STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF GENESEE

Transcription

1 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF GENESEE JOHN J. GLEASON, GENESEE COUNTY CLERK/REGISTER OF DEEDS in his official capacity as an elected official, Plaintiff/Petitioner, CASE NO CL Hon. Donald E. Shelton v. COUNTY OF GENESEE, STATE OF MICHIGAN, Defendant/Respondent. Matthew T. Smith (P46754) CELESTE D. BELL (P41453) Travis W. Weber (P75397) CLARK HILL PLC Interim Corporation Counsel ANDREW C. THOMPSON (P67984) 212 East Grand River Ave. Assistant Corporation Counsel Lansing, Michigan (517) Genesee County Corporation Counsel 1101 Beach S t., Room 317 Attorneys for Plaintiff/Petitioner Flint, Michigan (810) Gary P. Gordon (P26290) Jason T. Hanselman ( P61813) DYKEMA GOSSETT PLLC 201 Townsend Street, Suite 900 Lansing, MI Telephone: (517) Facsimile: (517) Attorneys for Defendant/Respondent DEFENDANT/RESPONDENT COUNTY OF GENESEE S ANSWER TO PLAINTIFF/PETITIONER S COMPLAINT/PETITION FOR APPOINTMENT AND PAYMENT OF COUNSEL NOW COMES the Defendant/Respondent, the County of Genesee, by and through its attorneys, Celeste D. Bell, Interim Corporation Counsel, and Andrew C.

2 Thompson, Assistant Corporation Counsel, and Dykema Gossett PLLC, and do hereby res pond to Plaintiff/Petitioner s Complaint/Petition as follows: 1. Defendant/Respondent (the Respondent ) admits the allegations contained in Paragraph 1 of the Plaintiff/Petitioner s (the Petitioner ) Complaint/Petition (the Petition ). 2. Respondent states that it lacks the knowledge or information sufficient to form a belief as to the truth of Petitioner s belief regarding his constitutional duties or obligat ion as alleged in Paragraph 2 of the Petitioner s Respondent denies all remaining allegations of this Paragraph. 3. Respondent denies that Petitioner has requested legal assistance from the duly appointed corporation counsel, Celeste Bell ( Bell ), for the Respondent, for the reason that Bell is appointed as the Interim Corporation Counsel. Respondent admits the remaining allegations contained in Paragraph 3 of the 4. In response to this Paragraph, Respondent contends that the document speaks for itself. Respondent further denies any statement or implication contrary to the document, and other allegations contained in Paragraph 4 of the 5. Respondent admits that as of July 16, Bell had not responded to Petitioner s letter and that Plaintiff sent a second letter. Respondent contends that the document speaks for itself. Respondent further denies any statement or implication contrary to document, and other allegations of Paragraph 5 of the 6. Respondent admits that Bell sent an response to the Petitioner on July 17, 2013, and that said speaks for itself. Respondent denies any statement or implication contrary to document, and other allegations of Paragraph 6 of the 2

3 7. Respondent denies Paragraph 7 of the 8. Respondent states that it lacks the knowledge or information sufficient to form a belief as to the truth of the allegations regarding Petitioner s use of legal counsel contained in Paragraph 8. Respondent denies all remaining allegations of this Paragraph. 9. Respondent admits that, as stated in Bell s of July 17, 2013, a conflict exists that would preclude the Office of Corporation Counsel to represent his office in an action against Genesee County. Respondent denies any remaining allegations contained in Paragraph Respondent admits the allegations contained in Paragraph 10 of the 11. Respondent admits that, in the context of a pending lawsuit in which the Petitioner is a defendant, Bell has acknowledged to the Petitioner his need for counsel and Genesee County s obligation pursuant to MCL to employ counsel to represent him. Respondent denies any further statement or implication alleged in Paragraph 11 of the 12. Respondent denies all allegations contained in Paragraph 12 of the 13. Respondent denies that Petitioner has any authority to pay for legal services out of his budget or to initiate a lawsuit in his official capacity as Genesee County Register of Deeds. Respondent admits that, if he were to do so, it would certainly exacerbate circumstances of his department, which he claims is underfunded. Respondent denies any further allegations contained in Paragraph 13 of the 3

4 14. Respondent admits that resolution of the budgetary issues between the Petitioner s office and the Genesee County Board of Commissioners is of public interest and benefit to the residents of the County. Respondent denies any further allegations contained in Paragraph 14 of the 15. Respondent pleads no contest to Paragraph 15 of the 16. Respondent states that it lacks the knowledge or information sufficient to form a be lief as to the truth of the allegations contained in Paragraph 16 of the In addition, see Respondent s response to Paragraph Respondent states that it lacks the knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 17 of the In addition, see Respondent s response to Paragraph Respondent denies the allegations of Paragraph 18 of the 19. Respondent denies the allegations contained in Paragraph 19 of the 20. Respondent denies the allegations contained in Paragraph 20 of the In further response, initiating litigation in his official capacity as Register of Deeds exceeds Petitioner s statutory authority and is an ultra vires act. 21. Respondent denies the allegations contained in Paragraph 21 of the 22. Respondent admits that Petitioner, just as any county department head, may be forced to request overtime in the upcoming budget year. Respondent denies that such a request will automatically further exacerbate the county or department s 4

5 financial situation, and further denies any other allegation or implication contained in Paragraph Respondent admits the allegations contained in Paragraph 23 of the 24. Respondent denies Paragraph 24 of the 25. Respondent admits that an affidavit is attached to the Petition, but denies that the document accurately and truthfully presents the situation. September 12, 2013 BY: Celeste D. Bell (P41453 ) Interim Corporation Counsel cbell@co.genesee.mi.us Andrew C. Thompson (P67984) Assistant Corporation Counsel athompson@co.genesee.mi.us Attorneys for Defendant County of Genesee 1101 Beach Street, Room 317 Flint, MI (810) AFFIRMATIVE DEFENSES NOW COMES the Defendant/Respondent, the County of Genesee, by and through its attorneys, Celeste D. Bell, Interim Corporation Counsel, and Andrew C. Thompson, Assistant Corporation Counsel, and to set forth its Affirmative Defenses, states as follows: 1. Petitioner lacks statutory authority to initiate litigation and therefore lacks standing to bring this case. Hertel v Mortgage Electronic Registration Systems, Inc., 5

6 Case No. 1:12-cv RHB (May 3, 2013) (Attached as Exhibit A) ( Michigan statutes expressly define the powers of registers of deeds, Mich. Comp. Laws , but no statute authorizes a register of deeds to file lawsuits. ); Citizens for Protection of Marriage v Bd of State Canvassers, 688 NW2d 538, 541 (2004) ( An agency has no inherent power. Any authority it may have is vested by the Legislature, in statutes, or by the Constitution). 2. Recovery of attorney fees is permitted only where expressly authorized by statute or court rule, and no relevant statute or rule applies here. 3. No emergency situation exists that supports the Petitioner s hiring of independ ent counsel, nor does any situation exist that supports Petitioner s hiring of independent counsel at county expense. 4. Respondent has no clear duty to compensate Petitioner s counsel. 5. The doctrine of pressing necessity relied upon by the Petitioner was overruled in Warda v. City Council of the City of Flushing, 472 Mich 326, 332; 696 N.W.2d 671, 676 (2005). 6. Because Petitioner seeks to compel the Genesee County Board of Commissioners to act, the proper cause of action is a complaint for mandamus, which Petitioner did not properly plead. 7. Respondent reserves the right to assert additional defenses as may become apparent through additional investigation and discovery. WHEREFORE, Respondent states that Petitioner s claims against Respondent should be dismissed with prejudice, that all of the Petitioner s requested relief be denied, and that the Court award any other relief that it deems just and equitable. 6

7 September 12, 2013 BY: Celeste D. Bell (P41453 ) Interim Corporation Counsel cbell@co.genese e.mi.us Andrew C. Thompson (P67984) Assistant Corporation Counsel athompson@co.g enesee.mi.us Attorneys for Defendant County of Genesee 1101 Beach Street, Room 317 Flint, MI (810)

8 PROOF OF SERV ICE The undersigned certifies that a true copy of the following: Defendant/Respondent s Answer to Plaintiff/Petitioner s Complaint/Petition was served upon the following attorney(s), by mailing the same to them at their business addresses, with postage fully prepaid thereon, on September 12, 2013: Matthew T. Smith (P46754) Clark Hill PLC 212 East Grand River Ave. Lansing, MI I declare that the statements above are true to the best of my information, knowledge and belief. Mary Seymour 8