Freedom of Information Act (FOIA) claim against the Michigan Department of Treasury; Federal preemption of state law; Ter Beek v Wyoming; Whether the notice requirement of MCL 600.6431(2)(d) was preempted by the notice requirement of 28 USC § 1746; Statutory interpretation; Comparing Brown v Chipotle Servs, LLC (MO App), Baker v State (MO App), Hickerson v State (MS App), & Toledo Bar Ass’n v Neller (OH)

The court held that because the notice requirement of 28 USC § 1746 only applies to federal proceedings, and the notice requirement of MCL 600.6431(2)(d) only applies to state proceedings, the verification language in MCL 600.6431(2)(d) does not conflict with § 1746. Thus, the Court of Claims did not err by dismissing plaintiff’s claim for failure to comply with the requirement set forth in MCL 600.6431(2)(d). Plaintiff filed a complaint against defendant seeking relief under the FOIA, but did not sign the verification pursuant to MCL 600.6431(2)(d). It claimed compliance was not required because MCL 600.6431(2)(d) was preempted by the verification standards in § 1746. The Court of Claims disagreed and dismissed the complaint for failure to comply with MCL 600.6431(2)(d). On appeal, the court rejected plaintiff’s argument that the Court of Claims erred by finding the notice requirement in MCL 600.6431(2)(d) was not preempted by § 1746. “Here, the law in question is a law of the State of Michigan, not of the United States. As a result, 28 USC 1746 does not apply to laws passed by the State of Michigan.” The court also rejected its claim that “because the phrase ‘any rule, regulation, order, or requirement made pursuant to law’ in 28 USC § 1746 does not specify that it is limited to federal law, [the court] should construe the word ‘law’ in ‘made pursuant to law’ to mean any law, state or federal.” Here, it was “evident in context that where the federal statute refers to ‘any law of the United States or . . . any rule, regulation, order, or requirement made pursuant to law,’ the words ‘requirement made pursuant to law’ mean requirement made pursuant to United States law.” Further, a court “‘should avoid a construction that would render any part of the statute surplusage or nugatory.’” Plaintiff’s interpretation that “‘requirement made pursuant to law’ includes state law—would render the words ‘of the United States’ in the prior clause surplusage, since Congress would have no need to specify ‘of the United States’ were its intent to include all law. Finally, there is ‘a strong presumption against preemption of state law,’ and to the extent the statute is ‘susceptible of more than one plausible reading,’ we should ‘accept the reading that disfavors pre-emption[.]’ Taken together, these principles” confirmed that § 1746 “does not apply to verification requirements under Michigan law.” Affirmed.