McNa Insurance Co Inc v. Department of Technology Management and B , 913 N.W.2d 653 ( 2018 )

Order Michigan Supreme Court
Lansing, Michigan
June 29, 2018 Stephen J. Markman,
Chief Justice
Brian K. Zahra
Bridget M. McCormack
157456 & (16)(17)(21) David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement,
MCNA INSURANCE COMPANY, d/b/a Justices
MCNA DENTAL,
Appellant,
v SC: 157456
COA: 342646
Ingham CC: 18-000034-AA
DEPARTMENT OF TECHNOLOGY,
MANAGEMENT AND BUDGET,
Appellee.
_________________________________________/
On order of the Court, the motion for immediate consideration is GRANTED.
The application for leave to appeal the March 12, 2018 order of the Court of Appeals is
considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
VACATE the order of the Court of Appeals and we REMAND this case to the Court of
Appeals for plenary consideration. The Court of Appeals is DIRECTED to decide this
case on an expedited basis. The motions for stay and to waive the requirements of MCR
7.209(A)(2) and (3) are DENIED.
MARKMAN, C.J. (dissenting).
I respectfully dissent. While plaintiff acknowledges in its application that
“competitive bidding statutes do not confer standing on bidders,” and while this Court
has long recognized that disappointed bidders do not possess an interest in the outcome of
a bidding process for public contracts, Talbot Paving Co v Detroit, 109 Mich. 657 (1896),
plaintiff nonetheless contends that it possesses standing to maintain the instant action in
the Ingham Circuit Court on the basis that it enjoys “statutory standing” under MCL
600.631. Although such an argument may be tenable under Lansing Sch Ed Ass’n v
Lansing Bd of Ed, 487 Mich. 349, 372 (2010) (“LSEA”), which held that “[a] litigant may
have standing . . . if the statutory scheme implies that the Legislature intended to confer
standing on the litigant,” it is untenable under Nat’l Wildlife Fed v Cleveland Cliffs Iron
Co, 471 Mich. 608, 616 (2004), overruled by LSEA, 487 Mich. at 352, which held
previously that the Legislature cannot expand “the realm of disputes cognizable by the
judiciary . . . .” Given that plaintiff’s argument directly implicates the critical difference
between LSEA and cases such as Cleveland Cliffs, see also Lujan v Defenders of Wildlife,
504 U.S. 555 (1992), I would grant leave to appeal to address whether LSEA should be
overruled in order to restore the standing doctrine in Michigan to its proper constitutional
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roots, as well as to conform with federal constitutional law. Lujan, 504 U.S. at 577 (“To
permit Congress to convert the undifferentiated public interest in executive officers’
compliance with the law into an ‘individual right’ vindicable in the courts is to permit
Congress to transfer from the President to the courts the Chief Executive’s most
important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II,
§3.”).
In my judgment, this Court’s remand to the Court of Appeals for plenary
consideration is unwarranted because, if plaintiff does not possess standing, the proper
course of action for this Court would be to remand to the trial court for entry of an order
dismissing the action. Lee v Macomb Co Bd of Comm’rs, 464 Mich. 726, 741 (2001),
overruled by LSEA, 487 Mich. at 352 (“Plaintiffs do not have standing to bring the present
actions. We accordingly . . . remand these actions to the respective circuit courts for
entry of orders dismissing plaintiffs’ actions on the basis of lack of standing.”). Indeed,
as recently as last week, the United States Supreme Court observed, “[i]n cases where a
plaintiff fails to demonstrate Article III standing, [it] usually direct[s] the dismissal of the
plaintiff’s claims.” Gill v Whitford, 585 US __, __ (2018) (Docket No. 16-1161), slip op
at 21. I would address the issue of standing at this time without remanding to a lower
court for further proceedings, particularly where upon remand that court will be bound by
LSEA.
Put simply, there is no more critical matter than a proper conception of standing
for a judicial body determined to operate within its constitutional purview and in the
responsible exercise of the Constitution’s “judicial power.” US Const, art III, § 2; Const
1963, art 6, § 1. Accordingly, I would grant leave to appeal to address this issue.
I, Larry S. Royster, 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, 2018
s0626
Clerk