5/7/07

The State Bar of Michigan applauds the decision of the Michigan Supreme Court in Apsey v. Memorial Hospital, released May 1.

The Apsey decision overturned a 2005 Michigan Court of Appeals judgment holding that signatures on out-of-state documents filed in a Michigan court must be certified by an out-of-state notary and the notarization itself must be certified by the clerk of a court within the notary's county.

State Bar President Kimberly M. Cahill welcomed the decision. "The State Bar of Michigan pursued a response to the ruling in Apsey v. Memorial Hospital as a top public policy priority, and is very gratified that the Supreme Court has removed this senseless barrier to access to justice."

The Court of Appeals decision was unexpected for several reasons. It was based on an 1879 provision that had not been used for many decades and was reasonably believed by both plaintiff and defense lawyers to have been rendered moot by subsequent enactments of the legislature. No evidence was offered of problems with out-of-state notarizations, and the requirement of additional certification by the county clerk of the court was impossible in at least 24 states and the District of Columbia.

Michigan protects against the filing of improper or false documents in court in several ways. Documents must be signed, affidavits must be verified by oath or affirmation, and a person who knowingly makes a false declaration may be required to pay the opposing party reasonable expenses and may even be held in contempt of court. Also, for medical malpractice cases since 1986, Michigan requires that patients intending to sue, as well as the medical professionals who are the subject of the lawsuit, sign a notarized affidavit stating the opinion of a qualified health professional before the case begins. The point of notarization is to certify that the signature of the health professional is valid. Notarizing a document does not and cannot validate the merit of the affidavit. For more information visit http://www.michbar.org/publicpolicy/pdfs/apseyposition.pdf.