OAKLAND COUNTY PROSECUTOR v. BECKWITH, 242 Mich. App. 579

Griffin, P.J. This case is before us pursuant to a Supreme Court order remanding the case for consideration as on leave granted. See 458 Mich 867 (1998). On appeal, plaintiff challenges the trial court’s order directing the Oakland County Prosecutor to pay a portion of a special master’s fees, specifically $698.70 for services rendered. We agree with plaintiff that Carson Fischer Potts & Hyman v Hyman, 220 Mich App 116, 119-121; 559 NW2d 54 (1996), is controlling and compels reversal of the trial court’s order directing the prosecutor to pay a portion of the special master’s fees.

However, we follow the precedential effect of Carson only because we are compelled to do so pursuant to MCR 7.215(H)(1). Were it not for the prior precedentially binding decision, we would affirm. MCR 7.215(H)(2). i Plaintiff brought the present action asserting nearly three hundred claims under the Michigan Consumer Protection Act, MCL 445.901 et seq.-, MSA 19.418(1) et seq. Over plaintiffs objection, the court appointed a special master to assist the court in this complex litigation. See the appendix to Judge Sullivan’s concurring opinion in this matter: Order Appointing Special Master.

Later, the trial court ordered plaintiff to pay for a portion of the special master’s services. On appeal, plaintiff argues that the trial court’s order appointing the special master was unlawful and, thus, the order directing payment for the special master’s services must be reversed. We review questions of law de novo. People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998); Kern v Blethen-Coluni, 240 Mich App 333, 341-342; 612 NW2d 838 (2000).

Resolution of the issue at hand is governed by this Court’s prior decision in Carson, supra, in which the trial court appointed an expert witness pursuant to MRE 706 to “ ‘make findings of fact, conclusions of law and a final recommendation and proposed judgment as to the disposition of [the] matter Carson, supra at 118.

The expert witness was given the authority to hire a certified public accountant to assist him and, in addition, was given the duties to review all motions and submit findings of fact to the court before the scheduled hearing date, to require the production of evidence, to issue subpoenas through the court, to conduct and regulate miscellaneous proceedings, to examine documents and witnesses, and to prepare final findings of fact and recommendations for judgment.

The order permitted the parties to file written objections to the final findings and recommendations and permitted the court to adopt the expert’s recommendation and judgment, to modify the recommendation, or to refer the recommendation to the expert with further instructions. [Id. at 121.] On appeal, the defendant argued the trial court did not have the authority to appoint such experts under either MRE 706 or the Michigan Constitution because the assigned duties and responsibilities essentially made them special masters rather than expert witnesses. Carson, supra at 118-119.

Citing Const 1963, art 6, §§ 1 and 27, the Carson Court agreed, explaining: Although the Supreme Court is empowered by the Michigan Constitution to authorize persons who have been elected and have served as judges to perform judicial duties for limited periods or specific assignments, Const 1963, art 6, § 23, there are no constitutional or statutory authorities permitting a circuit court judge the power to appoint a retired judge or any other person to sit as a court in a civil action. Brockman v Brockman, 113 Mich App 233, 237; 317 NW2d 327 (1982).

Rather, Const 1963, art 6, § 27 specifically prohibits such action. In Brockman, this Court held that a Wayne Circuit Court judge was without constitutional or statutory authority to appoint a former circuit court judge to sit as the court and try the matter. Id., p 237. We agree with defendant that there is no constitutional authority for the trial court to delegate specific judicial functions to an “expert witness.” It is within the peculiar province of the judiciary to adjudicate upon and protect the rights and interests of the citizens and to construe and apply the laws. . . .

Thus, the trial court could not delegate its functions of making conclusions of law, reviewing motions, requiring the production of evidence, issuing subpoenas, conducting and regulating miscellaneous proceedings, examining documents and witnesses, and preparing final findings of fact. Although this is what the trial court’s order purports to do, the court cannot appoint an expert witness to perform judicial functions.

Accordingly, the trial court was without constitutional authority to delegate its specific judicial power to an expert witness. [Carson, supra at 120-122.] The Carson Court further held that the trial court’s order appointing an expert witness “exceeded the authority implicit in MRE 706 by requiring the expert to perform duties outside the scope of the duties of an expert witness and within the purview of the court.” Id. at 123-124. n In the present case, the special master argues that Carson is distinguishable. We disagree and conclude the differences between the cases are immaterial.

In Carson, the trial court cited MRE 706 as authority for the appointment of the special master; in this case the court relied on MCR 1.105. However, neither the rule of evidence nor the court rule expressly authorizes such an appointment. Most importantly, in both cases, the master’s proposed findings of fact and conclusions of law were mere recommendations to the trial court: “If the expert’s recommendation was adopted, the trial court would enter judgment in the same manner as if the action had been tried by the court.” Carson, supra at 123 (emphasis added).

Further, the order in Carson, like the order herein appointing the special master, “permitted the parties to file written objections to the final findings and recommendations and permitted the court to adopt the expert’s recommendation and judgment, to modify the recommendation, or to refer the recommendation to the expert with further instructions.” Id. at 121. Consequently, these similarities bind our disposition of the present matter to the result obtained in Carson, supra.

However, were we not compelled to follow Carson by virtue of MCR 7.215(H), we would hold the circuit court possesses the requisite, albeit implicit, authority to appoint a special master as long as the assigned duties do not unduly intrude on the exclusive domain of the court to perform judicial functions. in The circuit court is the trial court of general jurisdiction. It possesses the broad powers provided by MCL 600.601(1); MSA 27A.601(1): The circuit court has the power and jurisdiction: (

A) Possessed by courts of record at the common law, as altered by the state constitution of 1963, the laws of this state, and the rules of the supreme court. (

B) Possessed by courts and judges in chancery in England on March 1, 1847, as altered by the state constitution of 1963, the laws of this state, and the rules of the supreme court. (

C) Prescribed by the rules of the supreme court. Before the Carson decision, our circuit courts appointed special masters to assist them when the circumstances of the cases so justified.

See, e.g., O’Connor v Vander Veen, 253 Mich 77; 234 NW 101 (1931), Skinner v Lucas, 68 Mich 424; 36 NW 203 (1888), Chittenden v Witbeck, 50 Mich 401; 15 NW 526 (1883), FMB-First Michigan Bank v Bailey, 232 Mich App 711; 591 NW2d 676 (1998), O’Dess v Grand Trunk W R Co, 218 Mich App 694; 555 NW2d 261 (1996), Union Bank & Trust Co, NA v Farmwald Development Corp, 181 Mich App 538; 450 NW2d 274 (1989), Eyde v Eyde, 172 Mich App 49; 431 NW2d 459 (1988), and Harper Creek School Dist v LeRoy Twp Supervisor, 146 Mich App 515; 382 NW2d 172 (1985).

While at the present time the Michigan Court Rules of 1985 do not contain an express provision either authorizing or forbidding the appointment of a special master by the circuit court, in our view, the court possesses such inherent authority. As long as the court’s judicial function has. not been abdicated, we would hold there is no express or implied prohibition to the appointment of a special master by the circuit court.

Our position was shared by the Supreme Court, although in dicta, in Detroit Trust Co v Mason, 309 Mich 281, 309-310; 15 NW2d 475 (1944): Plaintiff on appeal further contends that the court had no right to appoint a friend of the court to attempt to obtain a loan from the R. F. C. Mortgage Corporation or, later, to solicit bids higher than the Jefferson Standard proposal in order to obtain more for the bondholders. . . . There is authority for the appointment and payment of a friend of the court who aids in the performance of certain labors and examinations.

See 3 CJS p 1048; 2 Am Jur p 679[]; In re St Louis Institute of Christian Science, 27 Mo App 633 [1887]; Mumma’s Estate, 2 Pa Dist 592 [Orphans’ Ct, 1893]; State v Gorman, 171 Ind 58 (85 NE 763) [1908]. The question has not been frequently passed upon. We find no authority to the contrary. Similarly, in Campbell v Evans, 358 Mich 128, 131; 99 NW2d 341 (1959), our Supreme Court acknowledged: With the multitude of cases coming before our own Court, we are well aware that busy judges in other courts must frequently rely to a great extent upon the assistance of their various lieutenants. . . . ...

In fact that busy court would doubtless be paralyzed without its valuable services. It is important to bear in mind, however, that the friend of the court is not the judge (which we suspect he would be the first to concede), and that his recommendations are never to be followed blindly. They are a helpful time-saving crutch and no more. The responsibility for the ultimate decision and the exercise of judicial discretion in reaching it still rests squarely upon the trial judge. These grave prerogatives he may never delegate to others.

Detroit Trust Co, supra, and Campbell, supra, are both annotated in the current 3A CJS, Amicus Curiae, § 6, pp 428-429, which states in pertinent part: Appointment by court. In a proper case an amicus curiae may be appointed to aid the court by the performance of certain labors and examinations which are necessary to guide the court to a proper conclusion. However, it is improper to appoint an amicus curiae to assume the judicial functions of the judge, to assume a partisan attitude, or to press objections dictated by the court.

See also 3A CJS, Amicus Curiae, § 14, pp 437-438: [I]t has been held that although there may be no express statutory direction for the allowance of compensation to an amicus curiae, it is within the power of the court to allow him a reasonable compensation for his labors, and where an amicus curiae is appointed by the court to perform certain labors which may be necessary to aid the court with respect to some private litigation pending before it, he has the right to be awarded compensation for the services he may render in such capacity.

Again in dicta, the Supreme Court discussed the role of special masters in Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 644-645; 227 NW2d 736 (1975): A special master, receiver or monitor exercises the powers conferred upon him subject to the judge’s power to substitute his own independent judgment at any time for the judgment of the special master, receiver or monitor .... In addition to the above authority, we note the Supreme Court has appointed nonjudicial experts to assist it in its decision making.

Specifically, in In re Apportionment of State Legislature — 1982, 413 Mich 96, 143; 321 NW2d 565 (1982), the Supreme Court appointed Bernard J. Apol, former Director of Elections, to supervise the drawing of legislative redistricting and reapportionment. Further, in Durant v State Bd of Ed, 424 Mich 364, 394; 381 NW2d 662 (1985), and Durant v Michigan, 456 Mich 175, 185-186; 566 NW2d 272 (1997), the Supreme Court suggested the Court of Appeals appoint a special master to assist this Court in fact finding.

Presuming, therefore, the inherent authority of the circuit court to appoint a special master, we note in the present case that the trial court specifically disclaimed any intention to delegate judicial functions to the special master. During the April 23, 1997, hearing regarding the motion to show cause, the Honorable Fred M.

Mester emphasized the need for the special master and acknowledged the court’s duty not to abdicate judicial responsibilities to the special master: The Court will also state that the prosecutor in the very beginning of this case — they’re the ones that filed the case — it was alleged at the very beginning that there were hundreds of aggrieved individual [sic] who needed immediate attention, immediate access to certain assets of Beck-with Evans because those assets may be dissolved by the actions of the assignee for the benefit of Trustee of Beck-with Evans and the other defendants.

The prosecutor asked for immediate action immediate help by this Court. The Court advised the prosecutor and the parties at that time that because of the size of this case the prosecutor himself said [he] is going to be involved subject to the notification of each client that was going to be involved; the time that was going to be involved. The Court said that in order to help the Prosecutor, to help these individuals, claimants of Beckwith Evens [sic] that it would have a special master appointed to assist the Court.' The Court delegated no judicial function to the special master.

Consistent with this acknowledgment of the trial court’s ultimate responsibility, the order appointing the special master in fact provides that the proposed findings of fact and conclusions of law to be drafted by the special master are mere recommendations to the court. If either side objects to the recommendations, the trial court is responsible to issue its findings of fact and conclusions of law. With regard to the other tasks of the special master, we find no delegation of judicial authority in view of the oversight and power of review retained by the trial court. Compare Campbell, supra at 131.

Therefore, because in the present circumstances the special master’s powers are limited and not a delegation of the judicial function and in view of the general inherent power possessed by the circuit court, we would affirm were it not for the precedentially binding decision of Carson, supra. MCR 7.215(H)(2). Reversed. Holbrook, Jr., J., concurred. MRE 706 states in pertinent part: (

a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed-upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act.

A witness so appointed shall be informed of the witness’ duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

Const 1963, art 6, § 1 provides: The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.

Const 1963, art 6, § 27 states: “The supreme court, the court of appeals, the circuit court, or any justices or judges thereof, shall not exercise any power of appointment to public office except as provided in this constitution.” For the sake of uniformity, we urge our Supreme Court to adopt a special master court rule similar to FR Civ P 53. We note that in response to Carson, supra, the representative assembly of the State Bar of Michigan proposed a special discovery master court rule, MCR 2.317.

To date, however, the Supreme Court has taken no action on the state bar’s recommendation. 2 Am Jur, Amicus Curiae, § 2, p 679, provides: The term [amicus curiae] includes persons, whether attorneys or laymen, who interpose in a judicial proceeding to assist the court by giving information or otherwise, or who conduct an investigation or other proceeding on request or appointment therefor by the court. See also Id., § 8, p 682: Compensation. Ordinarily, no compensation is sought for at the hands of the court by an amicus curiae.

Nevertheless, it has been held that the court has inherent power to award compensation to an amicus curiae, to be paid by the party whose acts made his appearance necessary for the information of the court.