Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  May 26, 2006                                                                          Clifford W. Taylor,
                                                                                                Chief Justice

  130541                                                                              Michael F. Cavanagh
                                                                                      Elizabeth A. Weaver
                                                                                             Marilyn Kelly
                                                                                        Maura D. Corrigan
  LEGAL AID & DEFENDER ASSOCIATION,                                                   Robert P. Young, Jr.
  INC.,                                                                               Stephen J. Markman,
                                                                                                     Justices
            Plaintiff,
  v        	                                               SC: 130541
                                                           Wayne CC Family Division:
                                                           03-015,442 and 03-416,483
  WAYNE COUNTY CIRCUIT COURT,

          Defendant. 


  _________________________________________/

          On order of the Court, the complaint for superintending control is considered, and
  relief is GRANTED in part. We direct the Chief Judge of the Wayne Circuit Court to
  enter a written order disposing of the plaintiff’s October 1, 2004 motion for attorney fees
  within 28 days after the date of this order. If the court determines that the plaintiff is due
  compensation, the court will include the amount due in its written order.

         CORRIGAN, J., dissents and states as follows:

          I respectfully dissent from the order granting in part plaintiff’s complaint for
  superintending control. I would deny the requested writ of superintending control
  because defendant Wayne Circuit Court Chief Judge Mary Beth Kelly has not violated a
  clear legal duty.

          The underlying matter involves legal fees allegedly due under a contract for
  plaintiff Legal Aid & Defender Association to provide legal services to indigent
  juveniles. Plaintiff filed a motion for fees allegedly owed to it. The chief judge stated
  that the matter could be resolved by contract negotiations. The chief judge then launched
  those negotiations.

         I am extremely troubled that while plaintiff was participating in those contract
  negotiations, it sought superintending control against the chief judge, failed to serve the
  chief judge, and failed even to advise the chief judge during negotiations that it was
  seeking superintending control.
                                                                                            2

                                    I. Procedural Defects

        As required by MCR 3.301(C), plaintiff allegedly completed service of process on
defendant of its complaint for superintending control. Plaintiff’s proof of service did not
satisfy the requirements of MCR 2.104.1 Plaintiff’s proof of service did not establish the
essential facts of service, such as the manner, time, or place of service. Defendant attests
that she was not personally served and that no one in her office received plaintiff’s
complaint. Defendant learned that plaintiff sought superintending control from the State
Court Administrative Office, although plaintiff and the circuit court’s representatives had
participated in at least one negotiating session involving this very dispute after plaintiff
sought superintending control in this Court.

                                    II. Underlying Facts

        The circuit court contracted for plaintiff to provide legal representation to indigent
juveniles involved in delinquency or neglect proceedings. That contract ran from
October 1, 1999, through September 30, 2001. After the contract expired and at the
circuit court’s request, plaintiff agreed to continue to provide representation. Plaintiff
contends that, since 2001, it has provided legal services for 1,202 cases over the 2,300-
case threshold of the prior contract. In September 2004, plaintiff filed a motion for
payment of legal fees for services rendered. At a hearing on October 8, 2004, one week
after an initial hearing, defendant apparently set a further hearing on the matter for
November 12, 2004, but no subsequent hearing occurred. On December 17, 2004,
plaintiff’s counsel inquired about the status of this motion in a letter to defendant. On
December 23, 2004, plaintiff submitted a proposed order regarding the legal fees it
sought, but the order was never entered. On March 23, 2005, plaintiff’s counsel again
inquired about the status of the motion in a letter.

       In her reply, defendant chief judge states that, over the span of the contract and for
the five years thereafter, plaintiff handled 1,881 fewer cases than would have been
required under the contract. Since September 2001, plaintiff has been paid approximately
$200,000 every month, as required under the earlier contract, through at least April 2006.

        Defendant pointed out that at the October 8, 2004, hearing, she stated that
plaintiff’s motion for fees might alternatively be resolved through a new contract with
plaintiff, rather than through adjudication.


1
    MCR 2.104(A) provides:

        Proof of service may be made by . . . (2) a certificate stating the facts of
        service, including the manner, time, date, and place of service, if service is
        made within the State of Michigan by . . . (d) an attorney for a party . . . .
                                                                                           3

       On December 21, 2005, defendant wrote plaintiff’s executive director describing
the need for contract negotiations and requesting a meeting with plaintiff. On February 7
and 27, 2006, representatives of plaintiff and the circuit court met for contract
negotiations.

       Plaintiff filed this complaint for superintending control on February 17, 2006.
Plaintiff’s representatives did not mention this complaint during either contract
negotiation session.

                                         III. Analysis

        Superintending control is an extraordinary remedy. See People v Burton, 429
Mich 133, 139 (1987) (exercising superintending control is invoking an “extraordinary
power”). Our Court employs this authority only if a “lower court failed to perform a
clear legal duty.” See Frederick v Presque Isle Circuit Judge, 439 Mich 1, 15 (1991); see
also MCR 3.302(B);2 Musselman v Governor, 448 Mich 503, 521-524 (1995), (On
Rehearing), 450 Mich 574 (1996) (refusing to issue a writ of mandamus because a lack of
constitutional authority prevented the Court from having a clear legal duty to order
disbursal of funds).

       In light of the facts described above, it is obvious that the chief judge has not
neglected this matter. Contract negotiations are ongoing about these issues in the Wayne
Circuit Court. Defendant had no clear legal duty to issue an order, which would permit
progress only through litigation. This Court’s order will short-circuit these negotiations.
Plaintiff has not demonstrated a violation of a clear legal duty on this record.

                                       IV. Conclusion

       By ordering defendant to enter an order disposing of plaintiff’s claim within 28
days, our Court essentially requires plaintiff and the circuit court to resolve this contract
matter by litigation. Defendant had no clear legal duty to issue an order because she
stated that contract discussions, rather than adjudication, might address the matter. The
chief judge has undertaken contract negotiations in which plaintiff has participated.
Thus, I respectfully dissent.




2
    MCR 3.302(B), in relevant part, provides:

         If another adequate remedy is available to the party seeking the order, a
         complaint for superintending control may not be filed.
                                                                                                        4


YOUNG, J., joins the statement of CORRIGAN, J.




                  I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
            foregoing is a true and complete copy of the order entered at the direction of the Court.
                  May 26, 2006                        _________________________________________
d0523                                                                 Clerk
