

MAC is also sympathetic to Berrien County’s financial limitations, unlike the FBI which

may seek Congressional largesse when it comes to budgetary matters, Berrien County does not

enjoy access to such blank check equivalence when the county must underwrite the cost of

development. Therefore, practical limitations apply and this Court should give deference to the

legislative body’s decision regarding the necessity of Berrien County’s Gun Range Building and

its necessary ancillary use of land.

The further holding in Herman is at the crux of the present dispute, 481 Mich at 368-369

(boldface emphasis added):

Next, we must articulate a standard to test whether a particular ancillary land use

is encompassed in the use of the building such that it is given priority under the

CCA. To answer that question, a court must ask whether the ancillary land use is

indispensable to the building’s normal use. “The TZA vests townships with broad

authority to enact zoning ordinances to regulate land development and to ‘insure

that the use of land shall be situated in appropriate locations and relationships....’

” Pittsfield, supra at 707-708, quoting MCL 125.271 (1). As stated, the priority

given to the county in MCL 46.11 (b) and (d) is significantly limited to siting a

building. Because the county’s authority is limited, the encroachment on a

township’s broad authority must be limited to that needed to effect the purpose of

§ 11(b) and (d). Thus, we hold that the scope of the CCA’s priority over the

TZA is limited to ancillary land uses that are indispensable to the building’s

normal use. Accordingly, the ancillary land use will only have priority over

local regulations if it is indispensable to the building’s normal use.18

This

standard will invariably require a case-by-case analysis in future applications.

__________________________________________________________________ 18

In adopting this standard, we are reminded of, and guided by, the venerable

holding in McCulloch v Maryland, 17 US (4 Wheat) 316; 4 L Ed 579 (1819) , in

which the United States Supreme Court dealt with a similar issue regarding the

scope of a government’s power when its granting authority leaves that question

unanswered. The Court stated:

Congress is not empowered by it to make all laws, which may have

relation to the powers conferred on the government, but such only as may

be “necessary and proper” for carrying them into execution. The word

“necessary” is considered as controlling the whole sentence, and as

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limiting the right to pass laws for the execution of the granted powers, to

such as are indispensable, and without which the power would be

nugatory. [Id. at 413 .]

While the CCA does not contain the exact phrase “necessary and proper,” we find

the present issue strikingly similar. The CCA has given power to this state’s

counties, and that power must be useable, yet limited. Thus, with no statutory

direction in that regard, we find the McCulloch Court’s resolution of its similar

dilemma compelling.

__________________________________________________________________

Here, the use of the shooting range from the Berrien County’s Gun Range Building is a

necessary and proper ancillary land use that is given priority under the CCA. The land use for

the shooting range is indispensable to the County’s building. Prohibiting this land use would

contravene Herman.

This Court’s Herman exemplars of ancillary uses (sidewalks, parking lots, and light

poles, 481 Mich at 368), all involve external installations or activities. The allowable size and

scope of any ancillary use must be related to the legitimate usages of the county’s building

reasonable main function. So a county, under the CCA, might create a classroom building for

training of any class of county employees, and then add a parking lot sufficient to serve a number

of vehicles equal to the number of classroom seats (plus spaces for instructors and other

personnel). That means a relatively small county building might have a large ancillary use, in

terms of land area occupied. A one room classroom building with 50 seats for students thus

legitimately could have a 51 space parking lot or one even larger (to accommodate a custodian, a

second instructor or other aides, etc.).

And thus we return to the Berrien County Gun Range Building. Irrespective of whether

the 3-sided structure is a building, even granting that the triggering of firearms therein constitutes

the “primary use” of the parcel of land on which it is “sited”, that primary use encompasses the

shooting and tracking of projectiles to the point of impact, a process which begins with the

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structure and necessarily involves the ancillary land use for the range. The ability of Michigan

counties to provide not only much needed expansion and improvements to necessary county

infrastructure, but also a county’s ability to fulfill its constitutional obligation and construct

statutorily required facilities necessary for the welfare of county residents and to engage in core

governmental functions must be protected.4 The building itself is an indispensable use, because it

was conceived and erected to provide required training to the County’s Sheriff Department. This

necessary use and purpose is protected by the CCA.

The circuit court’s analysis was correct in multiple respects:

1. The County has leeway in “siting” a “building” under the CCA, the circuit court

properly indicated it must defer to what it regarded as a legislative act in deeming the Gun Range

Building “necessary” and in selecting its location.

2. The circuit court properly devoted a great deal of its discussion of the issues to the

indispensability of a gun range so that Sheriff’s deputies can satisfy their annual qualification

requirement under the MCOLES Active Duty Firearm Standard. The County is not required to

demonstrate that other land within the county is more suitable or that an alternative is available.

The County had plenary authority to site this building and that power would be nugatory if it

could not conduct ancillary land uses in order to make use of this building.

3. The CCA was properly construed in this case to supersede the Township’s zoning and

noise ordinances.

4 In Deardon v Detroit, 403 Mich 257; 269 NW2d 139 (1978), this Court specifically addressed

the public policy rationale belying permitting local zoning ordinances to dictate the placement of

prisons. As the Court in Deardon pointed out, concerning the building of penal institutions, if

the state/county were subject to the many and varied municipal zoning ordinances “the

underlying policies of the general correctional system could be effectively thwarted by

community after community prohibiting the placement of certain penal institutions in appropriate

locations.” Deardon at 266. The same argument applies to a shooting range used in this

instance for required training of the County’s Sheriff Department.

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4. The circuit court’s view of the relationship between the Gun Range Building and the

gun range was accurate. The building has no practical use without the range.

Issue II: The Court of Appeals incorrectly reversed the Berrien circuit court’s revision of

the existing permanent injunction, there has been a “significant change” in circumstances.

A. Standard of Review

Michigan law allows for modification of a continuing injunction upon a proper showing

of changed circumstances. See First Protestant Reformed Church v DeWolf, 358 Mich 489, 495;

100 NW2d 254, 257 (1960) (dictum):

We recognize the validity of the equitable principle relied upon by defendants

and appellants:

“A continuing decree of injunction directed to events to come is subject

always to adaptation as events may shape the need.” United States v Swift & Co,

286 US 106, 114; 52 S Ct 460, 462; 76 L Ed 999 [1932].

See, also, Township of Erin v Detroit & Erin Plank-Road Co, 115 Mich

465; 73 NW 556; Edlis, Inc v Miller, 132 W Va 147; 51 SE2d 132; Ladner v

Siegel, 298 Pa 487; 148 A 699; 68 ALR 1172.

However, Michigan jurisprudence, is limited as to what level of “changed circumstances”

is required. As this Court found federal precedent persuasive and instructive in First Protestant,

supra, an examination of Salazar v Buono, 559 US 700, 714-715; 130 S Ct 1803; 176 L Ed 2d

634 (2010), a direct progeny of Swift, may be helpful:

An injunction is an exercise of a court’s equitable authority, to be ordered only

after taking into account all of the circumstances that bear on the need for

prospective relief. See United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct.

460, 76 L.Ed. 999 (1932). See also Weinberger v. Romero-Barcelo, 456 U.S. 305,

312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Hecht Co. v. Bowles, 321 U.S. 321,

329, 64 S.Ct. 587, 88 L.Ed. 754 (1944); 11A C. Wright, A. Miller, & M. Kane,

Federal Practice and Procedure §2942, pp. 39–42 (2d ed. 1995) (hereinafter

Wright & Miller). Equitable relief is not granted as a matter of course, see

Weinberger, 456 U.S., at 311–312, and a court should be particularly cautious

when contemplating relief that implicates public interests, see id., at 312 (“In

exercising their sound discretion, courts of equity should pay particular regard for

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the public consequences in employing the extraordinary remedy of injunction”);

Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334, 338, 53 S.Ct. 602, 77

L.Ed. 1208 (1933) (“Where an important public interest would be prejudiced, the

reasons for denying the injunction may be compelling”). Because injunctive relief

“is drafted in light of what the court believes will be the future course of events, . .

. a court must never ignore significant changes in the law or circumstances

underlying an injunction lest the decree be turned into an ‘instrument of wrong.’ ”

Wright & Miller §2961, at 393–394 (quoting Swift & Co., supra, at 115).

Thus, “significant change” is required. See Vodvarka v Grasmeyer, 259 Mich App 499,

513; 675 NW2d 847 (2003), addressing the threshold requirement of “significant change of

circumstances” in order to justify a hearing on a motion to modify or change a child’s judicially-

established custodial environment:

[W]e hold that in order to establish a “change of circumstances,” a movant must

prove that, since the entry of the last custody order, the conditions surrounding

custody of the child, which have or could have a significant effect on the child’s

well-being, have materially changed. Again, not just any change will suffice, for

over time there will always be some changes in a child’s environment, behavior,

and well-being. Instead, the evidence must demonstrate something more than the

normal life changes (both good and bad) that occur during the life of a child, and

there must be at least some evidence that the material changes have had or will

almost certainly have an effect on the child.

MAC also supports the concept that the public interest must always be considered in

relation to injunctive relief, and that injunctions against public agencies or officers are generally

disfavored. So the issue is whether the County’s recent actions rise to the level of a

“significant change * * * in circumstances” (there having been no change to the CCA). An

examination of the asserted change, erection of a county building is a significant change in

circumstances.5

5 In the Court of Appeals, one of the issues (the only one unanimously resolved) was whether the

circuit court’s finding of reasonable doubt as to criminal contempt was “clearly erroneous”.

Although no party has pursued the issue on leave granted, the Court of Appeals’ analysis of

criminal contempt, the majority joining Judge Markey in deferring to the circuit court’s findings

of fact as being based on witness credibility, was misdirected. Criminal contempt is subject to

the double jeopardy prohibition of the 5th

Amendment, applicable to the States through the 14th

Amendment, and no appellate review of an acquittal is constitutionally possible or permissible,

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B. Legal Analysis

In this instance the “changed circumstances” are the product of the County Board of

Commissioners decision to create a structure and conduct an ancillary land use consistent with

even if the trial court’s findings of fact were clearly erroneous. Colombo v New York, 405 US 9,

11; 92 S Ct 756; 30 L Ed 2d 762 (1972). While it was once believed that double jeopardy and

other constitutional rights applicable in criminal cases did not attach to contempt proceedings

because they were judicially sui generis and not criminal in nature, that view has been refuted by

Bloom v Illinois, 391 US 194; 88 S Ct 1477; 20 L Ed 2d 522 (1968). In Benton v Maryland, 395

US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969), it was held that the 14th Amendment also made

the double jeopardy provisions of the 5th Amendment applicable to state prosecutions. Here, the

common law principle of autrefois acquit applies. “The verdict of acquittal was final, and could

not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby

violating the Constitution.” United States v Ball, 163 US 662, 671; 16 S Ct 1192; 41 L Ed 300

(1896).

Also concerning is that criminal contempt was prosecuted by the Herman plaintiffs (through

their privately retained legal counsel), all of whom are “civilians”, holding no position with the

county prosecutor’s office or the attorney general. Nor, prior to proceeding with their criminal

contempt allegations, was any of the Herman plaintiffs (or counsel) appointed as a special

prosecutor to act on behalf of the State rather than in their own private interest—it is doubtful

such an appointment was even conceivable in light of Const 1963, art 6, §27 (prohibiting the

judiciary from exercising any power of appointment to public office except as provided in the

Constitution itself) and MCL 49.160 (allowing for appointment of special prosecutors only by

the attorney general under limited circumstances). For reasons detailed in Young v United States

ex rel Vuitton et Fils SA, 481 US 787, 803-809; 107 S Ct 2124; 95 L Ed 2d 740 (1987), and

rooted in due process concerns, private persons ought not be allowed, on their own behalf, to

prosecute criminal contempt proceedings. Michigan law generally allows only elected

prosecutors, their appointed and qualified subordinates, and the attorney general, to initiate and

prosecute criminal proceedings. MCL 49.41; MCL 14.28; MCL 14.101. Like federal law

discussed in Young, Michigan law prohibits anyone from acting as prosecuting attorney in a

matter in which that person has any private interest or any financial nexus to persons interested.

MCL 776.18; MCL 49.160. Michigan law also requires each prosecutor or assistant, or any

deputy attorney general, to take the constitutional oath, Const 1963, art 11, §1. MCL 14.41;

MCL 49.42; MCL 168.80. To like effect, this Court recognizes that, although officers of the

Court, prosecutors are part of the executive branch imbued with discretionary authority with

which the judiciary may not interfere. Const 1963, art 3, §2; Genesee County Prosecutor v

Genesee Circuit Judge, 386 Mich 672, 684-685; 194 NW2d 693 (1972); Genesee County

Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121-122; 215 NW2d 145 (1974). The

Court of Appeals once distinguished Young in DeGeorge v Warheit, 276 Mich App 587, 599-

600; 741 NW2d 384 (2007), without properly considering the due process implications or the

policies represented by the statutes and constitutional provisions cited in this footnote, and the

failure to exclude interested persons from assuming prosecutorial duties unrestricted by oath to

serve only the public interest underlies the prohibited appeal of the verdict of acquittal of

criminal contempt, which a qualified prosecuting official would likely have avoided.

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the CCA. The change is significant and added a necessary county building to the land at issue.

Under these circumstances, appellants should be permitted equitable relief even if their legal

arguments were otherwise meritorious.

Issue III: The Court of Appeals incorrectly remanded with instruction to the trial court to

reconsider plaintiffs’ request for attorney fees, which cannot be recovered under MCL

600.1721 and which, although available under inherent power, have not been properly

pleaded or preserved.

A. Standard of Review:

This is in part an issue of statutory construction, for which the standard of review is

detailed in Issue I, above. This issue also concerns the common law American Rule which

applies in Michigan:

Regarding attorney fees, defendants correctly argue that Michigan follows the

American rule, which provides that attorney fees are not to be awarded unless

specifically provided for by a statute, rule, or contractual provision. Watkins v

Manchester, 220 Mich App 337, 342; 559 NW2d 81 (1996).

Wyandotte Electric Supply Co v Electrical Technology Systems, Inc, 499 Mich 127, 150-151;

881 NW2d 95 (2016). In this case, there is no claim of any contract applying, and no party has

cited a court rule as allowing such an award (or as somehow trumping statutory governmental

immunity, any court rule to that effect would yield to the substantive GTLA per McDougal v

Schanz, 461 Mich 15, 30-31; 597 NW2d 148 (1999)).

The issue of inherent judicial power concerns the interpretation and application of Const

1963, art 6, §1 and art 3, §2. Constitutional issues are reviewed de novo on appeal. lba Twp v

Gratiot Co Drain Comm’r, 493 Mich 265, 277; 831 NW2d 204 (2013).

B. Legal Analysis:

The Amended Complaint filed by the Herman plaintiffs (this Court’s Docket No 154557)

contains no specific request for attorney fees (Herman Apx 26b-27b). For its part, Coloma

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Township has not included a copy of its complaint in its separate Appendix, nor have the

appellants provided a copy in their Appendix, although appellants were required to do so by

MCR 7.312(D)(2)(d). But given the failure of any appellee to contend that inherent power

provides the authority for an attorney fee award, and the failure to cite a portion of one of the two

complaints as invoking inherent power, for present purposes it must be concluded that no party

has either requested attorney fees in a properly filed complaint, identified a court rule or statute,

or referenced inherent power as serving as the basis for such relief. On this basis alone, this

Court would be justified in declining to address this question beyond ruling that appellees

waived any right to such inherent power recovery by failing to plead it. Union Guardian Trust

Co v Vogt, 263 Mich 330, 336; 248 NW 639 (1933) (“The decree also made allowance to the

trustee for trustee and attorney fees. These charges were not covered by the pleadings, testimony,

nor stipulation of facts, nor did the record show they were presented for determination. They

cannot be allowed in this proceeding.”).

No non-inherent power basis for allowance or award of attorney fees to appellees may be

properly invoked. Even aside from the fact that no court rule, consistent with McDougall v

Schanz, supra, could avoid governmental immunity, the Court of Appeals did not purport to

invoke MCR 7.216(C) as a basis for its remand relating to attorney fees. But had it done so, that

would have been erroneous, inasmuch as this Court’s grant of leave to appeal, not to mention

Judge Markey’s dissent, combine to make clear that the appeals to the Court of Appeals, which

reversed the circuit court, were not vexatious or frivolous, and both things must be shown to

justify sanctions. See McCarthy v Sosnick, 491 Mich 942; 815 NW2d 456 (2012); McCarthy v

Sosnick, 491 Mich 941; 815 NW2d 491 (2012); McCarthy v Sosnick, 491 Mich 853; 808 NW2d

864 (2012); McCarthy v Sosnick, 490 Mich 918; 805 NW2d 436 (2011); Peake v Peake, 469

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Mich 962; 671 NW2d 875 (2003); McNulty v Watry Indus, Inc, 442 Mich 483; 500 NW2d 477

(1993). As to the arguments of the County and related parties, especially in light of Judge

Markey’s dissent and the circuit court’s ruling in their favor, it cannot be said that there was “no

reasonable basis for belief that there was a meritorious issue to be determined on appeal.”

Jacobson v Norfolk Development Corp, 483 Mich 885; 759 NW2d 402 (2009).

The circuit court itself did address the question of attorney fees under MCL 600.1721,

and declined to award such fees, so perhaps to that extent the issue is preserved. But the Court

of Appeals’ majority remanded without citing any authority (Apx 80a):

For these same reasons, we reverse the trial court’s modification of the injunction,

and vacate and remand on the issue of attorney fees in light of our conclusion that

the county acted in violation of Herman and MCL 46.11(b) and (d). We affirm the

trial court’s ruling on criminal contempt.

Judge Markey, in dissent, mentioned MCL 600.1721:

Furthermore, the circuit court did not err by denying plaintiffs an award of

attorney fees under MCL 600.1721.

Any possible invocation of MCL 600.1721 is foreclosed by this Court’s decision in In re

Bradley Estate, 494 Mich 367; 835 NW2d 545 (2013), which held that application of MCL

600.1721 imposes a form of “tort liability” from which governmental agencies are immune under

the Governmental Tort Liability Act, MCL 691.1407(1):

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 [835

N.W.2d 560] 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 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.

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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).

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Bradley at 395-396. Although appellees separately strive to distinguish Bradley, their efforts are

doomed to failure. MCL 600.1721 cannot serve as the basis for an award of attorney fees against

opposing parties who are governmental agencies or officers protected by statutory governmental

immunity. No valid basis for an award of attorney fees has been pleaded or pursued, and that

portion of the Court of Appeals’ majority decision should be vacated.

4. RELIEF REQUESTED:

MAC respectfully requests that this Court reverse the rulings of the Court of Appeals and

reinstate the rulings of the trial court. In order to justify modification of a permanent injunction,

absent an intervening change in the law there must be a showing of a significant change in

circumstances, and that element is satisfied here. Finally, the GTLA bars awards of damages,

costs or attorney fees under MCL 600.1721 against government agencies culpable of contempt of

court, and although such remedies are available under the judiciary’s inherent power, such

authority has not been properly invoked or preserved by the pleadings.

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Dated: January 9, 2018 Respectfully submitted,

/s/ Mattis D. Nordfjord (P69780)

COHL, STOKER & TOSKEY, PC

Attorneys for Michigan Association of Counties

601 N. Capitol Ave.

Lansing, MI 48933

(517) 372-9000

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