In June 2021, a man filed a medical malpractice suit against a hospital and several doctors. Since the facts complained of had occurred in 2014, the defendants argued that plaintiff’s complaint was barred by the applicable six-year statute of repose.

On the contrary, plaintiff argued that their complaint was timely because the statute of repose had been extended inter alia by AO 2020-3, i.e., an order issued by the Supreme Court of Michigan under which the period from 10 March 2020 until 20 June 2020 should have been excluded from the computation of time under the statute of repose. Indeed, the order extended “all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency”. In their observations in reply, the defendants alleged that the Supreme Court did not have the constitutional authority to issue order AO 2020-3 and that the latter order was unconstitutional.

By judgment of 1 June 2023, the Court of Appeals of Michigan sided with the defendants and found that order AO 2020-3 was unconstitutional since it constituted an “intrusion of judicial power into the legislative realm”. According to the Court, the scope of that order was not that of “addressing the practice and procedure in all courts of the state” – something that the Supreme Court could have done – but instead the order drastically altered “the legislatively-enacted statutes of limitation and repose (and related tolling provisions), and it accordingly impermissibly and unconstitutionally intruded on the Legislature's sole and exclusive authority to determine the substantive law of the state of Michigan”.

The issue of the constitutionality of the order issued by the Supreme Court of Michigan had already been addressed in January 2023 by a different composition of the Court of Appeals of Michigan, which had found that the order addressed “plainly a procedural matter” and, in addition, it lessened the amount of in-person interactions at courts during the early stages of the pandemic”, something that the Supreme Court had the authority to do (see Carter v. DTN, Court of Appeals of Michigan, 26 January 2023). In its most recent decision, the Court of Appeals of Michigan openly stated that the above case was wrongly decided.

Should the judgment be appealed, the Supreme Court would have to settle the conflict between the two interpretations offered by the appeal court’s decisions.

Reference: Compagner v. Burch, 1 June 2023, Court of Appeals of Michigan.

Full text of the decision available at en