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Levin, J.
Steven Konyha seeks reinstatement with back pay as a fireman with the Mt. Clemens Fire Department.
Konyha was discharged by the chief of the department for sleeping through a roll call immediately before a change in shift.
The Mt. Clemens Civil Service Commission found this disciplinary action "justified”.
The circuit court affirmed after affirmatively resolving the propriety of the chiefs and the commission’s consideration of Konyha’s prior conduct as a fireman in determining the extent of punishment.
The Court of Appeals in an unpublished memorandum opinion affirmed stating that the "determination of defendant Commission was based upon competent, material and substantial evidence on the whole record. Const 1963, art 6, § 28.”
We hold that the firemen and policemen’s civil service act ("all charges [against a policeman or fireman] shall be void unless filed within 90 days of the date of the violation”.) precludes an appointing authority from considering uncharged allegations of employee misconduct when disciplining a fireman or policeman.
The cause is remanded to the Mt. Clemens Civil Service Commission for reconsideration of the appropriate discipline for sleeping through a roll call.
I
The act provides job security for firemen and policemen during "good behavior and efficient service”. Firemen and policemen may be disciplined, including discharge, "for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office”.
Konyha and the other men on duty had shared watches throughout the night. When Konyha’s watch terminated at 4 a.m., he awakened John Pieknik, another firefighter, to take over the watch. Konyha then did his laundry, showered, and eventually went to sleep. At 6:30 a.m. Pieknik said over the public address system: "Time to get up”, and repeated it again:
”Q. You said, 'time to get up, time to get up?’
"A. Yes.”
Konyha testified he did not hear this wakeup call.
A lieutenant sleeping in the dormitory testified that he was awakened by the public address system; he was not asked, and did not say, whether he attempted to awaken Konyha.
When Konyha failed to report at 7 a.m. for the roll call, the chief and the lieutenant went to awaken him. The chief testified that Konyha, upon being awakened, admitted that he had heard the wakeup signal and then went back to sleep. The commission asserts that this "admission” indicates "willful” misconduct.
Konyha’s infraction occurred on August 28, 1970. The chief, on September 25, after "quite a period of consideration”, presented Konyha his "notice of discharge”. The notice characterized Konyha’s failure to be at "roll call on the oncoming and off-going platoons” as "a neglect of duty”.
Konyha had failed timely to respond to an emergency alarm due to oversleeping on April 2, 1970. He was formally charged and disciplined with a two-day suspension.
The September 25 notice of discharge charges that Konyha’s failure to respond to the roll call on August 28, together with the previous oversleeping charge, "exhibits a pattern on Mr. Konyha’s part which endangers the lives and properties of the citizens of Mount Clemens and also his fellow firefighters”.
The chiefs discharge of Konyha and the commission’s validation of his action were not based solely on the specifications of the charge. Konyha had been with the department for three years and the chief considered his "whole file”, "his whole record” in reaching his decision.
Apart from the April, 1970 suspension, Konyha had neither been charged nor disciplined for any of these other purported incidents. Allegedly, on June 18, 1969, a little over a year before the August 28 incident, Konyha had slept through another roll call. Although the chief wrote Konyha a letter concerning the incident, formal charges were not filed. The chief, with the benefit of hearsay, also testified to other instances of Konyha oversleeping: "I had been informed, though, that Mr. Konyha was sleeping right up to roll calls and through roll calls by his officer in charge at that time”.
It appears that the chiefs discharge of Konyha was predicated not only on this particular missed roll call and the earlier infraction, but rather was motivated by a general dissatisfaction — not charged — with Konyha’s performance. Konyha had failed to achieve a step increase given those "showing normal progress”. His advance was delayed "because of his lack of initiative and lack of performing his duties here in the station.”
Konyha’s counsel continually objected to introduction and consideration of testimony regarding alleged incidents and matters not included in the charge and, citing the statute, objected to testimony about uncharged incidents more than 90 days old.
The City Attorney argued the propriety of considering Konyha’s entire performance as a fireman: "It is not a single incident. It is a group of activities. * * * I don’t feel that the Civil Service Act prevents the overall conduct of an employee from coming to the attention of a Civil Service Commission merely because there was no complaint or no specific charge filed with the Civil Service Commission. * * * The nature of the discipline is dependent upon the overall behavior of the respondent, as of necessity it must be. * * * He’s being disciplined, he’s being disciplined on the basis of his overall conduct as a fireman.”
The chairman of the commission ruled the testimony admissible: "I think that the entire record of the man, as far as his performance of the duties of a fireman, have to go to the final determination by the chief’.
II
The statute reads:
"Provided, however, no member of any fire or police department within the terms of this act shall be removed, discharged, reduced in rank or pay, suspended or otherwise punished except for cause, and in no event until he shall have been furnished with a written statement of the charges and the reasons for such actions, and all charges shall be void unless filed within 90 days of the date of the violation, except in the case of a probationer, whose violations may accumulate for the probationary period.” (Emphasis supplied.)
The circuit court construed this language as a statute of limitations prohibiting the bringing of charges for infractions more than 90 days old. The commission contends that earlier charges are void only to the extent that they "cannot be used to prove present charges” but are viable and "relevant in determining [the] penalty that should be imposed for a proven violation”.
The purpose of the act is to provide job security for policemen and firemen. Discipline may not be imposed because of vague misgivings about performance. Discipline is justified only "for cause”. A written statement of charges and the reasons for the disciplinary action must be furnished. The appointing/removing authority bears the burden of justifying its action.
Permitting consideration, for the purpose of assessing punishment, of charges not brought within 90 days would expose policemen and firemen to discharge for any infraction of any rule. Whenever there is an adjudicated violation — and almost everyone can be found guilty of violation of some rule or regulation — the appointing/removing authority could "justify” any discipline, including discharge, on the basis of the offender’s "whole file”.
The statutory language and legislative purpose renders the sentencing analogy inapposite. Permitting an appointing/removing authority to justify the imposition of discipline on the basis of the "whole file” — not charged and which could not be charged because antedating 90 days — would be to allow it to say one thing and do another; that is, to allow it to say that Konyha was discharged for missing the roll call but, since discharge is clearly excessive and cannot be "justified”, to allow it to in fact discharge him because of general dissatisfaction with his performance, in derogation of his legislatively granted job security.
Ill
The circuit court relied on Town of West New York v Bock, 38 NJ 500; 186 A2d 97 (1962) as supporting the commission’s consideration of Konyha’s "whole file”. Bock, a fireman, was formally charged with tardiness on three separate, but recent (within the preceding three to four weeks) instances. Evidence was presented of prior instances of tardiness. In some, Bock was charged, his guilt determined and punishment assessed while, in others, "some trivial, some serious”, the charge had not been adjudicated or substantiated. On review, Bock’s discharge by the appointing authority was reduced to 15 months suspension by the commission and further lowered to 6 months by an appellate court.
In considering the town’s appeal challenging the insufficiency of the six-months suspension — Bock did not cross-appeal — the New Jersey Supreme Court stated that an employee’s "past record”, although inadmissible to "prove a present charge * * * may be resorted to for guidance in determining the appropriate penalty for the specific offense”.
Significant statutory differences preclude our relying on the New Jersey Court’s dictum. The Bock Court did not construe a statute that renders void "all charges” not "filed within 90 days of the date of the violation”. The pertinent New Jersey statute provided that the Civil Service Commission hearing "shall be for the purpose of fairly determining whether the employee involved, by reason of his act as charged and his record of service, merits continuance therein or should be removed therefrom or otherwise disciplined for the good of the service”. (Emphasis supplied.)
IV
In Brown v Department of State Police, 392 Mich 811 (1974), we set aside the discharge of a trooper from the State Police because of procedural error, adding "[discharge was manifestly an excessive and arbitrary discipline unjustified on this record” and remanded to the Civil Service Commission "for establishment of an appropriate disciplinary suspension”.
One can appreciate the chiefs concern that an oversleeping firefighter, causing even the slightest delay in an emergency situation, may jeopardize the safety of the community and of his fellow officers. It does not follow, however, that Konyha’s failure to be present at this routine roll call impaired the safety of anyone or is sufficiently indicative of potential impairment of safety to justify this extreme punishment.
The failure to distinguish between no response to an emergency call and no response to a roll call ignores a practical distinction; the noise emanating from an emergency call is significantly louder and different in urgency than "Time to get up, time to get up” over a public address system of uncertain volume.
Konyha had been suspended for 2 days for failing timely to respond to an emergency alarm. The instant charge, sleeping through a non-emergency roll call, even when viewed together with the prior infraction, does not justify discharge.
Other firemen had missed roll calls. Konyha was the first to be discharged for that delinquency.
We remand to the Mt. Clemens Civil Service Commission to determine a proper period of suspension for Konyha and to award him the back pay to which he is entitled.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, Williams, and M. S. Coleman, JJ., concurred with Levin, J.
J. W. Fitzgerald, J., did not sit in this case.
MCLA 38.514; MSA 5.3364; requires the "removing officer” to "justify” his disciplinary action at a hearing before the Civil Service Commission.
Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 449 (1971); Peterson v Department of Natural Resources, 392 Mich 68; 219 NW2d 34 (1974).
MCLA 38.514; MSA 5.3364.
MCLA 38.514; MSA 5.3364.
Konyha denied making that statement. He testified that he only told the chief that he should not have gone to sleep after finishing his chores because he was a heavy sleeper. The lieutenant could not verify the statement attributed by the chief to Konyha because, according to the chief, the lieutenant left as soon as they saw Konyha in bed and was not present for the statement.
The charge improperly states that Konyha had been awakened by the lieutenant and had then gone back to sleep. The chief testified that the lieutenant told him that he, the lieutenant, had awakened Konyha, but subsequently told him that was not true.
MCLA 38.514; MSA 5.3364.
The court cited two other cases. Both (NLRB v Harrah’s Club, 403 F2d 865 [CA 9, 1968] and Local No. 1424, International Association of Machinists v NLRB, 362 US 411; 80 S Ct 822; 4 L Ed 2d 832 [I960]) concern a six-month statute of limitation for filing unfair labor practice charges under the NLRA and are not relevant.
Severest punishment — 15-day suspension.
71 NJ Super 143; 176 A2d 527 (1961).
Bock’s "past record” was not considered. The adequacy of the suspension was judged solely on the then charged three instances of tardiness.
"There was no adjudicated disciplinary action more recent than one occurring approximately 7 years before the hearing. There was no proof that the log entries of prior tardiness had been admitted by him. And, there was no competent evidence of any recent warnings. So the case must stand, with respect to penalty, only on Bock’s guilt of the three instances specifically charged.” Town of West New York v Bock, 38 NJ 500, 524; 186 A2d 97, 110 (1962).
RS 11:15-5, NJSA — This statute pertained to state employees, not municipal employees. The Court was uncertain whether it applied to municipal employees by incorporation. It went on to say that whatever the applicability of the statute "consideration of past record is inherently relevant.” 38 NJ at 523; 186 A2d at 109. | [
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Williams, J.
(to reverse). I concur in the result reached by my Brother Levin but do not agree that the discussion in the introductory matter or Sections I, II, and III of his opinion is necessary to reaching the proper result in this case.
As my Brother Levin notes, this Court stated less than three years ago in People v Martin, 386 Mich 407, 425; 192 NW2d 215 (1971):
"We conclude that a psychiatrist who conducts such a forensic psychiatric examination may not be called to testify in the criminal triál if there is an objection to the admission of such testimony by defendant.”
There is no need to consider whether this is a correct or incorrect interpretation of MCLA 767.27a(4); MSA 28.966(H)(4), inasmuch as in the instant case, as my Brother Levin points out, there is a clear waiver of the statute on the record. Defense counsel made specific reference to the Forensic Center competency diagnosis in the questioning of their own expert witness, Dr. Miller. The defense introduced a videotape of defendant’s sodium brevital examination at the Forensic Center. The defense introduced into evidence the Forensic Center file.
My Brother Levin contends that the waiver of the statute is not a waiver of the testimony of the psychiatrists in question because there is a "separate Martin -declared statutory right to prevent” such testimony. The Martin rationale is: There is only one statute and one statutory right. There is no "separate Martin -declared statutory right”. Without the statute there is no right; with the statute there is no reference to the competency transaction, and this includes reports, recommendations and examining psychiatrist or psychiatrists. As a consequence waiver of the statute waives all.
This finding of statutory waiver resolves this case and obviates the necessity of this Court reviewing the above analysis in Martin. I agree fully, therefore, with Section V of Justice Levin’s opinion on waiver. I would not, however, go further in obiter dicta to discuss aspects of this case involving constitutional issues where there is no necessity to do so.
Accordingly, I concur in my Brother Levin’s disposition of this case. The Court of Appeals is reversed; the defendant’s conviction is affirmed.
T. M. Kavanagh, C. J., and Swainson and M. S. Coleman, JJ., concurred with Williams, J.
Of interest is that defendant’s brief convincingly argues that the testimony of two psychiatrists in question cannot be disassociated from the statutorily prohibited report.
Sandra Garland left home a few days before her death. She explained in a long note to her family her reasons for leaving. A college student, she wanted to be financially independent and live with friends near campus. She expressed love for her family and the belief that she would always be welcome at home.
Her father’s frantic search for her began immediately. He worked long hours from late afternoon to early morning and spent his days searching for Sandra. At least twice he visited the apartment house where Sandra was living, but he did not find her.
When his wife failed to persuade Sandra to return home, Garland put two handguns in his belt and a rifle in his car, and proceeded to his daughter’s apartment building. A flashlight in hand, he broke down the door of the apartment where Sandra was sleeping. When he saw a young man in bed with her, he drew the gun from his belt intending, he said, to strike him. Instead, the gun accidentally discharged, killing his daughter. Within minutes, three other people in the apartment had been shot. Garland then sought his daughter’s roommate but, unable to find her, he drove to a police station and made a full confession. | [
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M. S. Coleman, J.
Defendant appeals the decision of the Court of Appeals affirming his conviction for possession of heroin. See 46 Mich App 322; 208 NW2d 70 (1973). We conclude that under the facts of this case, the initial stop of the automobile in which defendant was a passenger was without a reasonable basis. Because all else flowed from this initial stop, defendant’s conviction is reversed. The case comes to this Court after defendant has been released from prison and is on parole.
On October 27, 1969 a Saline police officer "observed a black 1963 Ford 2-door traveling west on Michigan Avenue at 3 a.m. in the morning”. There were "four or five” occupants. The Ford traveled through the center of the city at the proper 25 mph speed with the officer following. It proceeded through a 35-mph zone at the same speed and continued at 25 mph into the 45-mph zone. The officer testified that he followed the automobile about one and one-half miles "[d]ue to the appearance of the occupants, they did appear young”. He estimated them to be "16 to 18 years old, possibly younger.”
After the automobile left the city limits, it was stopped by the officer. The reasons for the stop are summarized in this conversation between the court and the officer:
"The Court: Let me satisfy myself, if I may, on this. As I understand your testimony then, Officer, you are saying that the reason or reasons that you stopped this vehicle were two; first, that the vehicle was travelling at a speed of 25 miles per hour in a 25 [sic] mile an hour zone; secondly, that the age of the occupants of the vehicle as you observed them led you to suspect that one or more of them might be under the curfew age then in effect for the City of Saline, is that correct?
"A. Yes, sir, also for safety’s sake, the occupants, they were travelling slowly, a possibility they were sleeping or ill.”
As the officer approached the automobile, the driver rolled down the window. The officer "detected a strong odor of marijuana coming from the vehicle or suspected marijuana.” The officer called for assistance and when it arrived the occupants of the automobile were ordered to line up outside the car. While one officer searched the car, the other noticed defendant throw an object into a field. It was retrieved and ultimately found to contain 2/ lOOths of a gram of heroin.
Defendant claims error in allowing the officer’s testimony concerning the marijuana smell in the car. He also claims error in the judge’s failure to instruct the jury that they had to find a usable amount of heroin or the remnants of a usable amount to sustain the verdict of possession of narcotic drugs. Defendant further argues that the stop was improper under these circumstances and that the testimony and evidence should be suppressed because all else flowed from this stop.
It is the latter issue to which we address ourselves.
In People v Whalen, 390 Mich 672; 213 NW2d 116 (1973), this Court clearly expressed the rules which "apply today with respect to stopping, searching and seizing of motor vehicles and their contents”:
"1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.
"2. Said reasonableness will be determined from the facts and circumstances of each case.
"3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.
"4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police.”
We recognize the enormity of the problem of narcotics control and the difficulties inherent in the apprehension of offenders. There is necessarily some conflict between the need to apply realistic standards of law enforcement in such cases and the need to protect citizens from unreasonable intrusions into their privacy.
Here, three reasons were advanced as supporting the reasonableness of the stop. The first reason offered was that the car was going 25 mph in a 45-mph zone. Given the absence of a minimum speed requirement, erratic driving, interference with trafile or some other reason of substance, we must conclude that this alone was not sufficient to warrant a stop.
Second was a suspected violation of the Saline curfew ordinance. Although the occupants of the car were all over 16, and the curfew applies to those under 16, such a miscalculation of age might be understandable. However, the curfew prohibitions do not apply to those proceeding through the city in an automobile. It can hardly be found that these persons were loitering, idling or congregating on the streets through which they drove.
Finally, the officer who stopped the car said that he was concerned that the occupants were "sleeping or ill.” No physical observation was placed in evidence to support this concern excepting the 25-mph speed. There was no testimony indicating that the vehicle was operated in a manner posing a danger to person or property. Compare MCLA 257.626; MSA 9.2326 and MCLA 257.626b; MSA 9.2326(2) . The record does not afford sufficient indication that the reason expressed justified the stop of the automobile.
In good conscience we cannot find that, as a totality, the three stated concerns of the police provide a reasonable basis for the stop under the facts presented. Over the years, stops similar to that in this case have failed to satisfy the standards of this Court. In People v Roache, 237 Mich 215; 211 NW 742 (1927), defendant’s car was stopped by a motorcycle policeman. The officer stopped the car because he "suspected the men because they looked suspicious to me: they were watching me as I passed, as I went on the road on the motorcycle”. He also felt that "they were driving slower than an ordinary person, a person on the highway”. A search of the car disclosed that defendant was illegally transporting intoxicants. In reversing the conviction, the Court, citing language from People v Kamhout, 227 Mich 172; 198 NW 831 (1924) indicated that the facts of Boache would not lead " 'a prudent and careful person, having due regard for the rights of others’ to have reasonable and probable cause to believe that liquor was being unlawfully transported in defendant’s automobile”.
The stop in People v Stein, 265 Mich 610; 251 NW 788; 92 ALR 481 (1933), involved a taxicab in which defendant was riding. The officer’s attention was drawn by the cab’s speed ("about 32 miles per hour”) and a motion by defendant (" 'as if he was taking something out of his pocket and putting it on the seat beside him’ or behind him”). The Court said the record left "no doubt that the officers arrested defendants on general suspicion and not for a specific offense”. The conviction was reversed because the "general suspicion that, perhaps, a crime is being committed by defendants does not justify an arrest”.
No "suspicious activity” has been offered here nor any testimony providing a reasonable basis for stopping the automobile. The factual foundations for the decisions in Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968) and Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972) are not present here.
We conclude that the reasons given for the stop, considered in the totality of the circumstances, were not sufficient to warrant a stop of the automobile.
The Court of Appeals is reversed and the case is remanded for proceedings not inconsistent with this opinion.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, Williams, Levin, and J. W. Fitzgerald, JJ., concurred with M. S. Coleman, J.
See People v Charles D Walker, 385 Mich 565; 189 NW2d 234 (1971) and People v Tisi, 384 Mich 214; 180 NW2d 801 (1970).
"(b) Children under 16. No minor under the age of sixteen (16) years shall loiter, idle or congregate in or on any public street, highway, alley or park between the hours of 12:00 midnight and 6:00 a.m., immediately following, except where the minor is accompanied by a parent or guardian, or some adult over the age of twenty-one (21) years delegated by the parent or guardian to accompany the minor child, or where the minor is upon an errand or other legitimate business directed by his parent or guardian.” Saline Municipal Code, § 11-2.
This statute reads in part:
"Any person who drives any vehicle upon a highway or a frozen public lake, stream or pond or other place open to the general public, including any area designated for the parking of motor vehicles, within this state, in wilful or wanton disregard for the safety of persons or property is guilty of reckless driving.”
This statute reads in part:
"Any person who operates any vehicle upon a highway or a frozen public lake, stream or pond or other place open to the general public including any area designated for the parking of vehicles in a careless or negligent manner likely to endanger any person or property, but without wantonness or recklessness, shall be guilty of a misdemeanor punishable by imprisonment in the county jail for not more than 10 days or a fine of not more than $100.00, or both.”
Afeo see People ex rel Attorney General v Lansing Municipal Judge, 327 Mich 410; 42 NW2d 120 (1950). Compare People v Kuntze, 371 Mich 419; 124 NW2d 269 (1963); People v Gonzales, 356 Mich 247; 97 NW2d 16 (1959) and People v Zeigler, 348 Mich 355; 100 NW2d 456 (1960). | [
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Motion by defendant-appellant for bond pending appeal is granted November 21, 1974. The Wayne County Circuit Court is ordered to admit defendant-appellant Joseph Charles Merritt to bail pending determination of his appeal to this Court or until further .order of this Court. The amount of bail is set at $2,500 with sureties to be approved by the trial judge. Due notice shall be given to the prosecuting attorney of Wayne County of the time and place when said bond shall be presented for approval. Said bond shall be conditioned upon defendant-appellant’s performance of any order which shall be made in the premises and conditioned further upon defendant-appellant’s expeditious processing of his appeal.
Case below, Court of Appeals No. 14,191, memorandum opinion of April 19, 1973. | [
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Per Curiam.
We granted leave to appeal, 391 Mich 781 (1974), to consider questions raised by Livingston County’s Board of Commissioners in connection with the first collective bargaining contract settled upon by a local judiciary and its employees to be tested in this Court. We affirm earlier decisions in deciding that the bargaining parties basically utilized correct procedures, but we reach no conclusion as to the reasonableness or necessity of the contractual provisions.
On September 22, 1972, the Michigan Employment Relations Commission (MERC) certified Michigan Council 55, AFSCME, AFL-CIO, as a bargaining representative for a unit of district and circuit court employees in Livingston County. No one has challenged the appropriateness of that unit in this Court.
The bargaining representative, employees, and representatives of the judiciary then engaged in bargaining over a contract. This was to be expected, and was correct, in light of this Court’s decision in Judges of the 74th Judicial District v Bay County, 385 Mich 710; 190 NW2d 219 (1971). During bargaining, according to the complaint and answer filed in this cause, it appears that a representative of the Board of Commissioners was excluded from the bargaining room. The specific details of the reasoning behind such exclusion are not set forth. This Court believes the best practice, in general, especially at initial bargaining sessions, is for the local judiciary to invite a representative of the commissioners to appear personally at such sessions. The commissioners’ representative cannot actively bargain, of course, but such representative may present relevant data as to other county employees, e.g., wage levels for comparable jobs, provisions in other labor contracts, general county benefits, and county budget information.
The bargaining parties arrived at a contract on June 22, 1973. Circuit Judge Paul R. Mahinske issued an administrative order implementing the contract on July 16, 1973, and then on July 18, 1973, he submitted such order to the Court Administrator for approval, pursuant to this Court’s Administrative Order No. 1971-6, 386 Mich xxix. This Court affirms those actions as being correct. The order of July 16, 1973, might not in some cases be necessary, but if it is, then review by the Court Administrator becomes a step in insuring the reasonableness and necessity of the contractual provisions. It was conceded by appellants, at oral argument, that their representatives were invited to the Court Administrator’s office for a presentation of the commissioners’ views on the contract. But it appears that the commissioners did not participate in a point-by-point, clause-by-clause, discussion of the contract, as this Court hoped would be the case under Administrative Order 1971-6. The reason for such nonparticipation appears to lie with the judgment of the commissioners’ representatives, and their decision does not aid their argument that they have been denied due process of law.
Appellants now advance two basic arguments: that separation of powers has been violated, and that due process and equal protection have been denied because they have not been afforded a neutral forum in which to determine whether or not the provisions of the contract are reasonable and necessary. But the bargaining process used here does not violate the explanation of separation of powers set forth in Wayne Circuit Judges v Wayne County, 386 Mich 1; 190 NW2d 228 (1971), cert den 405 US 923; 92 S Ct 961; 30 L Ed 2d 794 (1972), and Commonwealth, ex rel Carroll, v Tate, 442 Pa 45; 274 A2d 193 (1971), cert den 402 US 974; 91 S Ct 1665; 29 L Ed 2d 138 (1971), and we continue to adhere to those precedents.
The reasonableness and necessity of such contracts are subject to review in Michigan. We already have provided for an administrative check on reasonableness through Administrative Order 1971-6. In addition, once the Court Administrator has approved a contract the Board of Commissioners may institute adversary court proceedings to test the reasonableness and necessity of the contract if it appears that the budget reflecting the contract will exceed the total appropriation. The commissioners may file suit promptly for injunctive relief in circuit court in their own county. Since the purpose of such suit would be to enjoin an administrative order of a judge of that very county, the commissioners may seek designation by the Court Administrator of a disinterested judge to decide the case on its merits. In order to expedite the settlement of disputes over wages and working conditions, any appellate review of the decision of the circuit court shall be by direct application for leave to appeal to this Court, and no writ of mandamus shall lie under Administrative Order 1971-6 until such proceedings, promptly begun and diligently pursued, are terminated.
By such holding, this Court’s intent is to afford the legislative body a neutral forum in which reasonableness and necessity may be determined after adversary hearings. This Court is aware that this procedure may prolong public employee collective bargaining, and thus may disappoint the union and its membership. This Court also is aware that the commissioners may claim that any proceeding presided over by a judge will not be a neutral forum, and thus the commissioners may also be disappointed. The Court reminds the parties, however, that the Legislature has based public employee collective bargaining in Michigan on an industrial model. Such a model contains inherent difficulties when the ultimate public employer, the voting public, has elected representatives to three separate units in order to govern itself fairly.
The Court of Appeals was correct in dismissing plaintiffs-appellants’ complaint for superintending control, and is affirmed, without prejudice to the filing by plaintiffs-appellants of an appropriate circuit court action within 20 days of the issuance of this opinion.
T. M. Kavanagh, Swainson, Williams, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred. | [
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On order of the Court, notice is hereby given pursuant to GCR 1963, 933, that the Supreme Court proposes an amendment to GCR 1963, 851, to read as follows (new matter in italics):
Rule 851. Matters Appealable to Supreme Court.
.1-3 — Unchanged.
.4 The Attorney General, where participating counsel of record or otherwise informed, shall notify the clerk of the Michigan Supreme Court whenever the constitutionality of a statute of this state is questioned in any action in the Michigan Court of Appeals or in any Federal court of appellate jurisdiction or Federal court convened pursuant to 28 USC2281.
A copy of this order shall be given to the Secretary of the State Bar of Michigan and to the Court Administrator, pursuant to GCR 1963, 933, and any comments with reference to the adoption of the proposed amended Rule 851 may be forwarded to the Chief Justice or Michigan Supreme Court Director of Legal Services on or before April 1, 1975. | [
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Ryan, J.
Defendants Duncan and McIntosh were found guilty by a jury of conspiracy to do a legal act in an illegal manner, MCLA 750.157a; MSA 28.354(1), and solicitation of a bribe, MCLA 750.505; MSA 28.773. Their convictions were affirmed by the Court of Appeals. 55 Mich App 403; 222 NW2d 261 (1974). We granted leave to appeal by order filed December 23, 1974. 393 Mich 773 (1974).
The defendants are charged with offering to return to Irving Broadnax, upon payment to them of $800, certain property held in the Inkster Police Department property room which was confiscated from Mr. Broadnax in connection with an earlier burglary investigation. The people’s principal witness was Betty Harris, a former drug addict, convicted felon, and sometime informer.
The people offered Ms. Harris’ testimony that she had acted as the go-between when defendants made their initial proposals to Mr. Broadnax. Over the objection of defendants’ counsel, Ms. Harris further testified that she had acted as intermediary between the defendants and three local drug dealers in connection with payments for protection and information on police activities.
The testimony concerning Ms. Harris’ contact with the three drug dealers was offered and received as bearing upon the defendants’ criminal intent in the transaction involving Mr. Broadnax.
I
The first issue is the admissibility of the so-called "similar acts” evidence under MCLA 768.27; MSA 28.1050, which reads:
"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts, or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
Defendants raise four points with regard to the applicability of the statute in their case.
First, they challenge the relevancy of an alleged drug protection racket to the charges of conspiracy to do a legal act in an illegal manner and solicitation of a bribe.
Despite certain factual distinctions, the common thread which connects all the incidents was the use of Betty Harris by the defendants to obtain payoffs in return for the use of their official position to protect or benefit illegal activities. The focus of the analysis is on the nature of defendants’ activities, not on the criminal acts of the persons from whom the defendants solicited bribes. The fact that the identities of the benefited criminals or the nature of the criminal activities protected varied is not a bar to the admissibility of the evidence. The prior incidents of bribery offered by the people were sufficiently similar to the bribery alleged in the information to qualify as admis sible evidence within the meaning of the statute. The statute requires "like acts”, not identical acts. See, e.g., State v Firestone, 68 Ohio App 359; 41 NE2d 277, app dism’d 139 Ohio St 216; 38 NE2d 1023 (1942), and cases collected in Anno, Admissibility, in prosecution for bribery or accepting bribes, of evidence tending to show the commission of other bribery, or acceptance of bribe, 20 ALR2d 1012, 1034-1035. But cf., People v Fiore, 34 NY2d 81; 356 NYS2d 38; 312 NE2d 174 (1974).
Defendants next challenge the materiality of the evidence.
The "similar acts” were offered to show defendants’ intent with regard to the solicitation and conspiracy. Before any proofs were offered, defense counsel’s opening statement informed the jury that "our testimony will show along with the prosecution’s testimony that there was talk of a bribe”. The proofs did show numerous conversations between Mr. Duncan, Mr. McIntosh, Ms. Harris and Mr. Broadnax in varying combinations, discussing the sum of $800 to be paid to defendants for the return of Mr. Broadnax’s property from the police station. The crucial differences in testimony were that Mr. Broadnax and Ms. Harris testified that the defendants initiated the scheme. The defendants testified that Mr. Broadnax and Ms. Harris initiated the scheme and that the defendants only went along with it so as to catch Mr. Broadnax in a crime. With regard to the conspiracy count, the evidence of the four principal witnesses showed the discussions and apparent agreement to return the property for $800. The disputed issue was the intent of the defendants at the time.
By pleading not guilty and disputing intent by their proofs at trial, defendants placed their intent in issue. People v Reading, 307 Mich 616; 12 NW2d 482 (1943); People v McElheny, 221 Mich 50; 190 NW 713 (1922). We have previously held that the prosecution may prove intent by offering evidence of a continuing course of conduct. People v Johnston, 328 Mich 213; 43 NW2d 334 (1950).
Johnston involved payments to a prosecuting attorney for protection of houses used for gambling and prostitution. Evidence of other payments to defendant for the same purpose from the same and other individuals received during the four years prior to the incident alleged in the information was held properly admitted as bearing on the issue of intent. In the case at bar the people offered three other incidents of bribery as bearing on the intent of defendants in their relations with Broadnax. The evidence of a repeated course of conduct tended to show the intent of defendants in doing the acts alleged and was therefore material and admissible under the statute.
Defendants also contend that the similar acts were not "proved” in the manner required by the statute. It is argued that although the people need not prove the alleged similar acts beyond a reasonable doubt, the proofs must at least convince the jury of the probability of the defendant’s actions. The evidence of similar acts in this case is attacked as mere uncorroborated testimony of a witness who had expressed a desire "to get the defendants in trouble”. Defendants cite People v Davis, 343 Mich 348; 72 NW2d 269 (1955), in support of their argument. We do not read the relevant language of Davis to require any further proof than was presented here. People v Allen, 351 Mich 535; 88 NW2d 433 (1958), also cited by appellants, requires only that the proofs be sufficient to convince the jury of the probability of defendants’ actions. The people were not required to offer corroboration of Ms. Harris’ testimony when she was testifying as to transactions in which she was an active participant. It was within the province of the jury to believe or disbelieve the witness.
Finally, defendants argue that the probative value of the similar acts testimony was outweighed by its unduly prejudicial impact. It is well settled that the determination of whether the probative value of similar acts testimony is substantially outweighed by its unfairly prejudicial effect is within the sound discretion of the trial judge. See People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), and authority cited therein.
Like the Court of Appeals, we recognize the potentially inflammatory impact of testimony linking police officers with narcotics dealers. However, we also recognize the relevance of this testimony as tending to show a continuing course of conduct involving payoffs. As noted by the Court of Appeals below, the trial judge carefully considered the matter and, when he concluded that the testimony could be presented to the jury, carefully controlled the proceedings and specifically in structed the jury on the permissible uses of the testimony.
We find no abuse of discretion by the trial judge in allowing the similar acts testimony to be presented to the jury in this case.
II
Defendants’ second major contention on appeal is that they were denied a fair trial because of improper argument by the prosecutor. The people’s closing argument is alleged to contain at least three instances of impropriety sufficient to require reversal.
Because no objection was made to any of the prosecutor’s closing arguments at trial, appellate review is foreclosed unless our failure to consider the issue would result in a miscarriage of justice. People v Alcala, 396 Mich 99; 237 NW2d 475 (1976); People v Hancock, 326 Mich 471; 40 NW2d 689 (1950); People v Zesk, 309 Mich 129; 14 NW2d 808 (1944); People v Connors, 251 Mich 99; 230 NW 931 (1930); People v Goldberg, 248 Mich 553; 227 NW 708 (1929); MCLA 769.26; MSA 28.1096.
We examine the prosecutor’s remarks in the context in which they were made. People v Allen, 351 Mich 535; 88 NW2d 433 (1958). The prosecutor’s remarks in this case were either proper argument based upon the evidence presented or responses to matters raised by the defendants in their proofs and closing argument. Certain of the latter remarks, although if standing alone could be seen as improper, do not constitute reversible error in this case because of their responsive nature, People v Dersa, 42 Mich App 522; 202 NW2d 334 (1972), lv den 388 Mich 803 (1972); People v Green, 34 Mich App 149; 190 NW2d 686 (1971), lv den 386 Mich 769 (1971), and because any unduly prejudicial effect could have been eliminated by a curative instruction if one had been requested upon a timely objection. People v Hall, 396 Mich 650; 242 NW2d 377 (1976); People v Omacht, 326 Mich 505; 40 NW2d 704 (1950); People v Goldberg, supra; People v Mulvaney, 171 Mich 272; 137 NW 155 (1912).
It is, of course, as much the duty of a public prosecutor to ensure that the criminally accused receive a fair trial as it is to use his best efforts to convict those guilty of crimes. However, it is also true that a well-tried, vigorously argued case ought not to be overturned due to isolated improper remarks which could have been cured had an objection been lodged. People v Hall, supra. Whether the defense strategy was to forego objection and hope that the objectionable portions of the prosecutor’s argument would engender sympathy in the jury, or to invite error as a foundation for subsequent reversal, we will not now review assignments of error so waived. Cf. Henry v Mississippi, 379 US 443; 85 S Ct 564; 13 L Ed 2d 408 (1965).
We pause to observe that the prosecutor discussed the evils of heroin trafficking in his final argument. The evidence relating to heroin and a narcotics protection racket was admitted under the similar acts statute for a very limited purpose. The discussion of the narcotics evidence in final argument was intemperate and ill-advised even though the prosecutor himself, at another point in his argument, informed the jury of the limited uses of the evidence. In this instance as well, however, defense counsel failed to object and request a curative instruction. We agree with the Court of Appeals that the prejudicial propensity of this brief but improper reference to narcotics could have been cured by a prompt objection and curative instruction. We therefore decline to reverse on this point, although the reference to the similar acts evidence in the .final argument is expressly disapproved.
Affirmed.
Coleman and Fitzgerald, JJ., concurred with Ryan, J.
On cross-examination of Ms. Harris, defense counsel obtained the names of nine other alleged drug dealers who were said to have paid defendants with Ms. Harris acting as intermediary.
In People v Davis, 343 Mich 348; 72 NW2d 269 (1955), we noted at page 365:
"While we are in agreement with defense counsel that such acts if admitted may bear on intent only if the jury is first convinced that they had been perpetrated by the accused, we are of the opinion that the charge made this point sufficiently clear. The court charged that. proof of previous difficulties may be considered as bearing upon intent and motive. He admonished the jury that they were the sole judges of the credibility of the various witnesses. Inasmuch as defendant categorically denied all of the previous acts, it was sufficiently clear that they must disbelieve him and believe the other witnesses before considering those acts as bearing on his intent. The court further said that such acts 'may be proved and may be considered.’ We think the defendant was adequately protected and no reversible error committed in this regard.”
A detailed instruction on the uses of the similar acts testimony was given upon the introduction of the testimony and in the jury charge. The following is an excerpt from that portion of the jury charge dealing with the similar acts testimony:
"Now, I say to you, ladies and gentlemen, it is clearly the law in this state that these proofs are admitted or this evidence is admitted not to show a general disposition of proximity to crime, but it is offered to show intent, motive, scheme, plan, design or system, with respect to the conspiracy or the solicitation, because both of these crimes contain the essential element of the existence of intent and agreement and an intent to solicit the commission of an offense, to solicit the payment of a bribe.
"Now, let me add to that language by saying too, quite emphatically though, that testimony is offered for that purpose and that alone, and you may utilize that testimony if you so choose to assist you in regard to what? the question of intent, plan, scheme, design, but not the guilt or innocence of these defendants as charged in this information.
"You are to deliberate with regard to the guilt or innocence upon the charge as established in the information, as claimed in the information, you are not to deliberate upon the guilt or innocence of the defendants in connection with these other offenses which were permitted to be shown you. I say to you that this testimony is offered not as to guilt or innocence, in this case per se and in and of itself, but merely to show the existence of plan, scheme, or design. As far as this case is concerned, you are to consider the charge in the information here alone, but you may consider these other similar acts in determining whether or not there was scheme, intent, motive, you understand. All right. Again not bearing upon guilt or innocence here in this information but for the purposes I have indicated to you.”
In passing upon the propriety of a prosecutor’s closing argument, this Court observed in Allen:
"We concede that there is little room for argument that his remarks were intemperate and perhaps better left unsaid. But under all the circumstances we cannot say that they were fatally prejudicial or entirely without provocation. Criminal trials are not basket luncheons, and we seem faintly to recall that in our experience opposing lawyers rarely if ever pelted each other with rose petals. In any case, counsel for defendants cannot on his side be allowed great latitude to goad and provoke adverse comment or criticism from the prosecutor and then seek a reversal because his strategy succeeded. When opposing counsel makes accusations and creates inferences of unfairness and unprofessional conduct against the prosecution, he is scarcely in a position to ask a reversal because of equally intemperate language used in reply. To permit that would be to award victory to those criminal defendants retaining the best 'needier’. Under the circumstances presented here we must hold that this ground of error is without merit. (See, generally, 2 Gillespie, Michigan Criminal Law and Procedure [2d ed], § 626.)” 351 Mich at 544.
In People v Dane, 59 Mich 550, 552; 26 NW 781 (1886), we observed:
“It is the duty of the public prosecutor to see that the person charged with crime receives a fair trial, so far as if is in his power to afford him one, and it is likewise his duty to use his best endeavor to convict persons guilty of crime; and in the discharge of this duty an active zeal is commendable, yet his methods fo procure conviction must be such as accord with the fair and impartial administration of justice; and it is improper for one occupying the position of the prosecuting officer to make a statement to the jury of a fact, as of his own knowledge, which has not been introduced in evidence under the sanction of an oath, relating to the material issues in the case
In his closing argument in this case, the prosecutor informed the jury:
"One of the things Mr. Blake told you he resented was the fact that I offered evidence showing that in spite of the efforts, in spite of the alleged efforts of these two defendants, there really wasn’t very much effective police work concerning narcotics resulting from their alleged efforts. Did and do the names Duncan and McIntosh strike terror into the hearts of the dope dealers in Inkster? I don’t think so and I don’t think you think so either.
"First, let me say this, we have been talking rather casually. I think too casually about dope and about dope dealers. When we have mentioned dope at this trial we are talking about narcotics, about heroin. Heroin is that substance which is corrupting our society. Heroin is that substance which is destroying our children. I think it is important for you to appreciate the significance of what we have been talking about at this trial.
"Now, the testimony that has been presented to you shows that both these men spent a lot of time with Betty Harris, one of them said 10 or 15 buys, the other couldn’t remember. Their testimony shows that at different points in time both of them engaged in this activity voluntarily, that is to say that it was not their assigned duty, sort of a private war on crime as they tell it. But for all these efforts that they told you about for all this public spirited voluntary action, no convictions or at most one maybe five years ago.”
Previously in his argument, the prosecutor had said:
"In this particular trial we have presented to you proof of other similar acts. That in fact these two defendants engaged in an ongoing conspiracy and a series of other criminal solicitations. These proofs were offered and may be used by you only for a limited purpose. Judge Rashid has already once instructed you as to that limited purpose, I trust he will do it again in his final instruction.” | [
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on rehearing
Before: Sullivan, P.J., and Mackenzie and G. Schnelz, JJ.
G. Schnelz, J.
We have granted the people’s motion for rehearing of our decision set forth at 172 Mich App 213; 431 NW2d 463 (1988), in order to reconsider whether the trial judge made improper ex parte communications to the jury under People v Cain, 409 Mich 858; 294 NW2d 692 (1980), rev’g 94 Mich App 644; 288 NW2d 465 (1980).
On rehearing, we find that defense counsel and the prosecutor were present when the trial judge communicated with the jury during its deliberations. Moreover, the trial judge discussed the contents of notes from the jury with the prosecutor and defense counsel, who both agreed with the judge’s responses to the jury. Since we now find that both counsel were present, we conclude that there was no error requiring reversal in the judge’s response to the jury to "keep working.” See People v Pannell, 170 Mich App 768, 770-771; 429 NW2d 233 (1988). Furthermore, no abuse of discretion resulted from the trial judge’s denial of the jury’s request to review transcripts since both counsel agreed to that denial.
Although we affirm the conviction of defendant, we find that this case must be remanded for resentencing. Our review of the record reveals that defendant’s sentence was improperly based in part on time reductions that defendant would receive under the good-time credit statutes. Our Supreme Court has clearly mandated that the possibility of earlier release by virtue of good-time credits or disciplinary credits may not be used to enhance a defendant’s sentence. See People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987).
Affirmed in part and remanded for resentencing in accordance with this opinion. We do not retain jurisdiction. | [
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] |
Coleman, J.
Plaintiff is entitled to worker’s compensation benefits for an injury which occurred November 18, 1970 while he was working for Great Markwestern Packing Company (GMP), a self-insured employer. GMP filed a petition for reorganization under Chapter XI of the Federal Bankruptcy Act on October 1, 1971 while plaintiff’s petition for benefits was pending and prior to the November 16, 1971 effective date of the Self-Insurers’ Security Fund (SISF) act (1971 PA 149). At the time of the injury, GMP had a policy of aggregate excess workmen’s compensation insurance with Commercial Union Assurance Companies (CU) also known as American Employers Insurance Company. The question before us is how Mr. McQueen’s benefits are to be paid.
I. History of Claim
Plaintiff’s petition for compensation benefits was heard by the referee on February 21, 1972. The referee found as a matter of fact that plaintiff had been injured and was disabled. In addition, the referee found as a matter of law that SISF was liable. SISF appealed to the Michigan Workmen’s Compensation Appeal Board (WCAB), which affirmed. SISF thereupon appealed to the Court of Appeals and a panel of that Court reversed the WCAB and held that 1971 PA 149 was wholly nonretroactive in application.
Plaintiff then appealed to this Court, claiming that subsequent to the Court of Appeals opinion, he had discovered the aggregate excess insurance coverage by CU. He also filed a motion for remand. We granted leave to appeal and remanded to the Workmen’s Compensation Bureau to determine whether an insurance company was in existence which was liable for plaintiff’s award of compensation.
The order provided further that "if necessary” the cause should be certified "to this Court for appropriate proceedings”. 391 Mich 823 (1974).
The referee found CU to be liable, citing Federoff v Ewing, 386 Mich 474; 192 NW2d 242 (1971).
The WCAB modified this finding by holding that CU’s liability did not begin until GMP’s accrued liability exceeds the reinsured’s retention amount. "Any sums accruing to plaintiff’ prior to this "[are] subject to the bankruptcy proceedings of [GMP] and/or Supreme Court review of the Court of Appeals holding”.
Three proposals have been presented by the parties as possible sources of compensation.
II. Great Markwestern Packing Co.
First, plaintiff can recover from GMP. His claim remains valid despite GMP’s petition for reorganization under Chapter XI of the Federal Bankruptcy Act. 11 USC 701 et seq. See 9 Am Jur 2d, Bankruptcy, § 414. However, such claims do not receive a priority. Id, §§ 536, 537. Even if plaintiff recovers, it is unlikely he would receive a dollar for each dollar due.
III. Self-Insurers’ Security Fund
Plaintiff argues a second source of recovery in the Self-Insurers’ Security Fund (SISF), created to provide payments for "a disabled employee who * * * is entitled to receive workmen’s compensation benefits from a private self-insured employer who becomes insolvent after the effective date of this section and is unable to continue the payments”. MCLA 418.537(1); MSA 17.237(537(1). GMP became insolvent October 1, 1971. Because the legislation was effective November 16, 1971, the question of retroactive application arises.
When plaintiff presented his claim, the hearing referee and the WCAB ordered the SISF to pay benefits. The Court of Appeals reversed. It said the statutory language "operates as a limitation upon the authority * * * to make disbursements from the [f]und”.
Plaintiff argues that MCLA 418.537(2); MSA 17.237(537)(2) acts as a grandfather clause by permitting payments to "an employee * * * disabled * * * while in the employ of a private self-insured employer who has become insolvent”. He claims subsection (1) applies to insolvencies after the effective date and subsection (2) applies to those before the effective date.
The Court of Appeals found this construction "to be untenable”. Such an analysis
"would require this Court to first hold that the Legislature specifically created two different classes of employees in subsection (1), and then hold the Legislature intended that the distinction so emphatically delineated in subsection (1) was of no consequence. Surely had the Legislature intended that all disabled employees of self-insured employers should have a right to claim against the Fund irrespective of when their employers became insolvent, the Legislature would not have used the language of limitation found in subsection (1)”.
The Court said "subsection (1) defines the class of employees covered * * * while subsection (2) sets forth the manner in which said employees shall file their claims against the [f]und”. 51 Mich App 250-251.
The Attorney General, for SISF, supports the Court of Appeals conclusion and says:
"In the creation of the SISF and in the subsequent enactment of Act 149, the Legislature did not disturb any of the pre-existing rights and liabilities, under Federal or state laws, between the employee and the insolvent self-insured employer.
"The employee may still present his claim in either the state or Federal insolvency proceedings or take whatever other legal action may be appropriate to satisfy the insolvent self-insured employer’s liability to him.
"To the existing rights and remedies, the Legislature gave a new, but limited, statutory option to the employees to shift present and future compensation liability of the insolvent self-insured employer to the Self-Insurers’ Security Fund. The statute requires, however, that the employee must request the payment of benefits. MCLA 418.537(2), and 418.537(3) [MSA 17.237(537(2), 17.237(537(3)].
"The fund submits that the creation of the fund and its method of financing by assessing present self-insured employers provides a substantive right to those employees whose compensation claims are within the limited authority of the trustees to make payments from the fund.”
Because it is a settled rule of statutory construction that statutes ordinarily are prospective in application unless "the contrary clearly appears from the context of the statute itself’ and because it does not appear that this statute establishing new substantive rights so provides, we hold that it is not retroactive.
IV. Commercial Union Assurance Companies
The third possible source of recovery is the Commercial Union Assurance Companies (CU) which had contracted to reinsure GMP at the time of plaintiffs injury. CU agreed to reimburse GMP for payments such as workmen’s compensation if the total payments in a year exceeded the "reinsured’s retention” — a figure equal to the annual premium.
The contract contained 18 conditions, number 11 of which provides:
"In the event of bankruptcy or insolvency of the reinsured which prevents the reinsured from making any payment * * * the company will make such payment directly and on behalf of the reinsured and * * * any payment so made by the company shall be a full and final discharge of any liability on the part of the company to the reinsured in respect to such payment; provided, however, the company shall be under no liability whatsoever to make any such direct payment or part thereof, which would not be in excess of the reinsured’s retention * * * . In the event the company makes any such direct payment, it shall be subrogated, to the extent of such payment, to all rights of recovery therefor of any person entitled to such payment against any person or organization.” (Emphasis added.)
Payments include "the amount the reinsured shall have actually paid * * * for compensation and other benefits required of the reinsured by the workmen’s compensation law”. Upon remand, the WCAB found that the accrued liability, rather than actual payment of the retention amount, provided the threshold beyond which CU’s payments would commence.
The panel discussed the Federoff case upon which plaintiff now strongly relies in arguing that CU is responsible for all of the benefits awarded to him.
Federoff involved claims by employees who were receiving benefits. The employer’s insurer, Highway Insurance Company, became insolvent. Highway’s reinsurer, Peerless Insurance Company, refused to pay the employees directly because the reinsurance contract said "actual payment * * * by [Highway] * * * shall be a condition precedent to” Peerless’ obligation. Otherwise, "the liability of the reinsurer shall follow that of [Highway]”. In other words, no matter how much was owed to plaintiff, if the employer’s insurer could not make actual money payment, plaintiff never would be paid anything by the reinsurance company.
Our Court said the "Highway-Peerless reinsurance contract * * * is governed by and subject to judicial enforcement in strict accord with the purpose, the declared public policy, and the express language” of our workmen’s compensation act. 386 Mich 479. The Court emphasized this language now found in MCLA 418.621(1); MSA 17.237(621(1).
"Every contract for the insurance of the compensation provided in this act for or against liability therefore, shall be deemed to be made subject to the provisions of this act and provisions inconsistent with this act are void.”
Federoff was explained in Woody v American Tank Co, 49 Mich App 217, 229; 211 NW2d 666 (1973):
"[S]ince the reinsurer was admittedly on the risk, over and above payments by the defunct primary in surer, the exculpatory language in the reinsurance contract was void.”
In our case, the WCAB said Federoff does not increase the "life” of the liability covered by a reinsurance contract. CU’s liability does not come to life until GMP’s accrued liability exceeds the reinsured’s retention.
We agree with the WCAB that Federoff is inapposite to the case at bar.
The WCAB opinion refers also to MCLA 418.621(2); MSA 17.237(621)(2) which is argued to opposite conclusions by plaintiff and CU.
Plaintiff maintains it is a principle of Michigan law "that the relationship between the injured worker and the insurer is governed by statute rather than by the contract of insurance” and urges us to hold that the mandatory contract provisions of MCLA 418.621(2); MSA 17.237(621(2) apply to every workmen’s compensation insurance contract including reinsurance. Plaintiff also points to MCLA 418.651; MSA 17.237(651) which gives "the person entitled to * * * compensation * * * the right to enforce in his own name * * * the liability of any insurance company * * * who may have insured, in whole or in part, the liability for such compensation”.
CU argues that its policy with GMP is not subject to MCLA 418.621(2); MSA 17.237(621(2) because that section does not apply to self-insurers. CU acknowledges its reinsurance obligation once GMP’s accrued liability exceeds the reinsured’s retention amount. However, CU argues vigorously that it should not be treated as a primary insurer.
Also spotlighted is the fact that the statute does not require an authorized self-insurer to purchase any additional workmen’s compensation insurance coverage. The reinsurance contract covering GMP’s liabilities over a basic (retention) amount was initially voluntary. If GMP had not so contracted with CU, plaintiff would have no legal recourse to any benefits excepting those from the employer through the bankruptcy proceedings.
CU maintains with merit that we cannot properly rewrite its contract with GMP to impose upon CU an obligation which it never agreed to assume and which is not statutorily required of a self-insurer.
The WCAB reached the proper decision. It said any insurance contract "to secure in whole or in part the employer’s liability incurred under the terms of the Worker’s Disability Compensation Act” must comply with MCLA 418.621(2); MSA 17.237(621(2). However, neither this nor Federoff means that "any policy of insurance * * * does insure and protect the employee when the employer is financially unable to pay the claim”. In Federoff, the life of the liability had begun; here, it has not:
"When a policy is issued only as security of a part of the liability incurred by the employer * * * we find no authority in the statute or case law which permits this appeal board to modify that contract to hold that it also secures the liability retained by the employer as a self-insurer.”
The board held that the "liability retained by the employer must accrue to activate and give 'life’ to” the reinsurance policy. The compensation "accruing to plaintiff prior to the effective period of the liability * * * is subject to the bankruptcy proceedings * * * and/or Supreme Court review of the Court of Appeals holding”.
V. Summary
No one contests plaintiffs right to compensation. If the SISF or CU were ordered to pay him, each would be subrogated to his claim against GMP. However, such an order would, in the one instance, corrupt the statute and, in the other, rewrite a contract.
We have an "innocent” plaintiff. We also have "innocent” defendants.
The Legislature chose not to make 1971 PA 149 retroactive, so plaintiff does not qualify for benefits deriving from the fund established by it.
CU is not attempting to evade its responsibilities. It only asks that we not impose upon it obligations which it never contracted to assume and which are not mandated by statute.
Plaintiff retains a bankruptcy remedy against GMP. In addition, when GMP’s accrued liabilities exceed the reinsured’s basic retention, CU will pay benefits awarded to plaintiff.
The case is remanded to the WCAB for further proceedings consistent with this opinion.
Affirm and remand.
Kavanagh, C. J., and Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Coleman, J.
Williams, J.
Our Sister Justice Coleman has correctly set forth the law in this case, but consideration of implementation of this Court’s decision is in order. This case requires a judicial solution to a loophole in the worker’s compensation program, namely the fate of an injured worker for a self-insured employer who becomes insolvent before 1971 PA 149, which established the Self-Insurers’ Security Fund to remedy this problem.
Plaintiff worker suffered a compensable injury November 18, 1970, while working for defendant employer Great Markwestern Packing Company. Defendant employer was a self-insured employer. However, he had a policy of aggregate excess worker’s compensation insurance with defendant reinsurer, The Commercial Union Assurance Companies.
Plaintiff employee filed for benefits February 2, 1971 and was determined disabled February 23, 1972. In the meantime defendant employer filed for bankruptcy October 1, 1971.
There are two problems in this case. The first problem is that the Self-Insurers’ Security Fund did not go into effect until November 16, 1971, shortly after defendant employer filed in bankruptcy. The Court of Appeals held the fund’s benefits to be available only to those injured employees whose "private self-insured employer * * * becomes insolvent after the effective date of this [act]”. The second problem is that defendant employer had not paid out in worker’s compensation benefits an amount equal to the retention amount in his policy of aggregate excess "reinsurance” with defendant reinsurer.
As to the first problem, our Sister Justice Coleman’s affirmance of the Court of Appeals correctly interprets that the Legislature intended 1971 PA 149 to be prospective only. This, unfortunately, for plaintiff employee removes the Self-Insurers’ Security Fund as a source of relief, but the Legislature quite clearly indicated the benefits of 1971 PA 149 to be prospective.
As to the second problem, it may be well to suggest how plaintiff employee, the Worker’s Compensation Appeal Board and defendant reinsurer may resolve the problem confronting them; simply stated the plaintiff employee’s inability to receive compensation benefits in light of his self-insured employer’s insolvency and the employer’s rein-surer not knowing when, whom or how to pay compensation benefits because defendant employer had not exhausted his retained liability. The problem would be minimal, if any, had defendant self-insured employer paid compensation benefits up to his retained liability, for at that point defendant reinsurer would become liable and would pay each and all subsequent claimants in full.
The problem is the determination of when, whom and how to pay compensation benefits under these circumstances, where defendant reinsurer is liable only for benefits exceeding the retained liability of the now insolvent employer.
Let us begin by examining plaintiff employee’s comment on the appeal board’s formula to resolve this problem. His brief states:
"The appeal board suggested that the basic problem should be solved by having the Workers’ Compensation Bureau calculate the point in time at which the retention amount would have been reached, after which Commercial Union [the reinsurer] should begin paying benefits. * * * The solution suggested by the appeal board would result in an unwieldy litigation in which each claimant attempted to prove that his rights accrued later than the rights of the other claimants.”
What plaintiff employee is suggesting can best be shown by example. Let us suppose the retention amount or the residue of the retention amount after deduction of the self-insured employer’s payments before insolvency stood at $100,000, and there were ten employee claimants, each with a $20,000 claim. According to plaintiff employee’s reading of the WCAB opinion, the first five employees to seek benefits would be relegated to claims in bankruptcy, because it would take their total of $100,000 in claims to exhaust the retention amount, whereas the next five employees to seek benefits, because the retention amount had been exhausted, could recover in full their claims from defendant reinsurer. If that is what the WCAB formula provides, it is indeed inequitable and poor policy because (1) the first five might get 10 cents on the dollar on their claims whereas the second five would get 100 cents on the dollar on their claims, and (2) this would create a situation favoring the laggard and hence promoting total inaction with nobody getting anything, which is about where we now are.
Whether or not this is what the WCAB had in mind, the argument clearly focuses on the problem to be met.
The solution we propose recognizes (1) that the reinsurer is entitled to have compensation liability exhausted to the retention amount before it is liable to pay any compensation; and (2) the liability for so exhausting the retention amount should be borne equally by all claimants, not according to reverse order of prosecuting claims.
A suggested ten-point program follows:
1. Upon remand, the WCAB shall determine what the retention amount is in dollars and cents. The WCAB opinion states the amount to be equal to 100% of the normal premium cost of insurance. Non-official evidence suggests this amount to be $295,217.03. The WCAB shall determine exactly what it is.
2. The WCAB shall determine what amount the defendant employer has paid in claims for worker’s compensation benefits.
3. The WCAB shall subtract the second figure from the first and determine the residue of re? tained liability. The WCAB opinion quotes the senior claims supervisor of defendant reinsurer estimating this amount at $96,000.
4. Thereupon, the WCAB shall, as indicated in its opinion, proceed to "remand this matter to the Director of the Bureau with a recommendation that a special effort be made to isolate all active claims filed against Great Markwestern [defendant employer] and any subsidiaries under its umbrella of self insurance coverage”. Whether the WCAB also contacts Corporate Service, Inc., to determine this amount (as the WCAB opinion suggests), is within its discretion and is nothing this Court can order.
5. The WCAB shall adjudicate those claims which are unadjudicated within a period of 60 days or such reasonable time as the board shall prescribe, but no longer than four months.
6. The WCAB shall thereupon determine the value of all known claims as of that date. Since that date will be between six and seven years since the period reinsured, a large part, if not most, of the burden of liability will have accrued.
7. The WCAB shall compare the total liability for benefits as established in point six with the residue of retained liability as established in point three. If the total liability for benefits at that point is in excess of the residue of retained liability, defendant reinsurer shall immediately be liable for compensation benefit payments to every eligible claimant as hereinafter described.
8. Defendant reinsurer shall pay adjudicated compensation benefits to each eligible claimant on the following ratio of the value of such judgments. The adjudicated value of each individual judgment shall be multiplied by the ratio of the total liability for benefits, as established in point six, minus the residue of retained liability, as established in point three, to the total liability as established in point six. The formula could be expressed as follows:
RL is reinsurer’s liability; IBJ is individual benefit judgment; TKBL is total known benefit liability; R is residue of retained liability.
To look again at the example of ten claimants, each with a $20,000 claim and $100,000 residue of retained liability:
RL = IBJ ($20,000) x TKBL ($200,000)- R ($100,000) TKBL ($200,000)
or
RL = $20,000 X $100,000 $200,000
RL = $20,000 X 1/2
RL = $10,000
The net result is that all ten claimants get $10,000 apiece or $100,000 in total. The remaining $100,000 is credited against the retained residue and becomes a claim against the insolvent defendant employer.
9. Any compensation benefits earned subsequent to the determination of the total known liability as of the date established in point six, because of a new claim or extension of an old one, shall be paid to the claimant according to the same formula established in point eight, even though the retained liability has been exhausted. The reason for this is to preserve the equality of burden in paying off the retained liability. However, since the retained liability is paid off, defendant reinsurer will pay the difference between the amount to be paid to the individual claimant and the claimant’s full adjudicated entitlement to a special fund in the Workers’ Compensation Commission dedicated to all of defendant employer’s worker’s compensation beneficiaries subsequent to insolvency. This fund shall be paid to all such beneficiaries proportionately to their total entitlement at such times as the Worker’s Compensation Commission or its designee deems appropriate.
10. The WCAB shall request the Workers’ Compensation Commission to designate a person to act as guardian for all of defendant employer’s injured employees with worker’s compensation claims affected by its insolvency. This guardian shall supervise the fund set up by point nine and shall pursue all such workers’ claims in the bankruptcy court. There is no specific provision in the worker’s compensation act or 1971 PA 149, but equity and the remedial intention of the Legislature certainly warrants this action. I would mandate it inasmuch as the individual injured workers can hardly be required to make themselves whole when the circumstances are the result of the commission’s failure to exercise perfect judgment in the grant of the self-insurance privilege.
As an example of how all ten steps would work, let us assume that the retention amount is $300,-000 (vide point 1 supra), that defendant employer during the reinsurance period had paid $200,000 on claims before insolvency and that the residue of the retention amount is $100,000 (vide point 3 supra) and that after insolvency there are ten $20,000 claims on the computation date. With these hypothetical facts, this is the way the suggested formula would work.
1. WCAB determines total retention amount is $300,000.
2. WCAB determines defendant employer paid $200,000.
3. WCAB subtracts $200,000 from $300,000 = $100,000.
4. WCAB finds ten $20,000 claims outstanding.
5. WCAB adjudicates those claims worth $20,000 each as of the date of adjudication.
6. WCAB determines the total value of all known claims as of that date as $200,000.
7. WCAB comparing total value of all known claims, $200,000 with the residue of retained liability $100,000 finds the value of claims higher than the retained residue and therefore liability of defendant reinsurer is triggered.
8. Defendant reinsurer shall pay each individual benefit judgment according to the formula in eight above:
RL = IBJ X TKBL - R TKBL
or
RL = $20,000 X $200,000 - $100,000 $200,000
or
RL = $20,000 X 1/2 = $10,000
9. Suppose further that subsequent to working out this original phase of the formula, ten additional eligible claims of $20,000 are adjudicated. Then,
a) defendant reinsurer would pay each additional claimant $20,000 X 1/2, or $10,000, or $100,000 to all;
b) defendant reinsurer would pay 10 X $10,000 or $100,000 to the Workers’ Compensation Commission’s special dedicated fund;
c) at an appropriate time, the special dedicated fund would determine that there were 40 $20,000 benefit entitlements extant or $400,000 and that it had $100,000 in the fund. Since each claimant had the same total entitlement of $20,000, each would receive 20,000/400,000 or 1/20 of the fund or 1/20 X $100,000 or $5,000. Each beneficiary, both the original and the newer ones, would then get a $5,000 dividend, therefore receiving a total $15,000 for each $20,000 adjudication. Each of the 20 would share proportionately in bearing the burden of liquidating the retained liability. The defendant reinsurer would not have paid any compensation without the residue of the retained liability being paid;
d) the same result would ensue if the ten original $20,000 claims had each been extended by $20,000, or any combination.
10. The guardian would direct the fund actions described in 9(c). In addition the guardian would pursue the interests of all 40 claimants in the bankruptcy court.
Conclusion
To summarize, we agree with the legal conclusions reached by our Sister Justice Coleman, but would in remanding to the WCAB suggest that it consider the above ten-point formula or something like it to equitably recognize the reinsurer’s rights and the rights of all the worker’s compensation claimants subsequent to the employer’s insolvency.
Kavanagh, C. J., and Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Williams, J.
51 Mich App 246, 249; 214 NW2d 882 (1974).
"Sec. 537. (1) The trustees may authorize payments from the self-insurers’ security fund upon request to the fund’s administrator by a disabled employee who is receiving or is entitled to receive workmen’s compensation benefits from a private self-insured employer who becomes insolvent after the effective date of this section and is unable to continue the payments.
"(2) If an employee becomes disabled because of a compensable injury or disease while in the employ of a private self-insured employer who has become insolvent and who is unable to make compensation payments, the employee may seek payment from the self-insurer’s security fund either by request through the fund’s administrator or by filing a petition for hearing with the bureau.” MCLA 418.537; MSA 17.237(537).
See discussion in Briggs v Campbell, Wyant & Cannon Foundry Co, 379 Mich 160, 164; 150 NW2d 752 (1967).
See, generally, 44 Am Jur 2d, Insurance, §§ 1857-1867.
In part, that section provides:
"The accident fund and every insurer issuing an insurance policy to cover any employer not permitted to be a self-insurer under section 611 shall insure, cover, and protect in one and the same insurance policy, all the businesses, employees, enterprises, and activities of the employer. * * * Except as modified by the director as provided for herein, each policy of insurance covering workmen’s compensation in this state shall contain the following provisions:
" 'Notwithstanding any language elsewhere contained in this contract or policy of insurance, the accident fund or the insurer issuing this policy hereby contracts and agrees with the insured employer:
" 'Compensation, (a) That it will pay to the persons that may become entitled thereto all workmen’s compensation for which the insured employer may become liable under the provisions of the Michigan workmen’s compensation act for all compensable injuries or compensable occupational diseases happening to his employees during the life of this contract or policy;
" 'Obligations assumed, (f) That it hereby assumes all obligations imposed upon the employer by his acceptance of the Michigan workmen’s compensation act, as far as the payment of compensation, death benefits, medical, surgical, hospital care or medicine and rehabilitation services is concerned;
" 'Conflicting provisions, (h) That all the provisions of this contract, if any, which are not in harmony with this paragraph are to be construed as modified hereby, and all conditions and limitations in the policy, if any conflicting herewith are hereby made null and void.’ ” (Emphasis added.)
CU may already have begun to pay. At the time of oral argument, it was agreed that the aggregate liabilities of GMP had almost reached the contracted level of retention. | [
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] |
Gillis, J.
Penny Fryover was sixteen weeks pregnant with Karl James Fryover when both were killed because she swerved her vehicle in an attempt to avoid hitting a dog owned by defendants. Plaintiff brought wrongful death suits on behalf of both Penny and Karl. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) as to plaintiffs wrongful death suit regarding Karl, claiming that a nonviable fetus is not a person under the wrongful death act. The trial court granted defendants’ motion relying on this Court’s decision in Toth v Goree, 65 Mich App 296; 237 NW2d 297 (1975), lv den 396 Mich 836 (1976). We agree with Judge Maher’s dissent in Toth and, therefore, reverse the trial court’s decision. See also Presley v Newport Hospital, 117 RI 177; 365 A2d 748 (1976).
Reversed and remanded for further proceedings.
M.J. Talbot, J., concurred. | [
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] |
Griffin, J.
Plaintiffs appeal as of right from a December 18, 1987, order of the Wayne Circuit Court denying their motion for mediation sanctions in an action against Wayne County Community College, Juanita C. Ford, Charles D. Roberts, and the Wayne County Community College Board of Trustees. We affirm.
i
Plaintiffs filed the underlying breach of contract action against defendants on October 27, 1983. On January 24, 1986, the trial court granted summary disposition to the plaintiffs on the issue of liability but ordered the matter mediated as to the amount of damages. On January 30, 1986, a mediation evaluation was rendered which was ultimately accepted by the plaintiffs and defendants Ford and Roberts but rejected by defendants Wayne County Community College and Wayne County Community College Board of Trustees.
Plaintiffs thereafter moved for summary disposition on the issue of damages. When the trial court denied the motion, plaintiffs sought an interlocutory appeal to this Court. We granted leave to appeal and reversed the trial court’s denial of plaintiffs’ motion for summary disposition on the issue of damages. The case was remanded to the trial court and a judgment was subsequently entered on October 8, 1987, in favor of plaintiffs in the sum of $184,439.14 plus $142 in taxable costs.
On December 1, 1987, plaintiffs filed a motion for mediation sanctions against Wayne County Community College and Wayne County Community College Board of Trustees (hereafter defendants) pursuant to MCR 2.403. It is beyond dispute that the judgment entered was more favorable to the plaintiffs than the mediation evaluation rejected by defendants. However, Judge Susan D. Borman ruled that the mediation court rule as it existed at the time of rejection did not allow the imposition of mediation sanctions if judgment was entered pursuant to a motion for summary disposition. We agree.
ii
This case involves construction of the Michigan mediation rule, MCR 2.403, as it existed from the commencement of the Michigan Court Rules of 1985 effective March 1, 1985, through the date of an amendment effective December 1, 1987.
The language of the first sentence of MCR 2.403(O)(l) has remained unchanged:
If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. [Emphasis added.]
By amendment effective December 1, 1987, the Supreme Court added a new subparagraph 2 which defines "verdict” as follows:
For the purpose of this rule "verdict” includes,
(a) a jury verdict,
Ob) a judgment by the court after a nonjury trial,
(c) a judgment entered as a result of a ruling on a motion Sled after mediation. [Emphasis added.]
The plaintiffs make the argument that the mediation court rule has not been changed but has merely been clarified. It is asserted that the Supreme Court always intended the term "verdict” to be construed broadly to include not only a jury verdict but also a judgment, including one entered as a result of a motion such as a motion for summary disposition. The plaintiffs thus seek to eliminate any distinction between the new and old rules.
hi
In construing MCR 2.403 as it existed prior to the amendment, it is helpful to trace its history. In Michigan, mediation began with a number of local court rules such as the Wayne County mediation rule. In 1980, the Michigan Supreme Court promulgated on a statewide basis a mediation rule which benefited from local experience. GCR 1963, 316, effective July 1, 1980, provided the following in regard to the effect of rejection of a mediation evaluation:
.7 Effect of Mediation.
(b) If any party rejects the panel’s evaluation, the case proceeds to trial, in the normal fashion.
* * *
(2) If the plaintiff accepts the evaluation but the defendant rejects it and the case proceeds to trial, the defendant must obtain a verdict in an amount which, when interest on the amount and assessable costs from the date of filing of the complaint to the date of the mediation evaluation are added, is more than 10 percent below the panel’s evaluation or pay actual costs to the plaintiff. [Emphasis added.]
The staff comment on GCR 1963, 316.7 is instructive as to the need for a trial in order for mediation sanctions to be triggered:
If a party rejects the mediation evaluation and the case is tried, the amount of the verdict in relation to the evaluation determines whether a party will be required to pay costs. [Emphasis added.]
Commentators during the period viewed the mediation rule as a vehicle for dispute resolution short of trial. It was hoped that the pretrial evaluation would facilitate settlement and, further, that the threat of sanctions for rejection of the evaluation would obviate the need for many trials.
Respected commentators Honigman and Hawkins stated the following in regard to the strong relationship between the mediation rule and trial:
Rule 316, adopted in 1980, provides a mechanism whereby parties may obtain an evaluation of their case before going to trial. In many cases, the evaluation will be accepted by the parties and obviate the need for a trial. To encourage compliance with the rule, sanctions in the form of attorney fees are provided against a party who rejects a mediation award and obtains from a subsequent trial a result that is more than 10 % less favorable than the mediation award. [2 Honigman & Hawkins, Michigan Court Rules Annotated, 1984 supplement, p 88. Emphasis added.]
The successor rule, MCR 2.403(O)(l), adopts in substance the language of GCR 1963, 316.7 regarding the effect of rejection of mediation. Although the sentence structure has been changed, the triggering language has not.
Commentaries in 1985 on the new rules, Michigan Court Rules of 1985, fail to note any intended change in the mediation rule as to the necessity for commencement of trial. See, generally, 1 Court Rules of Michigan (ICLE, 2d ed), p 19, Highlights of Major Changes Under the Michigan Court Rules of1985.
For these reasons, the construction of MCR 2.403 advanced by plaintiffs is not supported by the history of the court rule.
iv
A broad or liberal construction of MCR 2.403 is also contrary to the general rule of construction which holds that statutes and court rules in derogation of the common law must be strictly construed. Tibor v Dep’t of State Highways, 126 Mich App 159, 162; 337 NW2d 44 (1983); Prentis v Yale Mfg Co, 116 Mich App 466, 469-470; 323 NW2d 444 (1982).
In People v Lange, 105 Mich App 263, 266-267; 306 NW2d 514 (1981), we stated that doctrines of statutory construction should apply in determining the Supreme Court’s intent in promulgating rules of practice and procedure:
While doctrines of statutory construction are normally applied to effect legislative intent, to the extent that they are helpful in determining the Supreme Court’s intent in promulgating rules of practice and procedure, said doctrines are equally useful. Indeed, doctrines of construction are far more likely to truly advance the Supreme Court's, as opposed to the Legislature’s, intention in adopting the rules and statutes within their respective powers. While it is presumed that the Legislature knows the principles of statutory construction, People v Hall, 391 Mich 175, 190; 215 NW2d 166 (1974), this presumption is often a mere legal fiction. However, there can be no doubt that the Supreme Court is truly cognizant of these doctrines.
Unlike other common-law jurisdictions such as the United Kingdom and Canada, the common law in the United States and the State of Michigan has held that attorney fees are not routinely awarded to the prevailing party. See, generally, State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71, 74-75; 212 NW2d 821 (1973). Absent a special statute or court rule, each party in Michigan is normally responsible for his or her own attorney fees. Matras v Amoco Oil Co, 424 Mich 675, 695; 385 NW2d 586 (1986). Since the award of attorney fees under the mediation court rule is a deviation from the common law, a strict, not liberal, construction should be applied.
v
The rule construction advocated by the plaintiffs is not the interpretation which was generally accepted by the practicing bar and bench during the preamendment period. Rather, it was widely assumed prior to the 1987 amendment that commencement of trial was a necessary prerequisite for the imposition of mediation sanctions. See, generally, Honigman and Hawkins, supra.
The bar and bench reasonably relied on this Court’s holding in OD Silverstein, MD, PC v Services, Inc, 165 Mich App 355, 360; 418 NW2d 461 (1987). In Silverstein, supra, p 70, we held the following in regard to the mediation rule:
Plaintiff argues that the word "trial” in the court rule should include summary dispositions. We disagree. In promulgating the above rule, the Supreme Court used the word "trial,” not "judgment” or the phrase "trial or other disposition.” We presume that when the Supreme Court said "trial” it meant "trial.” Had the Supreme Court wished to extend the provision to include summary dispositions, it could have said "and the action proceeds to judgment” or a similar phrase. While the plaintiff may be correct that the better policy would be to apply the rule to summary dispositions as well as trials, that argument will have to be presented to the Supreme Court in an argument to amend the court rules. Until the Supreme Court sees fit to amend the rules, we conclude that MCR 2.403(0) only applies to cases that proceed to trial.
Further, this Court in The Wayne-Oakland Bank v Brown Valley Farms, Inc, 170 Mich App 16, 21; 428 NW2d 13 (1988), stated:
The commencement of trial is the necessary prerequisite for mediation sanctions under MCR 2.403 ....
Through the present time, there is no authority supportive of the construction advanced by the plaintiffs. Their reliance upon Fisher v Detroit Free Press, Inc, 158 Mich App 409, 416; 404 NW2d 765 (1987), is misplaced since the Court in Fisher noted that an appeal had not been taken from the mediation sanctions.
The history of the mediation rule leads us to conclude that Silverstein and Wayne-Oakland Bank were correctly decided.
VI
Finally, the doctrine of stare decisis compels adherence to our holding in Silverstein. During the preamendment period, attorneys routinely advised their clients that the threat of mediation sanctions did not exist short of trial. In hindsight, it is argued that such advice was seriously in error. We disagree and conclude that retroactive application of a new construction of the rule would be unwise and inequitable. Since the mediation court rule has now been amended, we see no compelling reason to revisit our holding in Silver-stein.
Affirmed.
Cynar, J., concurred.
Although plaintiff’s motion for mediation sanctions was filed December 1, 1987, the day the amendment became effective, appellants concede that the old mediation rule applies. We agree that application of the new rule would be upjust since the rejection occurred prior to the amendment. See, generally, MCR 1.105 and 1.102. | [
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Per Curiam.
On May 13, 1987, a jury found defendant, Claxton Moore, guilty of two counts of felonious assault and one count of possession of a firearm during the commission of a felony, in violation of MCL 750.82; MSA 28.277 and MCL 750.227b; MSA 28.424(2) respectively. Defendant was sentenced to serve two years in prison on the felony-firearm conviction and placed on probation for two years for the felonious assault convictions, the sentences to run consecutively. Defendant appeals as of right.
Defendant contends that the trial court erred in denying his request for a full jury instruction on mixed direct and circumstantial evidence, CJI 4:2:02. While the trial court did give most of that instruction, it refused to give subparagraph (7) of the instruction, which reads as follows:
(7) If the direct and circumstantial evidence, taken together, is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence.
Use of the Michigan Criminal Jury Instructions is not mandatory. Cautionary instructions need only be given when the circumstantial evidence against the defendant is weak and, further, need not be given where there is direct evidence supporting conviction.
At trial, the two complainants testified that, during an argument with defendant, defendant pulled out a handgun and pointed it at one of them threatening to "blow [her] so and so head off.” They further testified that defendant, soon thereafter, fired the gun in the direction of the second complainant. The bullet struck the floor approximately one foot away from the' second complainant’s feet. A police officer testified that, upon arrival at the scene, examination of defendant’s right hand revealed an odor of gunpowder/ nitrate — strong circumstantial evidence that defendant had recently fired a gun.
Given the nature of the direct evidence and the strength of the circumstantial evidence, we find no error in this case in the trial court’s refusal to give subparagraph (7) of CJI 4:2:02.
Affirmed.
People v Petrella, 424 Mich 221, 227; 380 NW2d 11 (1985); People v Anderson, 166 Mich App 455, 467; 421 NW2d 200 (1988).
People v Gravedoni, 172 Mich App 195, 197; 431 NW2d 221 (1988); People v Armentero, 148 Mich App 120, 132; 384 NW2d 98 (1986), lv den 425 Mich 883 (1986).
People v Dellabonda, 265 Mich 486, 513; 251 NW 594 (1933); People v Peete, 113 Mich App 510, 515-516; 317 NW2d 666 (1982).
One of the complainants testified that "so and so” were her own words used in place of the actual phrase used by defendant. | [
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] |
Request for appointment of counsel denied.
Case below, Court of Appeals No. 30060, order of February 18, 1977. | [
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Hood, J.
This is an appeal as of right from consolidated cases heard in the Wayne Circuit Court. The cases concerned various actions primarily taken by defendants Dr. Kenneth Cole and James Pogates, employees at the Huron Valley Mens’ Facility, and their impact on two nurses employed at that facility, plaintiffs Cynthia Horning and Joan Plecha, and plaintiff Beverly A. Mitchell, who was their msea union representative. Docket Nos. 97210 and 98906 concern claims heard in the circuit court alleging various claims in tort and violations of plaintiffs’ constitutional rights and the federal Civil Rights Act. In that action, the jury awarded the plaintiffs a total of $205,000 in damages, with Cole liable for $151,500 and Pogates liable for $53,500. The trial court trebled the compensatory damages and awarded attorney fees.
Docket Nos. 97211 and 98905 were heard by the circuit court judge sitting as a Court of Claims judge for claims brought against the Department of Corrections. In that case the court awarded $150,000 to plaintiff Mitchell and $25,000 each to Horning and Plecha. These amounts were also trebled, for a total award of $600,000.
These cases arise from an alleged improper use of the Law Enforcement Information Network and information obtained thereby by defendants Cole and Pogates in order to intimidate and harass the plaintiffs. Pogates was the deputy warden. Dr. Kenneth Cole was the medical director. Robert B. Redman was the warden at Huron Valley. Cynthia Horning and Joan Plecha were employed as nurses at Huron Valley and were members of msea, a labor organization. Beverly Mitchell was a staff member of msea and assigned to represent Plecha and Horning in various disciplinary charges and grievances involving Cole.
Horning’s relation to Cole involved an investigation concerning improper medical decisions allegedly made by Cole. Cole had charged Horning with conduct unbecoming a state employee, alleging that she had given documents to the state Officer of Health Care, which had prompted the investigation. Mitchell represented Horning at a fact-finding hearing on the disciplinary charges brought by Cole. Mitchell was also assigned to represent Plecha at a separate disciplinary proceeding. Events on two separate days form the factual basis for plaintiffs’ claims.
On February 14, 1983, Cole scheduled a meeting with Mitchell and Horning with regards to a grievance that Horning had filed against Cole. Apparently Cole told Mitchell he wanted to meet in his office in a secured area of the prison. In order to go to a secured area a person had to go through a pat-down search. Since Mitchell was wearing a skirt, this would have included being searched underneath the skirt. The search was to take place in a glass enclosure and would have been visible to anyone in the area. There were visitors, employ ees, and prisoners in the area. Under certain circumstances a strip search or body cavity search could be requested. Mitchell did not want to go through a search and had a meeting with Redman, the warden, about getting a conference room in a nonsecured area. Redman acquiesced in Cole’s actions. When she returned from seeing Redman, Mitchell called her supervisor and it was decided to reschedule the meeting. Previously, Mitchell had attended a hearing in a conference room in a nonsecured area and a search had not been required. As part of the procedure for entrance to the secured area on the February 14 visit, Mitchell had given the staff her driver’s license number. A subsequent lein check had revealed an outstanding bench warrant for Mitchell for a traffic violation. No action was taken at that time. On February 24, 1983, a meeting was scheduled at the prison between Cole and Mitchell regarding charges against Plecha. When Mitchell returned on the 24th, the state police were contacted by Pogates and told of the bench warrant. An officer appeared at the meeting and proceeded to arrest Mitchell on the traffic violation.
It was the treatment of Mitchell and the resulting effects of defendants’ action on all the plaintiffs which formed the basis for this action.
We begin with a consideration of the issues tried in the circuit court.
i
Our review is initially hampered by defendants’ failure to specify the standard of review we are being asked to apply. Some issues appear to challenge the sufficiency of the evidence while some challenge the fact that the claims were sent to the jury and not dismissed. We address both types of claims, assuming that defendants’ motion for a directed verdict heard at the end of the trial preserves the sufficiency of the evidence claims for our review. Napier v Jacobs, 429 Mich 222, 230; 414 NW2d 862 (1987). Since similar standards are applied in both instances we will consider these claims first. In both instances we view the evidence in the light most favorable to the plaintiffs. If plaintiffs established a prima facie case and there were material issues of fact upon which reasonable minds could differ, the court did not err in presenting the issues to the jury. Beasley v Washington, 169 Mich App 650, 659; 427 NW2d 177 (1988). Similarly, if having given plaintiffs the benefit of every reasonable inference that can be drawn from the evidence we find that reasonable minds could differ, we cannot say the evidence was not sufficient to sustain the verdict. Boggerty v Wilson, 160 Mich App 514, 522; 408 NW2d 809 (1987).
The trial court did not err in not dismissing the claims based on a violation of the administrative rule regarding the lein procedure or on abuse of process. As to both, plaintiffs argued that Cole’s actions were taken to harass Mitchell and not for the criminal justice purposes intended by the lein procedure. The evidence indicates that the lein was run after Mitchell left the premises. While there may have been a duty to confirm the information "immediately,” 1981 AACS, R 28.5405(1), Cole waited six days before taking any action on the lein information. There was no indication that Mitchell was a threat to security when Pogates made the call which resulted in her arrest. The facts could indicate that Cole arranged the meeting on February 24, 1983, to harass or embarrass Mitchell, an action that could be interpreted as improperly using the lein information for per sonal purposes, contrary to 1981 AACS, R 28.5208(3). Even if we were to assume that the regulations had not been violated and that the lein process was properly initiated, a review of all the actions regarding the lein at least raised a jury question as to whether there was an ulterior purpose and a misuse of the process, the elements of an abuse of process claim. Friedman v Dozorc, 412 Mich 1, 30, n 18; 312 NW2d 585 (1981). Holding onto the information for six days and then reporting it shortly before Mitchell arrived corroborates the improper ulterior purpose. While it can be argued that Cole utilized the information in a manner arguably consistent with procedure, the jury could also find that it was used for the improper purpose of harassing and intimidating the plaintiffs.
Nor can we say that the jury erred in finding a conspiracy between defendants Pogates and Cole to misuse the lein process. Viewing the evidence in the light most favorable to the plaintiffs one could reasonably infer that Pogates knew of Cole’s intention to harass and intimidate the plaintiffs and that he either encouraged or ratified Cole’s actions when he phoned the state police but did not inform them that the outstanding warrant was for a trafile violation. This would support a finding of common-law conspiracy. Rosenberg v Rosenberg Bros Special Account, 134 Mich App 342, 354; 351 NW2d 563 (1984).
As to the defendants’ argument on the federal claims, defendants first argue that neither the law nor the facts support a finding of a violation of First Amendment rights. The First Amendment protects an individual’s right to speak freely, advocate ideas, and associate with others. It protects the right of an association to engage in advocacy on behalf of its members. Smith v Arkansas State Highway Employees Local 1315, 441 US 463, 464; 99 S Ct 1826; 60 L Ed 2d 360 (1979). Unlike the situation in Smith, this is not an example of defendants simply ignoring the union. This is more like the situation where defendants are acting to prohibit plaintiffs from joining together through their union to advocate particular views or retaliating for the exercising of those rights. See Smith, p 465. Defendants have not indicated any authority showing that these actions cannot be a violation of First Amendment rights. As a matter of law, the court did not err in not dismissing the claim. Furthermore, this record indicates that defendants’ actions could be interpreted as discouraging union membership or representation for the purpose of depriving the plaintiffs of their rights to freedom of speech and association. On the basis of the record, there was sufficient evidence for the jury to have found a violation.
The other two federal claims based on the federal Civil Rights Act are challenged on the basis that the jury’s findings are erroneous. In order to establish a claim under 42 USC 1985(3) plaintiffs must prove: (1) the existence of a conspiracy, (2) intent to deny plaintiffs the equal protection of the laws or of equal privileges and immunities under the laws, (3) injury or deprivation of a federally protected right of plaintiffs, (4) an overt act in furtherance of the object of the conspiracy, and (5) some racial or other class-based invidiously discriminatory animus behind the conspirators’ actions. Griffin v Breckenridge, 403 US 88, 102-103; 91 S Ct 1790; 29 L Ed 2d 338 (1971). In order to establish a claim under 42 USC 1986, plaintiffs must show that someone had the power to prevent the conspiracy and did not. The above analysis indicates sufficient evidence for the jury to have found the first four elements for the § 1985(3) claim. There was evidence that Mitchell was treated differently because of her race or sex which could support a finding of race- or sex-based animus to support a finding on the fifth element. As to the § 1986 claim, defendants’ only relevant authority indicates only that there must be a § 1985 claim. Santistevan v Loveridge, 732 F2d 116, 119 (CA 10, 1984). They have indicated no authority for the proposition that Pogates could not be liable both as a conspirator under § 1985 and because he did not use his position of authority to prevent the conspiracy under § 1986.
We therefore find that defendants’ arguments regarding the dismissal of the claims discussed above are without merit.
Having found that a directed verdict was not required on any of the above claims, we turn to plaintiffs’ cross-appeal of the court’s granting a directed verdict on the union’s claim. Plaintiffs challenge this decision arguing only that the facts do support msea’s claim. While plaintiffs argue that the evidence shows that the incident affected msea’s reputation and discouraged union activity, the evidence they direct us to would at most go to showing that Mitchell was damaged by defendants’ actions. In the absence of any evidence indicating the union was harmed, we cannot say the court erred in dismissing this claim.
Next, defendants Pogates and Cole argue that they were entitled to qualified immunity on the federal claims because their conduct did not violate clearly established constitutional rights. This argument relies on the standard set forth in a United States Supreme Court case, Harlow v Fitzgerald, 457 US 800; 102 S Ct 2727; 73 L Ed 2d 396 (1982), recently discussed by the Michigan Supreme Court in Guider v Smith, 431 Mich 559; 431 NW2d 810 (1988). In determining if there is qualified immunity, the court considers:
1) whether the alleged conduct establishes a constitutional violation, and 2) whether the constitutional standard was clearly established at the time in question. ... If the undisputed facts show that the defendant’s conduct violated no clearly established constitutional standards, qualified immunity applies as a matter of law. However, if the law was clearly established, the immunity defense ordinarily would fail unless the official demonstrates extraordinary circumstances, and can prove he neither knew nor should have known the relevant legal standard, in which case the defense should be sustained. [Guider, p 568.]
Defendants argue that there is no constitutional right to be free from a valid arrest warrant. While that may be true, the claim against them is that their conduct violated plaintiffs’ First Amendment rights. The constitutional rights to freedom of speech, freedom of association, and freedom of assembly are clearly established. As discussed earlier, the evidence indicates that defendants’ conduct violated those First Amendment rights. The facts do not indicate that a reasonable person in defendants’ position could have believed his actions were consistent with the law. Guider, p 570. The court did not err in not recognizing qualified immunity in these circumstances.
We next turn to defendants’ arguments concerning the damages and attorney fees awarded. We note that a hearing was convened regarding attorney fees, but the court declined to consider these issues because it lacked jurisdiction to do so since the claim of appeal had already been filed. MCR 7.208; Vallance v Brewbaker, 161 Mich App 642, 648; 411 NW2d 808 (1987). Since the issues here have to do with possible amendments to the amount already awarded, it would have been more helpful for the lower court to have attempted to resolve these issues below, Vallance, supra, and possibly avoid the remand we now must order on these issues. Regarding damages, the damages were trebled under MCL 600.2907; MSA 27A.2907, which entitles a plaintiff to treble damages for malicious prosecution. Both parties focus their arguments on the applicability of Camaj v SS Kresge Co, 426 Mich 281; 393 NW2d 875 (1986), and whether this case comes under the limited prospective effect of its ruling defining the availability of treble damages in a malicious prosecution claim. However, neither party has shown that treble damages are appropriate in this abuse of process claim. Abuse of process is not the same as malicious prosecution. Early Detection Center, PC v NY Life Ins Co, 157 Mich App 618, 627-629; 403 NW2d 830 (1986). The statute in question does not apply to abuse of process claims. Peisner v Detroit Free Press, Inc, 68 Mich App 360, 365-366; 242 NW2d 775 (1976). Therefore, the damages should not have been trebled and we remand so that the court may make the necessary adjustment.
Regarding attorney fees, defendants raised an issue concerning Mitchell’s claim under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., which appears to challenge only whether the award of attorney fees under this act was appropriate. We note initially that the court awarded three separate amounts for attorney fees under three separate provisions: (1) 42 USC 1988, (2) the Civil Rights Act, and (3) MCR 2.403(0). The awards were not cumulative and the order specifically states that plaintiffs were entitled to the highest amount only, which was awarded under 42 USC 1988.
As to the merits of their civil rights claim, defendants are correct that if the special verdict form indicates that this claim was not upheld then the fees should not have been awarded. In this instance, the lower court is in the best position to resolve defendants’ claims regarding the special verdict form and whether the relevant instruction was given. If the trial court determines that the jury did not find a civil rights violation we note that the sole effect appears to be a need to correct the order regarding fees.
Attorney fees were also awarded to plaintiffs pursuant to 42 USC 1988, which provides that "the court, in its discretion, may allow ... a reasonable attorney’s fee” to the prevailing party in a cause brought under §§ 1983, 1985, or 1986. The United States Supreme Court has found that a fee may be upwardly adjusted if the "fee applicant” can show that such an adjustment is necessary. Blum v Stenson, 465 US 886, 897-898; 104 S Ct 1541; 79 L Ed 2d 891 (1984). As a matter of law we cannot say that the court erred in enhancing the fee here. However, since it does not appear that any challenge to the reasonableness of the fee was reviewed by the trial court, this issue should also be addressed by it on remand.
The final issue in the circuit court action is defendants’ challenge of the trial court’s failure to give a requested jury instruction that would have supplemented the definition of intentional infliction of emotional distress. Our review of the instruction given indicates it adequately and fairly represented the applicable standard as set out in Roberts v Auto-Owners Ins Co, 422 Mich 594, 602-603; 374 NW2d 905 (1985). The requested supplement was not so necessary to a fair determination of the claim that failure to give it was error. Beadle v Allis, 165 Mich App 516, 526; 418 NW2d 906 (1987).
ii
As to the Court of Claims case, both the Department of Corrections and the plaintiffs raise immunity questions. Initially, we note that the doc did not waive any claim to immunity by failing to raise this as an affirmative defense in its first responsive pleading. Governmental immunity is not an affirmative defense, but a characteristic of government which prevents imposition of tort liability. The burden is on the plaintiff to plead affirmatively in avoidance of governmental immunity in stating its claim. Meadows v Detroit, 164 Mich App 418, 432; 418 NW2d 100 (1987). Governmental immunity was not waived here.
On the immunity claims themselves, contrary to plaintiffs’ argument we find that the trial court was correct in recognizing immunity on the federal constitutional claims. Plaintiffs recognize that our Supreme Court has already determined that the state is not a "person” for purposes of a damage suit under 42 USC 1983. Smith v Dep’t of Public Health, 428 Mich 540, 544; 410 NW2d 749 (1987). While plaintiffs disagree with that decision, Smith does preclude plaintiffs’ claims brought under the federal Civil Rights Act.
We also find that plaintiffs’ tort claims were barred by governmental immunity. In this case, the doc could be vicariously liable only if the individual defendants, acting during the course of their employment and within the scope of their authority, committed a tort while engaged in a nongovernmental activity. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 625; 363 NW2d 641 (1984). That the defendants’ specific conduct resulted in a finding of individual liability is not determinative here. Instead, we look at the general activity involved, a lein check which the defendants were generally authorized to run to assist in the governmental function of maintaining security at the prison. Since the general activity here was an authorized governmental function, the trial court erred in not dismissing the tort claims on the basis of governmental immunity. Smith, supra, pp 606-610.
Plaintiffs further argue that their tort claims come under the nuisance exception to governmental immunity, citing Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978). It does not appear that this theory was ever raised prior to appeal and we will not address it now. State-William Partnership v Gale, 169 Mich App 170, 181; 425 NW2d 756 (1988). In any event, it is not clear from plaintiffs’ brief that this exception is applicable in these circumstances. Rosario, supra; Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988).
We also find that plaintiffs’ cross-appeal of the Court of Claims’ dismissal of their Civil Rights Act claim is without merit. The circuit court has exclusive jurisdiction over civil rights claims. Baxter v Gates Rubber Co, 171 Mich App 588, 591; 431 NW2d 81 (1988). That the Court of Claims has exclusive jurisdiction over claims against the state does not divest the circuit court of that statutory jurisdiction. The trial court sitting as a Court of Claims did not err in dismissing the claim for lack of jurisdiction. Littsey v Wayne State Univ Bd of Governors, 108 Mich App 406, 412-414; 310 NW2d 399 (1981).
The doc also raises a number of issues regarding the sufficiency of the evidence. Having already found that governmental immunity required dis missal of those claims we need not consider whether the claims based on misuse of the lein, abuse of process, intentional infliction of emotional distress, and conspiracy should have been dismissed.
The final issue in the Court of Claims case is the doc’s argument on the trebling of damages. Given our finding on governmental immunity, it appears, as noted by plaintiffs, that the remaining claims are those based on violation of the state constitution. Immunity is not available in a state court action where the allegations concern the state’s violation of rights conferred by the Michigan Constitution. Burdette v Michigan, 166 Mich App 406, 408-409; 421 NW2d 185 (1988). As noted by plaintiffs, defendant never moved for a directed verdict on these claims. Nor has defendant raised these claims on appeal. As discussed above, trebling the damages would only have been available if plaintiffs had been successful on a claim for malicious prosecution. MCL 600.2907; MSA 27A.2907. Therefore, this damage issue is also remanded to the trial court for the appropriate adjustment.
iii
In summary, as to the circuit court action, we affirm the determinations of the trial court denying defendants’ motion for directed verdicts, denying the individual defendants qualified immunity, granting a directed verdict on msea’s claim, and refusing to give the supplemental instruction. We remand, however, for the court’s consideration of the damages and attorney fees issues as discussed above.
In the Court of Claims action, we find that all the federal claims and the state tort claims should have been dismissed on the grounds of governmen tal immunity, thereby affirming and reversing determinations of the trial court. We agree that the Civil Rights Act claim was properly dismissed on the basis of lack of jurisdiction. We remand, however, for the court’s consideration of the damages issue discussed above.
Affirmed in part, reversed in part, and remanded for the limited purposes discussed above. | [
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Per Curiam.
Plaintiff appeals from a decision of the circuit court which affirmed defendant mesc’s Board of Review reversal of an mesc referee’s decision awarding plaintiff unemployment compensation benefits. We affirm.
Plaintiff was discharged from his employment with defendant Aeroquip Corporation after an incident with his supervisor in which plaintiff became verbally abusive towards the supervisor, calling him "asshole” and "prick.” Plaintiff filed for unemployment compensation benefits, which were initially denied on the basis that plaintiffs use of abusive and insulting language towards the super visor constituted wanton and wilful disregard of the employer’s interest. The hearing referee concluded that claimant did not commit wilful and wanton misconduct under § 29 of the mesc act, and, therefore, awarded unemployment benefits to plaintiff. The mesc Board of Review reversed the referee’s decision and denied benefits. The Board of Review’s decision was affirmed by the circuit court and plaintiff now appeals to this Court.
We begin by noting the standard of review to be applied in this case. This Court, in Washington v Amway Grand Plaza, 135 Mich App 652, 656-657; 354 NW2d 299 (1984), reiterated the standard of review:
The applicable standard of review was stated in Chrysler Corp v Sellers, 105 Mich App 715, 720; 307 NW2d 708 (1981):
"On appeal from decisions of the Board of Review, we may review questions of law or fact, Const 1963, art 6, § 28, MCL 421.38; MSA 17.540, but we can reverse only if the order or decision is contrary to law or is unsupported by competent, material and substantial evidence on the record. If there is no dispute as to underlying facts, questions presented on appeal are to be treated as matters of law. Laya v Cebar Construction Co, 101 Mich App 26, 29; 300 NW2d 439 (1980).”
The scope of appellate review clearly includes the soundness of the board of review’s interpretation of misconduct. See Helzer v Metzgar Conveyor Co, 89 Mich App 695, 700; 282 NW2d 187 (1979), dissenting opinion of Judge (now Justice) Cavanagh.
The definition for "misconduct” was also stated by the Court in Washington, supra at 657:
In Carter v Employment Security Comm, 364 Mich 538, 541; 111 NW2d 817 (1961), the Court adopted the classic definition of misconduct, quoting Boynton Cab Co v Neubeck, 237 Wis 249, 259-260; 296 NW 636 (1941):
" 'The term "misconduct” ... is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct” within the meaning of the statute.’ ”
Turning to the issue at hand, whether the use of vulgar or abusive language towards a supervisor constitutes misconduct, there appears to be no cases directly on point in Michigan. The issue has been considered in our sister states, however, which have, by and large, upheld the denial of unemployment compensation benefits based upon the claimant’s use of vulgar and abusive language, concluding that such actions constituted misconduct. See Zeches v Iowa Dep’t of Job Service, 333 NW2d 735 (Iowa App, 1983); Chapman v Office of Employment Security, Baton Rouge, 413 So 2d 581 (La App, 1982); Acord v Labor & Industrial Relations Comm, 607 SW2d 174 (Mo App, 1980). But see Christianson v Geo A Hormel & Co, 404 NW2d 334 (Minn App, 1987).
In looking at the use of vulgar or abusive language, we conclude that the use of such language can constitute employee misconduct. Certainly such conduct is wilful and deliberate since the employee can choose which words to use and, we believe, it violates the standards of behavior that an employer can reasonably expect from his employees. That is, we believe an employer has the right to expect his employees to act with a certain amount of civility towards management personnel and, for that matter, fellow employees. Of course, every use of a vulgar epithet does not necessarily constitute misconduct. Rather, the totality of the circumstances of the case must be considered in determining if the use of vulgar or abusive language constitutes misconduct. Thus, we must look to the words used and the context in which the words are spoken in determining whether an employee has engaged in misconduct. In looking at the totality of the circumstances, various considerations should be taken into account. Whether the use of vulgar or abusive language constitutes misconduct depends upon a variety of factors, including considerations such as whether the words were directed at a fellow employee, a supervisor, or a customer, whether the tone and context suggests an abusive intent or friendly badgering, whether the comments were made in a private conversation or in the presence of others, and whether such conduct has been condoned in the past.
Turning to the case at bar, while we are not prepared to say that plaintiffs conduct as a matter of law constitutes misconduct, neither are we prepared to say that his conduct does not as a matter of law constitute misconduct. Rather, we believe that plaintiffs use of vulgar language directed at his supervisor in a hostile confrontation is sufficiently supported by the record to allow the mesc to determine that plaintiff engaged in misconduct. That is, while we are not convinced that the mesc would have erred by ruling in plaintiff’s favor, neither are we convinced that the mesc erred in ruling against plaintiff. Given the standard of review employed in unemployment compensation cases, we believe that this is the appropriate case to defer to the judgment of the mesc. Accordingly, we affirm the circuit court’s affirmance of the decision of the mesc Board of Review denying benefits to plaintiff.
Affirmed. Defendants may tax costs.
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Per Curiam.
On March 9, 1989, this Court, on its own motion, vacated its judgment in this case issued on January 9, 1989, and retained the matter for reconsideration. Of concern was the effect of a constitutional provision and its case-law precedent, uncited by the parties, on the issue of the propriety of a police officer’s ordering a driver out of his car after having stopped the driver for a traffic violation. Two judges of this panel concluded that the Michigan Constitution’s search- and-seizure provision provided greater protection to drivers in such a situation than that available under the analogous provision of the federal constitution. Under the latter, a police officer’s order to a driver to get out of his car after the car has been lawfully stopped for a traffic violation does not violate the Fourth Amendment even though the officer had no reason to suspect foul play at the time. Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977). The third judge of this panel, writing in dissent, concluded that the record did not support the assumption that defendant was ordered out of his car by the police and, on the contrary, suggested that defendant had voluntarily gotten out of his car after having been lawfully stopped for a traffic violation._
On reconsideration, we hold that, even if defendant in this case were ordered out of his car by the police after having been legally stopped for a traffic violation, the narcotics evidence revealed after subsequent searches could not have been suppressed from evidence under the Michigan Constitution’s search-and-seizure provision because, under the circumstances in this case, that provision affords defendant with no greater protection than that provided under the analogous federal provision in the Fourth Amendment. Regarding the remaining issues raised by defendant on appeal and not addressed in the January 9, 1989, majority opinion, we adopt the reasoning and conclusions set forth in the dissenting opinion of that date.
The facts in this case were recited in our earlier opinion:
Defendant, Ronald Allen Harmelin, was convicted after a bench trial of possession of 650 or more grams of a mixture containing cocaine, MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and was sentenced on April 30, 1987, by the Oakland Circuit Court to a mandatory life term of imprisonment for the cocaine conviction and a mandatory two-year term of imprisonment for the felony-firearm conviction. On appeal, defendant argues that his convictions must be reversed because the evidence against him was obtained as a result of an unconstitutional seizure and pat-down search of his person and an unconstitutional search of his car, that his convictions must be reversed because he was deprived of the effective assistance of counsel, and that his sentence for the cocaine conviction must be set aside and a resentencing occur because a mandatory life sentence without the possibility of parole constitutes cruel and unusual punishment. . . .
The record reveals that in the early morning hours of May 12, 1986, two Oak Park police officers, Calvin Rix and Lawrence Blakeney, were patrolling in a marked police car in the area of the Embassy Motel in the City of Oak Park, and at 2:45 a.m. drove into the motel’s parking lot to check for stolen vehicles. Numerous stolen vehicles had been found in this lot in the past. At this time, the officers observed defendant’s car leaving the parking lot and, although they were called away on other police business at various times that morning, they saw defendant’s car entering the Embassy Motel parking lot at about 4:00 a.m. and again at 5:00 a.m. In the three sightings of defendant’s car, the officers noticed nothing unusual or illegal in the manner in which defendant’s car was being driven.
Shortly after 5:00 a.m., while continuing to patrol the area around the Embassy Motel, Officers Rix and Blakeney saw defendant’s car make a u-turn at the intersection of Eight Mile and Hubbell Roads, a high-crime area, without stopping for a red light. When the officers, in their patrol car with its overhead lights flashing, pulled behind defendant’s vehicle, defendant responded by stopping in a reasonably prompt fashion. Officer Rix walked to the driver’s side of defendant’s car, while Officer Blakeney positioned himself at the passenger side of the car. Defendant, who remained seated in his car, complied in a cooperative manner upon being requested by Officer Rix to produce a driver’s license and vehicle registration. Defendant then stepped out of his car. Neither of the officers could recall whether defendant was ordered out of his vehicle or whether he got out of it on his own initiative, although Officer Rix testified that if he did in fact order defendant out of the car, that order would have been prompted solely by the nervous behavior exhibited by defendant — behavior described as defendant’s having "trouble getting some of the words out.” In any event, after getting out of his car, defendant, in a nervous manner, informed Officer Rix that he was carrying a pistol concealed in an ankle holster. He explained that he had a permit for the weapon, however, and that he did not want the officers to become alarmed. He then handed Officer Rix a general permit to carry a concealed weapon as well as a safety inspection certificate for the .38 caliber, five-shot revolver, which was later found in his ankle holster.
After looking at the firearm documents proffered by defendant, Officer Rix observed nothing which suggested that the papers were possibly invalid. Nonetheless, because defendant appeared to be nervous, because he was armed, albeit legally, and because he had a bulge in one of his coat pockets, Officer Rix, fearing for his own safety and sensing that "[t]here was something wrong,” decided to conduct a pat-down search of defendant. In doing so, some marijuana was discovered, and defendant was placed under arrest.
In searching defendant after his arrest, the officers found other incriminating evidence in defendant’s possession, including assorted pills and capsules, three vials of white powder, ten baggies of white powder, drug paraphernalia and a telephone beeper. Later, pursuant to the standard policy of the Oak Park Police Department, defendant’s car was impounded for a possible forfeiture action, and an inventory search was conducted. During this search, a satchel containing a shaving-kit bag was discovered in the trunk. The kit contained $2900 in cash and two bags of white powder subsequently determined to be 672.5 grams of cocaine. A fingerprint expert testified that defendant’s fingerprints were found on books located inside the satchel and next to the bags of cocaine.
Defendant neither testified in his own behalf nor presented any witnesses.
In our earlier opinion, we recognized that in Mimms, supra, a majority of the United States Supreme Court held that a police officer’s order to a driver to get out of his car after the car was lawfully stopped for a traffic violation did not violate the Fourth Amendment even when the officer had no reason to suspect foul play at the time, and that other panels of this Court have cited Mimms with approbation, People v Laube, 154 Mich App 400, 408-410; 397 NW2d 325 (1986), lv den 428 Mich 856 (1987); People v Blackburne, 150 Mich App 156, 164-165; 387 NW2d 850 (1986), lv den 425 Mich 869 (1986). Nevertheless, we decided in our earlier opinion that, under the Michigan Constitution’s search-and-seizure provision, a driver such as defendant in the present case should be afforded more protection from the police than is afforded under the Fourth Amendment’s prohibition against unreasonable searches and seizures. In doing so, we followed the dissent of Justice Stevens in Mimms, and thus declared that a police officer, after stopping an automobile for a traffic violation, could not order the driver to get out of the car, and thus protract the driver’s detention, unless the test announced in Terry v Ohio, 391 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), had been fulfilled, i.e., unless the officer had a reasonable, articulable suspicion that the driver committed, or was about to commit, a crime. We opined that maintaining the Terry standard in situations involving traffic stops by police officers would help to ensure that the right to be free from unreasonable seizures would not be wholly eroded in traffic offense cases and, as a corollary, that citizens would not lawfully be vulnerable to unnecessary, intrusive, and intimidating police commands.
On reconsideration, we find that whether Justice Stevens, in his dissent in Mimms, had the better argument on this issue is not controlling because in this case we are obliged to follow the majority decision in Mimms. The search-and-seizure provision in the Michigan Constitution provides:
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state. [Emphasis added. Const 1963, art 1, § 11.]
The language of this section itself specifies that the protections granted under the section shall not be construed to bar from evidence any narcotic drug seized by a police officer outside the curtilage of a house. In this case, since the evidence was seized from defendant by the police on the open highway, and therefore outside the curtilage of a house, the protections granted under the state’s search-and-seizure provision are not available to defendant. Instead, defendant is entitled only to those protections available to him under the federal constitution. See People v Catania, 427 Mich 447, 466, n 12; 398 NW2d 343 (1986); People v Ragland, 149 Mich App 277, 281; 385 NW2d 772 (1986); People v Alfafara, 140 Mich App 551, 560-561; 364 NW2d 743 (1985). And, as already stated, under federal law, the police were entitled to order defendant out of his car after it was lawfully stopped for a trafile violation. Mimms, supra.
After defendant’s automobile was lawfully stopped for a trafile violation and after defendant was lawfully ordered out of his car, it is clear that a pat-down search of his person was warranted under the Terry standard, i.e., it was reasonable to conclude that criminal activity might have been afoot and that defendant might have been armed and dangerous. See People v Payton, 166 Mich App 428, 430-431; 421 NW2d 191 (1988); People v Peyton, 167 Mich App 230, 236-237; 421 NW2d 643 (1988). Defendant, in a high crime area during early morning hours, was admittedly carrying a pistol in an ankle holster, appeared to be extremely nervous, and had a bulge in one of his coat pockets which led the arresting officer to believe that defendant could have been carrying a second concealed weapon. Fearing for his safety and for that of his partner, and believing that, "[i]f [defendant] had, in fact, guns in his pockets where the bulges were, they could have been used on me, and I wouldn’t have had a chance to respond,” the officer conducted a pat-down search on defendant.
In the present case, defendant, prior to trial, moved to suppress the narcotics evidence against him on the ground that the detention and pat-down search to which he was subjected violated his Fourth Amendment rights. It is well established that evidence derived from an illegal seizure must be suppressed as the "fruit of the poisonous tree.” Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963); People v Shabaz, 424 Mich 42, 65; 378 NW2d 451 (1985), cert dis 478 US 1017; 106 S Ct 3326; 92 L Ed 2d 733 (1986). The trial court denied defendant’s pretrial suppression motion. This Court will not disturb a trial court’s ruling on a suppression motion unless that ruling is clearly erroneous. Payton, supra, p 430; Peyton, supra, p 235; People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). We will find such a ruling clearly erroneous if firmly convinced that a mistake has been made. People v Daniels, 160 Mich App 614, 617; 408 NW2d 398 (1987). We discern no reason to disturb the trial court’s ruling in this case.
Regarding the remaining issues raised on appeal by defendant, we agree with the reasoning and conclusions set forth in the dissenting opinion filed with our January 9, 1989, decision. We will review very briefly each of those issues.
First, defendant argues that his right not to be compelled to testify against himself was violated when Officer Rix asked him about the hard object felt in defendant’s chest pocket. This conversation took place prior to defendant’s arrest. Officer Rix believed that the hard object was another gun and asked defendant what it was. Defendant replied that it was marijuana. The limited constraint placed upon defendant’s freedom by the officer’s conducting the pat-down search does not rise to the level of a custodial interrogation and precludes a finding that defendant’s admission was compelled by police action. People v Hill, 429 Mich 382, 397; 415 NW2d 193 (1987).
Second, the warrantless search of defendant’s car was not an unjustifiáble intrusion upon his Fourth Amendment rights such that the fruits of this search should have been suppressed. Defendant’s car was properly impounded under the forfeiture provisions of the controlled substances act, MCL 333.7522; MSA 14.15(7522). However, because the officers’ testimony in the present case established that the Oak Park Police Department’s standardized procedures did not mandate searching and conducting an inventory of the contents of every container within an impounded vehicle such as defendant’s, the inventory search done in this case does not fall within the parameters of Colorado v Bertine, 479 US 367; 107 S Ct 738; 93 L Ed 2d 739 (1987); People v Krezen, 427 Mich 681; 397 NW2d 803 (1986).
Nevertheless, we find that the search in this case falls within the automobile exception to the warrant requirement enunciated in United States v Ross, 456 US 798; 102 S Ct 2157; 72 L Ed 2d 572 (1982), and adopted by this Court in People v Cruz, 161 Mich App 238, 241-242; 409 NW2d 797 (1987), lv den 430 Mich 855 (1988). Ten clear plastic bags filled with white powder, three small vials containing white powder, assorted pills and capsules, paraphernalia of the type used to facilitate the ingestion of cocaine, and a telephone paging device were retrieved from defendant’s person after his arrest. Moreover, a gun was strapped to defendant’s ankle when he was stopped by the officers. These facts establish probable cause to believe that defendant’s car contained more controlled substances. Probable cause exists when the facts and circumstances warrant a person of reasonable prudence to believe that the evidence of a crime or contraband sought is in a stated place. People v Goins, 164 Mich App 559, 560; 417 NW2d 499 (1987). Although the trial court’s denial of the suppression motion was not based on the automobile exception to the warrant requirement, reversal is not mandated where the trial court reaches the right result for the wrong reason. People v Beckley, 161 Mich App 120, 131; 409 NW2d 759 (1987) , lv gtd on other grounds 430 Mich 858 (1988) .
Third, under either the Michigan or federal standard, defendant’s claims that he was deprived of the effective assistance of counsel and the right to plead not guilty because (1) his trial counsel offered no evidence in response to the prosecutor’s case-in-chief, but solely confined the defense to attacking the admissibility of evidence found on defendant’s person and in his car, and (2) counsel did not argue that defendant was not guilty of knowingly possessing the cocaine found in his trunk, are both without merit. The evidence against defendant was overwhelming, and counsel’s strategy in concentrating the defense on the admissibility of the disputed evidence focused upon defendant’s best and only chance of acquittal. This choice of strategy was not the functional equivalent of a guilty plea, and defendant was afforded his constitutional right to plead not guilty. People v Schulz, 85 Mich App 527; 271 NW2d 305 (1978); People v Fisher, 119 Mich App 445; 326 NW2d 537 (1982).
Defendant’s last claim is that the mandatory sentence of life in prison is entirely out of proportion to the seriousness of his crime and constitutes a cruel and unusual punishment proscribed by US Const, Am VIII, and Const 1963, art 1, § 16. We disagree. See People v Harding, 163 Mich App 298, 329; 413 NW2d 777 (1987), vacated on other grounds 430 Mich 859 (1988).
Affirmed.
People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), sets forth the long-accepted Michigan standard; the federal standard is set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), and was applied in People v Dalessandro, 165 Mich App 569, 574-575; 419 NW2d 609 (1988), to a claim brought under the Michigan Constitution. | [
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Hood, P.J.
Plaintiff appeals by leave granted from an order of the Van Burén Circuit Court denying plaintiff’s motion to compel discovery in a paternity action. Plaintiff was seeking answers to interrogatories concerning defendant’s financial situation for purposes of establishing the amount of defendant’s support obligation. We reverse.
The complaint in this case was filed in September, 1983. This is the second time this case is before this Court. In an order of May 13, 1985, we reversed an order of the same judge disqualifying the Van Burén prosecuting attorney from representing plaintiff in this paternity action. (Docket No. 83696).
Following remand, an order of filiation was signed by defendant in September, 1986. The order specifically reserved the issue of past and present support for the child and ordered the Friend of the Court to investigate and prepare a written recommendation. Plaintiff had sought to subpoena information regarding defendant’s income prior to the order. The trial court found that the prosecuting attorney had acted beyond her statutory duties in issuing the subpoena and granted defendant’s motion to quash.
Following the entry of the order of filiation, plaintiff again sought information concerning defendant’s financial situation. The court granted defendant’s motion for a protective order, denied plaintiffs motion for discovery, and ordered plaintiff not to attempt further discovery. The court also ordered an evidentiary hearing on the issues of past and present support since the parties had not agreed to the recommendation of the Friend of the Court.
In denying discovery, the trial court gave three reasons for its decision: (1) discovery could not be used because the issue of the complaint had already been resolved when defendant acknowledged paternity; (2) proceedings to determine the amount of support are not subject to prejudgment rules of discovery; and (3) it was the job of the Friend of the Court to investigate and recommend child support matters.
In general, a trial court’s decision to deny discovery will not be reversed in the absence of an abuse of the court’s discretion. An abuse of discretion is evidenced by a decision violative of fact and logic. Eyde v Eyde, 172 Mich App 49, 54; 431 NW2d 459 (1988). Under the general court rules, parties may obtain discovery regarding any matter relevant to the subject matter in a pending action. MCR 2.302(B)(1). The general court rules apply in paternity cases unless they conflict with the Paternity Act or MCR 3.212. See Bowerman v MacDonald, 431 Mich 1, 16; 427 NW2d 477 (1988).
Both parents of a child born out of wedlock are liable for the necessary support and education of the child. MCL 722.712; MSA 25.492. In a typical paternity action, the trial court is asked to decide two issues: (1) the paternity question or whether this defendant is the father of the child; and (2) if he is, the specific sum the defendant shall be obliged to pay for the support of his child. MCL 722.717; MSA 25.497; Covington v Cox, 82 Mich App 644, 648; 267 NW2d 469 (1978).
The existence of the obligation — the question of paternity — is a question of fact and either party may demand a jury trial on this issue. MCL 722.715; MSA 25.495; People v Sweet, 346 Mich 684, 686; 78 NW2d 598 (1956). Apparently because of the quasi-criminal nature of the proceedings, including the fact that historically a defendant could be arrested under the Paternity Act, a defen dant was provided certain protections including the right to refuse to testify. MCL 722.715; MSA 25.495; Bowerman, supra, p 9. Since the defendant cannot be compelled to testify, he also cannot be compelled to answer interrogatories in a paternity action. Pridemore v Williams, 90 Mich App 483, 488-490; 282 NW2d 363 (1979). Although Pride-more does not describe the contents of the interrogatories prohibited there, it is apparent that the Court was concerned with the paternity aspect of the proceedings and whether the defendant was the father of the child in question. Id.
Once paternity is established, only the first half of the action is completed. If tried to a jury, its role is over and any resulting order for support becomes the concern of the court. Sweet, supra. In determining the appropriate level of support for the child, the court must consider the father’s ability to pay. Whybra v Gustafson, 365 Mich 396, 400; 112 NW2d 503 (1961); Hoke v Hoke, 162 Mich App 201, 206; 412 NW2d 694 (1987). As in any support litigation, the examination into defendant’s financial status at this stage of the proceedings becomes essential. Arnett v Arnett, 98 Mich App 313, 317-318; 296 NW2d 609 (1980). While the Friend of the Court may be called upon to investigate and recommend on this issue, its report is merely advisory. The report is not binding on the court. Hoke, supra, p 208. In fact, as the trial court noted here, since the parties would not agree to accept the Friend of the Court’s recommendation, a separate evidentiary hearing is required to resolve their differences on the appropriate level of support. Cochran v Buffone, 137 Mich App 761, 766-767; 359 NW2d 557 (1984); Jacobs v Jacobs, 118 Mich App 16, 21; 324 NW2d 519 (1982).
To say that discovery is not available when the issue before the court is the appropriate amount of support is not a logical application of our discovery rules. At this point in the proceedings, the focus is no longer on the defendant’s right to deny a paternity obligation. That issue has been resolved. The focus has shifted to the needs of the child and the father’s ability to pay. Information is needed for the parties to intelligently evaluate and decide whether to approve the Friend of the Court report. Information is needed for the parties to prepare for the evidentiary hearing on the issue of support. Information must be made available to the court in order to assist it in fashioning an appropriate order of support.
In general, discovery is allowed where the information requested will facilitate the preparation of an issue which must be presented to the court for its determination and will assist the parties and the court in furthering the ends of justice. Eyde, supra, p 54. It is understandable that a defendant would resist discovery on his financial status before his obligation to support the child is established. But to then deny discovery after paternity is established would be to deny the plaintiff any opportunity to discover the facts relevant to a just determination of this issue.
It appears here that part of the problem is that the court and defendant would limit discovery because the prosecutor is representing plaintiff. Our earlier order in this case resolved the prosecutor’s ability to represent the plaintiff here. There is no support for the argument that discovery should be limited because the prosecutor is doing her job. Defendant argues that the Paternity Act specifically requires the prosecutor to use the Friend of the Court’s child support formula as a guideline in requesting child support. MCL 722.714(3); MSA 25.494(3). However, there is no indication that use of this guideline limits the amount that may be sought or restricts the prosecutor’s duty to pursue the best interests of her client. If, as noted above, the report of the Friend of the Court is not binding on the parties, Cochran, supra, then it would not be logical to restrict one party to the formula used to produce that report.
We find that the trial court erred in restricting discovery here. Interrogatories related to defendant’s financial situation would not conflict with the restrictions of Pridemore. Since the issue of support need not logically be addressed until after a finding of paternity, it would not be logical to deny discovery on that issue at the point it becomes relevant to a complete resolution of the case. We find no reason for restricting discovery based on the separate service provided by the Friend of the Court.
The decision of the trial court is reversed and this cause is remanded for further action consistent with this opinion. This Court does not retain jurisdiction.
Reversed and remanded. | [
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On order of the Court, notice is hereby given pursuant to GCR 1963, 933, that the Supreme Court proposes an amendment to GCR 1963, 857 to read as follows (new matter in italics):
Rule 857. Printing, Filing, and Serving Briefs and Appendices.
.1-4 — Unchanged.
.5 Length of Brief. Except by permission of the Court for good cause shown, a brief shall not exceed 50 pages of standard typographic printing or other methods authorized under GCR 1963, 857.1(1) exclusive of the table of contents, index of authorities, and appendix. In any brief where the argument portion of any presented question extends beyond 20 printed pages, a summary of argument shall be included. Such summary shall be a succinct, accurate and clear condensation of the argument actually made in the body of the brief and shall not be a mere repetition of the headings under which the argument is arranged.
A copy of this order shall be given to the Secretary of the State Bar of Michigan and to the Court Administrator, pursuant to GCR 1963, 933, and any comments with reference to the adoption of the proposed amended Rule 857 may be forwarded to the Chief Justice or Michigan Supreme Court Director of Legal Services within 60 days from the publication of this rule. | [
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] |
J. W. Fitzgerald, J.
The major issue in this appeal from an order of the State Bar Grievance Board is whether the board was justified in increasing to one year a suspension from the practice of law over the previous 130-day suspension ordered by the hearing panel. Such increased penalty, respondent states, "was arbitrary, capricious, and unjudicious — without proper reason.”
A lengthy recital of the hearings conducted would serve little purpose. Indeed, more than 200 pages of testimony and many hours on the parts of all parties resulted in a thorough examination of the facts lying behind the complaint. To summarize, the events in the Ottawa County Probate Court resulted in a formal complaint being filed against defendant on November 15, 1972 consisting of three counts, a fourth subsequently being added by an amended complaint. All counts alleged violations of the Michigan Standards of Conduct, the Code of Professional Responsibility, and the Canons of Professional Ethics. The common thread throughout the four counts asserted incompetence and neglect which was prejudicial and contrary to justice, ethics, and good morals, exposing thereby the court to obloquy, contempt, censure, and reproach. Count 1 alleged unprofessional conduct and neglect in representing Mary Allen, surviving spouse of Vernon Allen. Specific charges included failure to advise Mrs. Allen that she was entitled to widow’s allowance, advising Mrs. Allen that she was required to purchase the decedent’s automobile and burial plot from the estate, commingling of estate funds with his own, and failure to file an annual inventory and accounting.
Count 2 alleged misconduct in representing the estate of John and Marion Norton. Defendant was charged with commingling of funds, failure to distribute funds to the guardian of the deceased couple’s child and other surviving heirs, and failure to file an annual inventory and accounting.
Count 3 alleged misconduct in representing the estate of Fred VanderWagen. Included were failure to file an annual inventory and accounting from 1963 through 1967 and failure to reimburse the State of Michigan for sums received on behalf of the estate.
An amended complaint incorporated the first three counts by reference and added a fourth count, alleging that defendant’s neglect was responsible for the court’s exposure to contempt, censure, and reproach.
Defendant’s answer denied each allegation brought under count 1, offering explanations which arguably counter all allegations. As to count 2, defendant stated he exhausted every effort to locate decedent’s survivor. Moreover, because the estate was depleted by necessary expenses, there were no funds to be distributed. The allegation in count 3 that defendant failed to file an inventory was attributed to his inability to obtain information from the guardian of the estate who claimed all assets belonged to her. This situation was further compounded by defendant’s undergoing major surgery. Defendant argued the probate court hearing resulted in an opinion that was both inconsistent with the facts and unjudicious in nature. As to count 4, defendant argued that the filing of the amended complaint is without authority.
A hearing panel heard the complaints charged pursuant to Rule 16, § 16.13 of the State Bar Rules, and found defendant guilty on all four counts. The panel issued an order of suspension from the practice of law for 130 days. On appeal, the State Bar Grievance Board reversed the hearing panel as to count 1, sustained the findings as to the other three counts, and determined that defendant should be disciplined by being suspended from the practice of law for a period of one year.
Defendant argues that no justification exists for increasing the period of suspension from 130 days to one year. It escapes defendant how the board, after reviewing the whole record, can increase the penalty imposed when one of the four counts filed was dismissed. While defendant admits some probate matters were not handled properly or diligently, he states that these deficiencies were attributable in large measure to a severely ill child, personal health problems, and marital complications.
The State Bar Grievance Board does not believe it abused its discretion in suspending respondent from the practice of law for one year, an increase over the 130 days prescribed by the panel.
An exhaustive review of the record leaves the reader with more than a flavor of unprofessional conduct on respondent’s part. Inter alia, there is credible testimony by court personnel and likewise judicial testimony that respondent not only failed to file accounts and inventories, but that he failed to respond to court order to file such accounts and inventories, that he failed to pay claims promptly, and maintained a bookkeeping system that failed to reflect the status of various probate funds. It appears that commingling estate funds with his own was never specifically proven.
Testimony by the Register of Probate estimated at 50 to 60 the number of estates requiring the sending of a form notice of delinquency in estate proceedings, these proceedings representing an aggregate inventory value of $756,524.96.
The exhaustive nature of the record leads us to the conclusion that respondent has had a complete review of his conduct. We are in agreement with the board’s finding that professional misconduct by defendant occurred while representing the interests of his clients. It is clear that the board has the power to increase the period of suspension ordered by the hearing panel. However, where, as here, a portion of the panel’s findings of misconduct is reversed, yet the penalty ordered is increased, the order for discipline should set forth reasons supporting the imposition of a more severe penalty.
This action is remanded to the Grievance Board for the purpose of setting forth reasons in support of the order of discipline. We retain jurisdiction.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, Williams, Levin, and M. S. Coleman, JJ., concurred with J. W. Fitzgerald, J.
State Bar Rule 16, § 16.15 provides: "After hearing on the order to show cause, the board shall confirm, amend, reverse, or nullify the order of the hearing panel in whole or in part or order other discipline. The board shall file and serve its order on review the same as set forth for orders of hearing panels.” | [
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Per Curiam.
On February 28, 1972, the City of Ann Arbor filed three petitions with the State Tax Commission seeking to have certain presently tax exempt property placed on its assessment roll. In these petitions the city alleged that the real and personal property "owned and occupied” by the Michigan Union, the Board in Control of Intercollegiate Athletics and the Lawyers Club is not tax-exempt property of the University of Michigan, but rather the separately owned property of these nonprofit corporations.
The State Tax Commission, acting on the advice of its counsel, summarily denied the city’s petitions on March 23, 1972. When the city was informed of the State Tax Commission action, it formally requested a hearing under MCLA 211.154; MSA 7.211 to resolve the taxable status of the property. The commission declined to hold a hearing. Instead, it directed the parties to submit briefs addressed to the issue of the taxation.
On July 26, 1972, after receiving the briefs, the commission again voted to dismiss the city’s petitions. In a letter addressed to the city assessor the commission offered the following explanation:
"The Commission finds that the Michigan Union, the Lawyers’ Club, and the Board of [sic] Control of Intercollegiate Athletics are corporation shells which own no property, but are custodians of property owned by the Regents of the University of Michigan.
"The records of the Register of Deeds of Washtenaw County reveal that ownership of the Michigan Union is in the Regents of the University of Michigan as well as the Lawyers’ Club and the property under control of the Intercollegiate Athletics, including the Stadium, the field house and IM Building and the golf course.
"The Commission finds that it is of little import that this corporate shell mistakenly reported that they are owners of the property under their control and since the assessor and the city attorney of Ann Arbor agree that property of the University of Michigan is exempt from property taxation and since the Commission finds that the properties named above are properties of the University of Michigan, the petitions are denied.” •
The city appealed the commission’s refusal to grant it a full hearing to the Court of Appeals. After the Court of Appeals affirmed, the city appealed to our Bench and we granted leave to appeal. 391 Mich 782 (1974). We now reverse and remand since we find that the commission should have conducted a full hearing on the questions presented to it.
In relevant part MCLA 211.154; MSA 7.211 provides:
"If it shall be made to appear to the commission at any time that as a matter of fact any property liable to taxation has been incorrectly reported for any previous year, but not to exceed the current assessment year and 1 year immediately preceding the date of discovery and disclosure of the omission, but not prior to the effective date of the 1969 amendment to this section, the commission shall notify by registered mail the person to whom such property is assessable and give such person an opportunity to appear at a hearing before the commission, which hearing shall be held not later than 30 days from the date of notification by mail. If it appears to the commission that no reason in fact or in law exists which would justify an exemption of such property from taxation for those 2 years, it shall immediately place the total aggregate assessment value for the omitted years on the then current assessment roll in the column provided. * * * ”
A reading of the commission’s decision letter indicates that it was necessary for the commission to consider and resolve factual questions before it could reach its final legal conclusion that the property was correctly listed as tax exempt. In such a situation we believe that the preferable procedure, and the procedure required by fairness and a reasonable construction of the statute, is for the commission to make its factual decision after it has provided the parties with an opportunity to fully develop their positions at a hearing.
The Court of Appeals is reversed and this matter remanded to the Tax Tribunal for further proceedings in conformity with this opinion. We offer no opinion as to the substantive issues to be resolved on remand.
No costs, a public question being involved.
T. M. Kavanagh, C. J., and Swainson, Williams, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred. | [
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Williams, J.
The primary question in this appeal, a matter of first impression before this Court, involves interpretation of what appears to be a common automobile insurance policy clause extending coverage for purposes of protection against damages caused by an uninsured motorist to any "assured” who was "occupying the insured automobile”, the term "occupying” being defined in the policy as "in or upon or entering into or alighting from”.
We hold that plaintiff in the instant case was covered under the language above due to (1) his immediate prior "occupying” of the insured vehicle, and (2) his suffering of an injury arising out of the use or repair of the same automobile. The Court of Appeals having reached a contrary conclusion, is, accordingly, reversed.
I — Facts
On December 24, 1969, plaintiff-appellant Bruce Nickerson was a passenger in an insured automobile operated by Curtis Parvin in Davison, Michigan. The car stalled, was pushed to the side of the road by the occupants, and a passing motorist was flagged down to provide assistance. As the assisting car was turning around to come back to render aid, plaintiff Nickerson got out of the Parvin automobile on the driver’s side and walked around to the front of the car. At this point, a third automobile driven by an uninsured motorist struck the insured Parvin automobile from behind, pushing it into plaintiff Nickerson who suffered injuries resulting in amputation of one leg, injuries to the other leg, and severe internal injuries.
Plaintiff sought recompense from defendant, insurer of the Parvin automobile. An arbitration award of $25,000 was made to plaintiff who thereupon filed suit in Genesee Circuit Court to confirm the award and to receive a modified judgment for $10,000, the policy limit. Plaintiff prevailed in full on February 27, 1973, the trial court finding, inter alia, that:
“There were no interruptions in the action of Bruce Nickerson after the automobile stalled, between his alighting from the stalled automobile, between his pushing the stalled automobile, entering the automobile, and again alighting from the automobile at the request of Curtis Parvin for assistance, and the accident producing his injuries.”
The Court of Appeals reversed in a 2-1 opinion on March 6, 1974, the majority finding that plaintiff was not an "occupant” of the Parvin vehicle within the policy language. 52 Mich App 40; 216 NW2d 484 (1974). We granted leave on May 22, 1974. 391 Mich 829.
II —Jurisdiction
The threshold issue in this case is jurisdictional. Plaintiff contends that defendant lost the right to contest the arbitration award when it failed to challenge it within 20 days after receipt of a copy of the award. However, the arbitrator did not rule on the issue at bar. The award reads, in relevant part, as follows:
"Issue 3 raises the question as to whether Nickerson was an assured within the meaning of the Citizens’ policy. This issue bears upon whether claimant is entitled to recover from the insurer and not the uninsured motorist. This is a matter to be decided by Court and is not subject to arbitration. ” (Emphasis added, citations omitted.)
It would appear, accordingly, that defendant only lost the right to challenge the two issues that were decided in arbitration: fault and damages. Defendant does not contest these issues in this appeal. As the Court of Appeals noted, Rule 769 cannot reasonably be interpreted so as to require defendant "to move to vacate or modify the award on an issue (occupancy) which was neither considered nor determined. The circuit court would have nothing to rule upon”. 52 Mich App 40, 44.
The instant case is properly before this Court.
Ill — Plaintiff Was ”Occupant” Under Policy Language
Under the terms of the policy issued by defendant, plaintiff was an "assured” for purposes of protection against damages caused by an uninsured motorist if he was "occupying the insured automobile”. The term "occupying” is defined in the policy as "in or upon or entering into or alighting from”.
With regard to this precise language, the instant case is one of first impression. However, in other jurisdictions there are numerous cases interpreting identical language. See generally: Annotation, Automobile Insurance: When Is A Person “Occupying” An Automobile Within Meaning Of Medical Payments Provision, 42 ALR3d 501. What becomes clear upon research into the law on point is that there are two distinct lines of thought on this matter — one line of cases requires "physical contact” for recovery, the other line of cases holds that "physical contact” alone is not the operative test for coverage. In the instant case, plaintiff claims policy coverage under this second line of cases pointing to (1) his immediate prior occupancy of the insured vehicle, and (2) his suffering of an injury arising out of the use or repair of the same vehicle.
In either case, courts considering this matter have uniformly interpreted such policy language bearing in mind the well-established maxim that language in an insurance policy is to be strictly construed against the insurer. This rule is, similarly, well-embedded in Michigan law. 14 Michigan Law & Practice, Insurance, § 93, p 71.
As well, many, if not most, of those courts leaning to the "physical contact” rule have utilized it in an expansive manner tending to favor thereby the injured claimant. See for example Wolf v American Casualty Co, 2 Ill App 2d 124; 118 NE2d 777 (1954) (physical contact found where claimant was 2 or 3 feet in front of the car which was pushed into him by being struck by another car from the rear — almost this case); Madden v Farm Bureau Mutual Auto Ins Co, 82 Ohio App 111; 37 Ohio Op 456; 79 NE2d 586 (1948) (physical contact found where claimant was leaning over the trunk); McAbee v Nationwide Mutual Ins Co, 249 SC 96; 152 SE2d 731 (1967) (physical contact found where claimant crushed between truck and tractor put his hands out to try to push them away).
In this vein, we should also parenthetically bear in mind, as Judge McGregor pointed out in his Court of Appeals opinion, that unquestionably "appellee was in contact with the automobile at the time of his injury”. 52 Mich App 40, 48. Certainly it cannot be disputed that without "physical contact” in this case, there would have been no injury. Hence, a strictly literal reading of the policy language also favors plaintiff in this case. Who can doubt that plaintiff was "upon” the car when injured?
In sum, the approach to interpretation of this policy language which does not hold "physical contact” mandatory, appears to us to be by far the more reasonable and persuasive approach. It accords with a strict reading of the policy language, it well implements the time-honored policy of construction of policy language against the insurer, and, perhaps most significantly, as Judge McGregor and plaintiff point out, it guards against recovery based entirely upon "fortuitous circumstance”. As plaintiff reasons:
"If defendant-appellee’s argument that there must be a physical touching of some part of the auto were to prevail, the following situation with on again off again coverage could be easily imagined. While getting out of the auto, a person would be an occupant and covered; after closing the door but still touching it, there would be coverage; after removing his hand from the door there would be no coverage; while walking to the front of the auto, there would be no coverage; after arriving at the front of the auto, and placing his hand on the front hood, there would be coverage again; after removing his hand from the front hood, there again would be no coverage. This undoubtedly is the sort of thing the dissent in the Court of Appeals was referring to when stating that the touching or not touching is a mere fortuitous event.”
IV —Conclusion
We conclude that plaintiff Nickerson, due to his immediate prior "occupying” of the insured vehicle and his subsequent injury arising out of the use or repair of the same vehicle, was an "as sured” under the policy of automobile insurance issued by defendant.
The trial court decision in this cause is affirmed. The Court of Appeals is reversed.
Costs to plaintiff.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred with Williams, J.
GCR 1963, 769.9(2) provides:
".9 Vacating an Award.
"(2) An application under this Rule shall be made within 20 days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within 20 days after such grounds are known or should have been known.”
The arbitrator found that Nickerson was not guilty of contributory negligence and that he was damaged in the amount of $25,000.
The Court of Appeals, however, has collaterally and summarily considered this matter once previously, holding that a plaintiff was "occupying” an insured vehicle when "[a]t the time he was struck decedent was bending over the trunk of a vehicle in which he had been a passenger, but which was not disabled”. Collins v Motorists Mutual Ins Co, 36 Mich App 424, 426, 428; 194 NW2d 148 (1971).
Defendant contends that two prior decisions of this Court are controlling precedent: Eynon v Continental Life Ins Co, 252 Mich 279; 233 NW 228 (1930), and Wertman v Mutual Liability Co, 267 Mich 508; 255 NW 418 (1934). However both cases are clearly distinguishable due to the difference in policy language in those cases and the instant case.
In Eynon, the relevant portion of the insurance policy covered injuries caused:
" 'By the wrecking or disablement of any private automobile, motor driven car or horse drawn vehicle, in which the insured is riding or driving, or by being accidently [sic] thrown from such automobile, car or vehicle.
" 'By being struck or knocked down or run over while walking or standing in or on a public highway, by any automobile, or any vehicle ***.’” 252 Mich 279, 280.
This Court in Eynon held that the insured’s death from an explosion while changing a flat tire was not within the policy coverage.
In Wertman, the insured’s death through electrocution caused by touching his car less than five minutes after striking an electrical pole, was held not to be covered by a policy insuring against injuries "caused while the insured is riding in * * * or by being accidentally [sic] thrown from the automobile hereinbefore described”. 267 Mich 508, 510.
See also: Annotation, Scope of clause of insurance policy covering injuries sustained while "in or on" or "in or upon" motor vehicle, 39 ALR2d 952; Annotation, Scope of clause of insurance policy covering injuries sustained while alighting from or entering automobile, 19 ALR2d 513.
This very approach to this question was adopted by the New York Supreme Court in Motor Vehicle Accident Indemnification Corp v Oppedisano, 41 Misc 2d 1029; 246 NYS2d 879 (1964). | [
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ORDER
Entered December 23, 1974. — Reporter.
On order of the Court, the application by plaintiffs and appellants for leave to appeal is considered and the same is hereby granted. The Court, on its own motion, pursuant to GCR 1963, 865.1(7) peremptorily reverses the Court of Appeals.
Plaintiffs commenced this action on November 23, 1970 to recover for injuries suffered in an accident which occurred on July 27, 1969. The action was dismissed for lack of progress on February 14, 1972 but was reinstated on March 20, 1972.
Personal service was not effected until June 23, 1973, almost 4 years after the accident, 2 years and 7 months after suit was commenced.
From 1969 until June 6, 1972, defendant was a nonresident of Michigan. Plaintiffs did not place the summons in the hands of an officer but employed a professional process server who was unable to serve the defendant. After the defendant again became a resident of Michigan on June 6, 1972, plaintiffs, on September 5, 1972, attempted to take advantage of the procedures for serving out-of-state residents by serving a copy of the summons on the Secretary of State and directing a registered mail letter to the defendant out of state, which was forwarded to the defendant and received by him in Michigan.
In Buscaino v Rhodes, 385 Mich 474, 484 (1971), this Court held that, for purposes of the statute of limitations as Well as other purposes, an action is commenced upon filing of a complaint:
"We, therefore, hold that plaintiffs did comply with the statute of limitations, in that the complaint was filed pursuant to GCR 1963, 101 and the action commenced and, the provisions of the statute of limitations thus being met, the fact of subsequent service of the complaint can in no way affect the commencing of the action.”
Subsequently, this Court amended GCR 1963, 102 to provide that a summons shall not be valid for longer than 180 days from the date of the filing of the complaint, to require dismissal without prejudice of actions where the defendant has not been served within 180 days, and imposing upon the clerk of the court the duty of entering such an order of dismissal.
The trial judge dismissed on the basis of GCR 1963, 102.4 and 102.5, reasoning:
"Granting that Buscaino v Rhodes, 385 Mich 474, decided that the date a lawsuit is started is to be determinative of statute of limitations questions, the provisions of GCR 102.5 allow 180 days for service. 180 days after plaintiff started suit would be May 23, 1971. Plaintiffs’ attorney service on the secretary of state was on May 5, 1972.
"Furthermore, plaintiffs’ cause of action ¿rose on July 27, 1969, the date of the accident. On July 28, 1972, more than the three years allowed by the statute of limitations had expired.”
The unreported opinion of the Court of Appeals, affirming the trial court, reads:
"Plaintiffs brought an action seeking to recover for injuries sustained in an automobile accident. Defendant’s motion for an accelerated judgment was granted on the ground that the defendant had not been properly served with process and that the action was now barred by the statute of limitations; MCLA 600.5805(7); MSA 27A.5805(7).
"An examination of the record and briefs discloses no prejudicial error.
"Affirmed on the authority of Krontz v Estovez, 49 Mich App 30; 211 NW2d 213 (1973).”
The statute of limitations was tolled from and after November 23, 1970, the date that this action was commenced.
While amended Rule 102 obliges the clerk of the court to dismiss a complaint upon the expiration of 180 days from the date of the filing of the complaint and provides that he shall "automatically enter an order of dismissal”, the rule is not self-executing and until the clerk in fact dismisses the complaint, the complaint is not dismissed.
In this case the clerk of the court did not dismiss plaintiffs’ complaint pursuant to GCR 102.5. Personal service was effectuated before the trial judge entered his order dismissing this action on the ground that it was barred by the statute of limitations.
We disapprove of the reasoning of the Court of Appeals in Krontz v Estovez, supra, and Wright v Estate of Treichel (on reh), 47 Mich App 626, 629 (1973), construing "Buscaino as holding that once a complaint has been filed within the time limits prescribed by a statute of limitations, service of the summons and complaint may be made within a reasonable time after the period provided in the statute for timely commencement of an action.”
The "reasonable time” limitation on the Buscaino holding is at odds with the procedure set forth in amended Rule 102 providing for dismissal of actions in cases in which service is not effected. That procedure governs without regard to the "reasonableness” of the time which has elapsed since commencement of the action or since the date on which the statute of limitations would otherwise expire.
Kelman, Loria, Downing, Schneider & Simpson (by Sheldon J. Stark), for plaintiffs.
Harvey, Kruse & Westen, P. C (by Peter J. Collins), for defendant.
(Docket No. 56182.)
Case below, Court of Appeals No. 17914, memorandum opinion of July 16, 1974.
The order granting defendant’s motion for accelerated judgment is hereby reversed. The matter is remanded to the Circuit Court for the County of Wayne for further proceedings consistent with this order. This Court retains no further jurisdiction over the matter. | [
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] |
M. S. Coleman, J.
We concur in that part of Justice Levin’s opinion which affirms the respondent’s suspension, but cannot agree that the suspension imposed is excessive. Therefore, we would affirm the State Bar Grievance Board order without alteration.
We must not lose sight of what respondent has done. He has profited from his position as an attorney by acting as a middleman in child adoption proceedings, which comes within my definition of "gray marketing” of babies. He has not merely used the process to help join those who want to adopt with children who need adoption. He has abused the process in a piratical fashion. His suspension is not excessive.
The hearing panel found that respondent represented a married couple in adoption proceedings. He received a fee of $500. In addition to this fee, respondent demanded reimbursement for all medical costs attributable to the child’s birth. The couple only agreed to pay so much as ordered by the probate court. The court disapproved reimbursement of some $800. Respondent then asked the adopting father to sign a petition for rehearing, threatening that if the father refused, respondent would file a motion in the name of the natural mother. This would result in the natural mother learning the names of the adopting parents. Petition for rehearing was filed. The probate court denied the petition.
It is this conduct which is characterized as "an idle, impetuous threat.” The hearing panel obviously did not consider the threat in this light. The Grievance Board obviously did not so treat the threat. There is nothing submitted to this Court which would cause me to treat the threat any differently. Adoptive parents naturally want to preserve their anonymity. Respondent threatened his own clients with disclosure of information gathered during the course of his representation of them. Such conduct would be reprehensible in any case. It is especially so when an attorney conducts himself in such a manner against his own clients. The State Bar Grievance Board did not impose an inappropriate penalty.
As to the other allegation of misconduct here at issue, the hearing panel found that respondent accepted an appointment as guardian ad litem for the natural mother in an adoption proceeding. This occurred after he had received $500 from the adopting parents and had been promised an additional $500. The adopting parents had been told by their attorney that such a fee had to be paid to respondent. Previously respondent had directed the natural mother to contact the attorney representing the adopting parents. After these events occurred, respondent stated to a probate court attorney that he had no interest in the proceedings, nor was he associated with the attorney representing the adopting parents.
Respondent’s statements to the probate court attorney are characterized as a failure "to respond accurately” as a "lack of candor” and as "dissembling”. Call it what you will, respondent’s conduct was clearly unprofessional. I find respondent’s failure to tell the truth to the probate court attorney acting in an official capacity warrants the one-year suspension recommended by the hearing panel and affirmed by the State Bar Grievance Board.
The public should be able to expect and receive a high standard of ethical conduct from those who have been admitted to the practice of law. Indeed, the standard of conduct should be above that of the "average” person. Lawyers historically have been expected to obey laws and rules and to assist the court. To deceive the court is to undermine its very foundations, for it is a tenet of our judicial system that lawyers are officers of the court.
We affirm the order of the State Bar Grievance Board.
T. M. Kavanagh, C. J., and Williams and J. W. Fitzgerald, JJ., concurred with M. S. Coleman, J. | [
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ORDER
Entered December 24, 1974. — Reporter.
On order of the Court, defendant’s conviction is peremptorily reversed and a new trial ordered on the ground that defendant sought to have the court exercise its discretion to exclude prior conviction evidence, and it is apparent that the court failed to recognize that it had such discretion and failed to exercise it. See People v Jackson, 391 Mich 323 (1974). In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion.
M. S. Coleman and J. W. Fitzgerald, JJ., dissent:
Defendant was convicted of breaking and entering with intent to commit larceny and rape. When the prosecutor sought to cross-examine defendant about a prior rape conviction, defense counsel objected and an argument commenced. The trial judge cut off the argument, however, saying, "You cite the cases and that’s enough.” Defense counsel did cite various cases regarding the admissibility of evidence of other offenses not prior convictions. Later the court overruled the objection.
This Court finds that the judge failed to exercise his discretion in allowing the testimony. True, the trial judge did not specifically say that he was exercising his discretion. We doubt that many judges would say in effect, "I have exercised my discretion and so overrule the objection.” They more likely would simply consider the matter and proceed to rule.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training & Appeals, and Thomas Khalil, Assistant Prosecuting Attorney, for the people.
State Appellate Defender Office (by Roger L. Wotila), for defendant.
(Docket No. 55206.)
Case below, Court of Appeals No. 15245, per curiam opinion of August 1, 1973.
None of us can read the judge’s mind, but we interpret his words and actions to mean that he had been asked to exercise his discretion and had done so.
Although the trial was three years before Jackson, in another day another judge might find Jackson among the cases cited in a similar situation.
We would affirm. | [
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M. S. Coleman, J.
GCR 1963, 785.12 was given effect prospectively on September 1, 1973. Defendant in substance asks that the rule be made retroactive, giving him access to the presentence report used in his January 31, 1972 sentencing and prays remand for resentencing. We conclude that a defendant sentenced prior to the effective date of the rule is not entitled, as matter of right, to inspect the presentence report. We affirm the Court of Appeals.
FACTS
Defendant pled nolo contendere to the charge of negligent homicide, reduced from manslaughter.
At sentencing the trial judge stated that he had "read over completely several times the report of the probation officer” and indicated that "on the basis of the information which it has from the probation report and from other knowledge” he would impose sentence, having "considered all of the matters”.
Included in the presentence report was an unsigned complaint against the defendant as well as a reference to an arrest of the defendant which did not result in a conviction. There is no claim that the report is inaccurate.
Defendant was sentenced to one to two years in prison.
I.
The threshold question is whether defendant is entitled as a matter of right to inspect his presentence report. He claims that the trial judge erred when he, refused access to -the report to trial counsel and denied a motion to resentence.
It was the clear intent of this Court to discontinue prior practice and to promulgate a new rule for future practice. The trial judge did not err.
II.
The trial judge did allow appellate counsel to inspect the report and defendant complains of two convictionless charges contained in that report. One pertains to his previous assaultive conduct involving his deceased wife who was the victim of the homicide and one to his girlfriend to whom he was subsequently married. The trial judge is required to inquire into a defendant’s antecedents and character prior to sentencing. As Judge R. B. Burns of the Court of Appeals said, "[t]he trial judge is entitled to know the 'bitter’ as well as the 'sweet’ side of defendant’s character”. (Letters on defendant’s behalf and two personal visits from a minister and another were considered. The judge conferred with defense counsel prior to sentencing.)
We find no proofs of prejudicial or inaccurate material in the report.
III.
Defendant belatedly also requests this Court to rule that the plea of nolo contendere was improperly accepted. The issue was not raised in the Court of Appeals nor was it included in the pleadings of application for leave to appeal to this Court. It first appeared in defendant’s brief.
We decline to review this issue. It is recognized, however, that the Court may from time to time rule upon such issues in the exercise of its discretion when the ends of justice demand.
Affirm.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, Williams, Levin, and J. W. Fitzgerald, JJ., concurred with M. S. Coleman, J.
".12 Presentence Reports. The sentencing court shall permit the defendant’s attorney, or if he is not represented by counsel, the defendant to inspect the presentence report. The prosecution shall also be shown the report. Both parties shall be given an opportunity at time of sentencing to respond to the presentence report and to explain or controvert any factual representations disclosed. The court may except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which have been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court shall state for the record the reasons for its action and inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure shall be subject to appellate review.” | [
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Swainson, J.
In 1971 the Cooper Township Supervisor prepared the Township’s 1971 assessment roll at what he considered 50% of true cash value as required by law. The Township Board of Review thereafter inspected the assessment roll, made adjustments, and certified to the Kalamazoo County Board of Commissioners that the assessment roll stood at 50% of true cash value.
The Cooper Township assessment figures were then reviewed by the Kalamazoo County Board of Commissioners as required by MCLA 211.34; MSA 7.52. On review, the Board of Commissioners accepted the report of the Kalamazoo County Equalization Director which concluded that the Cooper Township assessment was made at a ratio of only 42.27% of true cash value and therefore, should be increased in value.
Cooper Township (Township) filed a petition for review of the Kalamazoo County Board of Commissioner’s decision with the State Tax Commission (Commission). The Commission, by letter, informed the Township that its petition for review was being denied because "the supervisor did not at the time of filing the appeal have evidence of discrimination against the township in the adoption of the equalization report.” See, MCLA 211.34; MSA 7.52. The Township then appealed to the Court of Appeals which subsequently denied leave. This Court on December 22, 1971, granted leave and summarily remanded the case to the Commission for a full hearing on the merits. Cooper Twp v State Tax Commission, 386 Mich 777 (1971).
After this Court remanded the matter for a hearing on the merits, the Commission assembled a staff of appraisers and assigned them to Kalamazoo County to conduct a full equalization study. The Township, in a letter dated January 7, 1972, requested that it be allowed to copy all "work sheets, forms, materials, and documents which are to be used in such reinvestigation or generated as a result of the same as said documents are prepared.” The Commission denied the Township permission to copy the staff papers as they were prepared, but in a letter of January 27, 1972 did agree to allow "the supervisor of Cooper Township [to] examine the appraisals of the State Tax Commission in the Tax Commission office and any copies of the appraisals that he desires will be reproduced and provided at a cost of l(ty per page.”
On April 4, 1972, the Commission informed the Township that it had completed its study of Kalamazoo County and would make available "the detailed appraisal record cards of any of the properties * * * as you request.” On May 11, the Township attorney went to the Commission’s office, copied the available appraisal forms and requested to copy any additional papers used in the study. In response to this request the Commission replied by letter on May 16, 1972:
"Dear Mr. Reed:
"On the occasion of your visit to the Tax Commission office on Thursday, May 11, 1972, I informed you that on occasion, appraisals by the State Tax Commission staff contain additional work papers in those instances where the property is of such complexity that the ordinary appraisal card is not sufficient to contain all of the information.
"As a result of your request for additional work papers, if any, we examined the files in the matter of the appraisals in Cooper Township made as a result of the equalization study for 1971, copies of which appraisals were furnished to you, and find no instances where any additional sheets or work papers to be attached because none of the appraisals in Cooper Township were of such complexity as to require any.”
The equalization hearing began on June 21, 1972. As the hearing opened, the Township renewed its prior written request that the hearing be conducted by an impartial hearing officer and in accordance with the procedures of the Administrative Procedures Act. This motion was denied by the Commission chairman acting in the capacity of the presiding officer at the hearing. The parties then began their presentation of evidence.
During the course of the hearing, it became apparent that the Commission’s staff appraisers were relying on working papers that had not been produced for the prior inspection of the Township’s attorney. The Township attorney objected, demanding the right to inspect any working papers used by the Commission staff in the preparation of their appraisals. At this point, the Commission Chairman interjected:
"The Chairman: Mr. Reed, I concur you were supposed to be furnished with all the work papers to be considered by the Commission, in my understanding. That is what I was told. These were not in the files as a part of the Commission’s viewing of Cooper Township. Am I correct?
"The Chairman: Understand the position of the Com mission. The Commission is a separate entity from the Tax Commission staff. The files that come before the Commission as part of the consideration were the files I brought with me yesterday and which you viewed and went through. Some of them I see had more notes in them than others. This is true at any time we have any kind of appeal files or appraisal files.
"If there are other papers, which seems to be the case in Cooper Township, or field man notes, whether they are legible or not I can’t tell you, but these should be furnished you then if that is the case. Maybe sometimes they do things one way and sometimes the other. I don’t know how the men operate on this. This is not my area of telling them what to do because I do not tell them how to handle their job.
"If there are other papers you will be furnished with them.”
After this seeming misunderstanding was resolved, the hearing resumed with the Township receiving the staff notes requested.
At a later point in the hearing, however, the issue of disclosure again emerged. During the cross-examination of Commission staff appraiser, Arthur V. Stephan, the following colloquy developed:
"Q. To what are you referring? Are those your field notes?
"A. Right.
"Q. Did we obtain copies of those?
"A. To my knowledge, no.
"Mr. Bauckham [Attorney for Cooper Township]: I would request respectfully that we be furnished those copies.
"The Chairman: Request is hereby denied. They do not come before the Commission for consideration. That request is denied. You have been given everything that comes before the Commission. This is the man’s notes when he does the appraisal.
"The Chairman: I am saying your request is denied on these type of notes. These are the type of notes that I say you do not need to get, because they are not a part of any consideration here. This is a judgmental factor, how he arrived at the value.”
Counsel for the Township formally noted his objection to the Chairman’s ruling and the hearing continued.
The remainder of the hearing elicited contested opinions on the actual value of the property studied as well as disagreements regarding appraisal techniques and the definition of the constitutional term "true cash value”. The hearing concluded on August 30, 1972 and the final order of the Commission was handed down on November 22, 1972. After a recitation of the prior history of the case, the Commission rendered its decision:
"At the hearing, beginning on June 21, 1972 and continuing on June 22, July 20, July 21, August 29 and August 30, 1972, the Commission received evidence in the way of exhibits, heard testimony of the Tax Commission staff and the appellant supervisor’s witnesses and argument from the attorney for the appellant.
"Subsequent to the hearing the Commission received a copy of the transcript consisting of 1159 pages. Also subsequent to the hearing, the Commission, over the course of several days, reviewed the exhibits presented and also the written summation submitted by the appellant’s attorney.
"At a meeting of the State Tax Commission, held on November 20, 1972, at which all members of the Commission were present, the appeal of Cooper Township was before the Commission for consideration and final decision. The Commission noted that the proceeding and the cause had resulted in many days of hearings and documentation amounting to thousands of pages as well as a complete analysis of the entire county by the State Tax Commission staff. The Commission further considered that except for Cooper Township and Ross Township pone of the other local units posed any objection to the preliminary finding of the State Tax Commission as transmitted on April 14, 1972.
"The Commission realizes that it is expected to substitute its best value judgment even though it displaces a substantially correct, although inexact judgment exercised by the County Board of Commissioners. Wherefore, it finds and orders that the county equalized valuations of the real estate of the several townships and cities in Kalamazoo County for the year 1971 are as shown on the following schedule which constitutes the equalized valuation of the several townships and cities, real property, for the year 1971 in Kalamazoo County:
TOWNSHIPS Real Estate Valuation as Equalized by the State Tax Commission
Cooper 22,090,824
"The Commission notes that despite all of the hours devoted to this appeal by the township, the township attorney, the State Tax Commission staff and the Commission in conducting the hearings and deliberations, that the equalization as adopted by the County Board of Commissioners is practically confirmed except in minimal respects.”
Cooper Township, in accordance with this Court’s order of December 22, 1971, filed an application for leave to appeal directly in the Supreme Court. Leave to appeal was granted on May 31, 1973. 389 Mich 798 (1973).
I
This appeal raises three issues of significance to the resolution of the case at bar and to the proper resolution of future cases coming before the State Tax Commission.
1. Did the State Tax Commission err by denying the Township access to Commission staff working papers compiled during the investigation and preparation of assessments directly in issue at its equalization hearing?
2. Is the State Tax Commission required by law to conduct equalization hearings in accordance with the Administrative Procedures Act?
3. Should the costs normally associated with the sale of real property be deducted when computing "true cash value”?
II
Access to Staff Working Papers.
What became evident to Cooper Township at the equalization hearing became evident to this Court at oral argument — the State Tax Commission failed to follow its own declarations and the clear mandate of Pavilion Apartments, Inc v State Tax Commission, 373 Mich 601; 130 NW2d 399 (1964), and disclose to the Township all papers known to the Commission that were relevant to the final resolution of the issues at the equalization hearing. Accordingly, on December 5, 1973, this Court issued the following order:
"On order of the Court, this matter is remanded to the State Tax Commission for the purpose of providing appellant Cooper Township, within 20 days of the date of entry of this order, with the opportunity to inspect and copy or photograph each and every document (including field notes, staff papers, sales studies and appraisals), books, letters, photographs, accounts, objects or tangible things relevant to the subject matter involved in this appeal and in the possession, custody or control of the State Tax Commission and/or the Kalamazoo County Equalization Board.
"Appellant Cooper Township is ordered to advise this Court through a supplemental brief filed within 20 days after it has completed inspecting the materials set forth above, whether it has received all of the information necessary to proceed with disposition of this cause. Twenty-four copies of the supplemental brief should be filed with the Clerk of the Court and a copy thereof served upon counsel for the State Tax Commission who may then reply. Proof of such service shall also be filed with the Clerk. The requirement for printing is waived.
"This Court retains jurisdiction in this matter and enters this order pursuant to GCR 1963, 865.1(5).”
Counsel for the Township subsequently informed the Court, as directed in the order, that the Commission did turn over 374 pages of additional material and, in addition, the Kalamazoo County Equalization Director made available 13 pages of material. Counsel is presently of the opinion that the Township has been furnished "all material, field notes and work papers, in possession of the State Tax Commission and/or staff members who testified * * * .” The Township states that, "this material will greatly facilitate a future hearing if one is held”, and now repeats its prayer for relief requesting that this matter be remanded for a new evidentiary hearing.
Following Pavilion Apartments, we agree with the Township that this case should be remanded for a new hearing. We devote the remainder of this opinion to matters that we believe are necessary to the proper treatment of this case on remand to the State Tax Commission.
Before proceeding to the other issues raised by the Township, we sua sponte refer the Commission to the second portion of the opinion in Pavilion Apartments. Therein Justice Adams pointed out that MCLA 209.102; MSA 7.632 requires the Commission to include within its final decision a concise statement of facts and the reasons for its decision. 373 Mich 601, 608-609 (1964). More precisely, the statute has since been amended by 1967 PA 304 to read in relevant part:
"In appeals to the state tax commission, the decisions of the commission shall be upon a form prescribed by the commission which shall state the facts constituting the commission’s finding of true cash value, the proportion thereof at which assessments in the local assessing district are made, and which of the 3 commonly accepted valuation approaches were used in the determination of true cash value. The order shall be signed by the commissioners concurring therein. A commissioner may, in writing, dissent from any order so entered.”
The final order of the Commission in the present matter fails to comply with the requirements of MCLA 209.102; MSA 7.632. The Commission’s order, which functioned as both an order and opinion, is conclusory in terms and fails to state any of the specific information required by the statute. On remand we direct the Commission to render its opinion in accordance with MCLA 209.102; MSA 7.632.
Ill
Equalization Hearings and the Administrative Procedures Act.
Although this Court and the Legislature have clarified the procedures to be followed by the State Tax Commission in appeals by individual taxpayers, the procedures to be followed in equalization cases have not been defined. Except for specifying the time limits within which an aggrieved Township must notify the Commission of its desire for a hearing, MCLA 211.34; MSA 7.52 does not describe the procedures governing equalization hearings. The Commission is bound, of course, to conduct its hearings in keeping with the rudimentary requirements of due process. Napuche v Liquor Control Commission, 336 Mich 398, 403; 58 NW2d 118, 120-121 (1953). The issue raised by appellant addresses whether the Commission must follow the applicable requirements of the Administrative Procedures Act. MCLA 24.201 et seq.; MSA 3.560 (101) et seq.
When a particular controversy fits within the statutory definition of a "contested case”, and is not specifically controlled by another statute or constitutional provision, we believe that the Commission is required to comply with the procedures specified in the Administrative Procedures Act. The Administrative Procedures Act defines a "contested case” to be "a proceeding * * * in which a determination of the legal rights, duties or privi leges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.” MCLA 24.203; MSA 3.560 (103). The Township, as the representative for equalization purposes of all the taxpayers within its boundaries, has a valid and recognizable interest in assuring that its residents are not taxed at an unfair rate. Likewise, the county board of commissioners, as representatives of the entire county, have a duty to equalize the assessments throughout the county so that all taxpayers pay a proportionately fair share of the cost of government. By statute, the State Tax Commission is designated as the agency responsible for adjudicating disputed equalization findings between the township and the county. In that capacity it is authorized to conduct an evidentiary hearing. MCLA 211.34; MSA 7.52. In our opinion, therefore, the present matter presents a controversy squarely within the Administrative Procedures Act definition of a "contested case”.
On remand, the State Tax Commission shall conduct the equalization hearing under the relevant provisions of the Administrative Procedures Act. MCLA 24.271-24.287; MSA 3.560 (17D-3.560 (187). Since in the present appeal we are only concerned with errors of law, we specifically do not address any questions concerning the scope of judicial review under Const 1963, art 6, § 28.
IV
True Cash Value.
Const 1963, art 9, § 3 provides:
"The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law. The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent; and for a system of equalization of assessments. * * * ”
The statutory definition of "cash value” is found in MCLA 211.27; MSA 7.27:
" 'Cash value’, means the usual selling price at the place where the property to which the term is applied shall be at the time of assessment, being the price which could be obtained for the property at private sale, and not at forced or auction sale. Any sale or other disposition by the state or any agency or political subdivision of lands acquired for delinquent taxes or any appraisal made in connection therewith shall not be considered as controlling evidence of true cash value for assessment purposes. In determining the value the assessor shall also consider the advantages and disadvantages of location, quality of soil, zoning, existing use, present economic income of structures, including farm structures and present economic income of land when the land is being farmed or otherwise put to income producing use, quantity and value of standing timber, water power and privileges, mines, minerals, quarries, or other valuable deposits known to be available therein and their value.”
It is the Township’s position that when the Constitution’s framers chose the unique term "true cash value” they had in mind a determination of value not necessarily synonymous with the more common term "fair market value”. In the opinion of the Township, "true cash value” more properly refers to "that portion of the theoretical consideration paid which is net to the seller. Put in another fashion, if the theoretical price of the theoretical seller’s home is $20,000 but he leaves the theoretical closing table with only $18,500 [there being $1,500 expenses of sale], the 'true cash value’ of the real estate is $18,500.”
The Township, however, points to no authority, judicial or otherwise, to buttress its argument.
We are confident that the State Tax Commission followed the clear intent of the Legislature as expressed in MCLA 211.27; MSA 7.27 when it refused to consider costs of sale in the determination of true cash value. The statute, while it states many factors that the assessor should consider in reaching his opinion of value, makes no mention of such factors as commissions, abstract and deed expenses, or any other costs normally associated with the sale of real property. If the Legislature had intended these expenses to be deducted, we believe that it would have made its intention apparent in the language of the statute. See, generally, State ex rel Morgan v Kinnear, 80 Wash 2d 400; 494 P2d 1362 (1972); The Michigan Property Tax: Assessment, Equalization, and Taxpayer Appeals, 17 Wayne L Rev 1397, 1415-1417 (1971).
ADDENDUM
After the initial preparation of this opinion the new Tax Tribunal Act, MCLA 205.701, et seq.; MSA 7.650(1), et seq., transferred jurisdiction over equalization appeals, such as the present case, from the State Tax Commission to the Tax Tribunal. Accordingly, we remand this matter to the Tax Tribunal for further proceedings. In this opinion no consideration has been given to the practices and procedures of the Tax Tribunal nor to any provision of the Tax Tribunal Act.
The order of the State Tax Commission is vacated and this case remanded to the Tax Tribunal for further proceedings in conformity with this opinion.
No costs, a public question being involved.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Williams, Levin, and M. S. Coleman, JJ., concurred with Swainson, J.
J. W. Fitzgerald, J., did not sit in this case.
The assessed valuation of the real property in Cooper Township was placed at $18,616,950 by the Township Board of Review.
In Fisher-New Center Co v State Tax Commission, 381 Mich 713, 714-715; 167 NW2d 263 (1969) and In re Appeal of General Motors Corp, 376 Mich 373; 137 NW2d 161 (1965), this Court reversed the position it had adopted in Dossin’s Food Products, Inc, v State Tax Commission, 360 Mich 312; 103 NW2d 474 (1960), and held, in the context of individual taxpayer appeals, that the Administrative Procedures Act was applicable to the State Tax Commission. Shortly after the decision in Fisher-New Center, the Legislature added to MCLA 211.152; MSA 7.210 the following language:
"In all of its proceedings the contested case provision of Act No. 197 of the Public Acts of 1952, as amended, [Administrative Procedures Act] shall not be applicable to the State Tax Commission
The Commission argues that this above quoted statutory language refers to all matters coming before the Commission and not only to the individual taxpayer appeals which are the object of MCLA 211.152; MSA 7.210. In our opinion, this argument is defeated by elementary rules of statutory construction. See People v Powell, 280 Mich 699; 274 NW 372; 111 ALR 721 (1937); 73 Am Jur 2d, Statutes, § 214. If the Legislature had intended to affect equalization procedures, we are confident that it would have specifically amended MCLA 211.34; MSA 7.52 as well as MCLA 211.152; MSA 7.210.
A "party” is defined as a "person or agency named or admitted, or properly seeking and entitled of right to be admitted, as a party in a contested case.” MCLA 24.205(3); MSA 3.560(105X3). "Person” includes "[a] governmental subdivision or public or private organization of any kind other than the agency engaged in the particular processing of a rule, declaratory ruling or contested case.” MCLA 24.205(4); MSA 3.560(105X4).
Both Cooper Township and Kalamazoo County meet the definition of person and party. Under MCLA 211.34; MSA 7.52, the township and the county become the adversary parties in an equalization hearing held before the State Tax Commission. Each must receive notice and be allowed an opportunity to present evidence. The State Tax Commission sitting as an administrative court reviews the evidence presented and thereafter renders its decision on the proper equalization of the governmental units.
The quoted text of the statute includes the amendments thereto adopted in 1973 PA 109. The 1973 changes have no bearing upon the issue presently under consideration. | [
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] |
Per Curiam.
In 1967 plaintiff developed bilateral cataracts from causes unrelated to his employment as a forklift driver with defendant Browne-Morse Company. As a result of those cataracts, the natural lens of each eye was surgically removed. The surgical removal of the natural lenses left plaintiff with less than 20% of normal vision in each eye. The use of corrective lenses restored the vision in plaintiffs left eye to greater than 20% of normal vision; however, the use of such lenses failed to restore the vision in the right eye to greater than 20% of normal vision. The corrective lenses not only enabled plaintiff to return to his job as a forklift driver for defendant employer, but also enabled plaintiff to drive his own truck and motorcycle on the public highways.
In 1971 plaintiff was struck by a board in the area of the left eye while he was engaged in activities arising out of and in the course of his employment with defendant employer. As a result of that accident, plaintiff suffered a total loss of vision in the left eye and a further loss of vision in the right eye. Medical evidence established that there is no likelihood of improvement of the vision in either eye.
Defendant employer and its insurer voluntarily paid the specific loss benefits for the loss of vision of the left eye in accordance with the provisions of MCLA 418.361(1); MSA 17.237(361X1). Defendant Second Injury Fund denied liability for payment of differential benefits and total and permanent disability compensation under the provisions of MCLA 418.521; MSA 17.237(521), arguing that, as a matter of law, plaintiff could not suffer a second loss of that eye as a result of the 1971 industrial accident.
Following a hearing, the workmen’s compensation referee determined that plaintiff had lost the industrial use of his left eye as a result of the 1971 accident. The referee rejected the Second Injury Fund’s argument that the "uncorrected vision” test of Lindsay v Glennie Industries, Inc, 379 Mich 573; 153 NW2d 642 (1967), mandated denial of differential benefits and total and permanent disability compensation pursuant to MCLA 418.521; MSA 17.237(521), and, therefore, ordered the fund to make such payments.
The Second Injury Fund appealed to the Workmen’s Compensation Appeal Board. The appeal board affirmed the referee’s decision, finding, as a matter of fact, that plaintiff had suffered a loss of industrially useful vision in his left eye as a result of the 1971 industrial accident. On leave granted, the Second Injury Fund appealed to the Court of Appeals. The Court of Appeals affirmed the appeal board’s decision on the authority of this Court’s holding in Hakala v Burroughs Corp (On Rehearing), 399 Mich 162; 249 NW2d 20 (1976). 76 Mich App 344; 256 NW2d 591 (1977).
The Second Injury Fund now argues in this Court that the use of the "uncorrected vision” test adopted by this Court in Lindsay, supra, and extended to Second Injury Fund cases in Hilton v Oldsmobile Division of General Motors Corp, 390 Mich 43; 210 NW2d 316 (1973), mandates the conclusion that plaintiff, as a matter of law, had lost the vision in his left eye in 1967 and could not lose it again as a result of the 1971 accident.
The fund does not seriously urge that the ultimate result of granting of Second Injury Fund benefits was contrary to the legislative intent underlying the creation of the fund. The fund has rather chosen this case as a vehicle by which it again urges that this Court repudiate the "uncorrected vision” test and replace that test with the "corrected vision” test.
In Hakala v Burroughs Corp (On Rehearing), supra, this Court recognized that the question of Second Injury Fund benefits in situations involving the loss of an eye could not be adequately resolved by the universal adoption of either the "uncorrected vision” test or the "corrected vision” test. The Court held that the question of entitlement to Second Injury Fund benefits must be determined by reference to the statutory language creating those benefits found in MCLA 418.521; MSA 17.237(521), which requires a determination of whether the employee has suffered a "permanent disability in the form of the loss of a[n] * * * eye”. The determination of whether a loss is a permanent disability within the meaning of that section must be evaluated in terms of the underlying legislative purpose of aiding the handicapped in obtaining and maintaining employment.
It- is uncontroverted that plaintiff was suffering from a permanent disability in the form of the loss of his right eye at the time of the 1971 accident. It is further uncontroverted that at the time of the 1971 accident the use of corrective lenses provided plaintiff with industrially useful vision in his left eye and that the 1971 accident resulted in his loss of all industrial vision. Since it is clear that plaintiff had industrially useful vision in his left eye prior to his 1971 accident and that he lost that industrially useful vision as a result of the accident, the appeal board’s determination that plaintiff’s 1971 loss of vision in the left eye rendered him permanently disabled is consistent with the sense of that term as it is used in MCLA 418.521; MSA 17.237(521).
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), the judgment of the Court of Appeals and the order of the Workmen’s Compensation Appeal Board are affirmed.
Kavanagh, C. J., and Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Griffin, J.
Douglas A. Mullkoff appeals as of right from a lower court order denying his motion for full payment of attorney fees and expenses he claimed as a criminal defendant’s assigned appellate counsel. Counsel claimed appellate attorney fees in the sum of $1,992.50 together with expenses of $130.30. The lower court reduced the number of hours claimed for review of the trial transcript and for writing the appellate brief. In addition, the court completely disallowed time and expenses claimed for an in-prison client conference, oral arguments in the Court of Appeals, and attendance at the hearing on the prosecutor’s motion to set a date for resentencing. We affirm the lower court’s reduction of the hours claimed for review of the transcript and brief writing but reverse the lower court’s denial of time and expenses incurred for the in-prison client conference, Court of Appeals oral argument, and attendance at the prosecutor’s motion hearing to set a date for resentencing. Accordingly, we affirm in part, reverse in part and remand.
i
On August 7, 1986, Genesee Circuit Judge Judith A. Fullerton appointed defense counsel Douglas A. Mullkoff to represent indigent defendant Vechem Elvis Canamore on appeal of a conviction for third-degree criminal sexual conduct. Following his appointment, attorney Mullkoff conferred with his client in person at the Ionia State Prison, filed an appellate brief with this Court, attended oral arguments in this Court, appeared at the prosecuting attorney’s motion hearing to set a date for resentencing, and attended the resentencing hearing. After resentencing, attorney Mullkoff submitted to Judge Fullerton an itemized statement of attorney fees of $1,992.50 (39.85 hours at $50 per hour) and expenses of $130.30 for a total requested sum of $2,122.80. The lower court, however, authorized and made payment in the sum of only $1,030. In an order dated May 6, 1988, and in a subsequent opinion dated July 20, 1988, Judge Fullerton denied all attorney fees and expenses incurred for the in-prison client conference (4.5 hours at $50 an hour plus 205 miles at 22 cents per mile), attendance at oral argument (5.25 hours at $50 an hour plus 126 miles at 22 cents per mile), and attendance at the hearing on the prosecutor’s motion to set a date for resentencing (2.5 hours at $50 an hour plus 108 miles at 22 cents per mile). In addition, Judge Fullerton made minor reductions as to counsel’s claimed hours for review of the trial transcript and for brief writing. As to those hours accepted, the lower court did not dispute the reasonableness of the hourly rate ($50 per hour) or mileage rate (22 cents per mile) claimed by attorney Mullkoff.
ii
Compensation for court-appointed counsel in Michigan is governed by MCL 775.16; MSA 28.1253, which in part provides:
The attorney appointed by the court shall be entitled to receive from the county treasurer, on the certificate of the chief judge that the services have been rendered, the amount which the chief judge considers to be reasonable compensation for the services performed.
This statute imposes an obligation on the lower court to determine and award reasonable compensation for court-appointed attorneys. The determination of the lower court as to reasonable compensation for services and expenses will not be disturbed on appeal absent an abuse of discretion. In re Attorney Fees of William J Hayes, 55 Mich App 30, 34; 222 NW2d 20 (1974), lv den 394 Mich 794 (1975).
In the instant case, we find no abuse of discretion in the trial court’s decision to reduce attorney MullkofPs hours for review of the transcript and drafting the appellate brief. The trial judge carefully reviewed the length of the trial transcript and determined a reasonable amount of time in which it should have been read and then added an additional hour for note taking. In regard to the time to prepare and draft the appellate brief, the lower court likewise considered the complexity of the case and clarity of the issue. We find no abuse of discretion as to the ordered reduction of these hours.
hi
However, we rule that the trial court abused its discretion in failing to award attorney fees and expenses to attorney Mullkoff for visiting his client in prison, attending oral argument in this Court, and appearing at the prosecutor’s motion hearing to set a date for resentencing.
In 1981, the Michigan Supreme Court promulgated minimum standards for indigent criminal appellate defense services. Administrative Order No 1981-7, 412 Mich lxxxiv-xci. The relevant portions provide:
1. Counsel shall, to the best of his or her ability, act as the defendant’s counselor and advocate, undeflected by conflicting interests and subject to the applicable law and rules of professional conduct.
3. Except in extraordinary circumstances, counsel shall interview the defendant in person on at least one occasion during the initial stages of representation.
16. Counsel should request and appear for oral argument. In preparation for oral argument counsel shall review the briefs of both parties, file supplemental pleadings as warranted, and update his or her legal research.
These minimum standards apply "to all counsel appointed to represent indigents on appeal after February 1, 1982.” 412 Mich xciii. Further, such standards were affirmed by the Michigan Supreme Court in Administrative Order No 1985-3. 421 Mich lxvii.
The commission’s commentary regarding client visits is instructive:
Client interviews serve numerous purposes. They may reveal significant facts not on the record or even the fact that parts of the record are missing. They may confirm or eliminate claims of error. Interviews serve to alert counsel to circumstances which make dismissing the appeal the defendant’s wisest choice. They afford the defendant the opportunity to meet the person upon whose performance his or her future depends. Personal interviews are crucial to establishing the trust and rapport which are the essence of a successful attorney-client relationship. Meeting one’s client for a discussion of the case seems on its face to be a fundamental aspect of professional conduct. The commission felt strongly that attorneys must be prepared to visit their clients wherever they may be incarcerated. Compensation for travel expenses must be considered a basic cost of providing assigned appellate counsel. Court of Appeals judges who responded to a questionnaire also felt that client interviews are important to effective representation on appeal. [412 Mich lxxxv.]
Our Supreme Court and the Appellate Defender Commission recognize the importance of the in-person client interview to the attorney-client relationship. Such interviews foster confidence in the effectiveness and fairness of the judicial system to criminal defendants. In addition, the demeanor of the client may alert counsel to avenues of appeal which may not be apparent by correspondence or telephone. We therefore find that the trial judge abused her discretion in failing to allow compensation for the attorney-client conference.
We also assign error to the trial judge in disallowing compensation for attending appellate oral argument. The minimum standards for indigent criminal appellate defense services encourage assigned appellate defense counsel to request and appear at oral argument. Although oral argument may not be necessary in every case, appellate strategy is the province of counsel, not the court.
Under the Michigan Court Rules, any party who has filed a timely brief on appeal and requested oral argument is entitled to oral argument. MCR 7.101(K). Accordingly, defendant Canamore had a right to have his attorney attend oral argument on his appeal. It was improper for the trial court to deny compensation for implementation of this right.
Finally, we address the denial of attorney fees and expenses incurred for attending the hearing on the prosecutor’s motion to reschedule sentencing. Under our Code of Professional Responsibility, attorney Mullkoff was required to attend all court hearings affecting his client. DR 6-101(A)(3). It is undisputed that, absent instructions to the contrary from the court, attorney Mullkoff was required to attend the hearing. It was only after the hearing that attorney Mullkoff was advised by the lower court that his appearance could have been waived by a court-approved telephone conference. The denial of reasonable compensation to attend a scheduled court hearing is an abuse of discretion.
IV
We recognize that the constitutional guarantees to counsel (US Const, Am VI; Const 1963, art 1, §20) and equal protection (US Const, Am XIV; Const 1963, art 1, § 2) may be compromised by an unreasonable refusal to compensate for essential services of appointed defense counsel. We, however, do not address such constitutional issues. Rather, we hold that the lower court order, in part, violates the statutory right to reasonable compensation for assigned appellate counsel.
Affirmed in part, reversed in part and remanded. The Genesee Circuit Court is hereby ordered to authorize and tender within twenty-eight days additional payment to attorney Douglas A. Mullkoff in the sum of $709.08.
The lower court order contains a multiplication error as to this sum.
As to the conflict of the trial judge from whom the appeal is taken approving payment for appellate services, see generally ABA, Standards for Criminal Justice (1980), Standard 5-2.4 and commentary.
Also see, Michigan Rules of Professional Conduct, Rule 1.3, effective October 1,1988. | [
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] |
Wahls, J.
Defendants, Kenneth D. Carlson and
Dolores P. Carlson, appeal as of right from a February 23, 1988, order of the Roscommon Circuit Court denying their motion to set aside a December 18, 1987, consent judgment. The consent judgment between defendants and plaintiffs, Roy E. Groulx and Janet M. Groulx, was in settlement of plaintiffs’ action for claim and delivery and breach of contract stemming from defendants’ default on obligations incurred in connection with the purchase of plaintiffs’ septic cleaning business, The Apex Company. Entry of the consent judgment was preceded by a conference in the cham bers of the circuit judge on the morning of December 14, 1987, at which counsel, the court clerk, and the court reporter were present and at which the terms of the proposed consent judgment, acknowledged to be "a correct statement of the agreement” by defendants’ attorney, were orally read into the record by plaintiffs’ attorney. On appeal, defendants contend, in essence, that the circuit court erred in denying their motion to set aside the consent judgment because the agreement upon which it was based was not binding. More specifically, defendants argue that the agreement was not binding because it was not made in "open court,” as required by MCR 2.507(H); was not based on a meeting of the minds; and included elements of mistake, excusable neglect, and fraud meriting relief under MCR 2.612(C)(1)(a) and (c). We affirm.
The record reveals that on the morning of December 14, 1987, the date set for trial in this case, .counsel advised the court that a settlement had been reached. Since a jury had already been assembled in the courtroom, the judge, the court clerk, the court reporter, and the parties’ counsel convened in the judge’s chambers in order to permit counsel to enter the terms of the parties’ agreement on the record. Those terms were recited by plaintiffs’ counsel as follows:
Now comes the parties hereto and hereby stipulate and agree as follows: One: That a consent judgment shall issue against the defendants and in favor of the plaintiffs in the amount of $45,000.
Two: That defendants shall pay within five business days the sum of $10,000 to plaintiffs.
Three: That the balance of $35,000 shall bear interest at the rate of ten percent per annum and shall be paid to plaintiffs in monthly installments of $500 or more commencing January 14th, 1988, and the 14th of every month thereafter for a period of 36 months, whereupon the entire balance shall be due.
Four: Plaintiffs shall forego any collection or mediation sanctions as long as defendants remain current, that is, within ten days, then plaintiffs may accelerate the balance and take such steps to enforce the judgment as may be permitted by statute and court rule.
Five: No costs, sanctions or interest to date shall be awarded to either party, and all equipment seized pursuant to court order shall be returned to defendants upon payment of the initial $10,000. That will be signed by all parties.
Defendants’ counsel then indicated his clients’ knowledge of, and consent to, the terms of the agreement as follows:
That is a correct statement of the agreement. I have read the agreement to my client, and he has agreed to it. His wife, who is probably in this matter only due to the fact she is Mr. Carlson’s wife, has also indicated she will agree to it. I can take this over to my office and have it typed right now.
After this agreement was placed on the record, the court excused the jury.
At the hearing on December 18, 1987, on a motion for entry of consent judgment, the trial judge, noting that "I have to rely on counsel who tell me [that a case] is settled,” signed the proposed consent judgment. Moreover, at the hearing held on January 26, 1988, on defendants’ motion to set aside the consent judgment, the trial judge indicated that at the December 14, 1987, proceeding, "certainly it was represented to me by both attorneys that they had already talked to their clients” and that "I have had a lot of experience in this kind of matter, and I was fully satisfied that both of these attorneys could bind their clients by a stipulation, and a stipulation made sense to me, and I accepted it on the record.” "[N]o way was I going to let that jury go,” the trial judge stated, "unless I knew we had the thing dismissed.”
On appeal, defendants first argue that the circuit court erred in denying their motion to set aside the consent judgment because the agreement among the parties upon which the judgment was based was not made in "open court,” as required by MCR 2.507(H). That court rule provides:
An agreement or consent between the parties or their attorneys respecting the proceedings in an action, subsequently denied by either party, is not binding unless it was in open court, or unless evidence of the agreement is in writing, subscribed by the party against whom the agreement is offered or by the party’s attorney.
Defendants suggest that the agreement in this case was a mere informal, in-chambers understanding and thus was not binding upon them under MCR 2.507(H). In support of their position, defendants cite cases holding that a court, in order to be "open,” must have a judge presiding, an alleged off-the-record agreement reached in the chambers of a trial judge was not made in "open court,” and an oral agreement to settle reached by the parties’ attorneys was not made in "open court.” These cases are distinguishable from the instant litigation since the settlement in the present matter was formally placed on the record at a proceeding presided over by the trial judge._
The facts in this case are not essentially dissimilar from those in Pedder v Kalish, 26 Mich App 655; 182 NW2d 739 (1970). In that case, following protracted settlement discussion in chambers with the trial judge and with plaintiffs and defendants, the attorneys made a record in open court — presumably, in the courtroom — of an agreement which had been reached. Subsequently, the defendants expressed an unwillingness to abide by the settlement terms, and the plaintiffs moved for entry of a judgment pursuant to the stipulated settlement. The trial court declared the settlement void and placed the case on the trial calendar. This Court reversed and remanded the case for entry of judgment in conformity with the stipulated settlement, citing GCR 1963, 507.9, the predecessor of MCR 2.507(H), and noting that "[w]e cannot agree that litigants are free to disregard a settlement agreement knowingly entered into on the court record and, as to which, mistake, fraud, or unconscionable advantage is not claimed.” 26 Mich App 657. "Compromise of pending controversies are [sic] favored by the courts,” the Pedder panel stated, "and will only be voided on satisfactory evidence of mistake, fraud, or unconscionable advantage.” 26 Mich App 658.
The main distinguishing factor between Pedder and the present case is that the record of the settlement agreement was generated in the courtroom in the former and in the chambers of the trial judge in the latter. In both, however, the agreement was read aloud by the parties’ attorneys in the presence of the trial judge, the court clerk, and the court reporter, all of whom had formally convened for court business. We believe that it is the formality of recorded court business, rather than the physical presence of the participants in a courtroom, which is the hallmark of a proceeding which may be described as constituting an "open court” session. Thus, we agree with the following observations of the New York Court of Appeals:
The term "open court” as it has been used since ancient times and as, it will be suggested, it is used in CPLR 2104, is a technical term in the law. It refers to a judicial proceeding in a court, whether held in public or private, and whether held in the court house, a courtroom, or any place else, so long as it is, in an institutional sense, a court convened, with or without a jury, to do judicial business. Typically, in a court of record an open court has in attendance a clerk who makes entries of judicial events in a docket, register, or minute book, and in modern times there is a court reporter, who makes a record of all the proceedings.
Judicial proceedings in "open court,” wherever held, including chambers of course, and informal conference in chambers or robing rooms or even a courtroom are manifestly disparate. Even before full reporting in open court became universal in courts of record, the formality, publicity, and solemnity of an open court proceeding marked it as different from the preliminary atmosphere attached to informal conferences elsewhere. Moreover, the proceedings in open court would always have some formal entries, if only in the clerk’s minutes, to memorialize the critical litigation events. In the latter days, it has also meant an available full transcript beyond dispute and the fallibility of memory. [In re Dolgin Eldert Corp 31 NY2d 1, 4-10; 334 NYS2d 833; 286 NE2d 228 (1972). See also Bowman v Integrity Credit Corp, 507 So 2d 104 (Ala Civ App, 1987).]
Next, defendants argue that the agreement read into the record on December 14, 1987, was not binding because "there was no meeting of the minds among the parties in the instant case.” There must be a meeting of the minds on all the material facts in order to form a valid agreement, and whether such a meeting of the minds occurred is judged by an objective standard, looking to the express words of the parties and their visible acts. Siegel v Spinney, 141 Mich App 346, 350; 367 NW2d 860 (1985). In the present case, the express words of the parties’ attorneys recited on the record unambiguously indicate that the parties stipulated and agreed to accept the terms of the recited agreement. Moreover, after placing the agreement on the record, the parties permitted the trial judge to excuse the jury and to allow the witnesses to leave. Thus, the express words of the parties’ attorneys and the parties’ visible acts indicate that there was a meeting of the minds regarding the agreement read into the record on December 14, 1987.
Finally, defendants argue that the agreement included elements of mistake, excusable neglect, and fraud meriting relief under MCR 2.612(C)(1)(a) and (c). That court rule provides:
(1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
Defendants maintain that the terms of the agreement should not be binding on them because they and their attorney mistakenly believed that such terms would not be binding until they were drafted in written form, reviewed and signed by the parties; because their attorney excusably neglected to allow them "to read and review a typed copy of the proposed settlement” before it was read into the record; and because their attorney fraudulently represented to the trial court that he had informed defendant Dolores P. Carlson of the terms of the proposed settlement before it was read into the record.
As we have already noted, litigants are not free to disregard a settlement agreement knowingly entered into on the court record and to which satisfactory evidence of mistake, fraud, or unconscionable advantage is not evident. Pedder, supra, pp 657-658; Siegel, supra, pp 349-350. The evidence in this case as revealed in the transcripts of the hearings on this issue in the court below, instead of suggesting mistake, fraud, or excusable neglect suggests that defendants, as stated by defense counsel, were unhesitating in their consent to the terms of the settlement agreement at the time the agreement was formally read into the record, but that shortly thereafter they had a "change of heart.” A change of heart is normally insufficient to justify the setting aside of a settlement agreement. Metropolitan Life, supra, p 128. Any misgivings concerning the terms of the settlement agreement which defendants or defendants’ counsel may have had were brought to the attention of the trial court only after the agreement had been formally entered in the record and only after defense counsel expressly informed the court that defendants specifically accepted the terms of the agreement. In view of the unambiguous assertions stated on the record at the December 14, 1987, proceeding by defense counsel regarding defendants’ clear intention to be bound by the terms of the settlement agreement which was read into the record by plaintiffs’ counsel at that proceeding, and in view of defendants’ failure to have supported their claims of mistake, fraud, and excusable neglect with satisfactory evidence of any kind, we conclude that the trial court’s decision precluding defendants from disavowing their obligations under the settlement did not constitute an abuse of discretion. Bye v Ferguson, 138 Mich App 196, 202; 360 NW2d 175 (1984).
Affirmed.
People v Margelis, 246 Mich 459; 224 NW 605 (1929).
Jorgensen v Howland, 325 Mich 440; 38 NW2d 906 (1949).
Metropolitan Life Ins Co v Goolsby, 165 Mich App 126; 418 NW2d 700 (1987).
In this opinion, the New York Court of Appeals states that CPLR 2104 provides:
An agreement between parties or their attorneys relating to any other matter in an action, or other than one made between counsel in open court is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.
At the hearing held on December 18, 1987, on the motion for entry of consent judgment, defendants’ attorney explained that he had met with defendant Kenneth D. Carlson on the morning of trial before placing the settlement agreement on the record, had read the terms of the agreement to Mr. Carlson, and was informed that the latter understood those terms. He also stated that later, when a written stipulation was prepared, Mr. Carlson "indicated that he was not aware of any balance due on a balloon, which is part of the proposed judgment.” Nevertheless, counsel stated that "what he [Mr. Carlson] had authorized me to do was to settle the matter completely. | [
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Rehearing denied.
Reported at 401 Mich 314. | [
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Per Curiam.
Kenneth and Karol West, plain tiffs-appellants, sustained a fire loss of over $27,-000 to a barn, two silos and other personal property, insured by defendant Farm Bureau Mutual Insurance Co. One of the items claimed by the Wests in their initial unnotarized proof of loss was a motorized grain elevator, worth approximately $1,200, which the Wests had borrowed from their neighbors, the Heinrichs.
Shortly after the Wests executed the unnotarized proof of loss, the Heinrichs, also insured by Farm Bureau, submitted their claim to Farm Bureau for the loss of the elevator, informing Farm Bureau that they owned the elevator. After Farm Bureau had paid the Heinrichs, its adjuster, aware that the Heinrichs had been paid, returned to the Wests’ farm, had them fill out a second proof of loss, reflecting the loss of the elevator and, in response to the question whether they wished to make any change, was told they did not. Farm Bureau refused to pay any of the $27,000 loss on the ground that the policy was void because the Wests had misrepresented that they owned the elevator.
The trial judge granted Farm Bureau’s motion for summary judgment. The Court of Appeals affirmed. In lieu of granting leave to appeal, pursu ant to GCR 1963, 853.2(4), we reverse and remand for trial.
Although the Wests are not blameless in claiming that they owned the elevator and in telling the adjuster that they had purchased it from the Heinrichs, the judge erred in granting summary judgment.
Where an insurance policy provides that an insured’s concealment, misrepresentation, fraud, or false swearing voids the policy, the insured must have actually intended to defraud the insurer. Campbell v Great Lakes Ins Co, 228 Mich 636, 638; 200 NW 457 (1924); Brunswick-Balke-Collender Co v Northern Assurance Co, 142 Mich 29, 35-36; 105 NW 76 (1905); Tubbs v Dwelling-House Ins Co, 84 Mich 646, 649, 654; 48 NW 296 (1891); see Monaghan v Agricultural Fire Ins Co, 53 Mich 238, 242, 255; 18 NW 797 (1884); 44 Am Jur 2d, Insurance, § 1501, p 368. The eifect of this rule is that a false claim regarding a small portion of the loss may not result in forfeiture of the entire coverage unless the insured is shown to be clearly culpable. See Bernadich v Bernadich, 287 Mich 137, 143; 283 NW 5 (1938).
In the instant case, Kenneth West stated in an affidavit submitted in opposition to the motion for summary judgment that he "acted in good faith, without fraudulent intent, and not willfully” because he was "not versed in the distinctions between ownership of personal property and responsibility for personal property on my premises belonging to other persons for which I believe I owe an obligation”. Although the Wests may have been wrong in their perception of the law, they may have been guilty of nothing more than adhering to a common misconception that one in possession of another’s property is responsible for its safe return and that they were in effect required to "buy” the elevator since it was destroyed while in their possession.
"Whether misrepresentations or false statements void an insurance policy depends upon the intent to defraud and this is a question of fact for the jury.” Bernadich v Bernadich, supra, pp 144-145.
In light of Kenneth West’s affidavit that he acted in good faith and without fraudulent intent, and it appearing there was a plausible non-fraudulent explanation for the statement in the proof of loss regarding ownership of the grain elevator, there is a genuine issue of material fact regarding the Wests’ intent. A trier of fact could reasonably conclude that the Wests did not intend to defraud the insurer. It was error to grant summary judgment. See, generally, Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973); Durant v Stahlin, 375 Mich 628, 640; 135 NW2d 392 (1965) (Souris, J.).
Reversed and remanded for trial.
Kavanagh, C. J., and Williams, Levin, COLE-
man, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
The Wests were purchasing the farm on land contract. The Court of Appeals reversed a summary judgment against the land contract sellers because a provision in the insurance policy "expressly provided that the interest of a land contract vendor is governed by the Mortgage Clause. This latter clause provides that the policy shall not be invalidated against a mortgagee in the event of any acts of the mortgagor”. Farm Bureau has not sought leave to appeal.
The proof of loss was not notarized by Farm Bureau’s adjuster because his notary commission had expired.
The policy provided:
"This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured related thereto.”
The summary judgment precluded recovery for a $27,000 loss because of the alleged misrepresentation regarding the $1,200 elevator.
The Court quoted Rockmiss v New Jersey M’frs Ass’n Fire Ins Co, 112 NJL 136, 139-140; 169 A 663 (1934):
" 'It is a firmly established rule of construction that policies of insurance will be liberally construed to uphold the contract, and conditions contained in them which create forfeitures will be construed most strongly against the insurer and will never be extended beyond the strict words of the policy. The court will never seek for a construction of a forfeiture clause in a policy which will sustain it, if one which will defeat it is reasonably deducible from the terms and words used to express it.’ ”
GCR 1963, 117.2(3).
Our disposition makes it unnecessary to consider whether Farm Bureau must show that it relied on the alleged misrepresentation (see Alma State Savings Bank v Springfield Fire & Marine Ins Co, 268 Mich 631, 635; 256 NW 573 [1934]) or was thereby damaged (see Bernadich v Bernadich, supra, p 143). | [
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Williams, J.
Leave to appeal was granted in this case because defendant alleged his guilty plea was induced because of his inability to get consideration of his motion for reduction of his bond. This Court was concerned that inadequate initial consideration and inability to appeal such inadequate consideration was in effect denying defendants their constitutional and statutory right to bail.
Our Constitution provides, Const 1963, art 1, § 15 and § 16:
"Sec. 15. No person shall be subject for the same offense to be twice put in jeopardy. All persons shall, before conviction, be bailable by sufficient sureties, except for murder and treason when the proof is evident or the presumption great.
"Sec. 16. Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained.”
The record and argument indicated that the courts, trial and appellate, did hear defendant’s pleas for reduction in bond. Unfortunately, on the record it is not ascertainable whether the courts gave adequate or inadequate consideration to the pleas. Since the law at that time did not require the statement of reasons for bond decisions there is no demonstrable error. The only guidance given the courts was MCL 765.6; MSA 28.893 which provides:
"In all other cases the person accused shall be entitled to bail, the amount to be uniform whether the bail bond be executed by the person for whom bail has been set or by a surety. The amount of the recognizance shall be fixed with consideration of the seriousness of the offense charged, the previous criminal record of the defendant and the probability or improbability of his appearing at the trial of the cause.”
As a consequence, at this juncture, this Court could dispose of this case by saying that leave to appeal was improvidently granted. However, this Court has since amended the court rules to ensure the defendant’s right to bail by requiring adequate consideration in the initial instance and on review, by specifically describing the considerations on which bail should be granted, GCR 1963, 790. Significantly the new rule requires, "Unless the defendant is released on his own recognizance, the court must state the reason for its decision on the record”. Proper adherence to this rule should alleviate the type of problem which may have been present in this case.
We write now to make emphatic our belief that the new rule is to be complied with in spirit, as well as to the letter. In furtherance of that belief we find GCR 1963, 790.7, pretrial release-review, to be of the utmost importance. If a meaningful review of the pretrial release procedure cannot be obtained then the entire rule is for naught.
GCR 1963, 790.7 states:
".7 Review.
"(a) A magistrate’s or arraigning judge’s bail decision may be reviewed by motion filed in a court of general jurisdiction in criminal cases.
"Ob) A bail decision by a judge of a court of general jurisdiction may be reviewed by motion filed in the Court of Appeals.
"(c) There is no fee for a motion under (a) and (b).
"(d) The lower court’s order setting bail remains in effect and may not be vacated, modified, or reversed except on a finding of an abuse of judicial discretion.”
In reviewing a bail decision, more than perfunctory compliance is required, for review is the only means by which compliance can be judged. This is the heart of the matter.
The reviewing judge should thoroughly review the record, the reasons stated under GCR 1963, 790.5. GCR 1963, 790.5 states:
".5 Decision; Statement of Reasons.
"In deciding which release to use and what terms and conditions to impose, the court shall consider available information on:
"(1) the length of the defendant’s residence in the community;
"(2) his employment status and history and his financial condition;
"(3) his family ties and relationships;
"(4) his reputation, character, and mental condition;
"(5) his prior criminal record, including any record of prior release on recognizance or on bail;
"(6) his record of appearance or nonappearance at court proceedings or flight to avoid prosecution;
"(7) the identity of responsible members of the community who would vouch for his reliability;
"(8) the nature of the offense presently charged and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and
"(9) any other factors indicating his ties to the com munity or bearing on the risk of willful failure to appear.
“Unless the defendant is released on his own recognizance, the court must state the reason for its decision on the record. The court’s statement need not include a finding on each of the enumerated factors.”
In future cases, this Court believes that defendants, prior to appellate review, must be given the opportunity to correct any errors that appear in the record. Defendants also must be allowed to present any additional material evidence, which could have originally been considered in the setting of bail, if the evidence was not available when bail was originally set. A record must be made of this proceeding, generally a motion for reduction of bond, and any additional evidence that has been considered, so that an effective review of the decision can be had, if desired. However, such additional proceedings are not a requirement for appellate review.
Since appellant Spicer is indigent, his appellate counsel is entitled to reasonable attorney fees to be paid by Wayne County.
We affirm.
Kavanagh, C.J., and Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Williams, J. | [
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Per Curiam.
The people appeal by leave granted from a July 1, 1988, opinion and order of the Kalamazoo Circuit Court reversing defendant’s misdemeanor conviction, which was entered pursuant to a plea of nolo contendere on January 13, 1988, by the 9th District Court, Second Division, in Portage. When defendant pled nolo contendere to having violated the Pesticide Control Act, 1976 PA 171; MCL 286.551 et seq.; MSA 12.340(1) et seq., on the basis of his responsibility under § 12(6) of the act for an employee’s failure to have applied a pesticide at a residential site in accordance with the recommended and accepted good practices in the use of pesticides, he specifically reserved for appellate purpose the issue whether, as a matter of law, a certified applicator of pesticides, such as himself, could be held criminally responsible, under § 12(6) of the act, for the illegal acts of a noncertified applicator, such as defendant’s employee in this case. The circuit court held that a certified applicator could not be held criminally responsible for the illegal acts of an employed, noncertified applicator. We reverse.
The record reveals that defendant, Philip C. Jackson, a certified commercial applicator of pesticides under the Pesticide Control Act, is the branch manager of the Kalamazoo outlet of the Orkin Company, a nationwide pest control service. In May, 1987, James A. Gregart, who happens to be the prosecuting attorney for Kalamazoo County, contracted with the Orkin Company to treat his home with chlordane, a pesticide regulated under the Pesticide Control Act. Defendant dispatched Andrew Price, a noncertified applicator of pesticides, to the Gregart home to apply the chlordane. Price’s failure to follow the recommended and accepted procedures for use of the chemical prompted a complaint. Apparently, Price sprayed chlordane on the lawn of the Gregart home. When the complaint was verified, defendant discharged Price and, with an associate, properly applied the pesticide at the Gregart household. In addition, the Orkin Company refunded the downpayment of $167, cancelled the remaining balance of $930, added one year to the warranty period, paid $1,321 to replace carpeting in the downstairs area of the Gregart home, and paid $807 for medical examinations and testing for Gregart, his wife and his children.
Gregart subsequently applied for the appointment of a special prosecutor who would seek to impose criminal sanctions against defendant under the Pesticide Control Act. As a result, a misdemeanor warrant was issued against defendant naming Gregart as the victim and a representative of the Michigan Department of Agriculture as the complaining witness. A preliminary motion to dismiss the charge was denied by the district court, and a plea of nolo contendere was entered pursuant to a plea bargain under the terms of which the issue of defendant’s vicarious liability under the Pesticide Control Act was preserved for appeal. A fine of $100, costs of $50, and a fee of $5 were levied and, by stipulation, were to remain unpaid pending appeal. The circuit court reversed defendant’s misdemeanor conviction and the present appeal by the people ensued.
The sections of the Pesticide Control Act pertinent to this appeal, being §§ 12(5) and (6), 26(1), and 29(1), provide as follows:
(5) A pesticide applicator shall follow recommended and accepted good practices in the use of pesticides including use of a pesticide in a manner consistent with its labeling.
(6) A certified applicator shall be responsible for the application of a pesticide by a noncertified applicator under his instruction and control even though the certified applicator is not physically present. A certified applicator shall be physically present during the application of a pesticide if prescribed by the label. [MCL 286.562(5) and (6); MSA 12.340(12)(5) and (6).]
(1) A person who violates this act is guilty of a misdemeanor and shall be fined not more than $500.00 for each offense. [MCL 286.576(1); MSA 12.340(26)(1).]
(1) This act shall not terminate or in any way modify any liability, civil or criminal, which is in existence on the effective date of this act. [MCL 286.579(1); MSA 12.340(29)(1).]
No contention is made that defendant is criminally responsible under the act because the label of the chlordane used at the Gregart household required the physical presence of a certified applicator at the application site. Rather, the people contend that defendant is criminally responsible for the improper application of the chlordane by Andrew Price, a noncertified applicator who was acting under defendant’s instruction and control, even though defendant was not physically present at the residential site during application of the pesticide. The district court, in ruling that the responsibility or vicarious liability established in § 12(6) of the act regarding certified applicators included criminal responsibility and vicarious liability for such applicators, stated:
It is [defendant’s] claim that . . . Section [12(6)] makes him only civilly responsible for what his non-certified applicator did.
The Statute does not say that it is only a civil liability that they are speaking of. . . .
Now, the purpose of the Act is to protect our environment and the protection of our environment is becoming a problem that is more and more acute. We are destroying what we have.
The Legislature recognizes that and has provided for these controls. Now, if we are going to say that the Act only imposes a civil liability upon the certified applicator and that it does not impose a criminal responsibility, then it is going to be very easy for a certified applicator to avoid his responsibility as such and if we pronounce that the Statute means what Mr. Jackson claims it means, he is only responsible in a civil action. Then the purpose for which the Legislature passed this Act will be voided.
The Act clearly puts the responsibility upon the certified applicator and [it] does that because he has to go through a certain training and so forth.
I am of the opinion that the Act provides both for civil liability and for criminal responsibility for [a] certified applicator, when a person under his control violates the Act. . . it is my opinion that the Act provides for both civil and criminal responsibility because to say otherwise will be to say that the Act cannot perform the purpose for which it was intended and that is to control the application of pesticides, such as Chlordane, by hiring a non-certified person and tell him to go do it, turn him loose.
The circuit court, in reversing the district court, concluded that § 12(6) of the act does not subject certified applicators to vicarious criminal responsibility for the acts of noncertified applicators because such responsibility would be in derogation of the common law and was not specifically provided for in § 12(6). In its July 1, 1988, opinion and order, the circuit court stated:
If the defendant is criminally liable under the act, it is because of the application of the concept of vicarious liability. This court understands, and the People concede, that at common law there was no vicarious criminal liability. The common law is the law of this state. While the legislature has the authority to abrogate common law, it must do so in no uncertain terms and with specificity. People v Serra, 301 Mich 124 [3 NW2d 35] (1942). Since the Pesticide Control Act imposes vicarious criminal liability as applied here, it is in derogation of the common law. Because the act is further a penal statute, it must be strictly construed.
It is clear that section 12(6) of the act makes no mention of criminal liability. Rather, it uses the term "responsible.” The People conceded at oral argument that this term is ambiguous. This does not mean, however, that this section of the act has no meaning. Indeed, it can be viewed as a restatement of the law of torts with regard to the concept of respondeat superior. Additionally, this section could undoubtedly be used to impose administrative sanctions on the defendant’s license. Therefore, the section has meaning and is not a nullity.
This court questions whether the legislature spoke with the preciseness necessary to modify the common law with respect to vicarious criminal liability. First, it would have been very easy for the legislature to insert the word "criminally” following the word "responsible” in section 12(6) of the act. It chose not to do so. Secondly and even more curiously, section 29(1) of the act, being MCLA 286.579(1); MSA 12.340(29)(1), states very clearly that the act in no way terminates or modifies any liability, civil or criminal, which is in existence on the effective date of the act. Since there was no vicarious criminal liability at common law, this section appears to indicate that the legislature did not believe it was changing nor did it intend to change the common law. Therefore, no criminal law could be violated and defendant’s conviction must be reversed.
The district judge wisely noted that the purpose of the Statute is to prevent further degradation of the environment and to protect the public. This court strongly supports those goals. This court further believes that the legislature could impose vicarious criminal or civil liability if it chose to do so. To do so, however, requires an expression of legislative intent honed to more precision than used here.
It is true that "[criminal liability does not arise vicariously unless the Legislature so provides,” People v Wilcox, 83 Mich App 654, 659; 269 NW2d 256 (1978); 21 Am Jur 2d, Criminal Law, § 181, pp 336-337; LaFave & Scott, Criminal Law, § 32, p 224, that in exercising its authority to abrogate the common law the Legislature must speak with specificity and in no uncertain terms, People v Serra, 301 Mich 124, 130; 3 NW2d 35 (1942), and that, in general, criminal statutes are to be strictly construed, People v Crousore, 159 Mich App 304, 310; 406 NW2d 280 (1987), lv den sub nom People v Wyngaard, 430 Mich 893 (1988); Torcia, Wharton’s Criminal Law (14th ed), § 12, pp 59-63. However, we do not believe that these principles work in this case to shield defendant from vicarious criminal liability under the Pesticide Control Act.
The general rule that criminal statutes are to be strictly construed is inapplicable when the general purpose of the Legislature is manifest and is sub-served by giving the words used in the statute their ordinary meaning. United States v P Koenig Coal Co, 270 US 512, 520; 46 S Ct 392, 394; 70 L Ed 709, 713 (1926). In addition, statutory language which is clear and unambiguous should be given its plain meaning by the judiciary. People v Bound, 163 Mich App 261, 264; 413 NW2d 762 (1987), lv den 429 Mich 887 (1987).
In the Pesticide Control Act the Legislature provided that any person who violates a provision of the act is guilty of a misdemeanor. Since no level of intent is mentioned, strict liability is applicable. One provision of the act, § 12(5), requires a pesticide applicator to follow the recommended and accepted good practices in the use of pesticides, and another provision of the act, § 12(6), makes a certified applicator "responsible” for the application of a pesticide by a noncertified applicator under his instruction and control. While, as the circuit court stressed, the Legislature did not insert the modifier "criminally” before the operative word "responsible” in § 12(6), neither did it insert the word "civilly.” The effect of the circuit court’s ruling, however, is to limit the plain meaning of the term used by the Legislature so that the unlimited term "responsible” may mean only civilly, not criminally, responsible. We see no need to so qualify, circumscribe or restrict the plain meaning of the word chosen by the Legislature in drafting § 12(6) of the Pesticide Control Act. Included in the definition of the term "responsible” one finds the following phrases: "liable to legal review or in case of fault to penalties,” "liable to be called on to answer,” Webster’s New Collegiate Dictionary (1973), pp 986-987; "[involving personal accountability,” The American Heritage Dictionary of the English Language (1981), p 1108; "[liable,” "legally accountable or answerable,” Black’s Law Dictionary, 5th ed (1979), p 1180; and "[u]nder liability,” Ballentine’s Law Dictionary (1969), p 1106. Thus, it is apparent that modern lexicons in both the areas of language and law do not limit the meaning of the word "responsible” to include only civil liability or, stated conversely, to exclude criminal liability. Standing alone and unmodified, as it does in § 12(6), the word "responsible” encompasses both civil and criminal liability. The statute itself provides that a certified applicator "shall be responsible” for the application of a pesticide by a noncertified applicator under his instruction and control, and further provides that a violation of the act constitutes a misdemeanor. Thus, by its own terms, the statute imposes vicarious criminal liability upon a certified applicator for actions in violation of the act performed by a noncertified applicator working under the instruction and control of the certified applicator. See People v DeClerk, 400 Mich 10, 20; 252 NW2d 782 (1977).
Nor is this plain meaning of the word "responsible” restricted or narrowed, as suggested by the circuit court, by the language in §29(1). That section, as noted above, provides that the act does not terminate or modify any liability, civil or criminal, which was in existence on the act’s effective date. We believe that the language of § 29(1) merely preserves any liability, civil or criminal, which preexisted the Pesticide Control Act. To reason as did the circuit court, which stated that ”[s]ince there was no vicarious criminal liability at common law, this section [§ 29(1)] appears to indicate that the legislature did not believe it was changing nor did it intend to change the common law,” is to render meaningless an important part of the Pesticide Control Act. Since the misdemeanor liability and the licensing requirements created by the statute were unknown in the common law regarding pesticide control, if § 29(1) were interpreted to mean that the act in no way modifies existing liabilities in the area, very significant portions, perhaps the most significant portions, of the act would be of no purpose. We believe that §29(1) simply reflects the intent to ensure the continued viability of the common law in this area wherever the common law does not conflict with a provision of the Pesticide Control Act. In the case at bar, regarding the vicarious criminal responsibility of a certified applicator for the acts of a noncertified applicator under his instruction and control, the common law conflicts with § 12(6). Thus, the latter controls. Crousore, supra, p 309.
Our analysis and conclusion in this case are consistent with the comments of other legal authorities. For example, in 21 Am Jur 2d, Criminal Law, § 181, pp 336-337, it is stated:
Unless he in some way participates in, counsels, or approves of what the servant does, or, as it is sometimes put, unless he counsels, commands, aids, or abets, or procures the commission of, an act, an employer or principal is not, in the absence of a statute, criminally liable for the acts of his employee or agent. . . .
A statute may in certain instances fix criminal responsibility on an employer or principal for an act committed by his employee or agent.
In addition, in LaFave & Scott, supra, pp 224-225, it is stated:
Some criminal statutes, generally containing no language of fault, specifically impose criminal liability upon the employer for the bad conduct of his employee — e.g., "whoever, by himself or by his agent, sells articles at short weight shall be punished by . . . ,” or "whoever sells liquor to a minor is punishable by . . . and any sale by an employee shall be deemed the act of the employer as well as the act of the employee.” Such statutes (generally carrying a misdemeanor penalty) are naturally construed to impose vicarious liability upon the employer though he expressly forbade his employee to engage in the forbidden conduct.
Often statutes are not that specific as to whether or not they impose vicarious liability. In such a case, if the statutory crime is worded in language requiring some type of fault ("knowingly,” "wilfully,” "with intent to,” etc.), then it is the rule that the employer must personally know or be wilful or have the requisite intention to be liable for the criminal conduct of his employee; even though the latter is acting to further his employer’s business, the employer is not criminally liable unless he knew of or authorized that action. That is, if the statute requires mental fault, it will not be presumed that the legislature intended that the fault of the employee should suffice for conviction of the employer.
In between the statutes which specifically require fault and those which specifically impose criminal liability on the employer for his employee’s conduct fall those statutes which neither contain fault-words nor contain any expression that the conduct of the employee makes the employer liable. Thus a statute may simply state that "whoever employs children under 14 in a factory is guilty of a misdemeanor.” The factory owner in structs his manager not to employ children under 14, but the manager disregards the instruction and does so. Is the owner liable? The question is one of construction of the statute, and is likely to be approached in much the same way as the question of whether statutes empty of language of fault are to be construed to impose strict liability. If the authorized punishment is light — a fine or perhaps a short imprisonment — the statute is likely to be construed to impose vicarious liability on a faultless employer. But if the permitted punishment is severe — a felony or a serious misdemeanor — the statute is not apt to be so construed in the absence of an express provision for vicarious responsibility.
Even if we were to agree with defendant that the language in the Pesticide Control Act regarding the vicarious criminal responsibility of certified applicators is ambiguous and, thus, requires construction, we believe that the intent of the Legislature is to impose such responsibility. The authorized punishment is light, a fine of not more than $500 for each offense. As noted in LaFave & Scott, supra: "If the authorized punishment is light — a fine or perhaps a short imprisonment— the statute is likely to be construed to impose vicarious liability on a faultless employer.” Moreover, only by imposing vicarious criminal responsibility can the full intent of the legislation, to protect the public health and safety from deliberate as well as negligent environmental degradation, effectively be carried out. The Pesticide Control Act allows the hiring of uncertified applicators to apply pesticides, but places on the certified applicators the responsibility for selecting, train ing, and instructing such uncertified applicators. To allow the certified applicator to escape vicarious criminal responsibility under these circumstances would be to preclude employment of the law’s most puissant implement of public protection and to diminish the statute’s deterrent effect. To hold that a certified applicator may be held criminally responsible for violations of the act only when he himself, and not a noncertified applicator under his instruction and control, has committed those violations “would be to prepare a way of easy escape” and "would go a long way ... toward destroying the beneficial effects and purposes of this law.” Groff v State, 171 Ind 547; 85 NE 769, 770-771 (1908); see also United States v Park, 421 US 658, 671-674; 95 S Ct 1903, 1911-1912; 44 L Ed 2d 489, 500-502 (1975).
It is obvious that the relationship between the environment and public health is synergistic in nature. As noted by H.L Mencken, health is “[s]imply a state in which the individual happens transiently to be perfectly adapted to his environment.” The illicit use of pesticides, of course, might well release into the environment poisons to which a person cannot adapt. A major purpose of the Pesticide Control Act is to regulate the release of such poisons so as to reduce the possibility of deleterious effects on the public health. We believe that our holding in this case is consistent with that purpose and is mandated under the language of the Pesticide Control Act.
Reversed.
In their appellate brief the people note that "since Mr. Gregart is the Prosecuting Attorney for Kalamazoo County, Kalamazoo County Circuit Judge Richard Lamb issued an order on September 4, 1987 appointing the Berrien Prosecutor’s Office as Special Prosecutor in this case.”
We note that in the Michigan Penal Code it is provided:
The rule that a penal statute is to be strictly construed shall not apply to this act or any of the provisions thereof. All provisions of this act shall be construed according to the fair import of their terms, to promote justice and to eifect the objects of the law. [MCL 750.2; MSA 28.192.]
Moreover, while it is true that the Pesticide Control Act is penal in nature, it is also, in a sense, remedial. Remedial statutes, and the remedial portions of penal statutes, are to be liberally construed. See, e.g., Robinson v Harmon, 157 Mich 272, 278; 122 NW 106 (1909); Rancour v The Detroit Edison Co, 150 Mich App 276, 285; 388 NW2d 336 (1986), lv den 428 Mich 860 (1987); Pi-Con, Inc v A J Anderson Construction Co, 169 Mich App 389, 395; 425 NW2d 563 (1988).
This same quotation was excerpted in People v Wilcox, 83 Mich App 654, 659-660; 269 NW2d 256 (1978), although a portion of the text and the citation to the source were incorrectly reported.
Hershorn v People, 108 Colo 43; 113 P2d 680; 139 ALR 297 (1941); Sayre, [Criminal responsibility for the acts of another, 43 Harv L Rev 689, 714 (1930)], citing cases both ways construing "petty misdemeanor” statutes; see also Annots, 43 LRA (NS) 2 (1913) (general) and 139 ALR 306 (1942) (liquor laws).
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Per Curiam.
Defendant Ruth Larkin appeals from an order of the trial court quieting title to plaintiffs’ property and voiding a mortgage held by defendant on plaintiffs’ house. We reverse.
This case arises out of the bankruptcy of A. J. Obie & Associates, Inc., and Diamond Mortgage Corporation in 1986. Defendant Larkin invested a total of $20,000 with A. J. Obie during 1985 in two separate transactions, the first involving an investment of $12,000 and the second involving $8,000. Defendant Larkin received monthly interest checks on her investment.
In May, 1986, defendant Larkin decided to withdraw her money to buy a car for her grandson’s graduation. She was informed by an agent of A. J. Obie that she would incur a $500 penalty if she withdrew her money at that time. Sometime that summer she stopped receiving her interest payments. In August, 1986, defendant Larkin saw a television news broadcast that indicated that A. J. Obie and Diamond Mortgage Corporation had filed for bankruptcy. As a result, she attempted to contact the A. J. Obie office repeatedly. She eventually spoke with a secretary who, in response to defendant Larkin’s request for the return of her investment, sent her a mortgage and promissory note executed by plaintiffs in favor of defendant State Mortgage, Inc., which defendant State Mortgage had assigned to defendant Larkin.
Plaintiffs’ involvement with Diamond Mortgage Corporation began in January, 1986, when they responded to a television advertisement by Diamond concerning second mortgages on homes. Plaintiffs contacted Diamond to borrow money to repay an automobile loan and to make some home improvements. Their loan request was granted by Diamond and they eventually reached an agreement with Diamond to borrow slightly over $15,000. On March 7, 1986, plaintiffs executed a mortgage and promissory note in the face amount of $19,000 with State Mortgage, Inc., being listed as the lender.
At the time of the execution of the mortgage and promissory note, plaintiffs received no proceeds from the loan but were told that they would receive their money within fifteen business days. It was also represented to plaintiffs that the mortgage would not be recorded until the disbursement of the proceeds. In fact, the mortgage was recorded and no money was ever disbursed to plaintiffs or on plaintiffs’ behalf. Plaintiffs repeatedly contacted Diamond to receive the proceeds of the loan to no avail. Plaintiffs never made any payments on the loan.
As noted above, in August, 1986, A. J. Obie sent the mortgage and note and an assignment of the mortgage to defendant Larkin. The assignment bears a date of March 21,1986.
After discovering that the mortgage had been assigned to defendant Larkin, plaintiffs filed the instant action to quiet title to their home and void the mortgage based upon fraud and lack of consideration. Defendant Larkin answered, claimed she took the note as a holder in due course, and counterclaimed for foreclosure. Defendant State Mortgage Corporation has not answered. The trial court, in a brief opinion from the bench, concluded that defendant Larkin was not a holder in due course and granted relief in favor of plaintiffs.
We begin by noting that, while plaintiffs do not concede that the promissory note is a negotiable instrument under the Uniform Commercial Code, neither do they argue that the note is not a negotiable instrument. Rather, plaintiffs in their brief merely comment that "it may be argued that” the note "is a negotiable instrument” while noting that a mortgage is not a negotiable instrument. Thereafter, plaintiffs restrict their attention to the question whether defendant Larkin is a holder in due course of the note and whether, if she is a holder in due course, she takes the note free of plaintiffs’ defenses. Since plaintiffs do not argue that the note is not a negotiable instrument, we shall assume, without deciding, that it meets the requirements for negotiability and proceed with the analysis of the holder in due course issue.
MCL 440.3302(1); MSA 19.3302(1) establishes the requirements for a holder of a negotiable instrument to be a holder in due course:
A holder in due course is a holder who takes the instrument
(a) for value; and
(b) in good faith; and
(c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.
The trial court’s bench opinion does not indicate which factor or factors it believed that defendant Larkin failed to meet to qualify as a holder in due course. Plaintiffs, however, contend that she fails to meet all three criteria. We disagree.
Turning to the requirement of value, plaintiffs contend that defendant Larkin did not pay value for the instrument because her investment with A. J. Obie preceded the mortgage and, in fact, that defendant Larkin had no knowledge of the existence of the mortgage until she received copies of the mortgage, promissory note and assignment that had been mailed to her by A. J. Obie. However, MCL 440.3303; MSA 19.3303 provides as follows:
A holder takes the instrument for value
(a) to the extent that the agreed consideration has been performed or that he acquires a security interest in or a lien on the instrument otherwise than by legal process; or
(b) when he takes the instrument in payment of or as security for an antecedent claim against any person whether or not the claim is due; or
(c) when he gives a negotiable instrument for it or makes an irrevocable commitment to a third person. [Emphasis added.]
Since defendant Larkin took the note in payment of her claim against A. J. Obie arising from her investment, even though that investment preceded the note, she took the note for value since the note was in payment or .security for an antecedent claim.
Turning to the issue whether defendant Larkin took the note in good faith, plaintiffs argue that there was no good faith because there is no evidence indicating that she bargained for the assignment and that she had merely discovered the documents in her mail box one day after complaining to A. J. Obie in an attempt to receive the return of her investment. We fail to see how these facts establish any lack of good faith by defendant Larkin. Nothing in the record indicates that she was involved in any fraudulent transactions with A. J. Obie or Diamond. For that matter, nothing in the record even indicates that defendant Larkin was aware of any allegations against A. J. Obie or Diamond that they had engaged in fraudulent business practices. Rather, the evidence indicates that A. J. Obie had failed to live up to its obligations to defendant Larkin and that, in answer to defendant Larkin’s resulting complaints to A. J. Obie, the promissory note and supporting documents were delivered to her. This does not, in our opinion, evidence any lack of good faith by defendant Larkin.
Turning to the third and final requirement, that the holder take the instrument without notice that it is overdue or has been dishonored and without notice of any defense against or claim to the note by any person, we are not persuaded by the record that defendant Larkin possessed any such notice. Plaintiffs argue that the fact that defendant Larkin had stopped receiving interest payments from A. J. Obie put her on notice that the note was past due. Plaintiffs’ argument is, however, a non sequitur as there is no indication in the record that there was ever a link between the mortgage payments by plaintiffs and the receipt of interest by defendant Larkin. Indeed, no such link existed inasmuch as plaintiffs never made any payments on the note, while defendant Larkin did receive interest payments on her investment for a period of time. Furthermore, even if such a link theoretically existed, or even was intended to exist, there is no indication from the record that defendant Larkin was ever aware of the existence or purported existence of such a link between the note and her interest payments. For these reasons, we conclude that defendant Larkin was not on notice that the note was past due.
Turning to the question whether she was on notice of any claim or defense by plaintiffs, the evidence in the record indicates that defendant was not aware of plaintiffs being defrauded by Diamond until after the assignment had occurred and the documents were mailed to her. At most, the record indicates that defendant Larkin was aware that A. J. Obie and Diamond were having financial difficulties and were headed for bankruptcy before she received the assignment in the mail. However, the mere fact that defendant Larkin was aware that A. J. Obie and Diamond were having financial difficulties does not support the proposition that she was aware of any fraudulent conduct against plaintiffs or that plaintiffs had not received the proceeds from the promissory note. Indeed, the fact that defendant Larkin was aware of the financial difficulties of A. J. Obie and Diamond does not establish any knowledge or, for that matter, any reason for defendant Larkin to suspect that A. J. Obie and Diamond had engaged in fraudulent business practices either as a general proposition or with specific reference to the transaction with plaintiffs. Simply put, the fact that a business is insolvent does not establish any fraudulent conduct by that business or that there are defenses to a negotiable instrument held by that business. Had the record indicated that defendant Larkin was aware that A. J. Obie and Diamond had engaged in fraudulent business practices, we might be persuaded to conclude that she was on notice of a possible defense against the mortgage and note by plaintiffs. We could even possibly be persuaded to conclude that such notice existed had there even been evidence that allegations of fraudulent business practices by A. J. Obie and Diamond had been broadcast to the general public by the news media. However, there is no evidence on the record before us to indicate that either defendant Larkin in particular or the public in general had even been aware of any allegations of fraudulent practices by A. J. Obie and Diamond at the time defendant Larkin received the note and mortgage. Lacking any such knowledge, we conclude that defendant Larkin took the instrument without notice of any defense by plaintiffs.
For the above reasons, we conclude that defendant Larkin was, in fact, a holder in due course of the promissory note, and that the trial court’s finding to the contrary was clearly erroneous. See MCR 2.613(C). Accordingly, defendant Larkin took the note free from all personal defenses of plaintiffs and is subject only to so-called real defenses which could be raised by plaintiffs. See MCL 440.3305; MSA 19.3305.
Since the trial court terminated its analysis of this case with its finding that defendant was not a holder in due course, we believe the appropriate remedy is to remand the matter to the trial court for reconsideration of its decision in light of our holding that defendant Larkin was, in fact, a holder in due course. On remand, the trial court shall determine whether plaintiffs have any viable defense to the instrument in light of defendant Larkin’s status as a holder in due course and, if no such defense exists, the trial court shall determine if defendant Larkin is entitled to foreclose on the mortgage and, if so, what amount, if any, is owed by plaintiffs to defendant Larkin on the mortgage.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Defendant Larkin may tax costs.
Apparently, State Mortgage, Inc., is, or perhaps more correctly was, an affiliate company of A. J. Obie and Diamond Mortgage. Of the $19,000 principal on the loan, slightly less than $4,000 went to pay Diamond Mortgage Corporation’s "loan origination fee” charged for arranging this mortgage.
See MCL 440.3104; MSA 19.3104.
For that matter, the absence of link between the note and defendant Larkin’s interest payments is further indicated by the fact that defendant Larkin’s investment with A. J. Obie preceded the existence of the note and mortgage. Moreover, the purported date of the assignment of the mortgage is March 21, 1986. However, under the terms of the note, no payment was due by plaintiffs until May 1, 1986. Thus, if the assignment did occur on the date it purports to have occurred, the note was not past due when it was negotiated to defendant Larkin. On the other hand, if the stated date on the assignment is false, and the notarization fraudulent, the record nevertheless remains devoid of any evidence that defendant Larkin was aware of any fraudulent practices by A. J. Obie or Diamond Mortgage or that A. J. Obie had ever linked her investment to plaintiffs’ mortgage until A. J. Obie sent the mortgage documents to defendant Larkin. The same analysis applies if we take the day defendant Larkin received the assignment in the mail as the date she became the holder of the instrument.
Indeed, if the date of the assignment of the mortgage is taken as true, the assignment actually occurred several months before the problems surrounding A. J. Obie and Diamond Mortgage surfaced. | [
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Rehearing and motion for stay order denied.
Reported at 401 Mich 641. | [
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Per Curiam;.
The first two issues posed by defendant-appellant Frank C. Piku on this appeal focus on the relief afforded by the Court of Appeals in its decision to reverse and remand "for entry of judgment of foreclosure”. The case was resolved by the trial judge on Piku’s motion for accelerated and/or summary judgment. The issues which concern us involve the propriety of entry of a judgment of foreclosure before Piku has been given the opportunity to answer on the merits of the case. We vacate the Court of Appeals grant of relief and remand so that Piku has an opportunity to answer on the merits and defend his position.
Plaintiffs George and Marie Cooper, by a complaint filed in 1975, sought to foreclose on a land contract pursuant to an acceleration clause. Piku responded, as he was allowed to under GCR 1963, 116.1, with a motion entitled "Defendant’s Motion for Accelerated and/or Summary Judgment”. Plaintiffs answered that motion. On August 4, 1975, an order dismissing plaintiffs’ claim as to Piku was entered. On appeal to the Court of Appeals, the panelists treated the merits of an acceleration clause issue, said the trial judge "erred as a matter of law in not granting foreclosure”, and remanded for entry of a foreclosure judgment.
The Court of Appeals erred by not remanding for further proceedings so that Piku could be given a chance to answer. Piku raised this problem in an application for rehearing filed in the Court of Appeals, but the panelists denied the application for lack of merit in the grounds presented.
Piku contends that while, for purposes of his trial court motion, the effect of the motion is to concede facts in the complaint, it is not true that such facts were completely and finally conceded by him. We agree. Piku asserts that he wishes to raise factual issues concerning timely performance, the default status of the land contract, and mistake. We hold that Piku shall be afforded an opportunity to assert these factual and legal de fenses. Plaintiffs’ contention that Piku has made a "choice of remedies” cannot be accepted.
In view of the disposition of this case, we need not address the issues discussed by the Court of Appeals.
Remanded for further proceedings consistent with this opinion. Costs of this appeal to abide the final outcome of the case. Piku’s motion to strike, filed after written presentation of this case at our January term, is moot and is therefore denied because plaintiffs’ supplemental brief was unnecessary to resolution of this case.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
70 Mich App 597; 246 NW2d 311 (1976). | [
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Rehearing denied.
State Appellate Defender for defendant-appellant. Reported at 401 Mich 235. | [
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Coleman, J.
Michele Sweeney was injured when a car driven by her father, Jimmie Sweeney, skidded off a road in Ohio. The Sweeneys lived in Michigan; the car was registered and insured in Michigan; Mr. Sweeney had a Michigan driver’s license.
Michele Sweeney sued her father in Michigan where the doctrine of intra-family immunity had been overruled in "the interests of justice and fairness to all concerned”. Plumley v Klein, 388 Mich 1; 199 NW2d 169 (1972). Ohio continues to apply the immunity doctrine.
The trial court granted Jimmie Sweeney an accelerated judgment. The court said immunity is a matter of substance and "conflict of law issues invoking * * * matters of substance are governed by the law of the place of injury (lex loci delicti)”. The court rejected plaintiff’s proposal "to recognize an exception to lex loci delicti in this case of intrafamily litigation”. The Court of Appeals affirmed. 71 Mich App 428; 248 NW2d 571 (1976).
Although we reverse the Court of Appeals, we are not critical of the decision because it is based upon venerable Michigan precedent. However, we take this opportunity to review the reasoning adhering to lex loci delicti in light of interim developments in Michigan law and public policy.
Sometimes precedent remains unchanged over the years because it has periodically received wise review and has been found still sound despite the changes brought by time. On other occasions courts adhere to precedent simply because it exists long after need or policy considerations have changed or disappeared.
I
Ten years ago, our Court had another opportunity to review the lex loci delicti doctrine. In Abendschein v Farrell, 11 Mich App 662; 162 NW2d 165 (1968), the Court of Appeals urged "a fresh look at the dictates of lex loci delicti”. Although finding the doctrine outdated, the Court concluded that if it "is to be overruled * * * that is the function of the Supreme Court”.
Our Court did not accept the challenge. 382 Mich 510; 170 NW2d 137 (1969). While acknowledging the modern choice of law theories, the Court clung to lex loci delicti. It said "the quagmire of unanswered and perceivably unanswerable questions arising out of the proposed new doctrine appears less attractive than our admittedly hard and fast — and occasionally unjust, it is true— rule”.
The Michigan rule is "hard and fast” and ancient. In Wingert v Wayne Circuit Judge, 101 Mich 395; 59 NW 662 (1894), a Michigan resident drowned in Canada. The estate administrator sued in Michigan. The circuit judge refused to allow an amendment of the complaint based on Canadian law because the Canadian statute of limitations had run. The Supreme Court affirmed saying if "plaintiff has any right of action, it is by virtue of those laws. * * * The Canadian statute establishes the liability and provides the remedy”.
Another Canadian accident was involved in Turner v St Clair Tunnel Co, 111 Mich 578; 70 NW 146 (1897). Plaintiff was a laborer working on the American side of a tunnel between Ft. Gratiot, Michigan and Port Sarnia, Ontario. He was sent to the Canadian side for one day and was injured. He sued the company in Michigan.
The trial court based the company’s responsibility on Michigan law. The Supreme Court reversed saying "the action for the wrong is transitory, but * * * the right of recovery depends upon the law of the place where the tort is committed”. Citing Wingert, the Court said "the law of the place of the injury as to the duty of the master must apply”.
Similar statements have been frequently (and almost reflexively) made.
In 1939 the Court decided Kaiser v North, 292 Mich 49; 289 NW 325 (1939), a decision dissected by the Court of Appeals in Abendschein. Plaintiffs were passengers in a car driven by defendant. An accident occurred in Ontario. Plaintiffs sued in Michigan. Ontario law barred guest passengers from bringing any action; Michigan law allowed them to recover if defendant were grossly negligent. Plaintiffs said applying the Ontario statute would offend the Michigan Constitution and Michigan public policy.
The Supreme Court said Ontario law "is not tested by either the constitutional or statutory law of this jurisdiction; provided the foreign law does not conflict with our public policy”. A public policy question would arise if Ontario law "provided for plaintiffs a right of action which did not exist in” Michigan. However, "these plaintiffs are asserting a right of action which does not exist under the laws of Ontario, the lex loci delicti”. The difference between Michigan and Ontario law "is not a reason for holding the statute of the foreign jurisdiction contravenes public policy here”.
In Abendschein, the Court of Appeals said Kaiser "is not based on any authority which remains viable today”. Judge Gillis wrote "the policy facts on which [Kaiser] rested have changed radically in the intervening years — so much so that one might question whether we are even deciding the same problems raised by the Kaiser situation”.
After extensive analysis, the Court of Appeals labeled Kaiser an empty shell. The Court said "the lex loci delicti formulation is no longer of general application” noting that "nearly every jurisdiction which has recently considered the choice-of-laws issue in multistate torts has departed from the lex loci delicti formulation”.
Our Court did not accept the plea of the Court of Appeals "to write on a clean slate”. The Sweeney case ten years later provides an opportunity to reappraise our entire conflict of laws policy.
II
There are, however, recognized perils in an over-broad approach. Professor Juenger noted in his Torts Choice of Law in Michigan, 52 MSBJ 730 (1973), that while "novel approaches may support a sensible result in one instance, they have the awkward propensity to compel an unfortunate outcome in the next case that comes along”. We can reach a proper result in this case without revamping Michigan’s entire law of conflicts.
Kaiser said foreign laws are not tested by our constitution or statutes "provided the foreign law does not conflict with our public policy”. This echoed language from earlier cases.
In Rick v Saginaw Bay Towing Co, 132 Mich 237; 93 NW 632 (1903), a Michigan resident drowned in Canada. Under Canadian law his administratrix had a cause of action; under Michigan law, she did not. The circuit court directed a verdict for defendant.
On appeal, defendant said that enforcing the Canadian law under the lex loci delicti doctrine would contravene Michigan public policy. The Court said it would not refuse to enforce the cause of action unless it appears "such right is against good morals or natural justice, or that for some other reason an enforcement of it would be prejudicial to the general interest of’ Michigan residents. Although the Canadian law was different, "it does not follow that * * * it is contrary to the public policy of the state”.
In Rick, foreign law allowed a suit which Michigan law barred. A similar situation appeared in Eskovitz v Berger, 276 Mich 536; 268 NW 883 (1936), concerning an automobile accident in Ohio in which Michigan residents were injured. Ohio permitted passengers to sue for ordinary negligence; Michigan required a showing of gross negligence.
Plaintiffs won in a Michigan court and defendant appealed. Our Court noted that although lex loci delicti was the general rule, "there is the well-established exception that the foreign law will not be recognized if contrary to the public policy of the forum”. The Court adopted the trial court analysis that our guest passenger act (adopted in 1929) could not "be said to be such a settled policy of the forum as to prevent foreign laws to the contrary being given effect”.
In Rick and Eskovitz, the Court did not find a public policy conflict. It did in Kircher v Kircher, 288 Mich 669; 286 NW 120 (1939). Plaintiff sued her husband for injuries inflicted in Colorado, a state permitting interspousal suits contrary to Michigan law. Our Court would not allow her to sue in Michigan because "it is contrary to public policy in this state to permit one spouse to sue the other for negligent injury, and this closes the court to the action at bar”. The public policy subsequently has changed. See Hosko v Hosko, 385 Mich 39; 187 NW2d 236 (1971).
The Court in Tucker v Norfolk & WR Co, 403 F Supp 1372 (ED Mich, 1975), spoke to that change of public policy. Plaintiff was a Michigan resident, injured when her husband drove into the path of a train in Ohio. The husband claimed the protection of Ohio’s interspousal immunity. The Court said:
"The rule * * * is that the domiciliary state’s overwhelming interest in the spousal relationship requires deference to its law in determining the applicability of spousal immunities. Kircher, although not so stating, actually reflects that rule. In Kircher, the Michigan supreme court, by holding, if not its doctrine, established that the entire subject of spousal immunity is a matter of this state’s public policy. Michigan’s rejection of [spousal] immunity in Hosko is no less a matter of public policy than its adherence to it in earlier years. The construction placed upon the statute in Hosko reflects a determination that the modern spousal relationship is capable of bearing, and ought to bear, certain legal responsibilities that in an earlier time were foreclosed by the legal unity of husband and wife.” (Emphasis added.)
Also changed was the public policy regarding Michigan’s doctrine of intra-family immunity (Plumley).
Ill
In this daughter against father suit, we deal with a case which established a new public policy but did not apply the new policy to conflicts of law.
Just as tort law (pre-Hosko) viewed husband and wife as one, so was it (pre-Plumley) most protective of the parent-child relationship. No matter how severely a child was injured in an automobile accident caused by a parent’s negligence, the child had no cause of action.
The state of residence has a substantial interest in the parent-child legal relationship. Michigan’s announced public policy is to permit a child "to maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent”. That public policy should apply to Michigan residents suing in Michigan courts even though the alleged negligence occurred in Ohio.
Automatic application of lex loci delicti in this daughter against father suit would frustrate an announced Michigan public policy. Whether lex loci delicti should be applied in other situations is not decided here.
The Court of Appeals is reversed and the case is remanded to the trial court for proceedings consistent with this opinion.
Further, our decision will apply to future cases, to those currently in the trial courts and to those on appeal if the issues were properly preserved.
Kavanagh, C. J., and Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Coleman, J.
See Petrusha v Korinek, 237 Mich 583; 213 NW 188 (1927) ("the general rule is that substantive matters relating to the right of action are governed by the lex loci delicti”); Perkins v Great Central Transport Corp, 262 Mich 616; 247 NW 759 (1933) (" '[w]here an action is brought in one jurisdiction for a tort committed in another, the general rule is that all matters relating to the right of action are governed by the lex loci delicti’ ”); and Hazard v Great Central Transport Corp, 270 Mich 60; 258 NW 210 (1935) ("It is well settled that liability for a tort is determined by the law of the place of injury.”). Also see Stahl v Bell, 276 Mich 37; 267 NW 779 (1936); Meyer v Weimaster, 278 Mich 370; 270 NW 715 (1936); Summar v Besser Manufacturing Co, 310 Mich 347; 17 NW2d 209 (1945); Bostrom v Jennings, 326 Mich 146; 40 NW2d 97 (1949); and Leebove v Rovin, 363 Mich 569; 111 NW2d 104 (1961).
Also, "[n]owhere in Kaiser is inquiry made as to why the law of the place of the wrong should invariably govern the standard of care owed by parties to a relationship based primarily in a state other than that in which the injury occurred. We conclude that a necessary ingredient of the Kaiser decision was that the application of lex loci delicti as to any and all issues relating to the right was the universally accepted rule in this country. What should the result be on a reexamination of Kaiser when the very essential fact of universality and predictability are no longer existent? It appears to our minds that Kaiser governs a fact situation which no longer exists. Under the facts of the present case, including the jurisdictional facts which are necessarily part of any conflicts or choice-of-laws rule, our Supreme Court should write on a clean slate.”
Compare Branyan v Alpena Flying Service, Inc, 65 Mich App 1; 236 NW2d 739 (1975), in which a plane owned by a Michigan corporation crashed in Virginia. The Michigan wrongful death statute does not limit damages; the Virginia statute does. The suits were tried in Michigan but the circuit court limited the damage clauses to the Virginia amounts. In reversing, the Court of Appeals said lex loci delicti did not automatically apply to airplane accidents. The Court reviewed public policy and state interest factors and decided "that the limitation of the amount of plaintiffs’ damages should be determined in accordance with Michigan law”. | [
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] |
Per Curiam.
The issue upon which this case is to be resolved is whether a person may be convicted of a crime as an aider and abettor on the basis that he was an "accessory after the fact”. We hold that such an accessory is not an aider and abettor under the statute and that defendant Lucas’s conviction of burglary must be reversed.
At trial, the prosecution’s proofs tended to show that Lucas and a companion burglarized the home of Constance Harvell in Carleton (Monroe county). Mrs. Harvell returned home while the burglary was in progress. The burglars left the house while Mrs. Harvell was standing in front of the house. Lucas’s companion shot Mrs. Harvell twice. After the shooting, Lucas said "let’s get out of here” and the pair fled, the companion taking Mrs. Harvell’s purse just before the flight began. Lucas’s companion drove the automobile as the two fled. The pair were apprehended after a four-mile chase in Washtenaw county, northwest of Carleton, the same evening as the burglary. Defendant Lucas testified, saying that he had no idea what his companion intended to do before they reached Mrs. Harvell’s house, that he shouted at his companion while outside the house during the burglary, and that he was the one who stopped the pair’s car in the police chase. A jury found Lucas guilty of burglary of ah occupied dwelling house and assault with intent to murder. The Court of Appeals reversed the assault conviction but affirmed the burglary conviction in a per curiam opinion on May 5, 1977.
At issue now is an instruction concerning the relationship between aiding and abetting, and accessories after the fact. After reading the statute on aiding and abetting, the trial judge said:
"Under this law where more than one person participates in the commission of a crime or is charged with such participation, one is responsible for the acts of another under either or both of two situations.
"First; he is responsible for the acts of the other person if he knowingly and materially rendered aid or assistance in the acts, or the acts were done pursuant to an understanding between the persons or they were done in furtherance of a common purpose.
"Second; he is also responsible for the acts of the other person after a crime has been committed, provided that with knowledge the crime has been committed by the other person, either he assists that other person or he in any manner aids the other person to escape arrest or to escape punishment.” (Emphasis added.)
Thus, in the italicized portion of the charge, the trial judge said that an accessory after the fact could be guilty, as a principal, because of the aiding and abetting statute. Were the jury to have disbelieved, in this case, that Lucas either committed or aided and abetted the burglary, it still could have convicted Lucas on the basis that he aided the burglary by assisting in the escape. We hold this to be error.
An "accessory after the fact”, at common law, according to Professor Perkins, is "one who, with knowledge of the other’s guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment”. No case decided by this Court has construed the aiding and abetting statute to include accessories after the fact. In People v Wilborn, 57 Mich App 277, 282; 225 NW2d 727 (1975), lv den 394 Mich 809 (1975), it was held, without citation of authority, that it was error to instruct a jury that a defendant might be guilty as a principal of an offense if he was an accessory after the fact. We believe Wilborn was correctly decided, and construe the language of MCLA 767.39; MSA 28.979 — "concerned in the commission of an offense” — as not including those who assist after the fact of the crime. Instead of being charged as a principal, an accessory after the fact might be charged under MCLA 750.505; MSA 28.773.
Therefore, on considering Lucas’s application for leave to appeal, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse the burglary conviction and remand the cause for further proceedings in the trial court.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
MCLA 767.39; MSA 28.979.
MCLA 750.110; MSA 28.305.
MCLA 750.83; MSA 28.278.
"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”
Perkins, Criminal Law (2d ed), p 667.
This is consistent with People v Gould, 384 Mich 71, 77; 179 NW2d 617 (1970) (opinion by Kelly, J.):
"The distinction between accessories before the fact and principals has been abrogated by statute so that one who counsels, aids or abets in the commission of an offense may be tried and convicted as if he had directly committed such offense.” (Emphasis added.)
See, also, 1 Michigan Criminal Jury Instructions (Ann Arbor: Institute of Continuing Legal Education, 1977), Commentary, pp 8-23-8-25. | [
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] |
Williams, J.
Introduction
This case concerns an attack upon Mr. Anderson, the complaining witness, by three men. The day after the attack Mr. Anderson called the police to inform them that he had seen his attackers. The police then accompanied Mr. Anderson to a poolroom where he pointed out the defendants. At trial Mr. Anderson and a police officer were permitted, over objection, to testify to the circumstances of the poolroom identification. The Court of Appeals found no reversible error. We agree.
At the conclusion of the trial, defense counsel requested special jury instructions on reliability of witness identification testimony. The trial judge did not give the exact instructions requested but gave substantially similar ones. Defense counsel, who expected not to be present during the giving of the instructions had previously made an objection if the requested instructions were not given. The Court of Appeals found no reversible error. We agree.
The trial judge failed to instruct the jury that their verdict must be unanimous. The jury was instructed on the requirement of unanimity during their orientation. The record reveals that all jurors acknowledged that they agreed on the verdict. Defense counsel neither requested an instruction on unanimity nor objected to the trial judge’s failure to give it. The Court of Appeals found no reversible error. We agree.
Before the Court of Appeals defense counsel alleged a violation of defendants’ right to due process and equal protection. Defendants were convicted of assault with intent to rob not armed, MCLA 750.88; MSA 28.283 which carries a 15-year maximum sentence, and sentenced to 2 to 15 years imprisonment. Defense counsel cqntends attempted robbery unarmed, MCLA 750.530; MSA 28.798 and MCLA 750.92; MSA 28.287 is an identical offense with a five-year maximum sentence. Therefore he alleges defendants’ rights were violated because of the discretion given to the prosecutor to charge either offense when both are identical. The Court of Appeals found the statutes prohibited different offenses and therefore were not identical. We agree the statutes are not identical, but for reasons different from the Court of Appeals. Affirmed.
I — The Facts
Dwight Sanford and Reginald Lee Gardner were charged in a one-count information with the commission of the offense of assault with intent to rob being unarmed, MCLA 750.88; MSA 28.283.
The complainant, Booker Anderson, testified that on February 26, 1974 at about 5:45 p.m. he went to the Sherman Drug Store near Owen and Oakland in the City of Detroit. When he returned to his car and was unlocking the door someone grabbed him. Two persons hit him on the side of the head and tried to throw him down. They tried to get into his pocket and said that there was money in the pocket, A third person came and grabbed him and he was dragged to an alley and the culprits kept saying there was money in the pocket. Then they broke and ran. The culprits got nothing.
At trial Mr. Anderson identified defendants Gardner and Sanford as two of the men who attacked him. Mr. Anderson testified he had one false eye and his glasses were broken in the struggle. He also testified he had never seen the defendants before that day, but he had seen them in the drug store when he walked into the drug store.
Mr. Anderson also testified on direct examination to having identified the defendants the day after the attack. Mr. Anderson saw the defendants in the same drug store and called the police. By the time the police arrived defendants were in a poolroom. The police joined Mr. Anderson at the poolroom. Mr. Anderson then pointed the defendants out to the police. The relevant portions of that testimony follow:
C'Q. (By Mr. Morgan [prosecuting attorney]): Okay. Now, the next day, Mr. Anderson, February 27, did you have occasion to go back to the drug store?
"A. I went back to the drug store.
”Mr. Ziemba [defense counsel]: Objection. This is entirely irrelevant, your Honor.
"The Court: Overruled.
"Mr. Ziemba: Thank you.
”Q. (By Mr. Morgan): Would that be in the afternoon some time?
"A. Yes. I went back to the drug store, and I saw them come in the drug store.
”Q. Who came in the drug store?
"A. Those two here.
"Mr. Ziemba: May I have a continuing line of this question? [sic]
"The Court: Yes.
"Mr. Ziemba: Thank you.
”Q. (By Mr. Morgan): You saw Mr. Gardner and Mr. Sanford?
"A. That’s right.
”Q. Did they do anything in the drug store?
"A. They got a pack of cigarettes, I think, and walked out.
"Q. Okay. What did you do next, sir?
"A. I called a policeman.
"Q. Did some police officers come?
"A. That’s right.
”Q. What did you do next?
"A. When I called the police, they circled around up and down Owen and Oakland, and then went in the poolroom.
"Q. After the police went into the billiard room, what did you do, sir?
"A. I went in there, too.
"Q. What did you do next?
"A. They was standing around there looking.
"Q. Who do you mean, they?
"A. They was looking, the police, and I pointed him out and him out because them was the ones who robbed me.
”Q. You pointed Mr. Gardner and Mr. Sanford out?
"A. That’s right.
"Q. What were they doing in the poolroom?
"A. He was playing pool.
r'Q. Mr. Sanford?
"A Yes, and he was playing checkers.
”Q. Were there any other people in the poolroom?
"A. Yes, about 15 to 16 people, something like that.
"Q. Mr. Anderson, did you testify at a prior hearing in this matter?
’A. I [sure] did.
"Q. At that particular time, did you have occasion to identify the defendants?
"Mr. Ziemba: I object to this. This is highly objectionable.
"The Court: Objection sustained.
"Mr. Ziemba: I ask that the answer [sic] be stricken and the jury be instructed to disregard the answer [sic],
"Mr. Morgan: Your Honor, may we approach the bench?
"The Court: Yes.
(Whereupon a discussion was held off the record.)
”Q. (By Mr. Morgan): Mr. Anderson, is there any doubt in your mind that these are two of the men who attempted to rob you on February 26?
’A. That’s right. That’s the two right there.”
The trial judge did not permit Mr. Anderson to testify to the identification procedure used for the preliminary examination. At the preliminary examination, at the request of the defense counsel, the complainant was excused from the courtroom and the defendants were seated in the audience. The complainant then entered the courtroom and took the witness stand. He was asked to identify the men who assaulted him, and identified defendants in the audience.
A police officer, over objection, confirmed complainant’s testimony concerning the identification made February 27, 1974 in the poolroom. After this testimony the parties rested.
At the close of the trial defense counsel requested, in writing, a special instruction on the reliability of witness identification testimony. The trial judge gave an instruction which was substantially similar.
The court did not instruct the jury that their verdict had to be unanimous. Defense counsel neither requested such an instruction nor objected to the trial judge’s failure to give it. The record reveals that the jury was instructed on the unanimity requirement during their orientation in the following manner:
"Again, for 12 people or 6 people to reach a unanimous decision in a criminal trial is a difficult thing; and you have to listen to the opinions of each of your fellow jurors.”
The record also reveals,
"that all the jurors acknowledged to the trial judge that they agreed on the verdict”. People v Sanford, 65 Mich App 101, 106; 237 NW2d 201 (1975).
The jury convicted the defendants of assault with intent to rob unarmed. Both defendants received prison sentences of 2 to 15 years.
The Court of Appeals affirmed defendants’ convictions in People v Sanford, 65 Mich App 101; 237 NW2d 201 (1975).
We granted leave to appeal on the issues raised in defendants’ application, the four discussed above. We affirm defendants’ convictions, but on issue I for reasons different from the Court of Appeals.
II — Comparison op Two Criminal Statutes
The defendants contend the offense defined in MCLA 750.88; MSA 28.283, assault with intent to rob being not armed is identical to the offense of attempted robbery unarmed, defined in MCLA 750.530; MSA 28.798 and MCLA 750.92; MSA 28.287.
The Court of Appeals in discussing defendants’ first issue stated:
"Defendants next contend that the crime they were convicted of, assault with intent to rob being unarmed, is the same offense as attempted unarmed robbery. They contend that since assault with intent to rob being unarmed carries only a 15-year maximum sentence, and attempted unarmed robbery carries only a 5-year maximum, it is a denial of equal protection to have two statutes, with different penalties, prohibiting the same conduct. We disagree with defendants’ theory that the two statutes are aimed at prohibiting the same conduct.” 65 Mich App 101, 103.
MCLA 750.88; MSA 28.283 provides:
"Assault with intent to rob and steal being unarmed —Any person, not being armed with a dangerous weapon, who shall assault another with force and violence, and with intent to rob and steal, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.” (Emphasis added.)
MCLA 750.530; MSA 28.798 provides:
"Robbery unarmed — Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.” (Emphasis added.)
MCLA 750.92; MSA 28.287 provides:
"Attempt to commit crime — Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:
"2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year.”
Defendants were convicted under MCLA 750.88; MSA 28.283, the statute with the greater penalty, and sentenced to terms of not less than 2 nor more than 15 years imprisonment. They allege that their convictions were violative of due process and equal protection under the laws of the Fifth Amendment and Fourteenth Amendment to the United States Constitution and under Const 1963, art 1, § 17, because identical crimes are given different statutory penalties.
The assault with intent to rob unarmed statute is conjunctive; there must be an assault with force and violence. The attempted robbery unarmed statute is disjunctive; the offense can be accomplished either by force and violence, or by assault, or putting in fear. Attempted robbery unarmed may therefore be committed simply by putting someone in fear while assault with intent to rob unarmed requires an assault with force and violence. Therefore the offenses, assault with intent to rob unarmed and attempted robbery unarmed, are different.
We affirm the result of the Court of Appeals on this issue.
Ill — Definition of Criminal Assault
Although we affirm the Court of Appeals result on the above issue we disagree with their definition of "criminal assault”.
The Court of Appeals said:
"Michigan criminal law, however, defines a criminal assault as any intentional, unlawful offer of violence to another with the apparent present ability to carry out the offer, creating a reasonable fear of immediate injury. People v Carlson, 160 Mich 426; 125 NW 361 (1910), Tinkler v Richter, 295 Mich 396; 295 NW 201 (1940); but see People v Syakovich, 32 Mich App 356; 188 NW2d 642 (1971). An "assault” requires that the victim be put in reasonable fear of immediate harm; 'force and violence’ does not. A person may be 'forcefully and violently’ attacked and robbed while never even seeing his assailant. The same person may not, however, be 'assaulted’ unless he perceives the danger. Because MCLA 750.88; MSA 28.283 requires an assault as an element, and because MCLA 750.530; MSA 28.798 requires either an assault or force and violence, the two statutes prohibit different crimes. The prosecutor properly has the discretion to charge defendants under either statute. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972).” 65 Mich App 101, 105 (emphasis added).
In short the Court of Appeals defines criminal assault to include a requirement that "the victim be put in reasonable fear of immediate harm”. That has not been the law of Michigan nor do we believe it to be the preferable policy.
A general definition of criminal assault is found in 2 Michigan Law & Practice, Assault and Battery, § 31, which reads as follows:
"A criminal assault is an attempt or offer to do corporal injury, with a present intention and ability.”
People v Doud, 223 Mich 120, 123; 193 NW 884 (1923), offers the following definition:
"An assault, under practically all definitions, must carry on the face of its attendant circumstances an offer or attempt with force or violence to do a corporal hurt to another.”
People v Sheffield, 105 Mich 117, 118-119; 63 NW 65 (1895), defined assault in almost identical words:
"An assault involves 'every attempt or offer, with force and violence, to do a corporal hurt to another.’ ”
It will be noted that none of these definitions include the Court of Appeals requirement of "reasonable fear of immediate harm”. One earlier case, People v Lilley, 43 Mich 521; 5 NW 982 (1880), specifically rejected that requirement in the following words:
"What then constitutes an assault in law? It might be somewhat difficult to reconcile all the authorities upon this subject, and we shall not attempt it. Some of the tests, as putting the person assaulted in fear, cannot be relied upon, as evidently an assault may be made upon a person, even although he had no knowledge of the fact at the time.
"An assault is defined to be an inchoate violence to the person of another, with the present means of carrying the intent into effect. Threats are not sufficient; there must be proof of violence actually offered, and this within such a distance as that harm might ensue if the party was not prevented.” 43 Mich 521, 525-526 (emphasis added).
In deriving its definition of assault, as the earlier quotation from its opinion indicates, the Court of Appeals relied on two Supreme Court cases. It acknowledged that an earlier Court of Appeals case, People v Syakovich, 32 Mich App 356, 357; 188 NW2d 642 (1971), had adopted a contrary interpretation.
What warrant, then, do the two cited Supreme Court cases give the Court of Appeals to reach its decision? Tinkler v Richter, 295 Mich 396; 295 NW 201 (1940), is a civil case. Traditionally, "the word 'assault’ represented an entirely different concept in criminal law than it did in the law of torts”. Perkins on Criminal Law (2d ed), Assault, p 114. As a consequence, dependence on a civil law definition gives little support to the Court of Appeals position.
The other case the Court of Appeals relied on, People v Carlson, 160 Mich 426; 125 NW 361 (1910), gives ambiguous support to the Court of Appeals. The pertinent language from that case follows:
"There are numerous definitions of what constitutes an assault given by courts and textwriters. We cite two, which, taken together, may be said to include all necessary elements:
" 'An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.’ 3 Cyc, p 1020.
" 'An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate injury to a human being.’ 2 Bishop on Criminal Law (7th ed), § 23.” 160 Mich 426, 429.
While the introductory language presenting the definitions of the two treatises, "We cite two, which taken together, may be said to include all the necessary elements” is susceptible to the conjunctive interpretation given by the Court of Appeals in this case making the Bishop definition a necessary element along with the Cyclopedia definition, a disjunctive interpretation is also possible, namely that either the Bishop or the Cyclopedia definition is sufficient alone. The facts in Carlson do not establish either the conjunctive or the disjunctive interpretation because the record disclosed facts that would satisfy either or both definitions.
It may be of some significance that while Carlson has been cited in a subsequent Michigan case, People v Doud, 223 Mich 120, 123, 125, the requirement "that the victim be put in reasonable fear of immediate harm” was not mentioned in case law until the Court of Appeals mentioned it in this case, while, on the other hand, Carlson did quote Lilley on how much action is necessary to create an assault without any comment on the fact that Lilley had held a person could be assaulted, "although he had no knowledge of the fact at the time” and hence no fear.
As a consequence of this history of the Michigan cases and the fact that, as Perkins on Criminal Law (2d ed), pp 116-117 says:
"[T]here has been a tendency in many [jurisdictions] to add the tort liability theory as an additional ground. Where the tort theory has been added, a simple criminal assault 'is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery,’ ”
we prefer to read Carlson as quoting Bishop as an alternate or additional definition of assault rather than as a required element in every definition of assault. We are fortified in this conclusion by the fact that Bishop said that fear was not a sine qua non for assault. 2 Bishop on Criminal Law (9th ed), § 33, reads as follows:
"§ 33.1. Injury without Fear — Actual fear, created in the mind of the assailed person, while doubtless in proper circumstances it may be an element in assault, is not always and as of course necessary.” (Emphasis added.)
See also 2 Burdick, Law of Crime, § 339, p 3; Commonwealth v Slaney, 345 Mass 135, 139; 185 NE2d 919, 922 (1962), which says the Bishop requirement that fear be an element has been much criticized and that "in this Commonwealth neither fear, nor terror nor apprehension of harm is an essential ingredient of the common law crime of assault”.
In conclusion, we hold that the Court of Appeals definition of assault in this case is incorrect and we specifically overrule it. We adopt what Perkins on Criminal Law (2d ed), p 117, says is the majority rule, namely "a simple criminal assault 'is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery’ ”. We also hold that either the Cyclopedia or the Bishop definition in Carlson is an adequate definition of a form of assault and that both forms are actionable in the criminal law.
IV — Unanimous Verdict
Defendants’ second issue on appeal is whether the failure of the trial judge to instruct the jury that their verdict must be unanimous requires reversal. The Court of Appeals stated:
"Defense counsel, who is also counsel on appeal, neither requested such an instruction nor objected to the trial judge’s failure to give it. Under these circumstances, we would reverse only to prevent a miscarriage of justice. See People v Fry, 55 Mich App 18; 222 NW2d 14 (1974); GCR 1963, 516.2. Since the record in this case reveals that the jury was instructed on the unanimity requirement during their orientation, and that all the jurors acknowledged to the trial judge that they agreed on the verdict, we find no miscarriage of justice.” 65 Mich App 101, 105-106.
We agree that the convictions should not be reversed for this failure, but for reasons similar to those stated in the concurrence in People v Burden, 395 Mich 462, 469-470; 236 NW2d 505 (1975).
In the concurrence in Burden we examined the situation to determine if there were sufficient factors present to show that the jury had been substantially instructed as to the need for unanimity and that the verdict, in fact, had been unanimous. We apply the same analysis to this case.
First, the jury was advised of the requirement of a unanimous verdict during their orientation. They were informed as follows:
"Again, for 12 people or 6 people to reach a unanimous decision in a criminal trial is a difficult thing; and you have to listen to the opinions of each of your fellow jurors.”
Although the trial judge should instruct a jury in a criminal case that their verdict must be unanimous, in view of the circumstances, this language is adequate to advise the jury of their obligation to reach a unanimous verdict.
Second, as noted by the Court of Appeals "all the jurors acknowledged to the trial judge that they agreed on the verdict”. 65 Mich App 101, 106. There was actually a unanimous verdict.
It is these factors which lead us to conclude that defendants received a fair trial, even though no instruction was given to the jury by the trial court on the requirement of a unanimous verdict.
V — Identification Instructions
On the issue of jury instructions on identification the Court of Appeals ruled:
"The failure of the trial judge to give defendants’ requested identification instruction was not erroneous, as the judge did give an instruction that was substantially similar to the one requested.” 65 Mich App 101, 106.
We agree with the conclusion of the Court of Appeals.
Without the entire requested charge (page one is now missing) it is difficult to assess how far the trial judge deviated from the requested charge. Yet, defense counsel’s oral request and page two of his written request provide us with the general nature of the instruction he requested.
At the close of the trial defense counsel requested a special instruction on witness identification stating:
"the only one [instruction] I would anticipate asking the court would be an instruction to the effect that testimony as to the identification of a defendant by complainant who admits never having known that person before the criminal encounter, is at best an opinion and not a statement of fact and that it must be approached with great care and weighed very carefully by the jury.”
Defense counsel submitted an instruction in writing on the point mentioned. The second page reads as follows:
"You must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered in his testimony.
"I emphasize that the burden of proof on the prosecutor extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged. If after examining the testimony, you have a reasonable, doubt as to the accuracy of the identification, you must find the defendant not guilty.
’’United States v Telfaire, 152 US App DC 146; 469 F2d 552 (1972), United States v Barber, 442 F2d 517 (CA 3, 1971), United States v Edward, 439 F2d 150 (CA 3, 1971).”
After submitting the request defense counsel stated:
"The request is broadly to the effect that testimony as to identification by a witness who had never seen the person identified before the alleged offense was an expression of belief by that witness.
"I most respectfully ask the court to give that instruction, as submitted to the court, to the jury.
"If the court decides not to give that instruction, I would at this time voice an expressed objection to the court’s instruction as being inadequate.”
It is clear that defendants wanted a detailed instruction on the reliability and credibility of identification witness testimony, including the fact that such testimony is at best an opinion and not a statement of fact and that it must be approached with great care and weighed very carefully by the jury.
A review of the instruction on witness identification given by the trial judge reveals substantially the same type of instruction that was requested by defense counsel. The trial judge said:
"The third element then has to do with identity. Then, the question is whether or not there is proof beyond a reasonable doubt that these two defendants were the persons who in fact assaulted Mr. Booker Anderson with the intent to rob him. The defendants, Mr. Gardner and Mr. Sanford, are alleged to be the two persons who participated in this offense.
"I charge you as a matter of law that identification is often an expression or [sic] the belief of the witness and, of course, you jurors are not obligated to take the expression or [sic] the belief of the complaining witness in this case and adopt it as your own.
"In this case you must, in order to determine whether or not the defendants each of them or either of them assaulted Mr. Anderson, intending to rob him, you must look at the opportunity they [sic] may have had, to make the observation and the other facts and circumstances which convinces you as to the identification.
"You may take the testimony of Mr. Booker Anderson. And, if it seems reasonable and creditable, adopt it, as any other facts about which testimony has been given in the case. Or, you may take that testimony as it relates to that or any other facts in this case and examine it carefully as to whether or not it has been proven to the third element [identification].”
Again, at the end of the charge to the jury, the trial judge instructed the jury on witness testimony. The trial judge said:
"In this case as in any other, case, ladies and gentlemen, the determination you will be making is to give the credibility of the witnesses. You as jurors have the sole judgment. You have the right to consider certain characteristics of the witnesses and the manner in which they testify before you.
"If in the event there is a conflict of testimony of one witness, you are not bound to that testimony which seems unreasonable with other facts in the case. You should not reject the testimony of one witness without reason. You may accept the testimony of the witness [not] withstanding. You may also disregard the testimony entirely of that witness, if there is misrepresentation, in your own objection [sic], ”
Taking the jury charge as a whole we can find no prejudice to the defendants due to the trial judge’s failure to give the exact instruction requested.
VI — Prior Identification
Defendants contend it was error "for the trial judge to permit, over objection, testimony by the complainant and by a police officer as to the circumstances of defendants’ arrests”, because it was "irrelevant” and "merely gratuitously bolstered complainant’s in-court identification by * * * hearsay”. The Court of Appeals stated that after reviewing the issue "discussion is without merit”. 65 Mich App 101, 106.
We find the question to be whether, over objection, the trial judge should permit testimony concerning an extrajudicial identification by the witness who made the identification and/or by a third party, in this instance a police officer, who witnessed the identification. The problem is whether such testimony is hearsay and if so whether there is an exception which would allow one or both witnesses to testify.
There is a split among the jurisdictions on this question. In Gilbert v California, 388 US 263, 272-273, fn 3; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), the United States Supreme Court did not distinguish the two types of testimony and observed:
"There is a split among the States concerning the admissibility of prior extrajudicial identifications, as independent evidence of identity, both by the witness and third parties present at the prior identification. See 71 ALR 2d 449. It has been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial. See 5 ALR 2d Later Case Service 1225-1228.”
We agree with the position taken in the Federal Rules of Evidence, which removes the testimony of the identifier from the hearsay category. The Federal Rule of Evidence 801(d)(1)(C) states:
"Rule 801. Definitions
"The following definitions apply under this article:
"(d) Statements which are not hearsay. A statement is not hearsay if—
"(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (C) one of identification of a person made after perceiving him.”
We find that the testimony of the third party limited to the circumstances surrounding the identification is not objectionable as hearsay and is admissible at the discretion of the trial judge subject to such considerations as whether the identification procedures were unfair, biased, or a violation of the accused’s constitutional rights.
A. Testimony by the Identiñer.
Objections to this type of testimony have usually been based either on its character as hearsay or on the theory that it amounts to impermissible bolstering of the victim’s testimony by a prior consistent statement. In my concurring opinion in People v Poe, 388 Mich 611; 202 NW2d 320 (1972), the importance of such testimony was noted:
"This case strongly highlights a psychological and legal problem deserving the most serious consideration of the bench and bar. In reading the record and my Brother Adam’s [sic] opinion, one cannot escape the emphasis on what the witnesses at pretrial identification said and did. Such matters as whether or not an identifying witness did or did not identify the defendant; whether the identifying witness identified another person; whether the identification was 'positive’ or 'hesitant’; what the identifying witness said; what the police records of the lineup do or do not show; etc., all are heavily stressed. And no wonder, because punishment or discharge depends on whether the jury finds beyond a reasonable doubt that the witnesses identified the 'right’ man.
"From this emphasis on what happened and what was said at the pretrial identification procedures it is apparent that both parties thought the jury would be influenced by identifying witness’ impressions at the time nearest the crime. This actually is logically and psychologically sound. An important consideration underlining my concurrence in this case is the proposition that, all things being equal, identifications made prior to trial are inherently more reliable than those made 'in court’ ('That’s the man’). Wigmore has characterized in-court identifications as 'violently suggestive.’ Wigmore, Evidence — Corroboration by Witness’ Identification of an Accused on Arrest, 25 Ill L Rev 550, 550-551 (1931); see also 4 Wigmore, Evidence (3d ed), § 1130; Comment, Prior Identiñcation Evidence & the Hearsay Objection, 30 Rocky Mt L Rev 332 (1958); Wall, Eye-Witness Identification in Criminal Cases, pp 26-27, 181 fn 2, and Chapter V (1971, 2d printing). However, in Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), the United States Supreme Court made testimony as to pretrial identification procedures subject to per se exclusion if the defendant was without counsel. Kirby, supra [Kirby v Illinois, 406 US 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972)], restricted this per se exclusion to post-'indictment’ situations. This writer believes that the per se exclusionary rule should be eliminated entirely and an appropriate rule of special qualification of such evidence on the basis of the fairness of the procedures substituted.” 388 Mich 611, 623-625.
The Federal system adopted such a rule by enacting the Federal Rules of Evidence, Rule 801(d)(1)(C), supra.
This Court’s most direct pronouncement on the subject was made in conclusory fashion in People v Londe, 230 Mich 484; 203 NW 93 (1925). There the Court said:
"It was proper for the witnesses who had seen the men at the time of the robbery to testify that they later identified the defendant as one of them. And it was equally proper for the officer to testify under what circumstances the identification was made. That is as far as the witnesses were allowed to go in giving their testimony. Counsel’s objection is without merit. It does not require further discussion.” 230 Mich 484, 487.
Therefore, a literal interpretation of Londe would make the testimony concerning the prior identification by the declarant admissible, if the extrajudicial identification was fair. This is consistent with the Federal Rules of Evidence 801(d)(1)(C) and our own proposed Michigan Rule of Evidence 801(d)(1)(C), which is identical to the Federal Rule. 399 Mich 1002.
In this case, we are not dealing with the traditional pre-trial line-up, arranged by the police once the suspect is in custody, but a situation where the complaining witness initiated the identification process. Mr. Anderson observed the defendants in a store the day after he was attacked. After observing the defendants, Mr. Anderson called the police and upon their arrival pointed out the defendants, who by then were in a poolroom. There is no suggestion that the identification was unfair, biased or a denial of the defendants’ constitutional rights. Surely, so close to the time of the crime this identification had more probative value than one at trial some months later.
Under the law as expressed in Londe, and our proposed Michigan Rule of Evidence 801(d)(1)(C), testimony of Mr. Anderson concerning his extrajudicial identification of the defendants is not hearsay. It is a special type of prior consistent statement which is not subject to the usual requirement that it be used solely to rebut a charge of recent fabrication or improper influence or motive and is admissible.
B. Testimony of Third Party.
Our case law and that of other jurisdictions do not present a clear case for admission of this type of testimony. While most jurisdictions admit the testimony of the identifier as to an extrajudicial identification, most jurisdictions do not admit the testimony of a third party to an extrajudicial identification, except in limited circumstances. The objections to the testimony of the third party are generally the same as those to the testimony of the identifier: its character as hearsay or that it amounts to a bolstering of the identifier’s testimony. Where admitted, such testimony has usually been limited to (1) rebuttal of testimony tending to impeach or discredit the testimony of the identifying witness or (2) testimony of the circumstances surrounding the identification.
This Court spoke on the admissibility of such testimony in Londe, and allowed the testimony of a police officer as to the circumstances under which the identification was made.
In Poe, although the police officer’s testimony and handwritten notes concerning the pretrial identification were held inadmissible hearsay, we acknowledged the rule in Londe, and said: _
"Londe restricts the police officer’s testimony to 'what took place’ and under 'what circumstances the identification was made’ and not, as here, the nature or quality of the identification.” 388 Mich 611, 618.
In Poe, the facts indicated that the pretrial identification procedures, arranged by the police, were arguably unfair. This Court said:
"The witnesses were shown a number of police mug shots the night of the holdup and again the next morning. Defendant’s photo was in both groups. This would be within standard and proper identification procedures. However, two of the witnesses recalled having been shown photos on the day of the showup and Fannie Evans stated that when she went to the police station for the showup, she was permitted to see defendant before the showup. T really didn’t look at the others [in the showup] because I saw him [defendant] before I even got there and I recognized him.’ When Gary Harbin viewed defendant at a showup, men used for it, besides the 32-year old defendant, were two teenagers and a 58-year old man.” 388 Mich 611, 616.
This Court concluded that:
"In this case, however, we have identification procedures prior to trial that are at least open to the suspicion of unfairness.” 388 Mich 611, 619.
In this case there is no suspicion that the identification of defendants by the complaining witness was unfair. Mr. Anderson saw the defendants in the drug store. He called the police. When the police arrived, Mr. Anderson pointed out the defendants. This type of identification procedure is one of the fairest available.
In People v Hallaway, 389 Mich 265; 205 NW2d 451 (1973), we held it was impermissible to permit a police officer to relate the description of the suspect given to him at the scene of the crime by an eyewitness who also testified at trial. The testimony was objected to as being hearsay. Since it was also a prior consistent statement and no prior inconsistent statement had been admitted, it was held inadmissible. In that case we were not dealing with the limited question of testimony of the circumstances of the extrajudicial identification procedure, but with the description that was given by the witness to a third party. The difference is crucial to the admissibility of the testimony.
In this case the officer testified to an event he had witnessed, the identification of the defendants by Mr. Anderson, the complaining witness. He was not testifying to the truth of the identification statement but to the fact that it was made and the circumstances surrounding it. Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Since the police officer was not testifying to prove that the defendants were the alleged assailants, but only to show that on February 27, 1974 he witnessed an event, the identification of the defendants by Mr. Anderson, his testimony was not hearsay.
Even though not objectionable as hearsay, such testimony is still within the category of prior consistent statements. There is danger in the use of prior consistent statements in relation to identification procedures. We noted the weakness of witness identification procedures in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973). Keeping in mind the dangers inherent in piling on such testimony, we do see value in such testimony when limited to the circumstances surrounding the event, and we find it is within the discretion of the trial judge to allow or disallow such testimony.
In this case we find that the trial judge recognized he had the discretion to allow or disallow the testimony of the police officer and that he did not abuse his discretion. First, the record does not contain any suggestion that the identification procedure which took place on February 27, 1974 was unfair, biased or a violation of the constitutional rights of the defendants. Second, the record reveals that the trial judge limited the testimony of the police officer to the circumstances of the identification procedure. Third, the trial judge did not allow testimony concerning the identification procedure which was used at the preliminary examinations. These factors show that the trial judge did not abuse his discretion and therefore the testimony of the police officer as to the February 27, 1974 identification was properly admitted.
Conclusion
We find assault with intent to rob not armed, MCLA 750.88; MSA 28.283 and attempted robbery unarmed, MCLA 750.530; MSA 28.798 and MCLA 750.92; MSA 28.287 are not identical crimes. Assault with intent to rob not armed requires the use of force and violence. Attempted robbery unarmed may be committed without force and violence simply by putting another in fear.
We find sufficient evidence in the record to establish that defendants received a fair trial, even though no instruction was given by the trial judge on the requirement of a unanimous verdict, because in their "orientation” the jury had been instructed on the necessity for a unanimous ver diet and the jury had in fact returned a unanimous verdict.
We find the instruction given by the trial judge on witness identification testimony substantially similar to that requested by defendant. We find no prejudice to the defendant due to the trial judge’s failure to give the exact instruction requested.
We find the testimony of the complaining witness about calling the police and identifying the defendants to them in a pool hall the day after the crime is not hearsay and was properly admitted under the law expressed in Londe. The testimony of the police officer, a third party who witnessed the extrajudicial identification and testified only to the circumstances of the identification procedure, was properly admitted within the discretion of the trial judge.
We affirm.
Coleman and Blair Moody, Jr., JJ., concurred with Williams, J.
The essential elements of assault with intent to rob being unarmed are (1) an assault with force and violence, (2) an intent to rob and steal, and (3) defendant being unarmed. The crime necessarily requires an assault and the requisite intent, but not necessarily the taking.
The essential elements of an attempted unarmed robbery are (1) an attempted felonious taking of property from the person of another or in his presence, (2) by force and violence or by assault or by putting in fear, and (3) defendant being unarmed.
An assault with intent to rob being unarmed necessarily involves an attempt or offer to do corporal injury, with the present intention and present ability to carry out the offer. In other words, there must be a criminally assaultive act.
Attempted unarmed robbery may or may not include a criminal assault. An attempted unarmed robbery may also be accomplished by force and violence or by putting in fear. Attempted unarmed robbery does not necessarily require an assault. Therefore, it is obvious that the defendant need not possess the present ability to carry out the offer.
Therein lies what we believe to be the policy rationale for attaching a 15-year maximum sentence to assault with intent to rob being unarmed while requiring only a 5-year maximum sentence for attempted unarmed robbery.
An assault with intent to rob being unarmed necessarily involves an offer to do injury with the present ability to carry out that offer. Hence, the crime is always more dangerous vis-á-vis potential victims.
Attempted unarmed robbery does not necessarily require an assault so, by definition, the present ability to carry out the offer need not exist. Hence, under certain circumstances, that crime is less dangerous vis-á-vis the possibility of actual bodily harm to the victims.
71 ALR2d 449, § 7, Testimony of identifier, p 460; § 13, Testimony of third person, p 482.
After this opinion was written but before it was signed this Court adopted the Michigan Rules of Evidence including MRE 801(d)(1) which now reads as follows:
"(d) Statements which are not hearsay. A statement is not hearsay if—
"(1) Prior statement of witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving him; or”.
It should be noted that our rule MRE 801(d)(1), which is in accord with the Federal Rules of Evidence 801(d)(1)(C), is consistent
"with '[t]he recent trend * * * to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial.’ The New Jersey and California codifications are to the same effect and New York reached this result by judicial construction. Although there was conflicting authority within the federal jurisdictions prior to the adoption of the federal rules, a number of circuits had been moving in this direction.” 4 Weinstein, Evidence, ¶ 801, p 801-104.
We believe the rule of our case is not inconsistent with our MRE 801(d)(1). We further believe an analysis, on a case by case basis, should be made to determine whether the prior identification should be near in time and if so how near in time to the transaction involving the person to be identified; and also whether any prior identification regardless of its relation to the time of the critical transaction and date of testifying at the trial of case, should be admitted.
See 4 Weinstein, Evidence, ¶ 801, p 801-106.
A prior identification may
"be suspiciously unreliable. The 'recent trend’ in identification cases is a two-pronged affair. It recognizes that unreliability is not due to the lack of cross-examination at the time the statement is made — the principal danger against which the hearsay rule protects — but rather is due to the procedures by which the pre-trial identification is elicited”.
71 ALR2d 449, § 13, Testimony of third person.
People v Hallaway, 389 Mich 265, 275; 205 NW2d 451 (1973). | [
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T. M. Kavanagh, J.
On October 18, 1945 Mary Hlady’s right hand got caught in a punch press at work. This industrial accident amputated four fingers on that hand. Her employer, Wolverine Bolt Company, reported this injury to the Compensation Commission of the Department of Labor and paid workmen’s compensation benefits for the loss of her four fingers.
Upon expiration of the statutory 100 week payment for the specific loss sustained, plaintiff filed an application for hearing and adjustment of claim with the compensation commission in December, 1947. In that application the plaintiff alleged that her industrial injury had resulted in the industrial loss of use of her right hand and/or general disability.
At a hearing held in 1948 Commissioner Mc-Auliffe stated the issue in this case precisely as follows:
"The present issue is solely whether plaintiff still has any right to compensation in addition to that heretofore paid for the specific loss.”
After hearing the medical testimony, Commissioner McAuliffe found as follows:
"I further find that the plaintiff failed to establish that she has any further disability over and beyond the natural consequences of the loss of her four ñngers on the right hand. Hence her claim for compensation in addition to that paid for her specific losses is denied.” (Emphasis added.)
On review of this decision in 1948, the Workmen’s Compensation Commission reversed the commissioner, finding "that the plaintiff has lost the industrial use of her right hand as the result of her amputations of October 18, 1945”.
This Court granted leave to appeal from that decision of the Compensation Commission and decided the issues raised in Hlady v Wolverine Bolt Co, 325 Mich 23; 37 NW2d 576 (1949). In reversing the Compensation Commission, this Court stated, p 25:
"The record is devoid of testimony tending to prove that plaintiff has suffered any different or greater loss than normally results from the amputation of 4 Ungers of a hand. Notwithstanding plaintiff claimed that the amputation of her fingers resulted in disabling 'sequelae’ and 'general disability,’ the commission found none except disability which normally follows such amputations. ” (Emphasis added.)
This Court denied any further benefits to plaintiff.
In 1967 plaintiff again filed a petition with the Workmen’s Compensation Department asking for further benefits. This statement by the Workmen’s Compensation Appeal Board, on review of the case in 1972, put the present issue in this case squarely in focus.
"The Referee’s fact-finding accepted by this Board, is that no change in plaintiffs physical condition has taken place since her 1948 adjudication. The only change of any kind has been the Van Dorpel decision, supra. ”
The Appeal Board denied further benefits, basing this denial on their application of the doctrine of res judicata in light of this Court’s prior decision in this matter, and in light of the one-year-back rule, part III, § 14 of the Workmen’s Compensation Act.
The Court of Appeals in an unpublished opinion, Docket No. 13991, March 30, 1973, affirmed the ruling of the Appeal Board. They felt that the present claim was barred by the doctrine of res judicata.
This Court granted leave to appeal from that decision to consider the questions raised above.
Findings of fact by the Workmen’s Compensation Appeal Board are conclusive if supported by the evidence presented. Johnson v Vibradamp Corp, 381 Mich 388; 162 NW2d 139 (1968). This Court is bound by the factual findings of the Appeal Board in the instant case as they are adequately supported by the record before us. Therefore, as the Appeal Board noted, the sole question to be answered by this Court is what effect, if any, our Van Dorpel decision, supra, has on the rights of the parties to the instant case.
It should be pointed out at the outset, that the Van Dorpel rule itself has not, up to this point in time, mustered a majority on this Court. This Court, however, with the advantage of the passage of time, clearly believes Justice Voelker’s opinion more in keeping with the spirit of the Workmen’s Compensation Act and the better reasoned opinion. We would lend our support to his views.
In his Van Dorpel opinion, Justice Voelker held that an injured workman who had suffered various specific losses in 1948, and had been paid the statutory amount for these specific losses, bqt who, because of the natural consequences which normally follow from various amputations, was still disabled from working at the expiration of the benefits paid for these amputations, was entitled to collect further compensation under the general disability sections of the Workmen’s Compensation Act.
In effect, Van Dorpel allows benefits for that disability which our Court recognized may have been present in the Hlady, supra, case when it decided the issues in 1949. The facts in Hlady and Van Dorpel are almost identical. The law applied to each has varied with the passage of time. But does our law permit this Court to now reach, 29 years after Mary Hlady’s accident, any different result?
There is little question that the doctrine of res judicata applies to workmen’s compensation proceedings. Besonen v Campbell, 243 Mich 209; 220 NW 301 (1928). This Court has cited with approval the rule set forth in 58 Am Jur, Workmen’s Compensation, § 508. See White v Michigan Consolidated Gas Co, 352 Mich 201; 89 NW2d 439 (1958). This section states:
"The general rule with respect to the effect upon the application of the principles of res judicata to decisions under workmen’s compensation acts, of a provision authorizing the modification of an award upon a showing of a change in the employee’s condition, is that a compensation award is an adjudication as to the condition of the injured workman at the time it is entered, and conclusive of all matters adjudicable at that time, but it is not an adjudication as to the claimant’s future condition and does not preclude subsequent awards or subsequent modifications of the original award upon a showing that the employee’s physical condition has changed. * * * ” (Emphasis added.)
Mary Hlady’s physical condition has not changed since her 1945 injury. The only change has been in the law applied to cases of this nature. However, it has long been the law of this state, starting with the leading case of Jacobson v Miller, 41 Mich 90; 1 NW 1013 (1879), that the doctrine of res judicata applies not only to facts previously litigated, but also to points of law which were necessarily adjudicated in determining and deciding the subject matter of the litigation.
In Jones v Chambers, 353 Mich 674; 91 NW2d 889 (1958), decided just one year after our Van Dorpel decision this Court made that point very clear. We stated, pp 680-681:
"Where issues of fact or law have been finally decided by a court of competent jurisdiction in one legal action which are essential to the maintenance of another legal action, it is universally held that the second action must fail.
"Michigan’s leading case on the doctrine of res judicata is Justice Cooley’s opinion in Jacobson v Miller, 41 Mich 90. The second headnote gives us this pertinent summary:
" 'An adjudication is conclusive in respect to (1) the subject matter of the litigation, and (2) the point of fact or law or both necessarily settled in determining the issue on the subject matter.’
"See, also, Viaene v Mikel, 349 Mich 533 [84 NW2d 765 (1957)].
"The courts have, however, divided to some degree as to whether the principle involved is an application of the doctrine of res judicata, or a somewhat separate doctrine of collateral estoppel.
"The United States supreme court has answered this problem in legal linguistics thus:
" 'We have often held that under the doctrine of res judicata a judgment entered in an action conclusively settles that action as to all matters that were or might have been litigated or adjudged therein. But a prior judgment between the parties has been held to operate as an estoppel in a suit on a cause of action different from that forming the basis for the original suit "only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” This latter aspect of res judicata is the doctrine of collateral estoppel by judgment, established as a procedure for carrying out the public policy of avoiding repetitious litigation.’ Partmar Corporation v Paramount Pictures Theatres Corp, 347 US 89, 90, 91 (74 S Ct 414, 98 L ed 532 [1954]).” (Emphasis added.)
See also Moritz v Horsman, 305 Mich 627; 9 NW2d 868; 147 ALR 117 (1943).
Plaintiff asserts that in her previous visit to this Court that she did not specifically raise a Van Dorpel issue and that this Court did not specifically reaffirm its prior holding in Curtis v Hayes Wheel Co, 211 Mich 260; 178 NW 675 (1920). Therefore, she asserts the doctrine of res judicata does not apply to the instant proceedings. However, an almost identical argument was presented to this Court in Tessler v Rothman, 232 Mich 62; 204 NW 694 (1925). In that case the Court stated, pp 66-68:
"The principle for which the plaintiff contends in this case is well stated in 15 R. C. L. p 972, § 449, as follows:
" 'While a judgment is decisive of the points raised by the pleadings, or which might properly be predicated upon them, it does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiffs might have joined, but which in fact, were not joined or embraced in the pleadings.’
"Counsel also cites Barras v Youngs, 185 Mich 496 [152 NW 219 (1915)], and insists it is controlling.
"It may be well in this connection to quote further from 15 R. C. L., which we do as follows:
" 'On the other hand it is equally well settled that a fact which was directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties in the same or in any other court, and that where some controlling fact or question material to the determination of both actions has been determined in a former suit, and the same fact or question is again at issue between the same parties, its adjudication in the first will, if properly presented, be conclusive of the same question in the latter suit, without regard to whether the cause of action is the same or not, or whether the same suit involves the same or a different subject-matter. * * * In such cases it is also immaterial that the two actions were based on different grounds or tried on different theories or are instituted for different purposes and seek different relief.’ 15 R. C. L. p 974, § 450.
" 'While this doctrine of the effect of a judgment as an estoppel in subsequent actions is limited to matters involved in the litigation, it is generally held to be equally applicable whether the point decided is of itself the ultimate vital point, or only incidental, if still necessary to the decision of that point, and a judgment in a prior suit is deemed final and conclusive in subsequent litigation between the parties, or their privies, as to those matters necessarily determined or implied in reaching the ñnal judgment, although no speciñc ñnding may have been made thereto, and even though it was not raised as an issue by the pleadings in the former action. If the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties.’ 15 R. C. L. p 976, § 451.
"In the case of Barker v Cleveland, 19 Mich 230 (1869), Chief Justice Cooley, speaking for the court, says:
" 'To make a judgment in one case a bar to another it is not necessary that the object of the two suits be the same, nor that the parties should stand in the same relative position to each other. * * * And it is immaterial whether the point was actually litigated or not if its determination was necessarily included in the judgment. ’ ” (Emphasis added.)
Counsel are in disagreement whether or not the Van Dorpel issue was actually litigated in the former Hlady case. There is no doubt that plaintiff claimed general disability over and beyond the loss of her fingers. Nor is there any doubt that evidence was introduced into the record by plaintiff and defendant alike as to the extent of the disability suffered by plaintiff. It is true that plaintiff did not specifically brief and argue the Van Dorpel issue before this Court. She did not argue that the disability created by the loss of her four fingers itself entitled her to additional benefits. She did not request the Court to overrule Curtis, supra.
Yet, at the same time, plaintiff fully understood that the Curtis-Van Dorpel issue was crucial to her application for further benefits and that it necessarily must be either affirmed or rejected by this Court in its final judgment. In her supplemental brief filed with this Court in 1949, the plaintiff states:
"In the instant case, for example, the testimony clearly indicates that Mary Hlady is for all practical purposes unemployable and relegated to odd-lot and favored employment. She is in fact totally disabled. Hood v Wyandotte, 272 Mich 190 [261 NW 295 (1935)]. Were it not for the limitation contained in the Act setting forth her right to compensation for the loss of a hand, she could probably claim compensation for the entire period of total disability which might extend up to 750 weeks.”
However, plaintiff by this statement concedes the issue she now tries to raise before this Court. As we clearly pointed out in Van Dorpel the limitation she speaks of is not contained within the act itself. It lay within the confines of our old Curtis, supra, holding. In Van Dorpel, supra, p 147 we stated:
"This case involves an interpretation of a statute which is silent on the precise issue involved. This Court 37 years ago decided what it thought the correct interpretation should be. We happen to disagree with that old interpretation and wish to make a new interpretation, * * * .”
Plaintiff may not concede an issue, necessarily determinative of and included in the judgment of this Court, and then, after another has successfully raised the issue she did not wish to contest, ask the Court again for relief. The doctrine of res judicata bars this from happening. Mary Hlady could have as easily raised this issue as Peter Van Dorpel. It was, in fact, incumbent upon her to do so if she wished to avail herself of that interpretation.
Even if the doctrine of res judicata did not apply in this case, our Workmen’s Compensation Act itself prevents this Court from awarding further benefits to the plaintiff. As set forth previously in this decision, the act contains a one-year-back rule provision. In effect this provision prevents the courts or the Appeal Board from awarding payment of benefits for any period of time prior to one year back from the filing of the petition for hear ing. In the instant case plaintiff filed her petition with the Department on November 16, 1967. The one-year-back rule, if applicable, would prevent this Court from awarding benefits covering any period of time prior to November 16, 1966. Yet the act itself mandates that at an absolute maximum, Mary Hlady may not be compensated for any period of time extending beyond 500 weeks from October 18, 1945. Thus no benefits may be awarded to the plaintiff for any period beyond the year 1955. See Clements v Chrysler Corp, 321 Mich 558; 33 NW2d 82 (1948).
It was the intent of the Legislature in enacting this built-in statute of limitations into the Workmen’s Compensation Act that it apply to situations akin to the instant one. It has been 25 years since the prior decision of this Court. During that period of time plaintiff has complacently sat back while others have attacked the prior decisions of this Court, including her own, see Mitchell v Metal Assemblies, Inc, 379 Mich 368; 151 NW2d 818 (1967), which, until they were overruled, barred her from further compensation. First, Curtis, supra, had to be overruled by Van Dorpel. Yet, plaintiff still within the statutory limitation period did not file. We assume her reason for not doing so was the fact that from 1934 until 1966 a six-year statute of limitations was present within the Workmen’s Compensation Act by virtue of this Court’s decision in Hajduk v Revere Copper & Brass, Inc, 268 Mich 220; 255 NW 770 (1934).
Plaintiff did not contest this facet of our case law either. It was not until this Court, in Mitchell supra, overruled plaintiffs own previous case that she decided to come forth. This situation is a far cry from that presented the Court in White v Michigan Consolidated Gas Co, supra. The one-year-back rule provision of the Workmen’s Compensation Act applies to this case. Any further claim for compensation by plaintiff is barred by the act itself.
Also, as pointed out above, plaintiff is claiming disability benefits for a period beginning in October 1947 and continuing for a period beyond that point. In Van Dorpel, p 143, we stated the test to be applied for these benefits as follows:
"In our view the sole question in all of these cases should be: after the passage of the number of weeks allowed for the specific loss or losses falling short of declared total disability, can the injured workman go back to work?”
Plaintiff claims that the record supports her position that she has been unable to work from 1945 through 1955, the approximate length of time for which benefits in this case are claimed. We do not find such to be the fact.
In Hood v Wyandotte Oil & Fat Co, 272 Mich 190; 261 NW 295 (1935), this Court first discussed a situation akin to that present before us. Hood, supra, was again recently discussed by this Court in Pulley v Detroit Engineering & Machine Co, 378 Mich 418; 145 NW2d 40 (1966).
The facts of Pulley are similar to those of the instant case. In both cases the plaintiff was a punch press operator prior to his accident. In both cases the plaintiff suffered the amputation of all or the major part of one of his hands. Mrs. Hlady contends that this amputation by itself, coupled with the fact that she has not returned to work since her original accident, establishes the fact of her total disability. Yet in Pulley, supra, this Court stated (pp 426-427):
"The question therefore becomes what proof did appellant introduce as to his actual earning capacity at the hearing before the referee? We agree at the outset with appellant’s counsel that there is no testimony to support the conclusion of the appeal board that plaintiff would have been able to return to his punch press job despite his injury. The only testimony on the point available to us is the contrary, namely, that the operation of a punch press requires two hands. Were this point controlling, we would perforce vacate the finding of the appeal board as having no testimonial support. However, the test is not whether appellant could again operate a punch press and earn the same wages he did at the time of his injury. To so hold would read out of the statute the unequivocal and clear language:
" 'The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.’
"What proof then did plaintiff-appellant submit of his 'actual earning capacity after the employment ceases, as. affected by his physical condition, his ability to work, the market for his labor and other pertinent circumstances.’ MacDonald [v Great Lakes Steel Corp, 274 Mich 701; 265 NW 776 (1936)], supra. Regrettably, there is little, if any, direct testimony on the point.”
In this case, plaintiff has entered no proof as to her wage-earning capacity between 1945 and 1955. This Court made it very clear in Hood, supra, that the finding of such incapacity was a factual determination to be made by the Workmen’s Compensation Department based upon the record before them. In Pulley, supra, we again reaffirmed this position.
In the instant case the Appeal Board has made no factual findings regarding plaintiffs wage-earn ing capacity for the crucial period of time. Indeed, they could not have made such a finding, other than one negative to plaintiff, for the plaintiff presented no evidence of this impaired ability to earn wages to the department. It was the plaintiffs burden to produce such evidence. Pulley, supra. Findings of fact in these cases must be supported by the record. It does not exist in this case.
The decision of the Court of Appeals is affirmed. Costs to appellee.
Swainson, Williams, and J. W. Fitzgerald, JJ., concurred with T. M. Kavanagh, J.
M. S. Coleman, J., concurred in the result.
Van Dorpel v Haven-Busch Co, 350 Mich 135; 85 NW2d 97 (1957).
Currently MCLA 418.833; MSA 17.237 (833); formerly MCLA 413.14; MSA 17.188. The statute reads "[i]f payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application”. This section read the same in 1945 as it does today.
MCLA 421.9; MSA 17.159.
Neither counsel in this case have addressed themselves to the question of whether or not, where the accident itself, and the entire period of maximum statutory benefits ended years before this Court’s decision in Autio v Proksch Construction Co, 377 Mich 517; 141 NW2d 81 (1966), overruling Hajduk, supra, the Autio decision would be applied by the Court retroactively. | [
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On order of the Court, the petition by appellant for a stay of proceedings is considered, and the same hereby is granted until further order of the Court. | [
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] |
Leave to appeal is considered and, it appearing to this Coürt that the cases of Deziel v Difco Laboratories, Inc (Docket No. 54825), Bahu v Chrysler Corporation (Docket No. 54879), and MacKenzie v General Motors Corporation (Docket No. 55072) are presently pending on appeal before this Court and that the decision in those cases may be decisive of the issue raised in the present application for leave to appeal, it is ordered that the present application be held in abeyance pending decision in Deziel v Difco Laboratories, Inc, Bahu v Chrysler Corporation, and MacKenzie v General Motors Corporation.
Franklin, Petrulis & Lichty, P. C, for defendants-appellees.
Reported below: 54 Mich App 429. | [
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] |
ORDER
Entered November 21, 1974. — Reporter.
On order of the Court, defendant-appellant’s application for leave to appeal is considered, and the same is hereby granted. The requirements for a valid guilty plea after June 1, 1973 are set forth specifically in GCR 1963, 785.7. The bench and bar are hereby advised that strict adherence to those requirements is mandatory and that neither substantial compliance nor the absence of prejudicial error will be deemed sufficient. GCR 1963, 785.7(5).
The Court, sua sponte, pursuant to GCR 1963, 865.1(7), reverses the decision of the Court of Appeals and remands the case to the Macomb County Circuit Court for a new trial.
Levin and M. S. Coleman, JJ., dissenting. | [
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T. G. Kavanagh, J.
On March 12, 1971, the defendant, Lewis Calvin Brown was convicted of the offense of assault with intent to do great bodily harm. On the same day after defendant had requested an immediate sentence, the trial judge, without obtaining a presentence report, sentenced the defendant to five to ten years in prison.
On appeal two issues are raised: (1) was there improper conduct by the trial court during voir dire, and (2) can defendant waive his right to a presentence report?
The conduct complained of in the first issue is that the court precluded defense counsel from examining fully the venire in the following partic ulars: (1) Defense counsel inquired of one venireperson what verdict he had reached in two previous trials. The court refused to allow the question. (2) Counsel asked another venireperson if she, while deliberating, would consider the fact that the defendant had not testified. Upon objection by the prosecutor the judge set forth the defendant’s right to silence in the form of a hypothetical instruction. This was done in the jury’s presence. (3) Counsel asked the assembled venirepersons if they believed a crime was committed because the defendant was charged with its commission. The court interrupted and instructed on the presumption of innocence.
According to defendant, separately or all together these actions on the part of the court amounted to reversible error.
With regard to the court’s refusal to permit the juror to be questioned about the verdicts reached in other trials, defense counsel made no objection to the court’s ruling but appeared to acquiesce in it. We regard counsel’s statement, "Very well, I’m sorry”, and his immediate pursuit of another line of inquiry as indicative of acceptance of the ruling. In any event, we are not persuaded that it was error to prevent questioning about prior verdicts under the circumstances of this case.
Counsel elected to withdraw the question about the jurors’ attitude on the election of a defendant not to take the stand, and consequently there was no ruling on it by the trial court which a reviewing court could consider.
Defense counsel’s specific expression of satisfaction with the way the court treated the question put generally to all of the jurors, whether the fact that the defendant was charged with a crime caused them to believe that a crime was in fact committed, obviates this issue, too.
We are persuaded from a careful reading of the transcript of the voir dire examination that defense counsel was ultimately permitted to ask such questions as he deemed necessary to determine how best to exercise his challenges, and that he must be considered to have waived any defects in the process of their selection.
The Court of Appeals reached the same result on this issue, but because it is not clear that they did so for this reason, we think it in order to point out that our affirmance of their decision on this issue should not be read as concurrence in their reasoning.
On the first issue we find no error and affirm the Court of Appeals.
The record shows clearly that after spending 11 months in the Wayne County Jail the defendant was anxious to be someplace else. He expressed the desire to be sentenced without the delay attendant upon preparation of a presentence report and expressly waived his right to have such report prepared.
The people maintain that since the defendant can waive his constitutional rights he surely has the power to waive his statutory rights such as this one.
Without debating the accuracy of that proposition as a matter of abstract law, we hold that public policy precludes recognition of such waiver.
Judge Thomas M. Burns wrote in People v Amos, 42 Mich App 629; 202 NW2d 486 (1972), that it is error to sentence a defendant for conviction of a felony without the assistance of a presentence report and that a defendant may not waive the presentence report.
On rehearing of that case, 44 Mich App 484; 205 NW2d 274 (1973), Judges John H. Gillis and Victor Targonski withdrew their concurrence with Judge Burns and concluded that the presentence report could be waived. Judge Burns in dissent reiterated his conviction that the presentence report could not be waived.
We are satisfied that the reasoning of Judge Burns in his opinion for the panel at 42 Mich App 629 beginning at 632 and in his dissent in 44 Mich App 484, at 486-487, correctly and comprehensively sets forth the correct rule and the reasons supporting it.
We are not unaware that a practice has been developing whereby a judge, knowing he is going to order probation, asks the defendant if he wishes to waive the presentence report so that he may be sentenced immediately. The defendant, usually on the advice of counsel, knowing that probation will ensue and that he will not be incarcerated, waives the report.
We cannot square this practice with what we perceive to be the intent of the Legislature in mandating presentence reports.
As noted by Judge Burns, the 1927 statute which inaugurated the practice of presentence reports, provided that the trial court had discretion as to whether or not to order presentence report. Our present statute provides that before sentencing of any person charged with a felony, a probation report shall be made, and if a sentence of imprisonment be imposed a copy of the report shall accompany the commitment papers, or if imprisonment or fine or probation or "other disposition” (presumably a suspended sentence) is ordered, two copies of the report shall be filed with the Department of Corrections. We have under scored the word "shall” to illustrate why we regard this as a mandate.
We are satisfied that the statute bespeaks a conviction that our criminal justice system is better served by requiring that a judge who is about to sentence a person have the information contained in a presentence report before making the decision whether to put that person on probation, fine or imprison him. It would militate against this conviction to recognize a right to waive the requirement even if the prosecutor, judge and defendant deemed it expedient in a particular case, for the Legislature, speaking for all the people, has ordained otherwise.
This is not to say that in a case where probation seems likely a person need be kept in jail while the report is prepared. Release on personal recognizance pending the preparation of the report is available to the court and would avoid incarceration, at least temporarily, and would permit the submission of the information to the sentencing judge before sentence is ultimately imposed as the Legislature intended.
Accordingly, we hold that it was error to sentence defendant in this case without first obtaining a presentence report.
The defendant’s conviction is affirmed, but the sentence is set aside and the matter remanded for resentencing.
We will apply the rule articulated in this case only to those cases now pending on appeal in which this issue has been preserved and to those cases, resulting from charges made on and after the date of this opinion.
Swainson, Williams, Levin, and M. S. Coleman, JJ., concurred with T. G. Kavanagh, J.
MCLA 750.84; MSA 28.279.
1927 PA 175, ch XI, § 14.
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Williams, J.
This opinion indicates that trial court discretion is abused in permitting prosecutorial cross-examination and argument tending to show (1) that a jury may consider defendant’s poverty and unemployment in deciding whether or not he is guilty of carrying a concealed weapon (CCW) and (2) that defendant because of his poverty and unemployment was about to employ three loaded weapons in the car occupied by him to commit a crime of violence, when the only crime charged was CCW.
While defendant in the instant case raises a number of other allegations of error in this appeal, it is only these issues which spur our decision today. We express no opinion on other issues raised by the parties not necessary to our decision.
The Court of Appeals is reversed. This cause is remanded for new trial or other proceedings not inconsistent with this opinion.
I —Facts
On October 10, 1971, at dusk, Officer Logan Tisdale of the Michigan State Police, in the course of his patrol duties, observed a 1965 Pontiac with one inoperative taillight proceeding westbound on M-81 in Saginaw, Michigan. Trooper Tisdale turned his patrol car around, gave chase, and quickly stopped the offending vehicle. As the Trooper approached the car after the stop, he noticed a TV set resting on the back seat.
While in the process of checking the driver’s license and car registration, the beam of the trooper’s flashlight fell upon a pistol partially hidden behind defendant Johnson’s left foot. Johnson was sitting in the passenger seat of the Pontiac. Thereupon, defendant and the driver, Leroy Reed, were ordered out of the car at gunpoint, arrested, frisked, handcuffed to one another and placed in the rear of the patrol car. While accomplishing this task, Trooper Tisdale confiscated the weapon, a .38-caliber Smith & Wesson top-break, he had observed behind defendant’s foot.
The trooper then radioed for assistance and for a wrecker. When a second State Police car arrived, the arresting trooper returned to the stopped automobile to remove the television set. In accomplishing that endeavor, Trooper Tisdale discovered under the front seat of the Pontiac two additional weapons, a .32-caliber automatic and a .38-caliber Smith & Wesson side-break snub-nosed revolver. Both of these pistols were eventually confiscated.
Defendant was charged with the crime of carrying a concealed weapon. MCLA 750.227; MSA 28.424. A pretrial motion to suppress the weapons was denied by the trial court.
At trial, only two witnesses were called to the witness stand: Trooper Tisdale and defendant Johnson. The prosecutor’s cross-examination of defendant concentrated nearly exclusively on defendant’s background and alleged predisposition to criminal activity. The cross-examination included reference to:
his employment and education record:
"Q: Where were you working on the tenth of October?
"A. I wasn’t working.
"The Court: Will you talk louder please, and answer louder?
"Witness: I wasn’t working.
"Mr. Webber [assistant prosecuting attorney](Con’t.):
"Q. Where are you working today?
"A. I am not working.
"Q. How long has it been since you held a job?
"Mr. Geyer [defense counsel]: Your Honor, I am going to object to this line of questioning. I think it is immaterial whether Mr. Johnson is working to the charges here against him.
"Mr. Webber: This is cross-examination.
"The Court: Yes, he’s the defendant and the jury is entitled to know something about him and the objection will be overruled. You may proceed.
"Mr. Webber (Con’t.):
"Q. When is the last time you have worked, Mr. Johnson?
"A. I did some work with my cousin.
”Q. You did what?
"A. Odd jobs with my cousin.
”Q. When was that?
'A. That was a couple of months, about three months ago the last time.
"Q. Well, let me ask you this, how far did you go in school?
'A. I graduated.
"Q. Graduated from high school?
'A. Yes.
"Q. Did you get a job upon graduating or going into the military or what?
”A. I got a job before I graduated.
"Q. Where were you working?
'A. At the Chevrolet garage.
”Q. How long did you work there?
’A. Seven years.
”Q. I can’t hear you, sir.
'A. Seven years.
"Q. And why did you terminate that employment?
’A. Because of my health.
”Q. What was wrong with your health?
’A. My lungs.
”Q. Were you fired from your job?
'A. No, not really.
"Q. Did you quit voluntarily?
’A. I was off sick, yes.
"Q. You failed to report for work?
'A. Yes, you can say that.
"Q. Did you hold any other jobs since then, Mr. Johnson?
”A. Not steady.”
his marital status, means for supporting his children, and ñnancial history:
"q * * * How do you support yourself?
'A. How do I support myself?
"Q. Are you married?
”A. Yes.
”Q. Are you living with your wife?
“A. No.
"Q. Are you paying any child support on your children?
'A. Yes.
"Q. How many?
'A. Two.
”Q. Tell us how you support yourself?
'A. I receive a set amount from the Chevrolet.”
his past conviction for uttering and publishing and present probationary status:
"Q. Now, back in July of ’70 you were convicted of uttering and publishing, is that correct?
'A. Yes.
”Q. You’re on probation today for that offense, are you not?
’A. Yes.”
Defense counsel had earlier raised the matter of the uttering and publishing conviction on direct examination but had not touched upon defendant’s current probationary status.
The prosecutor continued his focus on defendant in his closing argument, where he argued, inter alia:
"Consider the fact too, that the defendant had two cents in his pocket at the time he was arrested. Now, what are the proofs, you tell me. Think about it. There’s a man with two cents in his pocket and he hasn’t worked for a long time, there’s three guns, three fully loaded weapons in the vehicle. That is something that you can consider when you decide whether or not this defendant committed this particular violation.” [Emphasis added.]
Defendant was jury-convicted of carrying a concealed weapon and was sentenced to a term of 2-1/ 2 to 5 years in prison. The Court of Appeals affirmed. 48 Mich App 50; 209 NW2d 868 (1973). We granted leave to appeal on January 28, 1974. 391 Mich 764.
II —Prosecutorial Questioning and Advice That Jury Can Consider Defendant’s Poverty and Unemployment in Determining CCW Guilt Is Improper and Erroneous
In the prosecutor’s argument quoted above, the prosecutor said in effect:
"[Y]ou can consider when you decide whether or not this defendant committed this particular violation [CCW] *• * * [that he is] a man with two cents in his pocket and he hasn’t worked for a long time * * * .”
Obviously neither poverty nor unemployment is an element of the crime of carrying a concealed weapon. Either a poor man or a rich man may be either guilty or innocent of carrying a concealed weapon. Likewise whether a man is employed or unemployed is no proof or partial proof of carrying a concealed weapon. Neither does defendant’s poverty or unemployment affect his testimonial credibility in this case. In short, these things neither in law nor in logic are evidence of defendant’s guilt or innocence or his tendency to lie or tell the truth. To assert otherwise is to argue a non sequitur.
Consequently this argument and advice to the jury by the prosecutor is erroneous and patently prejudicial. And in this connection so is the cross-examination leading up to this argument and advice.
Ill —Prosecutorial Questioning and Argument Suggestive Defendant Was En Route to Committing Violent Crime Not Charged Improper and Erroneous
The prosecutor’s argument quoted above and the bulk of his cross-examination attempted to create in the minds of the jury the belief that defendant because of his poverty and unemployment plus the possession of three loaded weapons was en route to committing a robbery armed or some such crime. That this is what the prosecutor was about is clear on the face of the record and is reinforced by the following reaction of the trial judge, who noted in the sentencing proceedings:
"It looked as if you were on the way to commit another crime.”
We will not condone the prosecutorial effort to "prove” commission of an uncharged, unrelated "Crime X” in order to gain defendant’s conviction of "Crime Y”. This is far from a novel proposition in Michigan. Eighty-five years ago, this Court held unequivocally:
"Whatever latitude is proper in cross-examination to test veracity, it cannot properly introduce independent issues against the person who is both witness and respondent.” People v Pinkerton, 79 Mich 110, 114; 44 NW 180 (1889).
Likewise, the prosecutor may not allude to such proscribed issues in closing argument.
The passage of 85 years has not disturbed the validity of this maxim of evidentiary trial practice in the slightest. As recently as last year, we reaffirmed this proposition even where the witness is not a criminal defendant. People v Whalen, 390 Mich 672, 683-687; 213 NW2d 116 (1973). See also: People v Wright, 294 Mich 20, 27-30; 292 NW 539 (1940), and citations contained therein; and 1 Gillespie, Michigan Criminal Law & Procedure, § 442, p 548.
After scrupulous review of the record in this case, we find it undeniable that defendant’s analysis of the courtroom atmosphere created by the prosecutor is correct:
"It is obvious that the cross-examination of Appellant was designed to create in the minds of the jury the inference that was later explicitly articulated by the prosecutor. The inference is as follows: An impoverished, unemployed man is found in a vehicle which also contained three guns. Having no money and no job, he is obviously on his way to commit a crime. He therefore must have known that the weapons were in the vehicle.”
IV —Conclusion
Whether defendant was rich or poor, employed or unemployed, has nothing to do with guilt in the instant case nor do allegations and insinuations of potential predisposition to commit a forcible crime against persons or property go to proving the charged offense of carrying a concealed weapon.
That is not to say, however, that the trial court does not have considerable discretion in ruling on the relevance and materiality of argument coming before it. Clearly, the trial court has broad discretion in exercising its judgment whether a particular line of inquiry or argument is to be allowed before the jury. People v Dye, 356 Mich 271, 277; 96 NW2d 788 (1959). Yet there is an obvious limit to the exercise of such discretion in cases of abuse. People v Dye, supra, 277.
In the instant case, the trial court did indeed abuse its discretion in allowing the prosecutor free rein to cross-examine defendant (and to subsequently refer to such cross-examination in closing argument) through inquiries designed to demonstrate a causal connection between extraneous matters and guilt on the charge of carrying a concealed weapon, and through his attempt to convict defendant of the charged offense by means of persuading the jury that defendant was on his way to commit an altogether unrelated offense.
It is the duty of the courts to keep prosecutorial "character” examination "within reasonable bounds.” People v Gotshall, 123 Mich 474, 483; 82 NW 274 (1900). The instant case well illustrates the necessity for such constraint.
We hold that the cross-examination of defendant in the instant case, and the subsequent prosecutorial reference thereto in closing argument, were prejudicially and reversibly erroneous. The trial court abused its grant of discretion in the instant case by allowing such irrelevant matters to be brought to the jury’s attention.
The Court of Appeals is reversed. This cause is remanded for new trial or further proceedings not inconsistent with this opinion.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, and Levin, JJ., concurred with Williams, J.
All told, the prosecutorial questioning of appellant other than that which focuses on appellant’s background and predisposition, constitutes only about one page of total testimony.
The prosecutor also questioned defendant about an alleged past nonsupport conviction not earlier raised by defense counsel. Due to our disposition of this matter today, there is no need to reach the issue of the propriety of impeachment through use of past conviction record. Cf. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).
We note as well that had the reference to defendant’s probationary status, and the subsequent reference thereto made in closing argument, been made in a trial taking place on or after November 20, 1973, such impeachment would have been clear error under People v Rappuhn, 390 Mich 266; 212 NW2d 205 (1973), decided that date.
Nor is it novel in other jurisdictions. See as recent examples: State v Beyor, 129 Vt 472; 282 A2d 819 (1971), and People v Liapis, 3 Ill App 3d 864; 279 NE2d 368 (1972).
Appellee also argues that failure to request a curative instruction bars consideration on appeal of the "prejudicial propensity” of its line of questioning. Appellee cites for this proposition People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970); People v Majette, 39 Mich App 35; 197 NW2d 78 (1972); and People v Sesson, 45 Mich App 288; 206 NW2d 495 (1973).
Critical to the line of cases cited supra, was the absence of objection on the part of defense counsel, a factor not found in the instant case. At any rate, we are not persuaded that the "prejudicial propensity” of the improper questioning and argument in the instant case could have been eliminated no matter the amount of cautionary instruction. Humphreys, supra, 415. | [
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] |
On order of the Court, the application for leave to appeal by defendants-appellants is considered and, it appearing to this Court that the case of Nickola v Grand Blanc Township (Docket No. 55,088) is presently pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, it is ordered that the present application be held in abeyance pending decision in Nickola v Grand Blanc Township.
Case below, Court of Appeals No. 16,425, per curiam opinion of July 29, 1974. | [
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S. B. Miller, J.
Thomas Jamnik appeals as of right from the trial court’s order denying in substantial part his petition for payment of fees and expenses.
Defendant, Harold B. Hunter, was convicted of armed robbery by a jury in Genesee County and was sentenced to a prison term of six to twenty years. Thomas Jamnik was appointed by the trial court to represent the defendant on appeal. Mr. Jamnik visited the defendant at Kinross Correctional Facility in the Upper Peninsula, filed a claim of appeal and brief, and orally argued the case in the Court of Appeals. Defendant’s conviction was affirmed and Mr. Jamnik petitioned the trial court for payment of $1,412.22 in fees and expenses. The particulars of that petition were:
Services Rendered Hours
Transcript review 3.5
Client visit 13.0
Brief on appeal 12.8
Oral argument 4.0
Research for brief 14.4
Total Hours 47.7
Fee requested — 47.7 hours at $25 per hour Actual Expenses $1,192.50
Client visit 540 miles X $ .30 per mile $162.00
Oral argument 120 miles X $ .30 per mile 36.00
Photocopying 196 pages X $ .10 per page 19.60
Postage 2.12
Total Expenses $219.72
Total Amount Requested $1,412.22
Genesee Circuit Court has an indigent attorney fee schedule which reads in pertinent part as follows:
Effective January 1, 1981
GENESEE COUNTY CIRCUIT COURT INDIGENT ATTORNEY FEE SCHEDULE
APPELLATE COURT
Basic rate of $30.00 per hour; attorney to furnish detailed verified petition specifying; the ultimate fee to be set' by trial judge depending upon necessity and merit.
1. The date upon which claimed unit of time was expended.
2. The nature of the work done, (i.e., research, drafting brief, proofreading, conference with client, travel time, oral argument,
3. Hours to be computed to nearest l/10th of an hour.
4. Time records must be accurate and based upon notations made at the time the work is done. Guessing and estimating when the work is completed will not be considered sufficient.
5. $350 maximum for appeal of guilty plea.
6. Travel time not to exceed $100 in consulting with clients incarcerated by the Department of Corrections in the lower peninsula of Michigan.
** Extraordinary Services (to be set by judge)
* All Fees and Expenses Subject to Review of the Court
In a written opinion and order, the trial court awarded Mr. Jamnik $87.50 for transcript review, $19.60 for photocopying, $2.12 for postage, and $300 for ten hours of research and briefing at $30.00 per hour. The total awarded by the trial court was $409.22.
The law pertinent to such cases is not particularly difficult or involved. MCL 775.16; MSA 28.1253 provides for court appointment of counsel for an indigent defendant charged with a felony. In part, it provides:
The attorney appointed by the court shall be entitled to receive from the county treasurer, on the certificate of the chief judge that the services have been rendered, the amount which the chief judge considers to be reasonable compensation for the services performed.
The determination of the trial court as to reasonable compensation for services will not be disturbed on appeal absent an abuse of discretion, In the Matter of Attorney Fees of William J Hayes, 55 Mich App 30, 34; 222 NW2d 20 (1974), lv den 394 Mich 794 (1975).
We believe the following factors should be considered in determining reasonable compensation:
1. The complexity and difficulty of the case and the time and expense of counsel which can reasonably be justified.
2. The trial court’s policy as to compensation.
3. The minimum standards for indigent criminal appellate defense services promulgated by the Michigan Supreme Court in Administrative Order 1981-7, 412 Mich lxxxiv-xci.
In this case, the trial judge considered the brief on appeal and the merit of the issues raised. He considered the amount of time necessary for research and preparation by a reasonably competent attorney. He determined the number of hours for research and briefing which he felt could reasonably be justified and ordered that the time be compensated at the rate provided for in the court’s indigent attorney fee schedule. In this regard, we find no abuse of discretion.
However, the trial judge refused to award any compensation for counsel’s meeting with his client or for counsel’s oral argument. Such services are inherent in the attorney-client relationship, provided for in the minimum standards for indigent criminal appellate defense services, and contemplated in the trial court’s own indigent attorney fee schedule. While the determination of what is reasonable compensation for such services is left to the sound discretion of the trial court, it is an abuse of discretion to simply deny any compensa-
tion for such services. Accord, In re Attorney Fees of Mulkoff, 176 Mich App 82; 440 NW2d 112 (1989).
We affirm the award of $409.22 but remand for a determination of reasonable compensation for client visit and oral argument and entry of an appropriate order. We do not retain jurisdiction.
In so doing, we note that such fee disputes would be minimized by clearly written court policies sufficiently detailed to address common areas of misunderstanding. The court’s policy should be provided to counsel upon appointment. For example, Genesee County’s fee schedule provides a $100 limit on travel time for a client visit in Lower Peninsula prisons. It says nothing about the obvious question of Upper Peninsula client visits. It says nothing about what, if any, expenses are covered or at what rate they might be paid. It provides for extraordinary fees but says nothing about whether counsel should bring extraordinary matters to the court’s attention before expenses are incurred. We urge trial courts to review their policies and to update them from time to time to help minimize disputes. | [
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Per Curiam.
Christine Marie and Jennifer Rae Neagos were legally adopted by respondents in October, 1983. In October, 1987, petitioner, the biological mother of Christine and Jennifer and the sister of respondent Cynthia Neagos, petitioned the probate court to set aside the adoption or, in the alternative, to enforce visitation. The probate court held a hearing on June 10, 1988, to determine whether or not it had jurisdiction to schedule a rehearing regarding the petition. After hearing arguments from both sides, the probate court held it did not have jurisdiction to reopen the case. The court further held that, even if it did have jurisdiction, there were insufficient grounds to grant a rehearing. Petitioner appeals this order as of right. We affirm.
Petitioner consented to the adoption in August, 1983, pursuant to MCL 710.43; MSA 27.3178(555.43). She now claims the existence of fraud in the adoption process because (1) respondents broke their promise to allow visitation with the children, (2) petitioner’s psychological condition was unsound due to stress at the time she consented to the adoption, and (3) petitioner was not fully informed of her legal rights at the consent hearing.
The Michigan Adoption Code, MCL 710.21 et seq.; MSA 27.3178(555.21) et seq., provides for two basic methods by which biological parents may agree to put their children up for adoption. The child may be "released” to a child placement agency or the Department of Social Services under § 28 and related sections, or the parents may, as in this case, "consent” to an adoption by certain parties under § 43. Consent and release, although distinct, are similar in nature and purpose. See In re Nord, 149 Mich App 817, 821; 386 NW2d 694 (1986). See also MCL 710.22(g) and (k); MSA 27.3178(555.22)(g) and (k). Indeed, the Adoption Code consistently treats adoptions upon consent and upon release analogously. See, e.g., MCL 710.24a(l)(c)(iv) and (v); MSA 27.3178(555.24a)(l)(c)(iv) and (v); MCL 710.31; MSA 27.3178(555.31); MCL 710.34; MSA 27.3178(555.34); MCL 710.36; MSA 27.3178(555.36).
Petitioner seeks to set aside the probate court’s 1983 order of adoption. MCL 710.64(1); MSA 27.3178(555.64)(1) governs petitions for rehearings to set aside an order entered pursuant to the Adoption Code. It provides:
Upon the filing of a petition in probate court within 20 days after entry of any order under this chapter, and after due notice to all interested parties, the judge of probate may grant a rehearing and may modify or set aside the order.
Our research has revealed no Michigan cases discussing whether under MCL 710.64(1); MSA 27.3178(555.64)(1) a probate court has jurisdiction to set aside a consent adoption several years after the adoption order was entered. Because of the similarity between adoptions by release and consent, we look to cases discussing probate court jurisdiction to set aside release adoptions to resolve the issue. Compare Nord, supra.
In In re Myers, 131 Mich App 160; 345 NW2d 663 (1983), the appellant filed a petition to revoke a release of parental rights executed twenty-two days earlier. The child placement agency to which the child was released refused to join or acquiesce in the petition. This Court concluded that the probate court was without jurisdiction to consider the appellant’s petition. The relevant law was summarized as follows:
Under §64(1), a petitioner has 20 days after voluntarily executing a release to petition the court for a hearing to revoke that release. In re Hole, 102 Mich App 286, 291; 301 NW2d 507 (1980); In re Fletcher, 76 Mich App 219, 220-221, 223; 256 NW2d 444 (1977). Whether to grant the petitioner’s request for a hearing and whether to grant the relief sought are matters left to the sound discretion of the probate court. In re Hole, 102 Mich App 290, n 1. Where the petitioner waits more than 20 days after the execution of a release, the probate court is without jurisdiction to consider a request for a hearing to revoke unless the child placing agency joins or acquiesces in the petition. In re Hole, 102 Mich App 291-292; In re Fletcher, 76 Mich App 220-222. Where this condition is met, the decision to grant a hearing and the decision to grant revocation are resurrected for the exercise of discretion of the probate court, though once the child has been placed for adoption the petition may not be entertained. In re Hole, 102 Mich App 290, n 1. [131 Mich App 163-164.]
Thus, under Myers, the probate court lacks jurisdiction to entertain a petition to set aside a release for adoption where (1) more than twenty days have passed since its execution and the child placing agency refuses to join in the petition, or (2) more than twenty days have passed since execution and the child placing agency agrees to join in the petition but the child has been placed for adoption. In regard to the second situation, we note that, for purposes of consent adoptions, the Adoption Code similarly provides that a consent to adoption shall not be withdrawn upon entry of an order terminating the parents’ rights. See MCL 710.51(3); MSA 27.3178(555.51)(3).
In the instant case, four years passed between the time respondents adopted the children and the time the petition to set aside was filed. The adoptive parents vigorously opposed the petition. Thus, under either of the two Myers situations, the probate court in this case lacked jurisdiction to consider the petition to set aside the adoption. Petitioner’s reliance on In re Nord, supra, in this regard is misplaced since that case did not raise a jurisdictional question.
Although the probate court reached the right result in concluding that it lacked jurisdiction to entertain petitioner’s motion to set aside the adoption order, in our opinion the court erred in relying on MCR 2.612, governing relief from judgment or order, in reaching that conclusion. At the time this case was heard, procedure in probate court was governed by the rules applicable in other civil proceedings (such as MCR 2.612), except as modified by the rules governing probate court procedure. See MCR 5.001(A). MCR 5.755, which governed rehearings under MCL 710.64(1); MSA 27.3178(555.64)(1), the statute we have concluded to be dispositive when a party wishes to set aside a consent adoption, provided such a modification. Therefore, MCR 5.755, and not MCR 2.612, should have controlled the probate court’s decision in this case. Similarly, under the new Michigan Court Rules governing practice and procedure in the juvenile division of the probate court, effective January 1, 1988, the Michigan Court Rules applicable in other civil proceedings (including MCR 2.612) apply in the juvenile division of the probate court only when specifically provided. See MCR 5.901(A). The rule governing rehearings in the juvenile division of the probate court, MCR 5.992, makes no such provision.
We recognize that there is authority for the proposition that the power of equity includes the power to set aside an adoption where fraud at the time of adoption is shown, despite the lack of a statutory basis for revocation of an adoption. See In re Leach, 373 Mich 148; 128 NW2d 475 (1964). See also In re Kozak, 92 Mich App 579; 285 NW2d 378 (1979). In this case, however, we must agree with the probate court that there was an inade quate showing of fraud to justify reopening the matter on equitable grounds. The fraud which justifies equitable interference with a probate order must be fraud in obtaining the order and not merely constructive, but positive, fraud. In re Kozak, supra, p 583. Because Michigan courts are extremely reluctant to set aside adoptions, a case of significant fraud must be made out. Leach, supra. Here, petitioner’s psychological stress and legal awareness at the time she gave her consent to adoption are not allegations of positive fraud perpetrated upon herself or the court, but a collateral attack on the 1983 proceedings. Nor does petitioner’s allegation that respondents broke their promise to allow visitation with the children amount to a positive fraud in the adoption process. At the time she gave her consent, petitioner was informed that respondents, from a legal standpoint, would be the children’s parents and she agreed to relinquish all rights to the children. This negates petitioner’s claim of fraud regarding possible "side agreements.” See In re Nord, supra.
Petitioner’s claim of mental disability, which allegedly precluded her from timely asserting her claim, must likewise fail. MCL 600.5851; MSA 27A.5851 provides that a person who asserts insanity as a disability has one year after the disability is removed to initiate a proceeding even if the period of limitation has run. However, the disability must have been in existence at the time the claim occurred. Petitioner has not alleged insanity or incompetence at the time she signed the consent order, but rather an "unsound psychological condition as a result of stress.” The probate court properly ruled that petitioner did not allege any legal incapacity.
Since the probate court properly found it lacked jurisdiction to hear petitioner’s motion for rehear ing, we do not address the remaining issues raised on appeal. Joe Dwyer, Inc v Jaguar Cars, Inc, 167 Mich App 672; 423 NW2d 311 (1988).
Affirmed.
Murphy, P.J. concurs in the result only. | [
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Per Curiam.
On the first day of trial, March 23, 1987, the trial court dismissed with prejudice plaintiffs’ chiropractic malpractice case against defendant due to plaintiffs’ inability to proceed with trial. Plaintiffs appeal as of right from the dismissal and a subsequent order granting costs and attorney fees.
A brief history of the events relating to this appeal is as follows:
February 21, 1985 Suit filed.
April 26, 1985 Interrogatories served requesting identity and opinions of plaintiffs’ expert witnesses.
December 10, 1985 Defendant prepared a motion to compel answers within twenty-eight days of service. Plaintiffs stipulated to order.
January 15, 1986 Stipulation and order entered for plaintiffs to answer interrogatories.
February 7, 1986 Mediation award of $15,000 for plaintiffs (rejected by both parties).
June 11,1986 Defendant filed motion to dismiss for failure to comply with discovery.
July 1,1986 Plaintiffs advised that they had not yet determined who would provide the expert testimony.
July 31, 1986 Defendant filed third motion concerning interrogatories.
August 26, 1986 Case on standby for trial. Second stipulation and order to provide interrogatory answers by September 9, 1986.
September 25, 1986 Fourth motion filed to dismiss for failure to comply with discovery order.
October 7, 1986 Plaintiffs indicated unidentified expert would formalize opinion as soon as he had examined x-rays taken by defendant.
October 13, 1986 Case was on standby for trial beginning November 17,1986.
October 15, 1986 Hearing on fourth motion to dismiss. Plaintiffs ordered to disclose identity and opinion of witness by November 3, 1986. If plaintiffs failed to comply by November 1, 1986, further request to dismiss would be considered.
October 30, 1986 Order of October 25, 1986, ruling entered without objection.
November 10, 1986 Fifth motion to dismiss was filed.
November 18, 1986 Plaintiffs’ counsel first contacted Dr. Abraham.
November 20, 1986 Plaintiffs filed answer identifying C. J. Abraham as their expert and his purported opinion.
December 1, 1986 Plaintiffs claimed that they received an opinion from Dr. Abraham.
December 22, 1986 Plaintiffs first request of Dr. Abraham the name of specialist who would be able to testify at trial.
January 15, 1987 Sixth motion for dismissal filed for failure to provide sufficient answers.
January 28, 1987 Trial court declined to dismiss but ordered report of Dr. Abraham to be produced on or before February 11,1987.
February 5, 1987 Plaintiffs produced an expert report by Dr. Palmer and not Dr. Abraham.
February 9, 1987 Case on standby for trial.
February 17, 1987 Supplemental answers to interrogatories identified Dr. Stopek as plaintiffs’ expert.
February 23, 1987 Plaintiffs noticed de bene esse deposition of Dr. Stopek on March 11, 1987, for use at trial.
March 2, 1987 Seventh motion to dismiss filed.
March 11, 1987 Trial court declined to dismiss but limited plaintiffs to use only Dr. Abraham as their expert witness at trial.
March 13,1987 Emergency motion for rehearing setting March 25, 1987, for the hearing. Plaintiffs contended that they had just learned that Dr. Abraham was not a chiropractor, M.D., or D.O., but that he was a Ph.D. and an engineer.
March 23, 1987 Case called for trial. Dismissal upon plaintiffs’ inability to proceed.
First, plaintiffs contend that the trial court abused its discretion by denying plaintiffs’ request to present testimony of an unlisted witness and later dismissing the lawsuit.
On March 11, 1987, the trial court, while declining to dismiss the action, ruled that plaintiffs would be limited to using Dr. Abraham as their only expert witness at trial. The trial court stated
that the cut-off for experts to be identified and given to the Defendants was November 3rd, 1986 in an Order signed by this Court on October 3rd, 1986 and the Court wanted to review the file, and the Court is satisfied that a Dr. Abraham was listed by the Plaintiffs and that expert be allowed to testify on behalf of the Plaintiff and no other experts.
And, the record should indicate that this case has been on standby for trial since May of ’86. We are now in March 11th, ’87, the case should go to trial within the next week or possibly this week or next week, and the case is over two years old at this juncture.
This case was called for trial on March 23, 1987. At that time, plaintiffs’ counsel conceded that plaintiffs were not prepared to go to trial. An order of dismissal was entered with prejudice, with costs and attorney fees awarded to defendant.
Decisions whether to allow an undisclosed expert to testify and whether to grant an adjournment are within the discretion of the trial court. Pastrick v General Telephone Co of Michigan, 162 Mich App 243, 245; 412 NW2d 279 (1987); Cummings v Detroit, 151 Mich App 347, 351; 390 NW2d 666 (1986), lv den 426 Mich 851 (1986). A review of the history of events in this case from the date of the filing of the complaint to the date of dismissal clearly supports our determination that the trial court did not abuse its discretion by not allowing plaintiffs to present undisclosed expert witnesses at trial and in ordering a dismissal with prejudice.
Secondly, plaintiffs argue that the trial court abused its discretion by awarding costs in the amount of $1,500. Plaintiffs contend that the trial court erred since the complaint was dismissed prior to trial, no testimony was taken from defendant’s experts at trial or otherwise, no depositions were used in any proceeding, and no statutory basis existed for awarding the costs of obtaining a party’s medical records.
Defendant requested the trial court to tax the following as costs:
(1) Proceedings before trial (pursuant to MCL 600.2441[2][a]; MSA 27A.2441[2][a])...................... $ 20.00
(2) Motion fees (pursuant to MCL 600.2529; MSA 27A.2529 [eight motions at $10.00 each])................ 80.00
(3) Expert witness fees (pursuant to MCL 600.2164; MSA 27A.2164 and Fireman’s Fund v General Electric, 74 Mich App 318 [1977]) (three witnesses) 2,990.50
(4) Deposition transcript fees (Dr. Levine) 74.40
(5) Procurement of plaintiffs medical record copies........................... 440.74
TOTAL COSTS.... $3,605.64
The affidavit in support of defendant’s taxed bill of costs and attorney fees stated that the disbursements were correct and actually incurred for services performed in this action.
Plaintiffs had no objection to the $20 fee before trial. The objection to the $80 in motion fees is moot since defendant has withdrawn this request. The only reason for plaintiffs’ objection to the expert witness fees was that the listed witnesses never gave testimony in this case. The plaintiffs’ only objection to the deposition transcript fee requested was that such costs are only allowed if the deposition was received into evidence. Plaintiffs’ only objection to the costs of obtaining medical records was a lack of statutory authority for the request. At the hearing on the motion for taxation of costs, no additional reasons were argued by plaintiffs’ counsel in opposition to the costs. After hearing arguments, the trial court entered an opinion and order awarding costs in the amount of $1,500.
The power to tax costs is wholly statutory; costs are not recoverable where there is no statutory authority for awarding them. Brown v Dep’t of State Highways, 126 Mich App 392, 396; 337 NW2d 76 (1983). Defendant relies on MCL 600.2164(1); MSA 27A.2164(1) to support taxation of witness fees in this case. That section provides in pertinent part:
No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom [sic] such witness is to appear, or has appeared, awards a larger sum, which sum may be taxed as a part of the taxable costs in the case. [Emphasis added.]
The language "is to appear” in § 2164 applies to the situation at bar in which the case was dismissed before defendant had a chance to call its proposed expert witnesses at trial. Furthermore, the trial court was empowered in its discretion to authorize expert witness fees which included prep aration fees. Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318, 329; 253 NW2d 748 (1977).
The trial court’s award of $1,500 in costs was approximately half of the amount requested by defendant as costs for the preparation fees of his expert witnesses, notwithstanding that neither the fact nor the amount of those expenses was challenged by plaintiffs. We find that the award of $1,500 in costs was proper even if the trial court had considered only the expenditure for expert witnesses.
In support of taxation of costs for deposition transcript fees and the cost of procurement of copies of plaintiffs’ medical records, defendant relies on MCL 600.2549; MSA 27A.2549. However, the items in question are not taxable, as the case was dismissed before said items could be "used” or "read in evidence” at trial.
Lastly, we consider whether the trial court erred in awarding defendant attorney fees in the amount of $5,000 pursuant to MCR 2.403(0) even though there was no trial and no verdict was reached.
Defendant requested attorney fees from February 7, 1986, the date of mediation, pursuant to MCL 600.2405; MSA 27A.2405 and MCR 2.403. The request was in the amount of $7,008 and it was based on a conservative compilation of ninety-six attorney hours at the hourly rate of $73 per hour.
MCR 2.403(G)(1) provides:
If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.
The express language of the rule itself sets forth only two conditions to trigger sanctions: (1) the party to be sanctioned rejected the mediation evaluation; and (2) "the action proceeds to trial.” The additional language that a "party must pay the opposing party’s costs unless the verdict is more favorable to the rejecting party” should be interpreted in such a manner that it is the rejecting party that must obtain a verdict more favorable to avoid sanctions.
Recently, in Wayne-Oakland Bank v Brown Valley Farms, Inc, 170 Mich App 16; 428 NW2d 13 (1988), the appellants read MCR 2.403(0) as requiring a verdict as a prerequisite to an award of mediation sanctions. This Court disagreed, stating in part:
The commencement of trial is the necessary prerequisite for mediation sanctions under MCR 2.403, not the rendering of a verdict. See OD Silverstein, MD, PC v Services, Inc, 165 Mich App 355, 360; 418 NW2d 461 (1987). [Wayne-Oakland Bank, p 21.]
We note that the current version of MCR 2.403(0)(2)(c), now expressly provides a definition of "verdict” which, had it been effective at the time mediation sanctions were awarded by the trial court here and in Wayne-Oakland Bank, would have rendered this issue moot. This definition, which became effective on December 1, 1987, states:
For the purpose of this rule "verdict” includes ... a judgment entered as a result of a ruling on a motion filed after mediation.
In this case, the trial court’s award of $5,000 in attorney fees was proper since the appropriate interpretation of the then existing version of the rule did not require the rendering of a "verdict,” but only that the action proceed to trial.
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E.A. Quinnell, J.
This is an appeal as of right from a circuit court order forfeiting proceeds from the sale of a 1983 Cadillac pursuant to enforcement of the controlled substances act, MCL 333.7501 et seq.; MSA 14.15(7501) et seq.
The subject 1983 Cadillac was owned by Robert D. Wood, D.D.S., P.C. On November 22, 1983, Dr. Wood met with an undercover detective in the 1983 Cadillac, where Dr. Wood gave the detective a prescription for dilaudid, a controlled substance. On November 23, 1983, the car was seized without process pursuant to MCL 333.7521(l)(d); MSA 14.15(7521)(l)(d) and MCL 333.7522; MSA 14.15(7522). Forfeiture proceedings were commenced on March 26, 1984, four months after the seizure of the Cadillac. During the time the car was impounded, Dr. and Mrs. Wood made payments of $300 per month on the outstanding lien. The parties stipulated to adjourn the forfeiture matter until the criminal case against Dr. Wood was concluded. At a forfeiture hearing held on April 15, 1987, the trial court held that the Cadillac was used by Dr. Wood for a purpose prohibited by MCL 333.7521; MSA 14.15(7521) and that the delay in bringing the forfeiture proceedings was not unreasonable under MCL 333.7523; MSA 14.15(7523).
The first issue is whether the 1983 Cadillac was a proper object for seizure and forfeiture.
The relevant part of the statute covering property subject to forfeiture in effect at the time of the seizure reads as follows:
The following are subject to forfeiture:
(a) A controlled substance which has been manufactured, distributed, dispensed, possessed, or acquired in violation of this article.
(b) A raw material, product, or equipment of any kind which is used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting a controlled substance in violation of this article.
(d) A conveyance, including an aircraft, vehicle, or vessel used or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a) or (b) . . . . [MCL 333.7521; MSA 14.15(7521). Emphasis added.]
By statutory definition:
"Dispense” means to deliver or issue a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, or compounding necessary to prepare the substance for the delivery or issuance. [MCL 333.7105(2); MSA 14.15(7105X2). Emphasis added.]
By this definition, the term "dispense” in MCL 333.7521; MSA 14.15(7521) means not only actually dispensing but also prescribing a controlled substance. The vehicle used for the purpose of receipt of a prescription is subject to forfeiture because the prescription is a dispensed controlled substance by statutory definition. The 1983 Cadillac was used to receive the prescription and to facilitate the transportation of a dispensed controlled substance, and is therefore subject to forfeiture.
Next, we review whether the forfeiture proceedings were instituted "promptly” as required by § 7523 of the controlled substances act, MCL 333.7523; MSA 14.15(7523).
We strictly construe § 7523 as requiring the prompt institution of in rem forfeiture proceedings to ensure that the due process rights of the claimants are protected. Const 1963, art 1, § 17. We note that the act provides that where property is seized without process proceedings "shall” be instituted "promptly.” We agree with prior decisions of this Court which have held that this connotes a mandatory duty imposed by law to institute proceedings promptly. See Lenawee Prosecutor v One 1981 Buick Two-Door Riviera, 165 Mich App 762, 766-767; 419 NW2d 458 (1988).
In defining promptness, this Court has established certain factors which must be considered by the trial court. These factors include, but are not limited to
the lapse of time between seizure and filing of the complaint, the reason for the delay, the resulting prejudice to the defendant and the nature of the property seized. [Dep’t of Natural Resources v Parish, 71 Mich App 745, 750; 249 NW2d 163 (1976).]
We find that the above factors clearly militate in favor of the Woods.
The length of time between seizure and complaint, as contemplated by the Legislature, can be gleaned at least in part from a 1985 amendment to the statute. 1985 PA 135, § 1. Following seizure, the government must give notice of the seizure to the owner by personal delivery or by certified mail. If notice cannot be so accomplished, notice may be given by publication for ten consecutive days. MCL 333.7523(l)(a); MSA 14.15(7523)(l)(a). Any person claiming an interest in the property must file a claim and bond with the government within twenty days after receiving notice or after the first published notice. MCL 333.7523(l)(b); MSA 14.15(7523)(l)(b). If the interested person fails to file the claim and bond within twenty days, the property is forfeited to the government. MCL 333.7523(l)(c); MSA 14.15(7523)(l)(c). If a claim is filed, the government’s attorney "shall promptly institute forfeiture proceedings after the expiration of the twenty-day period.” MCL 333.7523(l)(b); MSA 14.15(7523)(l)(b).
In context, it is clear that the Legislature was thinking in terms of days in using "promptly.” Since the Legislature allowed a claimant only twenty days in which to file a claim and bond, and required action by the government "promptly” if a claim was filed, it appears reasonable that the Legislature had some similar period of time in mind in which the government could file a complaint. However, we decline to adopt any bright line twenty-day test. The Legislature could have done so if it wished, and it did not do so. Each case will present its own unique facts. The remaining Parish factors must be considered.
As to the second factor, the prosecutor justified its delay by the need to do a search and investigation into whether forfeiture actions could be brought against Dr. Wood’s dental practice and his building. However, we believe that forfeiture proceedings against the practice and building have no real bearing on whether forfeiture proceedings could be instituted against the car. As such, this factor weighs in favor of the Woods.
The third factor is the resulting prejudice to the Woods from the delay. Here, the Woods were prejudiced because the automobile is a wasting asset whose value diminishes when it is impounded and upon which the Woods continued to make payments to protect their interest. See Parish, supra at 752. We believe the Woods were prejudiced by the delay.
Fourth, since the automobile was inherently harmless and therefore of little interest to the government, this factor weighs in the Woods’ favor. See Parish, supra at 753.
In our determination, we are mindful that:
"We must not lose sight of the fact that this is a seizure of property, a very drastic, direct, and immediate remedy. Such a seizure is justified on apparently ancient doctrines that the sovereign may seize the instrumentality of a crime in addition to punishing its perpetrator. The instrumentality of a crime is something quite different from what we call contraband, such as goods smuggled across a border, or narcotics. Yet, the instrumentality of a crime is treated the same in terms of the sovereign’s right to employ summary seizure proceedings.” United States v One 1971 Opel G T, 360 F Supp [638, 642 (CD Cal, 1973)]. [Parish, supra at 753.]
We conclude that the prosecutor failed to file the instant forfeiture action promptly and reverse the trial court in this regard.
Reversed.
MacKenzie, P.J., concurred. | [
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Per Curiam.
Plaintiffs appeal from an order of the circuit court granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(8) (failure to state a claim). We reverse.
Plaintiffs are inmates in the custody of the Department of Corrections. Defendant is a corrections officer who filed a prison major misconduct report against plaintiffs charging them with sodomy. An administrative hearing was held within the department and a hearing officer determined that plaintiffs were guilty of the charge. Prior to the administrative determination, plaintiffs filed a complaint in circuit court against defendant alleging that he had defamed them by filing the report.
Following the administrative determination of plaintiffs’ guilt on the major misconduct charge, defendant filed his answer which, inter alia, pled the affirmative defenses of collateral estoppel, absolute immunity, and qualified immunity. The trial court determined that plaintiffs were collaterally estopped from relitigating the issue of the truth or falsity of defendant’s report since the truthfulness of the report had been established at the administrative proceeding. Since plaintiffs were collaterally estopped from establishing the falsity of defendant’s statement, a necessary element to their defamation action, the trial court granted summary disposition in favor of defendant. The trial court declined to address the applicability of defendant’s absolute or qualified immunity arguments, the other grounds upon which defendant also requested summary disposition.
Under certain circumstances, a determination arising out of an administrative proceeding can be used in application of the doctrine of collateral estoppel in a subsequent civil action. Storey v Meijer, Inc, 431 Mich 368, 373; 429 NW2d 169 (1988). We find it unnecessary, however, to determine whether the doctrine of collateral estoppel applies where the prior determination is an administrative determination of the Department of Corrections because we conclude that there is no mutuality of estoppel in the case at bar, a necessary element of collateral estoppel. Ellison v Wayne Co General Hosp, 100 Mich App 739; 300 NW2d 392 (1980), rev’d in part on other grounds 411 Mich 988; 308 NW2d 111 (1981); Braxton v Litchalk, 55 Mich App 708; 223 NW2d 316 (1974).
A recognized exception to the mutuality requirement is that collateral estoppel may be raised defensively by a defendant in a subsequent action where that defendant and the defendant in the previous action had a special relationship, such as principal and agent. That exception was stated by the United States Supreme Court in Bigelow v Old Dominion Copper Mining & Smelting Co, 225 US 111, 127-128; 32 S Ct 641, 642; 56 L Ed 1009, 1021 (1912):
An apparent exception to this rule of mutuality had been held to exist where the liability of the defendant is altogether dependent upon the culpability of one exonerated in a prior suit, upon the same facts when sued by the same plaintiff. See Portland Gold Min Co v Stratton’s Independence, 16 LRA (NS) 677; 85 CCA 393; 158 F 63 [1907], where the cases are collected. The unilateral character of the estoppel of an adjudication in such cases is justified by the injustice which would result in allowing a recovery against a defendant for conduct of another, when that other has been exonerated in a direct suit. The cases in which it has been enforced are cases where the relation between the defendants in the two suits has been that of principal and agent, master and servant, or indemnitor and indemnitee.
The Michigan Supreme Court applied the Bigelow rule in DePolo v Greig, 338 Mich 703, 711; 62 NW2d 441 (1954):
Plaintiffs in their brief admit that an exception to the requirement of mutuality exists where the liability of the defendant is entirely dependent upon the culpability of one exonerated in a prior suit. This exception is recognized in the case cited by the plaintiffs, Bigelow v Old Dominion Copper Mining & Smelting Co, supra.
This Court has subsequently applied the Bigelow doctrine in cases involving the principal-agent relationship. See Cook v Detroit, 125 Mich App 724; 337 NW2d 277 (1983); Ellison, supra; Viera v Saginaw Bd of Ed, 91 Mich App 555; 283 NW2d 796 (1979). An additional case decided by this Court, Braxton, supra, would seem to extend the Bigelow doctrine beyond a strict requirement that the defendant in the second action who asserts collateral estoppel must have a special relationship, such as principal-agent, with the defendant in the prior action and that the liability of one defendant be premised upon the liability of the other.
In Braxton, there was an automobile accident involving a car driven by Braxton and a car driven by Litchalk, who was driving an automobile leased by his employer. Litchalk’s employer, prior to the Braxton action, brought an action against Braxton for the damage to its leased automobile caused in the accident. Braxton defaulted and the employer took judgment against him. In the subsequent action, Braxton and the other occupant of his car brought suit against Litchalk as driver of the leased car, the employer as lessee of the car and against the lessor. The defendants raised the defense of collateral estoppel on the basis of the employer’s previous suit against Braxton. With respect to the driver of the leased car, Litchalk, this Court followed Bigelow, supra, and concluded that Litchalk was entitled to raise the defense of collateral estoppel.
We note that Braxton deviates from the other cases relying on Bigelow and DePolo. Specifically, while a master-servant relationship did exist between the employer and Litchalk, and while the employer was a party to the previous action, the employer was a plaintiff in the previous action rather than a defendant. Therefore, the employer was not "exonerated” in the prior action nor was the question of its liability for Litchalk’s actions ever at issue. On the other hand, Braxton could have raised Litchalk’s negligence, if any, as a defense in the prior action. We also note that the Braxton Court mentioned the fact that the employer would have "derivative responsibility” with respect to Litchalk’s actions. Braxton, supra at 724.
We view Braxton, supra, as expanding the Bigelow doctrine beyond its original purpose. In looking to the language quoted above from both Bigelow and DePolo, we believe that the existence of the special relationship between the defendant in the second action and a party in the prior action is insufficient by itself to warrant application of the Bigelow doctrine. Rather, we believe that both the Bigelow and DePolo cases are clear that the culpability of one of those two parties must be premised upon the liability of the other party, such as under the respondeat superior doctrine. Furthermore, we believe it more consistent with Bigelow and DePolo to require that one of those two parties be "exonerated” in the prior action. If the liability of the party was not at issue in that prior action, we do not believe that the Bigelow doctrine applies to create an exception to the doctrine of mutuality in order to permit the defendant in the second action to raise the defense of collateral estoppel. Seen in such a light, we believe that Braxton, supra, if it did not improperly apply the Bigelow doctrine, certainly stretched it to its farthest permissible bounds.
Turning to the case at bar, we believe that to stretch the Bigelow doctrine to apply in the case at bar would impermissibly stretch the Bigelow doctrine even beyond the point to which it was stretched by the Braxton Court. In the instant case, the "prior action” was an administrative proceeding brought by the Department of Corrections against plaintiffs for a major prison misconduct. Furthermore, while the substantive truth of defendant’s report was tangentially at issue, since plaintiffs would not have been found guilty of a major misconduct were the report not correct in the assertion that plaintiffs had committed some violation, neither the issue of defendant’s liability nor the Department of Corrections’ liability was ever an issue in that administrative proceeding. That is, the department was not "exonerated” in the prior proceeding as such was not the issue. Simply put, the prior administrative proceeding did not consider the culpability of either the Department of Corrections or defendant. Accordingly, we believe that the Bigelow doctrine is inapplicable to the case at bar and, therefore, does not provide a basis for finding an exception to the mutuality requirement. There being no exception to the mutuality requirement, and the mutuality requirement not having been met in the case at bar, we conclude that the trial court improperly granted summary disposition in favor of defendant on this basis.
Defendant also argues that, even if summary disposition was incorrect, he is entitled to summary disposition in his favor on the basis that his communication was protected by either an absolute privilege or a qualified privilege. While this issue was pled below, the trial court specifically did not consider the issue, basing its decision instead upon a determination that plaintiffs were collaterally estopped from relitigating the issue of the falsity of defendant’s statement. Since the question of privilege was not addressed by the trial court, we decline to address it on appeal. We would, however, offer the comment that it would appear that defendant has a strong argument in support of his position that his report was protected under a qualified privilege. We leave it, however, for the trial court to determine in the first instance whether either an absolute or qualified privilege is applicable to this case.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs. | [
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Levin, J.
Judson Boyd fractured a leg in 1967. He was treated in a hospital operated by defendant City of Wyandotte. He filed this medical malpractice action alleging that his leg had been permanently damaged because of defendants’ failure to render proper medical treatment and care.
The jury returned a verdict of no cause of action. The Court of Appeals affirmed.
Boyd raises two issues on appeal. The first con cerns the use by defense counsel of his prior conviction record to impeach his credibility. The second concerns the trial judge’s refusal to allow him to amend his complaint after trial had begun. We reverse and remand for a new trial on the first issue.
Boyd contends that he was denied a fair trial on the merits when defense counsel was allowed over objection to question him "under the guise of testing credibility” concerning seven criminal convictions dated from 1952 to 1961. He maintains that the judge failed to exercise "sound discretion” when he allowed cross-examination based on "immaterial” and highly prejudicial convictions 10 to 19 years before the trial: "The line of inquiry was unquestionably injected by defense counsel to improperly prejudice the jury”. He asserts that the jury was thereby diverted from the real issue— whether he was given proper treatment and care— and focused instead on the question whether, with his long list of convictions, he "deserved” to recover even if he had been negligently treated.
Defendants respond that the judge gave a cautionary instruction to the jury. Additionally, they contend that the real issue was Boyd’s credibility (did he complain that the cast was too tight? did he put weight on his left leg? did he fall?), which was impeached not only by the evidence of prior convictions, but also by prior inconsistent statements and evidence that he had filed a false claim, arising from the fracture of his leg, against an insurance company (see fn 1, supra).
I
In People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), this Court considered sections of the Revised Judicature Act providing that no person shall be disqualified as a witness by reason of his interest or his having been convicted of a crime but his "interest or conviction may be shown for the purpose of affecting his credibility” (emphasis supplied).
We found persuasive the reasoning of the United States Court of Appeals for the District of Columbia Circuit in Luck v United States, 121 US App DC 151, 156; 348 F2d 763, 768 (1965), and that of the highest courts of several states, and concluded "that a trial judge may in the exercise of discretion exclude reference to a prior conviction record”. Jackson, supra, p 336.
The statutory provision considered and construed in Jackson applies in civil as well as criminal cases. There is therefore no basis for limiting the Jackson construction of the statute to criminal cases. We conclude that the Jackson rule, recognizing a discretion in trial judges to bar the use of prior convictions to impeach credibility, applies in civil cases.
Jackson further held that it is error for a trial judge "to fail to recognize that he has such discre tion and, therefore, to fail or to refuse to exercise it”. Jackson, supra, p 336.
Subsequent to Jackson, this Court reversed a conviction and ordered a new trial "on the ground that defendant sought to have the court exercise its discretion to exclude prior conviction evidence, and it is apparent that the court failed to recognize that it had such discretion and failed to exercise it. See People v Jackson, 391 Mich 323 (1974). In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion.” People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). Similarly see People v Hooper, 395 Mich 807; 235 NW2d 745 (1975).
When the defendants questioned Boyd regarding his prior criminal record, his counsel objected. It appears that the matter was discussed at a sidebar conference, not part of the record, and that the judge said he would permit the defendant to cross-examine Boyd regarding his prior convictions. The record does not contain any indication that in so ruling the judge recognized that he had and was exercising his discretion.
Jackson was decided in April, 1974. The defendants ask that the "Jackson rule” be applied prospectively, contending that in October, 1971 "when this case was tried, it is safe to say that all Michigan trial lawyers thought that prior criminal convictions could be shown to impeach credibility. So did the trial judges.”
The argument for prospectivity ignores the opinion of the Court of Appeals in People v Farrar, 36 Mich App 294, 306; 193 NW2d 363 (1971), where a panel of that Court adopted the Luck construction, and held it was error for a trial judge to fail to recognize that he may, in the exercise of discretion, refuse to allow reference to a defendant’s prior conviction record. The argument also tends to confirm that the trial judge in this case did not recognize that he could in the exercise of discretion exclude prior conviction evidence and, therefore, did not exercise that discretion.
While the jury, by reason of other evidence reflecting adversely on Boyd’s credibility, may have disbelieved his testimony, there is no way of knowing what impact the evidence of the prior convictions may have had on the verdict.
Boyd duly objected. It does not appear that the judge recognized that he had a discretion to exclude the prior convictions. Consequently, seven convictions, one 10 years old and the others over 15 years old, were admitted. Even if the judge had duly exercised his discretion, it may well have been an abuse of discretion to have admitted evidence of these stale convictions.
For the reasons stated, we reverse and remand for a new trial.
II
Boyd also claims error in the trial court’s failure to allow amendment of his complaint near the end of the trial.
We agree with the defendants that the theory proffered — the failure of defendants to keep adequate records and notations of Boyd’s treatment and care was "an additional departure from the standard of practice” — is not a ground for recovery under the circumstances of this case.
The meritorious question is whether the treatment and care rendered was negligent. The presence or absence of written memoranda might have a bearing on Boyd’s burden of proof or of persuasion but would have no bearing on whether defendants were negligent. Boyd’s physical condition cannot be attributed to the alleged failure of the treating physicians to keep adequate records.
Reversed and remanded for a new trial.
Kavanagh, C. J., and Williams and Fitzgerald, JJ., concurred with Levin, J.
Boyd claims that on June 4, 1967 he fell down a flight of stairs at the home of his wife’s parents. He apparently filed a claim, and received a $1,000 settlement from the parents’ insurance company.
The defendants claim Boyd broke his leg playing baseball in Papp Park, Taylor, Michigan. They introduced evidence that the police answered a call on June 4, 1967 regarding the Papp Park incident and the records of an ambulance service indicating that it transported Boyd from Papp Park to Wyandotte General Hospital on that date.
Defendants contend that Boyd lied about the place of his injury so that he could collect from the insurance company. They contend that the jury, when faced with evidence that Boyd lied on one occasion to obtain money, concluded that he was lying again and, for that reason, returned a verdict of no cause of action.
(1) 1952 — interstate transportation of a stolen automobile; (2) 1953 —breaking and entering an automobile; (3) 1956 — arson; (4) 1956— larceny from an automobile; (5) 1956 — contributing to the delinquency of a minor; (6) 1956 — larceny by conversion; (7) 1961 — unlawfully driving away an automobile.
On deposition, Boyd denied having fallen after a cast was put on his leg. Defense counsel confronted Boyd with a hospital emergency record which indicated otherwise, and Boyd was forced to admit he had been mistaken.
MCLA 600.2159; MSA 27A.2159. Similarly see MCLA 600.2158; MSA 27A.2158.
See Asato v Furtado, 52 Hawaii 284; 474 P2d 288 (1970), holding, in an automobile negligence action, that a trial judge may in the exercise of discretion bar the use of prior convictions to impeach credibility.
He relies on Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). | [
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Coleman, J.
Plaintiff Nancy Amato was employed as a probationary teacher by defendant Oxford School District during the 1973-1974 and 1974-1975 school years. At the end of the second year, the board of education granted her a third year of probation, notifying her by a letter which said "[t]he reason for placing you on a third year has been discussed with you by your building administrators and these reasons were reviewed at the April 1, 1975 board of education meeting”.
Plaintiff sued, saying she was entitled to tenure because the board had not given written notice that her work was unsatisfactory. The trial judge granted relief saying the board "failed to adhere to the applicable provisions of the Michigan teacher tenure act when they granted plaintiff a third year of probation”.
The Court of Appeals affirmed. 70 Mich App 305; 245 NW2d 728 (1976). We reverse and remand.
I
Two of the Court of Appeals judges agreed that if the board "desired to grant a third year of probation, the statute required written notice to plaintiff that her work had not been satisfactory; otherwise, she was entitled to tenure”. Dissenting Judge Maher said that "since the prerequisite for tenure is satisfactory completion of the probation period, and plaintiff’s probationary period was legitimately extended to three years, she was not entitled to tenure after completion of two years as a teacher”.
During the first two years of employment, "[a]ll teachers * * * shall be deemed to be in a period of probation”. MCL 38.81; MSA 15.1981. The sections in dispute are MCL 38.82; MSA 15.1982,
"No teacher shall be required to serve more than 1 probationary period in any 1 school district or institution: Provided, That a third year of probation may be granted by the controlling board upon notice to the tenure commission.” (Emphasis added.),
and MCL 38.83; MSA 15.1983.
"At least 60 days before the close of each school year the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory. Failure to submit a written statement shall be considered as conclusive evidence that the teacher’s work is satisfactory. Any probationary teacher or teacher not on continuing contract shall be employed for the ensuing year unless noti&ed in writing at least 60 days before the close of the school year that his services will be discontinued.” (Emphasis added.)
The board maintains the lower courts erred in saying that a grant of a third year of probation under MCL 38.82 must comply with MCL 38.83 which concerns the dismissal of or failure to rehire a probationary teacher. Plaintiff argues that the lower court decisions are consistent with the statutory framework and legislative purpose of the teachers’ tenure act (TTA).
II
What is the purpose of TTA? According to Rehberg v Board of Education of Melvindale, Ecorse Twp School Dist No 11, Wayne County, 330 Mich 541, 547, 548; 48 NW2d 142 (1951), it protects "teachers from being discharged or demoted from a continuing tenure except for 'reasonable and just cause’ * * * The act "places an additional safeguard upon the arbitrary or unreasonable dismissal of teachers and is designed for their protection”.
In his dissent to Munro v Elk Rapids Schools, 383 Mich 661, 691; 178 NW2d 450 (1970), the present Chief Justice said "the intent of the entire act was to eliminate capricious and arbitrary employment policies of local school boards”. This protection extends to probationary as well as tenure teachers. Probation is "a period of trial”. A teacher who satisfactorily completes probation is entitled to tenure.
This dissent became the majority opinion on rehearing, 385 Mich 618; 189 NW2d 224 (1971), with the majority holding that "under the statute, unless a probationary teacher is notified in writing that his work is unsatisfactory, upon completion of his probationary period he is entitled to employment with tenure status”.
The parties to the proceeding before us have cited many cases all of which involved a final board action. The teacher was either dismissed or not rehired. However, granting a teacher a third year of probation is not a final decision. It only continues the "period of trial”. The Attorney General has held that if the controlling board fails to give timely notice, "a teacher engaged in the second year of employment would have tenure * * * at the completion of the second year, provided that the controlling board does not require a third year of probation by giving notice to the tenure commission under the act”. 2 OAG, 1957-1958, No 3,297, pp 265, 266 (October 15, 1958).
A significant aspect of this situation is that the plaintiff was not discharged or told that she would not be rehired. Her employment was extended although on a probationary and not a tenure basis. She is entitled to "be employed continuously” only "[a]fter the satisfactory completion of the probationary period”. MCL 38.91; MSA 15.1991. She has not completed her probation.
This fact distinguishes plaintiff’s action from that brought by the teacher in Wilson v Flint Board of Education, 361 Mich 691; 106 NW2d 136 (1960). The school board required all new teachers to serve three years probation. During the third year, the teacher was notified that she would be discharged at the end of the year.
Our Court said the "basic problem * * * is the status of [plaintiff] upon the date of the so-called discharge”. The state policy as reflected in the TTA "is that the probationary period shall be not three years, but two”. A third year of probation can be granted, "but the language of a grant (as opposed to that of a requirement) makes clear that the third year is for the benefit of the teacher, who may not have satisfied the board fully but who may have shown promise nonetheless”. The statute does not provide "any foundation for saying that a board may require, in all cases, three years of probation”.
In Wilson, the Court noted that the board failed to give the teacher any written notice concerning her work, either after the first or second year. The "statute is clear: such failure, it provides, 'shall be considered as conclusive evidence’ that the work is satisfactory”. The result was that "the teacher has satisfactorily completed the probationary period” and "is entitled to the status of tenure”.
This case is significantly different. Plaintiff Amato was finishing the required two years of probation when she was granted a third; the Wilson plaintiff was finishing the third year and was being discharged. This plaintiff received a written notice that the probation was being extended for reasons "discussed with you by your building administrators and * * * reviewed at the * * * board of education meeting” and the tenure commission was notified in accordance with the statute; the Wilson plaintiff received no notice.
The Wilson Court acknowledged that a teacher’s work during the required probation might not warrant dismissal yet might not justify an award of tenure. The third year of probation is for the teacher’s benefit. It gives the teacher an extension of the "period of trial” in which to demonstrate that he or she is qualified. Our plaintiff was afforded this extension. Her services were continued but she has not completed her probation and is not entitled to tenure.
Ill
Plaintiff urges us to add the requirements of MCL 38.83; MSA 15.1983 for discontinuance of the services of a probationary teacher to those of MCL 38.82; MSA 15.1982 which apply to an extension of a probationary period. To do so would require straining out of context the plain words of the two statutes. Further, we cannot with good conscience attribute to the Legislature a meaning anomalous to the act’s purpose and to common understanding, to-wit: to grant a third year of probation.
The linch-pin of a grant of third year probation is a decision by the board of education that her work is not entirely satisfactory but that she has demonstrated some reason to believe she could improve. To require judicially that the board must formally (and publicly) designate plaintiffs work as "unsatisfactory”, leaves no room for a conscientious probationary teacher to demonstrate a capability for excellence prior to a public finding which could support a discharge.
The reason for the third-year probation was that which had been discussed with her both by the building administrators and the school board. The written notice was no surprise for she previously had been told of her shortcomings. The record reveals no prejudice to plaintiff. In summary, we find it neither is in plaintiffs best interest nor required by law that her deficiencies be aired publicly or that she be branded in public as an "unsatisfactory” teacher, particularly because "unsatisfactory” does not accurately reflect the finding of the board.
Also, because her services are not to be "discontinued” but, conversely, are to be continued, application of MCL 38.83; MSA 15.1983 requiring 60-day notice of discontinuance of services as "unsatisfactory” makes little sense if applied to third year probationary teachers. MCL 38.82; MSA 15.1982 has to do with time limits for probationary status. MCL 38.83; MSA 15.1983 establishes a procedure whereby probation can be terminated if services are to be discontinued. Each section stands alone. There is no overlapping or conflict on the face of the legislation. It is not reasonable for us to interpret conflict into clear statutory language.
Therefore, we find MCL 38.82; MSA 15.1982 and MCL 38.83; MSA 15.1983 must be read separately. The former is directed towards a continuance of services and the latter towards the discontinuance of services of probationary teachers.
Reverse. No costs, this being a public question.
Kavanagh, C.J., and Levin, Fitzgerald, and Ryan, JJ., concurred with Coleman, J.
Williams, J.
I. Introduction
We are asked to decide a question of first impression concerning the Michigan teacher tenure act: specifically, whether a controlling board of education can place a teacher upon a third year of probation, MCL 38.82; MSA 15.1982, without providing the statement whether or not the teacher’s work was satisfactory as required in MCL 38.83; MSA 15.1983. The trial court and the Court of Appeals answered in the negative. We agree.
II. Facts
Plaintiff, Nancy Amato, was employed by defendants, Oxford Area School Districts (Board), as a probationary teacher during the 1973-74 and 1974-75 academic years.
At a Board meeting on April 8, 1975, the following resolution was made concerning plaintiff:
" 'It is hereby resolved that Nancy Amato be granted third year of probation for the 1975-76 school year. Further, the Board of Education hereby authorized Clyde C. Fischer, Assistant Superintendent, to notify the Michigan Teacher Tenure Commission and the teacher accordingly.’ Moved by Buechler, seconded by Patterson, that Nancy Amato be granted a third year of probation for 1975-76. Carried unanimously.”
Following the meeting, a letter was sent to the tenure commission informing it of the Board’s action. At the same time, a letter dated April 8, 1975, was sent to plaintiff which stated:
"You are hereby notified that the Oxford Board of Education at its regular meeting held Tuesday, April 8, 1975, adopted a resolution requiring that you serve a third year of probationary teaching status for the 1975-76 school year.
"The reason for placing you on [a] third year has been discussed with you by your building administrators and these reasons were reviewed at the April 1, 1975, Board of Education meeting.”
On April 28, 1975, plaintiff sought a writ of mandamus directing that she be granted tenure status. Plaintiff contended that the Board, in placing her on a third year of probation, should have complied with the procedures set forth in MCL 38.83; MSA 15.1983 as well as MCL 38.82; MSA 15.1982. The Board contended that it was only required to follow the provisions of MCL 38.82; MSA 15.1982.
MCL 38.82; MSA 15.1982 states:
"No teacher shall be required to serve more than 1 probationary period in any 1 school district or institution: Provided, That a third year of probation may be granted by the controlling board upon notice to the tenure commission.”
MCL 38.83; MSA 15.1983 states:
"At least 60 days before the close of each school year the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory. Failure to submit a written statement shall be considered as conclusive evidence that the teacher’s work is satisfactory. Any probationary teacher or teacher not on continuing contract shall be employed for the ensuing year unless notified in writing at least 60 days before the close of the school year that his services will be discontinued.”
The trial court found that the provisions "must be considered together when a teacher is granted a third year of probation”.
The Court of Appeals held:
"These sections must be considered together. Grant of a third year’s probation is not a substitute for the written notice provided in § 3. If the school board desired to grant a third year of probation, the statute required written notice to plaintiff that her work had not been satisfactory; otherwise, she was entitled to tenure.” 70 Mich App 305, 307-308; 245 NW2d 728 (1976).
We granted leave to appeal to provide a definitive answer to this question of first impression.
III. Purpose of the Teacher Tenure Act
In Wilson v Flint Board of Education, 361 Mich 691; 106 NW2d 136 (1960), this Court, in interpreting what is now MCL 38.83; MSA 15.1983 noted the deplorable conditions which led to the enactment of the teacher tenure act. The Court said:
"The statute above referred to, from which pertinent excerpts were quoted, represents Michigan’s participation in a national movement directed towards the reduction of the large turnover in the teaching profession. A study in the Michigan Law Review describes the problem in these terms:
" 'The large turnover in the profession was due in part to certain practices which were widespread throughout the country; among them may be noted discharge (1) because of political reasons, (2) because of nonresidence in the community, (3) in order to make places for friends and relatives of board members or influential citizens, (4) in order to break down resistance to reactionary school policies, and (5) in order to effect economies either by diminishing the number of teachers and increasing the amount of work assigned to those retained, or by creating vacancies to be filled by lower salaried, inexperienced employees. Of these practices the first was exceedingly influential in the growth of the tenure movement, some of the more notorious cases of political dismissal challenging the attention of the public to the injury to professional morale and efficiency resulting from the misuse of the control vested in the administrative agencies. The remedy for such abuses was sought in legislation designed to strip the school boards of their autocratic power and to prescribe for them rules of administrative action which would ensure a greater degree of security to their employees.’
"It is against this background of the evils sought to be cured by statutory enactment that we proceed to an interpretation thereof.” 361 Mich 691, 693-694.
It is with these things in mind that we at this time must continue to interpret the teacher tenure act. Without the knowledge that such conditions existed and may now only be prevented by the act, some of us may lose sight of the objective of the act, the protection of teachers in the security of their tenure. These goals also apply to teachers still in the probationary period. In Munro v Elk Rapids Schools, 383 Mich 661; 178 NW2d 450 (1970), the present Chief Justice’s dissent, which on rehearing became the majority opinion, 385 Mich 618; 189 NW2d 224 (1971), stated:
"We are saying that the intent of the entire act was to eliminate capricious and arbitrary employment policies of local school boards. This includes the probationary as well as the tenure period of employment.” 383 Mich 661, 691.
The interpretation of any section of the act must be consistant with its letter and spirit, for only then can we hope to maintain the purpose of the legislation. With this always in mind, we interpret the provisions in question.
IV. Statutory Interpretation
Where two statutory provisions are in question it is axiomatic that meaning must be given to both, if that is at all possible. Borden, Inc v Dep’t of Treasury, 391 Mich 495, 523; 218 NW2d 667 (1974) (opinion by Williams, J.). This would seem particularly true with respect to the two statutory provisions here in question, since they are immediately adjacent and the statute does not specify that either section overrules the other.
We are therefore, as a matter of statutory interpretation, in the position that we must require observance of MCL 38.83’s provision for "a definite written statement as to whether or not his [the probationary teacher’s] work has been satisfactory” along with observance of MCL 38.82’s "a third year of probation may be granted by the controlling board upon notice to the tenure commission” unless the granting of a third year’s probation pursuant to MCL 38.82; MSA 15.1982 is incompatible with the school board giving notice to a probationary teacher as to the satisfactory or unsatisfactory nature of the teacher’s work.
To ask this question is in effect to answer it. There is obviously no physical, rational or legal reason why a school board cannot advise the ten ure commission of its intention to grant a third year of probation and also advise the teacher whether or not the teacher’s work was satisfactory. What is more, there is good logic and policy to observe both MCL 38.82; MSA 15.1982 and MCL 38.83; MSA 15.1983.
MCL 38.82’s notice to the tenure commission advises that body that the teacher continuing after the second year is not on tenure as otherwise would be the case. This is useful information and there is nothing in MCL 38.83 to require that it should not be given.
Likewise, MCL 38.83’s statement to the teacher of the satisfactory or unsatisfactory nature of his or her work is useful information, and there is no reason in MCL 38.82 why it should not he required.
Observance of MCL 38.83’s notice is required because: one, it is physically possible without in any way impinging upon the notice required in MCL 38.82; two, it is supported by logic and good policy; and three, not to observe it fails to give meaning to the clear and simple mandate of MCL 38.83.
One, it is unnecessary to consider whether giving the two notices required by MCL 38.82 and MCL 38.83 is mutually incompatible physically, because it obviously is not physically incompatible.
Two, it is worth considering a little more fully why it is compatible to require MCL 38.83’s notice when under MCL 38.82 a third year’s probation is being granted. The main reason is that the reasons for advising a teacher of the satisfactory or unsatisfactory character of the teacher’s work are important, whether the teacher is just finishing the first probationary year, being terminated at the end of the second or being granted a third probationary year.
The written notice which must be given to the teacher in accordance with the requirements of MCL 38.83; MSA 15.1983 performs two functions which are related in addition to the function of preventing arbitrary discharge as contended by my Sister Coleman. The first is to give time to the teacher to consider how best to implement his or her career plans. The second is to inform the teacher as to the character of the teacher’s work, so that the teacher will be able to make his or her services acceptable and productive. The relationship between the two functions is actually more evident in instances of a grant of a third year of probation. By understanding the board’s view of the character of the teacher’s work, the teacher is able to constructively evaluate the situation. On the one hand, the teacher can analyze what he or she must do to satisfy board requirements. On the other hand, he or she can intelligently and realistically decide whether or not it would be useful to undertake to achieve tenure during the third probationary year. In some instances, there may be philosophical or other areas of disagreement between the teacher and the board which cause the teacher to realize that he or she will never be able to satisfy that particular board and therefore the third year of probation would be pointless.
Three, the language of MCL 38.83; MSA 15.1983 requires:
"At least 60 days before the close of each school year the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory.” (Emphasis added.)
It is impossible to give meaning to that requirement without mandating such notice be given. As already observed there is no physical or policy reason evoked by granting a third year’s probation hindering the observance of such a mandate. There is certainly no language in MCL 38.82; MSA 15.1982 precluding it.
V. Conclusion
Proper statutory interpretation requires us to give meaning to the mandatory notice in MCL 38.83; MSA 15.1983 unless doing so is incompatible with the notice required in MCL 38.82; MSA 15.1982. There is no incompatibility whatsoever. Furthermore, there is good reason to require that a teacher be advised as to what a school board believes are that teacher’s strengths and weaknesses, in anticipation of a third probationary year. This gives the teacher and the board the best opportunity of the teacher’s making the third year a success. Or, in the alternative, the teacher can weigh whether, under the circumstances, the chances of a successful third year are good enough to warrant trying the third probationary year rather than something else.
For these reasons, we hold that the notice required in MCL 38.83; MSA 15.1983 must be given whether or not the controlling board elects to grant a third probationary year under MCL 38.82; MSA 15.1982.
Affirmed.
J. Blair Moody, Jr., J., concurred with Williams,
The discussion of the board of education, the administration, plaintiff, her mother and her union representative actually took place at a special meeting on March 25, 1975, when the matter was tabled. The formal resolution to continue probation was made at a regular board meeting on April 8, 1975 and a letter was sent on the same date to plaintiff and the Michigan teacher tenure commission.
Compliance with MCL 38.82; MSA 15.1982 alone as contended by defendant would not even require that the teacher be made aware that tenure had not been granted. It is true in this instance that the teacher was informed but without stated reasons, but we do not find it to be the intent of the Legislature to leave to the discretion of the controlling board whether or not to notify the teacher that a third year of probation has been granted instead of tenure. | [
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] |
Michael J. Kelly, P.J.
Plaintiff, Amway Corporation, appeals from a Court of Claims order denying its motion for summary disposition and dismissing its complaint against defendant, Michigan Department of Treasury.
Amway is a Michigan corporation which manufactures and sells products to independent distributors in all fifty states. Amway operates several regional warehouses, called distribution centers, to supply its distributors. Amway uses a fleet of leased trucks to transport its products to the centers. These trucks are registered in Michigan. Amway also uses a fleet of aircraft to transport its employees to various locations.
The Single Business Tax Act, MCL 208.1 et seq.; MSA 7.558(1) et seq., levies a tax on the privilege of doing business in Michigan. MCL 208.31(4); MSA 7.558(31)(4). If a business is involved in interstate commerce, its tax base is apportioned by a formula to determine the percentage of business activity attributable to Michigan. MCL 208.45; MSA 7.558(45).
Amway filed single business tax returns for the fiscal years 1976 through 1979. In the returns for 1976-78, Amway included one hundred percent of the value of its truck and aircraft fleets as Michigan property for the purpose of determining the numerator of the property factor in the apportionment formula under MCL 208.46; MSA 7.558(46). The returns also included estimates of value of Amway’s construction in progress in Michigan and elsewhere for the purpose of determining the numerator and denominator of the property factor under § 46.
In August of 1980, the Department of Treasury audited Amway’s single business tax liabilities for 1976-79. In February of 1982, the department issued a notice of intent to assess additional single business taxes of around $761,000 plus interest for 1976-79. In March of 1982, Amway filed amended single business tax returns for the years 1976-78, in which it treated property and sales items the same way as it had done on its 1979 return. In these amended returns, Amway apportioned the value of its truck and aircraft fleet to include only the time that that mobile property spent in Michigan to determine the property factor under § 46. The value of Amway’s construction in progress was deleted entirely from the numerator and denominator of the property factor. Amway sales made in the State of Kentucky were not included in the Michigan sales factor for the purpose of determining the numerator of the sales factor in the apportionment formula under MCL 208.51; MSA 7.558(51). Amway claimed a tax refund of around $142,000.
A department hearing referee conducted a conference between Amway and the department in May of 1982. The referee issued a report containing his conclusions in January of 1984. The referee rejected Amway’s arguments, concluding that one hundred percent of Amway’s mobile property should be considered Michigan property under §46, that one hundred percent of the value of Amway’s construction in progress should be used to determine the property factor under § 46, and that Amway sales made in Kentucky should be considered Michigan sales for the purpose of determining the sales factor because Amway was not subject to taxation in Kentucky. The department’s notice of intent was finalized and issued.
In June of 1984, Amway paid assessed taxes and accrued interest of around $1,168,000. Amway demanded a refund of about $512,000 for taxes erroneously assessed for years 1976-79, plus interest on that amount and interest on properly assessed taxes incurred due to the delay in processing its case. In July of 1984, Amway objected to the notice of intent to assess. The department upheld the assessment. In December, 1984, Amway filed a complaint in the Court of Claims, alleging that the department erred in failing to (1) apportion the mobile property, (2) exclude the value of its construction in progress, and (3) exclude its Kentucky sales from Michigan sales. Amway moved for summary disposition pursuant to MCR 2.116(C)(10). The court denied Amway’s motion and granted summary disposition to the department pursuant to MCR 2.116(I)(2), dismissing Amway’s complaint. Amway appeals this dismissal, raising four issues on appeal.
i
Amway claims that the lower court erred in holding that the department correctly concluded that the entire value of Amway’s mobile property be included as Michigan property in the numerator of the property factor under § 46. Amway argues that the Single Business Tax Act requires use in the state as a prerequisite for the inclusion of the property’s value in determining the property factor under § 46 of the act. We disagree.
Section 46 of the Single Business Tax Act provides:
The property factor is a fraction, the numerator of which is the average value of the taxpayer’s real and tangible personal property owned or rented in this state during the tax year and the denominator of which is the average value of all the taxpayer’s real and tangible personal property owned or rented during the tax year. [MCL 208.46; MSA 7.558(46).]
This language does not state that the property must actually be used in Michigan, nor can such a use requirement be inferred. A cardinal rule of statutory interpretation is that a court not speculate regarding the probable intent of the Legislature beyond the words employed in the statute; where statutory language is clear and unambiguous, the statute must be applied rather than interpreted. Pi-Con, Inc v AJ Anderson Construction Co, 169 Mich App 389, 395; 425 NW2d 563 (1988). Another principle of statutory construction is that the express mention of one thing implies exclusion of other similar things. Elliott v Genesee Co, 166 Mich App 11, 15; 419 NW2d 762 (1988). We note that the Legislature has included a use requirement in the language of other tax statutes. MCL 206.116; MSA 7.557(1116). Had the Legislature intended to impose a use requirement under § 46 of the Single Business Tax Act, it would have done so in the words and language of the section. In the absence of such an explicit requirement, we decline to inject a use requirement into the otherwise clear and unambiguous statutory language.
The department correctly concluded that Amway’s mobile property should be considered Michigan property for the purpose of computing the numerator of the property factor under § 46. The trial court did not err in granting summary disposition to defendant on this issue.
ii
Amway claims that the lower court and the department erroneously concluded that the value of Amway’s property under construction should be used to determine its property factor under § 46 of the act. Amway argues that because this property was not yet in use in Michigan, its value cannot be used to determine the property factor under § 46. We disagree. As previously noted, there is no explicit or implicit "use requirement” under § 46; the only requirement is that this property be either owned or rented in this state. MCL 208.46; MSA 7.558(46). Since Amway’s property under construction was owned in the State of Michigan, the department correctly concluded that its value should be used to calculate the property factor under § 46. The trial court did not err in granting summary disposition to defendant on this issue.
hi
Amway also claims that the lower court erred by concluding that the department correctly considered its Kentucky sales as Michigan sales for the purpose of determining the numerator of Amway’s sales factor under § 51 of the Single Business Tax Act. Amway argues that it was subject to taxation in Kentucky for the purposes of the act, so its sales in Kentucky should not be considered Michigan sales under the act. We disagree.
Section 51 of the act defines the sales factor:
The sales factor is a fraction, the numerator of which is the total sales of the taxpayer in this state during the tax year, and the denominator of which is the total sales of the taxpayer everywhere during the tax year. [MCL 208.51; MSA 7.558(51). Emphasis added.]
Section 52 of the act defines when sales are considered to be in Michigan:
Sales of tangible personal property are in this state if:
(a) The property is shipped or delivered to a purchaser, other than the United States government, within this state regardless of the free on board point or other conditions of the sales.
(b) The property is shipped from an office, store, warehouse, factory, or other place of storage in this state and the purchaser is the United States government, or the taxpayer is not taxable in the state of the purchaser. For the purposes of this subdivision only, "state” means any state of the United States, the District of Columbia, the commonwealth of Puerto Rico, any territory or possession of the United States, or political subdivision thereof. [MCL 208.52; MSA 7.558(52). Emphasis added.]
Section 42 of the act defines the circumstances under which a taxpayer is considered taxable in another state:
For purposes of apportionment of the tax base from business activities under this act, a taxpayer is taxable in another state if, (a) in that state he is subject to a business privilege tax, a net income tax, a franchise tax measured by net income, a franchise tax for the privilege of doing business or a corporate stock tax, a tax of the type imposed under this act, or (b) that state has jurisdiction to subject the taxpayer to 1 or more of the taxes regardless of whether, in fact, the state does or does not. [MCL 208.42; MSA 7.558(42). Emphasis added.]
Although Amway did pay a nominal fee when it filed its annual reports in Kentucky, it is not presently subject to any taxation by the State of Kentucky. But, Amway argues, Kentucky has jurisdiction to subject it to one or more of these taxes so it is still taxable in Kentucky under § 42b. We disagree with this assertion. States cannot impose a tax upon sales, income, or the privilege of doing business within a state unless there is a substantial nexus between the state and the business being taxed. 15 USC 381, 383; Complete Auto Transit, Inc v Brady, 430 US 274, 279; 97 S Ct 1076; 51 L Ed 2d 326 (1977), reh den 430 US 976 (1977). Amway did not have employees in Kentucky or own or rent property in that state. Although Amway apparently did solicit orders and make sales in Kentucky through independent contractors and is registered to do business in Kentucky, these activities do not constitute a sufficient nexus to allow Kentucky to tax Amway. 15 USC 381(a), (c). Amway has no nexus with Kentucky by which that state could legally subject Amway to a tax. Since Kentucky does not have jurisdiction to tax Amway, Amway is not taxable by Kentucky under §42. Thus, Amway’s Kentucky sales are considered Michigan sales under §§ 51 and 52.
The department correctly considered Amway’s Kentucky sales as Michigan sales for the purpose of determining the numerator of Amway’s sales factor under § 51.
iv
Amway also argues that it is entitled to a refund of the interest that accrued due to the department’s delay in processing its case. We disagree.
An abatement of interest may be an appropriate remedy when interest accrues due to excessive delays which are not attributable to the taxpayer. Holloway Sand & Gravel Co, Inc v Dep’t of Treasury, 152 Mich App 823, 837; 393 NW2d 921 (1986); Master Craft Engineering, Inc v Dep’t of Treasury, 141 Mich App 56, 74-75; 366 NW2d 235 (1985). The department did take a long time to process Amway’s case. However, this does not entitle Amway to an abatement of interest. Unlike the Holloway or Master Craft cases, the department was not operating under any statutory time constraints in this case. Additionally, Amway has not shown that this delay prejudiced it in any way. Since Amway did not pay the department’s assessment until June of 1984, it had the use of the money owed to the state during that delay. Amway is not entitled to a refund of interest accrued.
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] |
Rehearing denied.
Reported at 402 Mich ante, p 315. | [
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] |
Per Curiam.
Respondent City of Sterling Heights (Sterling Heights) appeals as of right from an order of the Michigan Employment Relations Commission directing Sterling Heights to restore Robert Gulley to the position of finance director and reimburse him for all wages lost as a result of his termination in violation of § 10(l)(c) of the public employment relations act, MCL 423.210(l)(c); MSA 17.455(10)(l)(c), which prohibits discrimination in hiring, terms, or other conditions of employment in order to encourage or discourage membership in a labor organization. We affirm.
Gulley was appointed finance director for Sterling Heights in January, 1976. On June 16, 1986, while on extended sick leave, Gulley was notified of his nonreappointment. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-Technical Office, Professional Department filed an unfair labor practice charge on behalf of Gulley against Sterling Heights, alleging that Gulley was not reappointed because of his participation in lawful organizational activity under MCL 423.209; MSA 17.455(9).
In July, 1985, Gulley engaged in organizing activity among administrative employees. The UAW was eventually elected as bargaining representative for residual supervisory city employees. Sterling Heights challenged the inclusion of certain positions in the residual supervisory bargaining unit, including the position of finance director. In UAW v Sterling Heights, 163 Mich App 8, 14; 413 NW2d 716 (1987), this Court held that the finance director, an executive employee, should be excluded from the residual supervisory bargaining unit.
In this appeal, Sterling Heights argues that the pera does not protect executive employees and, therefore, this Court’s prior finding that the position of finance director is executive mandates reversal of the merc decision and dismissal of the unfair labor practice charge arising out of Gulley’s non-reappointment. We disagree.
The definition of public employee contained in the pera does not exclude a supervisor or an executive. MCL 423.202; MSA 17.455(2) defines “public employee”:
No person holding a position by appointment or employment in the government of the state of Michigan, or in the government of any 1 or more of the political subdivisions thereof, or in the public school service, or in any public or special district, or in the service of any authority, commission, or board, or in any other branch of the public service, hereinafter called a "public employee,” shall strike.
Our finding that Gulley was an executive and, therefore, should have been excluded from the residual supervisory bargaining unit did not strip Gulley of the protections afforded by the pera. See Hillsdale Community Schools v Labor Mediation Bd, 24 Mich App 36; 179 NW2d 661 (1970), lv den 384 Mich 779 (1970); Dearborn School Dist v Labor Mediation Bd, 22 Mich App 222; 177 NW2d 196 (1970). As explained in Detroit Bd of Ed v Local 28, Organization of School Administrators & Supervisors, AFL-CIO, 106 Mich App 438, 443, n 2; 308 NW2d 247 (1981), lv den 413 Mich 859 (1982):
Under the definition contained in MCL 423.2(e); MSA 17.454(2)(e), the term "employee” does not include "any individual employed as an executive or supervisor.” However, we note that this definition does not apply to public employees, which have been statutorily designated in MCL 723.202; MSA 17.455(2). Thus, since the definition of 'public employee’ includes all persons in the service of the state (including executives or supervisors), the rights granted in MCL 423.209; MSA 17.455(9) apply to all such employees. The statute provides:
"It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.”
The executive exclusion, as applied to public employees, is thus based upon the Commission’s power to delineate appropriate bargaining units. As noted in Dearborn School Dist v Labor Mediation Board, 22 Mich App 222, 228; 177 NW2d 196 (1970), MCL 423.9(e); MSA 17.454(10.4) "does not prohibit those employees engaged in executive or supervisory positions from organizing, but only that they shall not be included in a bargaining unit containing nonsupervisory employees in the same plant or business enterprise.”
Sterling Heights points out that the merc has declined to follow Detroit Bd of Ed, supra, construing the statement quoted as dicta. Instead, the merc has analogized to federal cases construing the National Labor Relations Act. The nlra, however, specifically excludes "supervisors” from its definition of "employee,” 29 USC 152(3), as does the act governing labor relations between the federal government and federal government employees, 5 USC 7103(a)(2). In contrast to the federal statutes and in contrast to the definition of employee contained in MCL 423.2(e); MSA 17.454(2)(e), the definition of public employee under pera does not contain an exclusion for executive or supervisory employees. The statutory language compels a conclusion that the Legislature did not intend to except executive and supervisory employees from the pera coverage.
We hold that Gulley was a public employee under MCL 423.202; MSA 17.455(2) entitled to participation in lawful organizational activity under MCL 423.209; MSA 17.455(9), without interference or restraint or coercion by Sterling Heights, MCL 423.210(l)(a); MSA 17.455(10)(l)(a), and entitled to be free from discrimination in regard to hiring, terms, or other conditions of employment in order to encourage or discourage membership in a labor organization, MCL 423.210(l)(c); MSA 17.455(10)(l)(c).
Sterling Heights also challenges the merc’s determination that the decision not to reappoint Gulley was discriminatory under MCL 423.210(l)(c); MSA 17.455(10)(l)(c). When reviewing a merc decision, this Court determines whether the decision is authorized by law and whether the commission’s findings are supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, §28; MCL 423.216(e); MSA 17.455(16)(e); MESPA v Evart Public Schools, 125 Mich App 71, 73; 336 NW2d 235 (1983), lv den 417 Mich 1100.32 (1983).
In evaluating the uaw’s claim that Sterling Heights’ decision not to reappoint Gulley was motivated by antiunion animus in violation of MCL 423.210(l)(c); MSA 14.455(10)(l)(c), the merc applied the standard of proof adopted by this Court in Evart Public Schools, supra, p 74.
[W]here it is alleged that a discharge is motivated by antiunion animus the burden is on the party making the claim to demonstrate that protected conduct was a motivating or substantial factor in the decision of the employer to discharge the employee. Once this showing is established, the burden then shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. The burden of the employer is one of going forward to meet the prima facie case established by the employee. It is not a burden of persuasion on the ultimate issue of the existence or nonexistence of a violation. It is a balancing of the evidence. If the employer, by credible evidence, balances the employee’s prima facie case, the employer’s burden of proof is met and the duty of producing further evidence shifts back to the employee. The burden of the employer referred to is a burden of production of evidence to meet the prima facie case of the employee. If the burden of the employer is met, the burden is then once again on the employee.[ ]
Accord, Schoolcraft College Ass’n of Office Personnel v Schoolcraft Community College, 156 Mich App 754, 763; 401 NW2d 915 (1986), lv den 428 Mich 895 (1987). See MERC v Reeths-Puffer School Dist, 391 Mich 253, 260; 215 NW2d 672 (1974).
The merc very thoroughly reviewed the evidence presented at the hearing before the hearing officer. The evidence showed that the unionization of Sterling Heights administrative employees was a highly-charged issue within the city, that Gulley was a vocal supporter of unionization, that during council discussions concerning the consequences of unionization a council member vowed to "get Mr. Gulley” for organizing, and that this council member subsequently became mayor and held that position when the decision was made not to reappoint Gulley. While evidence was also presented concerning deficiencies in Gulley’s performance, a fact recognized by the merc in its decision, the commission concluded:
[W]e believe that the evidence as a whole supports a finding that Gulley would not have been terminated in June, 1986 but for his union activities. As the record shows, City Manager Ives had only a little over three weeks in which to evaluate Gulley’s abilities before Gulley left on sick leave. Less than two weeks after coming on board (two days of which were taken up by a merc hearing), Ives began keeping a separate file to record Gulley’s deficiencies. Less than one week after starting his job, Ives was complaining to ex-Acting City Manager Schoenherr at the merc hearing about Gulley’s "attitude” problem. During two weeks following this hearing, Ives wrote memos to Gulley asking for information or giving instructions almost every day on which he (Ives) was in town. There is no indication that Ives focused such attention on any other department head, nor does the record clearly establish that the problems in the finance department were so acute on [sic-or?] Gulley’s responsibility for these problems so great as to warrant this attention. As noted above, these events took place in the middle of a Charging Party organizing drive in which Gulley had played a prominent part and in the context of an explicit threat by Respondent’s mayor to "get” Gulley for these activities. Having carefully weighed all of the evidence presented in this case, we conclude that the record supports a finding that Gulley’s union activity was the "but for” cause of his termination as finance director of Respondent in June, 1986.
The merc, decision is supported by competent, material, and substantial evidence on the whole record.
Affirmed.
The burden of proof standard adopted in Evart Public Schools, supra, was derived from NLRB v Wright Line, A Division of Wright Line, Inc, 662 F2d 899 (CA 1, 1981), cert den 455 US 989; 102 S Ct 1612; 71 L Ed 2d 848 (1982), and approved by the United States Supreme Court in NLRB v Transportation Management Corp, 462 US 393; 103 S Ct 2469; 76 L Ed 2d 667 (1983). | [
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Per Curiam.
This appeal arises from the fatal shooting of decedent on June 28, 1984, at about 2:00 a.m. in front of defendant Lawson Company’s store located on West Seven Mile Road in Detroit. Decedent, who was apparently the boyfriend of one of defendant Lawson’s employees, was shot and killed as he helped another Lawson employee shut the store’s front gate at closing time. At the time of the shooting, a security guard employed by defendant Guardian Guard Services, Inc., was two to fifteen feet away. The guard was unarmed, as provided by the contract between Lawson and Guardian Guard, and did not intercede when a man rounded the corner carrying a rifle and demanded the store’s money bags. After a Lawson employee replied that there were no money bags, the gunman opened fire and decedent was fatally injured.
Plaintiff commenced a wrongful death action against defendants. Paragraphs 9 and 11 of the complaint allege that both defendants owed a duty "to use due care and caution under the circumstances to protect the . . . safety ... of [business] invitees upon its premises by taking reasonable precautions under the circumstances to discourage and deter third persons from attempting to commit armed robberies and other crimes upon the premises and from harming invitees, and further to intercede on behalf of any invitees in the event that any such crime did occur upon the premises.” (Emphasis added.) Following this recital of alleged duties as against both defendants, paragraphs 10 and 12 list seven ways in which each defendant was alleged to have breached the duties quoted above.
The trial court granted defendants summary disposition based on this Court’s decision in Williams v Cunningham Drug Stores, Inc, 146 Mich App 23; 379 NW2d 458 (1985), lv gtd 425 Mich 871 (1986). Plaintiff appeals as of right from the trial court’s grant of summary disposition to defendants and its order denying rehearing.
In Williams, this Court held that as a matter of law and public policy a retail store’s duty to exercise reasonable care for the safety of its patrons does not extend to deterring or interceding in robberies by providing armed and uniformed security guards, i.e., providing police protection within the store. Id., p 26.
After the trial court’s decision in this case, our Supreme Court affirmed Williams in a six to one decision (Justice Archer concurring in the result), 429 Mich 495; 418 NW2d 381 (1988).
In affirming, our Supreme Court noted that as a general rule there is no duty that obligates one person to aid or protect another absent the existence of a special relationship between them. Id., p 499, citing 2 Restatement Torts 2d, § 314A, p 118. The Williams Court agreed with this Court that a merchant’s duty of reasonable care does not include providing armed, visible security guards to deter the criminal acts of third parties, and that the duty to provide police protection is vested in the government by constitution and statute. Id., p 501.
Plaintiffs claim that defendants owed the duty to deter and intercede in the criminal acts of another is tantamount to a claim that defendants had a duty to provide police protection against the criminal acts of others, which Williams expressly disapproved. In Marr v Yousif, 167 Mich App 358, 364; 422 NW2d 4 (1988), this Court followed Williams in holding that commercial enterprises are under no duty to provide armed and uniformed security guards to deter and intercede in armed robberies. The Marr Court noted that to hold otherwise would be to impose strict liability in the guise of negligence. Id.
Since defendants did not owe plaintiffs decedent the duties alleged by plaintiff, the issues of breach and proximate cause are not reached, and summary disposition under MCR 2.116(C)(8) was proper. Therefore, we do not reach plaintiffs remaining claims of error. Butrick v Synder, 236 Mich 300, 306; 210 NW 311 (1926); Schenk v Mercury Marine Division, Lowe Industries, 155 Mich App 20, 24-25; 399 NW2d 428 (1986).
Affirmed. | [
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] |
Per Curiam.
Gary McClure died as a result of injuries he suffered when he was struck by an automobile while crossing the street from the plant where he was employed to the Fleetwood Inn during his 30-minute lunch break. The question in this worker’s compensation case is whether McClure’s death arose out of and in the course of his employment. We conclude that it did.
I
Testimony was received that plaintiff worked an 8-1/2 hour shift and was paid for 8 hours. The Workmen’s Compensation Appeal Board found that he was not paid for the 30-minute lunch period. The total work force on that shift at the Fleetwood plant was estimated to be 1800 to 2500 persons, 50 to 100 of whom habitually crossed Fort Street during their lunch hour to eat at the Fleet-wood Inn, located some 75 yards away. The Fleet-wood Inn apparently depended on the workers for its business, since it closed during model changeover.
General Motors exerted no control over the lunch period and the employees were allowed to eat at the Fleetwood Inn. However, as required by its agreement with the United Auto Workers, General Motors had on its premises a cafeteria seating 500 persons and lunch wagons that included some hot sandwiches.
During McClure’s 30-minute lunch period, on April 14, 1973, McClure and three coworkers left the plant gates on West End Avenue, and went north to Fort Street where there was a traffic light, but did not cross. Instead, they proceeded on the south side of Fort Street about 100 yards to a point across from the Fleetwood Inn. Although there was no cross-walk there, McClure attempted to run across Fort Street. He was struck by an automobile in the traffic lane on the Fleetwood Inn side of Fort Street, approximately 50 to 75 yards from the factory. He died from his injuries on November 8, 1973, never having left the hospital.
The administrative law judge awarded benefits on September 19, 1974, but the appeal board reversed on October 13, 1976, and the Court of Appeals denied leave to appeal on March 25, 1977.
II
Defendant argues that the appeal board was correct because plaintiffs uncompensated, off-premises trip to the Fleetwood Inn was required neither directly by his employment nor indirectly because of inadequate facilities for lunch at the plant.
We do not find decisive the fact that General Motors maintained a cafeteria and lunch wagons. McClure and his coworkers apparently felt that the Fleetwood Inn had something to offer that the cafeteria and the lunch wagons did not.
In Howard v Detroit, 377 Mich 102; 139 NW2d 677 (1966), an employee bus driver had a morning run and an afternoon run with from 45 minutes to 5 hours in between on different days. While food was available at the terminal, Howard normally went home and was going home the day he was injured. In concluding that the bus driver was entitled to worker’s compensation benefits, the Howard Court specifically observed that no incident of his employment required him to leave the terminal during the five-hour interval or required, if he did choose to leave, that he travel by automobile. But "it was”, said Justice O’Hara speaking for this Court, "a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured”. 377 Mich 110.
Here, too, "it was a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured”. It was as an incident of the employment relationship that McClure found himself in the trafile lane on the Fleetwood Inn side of Fort Street approximately 50 to 75 yards from the factory during his lunch break on April 14, 1973.
On order of the Court, the application for leave to appeal is considered and, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we remand the case to the Workmen’s Compensation Appeal Board for further proceedings consistent with this opinion.
Kavanagh, C.J., and Williams, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred.
See, also, Thomas v Certified Refrigeration, Inc, 392 Mich 623, 631-632; 221 NW2d 378 (1974), and Burchett v Delton-Kellogg School, 378 Mich 231, 234; 144 NW2d 337 (1966).
Recognizing that McClure’s injury and death arose out of and in the course of his employment does not require abandonment of the general rule that injuries sustained while going to or coming from work do not arise out of and in the course of one’s employment, except as modified by MCLA 418.301(2); MSA 17.237(301)(2). | [
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Per Curiam.
Defendant appeals as of right from his bench conviction of two counts of involuntary manslaughter, MCL 750.321; MSA 28.553. Defendant was sentenced to concurrent terms of imprisonment of three to fifteen years.
At approximately 1:30 a.m. on June 8, 1985, defendant, driving a 1970 Chevrolet pickup truck, was involved in a collision with a 1983 Ford Tempo. The collision occurred at the intersection of Hickory Ridge Road and Rose Center Road in Rose Township, Oakland County. The occupants of the Ford car, Robert and Cecelia Bosak, were killed in the collision.
Following the collision, defendant was taken to the emergency room of a nearby hospital for treatment of various lacerations. Pursuant to the order of the supervising physician, blood was withdrawn from defendant for the purposes of medical treatment. An analysis of the blood sample indicated a blood alcohol level of 0.165 percent. Over defendant’s objection, the results of the blood-alcohol test were admitted as evidence under MCL 257.625a(9); MSA 9.2325(1)(9).
The trial court issued its decision from the bench. The court found, as a matter of fact, that (1) the defendant had disregarded and failed to stop at the stop sign posted at the Hickory Ridge and Rose Center intersection, (2) the defendant failed to yield the right-of-way at the intersection, and (3) defendant was under the influence of intoxicating liquors at the time of the accident. The court concluded that the prosecution had proven, beyond a reasonable doubt, that the defendant was guilty of gross negligence, resulting in the death of the Bosaks. On appeal, defendant argues he is entitled to reversal of his conviction because the conviction was not supported by sufficient evidence, the results of the blood-alcohol test were erroneously admitted, and testimony of the prosecution’s expert witness was not supported by an adequate factual foundation.
Subsequent to trial in this matter, a panel of this Court issued its opinion in People v Perlos, 170 Mich App 75; 428 NW2d 685 (1988), holding MCL 257.625a(9); MSA 9.2325(1)0) unconstitutional in that it permits unreasonable searches and seizures of drivers’ blood in violation of the federal and state constitutions, US Const, Am IV; Const 1963, art 1, § 11, and violates state and federal guarantees of equal protection, US Const, Am XIV, § 1; Const 1963, art 1, § 1. We fundamentally disagree with the Perlos decision and will devote the majority of this opinion to our analysis of the constitutional issue. However, we will first briefly discuss the other two issues raised by defendant, neither of which requires reversal.
i
We review defendant’s claim of insufficient evidence to support his conviction for involuntary manslaughter by looking at the evidence in the light most favorable to the prosecution and then determining whether a rational trier of fact could find all of the essential elements of the crime were proven beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268-270; 380 NW2d 11 (1985). The crime of involuntary manslaughter is established upon a showing that the defendant acted in a grossly negligent, wanton or reckless fashion in causing the death of another. People v Harris, 159 Mich App 401, 406; 406 NW2d 307 (1987). Defendant argues that the evidence was insufficient to prove him grossly negligent beyond a reasonable doubt. We disagree.
Gross negligence requires:
"1. Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.
"2. Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.
"3. The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.” People v Orr, 243 Mich 300, 307; 220 NW 777 (1928); CJI 16:4:08. [People v Sealy, 136 Mich App 168, 172-173; 356 NW2d 614 (1984), lv den 422 Mich 854 (1985).]
The first element is satisfied because the operation of an automobile requires the exercise of ordinary care and diligence. People v Allan, 158 Mich App 472, 475; 404 NW2d 266 (1987). Furthermore, the evidence showed that the intersection of Hickory Ridge Road and Rose Center Road was a particularly dangerous intersection due to a dip on Hickory Ridge Road which rendered it difficult for drivers on Rose Center Road who were approaching the intersection to see a vehicle in the dip. Several witnesses testified that drivers familiar with the intersection were aware of the particular danger, and, when approaching the intersection on Rose Center Road, stopped not only at the stop sign, which was posted fifty-six feet before the intersection, but again at fourteen feet from the intersection where the Hickory Ridge Road traffic was easier to view. By defense counsel’s own admission, defendant lived in the area for at least fifteen years. A rational trier of fact could have inferred that the defendant knew of the particular dangers presented by the intersection and that the exercise of ordinary care and diligence was necessary to prevent injury to another.
The second and third elements were satisfied as well. While the intersection was potentially dangerous, evidence was presented that no fatal accident had occurred at the intersection in twenty-four years and that harm could be avoided by the exercise of ordinary care and diligence. While testimony concerning defendant’s failure to stop at the posted stop sign on Rose Center Road and his driving at an excessive rate of speed were disputed, the trial court’s finding that defendant failed to stop at the sign or yield the right of way was certainly not clearly erroneous. Thus, even in the absence of the evidence of defendant’s intoxication, a rational trier of fact could have found that, under the circumstances (night time, defendant’s familiarity with the intersection, excessive speed, and failure to stop at the posted stop sign), defendant omitted to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.
n
Defendant also contends the trial court erred in admitting the testimony of Michigan State Police Trooper Richardson, an expert in accident reconstruction. We disagree.
The determination as to the qualification and admissibility of expert testimony is within the trial court’s discretion and will not be reversed on appeal absent a showing of abuse of that discretion. People v Badour, 167 Mich App 186, 192; 421 NW2d 624 (1988). The critical inquiry with respect to admitting expert testimony is whether such testimony will aid the factfinder in making the ultimate decision in the case. Kinzie v AMF Lawn & Garden, Division of AMF, Inc, 167 Mich App 528, 533; 423 NW2d 253 (1988), citing People v Smith, 428 Mich 98, 105; 387 NW2d 814 (1986). An opposing party’s disagreement with an expert’s interpretation of the facts, or the expert’s ultimate opinion, is an issue of credibility or weight of the testimony, not admissibility. Eide v Kelsey-Hayes Co, 154 Mich App 142, 155; 397 NW2d 532 (1986), modified on other grounds 431 Mich 26 (1988).
Defendant did not dispute Trooper Richardson’s qualification as an expert in accident reconstruction. The record reflects that Richardson’s testimony was helpful to the trier of fact. Specifically, his testimony with respect to the speed of the respective vehicles prior to the collision was critical to a factual determination of whether defendant had stopped at the posted stop sign or yielded the right of way. Additionally, Richardson’s testimony regarding which vehicle hit the other, based on his examination of the damage to the vehicles, was also helpful on the issue of defendant’s possible negligent conduct. Defendant’s assertion that much of Trooper Richardson’s testimony was not based on "first-hand knowledge,” but rather on facts and assumptions gathered by nonexperts, would not preclude its admission. Gainey v Sieloff (On Remand), 163 Mich App 538, 545; 415 NW2d 268 (1987).
Defendant also argues that Trooper Richardson’s testimony regarding the speed tests he conducted using a 1984 pickup truck was irrelevant to the determination of the acceleration capacity of de fendant’s 1970 vehicle given the mechanical differences between the two vehicles. In considering the admissibility of test results, it is not necessary " 'that the conditions should be exactly identical, but a reasonable or substantial similarity is sufficient.’ ” Jenkins v Frison Building Maintenance Co, 166 Mich App 716, 719; 421 NW2d 275 (1988), quoting Smith v Grange Fire Ins Co of Michigan, 234 Mich 119, 126; 208 NW 145 (1926).
"[T]he lack of exact identity affects only the weight and not the competency of the evidence, provided always that there is such a degree of similarity that evidence of the experiments made will accomplish the desideratum of assisting the jury to an intelligent consideration of the issues of fact presented.” [Id.]
The speed tests conducted by Richardson were particularly relevant to the issue of whether defendant had failed to stop at the stop sign, i.e., whether, given the speed of defendant’s truck at the time of impact, it was possible for defendant to have reached that speed by the point of impact if he had stopped at the stop sign. Any defects in similarity between the speed test vehicle and defendant’s vehicle did not undermine the usefulness of the evidence since it is highly probable that, if a much newer truck could not have reached thirty-seven miles per hour (the estimated minimum speed at impact) if it had stopped at the stop sign, defendant’s much older "rust bucket” would not have been able to have reached thirty-seven miles per hour if defendant had stopped at the stop sign. The trial court did not abuse its discretion in admitting Trooper Richardson’s testimony.
hi
Defendant England was not under arrest when he was taken to the hospital following the accident. The record appears to indicate that defendant was, at least, semiconscious upon his arrival at the hospital. It is undisputed that defendant’s blood was drawn for purposes of medical treatment. One of the medical tests performed on the blood sample was a blood alcohol level test. The prosecutor obtained the hospital records containing the blood alcohol test results under MCL 257.625a(9); MSA 9.2325(1)(9) which provides:
If after an accident the driver of a vehicle involved in the accident is transported to a medical facility and a sample of the driver’s blood is withdrawn at that time for the purpose of medical treatment, the results of a chemical analysis of that sample shall be admissible in a criminal prosecution for a crime described in subsection (1) to show the amount of alcohol or presence of a controlled substance or both in the person’s blood at the time alleged, regardless of whether the person had been offered or had refused a chemical test. The medical facility or person performing the chemical analysis shall disclose the results of the analysis to a prosecuting attorney who requests the results for use in a criminal prosecution as provided in this subsection. A medical facility or person disclosing information in compliance with this subsection shall not be civilly or criminally liable for making the disclosure.
Subsection (9) was added in 1982 when the Legislature amended the implied consent statute, MCL 257.625a; MSA 9.2325(1).
In Perlos, supra, p 88, a panel of this Court held subsection (9) unconstitutional because it allows a search and seizure without a warrant to be performed prior to arrest and without consent and in the absence of exigent circumstances. The Court further found subsection (9) violative of the constitutional guarantee of equal protection by denying conscious drivers who are in the hospital the same opportunity to refuse a blood test as is given to conscious drivers who are not in the hospital.
To sustain an attack on the propriety of a search or seizure, the challenged search or seizure must have infringed upon an interest which article 1, § 11 of the Michigan Constitution or the Fourth Amendment of the United States Constitution was designed to protect. People v Smith, 420 Mich 1, 28; 360 NW2d 841 (1984). Thus, our inquiry begins with the question of whether a search or seizure occurred which activated the constitutional protections. To be within the protections of the Fourth Amendment, the search must be performed by government agents or be a form of state action. United States v Jacobson, 466 US 109; 104 S Ct 1652; 80 L Ed 2d 85 (1984); Perlos, supra, p 81. The Perlos panel concluded that the withdrawal of blood under subsection (9) involved "sufficient governmental participation and authorization ... to constitute state action.” Perlos, supra, p 83.
The Court believed there to be "very little distinction for Fourth Amendment purposes between a prior request that blood be withdrawn and tested and a statutory mandate that once blood is withdrawn and tested, it must be turned over to the state.” Perlos, supra, p 82. The latter analysis, however, fails to recognize the distinction between the withdrawal of the blood and the turning over of blood test results to the state.
The "search” performed here, i.e., the removal of the blood sample from defendant, was done strictly for purposes of medical treatment and not at the direction of the police, the prosecutor, or state agents. Thus, the actual removal of the blood sample is not a search protected by the Fourth Amendment, since state action is not involved. Courts in other states have reached a similar conclusion. See Nelson v State, 650 P2d 426 (Alas, 1982); State v Jenkins, 80 Wis 2d 426; 259 NW2d 109 (1977); Turner v State, 258 Ark 425; 527 SW2d 580 (1975); State v Enoch, 21 Ore App 652; 536 P2d 460 (1975); Commonwealth v Gordon, 431 Pa 512; 246 A2d 325 (1968), cert den 394 US 937; 89 S Ct 1215; 22 L Ed 2d 469 (1969).
The state’s involvement consists of the seizure of the blood test results. Is such a seizure protected by the Fourth Amendment? The Michigan Supreme Court has adopted a two-pronged test which must be met to find that the object of a search and seizure is protected by the Fourth Amendment: (1) Did the defendant have a subjective expectation of privacy in the object of the search and seizure? (2) If so, is that expectation of privacy objectively reasonable, i.e., is that expectation one that society is prepared to recognize as reasonable? People v Catania, 427 Mich 447, 457; 398 NW2d 343 (1986), reh den 428 Mich 1206 (1987); Smith, supra, p 28.
Defendant has satisfied the first prong of the Smith/Catania test. We agree that he has a subjective expectation of privacy in his medical records as a consequence of the doctor-patient privilege, MCL 600.2157; MSA 27A.2157. However, the doctor-patient privilege was not recognized at common law. The privilege is an evidentiary rule, created by statute, and the scope of the privilege is determined by the privilege statute. People v Boucher, 131 Mich App 216, 220; 345 NW2d 670 (1983), lv den 419 Mich 911 (1984).
By enacting subsection (9) of the implied consent statute, the Legislature has chosen to limit the scope of the evidentiary privilege. By doing so, the people of the State of Michigan, through the action of their Legislature, have indicated that they do not recognize a reasonable expectation of privacy in the results of a blood alcohol test taken from the driver of a car in an accident, where the test was administered by a hospital stafF pursuant to medical treatment or diagnosis.
We do not find society’s view on expectation of privacy as evidenced by subsection (9) to be a dramatic departure from its views on this matter expressed elsewhere. Under the implied consent law, every person who operates a vehicle upon a public highway is considered to have given consent to a chemical test of the person’s blood, breath, or urine for determining the presence of alcohol or drugs. MCL 257.625c; MSA 9.2325(3). While a person arrested may refuse to consent to such a test, the consequence of a refusal is the suspension of the person’s license and the automatic addition of six points to the person’s driving record. MCL 257.625a(6); MSA 9.2325(1)(6). Moreover, notwithstanding the right to refuse consent, a court may nonetheless order the person to take the test. MCL 257.625a(6); MSA 9.2325(1)(6). Given the recognized expectations of society regarding the withdrawal of blood for purposes of administering a chemical test at the government’s order, it is hardly surprising that society is prepared to recognize as reasonable the government’s right to obtain the results of a blood test where the test had been administered for medical treatment.
We therefore conclude that subsection (9) of the implied consent statute is not unconstitutional under either US Const, Am IV or Const 1963, art 1, § 11.
IV
In Perlos, supra, pp 89-90, this Court also found subsection (9) of §625a to be violative of the federal and state guarantees of equal protection. US Const, Am XIV, § 1; Const 1963, art 1, § 1. The Court believed that no rational basis existed for classifying injured drivers who are not arrested and taken to the hospital differently from arrested drivers who are offered the opportunity to refuse consent to a blood test. We cannot agree.
In Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975), the Michigan Supreme Court set forth a two-tiered test for equal protection challenges:
If the interest is "fundamental” or the classification "suspect,” the court applies a "strict scrutiny” test requiring the state to show a "compelling” interest which justifies the classification. Rarely have courts sustained legislation subjected to this standard of review.
Other legislation, principally social and economic, is subjected to review under the traditional equal protection test. The burden is on the person challenging the classification to show that it is without reasonable justification. It has been said that "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” A classification will stand unless it is shown to be "essentially arbitrary.” New statutes have been found so wanting in "rationality” as to fail to satisfy the "essentially arbitrary” test.
Accord, Roy v Rau Tavern, Inc, 167 Mich App 664, 669; 423 NW2d 54 (1988).
If obtaining medical records of blood alcohol test results violated constitutional search and seizure protections, then a fundamental right would be implicated, triggering the strict scrutiny-compelling state interest test. However, we have already determined that the statute does not authorize unreasonable searches and seizures.
Due process in criminal matters is a fundamental interest that would trigger strict scrutiny. In re Contempt of Stone, 154 Mich App 121, 128; 397 NW2d 244 (1986), lv den 426 Mich 854 (1986). Due process protects a person from governmental deprivation of a liberty or property interest. Edmond v Corrections Dep't 143 Mich App 527, 533; 373 NW2d 168 (1985). As previously discussed, the scope of the privilege "right” is determined by statute. The only "deprivation” effected by subsection (9) is the deprivation of the right to assert the evidentiary doctor-patient privilege.
The second prong of the inquiry is whether the Legislature had a rational basis for enacting subsection (9). One possible rational basis is safety. If statutory procedure requires a driver involved in an accident to be arrested before the blood alcohol test were administered, the procedure would lead to delays in treatments for injured drivers while the arresting officers took the steps necessary for a legal arrest. Second, in an attempt to combat the tremendous cost in lives and property damage to our society, the Legislature has chosen "to ease the prosecution of drunk drivers [who have been involved in an accident] by making the results of blood alcohol tests performed by hospitals available to prosecutors, without the use of otherwise cumbersome procedures.” People v Stoney, 157 Mich App 721, 726; 403 NW2d 212 (1987). As the Michigan Supreme Court stated in O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 542; 273 NW2d 829 (1979):
"If it be said, the law is unnecessarily severe, and may sometimes do injustice, without fault in the sufferer under it, our reply is: these are considerations that may very properly be addressed to the legislature, but not the judiciary — they go to the expediency of the law, and not to its constitutionality.”
The responsibility for drawing lines in a society as complex as ours — of identifying priorities, weighing the relevant considerations and choosing between competing alternatives — is the Legislature’s, not the judiciary’s. Perfection is not required:
"[T]he drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.”
We find that subsection (9) is rationally related to the legislative goal of protecting the safety of both drivers and passengers traveling in our state.
v
Defendant alternatively asserts that the trial court erred in admitting into evidence blood test results because the prosecution failed to show that the results had been obtained pursuant to the statutory requirements. Specifically, defendant contends that the prosecution failed to prove that the blood sample had been taken by "a licensed physician, licensed nurse or medical technician.” MCL 257.625a(4); MSA 9.2325(1X4). People v Cords, 75 Mich App 415, 427; 254 NW2d 911 (1977). Defendant’s blood, however, was not withdrawn and offered into evidence under subsection (4) (which applies when blood is withdrawn pursuant to a police request). Where a blood test offered into evidence was withdrawn pursuant to police order, a demonstration of compliance with certain statutory requirements is particularly necessary in order to ensure the reliability of the test results. In the instant case, however, the police were not involved in the withdrawal of defendant’s blood. To be admissible under subsection (9), the prosecution must show that the blood on which the test results are based was withdrawn for the purpose of medical treatment. Here, the parties stipulated (and the evidence clearly demonstrated) that the blood drawn from defendant on which the test results were based was withdrawn for medical treatment. If the professionals knowledgeable in the field consider the test results sufficiently reliable for purposes of very significant decisions as to medical treatment, the inference is compelling that the Legislature considers the test results sufficiently reliable for evidentiary purposes. Therefore, the safeguards found in subsection (4) are not found in subsection (9). Accordingly, the trial court did not err in admitting the test results into evidence.
In conclusion, we affirm defendant’s convictions of manslaughter.
Affirmed.
We note that the Court of Appeals granted rehearing in Perlos on December 8,1988.
If the police had directed the hospital staff to take the blood sample, the Fourth Amendment protections would apply. However, the United States Supreme Court has held that no Fourth Amendment violation occurs where blood is taken from a defendant at the government’s order, without a warrant, and over the defendant’s objection. Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). In light of Schmerber, prior Michigan law holding such a search unconstitutional, Lebel v Swincicki, 354 Mich 427; 93 NW2d 281 (1958), is probably no longer good law. People v Keen, 396 Mich 573, 580; 242 NW2d 405 (1976); People v Cords, 75 Mich App 415, 422; 254 NW2d 911 (1977). However, under Michigan law, in the absence of a warrant, the state must follow the procedure set forth in MCL 257.625a(4); MSA 9.2325(1X4) in order to direct the taking of a blood sample. Keen, supra, p 576; Cords, supra, pp 420-421. | [
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Per Curiam.
The issue is whether a tractor is a motor vehicle within the meaning of the owner’s liability statute, MCL 257.401; MSA 9.2101.
Defendant Roy Harder backed over and fatally injured his three-year-old daughter while operating a tractor owned by defendant Walter Opanasenko. Roy Harder had been in the process of removing leaves from the driveway of his residence. Plaintiff Angel Harder, mother of the deceased and wife of Roy Harder, brought suit against both defendants, alleging that Roy Harder was negligent in his operation of the tractor and that Opanasenko was liable as the owner of the tractor. Opanasenko’s liability is asserted under MCL 257.401; MSA 9.2101, the owner’s liability statute, which reads in pertinent part:
The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law requires. [Emphasis added.]
That provision is part of the civil liability act, MCL 257.401 et seq.; MSA 9.2101 et seq., which is Chapter IV of the Michigan Vehicle Code, MCL 257.1 et seq.; MSA 9.1801 et seq.
The tractor at issue was an Oliver 770, which is a farm tractor. The trial court determined that the tractor was not a motor vehicle within the meaning of the act. Accordingly, the court ruled the statute inapplicable and granted summary disposi tion in favor of Opanasenko pursuant to MCR 2.116(C)(8), from which plaintiff appeals as of right. We reverse the trial court.
In determining whether a tractor is a motor vehicle under the terms of the statute, the most important rule of statutory interpretation is that the reviewing court discover and give effect to the intent of the Legislature. The next rule is to derive the legislative intentions from the actual language used in the statute. If the language used is clear and the meaning of the words chosen is unambiguous, a common-sense reading of the provision will suffice, and no interpretation is necessary. In re Certified Questions, 416 Mich 558, 567; 331 NW2d 456 (1982); Pioneer State Mutual Ins Co v Allstate Ins Co, 417 Mich 590, 595; 339 NW2d 470 (1983). Where, as here, a statute supplies its own glossary, courts may not import any other interpretation, but must apply the meaning of the terms as expressly defined. Noggles v Battle Creek Wrecking, Inc, 153 Mich App 363, 367; 395 NW2d 322 (1986) . See, e.g., Bialochowski v Cross Concrete Pumping Co, 428 Mich 219, 226; 407 NW2d 355 (1987) .
The Vehicle Code defines a motor vehicle as a vehicle which is self-propelled, MCL 257.33; MSA 9.1833, in, upon, or by which any person or property is or may be transported or drawn upon a highway, MCL 257.79; MSA 9.1879. The code further defines "farm tractor” as meaning "every motor vehicle designed and used primarily as a farm implement ...” MCL 257.16; MSA 9.1816 (emphasis added). We believe the language of §§ 33, 79, and 16 is clear and unambiguous and that a tractor, including the type in question here, meets the definition of a motor vehicle under the owner’s liability statute. Moreover, since a farm tractor of this type may lawfully be used on the highway, and may be designed in part for that use, it falls within the ambit of the owner’s liability act. Cf. Calladine v Hyster Co, 155 Mich App 175; 399 NW2d 404 (1986), lv den 426 Mich 882 (1986), and Jones v Cloverdale Equipment Co, 165 Mich App 511; 419 NW2d 11 (1987). Our determination is consistent with our Supreme Court’s conclusion in Pioneer Ins, supra, p 596, that a farm tractor is a motor vehicle as defined under the no-fault act. See also State Farm Mutual Automobile Ins Co v Wyant, 154 Mich App 745, 748; 398 NW2d 517 (1986).
We observe that 1949 PA 300, the act currently in effect, amended the previous definition of "motor vehicle.” Prior to the enactment of 1949 PA 300, the term motor vehicle included "every vehicle which is self-propelled, except any such vehicle as may be included within the term 'farm tractor’ as herein defined.” (Emphasis added.) 1943 PA 99, § 1(b). In construing an amendment to a statute, it is presumed that a change in phraseology reflects a legislative intent to change the meaning of the statute. Greek v Bassett, 112 Mich App 556, 562; 316 NW2d 489 (1982), lv den 414 Mich 961 (1982), and cases cited therein. Here, we must presume that the deletion of farm tractor as an exception to the definition of motor vehicle reflected a legislative intent to include farm tractor within the definition of motor vehicle.
We therefore hold that a farm tractor is a motor vehicle under MCL 257.401; MSA 9.2101.
The trial court’s grant of summary disposition in favor of defendant Opanasenko is reversed._
This case does not involve the definition of "motor vehicle” under the no-fault act. MCL 500.3101(2)(c); MSA 24.13101(2)(c). | [
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] |
ORDER
Entered November 21, 1974. — Reporter.
On order of the Court, the application for leave to appeal is considered and the same is hereby granted. On its own motion, pursuant to GCR 1963, 865.1(7), this Court peremptorily affirms the decision of the Court of Appeals.
In Marietta v Cliffs Ridge, Inc, 385 Mich 364, 369-370 (1971), we said:
"The customary usage and practice of the industry is relevant evidence to be used in determining whether or not this standard has been met. Such usage cannot, however, be determinative of the standard.”
To the extent that Cheli v Cudahy Brothers Co, 267 Mich 690 (1934), and Barton v Myers, 1 Mich App 460 (1965), declare a contrary rule, they no longer will be followed. | [
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M. S. Coleman, J.
Respondent appeals an order of the State Bar Grievance Board suspending him from the practice of law for a period of 90 days. The State Bar Grievance Administrator claims a cross-appeal from the order because it reduced the six months suspension imposed by the hearing panel. We affirm the order of the board.
The hearing panel found that respondent had conducted himself in an unprofessional manner by his handling of certain probate matters. There is sufficient testimony and factual support on the record to support these findings. See State Bar Grievance Administrator v Estes, 392 Mich 645; 221 NW2d 322 (1974).
In one instance respondent delayed the filing of a petition for probate of an estate for over seven years. He also advised the administrator of the estate to distribute funds, although there had been no determination of heirs, no accounting in the probate court and no petition for distribution of assets. In the other instance, respondent unreasonably delayed the filing of an inventory necessary for the probate of an estate. Direct and repeated intercession by the probate court was necessary.
The hearing panel concluded that respondent was "unfit to be entrusted with professional or judicial matters”. The length of his suspension reflected respondent’s previous history. On 3 separate occasions he had received reprimands concerning a total of 11 individual complaints. He had received a previous suspension of 30 days for his negligent handling of a claim for damages. The suspension was affirmed in State Bar Grievance Administrator v Posler, 390 Mich 581; 213 NW2d 133 (1973).
Respondent makes three claims of error. (1) He argues that Rule 16.11, which permits the respondent to be called by the grievance administrator and cross-examined, violates his right to due process of law. He claims his answers were coerced because of the possibility that any refusal to answer would be regarded as contemptuous.
The record discloses no threat or finding of contempt by the grievance administrator or the hearing panel. It does disclose that respondent was aware that he could refuse to testify whenever he believed the testimony would violate his privilege against self-incrimination. We find no coercion.
(2) The hearing panel filed its report and order 77 days after the hearing. Respondent claims that the delay violates Rule 16.3.3(d) which states, "[e]ach hearing panel shall * * * [rjeport their actions to the board; within 30 days of conclusion of a hearing”. This must be read in conjunction with Rule 16.33 which requires that procedures "shall be as expeditious as possible”. The 30-day period in 16.3.3(d) should be regarded as a goal and not jurisdictional. We are not faced with a protracted hearing process. Compare State Bar Grievance Administrator v Albert, 390 Mich 234; 212 NW2d 17 (1973). We are concerned with the time needed to reach a decision after the facts are gathered. It would be unreasonable and unfair to both sides to impose a rigid rather than a reasonable time limitation on such process. See Cowen v Wayne Circuit Judge, 296 Mich 678; 296 NW 837 (1941).
(3) Respondent’s final allegation of error is that his 90-day suspension is an excessive penalty. Given the facts of this proceeding and respondent’s past history, the suspension imposed must be characterized as merciful, not excessive.
The grievance administrator also disagrees with the 90-day suspension. He asks this Court to reinstate the hearing panel’s six months suspension. Rule 16.23(h) permits this Court to "make such order as may be deemed appropriate”. See State Bar Grievance Administrator v Estes, 390 Mich 585; 212 NW2d 903 (1973). However, we invoke this power only if the disciplinary action imposed by the grievance board is inappropriate. In this case we think the 90-day suspension, although merciful, is nevertheless within reason, so we will not overturn its decision,
Respondent’s suspension is affirmed.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, Williams, Levin, and J. W. Fitzgerald, JJ., concurred with M. S. Coleman, J.
Compare State Bar of Michigan v Block, 383 Mich 384; 175 NW2d 769 (1970), where the identical issue was raised by respondent therein and was decided adversely to him. | [
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] |
Plaintiff-appellant’s petition for extension of time for the filing of petitions is considered and the same is hereby denied December 17, 1974, without prejudice to plaintiff-appellant or any interested party filing with the probate court a motion requesting an extension of time as to any defendant for which an examination and hearing cannot be scheduled within the time established in People v McQuillan, 392 Mich 511 (1974). Upon a proper showing, such motions shall be granted by the probate court.
State Appellate Defender, for defendant-appellee. | [
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] |
On order of the Court, the application for leave to appeal by defendant-appellant is considered and, it appearing to this Court that the case of Nickola v Grand Blanc Township (Docket No. 55,088) is presently pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, it is ordered that the present application be held in abeyance pending decision in Nickola v Grand Blanc Township.
Case below, Court of Appeals No. 17,357, per curiam opinion of June 21,1974. | [
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Williams, J.
Defendants, Michigan Plating and Stamping Company and Corporate Service (hereinafter referred to as Michigan Plating), appeal from an award of worker’s compensation benefits to plaintiff, Joe W. Dressier, and raise two issues: (1) did the Worker’s Compensation Appeal Board (hereinafter WCAB) err in finding that plaintiff’s employment at Michigan Plating aggravated his back condition to the point of total disability rather than finding his disability resulted from a fall during his earlier employment with Grand Rapids Die Casting Corporation, and (2) was plaintiff suffering from an occupational disease prior to bis employment with Michigan Plating and, therefore, barred from recovering from Michigan Plating by MCLA 418.431; MSA 17.237(431), because he wilfully and falsely represented in his application for employment that he had not previously been treated for back trouble?
We find there was competent evidence to support the findings of the WCAB that (1) plaintiff’s employment at Michigan Plating aggravated his back condition to the point of total disability, and (2) plaintiff is not barred from recovery from Michigan Plating by MCLA 418.431; MSA 17.237(431) because that bar relates exclusively to misstatement relative to a prior occupational disease and has no application to a misstatement relative to a prior single-event injury. Judgment is affirmed.
I — Facts
Plaintiff began working at Grand Rapids Die Casting Corporation, codefendant in this action, in September, 1966. His job consisted of lifting and polishing small and large metal parts. On Friday, June 7, 1968, plaintiff fell at work and injured his spine about two inches above his belt. He reported the fall immediately but did not see a company doctor until his return to work on Monday, June 10.
Dr. Kempers, to whom he reported on that date, prescribed pain pills and returned plaintiff to work with a "slip” ordering that he do no heavy lifting. Plaintiff returned to work immediately, but was told there was no light work available. He did not return to work again until the week ending June 30, at which time he was given light work which he continued to do for a period of three weeks.
Subsequently, plaintiff was placed back at his regular duties which continued for another week or two until he quit in August, 1968. During this period he suffered varying degrees of back pain. There is some testimony to the effect that plaintiff left his employment because his wages were being garnished and he wanted to look for a better job.
On September 30, 1968, plaintiff began the same type of work at Apex Polishing Company, which caused him less discomfort than his prior job because he was able to get up and walk around to relax his back during the course of work. Plaintiff was laid off by Apex in January, 1969, but that same month was able to secure a job at Ronel’s Manufacturing Company, again doing polishing.
In June, 1969, plaintiff was laid off by Ronel’s, and applied for work at Pridgeon & Clay, but was rejected after a pre-employment physical examination.
In August, 1969, plaintiff applied for work with defendant, Michigan Plating. While filling out his employment application, plaintiff responded to the question, "[h]ave you ever been treated for a back condition?” in the negative. Plaintiff later admitted during testimony that he knew this answer to be untrue, and that he gave it for the purpose of obtaining a job. He began work on August 11, 1969, as a "racker”, lifting bumpers off a rack and polishing them.
While in the employ of Michigan Plating, on January 9, 1970, plaintiff suffered a fall at home in which he injured his upper back. This incident, however, was characterized as not significant in light of plaintiff’s total back pathology by defendant’s expert witness, Dr. Glessner: "I’m not stating that the fall [of January 9, 1970] couldn’t have had something to do with it, but I think the fall had less to do with it than the lifting activities.”
Approximately a week after the fall, there was a layoff at Michigan Plating and plaintiff was not called back to work until March of 1970. After resuming work, plaintiff began to be absent frequently, and did not return to work after April, 1970. On May 15, 1970, he was formally discharged by Michigan Plating.
On June 8, 1970, plaintiff filed his petition for hearing alleging that he was disabled due to a fall in 1968 and the "repeated trauma in the course of his employment” at Michigan Plating.
The hearing referee found that plaintiff had suffered a personal injury aggravated to the point of total disability while in the employ of Michigan Plating and awarded compensation to be paid by appellant as the last employer. The appeal board unanimously affirmed on April 6, 1976 and the Court of Appeals denied leave to appeal on July 29, 1976. Leave to appeal was granted by this Court on April 22, 1977.
II — Standard of Review
Findings of the Worker’s Compensation Appeal Board regarding whether a disability exists, Barrett v Bohn Aluminum & Brass Co, 69 Mich App 636, 639-640; 245 NW2d 147 (1976), and whether a particular employment has aggravated a condition to the point of disability are findings of fact. Gilbert v Reynolds Metals Co, 59 Mich App 62, 65; 228 NW2d 542 (1975). If supported by competent, material and substantial evidence in the record, such findings are conclusive. Carter v Kelsey-Hayes Co, 386 Mich 610, 615; 194 NW2d 326 (1972); Coates v Continental Motors Corp, 373 Mich 461, 466-467; 130 NW2d 34 (1964). This Court must therefore examine the issues raised on appeal under the above standard of review.
Ill — Date of Disability
Defendant Michigan Pláting asserts that plaintiff was "disabled from carrying on his employment at Grand Rapids Die Casting Corporation [his original employer] and accordingly was thereafter disabled from heavy work”, and that therefore Grand Rapids Die Casting should be held liable for the payment of compensation.
If plaintiff were disabled from the time of his employment at Grand Rapids Die Casting, and this same disability continued through the time of his subsequent employment at Michigan Plating, defendant’s assertion would be correct, Mullins v Dura Corp, 46 Mich App 52; 207 NW2d 404 (1973). However, the meaning of "disability”, in conjunction with the facts of this case, establishes that there was competent evidence by which the WCAB could find that plaintiff was disabled on the last day of his employment with Michigan Plating.
Although what constitutes compensable disability is a factual determination and can vary with the circumstances of a particular case, of interest is Larson’s treatise on worker’s compensation which describes compensable disability as the "inability, as the result of a work-connected injury, to perform or obtain work suitable to the claimant’s qualifications and training”. 2 Larson, Workmen’s Compensation Law, § 57.00. Larson goes on to explain "that the distinctive feature of the compensation system * * * is that its awards (apart from medical benefits) are made not for physical injury as such, but for 'disability’ produced by such injury”. Larson, supra, § 57.10 (authority omitted).
There is no question that plaintiff sustained a physical injury to his back while in the employ of Grand Rapids Die Casting, and according to the opinion of the WCAB, this "single-event traumatic injury * * * resulted in immediate disability thereafter”. However, the facts as reasonably accepted by the WCAB demonstrate that within a short time of the fall plaintiff was able to perform his regular duties at Grand Rapids Die Casting. Further, within a short time from termination of his employment at Grand Rapids Die Casting, plaintiff was not only able but did in fact obtain work suitable to his qualifications and training, and was able to perform such work, albeit with various degrees of discomfort from his pre-existing back condition.
According to defendant’s own statement of the facts of this case, plaintiff did the same type of work at Apex as he had done at Grand Rapids Die Casting. The termination of that employment was due to a layoff and not inability to perform the required work. The same pattern of employment, ability to perform, and economic layoff occurred at Ronel’s. These facts support a finding by the WCAB that plaintiff was not disabled during this period.
Further, although plaintiff suffered pain during substantially all of his employment from the time of his initial injury, the existence of an injury and pain therefrom do not necessarily create disability. As quoted above, "the distinctive feature of the compensation system * * * is that its awards (apart from medical benefits) are made not for physical injury as such, but for 'disability’ produced by such injury”. Plaintiff was not disabled, despite the pain suffered in his successive jobs, until the pain became so extreme as to force his excessive absence from work at Michigan Plating, and his employment there was terminated.
When aggravation of an injury involves successive employers as in the instant case, the rule is clear:
" 'The Massachusetts-Michigan rule in successive-injury cases is to place full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability.
" 'If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. In this class would fall most of the cases discussed in the section on range of consequences in which a second injury occurred as the direct result of the first, as when claimant falls because of his crutches which his first injury requires him to use. This group also includes the kind of case in which a man has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.
" 'On the other hand, if the second incident contrib utes independently to the injury, the second insurer is solely liable, even if the injury would have been much less severe in the absence of the prior condition, and even if the prior injury contributed the major part to the final condition. This is consistent with the general principle of the compensability of the aggravation of a preexisting condition.’ 3 Larson, Workmen’s Compensation Law, § 95.12, pp 508.130-508.133.” Mullins v Dura Corp, supra, 55-56. (Emphasis changed.)
See Gilbert v Reynolds Metals Co, 59 Mich App 62, 65; 228 NW2d 542 (1975).
The ultimate finding by the WCAB was
"that plaintiffs subsequent employment with defendant Michigan Plating and Stamping aggravated his preexisting back condition and injury to the point of total disability on and after his last day of work on April 24, 1970.”
We do not say that all evidence in this case dictates the WCAB finding, but, under the applicable standard of review, the findings of facts of the WCAB that employment at Michigan Plating contributed independently to the injury are supported by competent evidence and therefore cannot be disturbed by this Court.
IV — Was Plaintiff’s Back Condition an Occupational Disease Bringing Him Within the Purview of MCLA 418.431; MSA 17.237(431)?
Defendant Michigan Plating contends that regardless of when the injury is deemed to have occurred, plaintiff is barred from recovery from it by MCLA 418.431; MSA 17.237(431), which reads in part:
"No compensation shall be payable for an occupational disease if the employee at the time of entering into the employment of the employer by whom the compensation would otherwise be payable, or thereafter, wilfully and falsely represents in writing that he has not previously suffered from the disease which is the cause of the disability or death.” (Emphasis added.)
As stated in part I of this opinion, plaintiff did not disclose his prior back problem in the employment application to Michigan Plating, despite the fact that the application contained the question, "[h]ave you ever been treated for a back condition?” Plaintiff admitted in his testimony that he intentionally answered in the negative to increase the probability of obtaining employment.
MCLA 418.431; MSA 17.237(431) precludes the recovery of compensation only when there has been wilful nondisclosure of an occupational disease. Plaintiff asserts that his prior back condition was a traumatic injury and not an occupational disease; the WCAB agreed:
"Plaintiff sustained a previous single-event injury to his back (compensable by virtue of chapter 3) during the course of his employment with Grand Rapids Die Casting. Plaintiff had a prior back injury but not an occupational back disease (chapter 4) and therefore § 418.431 is not applicable.”
The question of medical causation of plaintiffs disability is a question of fact, Galac v Chrysler Corp, 63 Mich App 414, 416; 235 NW2d 359 (1975), as is a determination that an injured employee’s disability results from a single-event injury and subsequent aggravation, as opposed to an occupational disease, Morgan v Win Schuler’s Restaurant, 64 Mich App 37, 40; 234 NW2d 885 (1975). Because the findings of the appeal board as to these factual determinations are supported by competent evidence, we affirm.
In 1937, the following definition of "occupational disease” was added to part VII, now chapter 4, of the Worker’s Disability Compensation Act:
"Sec. 1. Definition. Whenever used in this act:
"(c) The term 'occupational disease’ means a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment.” 1937 PA 61, part VII, § 1.
The present act does not clearly define occupational disease, but Professor Larson explains the terminology as follows:
"Occupational disease cases typically show a long history of exposure without actual disability, culminating in the enforced cessation of work on a definite date.” 4 Larson, Workmen’s Compensation Law, § 95.21.
Defendant cites a limited number of cases in which back disabilities have been found to be occupational diseases. Smith v Lawrence Baking Co, 370 Mich 169; 121 NW2d 684 (1963); Fields v GM Brass & Aluminum Foundry Co, 332 Mich 113; 50 NW2d 738 (1952); Underwood v National Motor Castings Division, Campbell, Wyant & Can non Foundry Co, 329 Mich 273; 45 NW2d 286 (1951). Each of these cases involve situations where the plaintiff’s back condition arose gradually because of long and repeated bending, twisting, or lifting, even though there might also have been an incidental trauma.
In the instant case, plaintiff had no back problems prior to his fall even though he had engaged in the particular occupation for almost two years. His condition commenced with a single-event injury and despite relatively continuous pain, he was not disabled from working until, almost two years later, the strenuous tasks in the course of his employment at Michigan Plating caused his condition to degenerate to a point of total disability. Under these circumstances, it was not error for the Worker’s Compensation Appeal Board to find that plaintiff was not suffering from an occupational disease.
While we can appreciate defendant employer’s frustration at having employed plaintiff under a false belief arising from his misrepresentation, and now being held liable for his worker’s compensation benefits, as well as plaintiff employee’s compulsion to misrepresent in order to secure a livelihood, the fact of the matter is that the statute in this case does not permit the employer to avoid compensation payments. MCLA 418.431; MSA 17.237(431) is specifically limited in its effect and the findings of the WCAB as to the statute’s non-applicability to the facts of this case are supported by competent evidence.
V — Conclusion
We hold that there was competent evidence to support the findings of the WCAB that (1) plaintiff’s prior back condition was aggravated to the point of total disability as of his last day of work with appellant, Michigan Plating, and (2) plaintiff was not suffering an occupational disease and therefore is not precluded from recovery of worker’s compensation benefits by MCLA 418.431; MSA 17.237(431).
Affirmed. No costs.
Kavanagh, C. J., and Levin and Blair Moody, Jr., JJ., concurred with Williams, J.
Coleman, J.
(to remand). The intriguing effect of my colleague’s opinion is that it now legally pays to lie — and it is the consumer who bears the cost. We cannot attribute to the Legislature the intent to approve fraud nor do we find it appropriate for Michigan’s highest court to condone and invite fraudulent misrepresentation.
I
Plaintiff’s back problems began on June 7, 1968 when he fell while working for Grand Rapids Die Casting. He quit in August, because of back pain.
After working for two other employers (where the pain continued) and being refused by a third after a physical examination revealed his back condition, he applied for work with defendant Michigan Plating and Stamping Co.
By his own testimony, plaintiff deliberately and intentionally falsified his application regarding his back condition. He was hired by defendant and worked off and on for about eight months with diminishing attendance before he quit, again because of back pain. He then filed a claim for total disability. The Workmen’s Compensation Appeal Board (WCAB) found Michigan Plating and Stamp ing liable for the full costs. The Court of Appeals denied leave to appeal.
II
The WCAB and Justice Williams assume that fraud is not a bar to compensation unless it is pursuant to a claim based on an occupational disease. The theory is that, because the bar of misrepresentation is specifically mentioned regarding occupational disease and it is not mentioned as the act addresses a single injury and subsequent disability, fraud is not a bar to recovery in the latter circumstances.
It strains credibility to conclude that the Legislature deliberated and decided to permit misrepresentation in single injury/aggravation cases and not permit it in occupational disease cases.
III
As the body of workmen’s compensation law grew through the years, other states were confronted by similar problems which Professor Larson addresses in his treatise on Workmen’s Com pensation Law. He notes that several states apply a
"common-sense rule made up of a mélange of contract, causation, and estoppel ingredients. The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and wilfully made a false representation as to his physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury”. 1A Larson, Workmen’s Compensation, § 47.53, pp S-201-8-202.
Delaware was one of the first jurisdictions to apply this rule. The worker in Air Mod Corp v Newton, 59 Del 148; 215 A2d 434 (1965), had a long history of back trouble which resulted in surgery during the spring of 1959. In September, he applied for work with Air Mod denying that he had "any physical defect or chronic disease” or that he had "been confined by illness in [the] past year”.
The worker was employed by Air Mod for 15 months when he fell and injured his back. He quit work in March, 1961, underwent more surgery and then filed a claim for benefits in October, 1962.
The Delaware Supreme Court found defendant’s answers on the employment application to be "false and misleading”. The Court addressed itself "to the consequences of such misrepresentation upon the plaintiffs right to workmen’s compensation benefits”. Although it was "not aided by an explicit provision of the Workmen’s Compensation Act”, the Court did note Delaware’s Second Injury Fund and apportionment provisions "are premised upon an employer’s knowledge of an employee’s prior injury, disease or infirmity”. Concealing these "may, unfairly and even fraudulently, deprive an employer of the benefits accorded him by law”.
Based upon its review of public policy, case law, "and principles of fairness and justice”, the Court held that an employee would forfeit his right to benefit if in applying for work, he
"(1) knowingly and wilfully made a false representation as to his physical condition; and (2) the employer relied upon the false representation and such reliance was [a] substantial factor in hiring; and (3) there was a causal connection between the false representation and the injury”.
The Florida Supreme Court made a similar analysis in Martin Co v Carpenter, 132 So 2d 400 (Fla, 1961). The worker had a back problem for 20 years which he concealed by falsely answering questions on an employment form. The Florida statutes did not speak to this situation. The Court adopted the rule that such false representations
"will preclude [benefits] if there is shown to be a causal relationship between the injury and the false representation and if it is also shown that (1) the employee knew the representation to be false, (2) the employer relied upon the false representation; and (3) such reliance resulted in consequent injury to the employer”.
Wisconsin has followed a similar path. It has a legislative policy to encourage the hiring of epileptics by allowing them to elect not to be covered by workmen’s compensation. In Volunteers of America of Madison, Inc v Industrial Commission, 30 Wis 2d 607; 141 NW2d 890 (1966), the worker, an epileptic, indicated on an employment form that he did not have a history of seizures or fainting spells. At a physical examination, he did not tell the doctor about the epilepsy.
The worker drowned while working at a camp run by the Volunteers. The Court said that "implicit” in the state policy "is the requirement that the employee will not fraudulently conceal his epileptic condition from his employer”. Such a concealment would preclude benefits. The Court remanded to determine if the epilepsy contributed to the drowning.
The Tennessee Workmen’s Compensation Act also contains no provision for a fraudulent misrepresentation of physical condition to obtain employment. Prior to Federal Copper & Aluminum Co v Dickey, 493 SW2d 463 (Tenn, 1973), there was no case law either. Dickey had failed to declare previous back trouble. He injured his back while working for Federal.
The Tennessee Supreme Court said the statutory provisions on occupational disease and second injuries "[evidence] a general policy against” the worker’s conduct. The Court found an employee
"who has wilfully misrepresented or failed to disclose material information regarding his physical condition should not be permitted a recovery in a workmen’s compensation case merely because the legislature failed to anticipate the problem”.
The Court adopted Professor Larson’s analysis.
Finally, there is the South Carolina Supreme Court’s decision in Cooper v McDevitt & Street Co, 260 SC 463; 196 SE2d 833 (1973). The worker had a serious back injury in 1967. He was employed by McDevitt & Street in 1970 for work on a project in Charleston. The worker told the company about his back problem. He was laid off in December, 1970.
In January, 1971, the worker traveled to Columbia, South Carolina, to see about work on another McDevitt & Street project. He filed a new employment application but this time concealed his back problems because "if they knew it up here, I was going to get fired off the job”. He was disabled by his back trouble in February.
In a 3 to 2 decision, the South Carolina Supreme Court denied benefits. The supervisor in Columbia testified that he did not have access to the Charleston records. He also said the worker would not have been hired if he had disclosed the prior injury. The Court cited Larson and held that "[t]here is ample evidence to sustain the finding * * * that the [worker] was guilty of fraud in securing his employment * * * and that the employer would not have hired him had he not misrepresented his physical condition”.
IV
The logic of Professor Larson and our sister states which have followed his "common-sense” analysis is persuasive. In addition to the plainly spoken legislative policy in occupational disease cases, we also note that compensation is barred when the notice of injury of a claimant is shown to contain "the intention to mislead, and the employer or the carrier, was in fact misled”. MCL 418.383; MSA 17.237(383). As the Tennessee Court observed, those provisions alone are indicative of the legislative policy and need not be repeated in each section of the act. It is more likely that the Legislature would be surprised to discover that when it does not explicitly forbid fraud, we will presume that statute to permit it.
V
Aside from any judicial interpretation of the Worker’s Disability Compensation Act and its predecessor, we are persuaded that it is improper for this Court to condone fraud. Fundamental fairness alone should compel us to reverse or to adopt the Larson analysis.
We would adopt Professor Larson’s guide. In this case, the record amply supports the fact that plaintiff knowingly and wilfully misrepresented his physical history on the application and that there was a causal connection between the false representation and the disability claim.
The record is not so clear that the employer "relied upon the false representation and this reliance” was a "substantial factor in the hiring”. Plaintiff assumed that he would not have been hired had he told the truth, but the WCAB made no finding in support.
Because we agree that plaintiff did not suffer an occupational disease within the meaning of the statute, but would find it possible to rule that plaintiff’s claim is barred by fraud, we would remand to the WCAB solely to afford Michigan Plating and Stamping Co. the opportunity to show it relied on the knowing misrepresentation in hiring plaintiff and for WCAB to make a factual determination accordingly. If the WCAB could satisfy the Larson test, it should deny benefits to plaintiff.
Fitzgerald and Ryan, JJ., concurred with Coleman, J.
This rule is so basic as to be found in the Michigan Constitution:
"Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.” Const 1963, art 6, § 28, and the Worker’s Disability Compensation Act:
"The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. * * * ” MCLA 418.861; MSA 17.237(861).
Defendant relies on Mullins v Dura Corp, supra, to support its claim that Grand Rapids Die Casting should be liable. In that case the dispute involved only one employer, but two insurance companies, one claiming disability dated from the date of the original back injury and the other from the last day of work. The Court of Appeals affirmed the WCAB finding that the disability dated from the time of the original injury, despite the fact that the plaintiff continued to work. The case is distinguishable from the instant situation because uí Mullins the plaintiff never returned to his regular duties but performed only favored work.
See MCLA 418.301(1); MSA 17.237(301X1):
"An employee, who receives a personal injury arising out of and in the course of his employment by an employer who is subject to the provisions of this act, at the time of such injury, shall be paid compensation in the manner and to the éxtent provided in this act, or in case of his death resulting from such injuries the compensation shall be paid to his dependents as defined in this act. Time of injury or date of injury as used in this act in the case of a disease or in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death.”
See also Smith v Lawrence Baking Co, 370 Mich 169, 175; 121 NW2d 684 (1963).
A portion of plaintiffs testimony regarding his claim against defendant-appellant was:
”Q. Now, Mr. Dressier, in August of 1969, you sought employment with Michigan Plating, isn’t that correct?
"A. Yes.
"Q. And you knew at that time that you had a back problem?
"A. Yes.
"Q. You knew at that time that you had treated for a back problem?
"A. Yes.
”Q. Mr. Dressier, you knew, when you filled out your application for employment with Plating, that you had just recently taken a preemployment physical for another employer?
"A. Yes.
"Q. You knew the reason that you were not hired, didn’t you?
”A. Yes.
"Q. That was because of the back condition which you had?
"A. Yes.”
Plaintiff was then shown the employment application he completed for defendant:
"Q. Mr. Dressier, directing your attention to this sentence right here — 'Have you ever been treated for a back condition?’ — you indicate that you had not been treated for a back condition, isn’t that correct?
"A. That’s right.
"Q. Now, was that true at the time that it was made?
"A. No.
”Q. And it isn’t true now, is it?
"A. What?
"Q. That you had never been treated for a back condition?
"A. At — 'Have you ever been?’ Yeah. I have been treated for a back condition.
"Q. And, as of the date that you filled out this application for Michigan Plating and Stamping, you had been treated for a back condition?
"A. I seen doctor. Yeah.
”Q. And you indicated on the application that you had not been treated?
"A. Yes.
"Q. Then I suspect that this was done for the purpose of obtaining the job, is that correct?
"A. Pardon?
"Q. This was done for the purposes of obtaining the job?
"A. Yes.”
"No compensation shall be payable for an occupational disease if the employee at the time of entering into the employment of the employer by whom the compensation would otherwise be payable, or thereafter, wilfully and falsely represents in writing that he has not previously suffered from the disease which is the cause of the disability or death.” MCL 418.431; MSA 17.237(431).
"(1) An employee, who receives a personal injury arising out of and in the course of his employment by an employer who is subject to the provisions of this act, at the time of such injury, shall be paid compensation in the manner and to the extent provided in this act, or in case of his death resulting from such injuries the compensation shall be paid to his dependents as defined in this act. Time of injury or date of injury as used in this act in the case of a disease or in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death.” MCL 418.301; MSA 17.237(301).
Also see Martinez v Driver Mechenbier, Inc, 90 NM 282; 562 P2d 843 (Ct App, 1977).
Also see Miami v Ford, 252 So 2d 228 (Fla, 1971), and Homestead v Watkins, 285 So 2d 394 (Fla, 1973).
Also see Haddix v Day & Night Manufacturing Co, 540 SW2d 639 (Tenn, 1975), and Daniels v Gudis Furniture Co, 541 SW2d 941 (Tenn, 1976) ("The causal connection required is a factual showing that the injury upon which the * * * claim is based is causally related to the employee’s prior injuries or physical condition which were wrongfully concealed from the employer.”) | [
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Per Curiam.
Defendant was charged with one count of larceny in a building, MCL 750.360; MSA 28.592. Following the preliminary examination, the trial court suppressed evidence of dusting powder which was discovered on defendant’s hands by means of an ultraviolet scan, and also suppressed defendant’s statements following the ultraviolet scan. In addition, the trial court later suppressed evidence of the money found on defendant pursuant to the police investigation. The people appeal by leave granted. We reverse.
i
Testimony adduced at the preliminary examination showed that defendant worked as a janitor/ general helper at a Dunkin Donuts store in the City of Portage. The owner of the business, James Berkey, began noticing money shortages in January of 1987. The money was missing from a reserve cash drawer kept in a locked office in the back of the store. While defendant sometimes waited on customers and had access to the cash there, no shortages ever developed from his activity at the store’s cash register. However, defendant came under suspicion following implementation of a different accounting procedure and a change in employee scheduling. After contacting the Portage Police Department, Mr. Berkey obtained from the police an ultraviolet-sensitive dusting powder to apply to the currency. On February 12, 1987, Mr. Berkey and one of his sons counted the money, dusted it, and left at approximately 4:00 p.m. They returned at approximately 7:30 p.m., along with Mr. Berkey’s other son. After reentering the store and discovering a shortage, they called the police.
When the police officer arrived, defendant was in the office with Mr. Berkey’s son, Mark. The officer advised defendant that he was investigating the theft of some money from the store. At the officer’s request, Mark Berkey produced the ultraviolet light which was already in the office, and the officer asked defendant to show his hands. When the officer ran the light over defendant’s hands, those portions of defendant’s hands which had touched the powder were illuminated. The officer then advised defendant of his Miranda rights and informed him that he was being charged with larceny. Defendant indicated that he understood the rights and that he wished to speak with the officer. He then produced the missing money, the serial numbers of which matched the numbers on the bills previously in the cash box. Defendant was arrested and taken to the police department.
After hearing argument on defendant’s motion to quash, to suppress evidence and to suppress the statements following the ultraviolet scan, the trial court denied defendant’s motion to quash but granted his motion to suppress evidence and to suppress the statements. The order stated that the money found on defendant was not subject to the order. However, following a later motion to suppress evidence of the money seized, the trial court ordered suppression of the money as well. The people appeal by leave granted.
ii
We agree with the people’s argument that it was clear error for the trial judge to suppress the evidence and statements. We do not believe that the fluoroscopic examination of defendant’s hands to detect the presence of "bait” powder constituted an illegal search within the meaning of the United States or Michigan Constitution, US Const, Am IV; Const 1963, art 1, § 11.
A defendant who asserts a Fourth Amendment challenge must demonstrate a subjective expectation of privacy that society recognizes as reasonable. People v Nash, 418 Mich 196, 205; 341 NW2d 439 (1983); People v Smith, 420 Mich 1, 20-21, 27-28; 360 NW2d 841 (1984). The Fourth Amendment provides no protection for what "a person knowingly exposes to the public.” Katz v United States, 389 US 347, 351; 88 S Ct 507; 19 L Ed 2d 576 (1967). This is true whether or not the thing exposed is examined by artificial means. See People v Ward, 107 Mich App 38, 49-50; 308 NW2d 664 (1981), lv den 417 Mich 938 (1983) (observation through telephoto lens); Dow Chemical Co v United States, 476 US 227; 106 S Ct 1819; 90 L Ed 2d 226 (1986) (aerial observation and photography of industrial complex).
There is no reasonable expectation of privacy against sense-enhancing devices as such. "Nothing in the Fourth Amendment prohibits] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afford[s] them.” United States v Knotts, 460 US 276, 282; 103 S Ct 1081; 75 L Ed 2d 55 (1983). A defendant has no reasonable expectation of privacy in physical characteristics such as a fingerprint or a voice print, both of which are constantly exposed to the public. United States v Dionisio, 410 US 1, 14-15; 93 S Ct 764; 35 L Ed 2d 67 (1973). An observation by a lawfully positioned police officer using his natural senses of sight, smell, and hearing does not constitute a search; neither does the use of artificial illumina tion to enable the officer to see what he would otherwise be unable to detect because of darkness. See People v Whalen, 390 Mich 672, 678-679; 213 NW2d 116 (1973).
We disagree with defendant’s contention that a flashlight examination substantially differs from a fluoroscopic examination because the flashlight allows a police officer to see at night what he would otherwise be able to see during the day. Both the flashlight and the ultraviolet light are sense-enhancing devices which allow the police officer to see something exposed to public view that he otherwise could not see.
We also disagree with the reasoning of those cases upon which defendant relies, United States v Kenaan, 496 F2d 181, 182-183 (CA 1, 1974), and People v Santistevan, 715 P2d 792 (Colo, 1986), cert den 479 US 965; 107 S Ct 468; 93 L Ed 2d 412 (1986), which follows Kenaan. These cases adopt the minority rule that a fluoroscopic examination constitutes a Fourth Amendment violation because the defendant’s body is exposed to scanning with instruments capable of picking up minute objects on the body. The part of defendant’s body here at issue — his hands — is not a body part hidden from public scrutiny. On the contrary, defendant’s hands are constantly exposed to public scrutiny. It is therefore untenable to maintain that defendant had a reasonable expectation of privacy in his hands. Accordingly, the sense-enhancing ultraviolet scanning did not invade the privacy of defendant’s body parts.
We believe the better rule to be that followed by the majority of jurisdictions which have grappled with this question and found a fluoroscopic examination not to constitute a search. See Commonwealth v DeWitt, 226 Pa Super 372; 314 A2d 27 (1973); Montana v Holzapfel, — Mont —; 748 P2d 953 (1988). See also United States v Richardson, 388 F2d 842, 845 (1968); People v Wesley, 88 Misc. 2d 177; 387 NYS2d 34 (1976); United States v Millen, 338 F Supp 747 (ED Wis, 1972); United States v DeMarsh, 360 F Supp 132 (ED Wis, 1973). Even though the powder could not be detected with the naked eye, neither may a fingerprint be examined without an application of ink. Moreover, the fluoroscopic examination was controlled and limited to a specific inquiry: whether the defendant’s hands had contacted the treated contraband. See DeWitt, supra at 30-31.
We are persuaded that the fluoroscopic examination of defendant’s hands to detect the presence of "bait” powder did not constitute an illegal search within the meaning of the United States or Michigan Constitution. Therefore, the trial judge’s suppression of the evidence and of defendant’s statements was clearly erroneous. People v Grimmett, 97 Mich App 212, 214; 293 NW2d 768 (1980).
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] |
Ryan, J.
In October of 1972 defendant, Michigan Department of State Highways, advertised for bids on the construction of sewer outlet structures which would extend 2000 feet into Lake St. Clair. Plaintiff, Greenfield Construction Company, obtained copies of the project proposal, design plans, and specifications, submitted the low bid on the project and ultimately entered into a construction contract with defendant in December, 1972.
Upon arrival at the site in March, 1973, Greenfield alleges it first discovered significant changes in the conditions at the work site from those indicated in the project proposal, design plans, and specifications. Specifically, the water level of Lake St. Clair was approximately 2 feet higher than the last elevation indicated in the project plans supplied by defendant.
Greenfield thereupon notified defendant that it considered these developments to be "changed physical conditions”, as that expression is defined in the contract documents, and claimed that under the contract it was entitled to compensation in excess of the contract price.
In petitioning for extra compensation, Greenfield followed the informal procedures customarily employed in situations where there is disagreement between the highway department and contractors as to matters of performance or compensation. Ultimately, however, the Department of State Highways, in a letter dated June 6, 1973, advised plaintiff that the department would not award additional compensation. No record was made of the department proceedings which culminated in the June 6 letter.
On July 17, 1973, Greenfield filed its two-count complaint in the Wayne Circuit Court. Count I alleged that the June 6 letter from the Department of State Highways was a "declaratory ruling” subject to judicial review under the Administrative Procedures Act of 1969, MCLA 24.201 et seq.; MSA 3.560(101) et seq. Plaintiff sought a reversal of the alleged "declaratory ruling” and, in addition, a declaratory judgment that there had been a material change in conditions under the contract. Count II alleged that certain construction delays were not the fault of plaintiff and that plaintiff asserted entitlement to a declaratory judgment to that effect and for a determination that plaintiff was entitled to an extension of the contractual construction period without suffering liability for liquidated damages.
In response defendant filed a motion captioned "Motion for Accelerated or Summary Judgment”. Defendant first asserted that the circuit court lacked subject matter jurisdiction because the matter complained of by plaintiff was not a "contested case” within the Administrative Procedures Act, and did not involve a "rule” within the purview of the act. Second, defendant contended that any alleged liability or other claims or demands arising out of a contract with the State of Michigan are within the exclusive jurisdiction of the Michigan Court of Claims. Finally, defendant contended that plaintiff had failed to state a claim upon which relief could be granted.
On September 11, 1973, after a hearing, the circuit court issued an opinion holding that the 1970 Standard Specifications for Highway Construction contract provisions in dispute were not "rules” subject to review under the Administrative Procedures Act, MCLA 24.263; MSA 3.560(163), and that consequently the court lacked subject-matter jurisdiction over Greenfield’s claim. Plaintiff filed a motion to stay the entry of accelerated judgment in favor of defendant.
A second hearing was held later and the court issued a second opinion, this time granting the declaratory relief requested by the contractor.
The court again found, however, that the 1970 Standard Specifications for Highway Construction were not "rules” subject to review under the Administrative Procedures Act and found, in addition, that defendant had "not taken any steps for the promulgation of rules, regulations and procedures by which to issue declaratory rulings and that, therefore, the decision of June 6, 1973 amounts to no more than an administrative pronouncement”. However, the court held the June 6 letter to be arbitrary and capricious and a deprivation of due process. It ruled that the Court of Claims lacked the requisite equitable jurisdiction to grant declaratory relief. Concluding that the plaintiff had supported its contentions on the merits, however, the court issued its declaratory judgment that a change of conditions had occurred. The issue of money damages was expressly left for later determination in the Court of Claims.
The Court of Appeals reversed, holding that the circuit court lacked subject-matter jurisdiction over the dispute. 58 Mich App 49; 227 NW2d 223 (1975). We granted leave to appeal. 394 Mich 836 (1975).
Our resolution of the case turns upon the answers to two specific questions:
1) Is Section 1.04.03(c) of the 1970 Standard Specifications for Highway Construction a rule within the definition of the Administrative Procedures Act, and
2) Does the circuit court have jurisdiction in this case to issue a declaratory judgment binding upon the defendant State of Michigan.
Our answer to both questions is no.
I
Section 63 of the Administrative Procedures Act, MCLA 24.201 et seq.; MSA 3.560(101) et seq., provides narrowly circumscribed authority in the circuit court to judicially review a declaratory ruling issued by an agency of state government, and provides that such review is conducted in the same manner as an agency final decision or order in a contested case.
Section 64 of the act confers upon the circuit court authority to issue a declaratory judgment concerning the validity or applicability of an agency rule, providing however the plaintiff has first "requested the agency for a declaratory ruling and the agency has denied the request or failed to act upon it expeditiously”.
Greenfield claims that Section 1.04.03(c) of the 1970 Standard Specifications for Highway Construction is a rule within the definition of the Administrative Procedures Act and that the highway department letter of June 6, 1973 was a declaratory ruling concerning the applicability of the claimed rule.
We disagree on both points.
A rule is defined in § 7 of the Administrative Procedures Act as follows:
" 'Rule’ means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability, which implements or applies law enforced or administered by the agency, or which prescribes the organization, procedure or practice of the agency * * * MCLA 24.207; MSA 3.560(107).
Section 1.04.03(c) of the 1970 Standard Specifications for Highway Construction provides:
"Changed Physical Conditions. — Should the contractor encounter or the engineer discover, during the progress of the work, physical conditions at the site differing materially from those shown in the contract and included documents, or unknown physical conditions of a nature differing materially from those gener ally recognized as work of the character provided for in the contract, the engineer will investigate the conditions. Unless the engineer finds that the work required materially changes the character of the work, the work will be paid for at the contract unit price. If the work required is of sufficient magnitude to affect the unit cost by 10% or more, an allowance will be made on such basis as is mutually agreed upon and authorized in advance of the performance of the work. If agreement cannot be reached as to the basis of payment for which the contractor deems compensation to be due him, the work shall proceed as provided under Disputed Claims for Extra Compensation, 1.05.12.”
The 1970 Standard Specifications for Highway Construction are found in a bound volume of 735 pages. The specifications include definitions of terms, allocation of duties between the contractor and the state, payment terms, and hundreds of pages of highly technical and detailed information concerning construction methods and techniques, soil composition requirements, metal heat treating methods, and technical details touching almost every conceivable aspect of highway construction work for which the State of Michigan might contract. Relevant portions of the standard specifications, including Section 1.04.03(c), are routinely incorporated by reference in the highway department construction contracts not only to avoid the cumbersome necessity of reproducing the highly detailed information in every separate contract, but to enable prospective bidders upon state construction contracts to know in advance the bid requirements and construction specifications which will apply if they bid upon a state-owned highway construction project.
It is undisputed that no part of the 1970 Standard Specification for Highways Construction have ever been promulgated as agency rules within the meaning of § 7 of the Administrative Procedures Act as is required by chapter 3 of the act, as a condition of their validity. It is likewise undisputed that the statutory steps preliminary to the adoption of agency rules, including publication of the proposed rule, and publication and transmission of notice of public hearing were never undertaken with respect to Section 1.04.03(c) or any of the standard specifications.
We agree with the trial court and the Court of Appeals that Section 1.04.03(c) of the 1970 Standard Specifications for Highway Construction is not an agency rule within the meaning of § 7 of the Administrative Procedures Act. It is, as its title suggests, one of hundreds of standard contract terms and specifications governing the contractual relationship between the state and contractors engaged in state highway work. It follows, there fore, that the June 6, 1973 letter from the defendant’s Central Office Adjustment Board, and the endorsement thereof by the Director of the Department of State Highways, refusing to allow extra compensation, did not constitute "a declaratory ruling as to the applicability * * * of a rule or order of the [defendant] agency” subject to circuit court judicial review under § 63 of the act.
Similarly, there was no basis for a declaratory judgment concerning "the validity or application of a rule” under § 64 of the act.
II
In addition to the judicial review of administrative action sought in count I of its complaint, plaintiff prayed in count II for a declaratory judgment:
"A. That the delays heretofore incurred have been on account of unusual conditions beyond the control of plaintiff.
"B. That plaintiff is entitled to an extension of the contract time to compensate it for those days unavoidably lost by reason of said delays.
"C. That said extension of time should be an additional compensatory working day during the normal working season on Lake St. Clair, April 1 through November 1, for each day lost by plaintiff as a result of:
(1) Change of conditions at work site.
(2) Stop Order issued by Army Corps of Engineers.
The defendant claims the circuit court was without jurisdiction to entertain the complaint for declaratory relief and that the plaintiff’s exclusive remedy is in the Court of Claims.
We agree, but for reasons not fully addressed by either party.
This Court has long recognized the well established rule that a state cannot be sued without its consent, granted by legislative enactment. McNair v State Highway Department, 305 Mich 181, 187; 9 NW2d 52 (1943); Mead v Michigan Public Service Commission, 303 Mich 168, 173; 5 NW2d 740 (1942); Manion v State Highway Commissioner, 303 Mich 1, 19; 5 NW2d 527 (1942); cert den 317 US 677 (1942); McDowell v Warden of Michigan Reformatory at Ionia, 169 Mich 332, 337; 135 NW 265 (1912); Board of Supervisors of Sanilac County v Auditor General, 68 Mich 659; 36 NW 794 (1888); Michigan State Bank v Hastings, 1 Doug 225 (Mich, 1844).
There is, of course, a distinction between sovereign immunity from suit and sovereign immunity from liability.
Legislative waiver of a state’s suit immunity merely establishes a remedy by which a claimant may enforce a valid claim against the state and subjects the state to the jurisdiction of the court.
By waiving its immunity from liability, however, the state concedes responsibility for wrongs attributable to it and accepts liability in favor of a claimant. In so doing it may even create a cause of action in favor of the claimant which did not theretofore exist. Minty v Board of State Auditors, 336 Mich 370; 58 NW2d 106 (1953); Van Antwerp v State, 334 Mich 593; 55 NW2d 108 (1952).
It was to various aspects of the issue of sovereign immunity from liability that this Court addressed itself repeatedly in the last decade, most recently upholding statutory state tort immunity in Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976), and abolishing judicially created tort immunity in Pittman v Taylor, 398 Mich 41; 247 NW2d 512 (1976).
We address today, however, the issue of sovereign immunity from suit. Broadly stated, the issue is whether the State of Michigan’s sovereign immunity from suit has been waived to the extent that it may be sued in our courts of general jurisdiction upon a complaint for declaratory judgment.
While it is clear that the circuit court has general original jurisdiction in matters of law and equity, including jurisdiction to issue declaratory judgments, its jurisdiction is not limitless.
Article 6, § 13 of the Constitution of the State of Michigan provides in part:
"The circuit court shall have original jurisdiction in all matters not prohibited by law. ” (Emphasis added.)
MCLA 600.605; MSA 27A.605 provides:
"Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state. ” (Emphasis added.)
To the foregoing emphasized exceptions this Court has earlier and repeatedly added those cases in which the defendant is by its sovereignty suit-immune. Lucking v People, 320 Mich 495; 31 NW2d 707 (1948); Manion v State Highway Commissioner, supra; Missouri Tie & Lumber Co v Sullivan, 275 Mich 26; 265 NW 779 (1936); McDowell v Warden of Reformatory, supra; People ex rel Ayres v Board of State Auditors, 42 Mich 422; 4 NW 274 (1880).
Thus it is well settled that the circuit court is without jurisdiction to entertain an action against the State of Michigan unless that jurisdiction shall have been acquired by legislative consent.
In 1939, with enactment of the Court of Claims Act, the Legislature, for the first time, adopted a comprehensive legislative scheme authorizing suit against the State of Michigan and its various agencies. Prior to that time the Legislature had permitted suit only against a few selected state agencies and then only for limited periods. Save for these scattered exceptions, until 1939 the state could not be sued because the requisite legislative consent had not been given. McDowell v Warden of Reformatory, supra.
Today the Court of Claims Act stands as this state’s controlling legislative expression of waiver of the state’s sovereign immunity from direct action suit against it and its agencies and of their submission to the jurisdiction of a court.
It is controlling because in addition to authorizing suit against the state, the act also limits any prior legislative authorization which may be inconsistent with the act. Those scattered legislative expressions waiving the state’s suit immunity which were enacted prior to the original Court of Claims Act must be construed within the terms and in light of the subsequent act. Such construction is mandated by the sweeping language of the act which clearly manifests the Legislature’s intent to limit its authorization to suits in the Court of Claims. So construed, the Court of Claims Act is both permissive and restrictive. This Court has heretofore applied this rationale to post-Court of Claims Act legislation waiving suit immunity by holding that the scope of any such authorization is limited by the terms and conditions of jurisdiction established in the Court of Claims Act. Hirych v State Fair Commission, 376 Mich 384, 390; 136 NW2d 910 (1965).
It follows logically, therefore, that to the extent any pre-Court of Claims Act authorization of suit may exceed the jurisdictional limitations imposed by the Court of Claims Act, the former is superseded and limited by the latter. To the extent inconsistent with our opinion today, Hunt v State Highway Commissioner, 350 Mich 309; 86 NW2d 345 (1957), is expressly overruled.
We have heretofore held that a statutory relinquishment of common-law sovereign immunity from suit must be strictly construed. Manion v State Highway Commissioner, supra, 19. Thus a cause of action brought pursuant to a waiver of suit immunity must be of a nature and in a forum permitted by the waiver.
The Court of Claims Act is manifestly a narrowly limited waiver of suit immunity. It restricts by its terms the kinds of claims which may be brought, creates a previously nonexistent court of limited jurisdiction wherein such claims may be prosecuted, and declares the new forum to have exclusive jurisdiction to hear them.
The pertinent section of the act provides:
"(1) Except as provided in section 6440, the jurisdiction of the court of claims as conferred upon it by this chapter over claims and demands against the state or any of its departments, commissions, boards, institutions, arms or agencies, shall be exclusive. The state administrative board is hereby vested with discretionary authority upon the advice of the attorney general, to hear, consider, determine and allow any claim against the state in an amount less than $100.00. Any claim so allowed by the state administrative board shall be paid in the same manner as judgments are paid under section 6458 upon certificátion of the said allowed claim by the secretary of the state administrative board to the clerk of the court of claims. The court has power and jurisdiction:
"(a) To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms or agencies.” (Emphasis added.) MCLA 600.6419; MSA 27A.6419.
This Court has previously recognized the limited scope of the Court of Claims Act as a waiver of sovereign suit immunity, in holding that court to be without "the broad and inherent powers of a constitutional court of general jurisdiction”. Taylor v Auditor General, 360 Mich 146, 150; 103 NW2d 769 (1960).
In sharply restricting the causes of action which may be brought against the state and in creating a new court of limited and exclusive jurisdiction solely for that purpose, the Legislature indicated with ringing clarity that its waiver of sovereign suit immunity under the Court of Claims Act was limited to the prosecution of claims within the Court of Claims.
We hold, for the foregoing reasons, that the circuit court was without jurisdiction to entertain the plaintiffs suit for judicial review and declaratory judgment under the Administrative Procedures Act, or declaratory judgment under GCR 1963, 521.
The Court of Appeals is affirmed.
Coleman and Fitzgerald, JJ., concurred with Ryan, J.
A meeting of the parties’ representatives was held at the highway department’s Detroit office on April 4, 1973. On April 10, 1973 plaintiff was advised by letter that "the Lansing construction office, in conjunction with the Attorney General’s Department, does not feel that a changed condition exists and will not consider additional compensation due to a change in the water level”.
On April 24, 1973 Greenfield addressed a letter to the Director of the State Highway Department summarizing its position and requesting his "intervention” to arrange a meeting with Greenfield’s representatives and the defendant’s board of review.
A meeting was held on May 10, 1973 between representatives of Greenfield and the defendant department. Following receipt of the recommendation of the board, the director of defendant highway department, by letter dated June 6, 1973, advised Greenfield that its request was denied.
MCLA 24.263; MSA 3.560(163):
"On request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency. An agency shall prescribe by rule the form for such a request and procedure for its submission, consideration and disposition. A declaratory ruling is binding on the agency and the person requesting it unless it is altered or set aside by any court. An agency may not retroactively change a declaratory ruling, but nothing in this subsection prevents an agency from prospectively changing a declaratory ruling. A declaratory ruling is subject to judicial review in the same manner as an agency final decision or order in a contested case.”
MCLA 24.264; MSA 3.560(164):
"Unless an exclusive procedure or remedy is provided by a statute governing the agency, the validity or applicability of a rule may be determined in an action for declaratory judgment when the court finds that the rule or its threatened application interferes with or impairs, or imminently threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The action shall be filed in the circuit court of the county where the plaintiff resides or has his principal place of business in this state or in the circuit court for Ingham county. The agency shall be made a party to the action. An action for declaratory judgment may not be commenced under this section unless the plaintiff has first requested the agency for a declaratory ruling and the agency has denied the request or failed to act upon it expeditiously. This section shall not be construed to prohibit the determination of the validity or applicability of the rule in any other action or proceeding in which its invalidity or inapplicability is asserted.”
MCLA 24.241; MSA 3.560(141):
"(1) Before the adoption of a rule an agency shall give notice of a public hearing and offer any person an opportunity to present data, views and arguments. The notice shall be given within the time prescribed by any applicable statute, or if none then at least 10 days before the public hearing and at least 20 days before the adoption of the rule. The notice shall include:
"(a) A reference to the statutory authority under which the action is proposed.
"(b) The time and place of the public hearing and a statement of the manner in which data, views and arguments may be submitted to the agency at other times by any person.
"(c) A statement of the terms or substance of the proposed rule or a description of the subjects and issues involved, and the proposed effective date of the rule.
"(2) The agency shall transmit copies of the notice to the joint committee on administrative rules, the legislative service bureau, the office of the governor and all persons who have requested the agency in writing for advance notice of proposed action which may affect them. The notices shall be by mail or otherwise in writing to the last address specified by the person. Requests for notices shall be renewed each December.
"(3) The public hearing shall comply with any applicable statute but is not subject to the provisions of this act governing contested cases, unless a rule is required by law to be adopted pursuant to adjudicatory procedures.”
1939 PA 135, subsequently amended and re-enacted as 1961 PA 236, MCLA 600.6419; MSA 27A.6419.
Taylor v Auditor General, 360 Mich 146, 149-150; 103 NW2d 769 (1960); Mead v Michigan Public Service Commission, supra, 170; Manion v State Highway Commissioner, supra, 20-21.
See for example McDowell v Warden of Reformatory, supra. (Suit against a state prison warden brought under authority of 1897 CL 2091. The provision authorizing suit was repealed by 1911 PA 219.)
Wheeler v Board of Control of State Public School, 137 Mich 291; 100 NW 394 (1904). (Contract suit against the Board of Control of the State Public School brought under authority of 1897 CL 2021. 1903 PA 143 rescinded said board’s corporate powers thereby repealing the provision authorizing it to sue and be sued.)
MCLA 600.6419; MSA 27A.6419.
Hunt held that a circuit court had equitable jurisdiction to issue a permanent injunction and order specific performance of a contract for the sale of private lands to the state through the State Highway Commissioner. The harsh facts involved a written contract for the sale of a business site owned by a husband and wife to the state for highway construction purposes. The state agent who negotiated the deal was later fired for misconduct and prosecuted. Thereafter the highway commissioner attempted to renege on the agreement to pay the plaintiffs some $97,500 after the plaintiffs had indebted themselves upon a $30,600 bank loan in order to acquire a new site for their business.
This Court appeared to rest its approval of the circuit court’s exercise of equitable jurisdiction on three grounds:
1. That by authorizing the highway commissioner to make contracts in connection with the purchase of lands and expend funds appropriate for that purpose the Legislature waived the state’s (highway commissioner’s) suit immunity in connection therewith;
2. That the action at law available to the plaintiffs in the Court of Claims was, in that case, an inadequate remedy; and
3. That upon being sued in equity in the circuit court the defendant highway commissioner filed a cross-claim (nowadays a counterclaim) alleging fraud and seeking revision of the agreement and in so doing “submitted himself to the jurisdiction and thereby cast aside the vestments of immunity”.
How the court could be vested with subject-matter jurisdiction it did not otherwise have by a party (the state via its agent) “[submitting] himself to the jurisdiction” was not explained by the Court in Hunt.
In Taylor v Auditor General, this Court declared that the Court of Claims was without the jurisdiction to grant a declaratory judgment. This conclusion was premised on the fact that the declaratory judgment act did not authorize the rendition of declaratory judgments by any and all courts of record, but only those which had a law side and an equity side. Since the Court of Claims "does not possess the broad and inherent powers of a constitutional court of general jurisdiction”, in other words does not have an "equity side”, it could not render a declaratory judgment.
With the repeal of the declaratory judgment act, 1948 CL 691.501, by the Revised Judicature Act, MCLA 600.9901; MSA 27A.9901, the former language which restricted the power to render declaratory judgments to those courts which have both an equity side and a law side is no longer controlling. However, because the power of the Court of Claims is not at issue in this case, we decline to decide whether the Court of Claims is now empowered to render declaratory judgments. | [
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] |
Per Curiam.
Plaintiff appeals as of right the granting of summary disposition in favor of defendant. Plaintiff sustained a hand injury in a single-car accident that prevented him from continuing his employment. Defendant paid plaintiff wage-loss benefits under plaintiffs no-fault insurance policy. Defendant stopped paying wage-loss benefits to plaintiff and alleged that such payments should not be paid to plaintiff because plaintiff’s employer closed the factory at which plaintiff had worked.
On May 13, 1985, plaintiff was driving to work in the morning when he had a flat tire. Plaintiff injured his left ring finger while attempting to change the flat tire. Plaintiff was then unable to perform his job as an iron pourer at the CWC Foundry in Muskegon, Michigan. Defendant, pursuant to plaintiff’s no-fault policy, commenced paying plaintiff wage-loss benefits.
On June 29, 1986, defendant discontinued paying plaintiff wage-loss benefits as defendant deter mined that plaintiff had enough seniority within his union to have bumping rights, rights which would have enabled plaintiff to obtain favored work consistent with his medical restrictions. Plaintiff filed the instant suit against defendant, to force defendant to continue the wage-loss benefits.
As the instant suit progressed, defendant deposed Stephen P. Ives, manager of industrial relations at cwc. Ives stated that plaintiff worked at Plant No. 5, and that cwc closed Plant 3 on September 19, 1986. Thus, Ives concluded, because of the closing of Plant 3, plaintiff would not have a job available to him, with or without medical restrictions, after the first quarter of 1987.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10). Defendant claimed there was no issue of material fact and that plaintiff failed to state a claim for wage-loss benefits accruing after December 31, 1986. The trial court granted defendant’s motion without stating if it was pursuant to (C)(8) or (C)(10). The trial court did note that defendant’s motion was granted from April 1, 1987.
A motion for summary disposition under MCR 2.116(C)(8) tests only the legal sufficiency of the pleadings. The court must accept as true all wellpled factual allegations as well as any conclusions which can reasonably be drawn therefrom. The court may grant the motion only when the claim, on the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could possibly justify the right to recovery. Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988).
In contrast, a summary disposition motion pursuant to MCR 2.116(C)(10) based on the lack of a genuine issue of material fact tests whether there is factual support for the claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Giving the benefit of any reasonable doubt to the nonmoving party, the court must determine whether the type of record which might be developed would raise an issue upon which reasonable minds might differ. Scameheorn, supra.
By statute in Michigan a person injured in an automobile accident can receive from his insurer wages lost due to the injury. MCL 500.3107; MSA 24.13107. This is true even if the injured person was temporarily unemployed at the time of the accident. MCL 500.3107a; MSA 24.13107(1) states:
Subject to the provisions of section 3107(b), work loss for an injured person who is temporarily unemployed at the time of the accident or during the period of disability shall be based on earned income for the last month employed full time preceding the accident.
Our Supreme Court interpreted § 3107a and stated:
The phrase "temporarily unemployed,” it is evident to us, refers to the unavailability of employment, not the physical inability to perform work. The legislative analysis of HB 4221 [HB 4221 became MCL 500.3107a; MSA 24.13107(1)] reveals a legislative concern with those who but for their disability could have received unemployment compensation as a substitute income. [MacDonald v State Farm Mutual Ins Co, 419 Mich 146, 153; 350 NW2d 233 (1984).]
This Court has stated:
We conclude that had the Legislature intended to circumscribe the class of unemployed persons eligible for wage loss benefits, it would have specif ically excluded unemployed persons, other than those who are unemployed as a result of seasonal employment or involuntary layoffs, from the class of individuals entitled to wage loss benefits. [Szabo v DAIIE, 136 Mich App 9, 14; 355 NW2d 619 (1983).]
In the instant case, plaintiff should receive wage-loss benefits as long as he is disabled for the statutory three-year period. The statute treats plaintiff the same as an employee who is injured during a layoff. Plaintiffs claim is not unenforceable as a matter of law and there exists an issue of material fact as to the degree of plaintiffs disability. It was error to grant summary disposition in favor of defendant pursuant to either MCR 2.116(C)(8) or (C)(10).
Defendant argues that the instant case is controlled by Luberda v Farm Bureau General Ins Co, 163 Mich App 457; 415 NW2d 245 (1987), and Smith v League General Ins Co, 424 Mich 893; 382 NW2d 168 (1986). However, the plaintiffs in Smith and Luberda suffered work loss due to incarceration in prison, and the cases can be distinguished from the case at bar.
Reversed and remanded. | [
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] |
Appellant’s motion for active status as a member of the State Bar of Michigan is denied. Before the appellant may be returned to active status, a change of circumstances should be shown so the Court may conclude that the requirements of State Bar Rule 15, §§ 7(f) and 7(h) are satisfied.
Reported at 398 Mich 377. | [
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Rehearing denied.
Reported at 402 Mich ante, p 172. | [
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Murphy, J.
Plaintiff appeals as of right from the lower court’s denial of her postjudgment motion for attorney fees pursuant to a jury verdict in her favor on her handicappers’ civil rights claim against defendant. We reverse and remand.
In July, 1983, plaintiff filed suit against defendant alleging defendant discriminated against her by withdrawing an offer of employment after defendant learned that plaintiff had been treated for a manic-depressive illness. As part of her prayer for relief, plaintiff specifically requested that defendant pay all plaintiff’s attorney fees and costs.
Following a July, 1985, jury trial a $34,500 verdict was rendered in plaintiff’s favor. On August 9, 1985, plaintiff forwarded a proposed judgment to defendant which provided for judgment as awarded by the jury with interest, costs, and attorney fees to be determined by the court. Defendant responded by writing to plaintiff offering that it would forego the pursuit of posttrial motions and filing an appeal if plaintiff agreed that defendant need only pay the amount of the verdict and interest to date and plaintiff did not pursue her claim for attorney fees and costs. Plaintiff did not respond to defendant’s letter and on March 10, 1986, plaintiff filed an objection to entry of judgment with the circuit court. Plaintiff claimed she was entitled to an award of attorney fees. Nonetheless, three days later, the court entered a judgment order in plaintiff’s favor in the amount of $34,500 with no provision for attorney fees or costs. Two weeks later, defendant again wrote plaintiff asking if the case could be settled. Five weeks after that, on April 25, 1986, defendant sent the order of judgment to the circuit court clerk along with a check for $47,402 which represented the verdict award and interest. The clerk’s office then entered a satisfaction of judgment. However, the judgment did not indicate if satisfaction was in whole or in part as required by MCR 2.620.
Then, in November, 1986, plaintiff filed a motion requesting $21,275 in attorney fees and costs. Defendant claimed the motion was not timely. In February, 1987, the lower court, relying on Hines v Grand Trunk W R Co, 151 Mich App 585; 391 NW2d 750 (1985), issued an opinion and order concluding that the plain language of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., provided that attorney fees were recoverable only as an element of damages and not as an element of costs to be awarded by the court as is the case under Michigan’s Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Plaintiff now appeals as of right from the lower court’s order.
Plaintiff’s sole claim on appeal is that the Handicappers’ Civil Rights Act permits a prevailing plaintiff to seek reasonable attorney fees by way of a postjudgment motion. We agree.
The lower court in this case in denying plaintiffs motion relied on this Court’s decision in Hines, supra, as its own basis to deny attorney fees. In Hines, a jury awarded the plaintiff $793,000 together with interest and costs, following trial on his discrimination suit brought under the Michigan’s Handicappers’ Civil Rights Act. The defendant appealed the damage award and in a cross-appeal the plaintiff argued that the trial court erred by not taxing attorney fees on the defendant. The plaintiff had moved for attorney fees under MCL 37.1606(3); MSA 3.550(606)(3). The defendant in Hines objected, claiming that the subsection of the statute relied upon by the plaintiff permitted recovery of attorney fees only as an element of damages, not as costs to be taxed by the court, and that the statute did not apply to the plaintiffs claim because the claim accrued before the subsection became effective. This Court concluded:
The trial judge correctly ruled that the plain language of the statute provides that attorney fees are an element of damages, not an element of costs to be awarded by the court, as in the Michigan Civil Rights Act. The trial court properly declined to consider an award of attorney fees as an element of costs. The judgment of the trial court is affirmed. [Hines, p 597.]
Notwithstanding this interpretation of the statute, two other panels of this Court have, at least implicitly, disagreed with Hines. In Bowen v Nelson Credit Centers, Inc, 137 Mich App 76; 357 NW2d 811 (1984), lv den 422 Mich 877 (1985), this Court held that attorney fees are allowed under MCL 37.1606; MSA 3.550(606) of the Handicap pers’ Civil Rights Act. The trial court in Bowen awarded the plaintiff $3,000 in attorney fees after the jury returned its verdict of $0 for violating the Handicappers’ Civil Rights Act, but failed to state its reasons for arriving at that figure. This Court remanded the matter for the trial court’s determination of its attorney fee award.
In addition, another panel of this Court in Rancour v The Detroit Edison Co, 150 Mich App 276; 388 NW2d 336 (1986), held that the award of attorney fees under a civil rights statute, such as the Handicappers’ Civil Rights Act, is a matter of discretion for the trial court. Id., p 292. Moreover, in exercising that discretion the court should consider a request for attorney fees under a civil rights statute in light of the legislative purposes involved as stated in King v General Motors Corp, 136 Mich App 301; 356 NW2d 626 (1984), lv den 422 Mich 871 (1985). Those purposes were stated in King as follows:
In our view, the Michigan Legislature intended to accomplish two purposes in enacting the attorney fee provision of the Elliott-Larsen Civil Rights Act. First, attorney fee awards are intended to encourage persons deprived of their civil rights to seek legal redress as well as to ensure victims of employment discrimination access to the courts. Seals v Henry Ford Hospital, 123 Mich App 329, 340; 333 NW2d 272 (1983). See also Hensley v Eckerhart, [461] US [424]; 103 S Ct 1933; 76 L Ed 2d 40 (1983) (interpreting the right to attorney fees in a civil rights action brought under 42 USC 1983). A second purpose in allowing attorney fee recovery under the Elliott-Larsen Civil Rights Act is to obtain compliance with the goals of the act and thereby deter discrimination in the work force. See Maine v Hiboutot, 448 US 1; 100 S Ct 2502; 65 L Ed 2d 555 (1980) (also interpreting the right to obtain attorney fees in an action brought under 42 USC 1983). [Id., pp 307-308.]
We believe that these purposes for allowing a court to award attorney fees under the Civil Rights Act apply with just as much force for a claim under the Handicappers’ Civil Rights Act.
Michigan adheres to the general rule that awards of costs and attorney fees are recoverable only where specifically authorized by statute, the court rules, or a recognized exception. Warren v McLouth Steel Corp, 111 Mich App 496, 507; 314 NW2d 666 (1981), lv den 417 Mich 941 (1982). The Handicappers’ Civil Rights Act provides in pertinent part the following:
(1) A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both.
(2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his or her principal place of business.
(3) As used in subsection (1), "damages” means damages for injury or loss caused by each violation of this act, including reasonable attorneys’ fees. [MCL 37.1606; MSA 3.550(606). Emphasis added.]
Thus, subsection (3) clearly authorizes the recovery of attorney fees and further evidences the Legislature’s intent that reasonable attorney fees could be awarded for violation of the act. We also note that this language is nearly identical to a relief provision of the Civil Rights Act. MCL 37.2801; MSA 3.548(801). Admittedly, the Civil Rights Act also contains an additional provision (§ 802) pertaining to the court’s authority to award attorney fees, costs, and witness fees which provides:
A court, in rendering a judgment in an action brought pursuant to this article, may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant in the action if the court determines that the award is appropriate. [MCL 37.2802; MSA 3.548(802).]
However, when the Legislature drafted the Handicappers’ Civil Rights Act, although it did not incorporate the above-quoted language, it specifically incorporated into that act a provision which makes the procedures followed under the Civil Rights Act applicable to the handicappers’ act:
A complaint alleging an act prohibited by this act shall be subject to the same procedures as a complaint alleging an unfair employment practice under Act No. 453 of the Public Acts of 1976, as amended, being sections 37.2101 to 37.2804 of the Michigan Compiled Laws (The Civil Rights Act). [MCL 37.1605; MSA 3.550(605). Emphasis added.]
In view of the Legislature’s clear desire to allow attorney fees in a handicappers’ action and our view of the similar purpose under both acts for permitting an award of attorney fees, we conclude that the above-quoted incorporation provision was meant to include the court’s power to award attorney fees as set forth in the Civil Rights Act.
Therefore, in consideration of the foregoing, a plaintiff pursuing a handicappers’ civil rights claim is not precluded from seeking an award of attorney fees in a posttrial or postinjunctive hearing motion. We hold that an award of attorney fees in a handicappers’ civil rights claim may be an element of costs to be awarded by the court in its discretion. This matter is remanded to the trial court so that a hearing may be conducted on plaintiff’s request for an award of attorney fees and costs.
Reversed and remanded. We do not retain jurisdiction.
Hood, J., concurred. | [
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Per Curiam.
On February 24, 1984, defendant pled guilty to a charge of larceny from a person, MCL 750.357; MSA 28.589. On July 18, 1985, defendant was sentenced to three years probation with the first six months to be spent in the county jail. On January 5, 1987, a probation violation hearing was held and defendant was found guilty of violating a condition of his probation. On Janu ary 15, 1987, defendant was sentenced to six to ten years in prison. Defendant appeals as of right. We affirm.
Defendant first argues that he was deprived of his constitutional right to effective assistance of counsel at the probation violation hearing and at sentencing. Defendant maintains that defense counsel failed to adequately prepare for the probation violation hearing and was ineffective in failing to review the presentence report with defendant before sentencing.
Trial counsel is presumed to have afforded effective assistance. People v Reinhardt, 167 Mich App 584, 591; 423 NW2d 275 (1988). This presumption can only be overcome by a showing of counsel’s failure to perform an essential duty, which failure was prejudicial to the defendant. The burden of proof is on defendant. Id.
In the present case, defendant did not sustain his burden of proving ineffective assistance of counsel. Based upon our review of the record, whether we follow Strickland v Washington, 446 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Dalessandro, 165 Mich App 569; 419 NW2d 609 (1988), lv den 430 Mich 880 (1988); or People v Garcia, 398 Mich 250, 264-266; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977), we conclude that defendant was not denied the effective assistance of counsel.
Defendant next argues that the trial court impermissibly considered at sentencing the fact that defendant had two charges of armed robbery pending against him. The trial court has wide discretion in sentencing and may consider defendant’s other criminal activity that did not result in conviction if defendant has a chance to refute the information. People v Johnson, 164 Mich App 634, 645; 418 NW2d 117 (1987). Defendant maintains that he was not given an opportunity to refute the charges at the time of sentencing. We disagree. Our review of the record reveals that defendant was afforded allocution prior to the imposition of sentence but that defendant did not refute the charges of armed robbery. Thus, we find no error.
Defendant lastly argues that the trial court abused its discretion in sentencing to the extent that it should shock the conscience of this Court. We disagree. In this case, the trial court properly considered defendant’s failure to abide by the court’s probation orders and defendant’s lack of rehabilitative potential as factors in imposing sentence. Furthermore, defendant’s sentence was within the limits prescribed by statute. Thus, we find that the trial court did not abuse its discretion in sentencing to the extent that the sentence shocks the conscience of this Court. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983).
Affirmed. | [
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Per Curiam:.
The sole issue in this automobile negligence case is a procedural one: whether the trial court erred in failing to set aside the clerk of the court’s dismissal of this action because plaintiffs personal service of process on defendant, although it occurred before dismissal, nevertheless came after the 180-day period from the date of the filing of the complaint during which the summons is valid under GCR 1963, 102.4. Under our decision in Goniwicha v Harkai, 393 Mich 255; 224 NW2d 284 (1974), it is clear that plaintiff is entitled to reinstatement of his complaint. To clarify practice in this area, however, we today publish for comment a proposed change in Rule 102, similar to that recommended by the Committee to Review and Consolidate the Court Rules.
I
A complaint was filed and a summons issued on October 30, 1972, in connection with an automobile accident between plaintiff and defendant on April 6, 1970. Plaintiff attempted to serve defendant under the nonresident motorist statute, but was unsuccessful. On August 7, 1973, however, plaintiff did obtain personal service on the defendant in Muncie, Indiana.
Subsequently, on September 19, 1973, the clerk of the circuit court entered an order dismissing the case without prejudice under GCR 1963, 102.5. Plaintiff’s October 18, 1973 motion to set aside the dismissal was denied by the circuit judge, as was a second motion to set aside the dismissal based on Goniwicha. The Court of Appeals distinguished Goniwicha and affirmed. 70 Mich App 456; 245 NW2d 787 (1976).
II
GCR 1963, 102.4 provides that:
"No summons shall be valid for longer than 180 days from the date of the filing of the complaint with the court. Duplicate summons shall not have the effect of extending the expiration of the original summons.”
GCR 1963, 102.5 provides for dismissal of an action if a defendant is not served within 180 days from the filing of the complaint; the clerk is to "automatically enter an order of dismissal”.
In Goniwicha, service occurred more than 180 days after filing of the complaint and issuance of the summons, but before the clerk dismissed. The circuit judge later granted an accelerated judgment on the basis of subrules 102.4 and 102.5, This Court peremptorily reversed. The language of the order does not discuss 102.4, but does include the following:
"While amended Rule 102 obliges the clerk of the court to dismiss a complaint upon the expiration of 180 days from the date of the filing of the complaint and provides that he shall 'automatically enter an order of dismissal’, the rule is not self-executing and until the clerk in fact dismisses the complaint, the complaint is not dismissed.” 393 Mich 257.
Goniwicha is controlling; the Court of Appeals erred in failing to follow it.
Ill
Plaintiff urges us to continue the Goniwicha rule that a summons is valid until the clerk enters a dismissal, despite the language of Rule 102.4.
The Committee to Review and Consolidate the Court Rules has been critical of Goniwicha:
"Goniwicha held that GCR 102.5 was not self-executing. If the clerk did not enter a dismissal, none occurred. The rule created an administrative nightmare for the court clerks, and left the rights of the parties dependent on the administrative operations of the clerk’s office. This situation was inequitable and unsatisfactory.” 402A Mich 96 (1978).
Consequently, the committee has recommended a revised form of Rule 102 which specifically includes the provisions that "Failure of the clerk to enter an order of dismissal does not continue an action deemed dismissed”. Proposed MCR 2.102E(2). We have been convinced by the committee’s presentation that the rule should be changed and that when a change is adopted, Goniwicha should no longer be followed. We have therefore incorporated the committee’s recommendation into a proposed amended Rule 102. We have, however, placed a one-year limit on the period for which a judge may extend the summons.
The proposed amendment to GCR 1963, 102 and DCR 102 is published for comment under GCR 1963, 933, as an appendix to this opinion. Comments should be forwarded to the clerk within 30 days after the rule is published in the Michigan Reports.
Reversed and remanded for further proceedings.
Kavanagh, C.J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Appendix
GCR 1963, 102. Summons; Expiration of Summons; Dismissal of Action as to Defendants
.1-3 (Unchanged.)
.4 Expiration. A summons expires 180 days after the date the complaint is filed unless the judge, within that 180 days, orders a second summons to issue for a definite period not exceeding one year from the date of the order. The judge may impose just conditions on the issuance of the second summons. Duplicate summonses, ordinarily issued, do not extend the life of the original summons.
.5 Dismissal of Action, Defendant not Served.
(a) 180 days after the first complaint in the action is filed, or if the court has extended the time for service under subrule 102.4, on the expiration of the 180-day period as extended,
(1) an action is deemed dismissed without prejudice as to a defendant who has not been served with process under rule 105 or 106, unless the defendant has submitted to the court’s jurisdiction; and
(2) the clerk shall examine the court records and enter an order dismissing the action as to a defendant who has not been served with process or submitted himself to the court’s jurisdiction.
(b) The clerk’s failure to enter a dismissal order does not continue an action deemed dismissed. The clerk must give notice of the entry of a dismissal order under rule 107 and record the date of the notice in the case file. The failure to give notice does not affect the dismissal.
.6 (Unchanged.)
DC Rule 102. Summons; Expiration of Summons; Dismissal of Action as to Defendants
.1-3 (Unchanged.)
.4 Expiration. A summons expires 180 days after the date the complaint is filed unless the judge, within that 180 days, orders a second summons to issue for a definite period not exceeding one year from the date of the order. The judge may impose just conditions on the issuance of the second summons. Duplicate summonses, ordinarily issued, do not extend the life of the original summons.
.5 Dismissal of Action, Defendant not Served.
(a) 180 days after the first complaint in the action is filed, or if the court has extended the time for service under subrule 102.4, on the expiration of the 180-day period as extended,
(1) an action is deemed dismissed without prejudice as to a defendant who has not been served with process under rule 105 or 106, unless the defendant has submitted to the court’s jurisdiction; and
(2) the clerk shall examine the court records and enter an order dismissing the action as to a defendant who has not been served with process or submitted himself to the court’s jurisdiction.
(b) The clerk’s failure to enter a dismissal order does not continue an action deemed dismissed. The clerk must give notice of the entry of a dismissal order under rule 107 and record the date of the notice in the case file. The failure to give notice does not affect the dismissal.
.6-.7 (Unchanged.)
GCR 1963,102.5:
"Every action shall be dismissed, without prejudice, as to any defendant in the action who has not been served with process personally, by substituted service or by publication within 180 days from the date of the filing of the first complaint in the action with the court unless that defendant has filed any pleading in the action within that period of time, in which event, the action shall not be dismissed as to that defendant.
"(1) Upon the expiration of 180 days from the date of the filing of the first complaint in the action with the court, the clerk of the court in which the complaint was filed shall examine the court records in the action and, if he determines that any defendant in the action has not been served with process within that period of time, he shall automatically enter an order of dismissal as to that defendant as provided above. This sub-rule shall not apply if that defendant has filed any pleading in the action within that period of time.
"(2) Notice of the entry of the order of dismissal shall be given by the clerk of the court as provided by rule 107 but failure to give such notice shall not affect the dismissal.” | [
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Murphy, J.
Petitioner appeals as of right from an order of the circuit court which affirmed the June, 1985, decision of the Commissioner of Insurance denying petitioner’s application for licensure as an insurance agency.
Petitioner, THM, Ltd., is a wholly owned subsidiary of Detroit & Northern Savings and Loan, a federally chartered savings and loan association. In October, 1983, petitioner applied to the Michigan Insurance Bureau to be licensed as an insurance agency. Ninety-nine percent of d&n’s loan portfolio consists of real estate mortgages. Eighty-five percent of these mortgages are on one-to-four family dwellings, and fourteen percent are commercial real estate loans. D&n requires insurance on the collateral for its real estate loans and it currently offers credit insurance in conjunction with its new installment loan program. D&n wanted to enter the insurance business in order to offer more services to its customers and to increase its profits. D&n’s goal is to enable its customers to obtain their loans and their insurance through D&N.
The insurance bureau staff challenged petitioner’s application claiming that several violations of the Michigan Insurance Code would occur if petitioner became licensed and conducted business according to its announced plan. MCL 500.1242(3); MSA 24.11242(3) sets forth the standards upon which the Insurance Commissioner can refuse to grant a license. It provides:
After notice and opportunity for a hearing, the commissioner may refuse to grant or renew a license to act as an agent, solicitor, adjuster or insurance counselor if he determines by a preponderance of the evidence, that it is probable that the business or primary occupation of the applicant will give rise to coercion, indirect rebating of commissions or other practices in the sale of insurance which are prohibited by law.
The Independent Insurance Agents of Michigan and other insurance agencies intervened in opposition to petitioner’s licensure. Throughout 1984, the parties were involved in extensive discovery and procedural motions, including a motion by petitioner for summary judgment. A referee denied petitioner’s motion following a lengthy hearing. In January, 1985, a hearing was held before hearing referee Edward F. Rodgers. Following the hearing, both sides presented posthearing briefs and responses. On April 5, 1985, the referee issued a proposal for decision. Petitioner, the insurance bureau staff, and the intervenors filed exceptions to the proposal.
On June 10, 1985, the Insurance Commissioner issued a final decision denying petitioner’s application for licensure as an insurance agent pursuant to MCL 500.1242(3); MSA 24.11242(3). The commissioner determined that, if the license was granted, it would probably give rise to coercion in violation of three sections of the Insurance Code. In October, 1987, the circuit court affirmed the Insurance Commissioner’s decision. Petitioner now appeals as of right.
Petitioner first contends that the commissioner’s finding that petitioner’s plan to send mailings to its customers would probably give rise to violations of MCL 500.2077(2); MSA 24.12077(2) was unsupported by competent, material and substantial evidence. We disagree.
An administrative decision, following a hearing held pursuant to the provisions of the Michigan Administrative Procedures Act, MCL 24.306; MSA 3.560(206), is to be upheld if it is supported by competent, material and substantial evidence on the whole record. Const 1963, art 6, § 28; MCL 24.306(l)(d); MSA 3.560(206)(l)(d); Auto Club Ins Ass’n v Comm’r of Ins, 144 Mich App 525, 529-530; 376 NW2d 150 (1985). Under this standard, the agency’s decision must be upheld if it is supported by such evidence as a reasonable mind would accept as adequate to support the decision. Kieffer v Dep’t of Licensing & Regulation, 169 Mich App 312, 315; 425 NW2d 539 (1988). Strict deference must be given to an administrative agency’s findings of fact. Michigan Ed Ass’n v North Dearborn Heights School Dist, 169 Mich App 39, 46; 425 NW2d 503 (1988); Kieffer, supra, p 315. This Court will reverse only if the decision of the commissioner is not authorized by law or amounts to arbitrary action. Kieffer, supra, p 315.
In this case, the Insurance Commissioner found that § 2077(2) of the Insurance Code would be violated if d&n carried out its plan to send general mailings to its customers informing them of petitioner’s existence and that petitioner sells insurance.
Section 2077(2), MCL 500.2077(2); MSA 24.12077(2), provides:
If an instrument requires that a purchaser, mortgagor or borrower furnish insurance of any kind on real property being conveyed or which is collateral security to a loan, the vendor, mortgagee or lender shall refrain from using or disclosing any such information to his own advantage or to the detriment of the purchaser, mortgagor, borrower, insurance company or agency complying with such requirement.
The Insurance Commissioner stated that this section prohibits a lender from using a real estate borrower’s insurance data to compete with other insurance agencies, or to make a profit at the expense of the borrower. The insurance information about a borrower available to petitioner included such items as the information that identified the borrower, the location of the insured property, construction type, size, market value, current coverage, and the expiration date of current coverage. In her findings of fact, the Insurance Commissioner found that insurance information about d&n real estate borrowers protected by § 2077(2) would be made available to petitioner or for petitioner’s benefit for insurance prospecting and that §2077(2) would probably be violated if petitioner was licensed.
The commissioner based her findings on the marketing strategy that petitioner and d&n announced that they would pursue in their effort to enhance the penetration of d&n’s customer base. The commissioner found that petitioner and d&n’s marketing strategy relied heavily on "piggyback mailing,” which is the use of d&n’s mailing list to distribute advertisements for petitioner. The commissioner found that piggyback mailing was the functional equivalent of a physical transfer of borrowers’ insurance data to petitioner. The more accurately the mailings were targeted, the more "inside information” would be put at petitioner’s disposal.
The commissioner cited the deposition testimony of Ronald Hartman, vice-president of the insurance agency purchased by petitioner, that most replacement insurance is sold on the expiration date of an existing policy. The commissioner found that insurance agents accordingly want access to information about expiration dates and that d&n could supply that specific information. The commissioner also cited Hartman’s proposed marketing strategy for the solicitation of d&n customers which relied heavily upon exploitation of information about expiration dates of policies held by d&n customers. The marketing strategy included direct-mail solicitation, telephone solicitation, mailing pieces in d&n outgoing mail and establishing an expiration-date system.
Petitioner argued below that d&n would not use illegal information and that it would use only names and addresses of d&n customers. Petitioner claimed that insurance information about borrowers would be collected from public records. However, the commissioner found that serious ques tions emerged due to the marketing strategy that relied heavily on piggyback mailings. The commissioner found that information about who is a d&n customer is not available from the public record and that such information is proprietary. Therefore, d&n’s piggyback mailing was the functional equivalent of a physical transfer to petitioner of the borrower’s insurance data. Moreover, the commissioner found that d&n mailings to its customers could be targeted to the narrow group of real estate borrowers whose mortgages were approaching their anniversary date. This could enable d&n to send its solicitation out together with its annual mailing of mortgage payment books. The conclusion from the commissioner’s findings was that insurance information about d&n real estate borrowers protected by § 2077(2) would be available to petitioner in violation of that section.
The trial court determined that the commissioner’s decision on this issue was substantiated by the evidence on the whole record. It agreed that it was d&n’s strategy to rely heavily on the piggyback mailings. Based on d&n’s sizable mailing system, and due to its sizable and widespread marketing, that strategy would give preference to d&n over other Michigan savings and loan institutions, and would be disadvantageous to other insurance competitors.
Section 2077(2) is clear in that a lender is not to benefit from its knowledge that a borrower must have insurance on the real property which is collateral for the loan. Based upon our review of the record in this case a reasonable mind could accept that adequate evidence was presented to support the commissioner’s decision that d&n’s plan to send mailings to its customers would violate §2077(2). Dep’t of Licensing & Regulation, supra.
Petitioner next contends that the commissioner’s finding that licensure of petitioner would probably give rise to coercion of d&n’s customers is unsupported by the record.
The Insurance Commissioner found that efforts toward coercion and inducement would probably be. made on d&n customers to buy insurance through petitioner. The commissioner defined coercion and inducement as the use of d&n’s market power in the lending sector to sell a product in the insurance sector. The commissioner found that d&n had incentives to coerce and induce customers to deal with petitioner, since petitioner is a wholly owned subsidiary of d&n and d&n would be intensely interested in enhancing petitioner’s penetration of d&n’s customer base. The commissioner also found that lenders have significant leverage over people who are seeking credit, and that it was possible that d&n would make efforts to coerce and induce its customers to deal with petitioner. Moreover, the commissioner stated that it was not clear how d&n would conduct loan negotiations because its plans had changed in the course of the hearing. The commissioner found that there would be no adequate regulatory controls that could minimize the coercion and inducement directed at d&n customers with respect to the conduct of loan negotiations. The commissioner concluded that a significant amount of coercion and inducement takes place nationwide although such activity is illegal.
In arriving at her findings, the commissioner considered the testimony of Emmett Vaughn, an insurance economist who testified for the insurance bureau staff and intervenors. The commissioner cited Vaughn’s deposition testimony in regard to the existence of strong incentives of loan competitors to use whatever techniques are available to compete and increase profits of parent companies. The commissioner also cited Vaughn’s statements that, when a lender puts pressure on loan applicants to buy insurance from its affiliate, the applicants are not likely to complain, fearing that a complaint would jeopardize their access to credit.
The commissioner noted that the testimony of Benjamin Neff, petitioner’s insurance expert, that savings and loan associations are generally honorable institutions who bend over backwards to comply with regulations and rules or statutes, was not persuasive. She stated that it was possible that d&n, when faced with strong incentives, could be led to do dishonorable things and cited d&n’s shifting policies regarding the role of loan officers during negotiations with prospective buyers.
The trial court determined that there was competent, material and substantial evidence on the whole record that coercion would be present if petitioner was granted licensure. The court specifically cited a statement of Emmett Vaughn:
I think with respect to consumers it creates conditions in which their range of choices could be narrowed either explicitly or in their own minds.
The court also cited Vaughn’s discussion of the efforts made in other states to try to alleviate such conditions even when borrowers signed forms indicating that they knew they were not required to purchase any insurance:
There are dozens of ways that we have tried to sanitize the transaction. None of them seem to have worked.
I think that the voluntary tie-in, of course, is structural. It is inherent in the combination of the sale of any product and the extension of credit. People think that they will enhance the likelihood that they are going to get the credit by buying this other product.
The trial court also cited the testimony of Jean Carlson, the acting deputy commissioner of insurance. Carlson stated:
We were concerned about the potential for coercion which is inherent in a financial institution’s relationship with an application for a loan for a continuing customer who needs to go to that institution for occasional increases or refinancing or cyclical type of refinancing arrangement, or even for individuals who have got a loan but then, because of escrow reasons or other reasons, may find themselves having to continue their relationship with the financial institutions about their insurance needs.
The trial court stated that it was clearly in d&n’s interest to have petitioner benefit by selling insurance. The court noted Wayne Knecht’s testimony that d&n was petitioner’s sole owner and therefore had an interest in petitioner’s success. The trial court concluded that the commissioner’s determination relative to coercion was properly supported by the record.
Based upon our thorough review of the record relative to this issue, we believe that there was competent, material and substantial evidence on the whole record to support the commissioner’s findings.
Petitioner next contends that the commissioner improperly interpreted § 1207(3) and § 2017 of the Insurance Code. We disagree.
Section 1207(3), MCL 500.1207(3); MSA 24.11207(3), provides:
Except as provided in sections 1212 and 1860 and subsection (4) an agent shall not reward or remunerate any person for procuring or inducing business in this state, furnishing leads or prospects, or acting in any other manner as an agent.
Section 2017, MCL 500.2017; MSA 24.12017, provides:
The following are defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance:
Issuing or delivering or permitting agents, officers, or employees to issue or deliver, agency company stock or other capital stock, or benefit certificates or shares in any common law corporation, or securities or any special or advisory board contracts or other contracts of any kind promising returns and profits as an inducement to insurance.
This Court in Lawyers Title Ins Corp v Chicago Title Ins Co, 161 Mich App 183, 192; 409 NW2d 774 (1987), specifically addressed the application of § 1207(3). In that case, real estate brokers sought alternative means of benefitting from real estate referrals which they controlled. Many of the brokers established their own title insurance companies to which they referred their real estate customers. As shareholders in these companies, the brokers received dividends based on the companies’ profits, which were directly derived from the referrals of the brokers.
Lawyers Title Insurance Company recognized the possible financial benefits and entered into agreements with the real estate brokers who became the exclusive agents of Lawyers Title. Lawyers Title conducted the title searches and issued title insurance policies to the brokers’ title insurance companies. In turn, when Lawyers Title earned profits, it paid substantial dividends to the shareholders, who were the real estate brokers who had referred the business.
The Insurance Commissioner in that case held that § 1207(3) would be violated when the licensed title agencies were rewarding and remunerating the shareholder-owner-broker based upon the number of shares owned by each broker, for the owner-broker’s referral of his title insurance business. This Court agreed.
The facts of that case are similar to this case. D&n is the sole shareholder of petitioner. D&n would profit from petitioner’s success because d&n has the capacity to steer its borrowers to petitioner. Similar to the real estate brokers in Lawyers Title, supra, who received dividends for referring their insurance business, d&n would benefit from referring its customers to petitioner.
Petitioner argues that Lawyers Title is distinguishable from this case because interpretation of § 1207(3) in Lawyers Title only applied when dividends were based on the amount of business referred by the parent to the subsidiary. Petitioner claims that there is no evidence showing that the amount of dividends which will be paid by petitioner to d&n would be dependent upon the amount of business d&n refers to petitioner. Even if this is so, this Court in Lawyers Title, supra, p 194, stated that it was irrelevant under § 1207(3) whether the brokers received dividends in direct proportion to their referrals. Rather, the important facts were that the brokers were receiving dividends from respondents for procuring title insurance business and that they were receiving these dividends for the amount of title insurance business they were expected to refer.
We conclude that in this case the Insurance Commissioner properly determined that it was probable that petitioner would violate § 1207(3). Wayne Knecht testified that d&n would profit regardless of whether dividends were paid. It is obvious to us that, if the license is granted to petitioner, the more business petitioner has, the more profit d&n would make regardless of whether any dividends are ever paid. Therefore, the commissioner’s finding that § 1207(3) would probably be violated if petitioner is licensed was supported by competent, material and substantial evidence.
Finally, petitioner contends that the Federal Home Loan Bank Board, pursuant to authority granted by Congress, has determined that it is appropriate for federal savings and loan associations to own insurance agencies. Therefore, the commissioner’s decision must be set aside. Petitioner contends that the commissioner’s position frustrates the federal regulatory scheme imposed by Congress and is in violation of the Supremacy Clause of the United States Constitution. We disagree.
MCL 24.306(l)(a); MSA 3.560(206)(l)(a) provides that a decision or order of an agency may be set aside on the ground that it violates the constitution or a statute. In this case, petitioner claims that the Insurance Commissioner’s decision violates the Supremacy Clause of the United States Constitution.
The doctrine of federal preemption arises from the Supremacy Clause of the United States Constitution, art VI. The United States Supreme Court has consistently held since McCulloch v Maryland, 12 US 316; 4 L Ed 314 (1819), that federal preemption of state law requires a clear congressional intent. Congressional intent to preempt can be found if it can be shown that it was Congress’ purpose to dominate a particular field. Rice v Santa Fe Elevator Corp, 331 US 218, 230; 67 S Ct 1146; 91 L Ed 1447 (1947). There is always a presumption against preemption. Chicago & North Western Transportation Co v Kalo Brick & Tile Co, 450 US 311, 317; 101 S Ct 1124; 67 L Ed 2d 258 (1981). The presumption against preemption is particularly strong if it is an area that is traditionally occupied by the state. Jones v The Rath Packing Co, 430 US 519, 525; 97 S Ct 1305; 51 L Ed 2d 604 (1977). In addition, there must be an unambiguous congressional mandate to preempt. Florida Lime & Avocado Growers, Inc v Paul, 373 US 132, 147; 83 S Ct 1210; 10 L Ed 2d 248 (1963). See also People v Massey, 137 Mich App 480, 486-487; 358 NW2d 615 (1984), lv den 422 Mich 930 (1985).
In this case, petitioner claims that the Insurance Commissioner hindered the operation of a program explicitly authorized and encouraged by federal regulation and that precluding d&n’s ownership of petitioner insurance company clearly creates an obstacle to d&n’s operations which is in direct conflict with and frustrates the regulatory scheme.
D&n is a federal association, chartered by, and operating under, the rules and regulations of the Federal Home Loan Bank Board. Petitioner cites the Homeowners Loan Act, 12 USC 1464, and 12 CFR 545.74 as the federal grant of authority for savings and loan service corporations to engage in insurance agency activities, and to preempt state decisions as to licensure and regulation. There is authority for federal savings and loan association service corporations to engage in insurance agency activities. 12 CFR 545.74(c)(5)(ii). However, the right of states to regulate the insurance business is specifically recognized. 12 CFR 555.17(c) provides:
Insurance Agencies — usurpation of Corporate Opportunity
(c) Exceptions. No corporate opportunity for a Federal association to enter the insurance business is deemed to have existed.
(iii) While a specific State statute or regulation precluded Federal association service corporations (or their wholly-owned subsidiaries) from engaging in the insurance business;
(iv) While State licensing or regulatory authorities whose prior approval is required to engage in the insurance business followed an established and well-known policy of refusing to accept or process applications from Federal association service corporations (or their wholly-owned subsidiaries) for permission to engage in the insurance business (an association need not demonstrate existence of such a policy by instituting legal proceedings to compel approval).
Although the regulation granted permissive authority for savings and loan associations to engage in insurance activities, such activities were intended to be subject to state licensure and regulation. Therefore, there is no federal preemption because the scheme of federal regulation is not so pervasive as to lead to a reasonable inference that Congress left no room for the states to supplement it.
The United States Supreme Court in Fidelity Federal Savings & Loan Ass’n v De la Cuesta, 458 US 141; 102 S Ct 3014; 73 L Ed 2d 664 (1982), examined the preemption issues in relation to the Homeowners Loan Act and the Federal Home Loan Bank Board regulations. The Supreme Court overturned the California Court of Appeals ruling that the State of California could restrict the use of due-on-sale clauses in mortgage contracts issued by a federal savings and loan association. However, the Court recognized that there were limits to the Federal Home Loan Bank Board’s power to promulgate regulations. Id., p 167. The Court also recognized that the broad language of 15 USC 1464(a), the statute that petitioner relies on, related to the board’s authority to regulate the operation of federal savings and loans, directing itself to the lending practices of federal savings and loans.
In De la Cuesta, the terms of the loan instruments, including due-on-sale clauses, fell within such operations and therefore caused federal preemption of the California state law. Id., pp 161, 167. De la Cuesta makes it clear that federal preemption under the Homeowners Loan Act and Federal Home Loan Bank Board regulations requires a finding that the regulated activity directly relates to mortgage lending practices. Id., p 174. In this case, the Commissioner of Insurance was not concerned with petitioner’s mortgage lending practices. The commissioner’s decision was based on the evidence of petitioner’s planned marketing strategies and policies. The commissioner took great care in pointing out the reasons why petitioner would be denied licensure. The commissioner stated that it was petitioner’s inadequate security against possible violations of the Insurance Code that led to her decision and, if petitioner had adequate controls, her conclusion may be different. The commissioner explicitly stated that the decision to deny petitioner licensure was based on the way petitioner planned to do business and not because of its status as a lender subsidiary.
Therefore, the commissioner’s ruling was supported by competent, material and substantial evidence on the whole record. It was within the commissioner’s authority to deny petitioner licensure and her decision was not preempted by any federal statute or regulation.
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Per Curiam.
Following a three-day jury trial in Wayne Circuit Court, the jury awarded Hospital Drug Company just compensation in the amount of $753,000 for the going-concern value of its business as an element of damages due to the Central Industrial Park Project condemnation, more commonly known as the Poletown condemnation. A final judgment and order confirming the jury verdict was entered on June 10, 1987. An order denying the City of Detroit’s motion to set aside the verdict and judgment and for entry of judgment in favor of the city or, alternatively, a new trial was entered on August 5, 1985. The city now appeals as of right.
This case arises out of the Poletown condemnation which commenced sometime in November, 1980. The city initiated formal condemnation proceedings against Hospital Drug, located at 6501 Chene, Detroit, Michigan (identified as Parcel No. 1198), on November 24, 1980.
Hospital Drug was a sole proprietorship, owned and operated by William Barron since 1946. In accordance with condemnation procedures, the city paid Hospital Drug its estimate of just compensation for the land and building in the amount of $87,000 and $29,860 for the immovable trade fixtures. The city did not offer nor pay for the loss of Hospital Drug’s liquor license or the going-concern value of the business.
On June 14, 1982, the plaintiff city filed a motion for summary judgment pursuant to GCR 1963, 117.2(1). The city alleged that Hospital Drug had failed to state a claim for going-concern value of the business as part of proper damages for the city’s taking. By order dated July 7, 1982, the city’s motion was granted. Hospital Drug appealed to this Court the grant of summary judgment.
On March 20, 1986, this Court reversed the grant of summary judgment on the issue of damages for going-concern value on the basis that Hospital Drug had adequately stated a claim for going-concern-value damages under Detroit v Michael’s Prescriptions, 143 Mich App 808; 373 NW2d 219 (1985). The case was remanded to the trial court for a determination of the going-concern value damages due to the taking. Detroit v Hospital Drug Co, unpublished opinion per curiam of the Court of Appeals, decided March 20, 1986 (Docket No. 68151).
Trial on the issue of the value of the going concern commenced on April 1, 1987. The parties stipulated that Hospital Drug would go forward with the evidence.
Barron, a pharmacist, owner and operator of Hospital Drug for thirty-five years, testified that the location of his business on the northwest corner of Chene and Milwaukee Streets was directly across from one of the busiest branches of the National Bank of Detroit. On the other corner was a commercial building with doctors’ offices. Buses ran on both Chene and Milwaukee with two stops at the corners. St. Joseph’s Mercy Hospital was one block away. There were many other doctors’ offices in the immediate area. One block away, there was a large apartment building with three hundred to four hundred apartments. There were also many businesses in the area, including the Dodge Main Plant, Bulldog Electric, Hooker Chemical, Bohn Aluminum, Houdaille, Midwest Paper, and Místele Coal. A Cunningham’s Drug Store, which had been in the area, closed sometime around 1950. The only other competitor for prescription drugs was Michael’s Prescriptions.
Barron described Hospital Drug as being a general store of about 2,000 to 2,500 square feet. One third of the store was devoted to prescription drugs, one third to liquor, beer, and wine, and the balance to general drugs, cosmetics, appliances, and other sundries. There were no other sundry stores located nearby.
Barron testified that customers came from all areas. Premier Famous Restaurant, which was located in the building, did a tremendous lunch business consisting largely of office workers in the area who also made purchases at Hospital Drug. The hours of operation were 8:00 a.m. to 6:00 p.m., Monday through Saturday, and 10:00 a.m. to 2:00 p.m. on Sunday. The drug store extended no credit to customers.
When Barron learned of the condemnation in 1980, he started looking for another place to relocate Hospital Drug. He initially went to the city for help. After several afternoons of looking with city officials, he was unable to find an adequate location for the drug store. Barron also looked on his own along with his son, a real estate broker. There was no available spot comparable to the present location. Barron sought to have the Liquor Commission transfer his liquor license, but, due to the restrictions placed on the license, he was unable to have it transferred.
Ultimately, Barron purchased the Jet Party Store in Hamtramck for $50,000. The store had previously had a liquor license. The store was located at 876 Joseph Campau on the corner of a residential side street. The neighborhood was run down with no commercial buildings or offices. In the area there was only one business, Kowalski Meats.
Sales at the new party store were a lot less than at the old store. Barron decided to sell out. He sold the store for $60,000 on February 4, 1982, for a loss of roughly $40,000. Barron attributed the loss to the fact there were no businesses in the area, the location of the store, and more competition because of other pharmacies in the area.
Orville Lefko, a certified public accountant, chartered financial analyst, and real estate broker, was retained in May, 1981, to perform a financial analysis of Hospital Drug. He was asked to determine (1) whether Hospital Drug was in a unique location and, if so, (2) the going-business value of the drugstore. Lefko’s training and inclination in valuing businesses is to take a conservative approach. A liberal approach would result in a higher valuation.
Lefko concluded that Hospital Drug was in a unique location by looking at comparable drugstores and comparing the financial results of Hospital Drug with the comparables. Charts were introduced to show this comparison to the jury. Lefko concluded that the reason for the extraordinary results of Hospital Drug was the location. The factors that made the location unique were the densely populated neighborhood, the corner location, the bus lines with corner stops, the bank across the street with a large parking lot which was also used by Hospital Drug customers, numerous plants in the area, the lack of competition (only Michael’s Prescriptions), the hospital and doctors’ offices, and the restaurant in the building. Lefko took into account the closing of the Dodge Main Plant in his analysis. He found that it must have had some impact, but it was not reflected in the sales. Sales went up after the closing.
In determining the going-concern value placed on this unique business location, Lefko followed "Ruling 59-60” of the Internal Revenue Service issued in 1959. According to Ruling 59-60, a finding of the normalized net income figure (cash flow), which is earnings adjusted for depreciation and management salaries, is calculated. That figure came to $142,000. This figure is then multiplied by the capitalization rate (the proper return for investment). Once this was done, the going-concern value was calculated to be $852,000, less inventory value, moveable fixtures, and the liquor license, resulting in a final figure of $753,000. The city did not cross-examine Lefko.
Peter H. Burgher, a certified public accountant, registered investment advisor, and expert in evaluating going-concern values, was hired in December, 1986, to review the data, including Lefko’s analysis and report, and present an independent analysis of the going-concern value of Hospital Drug. Burgher opined that the going-concern value of the drugstore was somewhere between $1,200,000 and $1,800,000. Burgher’s figures represented the value before deductions for which Barron had already been compensated (i.e., fixtures, liquor license, and inventory).
William T. Thompson, real estate administrator at the Community and Economic Development Department with the city, testified that he was chief of acquisition and disposition of the Poletown project. Thompson stated that, in terms of analyzing property taken in condemnation proceedings, the business and the real estate were considered inseparable. That was the method used in valuing Hospital Drug.
After Thompson’s testimony, the city rested. The city moved for a directed verdict, arguing that because the business and the real estate were inseparable, there was nothing for the jury to decide. The motion was denied. Following the ju ry’s award of $753,000 to Hospital Drug for its going-concern value, the city appealed. Hospital Drug filed a motion to affirm, which the Court of Appeals denied on March 18, 1988.
First, the city assigns error to the trial court’s refusal to issue the following requested instruction:
You have heard evidence that the value of the going concern could only be considered if it was determined that the location was unique. Where the value of the estate in land and the value of the business there conducted cannot be readily separated, the valuation ascribed to the estate in land may reflect the value of the business there operated. In such a case, it is entirely sound to refuse to award as a separate element of damages anything for loss of going concern value or goodwill to do so would be redundant.
The city claims that since Hospital Drug alleged that the success of its business could be attributed to no other factor than its location, then the issue whether the real estate and the business were inseparable became part of the case. The city alleges that, if the realty and the business were inseparable, any amount awarded for going-concern value would necessarily include a valuation of the real estate interest and would be redundant since Hospital Drug had already received compensation for the real estate. The city’s requested instruction is derived from the case of State Highway Comm v L & L Concession Co, 31 Mich App 222; 187 NW2d 465 (1971). In that case, the State Highway Commission, under MCL 213.171 et seq.; MSA 8.171 et seq., condemned a parcel of realty in Grand Rapids improved by an automobile racetrack and grandstands. L & L was the owner of a leasehold interest in the property where it held the exclusive grandstand concession rights for a specified time period. L & L sought to introduce evidence regarding the going-concern value of its leasehold interest. It was denied the opportunity to do so. On appeal, this Court held that it was error to exclude evidence of going-concern value. While recognizing that the good will or going-concern value of a business is generally not recoverable in condemnation proceedings, this Court nevertheless observed:
In a large number of cases owners and lessees have recovered going-concern value where the condemned property could not be realistically valued apart from the business there conducted, or, as it is sometimes said, the business for which the property is best "adapted.” [31 Mich App 232.]
Additionally, in L & L, pp 234-235, the Court stated that, where the value of the leasehold as an estate in land and the value of the business there conducted cannot readily be separated, the value ascribed to the leasehold may reflect the value of the business there operated, and the award of going-concern value as a separate element of damages is redundant. It is this aspect of the L & L case that the city claims applies to the case at bar. We disagree.
The trial judge issued the following instruction:
Now members of the Jury, you may find that Hospital Drugs is not entitled to any compensation because the owner could transfer the business to another location. Or any award would, by necessity include a payment for real estate for which he has already been compensated. Or you may find the Plaintiff has already been fairly and adequately compensated.
In this Court’s March 20, 1986, decision, supra, we had already determined that Hospital Drug was entitled to recovery of its going-concern value. We find no error requiring reversal with the instruction that was issued. As this Court stated in Michael’s Prescriptions, supra, p 819, recovery for going-concern value is allowed where the business derives its success from a location not easily duplicated or where relocation is foreclosed for reasons relating to the entire condemnation project. The trial court’s instruction clarified to the jury the issues in the case and was entirely proper since Hospital Drug maintained that it was the unique location not easily duplicated that made it a highly successful and profitable business. We find no error in the instruction issued and the trial court’s refusal to issue the city’s requested instruction.
In its second claim on appeal, the city argues that the trial court erred by denying the city’s motion for a directed verdict on the issue of going-concern value. The city contends that through Thompson’s uncontroverted testimony it was established that the business and real estate were inseparable, leaving nothing for the jury to decide.
In reviewing a trial court’s denial of a motion for a directed verdict, this Court must view the testimony, and all legitimate inferences that may be drawn therefrom, in the light most favorable to the nonmoving party and determine whether the evidence is sufficient to establish a prima facie case. Matras v Amoco Oil Co, 424 Mich 675, 681-682; 385 NW2d 586 (1986). If reasonable jurors could honestly have reached different conclusions, the motion should have been denied and the case should have been decided by the jury since no court has the authority to substitute its judgment for that of the jury. Id.; Bonelli v Volkswagen of America, Inc, 166 Mich App 483, 514; 421 NW2d 213 (1988). We find no error in the trial court’s decision to deny the city’s directed-verdict motion. We believe that viewing the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to Hospital Drug, reasonable jurors could disagree whether the compensation for going-concern value included a payment for the real estate for which Hospital Drug had already been compensated.
In its third claim on appeal, the city alleges that the trial court erred by instructing the jury on an improper range of value. Specifically, the city takes issue with the court’s instruction that, if the jury decided that Hospital Drug was entitled to going-concern value, the minimum amount could not be less than $753,000, as testified to by Lefko, and the maximum amount could be as high as $1,800,000, as testified to by Burgher.
Our review of the instruction on the range of going-concern value convinces us that no error took place. The instruction was supported by SJI2d 90.23, Range of Testimony, and Michigan case law. In In re Grand Haven Hwy, 357 Mich 20, 29; 97 NW2d 748 (1959), the Court stated that an award made by the jury in condemnation proceedings within the minimum and maximum amounts of damages, as disclosed by the record, is proper. Similarly, in Michael’s Prescriptions, supra, p 823, the Court held that, since the verdict was within the range of the valuation testimony offered at trial, the Court would not disturb the verdict on appeal.
In this case, Lefko testified to the minimum amount of the going-concern value while Burgher’s testimony revealed the possible maximum amounts. The city presented no testimony as to the going-concern value. Thus, the court correctly instructed the jury on the range of value.
The city also claims as error the following instructions to the jury:
Now members of the jury, you may find that Hospital Drugs is not entitled to any compensation because the owner could transfer the business to another location. Or any award would, by necessity include a payment for real estate for which he has already been compensated. Or you may find the Plaintiff has already been fairly and adequately compensated.
However, if you find the Plaintiff is entitled to recovery for going concern value, you should keep in mind the lowest valuation placed in evidence for the going concern of Hospital Drugs, is $750,000.00. And the highest valuation is $1,800,000.00.
The city claims that these two instructions constituted an improper mixing of a special verdict question, to wit: whether Hospital Drug was not entitled to compensation because the owner could transfer the business elsewhere, because the award would include a payment for real estate, or because Hospital Drug had already been fairly compensated. The general verdict question concerned the range of value. In support, the city relies on In re Medical Center Rehabilitation Project, 50 Mich App 164; 212 NW2d 780 (1973). In that case, the jury was instructed to find and return in writing both a special verdict as to the date of taking and a general verdict as to the value on that date. The Court found that the verdicts were inconsistent since the jury’s value did not reflect the evidence presented for the date which the jury determined was the date of the taking. The panel stated:
GCR 514 authorizes either a special verdict or a general verdict — not both.
If a verdict as to value is brought in then it must stand alone. It cannot be mixed with special questions such as the date of taking. Under proper instruction the jury can compute a final monetary figure, including interest to the date of trial, and render only a general verdict. If, as here, value is limited to uncontradicted evidence, then special questions submitted in accordance with GCR 514 procedures can be utilized in lieu of a general verdict as to value. [Emphasis in original. 50 Mich App 168-169.]
However, in In re Acquisition of Land — Virginia Park, 121 Mich App 153, 166; 328 NW2d 602 (1982), the Court found that, where the jury was instructed to return both a general verdict of compensation as of the taking date and a special verdict in regards to the date of the taking, the verdicts were not inconsistent because the value was within the range of evidence presented for the date of the taking found by the jury.
In this case, there was no mixing of special and general verdicts. The jury was instructed to fill in on the blank space provided on the verdict form the amount of compensation Hospital Drug should receive. The jury was instructed that it could determine for three reasons that Hospital Drug was entitled to no compensation. But, if compensation was to be awarded, then the amount must be within the range of value presented by the evi dence. The jury was told the date of the taking. Thus, the trial court did not err by issuing the instructions with respect to the verdict.
The city also takes issue with allowing the jury to hear Burgher’s valuation of the going-concern since his figure was based on the year 1981 when the date of the taking was November 24, 1980. While we agree with the city that it was error to receive this testimony since in condemnation cases an award must be based upon the market value of the property as of the date of the taking, SJI2d 90.13, the error was harmless. MCR 2.613(A). The jury returned a verdict in the amount suggested by Lefko. Even if Burgher valued the property for 1981, the jury did not rely on his figures in awarding just compensation.
Next, the city claims that it was error to admit three photographs depicting the Poletown area. We find no abuse of discretion in the admission of the three photographs. They were accurate, had probative value in the case, and assisted in casting light on some material point in issue. In this case, the photographs were relevant and probative of the issue whether Hospital Drug could be transferred to another location. We find no error. See McMiddleton v Otis Elevator Co, 139 Mich App 418, 423; 362 NW2d 812 (1984), modified on other grounds 424 Mich 862 (1985).
Finally, the city alleges that it was error to allow evidence concerning Hospital Drug’s costs for a replacement store since this type of evidence is inadmissible in condemnation proceedings. While we agree that this testimony was improper, there was no showing in the record that the owner was seeking recovery for the replacement costs of his business. Therefore, admission of this testimony is not error requiring reversal. City of Fenton v Lutz, 73 Mich App 117, 124; 250 NW2d 579 (1977). We decline to address the city’s claim that it was error to allow Lefko to testify that any award in this case would be taxed since the city cited no authority for this claimed error.
Affirmed.
The instruction states:
In reaching a verdict, you must keep within the range of the testimony submitted. You may accept the lowest figure submitted as to a particular item of damage, the highest figure submitted, or a figure somewhere between the highest and lowest. You may not go below the lowest figure or above the highest figure submitted.
In this case, the lowest valuation placed in evidence for the property is $___and the highest valuation is $____Any award between those two figures would be a proper jury verdict; any award which is not between those two figures would not be a valid jury verdict.
Although the city cites In re Urban Renewal, Elmwood Park Project, 376 Mich 311; 136 NW2d 896 (1965), the case has nothing to do with the issue raised on appeal. | [
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Per Curiam.
Defendant appeals as of right the Recorder’s Court’s denial of his motion to withdraw a guilty plea. We reverse.
Originally charged with first-degree premeditated murder, MCL 750.316; MSA 28.548, felony murder, MCL 750.316; MSA 28.548, armed robbery, MCL 750.529; MSA 28.797, arson of a dwelling, MCL 750.72; MSA 28.267, and mayhem, MCL 750.397; MSA 28.629, defendant pled guilty in a joint plea-taking proceeding with codefendant Gregory Howard to second-degree murder, MCL 750.317; MSA 28.549, in the January 24, 1987, death of Roosevelt Williams in Highland Park. Defendant’s plea bargain included a sentence agreement and, pursuant to this agreement, defendant was sentenced to ten to fifteen years imprisonment. In providing the factual basis for his plea, defendant said that he beat the victim until he was unconscious, hit the victim on the head with a dish, and struck him in the chest with a pick axe.
Prior to imposition of the sentence on December 22, 1987, defendant sent a motion in the form of a letter to the trial court requesting that he be allowed to withdraw his guilty plea. No evidence of this letter appears in the lower court file. However, on the date set for sentencing, defense counsel brought the letter to the trial judge’s attention and the judge read it and ruled that he was not going to allow defendant to withdraw his plea on the basis of the letter, stating, "[t]here is nothing in here [the letter] that says the magic words.” The trial judge then asked defendant what had changed since defendant’s indication at the plea-taking proceeding that he was satisfied with his attorney. Defendant responded, "I verbally told my lawyer that I was not gonna take this cop, several times.”
Defendant asked the trial court to reconsider the motion, and the judge said:
No, no. Everything that you said, on that particular date, everything that you are saying in there, I asked you about, at the time that you took the plea. And, you answered the questions satisfacto rily or otherwise I wouldn’t have taken the plea. No. No.
After imposing sentence in accordance with the sentencing agreement, the trial court said:
I have read your thing, here. And, although you cite numerous crudely — but, as the [c]ourts have always indicated, you cite crudely — you have a right to do this, on your own behalf. But, nowhere in this thing do you say you are innocent. The only thing is because you are not satisfied with your attorney, and because he coerced you, and he did this, and he did that. No. No. So, take it up with the Court of Appeals.
From the trial court’s comments, we deduce that the thrust of defendant’s letter or "in pro per motion,” as appellate counsel describes it, was defendant’s claim that defense counsel had in some fashion not performed in accordance with defendant’s rights, desires or expectations. On appeal, defendant asserts his innocence and claims trial defense counsel coerced him to enter his plea.
MCR 6.101(F)(6) allows a trial court to set aside a defendant’s guilty plea, after the plea is accepted, on defendant’s motion. We review a trial court’s denial of a motion to withdraw a guilty plea for an abuse of discretion. People v Bencheck, 360 Mich 430, 432; 104 NW2d 191 (1960); People v Alcorta, 147 Mich App 326, 330; 383 NW2d 182 (1985), lv den 425 Mich 876 (1986).
Where a defendant asserts his innocence and requests to withdraw his guilty plea prior to sentencing, such a request is to be treated with great liberality and should be granted unless the request is obviously frivolous. Bencheck, supra, 360 Mich 433; People v Camargo, 163 Mich App 581, 584; 415 NW2d 211 (1987). Doubts concerning substan tiation of defendant’s reasons for withdrawal are to be resolved in defendant’s favor. Camargo, supra.
Here, defendant contends that he asserted his innocence when, in an in-jail interview by a probation investigator on December 15, 1987, defendant stated that the two men who accompanied him to the victim’s residence killed the victim and that he would only admit to taking items from the victim’s house and participating in setting the fire. This statement appears in the presentence report prepared for defendant’s sentencing. Although he apparently did not assert his innocence in his written request to withdraw his guilty plea, the trial court presumably read the presentence report. We therefore find that defendant asserted his innocence prior to sentencing.
We must therefore determine whether defendant’s motion to withdraw was obviously frivolous. Camargo, supra.
In People v Scott, 115 Mich App 273, 276-277; 320 NW2d 242 (1982), this Court held that where the defendant merely states a belief in his innocence at sentencing, but fails to indicate how his earlier factual recital supporting his guilty plea was faulty, the trial court does not abuse its discretion in finding that the asserted ground for withdrawal is frivolous. In the instant case, however, defendant contended that his factual recital was faulty in that his counsel coerced him to make the recital. Nor, in light of his sentence agreement, can it be said that defendant’s true motive in requesting withdrawal was frivolously based on a concern regarding sentencing. See Camargo, supra, 163 Mich App 584-585; People v Paulus, 121 Mich App 445, 450; 328 NW2d 659 (1982), remanded 417 Mich 1100.15 (1983).
We cannot conclude that defendant’s request to withdraw his plea was obviously frivolous. Given the liberality which such requests are to receive, defendant’s assertion of innocence prior to sentencing, his claim of coercion which the trial court refused to hear, the rule that doubts concerning substantiation are to be resolved in defendant’s favor, and in view of the fact that the trial court’s reasons for denying defendant’s request were that the voluntariness of the plea had been established at the plea-taking and its erroneous belief that defendant had not asserted his innocence, we find that the trial court abused its discretion in denying defendant’s motion to withdraw his guilty plea. Defendant is entitled to a trial.
Defendant’s conviction is reversed and this matter remanded for proceedings consistent with this opinion._
Although the record is not clear, the plea bargain apparently included dismissal of the other enumerated charges.
At the plea, the prosecutor indicated that the victim died from a substantial number of wounds rather than as a result of the fire defendant admitted he helped start after assaulting the victim.
Defendant’s brief on appeal indicates that appellate counsel was unable to obtain a copy of defendant’s "in pro per motion.”
It appears that another of the trial court’s reasons may have been its belief that defendant’s plea bargain was contingent upon codefendant Howard’s entry of a guilty plea. This contingency does not appear on the plea record. We note that the trial court later denied codefendant Howard’s motion to withdraw his guilty plea on February 26,1988. | [
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Per Curiam.
In this appeal we are faced with the question of which of two established principles governs the right of a party that has assumed a mortgage to raise defenses contesting the validity of the mortgage.
Defendant Loretta O. Johnson executed and de livered a mortgage to plaintiff-appellee Michigan Wineries, Inc., on March 5, 1963. The mortgage was in the amount of $82,000 at 3% interest with payments of $500 per month. Then on May 31, 1967, defendant Johnson deeded the mortgaged premises to defendant-appellant Detroit Beverage Corporation. The deed was expressly subject to the mortgage to Michigan Wineries. Detroit Beverage assumed the mortgage and made the required payments through February 5, 1973.
Michigan Wineries commenced this action to collect the balance owing of $41,483.77 on January 25, 1974. Detroit Beverage answered that the debt and mortgage were void and unenforceable because the underlying consideration given by Michigan Wineries to Harold J. Johnson, Loretta’s husband, consisted of the sale of alcoholic beverages on credit in violation of the Liquor Control Act, MCLA 436.16; MSA 18.987.
Michigan Wineries then moved for summary judgment on the ground that Detroit Beverage had failed to state a valid defense to the claim. The trial court granted this motion in an opinion dated February 25, 1975 and entered a judgment in the amount of $47,130.32 against Detroit Beverage Corporation on April 10, 1975. The Court of Appeals affirmed on March 25, 1976. 68 Mich App 310; 242 NW2d 568 (1976). We granted leave to appeal.
The issue contested in the trial court and the Court of Appeals, and the issue raised before this Court, is whether a party that has assumed the obligation of a mortgage may assert in defense that there is some illegality connected with the underlying transaction making the mortgage void. Detroit Beverage argues that this defense should be available relying upon the well-established prin ciple that the courts will not enforce contracts made in violation of law. See, e.g., Kukla v Perry, 361 Mich 311; 105 NW2d 176 (1960). This principle has been applied to contracts made in violation of the Liquor Control Act. See Auto City Brewing Co v Gruich, 301 Mich 320; 3 NW2d 290 (1942), Turner v Schmidt Brewing Co, 278 Mich 464; 270 NW 750 (1936).
Both the trial court and Court of Appeals relied upon the well-established principle that a party who assumes a mortgage may not dispute its validity. See, generally, 55 Am Jur 2d, Mortgages, § 1042; 2 Jones on Mortgages (8th ed), § 928. This Court has consistently followed this rule. See, e.g., Terry v Durand Land Co, 112 Mich 665; 71 NW 525 (1897), Crawford v Edwards, 33 Mich 354 (1876).
We conclude that the situation in which the defendant has assumed the obligation to pay a mortgage is one of those circumstances in which the defense of illegality should not be available and therefore affirm the decision of the Court of Appeals. Costs to plaintiff.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody Jr., JJ., concurred. | [
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] |
Rehearing denied.
Reported at 402 Mich 91. | [
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Per Curiam.
Following a bench trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The trial court sentenced defendant to three to twenty years imprisonment for armed robbery. That sentence was to run consecutively with defendant’s mandatory two-year sentence for felony-firearm. Defendant appeals as of right. We affirm.
Defendant was originally charged with the offenses of which he was convicted. At the preliminary examination, the victim testified that he was at a tire store and placed money on the counter to pay for his transaction. Defendant then "snatched” the money off the counter and ran out of the store. The victim pursued defendant. The victim’s son, who was outside the store’s entrance, observed the victim giving chase and also began to chase defendant. When the victim’s son came within nine feet of defendant, defendant pulled out a gun and pointed it at them. The victim was approximately thirty to forty feet behind defendant at that point and did not think that he could catch defendant. Upon seeing the gun, both the victim and his son stopped their pursuit.
Coincidentally, a police officer was driving by when he saw the victim’s son chasing defendant and defendant pull out a gun. The officer arrested defendant and recovered the gun and the victim’s money.
The district court bound defendant over on a charge of larceny from a person, MCL 750.357; MSA 28.589, finding that the snatching of the money and the use of the weapon to assault the victim’s son were separate transactions and that the gun was not used to effect the taking so as to constitute an armed robbery.
The prosecutor appealed and former Recorder’s Court Chief Judge Samuel Gardner reversed the district court’s decision, holding that Michigan views robbery as a continuous offense, which is not complete until the perpetrator reaches a place of temporary safety. People v Patricia Turner, 120 Mich App 23, 28-29; 328 NW2d 5 (1982), lv den 417 Mich 1064 (1983). Hence, the use of force or intimidation in retaining the property taken or in attempting to escape rather than in taking the property itself is sufficient to supply the element of force or coercion essential to the offense of robbery. See People v LeFlore, 96 Mich App 557; 293 NW2d 628 (1980), lv den 409 Mich 927 (1980); People v Beebe, 70 Mich App 154; 245 NW2d 547 (1976); People v Herbert Sanders, 28 Mich App 274; 184 NW2d 269 (1970). See also Anno: Use of force or intimidation in retaining property or in attempting to escape, rather than in taking property, as element of robbery, 93 ALR3d 643.
At trial, the victim testified consistently with his preliminary examination testimony. However, he did testify that he was two hundred feet from defendant when defendant pulled out the gun. The victim also testified that he was close to his son and they darted behind a sign upon seeing the gun. The officer testified that defendant was three hundred feet from the store. Defense counsel again argued that defendant could only be convicted of larceny from a person and, if so charged, felonious assault as to the victim’s son. After reviewing the case law, Detroit Recorder’s Court Judge Clarice Jobes convicted defendant of armed robbery and felony-firearm.
Defendant now claims that former Chief Judge Gardner erred when he reversed the district court’s decision to bind him over on a charge of larceny from a person and that Judge Jobes’ finding that he was guilty of armed robbery was clearly erroneous. Despite defendant’s arguments to the contrary, our review of Michigan case law indicates that former Chief Judge Gardner’s analysis of the issue was correct and, therefore, he properly reversed the district court’s bindover decision. See People v Makela, 147 Mich App 674; 383 NW2d 270 (1985). Likewise, Judge Jobes could properly find defendant guilty of armed robbery upon these facts.
Affirmed. | [
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] |
Request for appointment of counsel denied.
Case below, Court of Appeals No. 25059, per curiam opinion of May 5, 1977. | [
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R. J. Jason, J.
Defendant, Park Place Motor Inn, Inc., appeals as of right from the October 1, 1986, circuit court order awarding plaintiff, Grand Traverse Convention and Visitor’s Bureau, $125,650.34 for assessments, interest, and penalties under the Community Convention and Tourism Marketing Act, MCL 141.871 et seq.; MSA 5.3194(381) et seq. The order is final only as to those assessments made for the period between January 1, 1984, and March 31,1985.
The assessments which are the subject of this appeal were originally made by, and payable to, the Traverse City Area Convention and Visitor’s Bureau (Traverse City Bureau). That entity was created under 1980 PA 395, MCL 141.871 et seq.; MSA 5.3194(381) et seq., as part of the local chamber of commerce. The Traverse City Bureau also experienced problems with collecting assessments from defendant. In 1982, the Traverse City Bureau sued defendant to recover assessments due, resulting in a judgment in its favor which covered assessments made through December 31, 1983. That decision was affirmed on appeal in Traverse City Area Convention & Visitor’s Bureau v Park Place Motor Inn, Inc, unpublished opinion per curiam of the Court of Appeals, decided May 14, 1986 (Docket No. 77103), lv den 426 Mich 867 (1986).
1984 PA 59 amended the act to require all convention bureaus operating under it to be nonprofit corporations, separate from the local chamber of commerce. MCL 141.872(e); MSA 5.3194(382)(e). As allowed by the new amendment, the Traverse City Bureau continued to operate with its marketing program until March 31, 1985. On April 1, 1985, plaintiff incorporated as a replacement for the Traverse City Bureau. Traverse City Bureau was dissolved on April 1, 1985, but assigned to plaintiff its interest in uncollected assessments.
Plaintiff then brought this suit to recover assessments due from January 1, 1984, to the date of the complaint. The trial court granted plaintiff partial summary disposition on those assessments due to Traverse City Bureau, but assigned to plaintiff. Statutory interest and a penalty figure were added to this amount for the final judgment with respect to these assessments.
Defendant challenges the validity of the assignment and the percentage rate used to calculate the penalty due. Since the assignment from Traverse City Bureau to plaintiff is the authority under which plaintiff seeks to collect the assessments, we will address this issue first.
Defendant argues that the act does not authorize the assignment of assessments or causes of action to recover assessments due. Plaintiff responds that defendant has no standing to challenge the assignment. We conclude that defendant has standing to challenge the assignability of a cause of action. See, e.g., Weston v Dowty, 163 Mich App 238; 414 NW2d 165 (1987), and Moorhouse v Ambassador Ins Co, Inc, 147 Mich App 412; 383 NW2d 219 (1985), lv den 425 Mich 865 (1986), each finding that the prohibition against assignment of a legal malpractice claim renders such an assignment invalid.
Generally, all legitimate causes of action are assignable. Moorhouse, p 421. We see nothing in the statute which would prohibit the assignment of uncollected assessments from the Traverse City Bureau to plaintiff. The essential question is whether the act as a whole should be construed to allow assignments. In answering this question, our primary objective must be to give effect to the Legislature’s intent. Grand Trunk WR Co v Dep’t of Treasury, 170 Mich App 384, 388; 427 NW2d 580 (1988).
MCL 141.876; MSA 5.3194(386) provides in part:
(1) The assessment revenues collected pursuant to this act shall not be state funds. The money shall be deposited in a bank or other depository in this state, in the name of the bureau, and shall be disbursed only for the expenses properly incurred by the bureau with respect to the marketing programs developed by the bureau under this act.
It appears to us that in order for the Traverse City Bureau to legally dispense funds due after its dissolution, it must first pay obligations properly incurred under its marketing program and then assign the remaining revenues to its successor bureau. We cannot perceive a contrary intention from the statute and conclude that the assignment from the Traverse City Bureau to plaintiff was permissible.
Defendant’s only other issue on appeal is whether the percentage rate used to calculate the penalty portion of the judgment was erroneous. Under 1980 PA 395, assessments remaining unpaid after ninety days from the date due were subject to a penalty of ten percent per month, or portion thereof, that the assessment remained unpaid. 1984 PA 59 amended that provision, replacing the 10 percent with 1.5 percent. MCL 141.875; MSA 5.3194(385).
Under Michigan law, the repeal of a statute does not release any penalty accrued under the previous statute. MCL 8.4a; MSA 2.214; Walper v Knowles, 295 Mich 687, 691-692; 295 NW 363 (1940). However, no penalties accrued for the assessments at issue here until May, 1984, after the April 12, 1984, effective date of 1984 PA 59.
Plaintiff argues that, since 1984 PA 59 provided for the continuation of a preexisting district and marketing program, the Traverse City Bureau operated under the old statute, thereby saving the ten percent-per-month delinquency charge. We disagree.
MCL 141.880; MSA 5.3194(390) preserves preexisting assessment districts and marketing pro grams for one year following the effective date of 1984 PA 59. A "marketing program” is defined in MCL 141.872(g); MSA 5.3194(382)(g) as
a program established by a bureau to develop, encourage, solicit, and promote convention business or tourism within this state or a portion of this state within which the bureau operates. The encouragement and promotion of convention business or tourism shall include any service, function, or activity, whether or not performed, sponsored, or advertised by a bureau, which intends to attract transient guests to the assessment district.
We note that the penalty provision does not appear on the statutory list of what a "marketing program” may include. MCL 141.884; MSA 5.3194(394). The penalty amount is not even required to be printed on the marketing program notice described in MCL 141.883; MSA 5.3194(393). We conclude that the penalty for delinquent assessments is not a part of a marketing program, as that term is used in the statute. Therefore, assessments which became delinquent after 1984 PA 59 became effective are subject to the lowered rate of 1.5 percent per month.
The trial court reasoned that an integral part of the continued operation of the Traverse City Bureau was for collection of assessment revenues. Assessment revenues are defined in the statute to include penalties. MCL 141.872(c); MSA 5.3194(382)(c). We note that, while the savings clause provides for the continuation of the assessment district and marketing program, it does not provide for the continuation of the more generic "operation,” which arguably might include the ten percent penalty rate.
Affirmed in part, reversed in part, and re manded for amendment of the judgment to reflect a penalty rate of 1.5 percent per month on the delinquent assessments. We do not retain jurisdiction. | [
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Complaint for superintending control, motion for immediate consideration, and petition for interim suspension are considered. The motion for immediate consideration is granted. The Tenure Commission shall promptly file a supplemental complaint stating with more specificity the allegations contained in paragraphs 3, 4, 5, 6, 7, and 12 of its formal complaint no. 21, and serve a copy of the supplemental complaint on plaintiff. The complaint for superintending control is denied in all other respects and we retain no further jurisdiction thereof. Consequently, the petition for interim suspension filed on behalf of the Michigan Judicial Tenure Commission is denied without prejudice. We retain no further jurisdiction.
Cholette, Perkins & Buchanan for plaintiff. Joseph P. Regnier for the Michigan Judicial Tenure Commission, defendant. | [
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] |
Doctoroff, J.
The City of Detroit (hereinafter defendant) appeals by leave granted from two orders entered by the Wayne Circuit Court. These orders have been consolidated on appeal. In the first order, entered May 18, 1987, the trial court denied defendant’s motion for summary disposition under MCR 2.116(C)(4), lack of subject-matter jurisdiction, thereby rejecting defendant’s claim that the Michigan Tax Tribunal had exclusive and original jurisdiction over these proceedings. We affirm the order in Docket No. 100897.
On September 1, 1987, the court issued a written opinion which addressed the parties’ cross-motions for summary disposition. The court ruled that fire insurance proceeds are not a type of personal property that can be seized or distrained and sold to satisfy unpaid taxes pursuant to §47 of the General Property Tax Act, MCL 211.47; MSA 7.91. An order denying defendant’s motion for summary disposition and granting partial summary disposition in favor of plaintiff was entered on October 23, 1987. The order, in part, enjoined defendant from claiming, asserting or imposing any liens for unpaid property taxes or unpaid water or sewage bills as against insurance proceeds. We affirm the order in Docket No. 104378.
Plaintiff, Joy Management Company, was the owner of property located at 3310 Lothrop, Detroit, Michigan. This property was insured against fire damage with Michigan Basic Property Insurance Association. The structure was completely destroyed by fire and an insurance claim was filed. The amount of loss arising out of the property damage was determined to be $13,218.81. Relying on §47, defendant claimed a lien on plaintiffs insurance proceeds for unpaid general property taxes, and made demand upon Michigan Basic to be included as a named payee on the proceeds check. Michigan Basic honored defendant’s demand and informed plaintiff that the payment of insurance proceeds would be made jointly to plaintiff and defendant.
A check for the insurance proceeds was issued with plaintiff and defendant as named payees. Defendant refused to endorse the check without payment of the back taxes. Plaintiff eventually agreed to endorse the check and receive the net proceeds after $2,343 in taxes were paid from the proceeds. At no time has plaintiff denied that it owed the taxes or that the taxes constituted a first lien on the real property.
On February 25, 1986, plaintiff, on its own behalf and as representative of the class of insureds who had "lost” their insurance proceeds to defendant for unpaid taxes, filed a complaint for wrongful seizure against defendant, Michigan Basic, and all insurers who had allowed defendant to seize insurance proceeds by naming defendant as payee.
On May 7, 1986, defendant moved for summary disposition under MCR 2.116(C)(8), failure to state a claim, alleging that § 47, which authorized seizure of personal assets for unpaid property taxes, authorized the seizure of insurance proceeds for satisfaction of plaintiffs delinquent taxes. Defendant’s motion was denied on February 27, 1987. On March 17, 1987, defendant moved for reconsideration of its motion for summary disposition, alleging that under MCL 205.731; MSA 7.650(31) the Michigan Tax Tribunal had original and exclusive jurisdiction over plaintiffs claim, which defendant argued was in reality an action for a refund of the tax. In response, plaintiff claimed that the instant case was a dispute over defendant’s method of collecting taxes and not over the validity of the tax itself. Defendant brought a second motion for summary disposition, alleging lack of subject-matter jurisdiction. Following a hearing, defendant’s second motion for summary disposition was denied on May 18,1987.
On September 1, 1987, the trial court issued an opinion on the parties’ cross-motions for summary disposition, addressing the issue of whether plaintiff failed to state a claim under § 47. The court ruled that § 47 authorized defendant to distrain or seize and sell personal property to satisfy unpaid taxes, but that personal property which cannot be distrained or seized and sold in fact or law may not be seized by defendant’s treasurer. Because rights under an insurance policy and proceeds of fire insurance in the hands of the insurer cannot be distrained or seized in the common meaning of those terms, the court concluded that defendant had no authority for its seizure of plaintiffs fire insurance benefits. On October 23, 1987, an order was entered denying defendant’s motion for summary disposition and granting plaintiffs motion for partial summary disposition.
i
Defendant first argues that the trial court erred in denying its motion for summary disposition under MCR 2.116(C)(4), lack of subject-matter jurisdiction (Docket No. 100897). Defendant contends that the basis of plaintiffs claim for a return of fire insurance proceeds seized by defendant to satisfy unpaid property taxes is, in reality, a proceeding for a refund of taxes. Thus, the claim falls within the exclusive jurisdiction of the Tax Tribunal under MCL 205.731(b); MSA 7.650(31)(b). Plaintiff claims that this is not a dispute over an assessment or a proceeding for a refund, but rather a dispute concerning the legality of defendant’s method of collecting property taxes. Plaintiff contends that, in this case, the circuit court has jurisdiction. The trial court agreed with plaintiffs position and ruled that, because this was a dispute over the method of collecting taxes, it was not within the exclusive jurisdiction of the Tax Tribunal. We agree.
MCL 600.601; MSA 27A.601 provides:
Circuit courts have the power and jurisdiction
(1) possessed by courts of record at the common law, as altered by the constitution and laws of this state and the rules of the supreme court, and
(2) possessed by courts and judges in chancery in England on March 1, 1847, as altered by the constitution and laws of this state and the rules of the supreme court, and
(3) prescribed by rule of the supreme court.
However, MCL 205.731; MSA 7.650(31) provides:
The tribunal’s exclusive and original jurisdiction shall be:
(a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws.
(b) A proceeding for refund or redetermination of a tax under the property tax laws.
Although the circuit court’s jurisdiction and powers are broad, it lacks jurisdiction where prohibited by the laws of this state. Wikman v Novi, 413 Mich 617, 644-645; 322 NW2d 103 (1982). In matters of taxation, the circuit court retains jurisdiction to entertain constitutional issues concerning the validity of tax laws and it may provide equitable relief from decisions of the Tax Tribunal. Sessa v State Tax Comm, 134 Mich App 767, 771; 351 NW2d 863 (1984), lv den 422 Mich 919 (1985); Kostyu v Dep’t of Treasury, 170 Mich App 123, 128; 427 NW2d 566 (1988).
The Tax Tribunal’s jurisdiction and powers are defined by the Tax Tribunal Act, MCL 205.701 et seq.; MSA 7.650(1) et seq. The Tax Tribunal lacks equitable powers. It is a quasi-judicial agency. Its primary functions are to find facts and review the decisions of agencies within its jurisdiction. Wikman, p 629. The expertise of the Tax Tribunal relates primarily to questions concerning the factual underpinnings of taxes. It is well qualified to resolve disputes concerning those matters that the Legislature has placed within its jurisdiction: assessments, evaluation, rates, allocation and equalization. Romulus City Treasurer v Wayne Co Drain Comm’r, 413 Mich 728, 737-738; 322 NW2d 152 (1982).
In the instant case, plaintiff has not challenged a final decision regarding valuation, rates, allocation or assessment, nor is plaintiff asking for a refund or a redetermination of a tax. Rather, plaintiff has challenged the legality of the method used by defendant to enforce collection of the property taxes. Resolution of this issue depends not on findings of fact, but on conclusions of law based upon the construction of § 47. This is clearly within the scope of the circuit court’s jurisdiction. Thus, the trial court did not err by denying defendant’s motion for summary disposition pursuant to MCR 2.116(C)(4), lack of subject-matter jurisdiction.
ii
As part of its order of October 23, 1987, denying defendant’s motion for summary disposition (Docket No. 104378), the court ordered that defendant was enjoined from claiming, imposing or asserting any liens for unpaid property taxes or unpaid water or sewage bills against any insurance proceeds. Defendant claims that this order enjoining it from imposing liens for unpaid taxes on fire insurance proceeds constituted a violation of MCL 211.114; MSA 7.168, which states:
No injunction shall issue to stay proceedings for the assessment or collection of taxes under this act.
The general rule is that equity will not enjoin the assessment or collection of taxes. Forest Hill Cemetery Co v Ann Arbor, 303 Mich 56, 67; 5 NW2d 564 (1942). In the instant case, the court’s order did not restrain defendant from collecting property taxes by any statutorily authorized method. Defendant was not enjoined from assessing or collecting taxes "under this act.” The court held that the act did not authorize defendant to levy against or seize insurance proceeds to satisfy unpaid taxes. Thus, defendant was enjoined from doing so. The circuit court did not improperly enjoin defendant from collecting taxes in violation of MCL 211.114; MSA 7.168.
in
When this case was decided in the trial court, MCL 211.47; MSA 7.91 provided in part:
If any person, firm or corporation shall neglect or refuse to pay any tax assessed to him or them, the township or city treasurer, as the case may be, shall collect the same by seizing the personal property of such person, firm or corporation, to an amount sufficient to pay such tax, fees and charges for subsequent sale, wherever the same may be found [in the state], and from which seizure no property shall be exempt He may sell the property seized to an amount sufficient to pay the taxes and all charges, in the place where seized, or in the township or city of which he is treasurer, at public auction .... If the property so distrained cannot be sold for want of bidders, and in such cases only, the treasurer shall return a statement of the fact, and such tax shall be returned as unpaid. The township treasurer, if otherwise unable to collect a tax on personal property, may sue the person, £rm or corporation to whom it is assessed, in the name of the township, village or city, and garnishee any debtor or debtors of such person, ñrm or corporation. [Emphasis added.]
The heart of the parties’ dispute centers on the language of the above quoted statute. Defendant contends that the clear and express language of the statute authorizes seizure of any personal property, including intangible personal property such as insurance proceeds, to satisfy delinquent real property taxes.
A fundamental rule of statutory construction is that the court is obliged to ascertain and give effect to the intention of the Legislature, and it is equally axiomatic that words are to be given their ordinary, normally accepted meaning. Town & Country Dodge, Inc v Dep’t of Treasury, 420 Mich 226, 240; 362 NW2d 618 (1984), reh den 421 Mich 1202 (1985). Where the meaning of a statute is plain and unambiguous, judicial construction or interpretation is precluded. Land v The George Schmidt Co, 122 Mich App 167, 170; 333 NW2d 30 (1982), lv den 417 Mich 1083 (1983). When determining legislative intent, statutory language should be given a reasonable construction considering the statute’s purpose and the object sought to be accomplished. An act must be read in its entirety and the meaning given to one section arrived at after due consideration of other sections so as to produce, if possible, a harmonious and consistent enactment as a whole. Statutes are to be construed so as to avoid absurd or unreasonable consequences. Michigan Humane Society v Natural Resources Comm, 158 Mich App 393, 401; 404 NW2d 757 (1987); Bar Processing Corp v State Tax Comm, 171 Mich App 472, 477; 430 NW2d 753 (1988).
Property tax exactions must rest upon legislative enactment, and collecting officers can only act within express authority conferred by law. Tax collectors must be able to point to such express authority. The scope of tax laws may not be extended by implication or forced construction. Michigan Allied Dairy Ass’n v State Bd of Tax Administration, 302 Mich 643, 650; 5 NW2d 516 (1942); Fidlin v Collison, 9 Mich App 157, 162; 156 NW2d 53 (1967).
Here, the trial court held:
The Court is persuaded that § 47 authorizes the city treasurer to distrain, seize and sell personal property to satisfy unpaid taxes, and that personal property which cannot be distrained, seized and sold in fact or in law may not be seized by the city treasurer under §47. Rights under an insurance policy and proceeds of fire insurance in the hands of the insurer cannot be distrained or seized within the commonly understood meaning of those terms. The City’s attempt to do so is therefore without authority. Such a construction of §47 is consistent with the plain language of this section, the history of self-help collection methods such as distraint and the law relating to executions upon judgments, and the distinction drawn in §47 between real and personal property taxes in that the city treasurer may maintain a suit upon and garnishee a taxpayer’s debtors to enforce the obligation to pay the latter but not the former.
In claiming that the statute authorizes defendant to seize insurance proceeds, defendant focuses on the phrase "from which seizure no property shall be exempt” and on the use of the permissive term "may sell” to conclude that the statute allows seizure of types of personal property that cannot be sold at public auction. Defendant’s interpretation of the statute ignores the plain meaning of the wording chosen by the Legislature. The statute clearly provides that the township or city treasurer "shall collect” delinquent taxes "by seizing the personal property [of the taxpayer] for subsequent sale . . . and from which seizure no property shall be exempt.” (Emphasis added.) The language selected by the Legislature clearly contemplates seizure of property that is capable of being sold. The permissive language of the statute, "he may sell the property seized,” refers to the treasurer’s choice to sell the property either "in the place where seized, or in the township or city of which he is treasurer.” The choice given to the treasurer is not between whether to sell or not sell. We conclude that the trial court correctly construed the statute. The property seized must be capable of being sold. Any other holding requires construction of the terms beyond their plain meaning. There is no express authority to seize insurance proceeds or other intangibles. Thus, the seizure of the proceeds by defendant was illegal as unauthorized by statute.
Further, the seizure was illegal because the amount distrained was excessive. Section 47 provides that the amount of property distrained must not be excessive and, if it is, the seizure is illegal. Fidlin, supra, p 167. The city treasurer is allowed only to seize personal property "to an amount sufficient to pay such tax.” Defendant, in essence, seized the entire insurance settlement of $13,218.81 in order to collect delinquent taxes of $2,343. Plaintiff was unable to recover or have use of any of its insurance proceeds until it paid the back taxes.
Defendant is a home rule city. MCL 117.1 et seq.; MSA 5.2071 et seq. A home rule city cannot exceed its charter powers and confer prohibited authority upon itself by a particular method of usurpation. City of Niles v Michigan Gas & Electric Co, 273 Mich 255, 266; 262 NW 900 (1935). After approval and filing, a city charter thereupon becomes law. MCL 117.24; MSA 5.2103; Sykes v Battle Creek, 288 Mich 660, 663; 286 NW 117 (1939); Wikman, supra, pp 636-637. MCL 117.3(i); MSA 5.2073(i) states that each city charter shall provide for the levy, collection and return of taxes in conformance with the general laws of the state. However, no provision of any city charter shall conflict with or contravene the provisions of any general law of the state. MCL 117.36; MSA 5.2116. Thus, to determine whether defendant has the authority to seize insurance proceeds, the initial inquiry must begin with the city charter.
Defendant’s charter limits defendant’s remedy to an action for foreclosure on the tax lien. Section 8-403 of the Detroit City Code provides that the city may bring a civil action to foreclose its lien two years after the city’s lien on real property for delinquent city real property taxes accrues. The city’s charter does not provide any other method for the city to collect delinquent real property taxes. Even if § 47 were to allow the city treasurer to place a lien on insurance proceeds, defendant’s own charter does not authorize it to do so. The General Property Tax Act does not apply to cities whose charters provide inconsistent provisions. MCL 211.107; MSA 7.161.
We reject defendant’s additional argument that policy and equitable considerations require reversal of the circuit court. Defendant contends that an exception to the fundamental rules of statutory construction exists where a literal reading of statutory language produces an absurd and unjust result clearly inconsistent with the purposes and policies of the act in question. Owendale-Gagetown School Dist v State Bd of Ed, 413 Mich 1, 8; 317 NW2d 529 (1982); Salas v Clements, 399 Mich 103, 109; 247 NW 889 (1976). Defendant argues that this is a case in which the literal reading of the statute circumvents the legislative intent which favors the summary collection of taxes. Thompson v Auditor General, 261 Mich 624, 648; 247 NW 360 (1933). We do not dispute the existence of the exception, and we do agree that the result here is both absurd and unjust. However, it has long been held that governmental powers of taxation are controlled by constitutional and statutory provisions. Hence, it is not possible to adjudicate issues arising under taxation laws by the general application of equitable principles. Consumers Power Co v Muskegon Co, 346 Mich 243, 247; 78 NW2d 223 (1956).
Before its recent amendments, §47 provided a clear distinction between the collection of real and personal property taxes. Distraint (distress) and sale of personal property was available for collection of both, but only personal property taxes could be collected by suit. In such cases, the treasurer could garnishee any debtor of the taxpayer. The treasurer could sue only where no property was available on which to levy. The statutory remedies available to the treasurer were explained in Staley v Columbus Twp, 36 Mich 38, 39 (1877):
The only case provided for by statute wherein suit may be brought for unpaid taxes by the township is where taxes on personalty have been returned unpaid for want of property on which to levy. — C.L., § 1014. In such case the treasurer may sue in the name of the township. Taxes on real estate may be collected by distress on goods and chattels (§ 1003), but if not so collected the tax is returned unpaid and the land sold to make it.
The tax-roll is itself as complete and adequate as an execution on a judgment would be, if there are goods and chattels within the treasurer’s jurisdiction. It would be a foolish ceremony to sue for land taxes when the land itself can be sold to pay them. But where personal taxes are unpaid, the debtor may have property subject to execution not open to seizure and sale by the treasurer, and a suit is in such case proper and necessary to secure payment. The statutory provisions are based on plain policy, and preclude the idea of suit in any case not named.
Until the recent amendments to § 47, these remedies remained unchanged. The recent amendments to § 47, being 1987 PA 177 (effective November 19, 1987) and 1988 PA 202 (effective June 29, 1988), have eradicated the distinction between real and personal property taxes insofar as enabling the township or city treasurer to sue the errant taxpayer and garnishee any debtor of that taxpayer. Further, the municipality may choose to file suit in lieu of seizure and public sale. Whether these amendments permit a municipality to seize insurance proceeds is a question we will not address in this opinion as the amendments were not in force during the pendency of this case.
While we affirm the well-reasoned opinion and orders of the trial court because we conclude that it correctly determined § 47 does not authorize a municipality to place a lien on insurance proceeds and because defendant’s own city charter does not authorize such procedure, we also conclude that this has produced an absurd and unjust result. Plaintiff is able to avoid paying taxes which it agrees are accurate in amount and owed to defendant. Pursuant to its charter, defendant’s only remedy at this point is to foreclose and attempt to sell the property upon which stands a burned-out shell.
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Michael J. Kelly, J.
Defendant, Barton Green-berg, pled nolo contendere to one count of larceny by false pretenses, MCL 750.218; MSA 28.415, in exchange for dismissal of eighteen counts charging him with violating the Michigan Uniform Securi ties Act, MCL 451.501 et seq.; MSA 19.776(101) et seq., and one additional count of larceny by false pretenses. The court sentenced defendant to six years eight months to ten years in prison. The court also imposed several other conditions as part of defendant’s sentence.
Defendant was originally charged with thirty-six counts of violating the Uniform Securities Act plus two counts of larceny by false pretenses. These charges arose out of defendant’s participation in the infamous Diamond Mortgage/A. J. Obie and Associates fraud scheme, the largest reported "Ponzi” scheme in the history of this state. This scheme caused losses of over 47 million dollars to over 1,600 investors. Defendant was the chairman of the board and director of Diamond Mortgage Corporation and the president and director of A. J. Obie and Associates. Diamond was a mortgage broker company which advertised to attract borrowers who would sign promissory notes secured by mortgages on their homes. Those notes and mortgages were later sold to investors through A. J. Obie, a registered broker-dealer. A. J. Obie also sold shares in Commerce Mortgage Investments, Ltd., a real estate investment trust. Defendant had the primary decision making authority at both Diamond and Obie.
Potential borrowers would apply for a loan from Diamond and sign a promissory note and mortgage before receiving any money. The borrowers were informed that they would receive money in the future if their applications were approved. After being signed by the borrowers, the notes and mortgages were immediately placed on a list of "closed” mortgages. Funds were generally disbursed to borrowers from three to ninety days later. Diamond informed the potential borrowers that, if they did not receive any money, the mort gages on their property would be discharged and they would have no obligation to pay anything.
Persons who invested with A. J. Obie would pay their money to an Obie agent, and Diamond would then match a mortgage from their closed mortgage list with an identical amount on a list of investor funds. The investor’s money would be transferred to Diamond’s general account and the investor would be assigned a note and mortgage. In theory, the Obie investor should have been assigned a note and mortgage on which funds had already been disbursed. These funds would have been used to pay off all prior mortgages and liens, thereby ensuring that the investor received a note secured by a first mortgage, as represented in Diamond’s offering circular. Instead, Diamond’s matching process permitted the assignment of undisbursed notes and mortgages to investors. When funds were not disbursed to the borrowers, the investors were left holding notes which were not secured by first mortgages and on which the borrowers did not intend to make payments. Defendant was aware that these undisbursed mortgages were being assigned to investors.
In December of 1985, Diamond began an incentive program which rewarded its loan officers for increasing the number of "closed” loans. The increase in closed loans apparently had the purpose of generating more worthless notes and mortgages which could then be given to unsuspecting investors. Defendant approved this procedure.
Around February of 1986, Diamond’s vice-president, Leslie Lupovich, informed defendant that many borrowers who had not received any money were calling to request discharges of their mortgages. However, these notes and mortgages had already been assigned to investors. Defendant in structed Lupovich to tell the investors that there was merely a processing error.
In December of 1985, defendant asked Lupovich for a list of active mortgages, which included fully disbursed mortgages upon which payments were being made and those which were less than thirty days delinquent. Defendant asked Lupovich to call investors who held these valid mortgages to get them to return their mortgages to Diamond. Defendant instructed Lupovich to tell investors that these mortgages were in default, that Diamond needed these mortgages back to correct the defaults, and that their mortgages would be returned or replaced as soon as the defaults were corrected. These mortgages were in fact valid and were not in default. Lupovich refused to call the investors. Defendant instructed Lupovich to have other Diamond officers and employees make these calls, which he did. As a result of these calls, the investors assigned their mortgages back to Diamond and were given receipts by a Diamond courier who picked up the mortgages. These valid mortgages were then assigned to Commerce Mortgage Investments, Ltd., to build up its assets for an audit.
The audit of Commerce Mortgage Investments, held between December of 1985 and March of 1986, revealed that half of its mortgages were invalid and needed to be replaced. These invalid mortgages were replaced by the valid mortgages which were fraudulently obtained from Obie investors. Defendant signed the assignments transferring these mortgages to Commerce. The Obie investors never got their mortgages back or replacements for them, nor did they receive any money from Diamond.
Defendant was charged with thirty-six counts of violating the Uniform Securities Act and two counts of larceny by false pretenses over $100. Following his preliminary examination, defendant was bound over on nine counts of wilfully omitting facts with respect to the sale of a security, nine counts of securities fraud and two counts of larceny by false pretenses.
In exchange for dismissal of the other charges against him, defendant pled nolo contendere to one count of obtaining money by false pretenses, MCL 750.218; MSA 28.415. Defendant’s plea was conditioned upon reserving his right to appeal the denial of his pretrial motions. The court sentenced defendant to serve six years eight months to ten years in prison. As part of his sentence, defendant was ordered to pay restitution to the victims of his crimes to the extent possible. The court prohibited defendant’s parole or release to a halfway house until this restitution was accomplished and ordered the Attorney General to monitor defendant’s status and enjoin the Department of Corrections from releasing defendant until that time.
Defendant appeals his conviction and sentence as of right, raising numerous issues on appeal.
i
Defendant argues that §§ 101(2) and (3) of the Uniform Securities Act, MCL 451.501(2) and (3); MSA 19.776(101X2) and (3), which defendant was charged with violating, are unconstitutional for various reasons. Defendant also contends that the district court erred in binding him over for trial on the counts involving violations of § 101(2) of the Uniform Securities Act. We decline to address these issues because they are moot. An issue becomes moot when an event occurs which makes it impossible for this Court to fashion a remedy. Crawford Co v Secretary of State, 160 Mich App 88, 93; 408 NW2d 112 (1987). While trial was pending on defendant’s securities act violations, he pled no contest to a different charge and the charges regarding those securities act violations were dismissed. Defendant was never convicted of those charges so it is not possible for this Court to fashion a remedy with regard to those dismissed charges. Defendant was not convicted or sentenced under the Uniform Securities Act, so defendant’s claims on appeal regarding the constitutionality of the act’s provisions or the validity of his bindover on those charges are moot.
ii
Defendant argues that the trial court erred by denying his motion to sever his trial from that of his codefendant and by refusing to sever the two larceny counts from the counts charging securities act violations. We disagree.
Defendant first argues that the trial court erred by denying his pretrial motion to sever his trial from that of his codefendant, Gary Mitchell. Defendant claims that a separate trial was required because their defenses would have been antagonistic. Defendant also claims that, because Mitchell’s wife was to be a witness and Mitchell would have precluded her testimony by raising a marital privilege, a joint trial would deny defendant Greenberg the right to confrontation.
Codefendants do not have an absolute right to separate trials. People v Anderson, 166 Mich App 455, 480; 421 NW2d 200 (1988). There is a strong policy favoring joint trials in the interests of justice, judicial economy, and administration. Id. The decision to hold a joint trial is within the trial judge’s discretion and will not be reversed absent an abuse of discretion. Id. at 481. A motion for separate trials must be supported by an affirmative showing of prejudice to the defendant’s substantial rights. Id. at 481.
A motion to sever should be granted where the codefendants’ separate defenses are antagonistic, such as where it appears that one defendant may testify to exculpate himself and to incriminate his codefendant. People v Hurst, 396 Mich 1, 6; 238 NW2d 6 (1976); People v Jackson, 158 Mich App 544, 555; 405 NW2d 192 (1987), lv den 428 Mich 917 (1987).
Defendant argues that his codefendant, Mitchell, was likely to accuse defendant in order to exculpate himself, so severance was necessary. We disagree. Defendants Greenberg and Mitchell’s trial would have been a long and complex proceeding involving numerous witnesses and substantially identical evidence. To hold two trials on these substantially identical cases would have been unnecessarily duplicative and excessive. The interests of justice, judicial economy and orderly administration clearly called for a joint trial. Furthermore, the court held that the case against each defendant would have been tried in one trial by two separate juries and that either jury would be excused whenever appropriate so as to prevent prejudice due to potentially antagonistic defenses. This Court has approved the dual jury procedure as a means of avoiding the problems arising from jointly trying defendants with antagonistic defenses. People v Kramer, 103 Mich App 747, 754; 303 NW2d 880 (1981); People v Brooks, 92 Mich App 393, 396-397; 285 NW2d 307 (1979). Additionally, we note that the dual jury system would permit defendant Greenberg’s counsel to question and cross-examine codefendant Mitchell’s wife despite Mitchell’s marital privilege merely by excusing Mitchell’s jury during such questioning. The trial court’s proposed use of two juries was proper. The court did not err by refusing to sever defendant Greenberg’s trial from Mitchell’s.
Defendant also argues that the court erred by refusing to sever the two counts charging him with larceny by false pretenses from the other eighteen counts involving violations of the Uniform Securities Act. We disagree. All the charges against defendant grew out of defendant’s participation and control over the Diamond Mortgage/ A. J. Obie fraud scheme. The Double Jeopardy Clauses of both the Michigan and United States Constitutions require joinder at one trial of all charges against a defendant growing out of a single criminal act, occurrence, episode, or transaction. Crampton v 54-A Dist Judge, 397 Mich 489, 501-502; 245 NW2d 28 (1976); People v White, 390 Mich 245; 212 NW2d 222 (1973). Since all of defendant’s alleged crimes arose out of this single criminal scheme, it was proper to join them all in one trial.
m
Defendant argues that the evidence presented at his preliminary examination was insufficient to bind him over for the crime of larceny by false pretenses. Defendant claims that this bindover was improper because it was based upon the testimony of witness Leslie Lupovich, who he alleges was not worthy of belief, and because the evidence only established the lesser crime of larceny by trick. We disagree.
The function of a preliminary examination is to determine whether a crime has been committed and, if so, whether there is probable cause to believe that the defendant committed it. MCL 766.13; MSA 28.931; People v Doss, 406 Mich 90, 100; 276 NW2d 9 (1979). The prosecutor must show that the offense charged has been committed. Positive proof of guilt is not required, but there must be evidence on each element of the crime charged or evidence from which those elements may be inferred. Id. at 101.
The elements for the crime of larceny by false pretenses are as follows:
(1) a false representation as to an existing fact, (2) knowledge by the defendant of the falsity of the representation, (3) use of the false representation with an intent to deceive, and (4) detrimental reliance by the victim on the false representation. [People v Flaherty, 165 Mich App 113, 119; 418 NW2d 695 (1987).]
In order to constitute a felony, the victim must give up over $100 due to the false representation. Id. The prosecutor presented adequate evidence showing each element of this crime. Testimony at defendant’s preliminary examination showed that defendant knowingly instructed his employees to falsely inform A. J. Obie investors holding valid mortgages that their mortgages were in default when defendant knew that they were not. This was done in order to induce the investors to assign their mortgages back to Diamond so that supposed defaults could be remedied. Investors were told that their mortgages would be returned or replaced after the defaults were cured. Instead, defendant had the mortgages assigned to Commerce Mortgage Investments, Ltd., in order to bolster its assets for an upcoming audit. None of these mortgages were returned or replaced. These mortgages had values well over $100. The investors received nothing.
Nor is it relevant that defendant claims that the prosecution’s witness, Lupovich, was not worthy of belief. The object of a preliminary examination is not to prove guilt beyond a reasonable doubt. Doss, supra, p 103. Where the evidence conflicts or raises a reasonable doubt, such questions should be left for the jury at trial. Id. If Lupovich’s testimony was subject to attack as unworthy of belief, that is a question for the jury at trial and does not undermine a decision to bind over.
Defendant also claims that his bindover was improper because the prosecutor failed to reveal potentially exculpatory evidence prior to the preliminary examination. We disagree. We note that defendant’s claim that exculpatory evidence was withheld appears to be purely speculative and is not supported by facts on the record. The prosecution allowed defense counsel complete access to its files well in advance of the preliminary examination. Furthermore, defendant failed to raise this purported nondisclosure before either the district or circuit court, nor was it part of defendant’s conditional no contest plea. Defendant has failed to preserve this issue for review, so we decline to address it. People v New, 427 Mich 482, 495; 398 NW2d 358 (1986).
IV
Defendant contends that his sentence was illegal for several reasons and that resentencing is required. Defendant argues that his six-year eight-month to ten-year sentence was so excessive as to shock the judicial conscience and require resentencing under People v Coles, 417 Mich 523; 339 NW2d 440 (1983). We disagree.
The sentencing guidelines recommended a minimum sentence of between zero and twelve months. However, departure from the guidelines is permitted provided that the sentencing judge gives spe cific explanations for departure where there are special characteristics of the offense or offender necessitating a departure. People v Fleming, 428 Mich 408, 426; 410 NW2d 266 (1987). The sentencing judge stated the following reasons for his departure from the guidelines range:
Mr. Greenberg, it’s clear to this Court, that you have perpetrated the largest Ponsi [sic] scheme in the history of this State upon the public. You have caused personal losses, as set forth in the Attorney General’s sentencing memorandum, in excess of forty-seven million dollars to over sixteen hundred investors.
The bankruptcy trustee says there are twenty-seven hundred investors who have lost this money. You’ve done this by selling undispersed [sic], and otherwise phoney mortgages, to unwitting elderly investors, exposed to clever advertising schemes by national celebrities, all while, in my opinion, you enjoyed an opulent lifestyle, sir.
As evidenced in part by your large, six figure salary, your expense accounts, your corporate airplanes, your helicopter, your luxury automobile, and the like, your general decadence, lack of concern for your fellow man, and lack of sensitivity to those who worked around you, is quite apparent, and quite revolting, sir.
The many letters I have received from elderly, retired people who have lost their hard earned life savings is heartbreaking to this Judge. . . .
I’m satisfied, Mr. Greenberg, that you were clearly the singular guiding and controlling force behind the Diamond Mortgage Corporation and the A. J. Obie Enterprises. You controlled all the bank accounts, the transfer of funds, and generally, I believe, utilized these corporations for your own selfish interests, unconcerned about anyone else.
Now, neither the legislature in enacting a maximum sentence provision, or the Supreme Court in requiring not more than a two-thirds minimum sentence in all felony convictions, in my opinion, could have envisioned a fraud scheme of this magnitude when they passed the statute, or when these cases were decided. Nor could they have imagined the extent of greed that I believe you’ve displayed. Your conduct of these businesses, in short, was despicable. You deserve the harshest sentence the law permits me to impose.
These reasons were more than adequate under Fleming. In view of the facts of this case, our conscience is not shocked by the length of defendant’s sentence. These facts belie a mathematical comparative analysis because of the enormity of the economic havoc wreaked.
Defendant also argues that the court erred by requiring defendant to pay restitution. Defendant contends that the court exceeded its authority by requiring him to pay restitution to victims of crimes where charges based on those crimes were ultimately dismissed and to pay restitution to victims who were not specifically named. We disagree.
A sentencing judge may order a defendant to pay restitution in addition to any other penalty authorized by law. MCL 769.1a, 780.766(2); MSA 28.1073, 28.1287(766)(2). A court may order restitution for losses to a victim of a defendant’s course of conduct which gives rise to the conviction. MCL 769.1a; MSA 28.1073. Such restitution may exceed the losses caused by the actual crime of which defendant is eventually convicted. People v Littlejohn., 157 Mich App 729, 731; 403 NW2d 215 (1987). The language of MCL 769.1a; MSA 28.1073 permits ordering restitution for other related crimes which have not resulted in convictions. Littlejohn, 157 Mich App at 733 (Michael J. Kelly, J., concurring). The trial court did not exceed its authority by ordering defendant to pay restitution, to the extent he was financially able, to all the victims of his mortgage fraud scheme.
Nor did the trial court err by ordering restitution without specifying to whom and in what amount restitution was necessary. The bankruptcy trustee had not yet computed the extent of investors’ losses at the time of defendant’s sentencing. Under these circumstances, the trial court was as specific as possible. Additionally, when defendant believes that he has complied with the restitution conditions to the extent possible, he may petition the court for relief in accordance with People v Music, 428 Mich 356, 361-362; 408 NW2d 795 (1987).
Defendant also claims that the trial court exceeded its authority by prohibiting defendant’s parole or release to a halfway house until restitution, to the extent possible, is accomplished. The court also instructed the Attorney General to monitor defendant’s status and enjoin the Department of Corrections from releasing defendant until restitution is made.
The Department of Corrections has exclusive jurisdiction over paroles, commutations, and penal institutions, subject to the constitutional powers of the state’s Judicial and Executive Departments. MCL 791.204; MSA 28.2274. MCL 791.233; MSA 28.2303 lists the requirements for a grant of parole by the Department of Corrections. Nowhere is there any mention of the sentencing judge’s ability to impose additional restrictions upon the department’s decision to parole a prisoner. Although MCL 791.234(4)(b); MSA 28.2304(4)(b) provides that the sentencing judge may veto a grant of parole for a prisoner serving a life sentence by filing written objections to the parole grant within thirty days of receipt of notice of the parole hearing, there is no analogous statutory parole veto power given to sentencing judges for offenders like defendant. Additionally, we note that MCL 780.766(13); MSA 28.1287(766)(13) provides that any restitution ordered shall be a condition of parole and that the parole board may revoke parole if the defendant fails to comply. However, this statute does not give the sentencing judge the power to make full payment of restitution a prerequisite for obtaining parole or early release. The lower court exceeded its sentencing power by prohibiting defendant’s parole or release to a halfway house until restitution is made and by ordering the Attorney General to enjoin the Department of Corrections from releasing defendant until that time. Accordingly, we hereby strike these conditions from defendant’s sentence. Resentencing is not required.
Defendant also asserts that his sentence is unconstitutional because it is cruel and unusual and violates the Separation of Powers Clauses of the Michigan and United States Constitutions. Defendant does not provide any authority for this assertion or even bother to explain how his sentence could be considered to violate these constitutional provisions. A mere assertion of error without supporting authority or argument is insufficient to bring an issue before this Court. Settles v Detroit City Clerk, 169 Mich App 797, 807; 427 NW2d 188 (1988). We therefore decliné to address these issues.
Affirmed as modified.
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Holbrook, Jr., J.
Defendant appeals as of right from an order denying his motion for expungement of his five prior perjury convictions, MCL 767.19d; MSA 28.959(4). The trial court ruled that defendant did not qualify for expungement under MCL 780.621 et seq.; MSA 28.1274(101) et seq., because defendant’s record consisted of more than one conviction. We affirm.
MCL 780.621; MSA 28.1274(101) provides, in pertinent part:
(1) Except as provided in subsection (2), a person who is convicted of not more than 1 offense may file an application with the convicting court for the entry of an order setting aside the conviction.
(2) A person shall not apply to have set aside, nor may a judge set aside, a conviction for a felony for which the maximum punishment is life imprisonment or a conviction for a traffic offense.
The term "offense” is not defined in the statute. Defendant argues that because his five perjury convictions all arose out of the same factual transaction and were obtained at one trial, they should constitute one offense for purposes of the expungement statute. We disagree.
Defendant here was convicted on five counts of perjury on the basis of five false statements made during defendant’s two days of testimony at one grand-jury hearing. Defendant falsely answered five different questions.
We agree with the opinion in People v Manning, 153 Mich App 516; 396 NW2d 468 (1986), where a panel of this Court held that the circuit court was without jurisdiction under the expungement statute because the defendant had three plea convictions for fourth-degree criminal sexual conduct, MCL 750.520e(l)(b); MSA 28.788(5)(l)(b). Those convictions were for three separate offenses occurring on different dates and times and involving three different victims. Although in the instant case the five counts of perjury all arose out of defendant’s appearance before a grand jury, they were based on five separate statements made during that testimony. The statements, while all relating generally to a corruption investigation involving the Oakland County Drain Commission, were five separate and distinct false statements addressing different aspects of the investigation. Defendant did not merely repeat his answer to one question five times.
In interpreting the expungement statute, we decline to refer to the interpretation of the habitual offender statutes, MCL 769.10 et seq.; MSA 28.1082 et seq., set forth in People v Stoudemire, 429 Mich 262; 414 NW2d 693 (1987), where our Supreme Court held that two or more convictions on different counts charged in the same information and obtained at the same trial are deemed to be only one conviction for purposes of the habitual offender statutes.
The purpose of the habitual offender statute is to allow for enhancing a defendant’s sentence where it appears that the defendant has failed to reform after conviction and sentence on previous felonies. 429 Mich 266. The purpose of the ex-pungement statute is to allow the expungement of the criminal record of a one-time offender who has established that he is rehabilitated after five years without a subsequent conviction. Because the underlying purposes of the two statutes differ significantly, we find the analysis and conclusion in Stoudemire does not require a different result than that reached in Manning, supra.
The circuit court correctly found that defendant failed to come within the expungement statute.
Affirmed.
Gribes, P.J., concurred. | [
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Per Curiam.
Plaintiff, a former district court judge, commenced suit against defendants, City of Highland Park, its mayor and members of its city council, for declaratory relief in a dispute over whether the city had impermissibly reduced plaintiff’s judicial salary by eliminating payment for fringe benefits. The circuit court denied plaintiff’s motion for summary disposition and instead granted defendants’ request for dismissal of the case. We affirm.
The facts upon which the circuit court ruled were undisputed. Plaintiff was elected a judge in the 30th District Court with a term commencing January 1, 1979. The City of Highland Park is the district control unit for the 30th District Court. See MCL 600.8121(15); MSA 27A.8121(15); MCL 600.8104(1); MSA 27A.8104(1). For the first six months of 1979, the city authorized and paid plaintiff a supplemental salary (in addition to the state-provided base salary) at the rate of $17,460 per year and also provided plaintiff with various fringe benefits, primarily health care-related coverages and life insurance. After the city council approved a budget in June of 1979 continuing the fringe benefits, the mayor vetoed the provision for fringe benefits. The city council did not override the veto, and the end result was that the cost of most of the fringe benefits was deducted from the city-provided supplemental component of plaintiff’s salary for the remainder of his term of office. Plaintiff contended in his suit that the reduction in compensation derived from the loss of his fringe benefits was prohibited by MCL 600.8202; MSA 27A.8202.
Resolution of this issue is a matter of statutory construction. MCL 600.8202; MSA 27A.8202 governs the salaries of district court judges. It provides, in pertinent part:
(2) In addition to the salary received from the state, a district judge may receive from a district control unit in which the judge regularly holds court an additional salary as determined by the governing legislative body of the district control unit. Supplemental salaries paid by a district control unit shall be uniform as to all judges who regularly hold court in the district control unit. . . .
(4) Salaries of a district court judge may be increased but shall not be decreased during a term of office except and only to the extent of a general salary reduction in all other branches of government.
It is plaintiff’s specific contention that his fringe benefits constituted part of his salary paid by the district control unit. Thus, the deduction for the benefits from his salary contravened the statutory prohibition against a decrease in judicial salary.
In Moore v Marshall, 141 Mich App 167; 366 NW2d 26 (1985), this Court rejected the plaintiff judge’s claim that she was entitled to hospitalization insurance even though that coverage duplicated benefits enjoyed and earned from previous employment. This holding was based in part on the conclusion that hospitalization insurance was a fringe benefit for district court judges and therefore not a component of salary for purposes of the uniform salary provision of MCL 600.8202(2); MSA 27A.8202(2).
In an analogous context, this Court in Elliott v Genesee Co, 166 Mich App 11; 419 NW2d 762 (1988), held that longevity pay was a fringe benefit and not part of a judicial salary for purposes of the statutory provision in MCL 600.555; MSA 27A.555 limiting the salary of a circuit court judge to ninety-two percent of the salary of a Supreme Court justice.
We agree with these decisions, particularly Moore, which construes the same statute as this case. We hold that plaintiffs loss of benefits did not violate any of his rights to the judicial salary provided by MCL 600.8202; MSA 27A.8202. Consequently, the deduction of the cost of those benefits did not amount to a decrease in salary prohibited by MCL 600.8202(4); MSA 27A.8202(4). Because plaintiffs argument that the mayoral veto was unauthorized by the city charter is raised for the first time on appeal, we decline to address it.
Affirmed. | [
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Per Curiam:.
Defendant Transamerica Insurance Corporation of America appeals as of right and defendant American Community Mutual Insurance Company cross-appeals from an order of summary disposition in favor of plaintiff Citizens In surance Company of America. The trial court in granting summary disposition ruled that American Community was primarily liable only for Clark Clouse’s medical expenses as his health insurer and as between Citizens and Transamerica, two no-fault insurers of equal priority, liability was to be apportioned equally between the two insurers. We affirm.
Defendant Clark Clouse was involved in a motor vehicle accident on August 17, 1986. At the time, Clouse was a passenger in a vehicle driven by Kevin Buehler. Clouse was not a named insured under his own or a relative’s no-fault insurance policy, even though he resided with his parents and a sister. Clouse’s injuries required that he receive no-fault benefits for medical services and for work loss.
On the date of Clouse’s accident, Citizens was the insurer of four vehicles owned by Clouse’s parents. Transamerica, also on that date, was the insurer of one vehicle owned by Clouse’s mother and of a vehicle owned by Clouse’s sister. Clouse sought work loss benefits and medical expenses from both Citizens and Transamerica. American Community insured Clouse under its major medical expense policy. That policy was in effect on the date of Clouse’s accident.
Both Citizen’s and Transamerica’s respective no-fault policies contained clauses providing for excess or coordinated coverage with other health or medical policies. Both American Community and Transamerica denied coverage under their respective policies, thereby necessitating the instant action to determine the priorities between the three insurers.
Citizens moved for summary disposition in April, 1987. The trial court granted Citizens’ motion for summary disposition pursuant to MCR 2.116(C)(10). The trial court held that American Community, as Clark Clouse’s health insurer, is the primary insurance company from whom Clark Clouse must seek his medical benefits and that American Community shall reimburse the two no-fault carriers for any sums either has paid towards medical expenses on behalf of Clark Clouse. The trial court also held that, to the extent any medical benefit due and owing over and above that which was paid by American Community, such liability, along with all other no-fault liability, was to be shared equally between Citizens and Transamerica. Both American Community and Transamerica appeal as of right from the trial court’s granting of summary disposition.
A motion for summary disposition pursuant to MCR 2.116(0(10) tests whether there is factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Giving the benefit of the doubt to the nonmoving party, the court must determine whether any genuine issue of disputed fact exists. If there is no genuine issue as to any disputed fact and the moving party is entitled to judgment as a matter of law, the motion should be granted. Eriksen v Fisher, 166 Mich App 439, 444-445; 421 NW2d 193 (1988).
American Community argues that the trial court erred in holding that American Community is primarily liable for Clouse’s medical costs. American Community’s argument is based on a provision of their policy with Clouse, the deductible clause, which is, in effect, a coordination-of-benefits provision. Applying that provision in the instant case, American Community argues, leads to the conclusion that the no-fault insurers should be primarily liable for Clouse’s medical expenses.
Our Supreme Court faced essentially the same issue in Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 424 Mich 537; 383 NW2d 590 (1986). In Federal Kemper, our Supreme Court held that the defendant, as a health insurer, was primarily liable for medical coverage for a motor vehicle accident where the defendant’s coordinated benefits clause conflicted with that under the plaintiffs no-fault policy. Because the Legislature required insurers to offer coordinated coverage with other health insurance under no-fault policies, in order to reduce no-fault insurance costs, the no-fault insurer then must be secondarily liable in order to give effect to the Legislature’s goal. Id., pp 546, 551-552. Although Federal Kemper, supra, involved a group health insurance policy, the rule has been applied to individual insurance policies. Michigan Mutual Ins Co v American Community Mutual Ins Co, 165 Mich App 269; 418 NW2d 455 (1987). Applying Federal Kemper in the instant case results in the decision reached by the trial court below, that American Community is primarily liable for medical costs and Citizens and Transamerica are secondarily liable as no-fault insurers. The trial court correctly granted summary disposition on this issue.
Transamerica argues that the trial court erred in holding that Transamerica and Citizens are both equally secondarily liable for Clark Clouse’s medical and other expenses. Transamerica argues that the priority between the two no-fault insurers should be determined based on the number of vehicles insured and consequently upon the amount of premium received for each insurer for the particular risk.
Priorities among no-fault insurers are determined by statute. The statutory provision at issue states:
When 2 or more insurers are in the same order of priority to provide personal protection insurance benefits an insurer paying benefits due is entitled to partial recoupment from the other insurers in the same order of priority, together with a reasonable amount of partial recoupment of the expense of processing the claim, in order to accomplish equitable distribution of the loss among such insurers. [MCL 500.3115(2); MSA 24.13115(2).]
We were unable to find precedent that interprets what the phrase "in order to accomplish equitable distribution of the loss among such insurers” means with regard to how liability is to be divided between two insurers of equal priority. The trial court ruled that the two no-fault insurers share equally the liability, stating that no matter "how many vehicles or persons there are in a family, each insurer insures all in the household no matter how many vehicles or persons are specifically covered in a policy. The risk falls equally on each insurer no matter what the premium is paid.”
A panel of this Court in State Farm Fire & Casualty Co v Citizens Ins Co of America, 100 Mich App 168; 298 NW2d 651 (1980), based priority between two no-fault insurers, who were otherwise equal in priority, upon the nature of the insurer’s risk. State Farm was subsequently followed by other panels of this Court in Allstate Ins Co v Transamerica Ins Co, 138 Mich App 782; 360 NW2d 925 (1984), and Johnson v Michigan Educational Employees Mutual Ins Co, 137 Mich App 205; 357 NW2d 329 (1984). However, our Supreme Court in DAIIE v Home Ins Co, 428 Mich 43, 49; 405 NW2d 85 (1987), ruled that the essential focus of the Court of Appeals in the State Farm case upon the nature of the insurer’s risk was misplaced and our Supreme Court disapproved State Farm. Thus, if we were to adopt Transamerica’s argument and base priority between two no-fault insurers on the nature of the insurer’s risk, we would find ourselves at odds with our own Supreme Court. Thus, we hold that priority between two no-fault insurers which are otherwise equal in priority is not to be determined on the basis of the nature of the risk taken on by the insurer.
The statute, as quoted above, requires that there be an equitable distribution of the loss among insurers. We believe that equitable distribution of the loss among the insurers is best achieved by reference to the number of insurers. This result is consistent with the Legislature’s intent that persons and not vehicles be insured against loss. DAIIE v Home, supra, p 49. Under the facts of this case, it is an equitable distribution of the loss having both insurers equally liable for costs not covered under Clouse’s health insurance with American Community. The trial court’s ruling on this point is equitable, fair and correct. We find that the trial court properly granted summary disposition in favor of Citizens.
Affirmed. | [
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AFTER REMAND
Before: Cynar, P.J., and Shepherd and B. A. Jasper, JJ.
Per Curiam.
This case was previously decided on September 22, 1987, 163 Mich App 358; 413 NW2d 796 (1987). In our opinion, we noted that the trial court in its opinion and order of April 10, 1986, found that front pay was permissible. Further, we noted that the trial court denied defendant’s motion for judgment notwithstanding the verdict, a new trial, and relief from judgment. However, since the trial court had made no finding and did not render a decision on defendant’s remittitur request, we remanded on the remittitur issue. This Court additionally indicated that the trial court could, on remand, request further argument or support by the parties on the remittitur issue if, in its discretion, such was required.
Following remand, the trial court held evidentiary hearings on June 17, 1988, and July 21, 1988. Plaintiff objected to the trial court’s receiving any additional evidence. Plaintiff claimed that the trial court’s finding should be made solely on the trial transcript. Defendant argued to present additional evidence. The trial court heard extensive testimony.
This case was resubmitted to this Court following remand on January 17, 1989.
The trial court after the hearings on remand found that reinstatement was not a feasible remedy, that further employment at that time was bleak and that there was a period of twenty-five years to mandatory retirement. On December 16, 1988, the date of its decision, the trial court did not see any employment other than minimal service employment. The aforesaid findings were within the range of the testimony.
However, the trial court reduced the jury verdict by $100,000. The reason for the remittitur, as stated by the trial court, was "the Court does feel that the front pay award is a little high, and that Mrs. Ritchie will be employable at comparable pay if she intensified her efforts.” Aside from the findings which were within the range of the testimony, it appears, at best, that the trial court was substituting itself for the jury by concluding that the front pay award was a little high and comparable pay would be attained by intensified effort.
In this case, as in Guzowski v Detroit Racing Ass’n, Inc, 130 Mich App 322, 335-336; 343 NW2d 536 (1983), the jury’s verdict was within the range of the evidence presented. In this case, we find that the trial court clearly erred in substituting its judgment on damages for the jury’s by granting the $100,000 remittitur.
We reverse the $100,000 remittitur granted and reinstate the original jury award of $560,000. | [
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Doctoroff, J.
Defendant appeals by leave granted from the trial court’s denial of his motion to set aside the property settlement portion of the default judgment of divorce. We reverse.
Plaintiff filed a complaint for divorce on August 21, Í986. No appearance was filed in behalf of defendant. A default was filed on September 15, 1986, and proof of service of the default on defendant was filed on September 25, 1986.
On December 20, 1986, plaintiff told defendant that a default judgment of divorce would be taken on December 22, 1986. Defendant received no prior written notice. A default judgment of divorce was entered on December 22, 1986.
A notice of entry of default judgment and proof of service was filed and mailed to defendant on December 29, 1986. On January 8, 1987, defendant filed a motion to set aside the property settlement portion of the default judgment pursuant to MCR 2.603(B)(l)(a)(ii), alleging that defendant did not receive the proper required notice of the hearing of default judgment. A hearing on defendant’s motion was held on January 26, 1987.
The court held that defendant had failed to comply with MCR 2.603(D)(2) because he filed his motion more than twenty-one days after the entry of the default. The court further held that MCR 2.603(D)(1) was controlling and, according to that rule, defendant was required to show good cause and submit an affidavit of facts showing a meritorious defense in order to set aside a default judgment. The court found that defendant did not show good cause and had submitted no affidavit. The court opined that defendant "was given all the notice that he was entitled to” and he sat on his rights. For the above reasons, the court denied defendant’s motion to set aside the property settlement portion of the default judgment.
First, the trial court erred in stating that defendant had failed to timely file his motion under MCR 2.603(D)(2), which states:
Except as provided in MCR 2.612, if personal service was made on the party against whom the default was taken, the default, and default judgment if one has been entered, may only be set aside if the motion is filed
(a) before entry of judgment, or
(b) if judgment has been entered, within 21 days after the default was entered.
The default judgment was entered on December 22, 1986. Defendant filed his motion to set aside the property provisions of the default judgment of divorce seventeen days later, on January 8, 1987. We agree with the interpretation of the court rules concerning the time provisions for filing a motion to set aside a default judgment as stated in Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.603, pp 384-385. The authors state, in pertinent part:
After the entry of the default judgment, a party has 21 days to move to set it aside under the provisions of MCR 2.603. After that 21 day time period, a default judgment may only be set aside if good cause is shown, an affidavit of facts showing a meritorious defense is filed, and the requirements of MCR 2.612 met. See Yenglin v Mazur, 121 Mich App 218; 328 NW2d 624 (1982).
Thus, because defendant’s motion was filed within twenty-one days after the entry of the default judgment, his motion was timely under MCR 2.603. Defendant’s motion was timely filed.
Second, we conclude that the trial court erred in its determination that defendant failed to show good cause to set aside the default judgment. MCR 2.603(B)(1) provides, in pertinent part:
(1) Notice of Request for Judgment.
(a) A party seeking a default judgment must give notice of the request for judgment to the defaulted party
(i) if the party against whom the judgment is sought has appeared in the action;
(ii) if the request for entry of judgment seeks relief different in kind from, or greater in amount than, that stated in the pleadings; or
(iii) if the pleadings do not state a specific amount demanded.
(b) The notice required by this subrule must be served at least 7 days before entry of the requested judgment.
MCR 2.601(B) provides:
(B) Default Judgment. A judgment by default may not be different in kind from, nor exceed in amount, the relief demanded in the pleading, unless notice has been given pursuant to MCR 2.603(B)(1).
The purpose of the notice requirement is to apprise the defaulting party of the possibility of entry of judgment so that he may have an opportunity to participate in any hearing necessary to ascertain the amount of damages or other form of remedy to be granted. Dollar Rent-A-Car Systems v Nodel Construction, 172 Mich App 738, 743; 432 NW2d 423 (1988). This purpose is premised on the distinction between the entry of default and the entry of judgment. The former operates as an admission by the defaulting party that there are no issues of liability, but leaves the issues of damages unresolved until entry of judgment. Wood v DAIIE, 413 Mich 573, 578; 321 NW2d 653 (1982). The latter reduces the default to a judgment for money damages. Once a valid default is taken, the defaulting party remains entitled to full participatory rights in any hearing necessary for the adjudication of damages. Wood, pp 583-585; Dollar Rent-A-Car, supra. See also White v Sadler, 350 Mich 511, 517-519; 87 NW2d 192 (1957).
Plaintiffs complaint for divorce prayed that the court "decree an equitable division of property and debts of the parties hereto.” This prayer does not state a specific amount demanded. However, the default judgment contains specific provisions for the division of property and the monetary and legal responsibilities of the parties. Thus, because the default judgment contained provisions different in kind and amount from the relief demanded in the pleading, defendant, even though in default, was entitled to participate in the adjudication of the property distribution and, under the above-cited rules, was entitled to notice at least seven days prior to the entry of default judgment.
In his motion, defendant argued that MCR 2.6Q3(B)(l)(a)(ii) had been violated because defendant had not received notice of the request for a default judgment where the request sought relief different in kind or greater in amount than that stated in the pleadings. Defendant did not file an affidavit of facts showing a meritorious defense with his motion to set aside the default judgment. In denying defendant’s motion to set aside the default judgment, the court held that defendant failed to file an affidavit or show good cause in compliance with MCR 2.603(D)(1), which states:
A motion to set aside a default or a default judgment, except when grounded on lack of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.
The decision whether to set aside a default judgment is a decision within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. Ferguson v Delaware International Speedway, 164 Mich App 283, 294; 416 NW2d 415 (1987). A default may be set aside only when three conditions are fulfilled. First, good cause for failure to make timely response must be shown. Second, a meritorious defense must be established. Third, the showing of a meritorious defense must be based on an affidavit of facts. Whether these three conditions are fulfilled is within the discretion of the trial court. Novi Construction, Inc v Triangle Excavating Co, 102 Mich App 586, 589; 302 NW2d 244 (1980). Good cause sufficient to warrant setting aside a default judgment includes (1) a substantial defect or irregularity in the proceeding upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements that created the default, or (3) some other reason showing that manifest injustice would result if the default judgment were allowed to stand. Ferguson, supra, p 295; Reed v Walsh, 170 Mich App 61, 64; 427 NW2d 588 (1988). An affidavit of facts showing a meritorious defense must be filed before a default judgment may be set aside for good cause. Good cause and the affidavit are required because the policy of this state is generally against setting aside defaults and default judgments that have been properly entered. Ferguson, supra, p 295.
An exception to the above-stated requirements was declared in Petroff v Petroff, 88 Mich App 18, 20; 276 NW2d 503 (1979), where this Court found that failure to give notice as required by GCR 1963, 520.2(2), now MCR 2.603(B)(1), met the "good cause” requirement of GCR 1963, 520.4, now MCR 2.603(D). The Petroff Court stated that ordinarily, where no question of jurisdiction is raised, it is incumbent upon the party moving to set aside the default judgment to show good cause and file an affidavit of fact showing a meritorious defense. Id., p 19. However, the Court went on to state:
When asserting the failure to give the seven days notice required by GCR 1963, 520.2(2) [now MCR 2.603(B)] as the ground for a motion to set aside a default judgment, a party need not file an affidavit of facts showing a meritorious defense. We hold that constitutional due process requires notice so that an opportunity is provided to attend and present a claim or defense. We think that GCR 1963, 520.2(2) is an expression of a fundamental concept of law. It is patently unfair to compel a party to demonstrate a meritorious defense in order to get a default judgment set aside when the manner in which the default judgment was entered constituted a denial of due process. A party is entitled to due process regardless of the merits of his claim or defense.
We hold that the notice provision of GCR 1963, 520.2(2) is mandatory and that the failure of the defendant in the instant case to give the required notice invalidates the judgment and requires it to be vacated. [Id., p 21. Citation omitted.]
In Vaillencourt v Vaillencourt, 93 Mich App 344, 350; 287 NW2d 230 (1979), lv den 408 Mich 860 (1980), we again held that GCR 1963, 520.2(2), now MCR 2.603(B), expresses a fundamental concept of due process and its observation is mandatory. Failure to give the required notice invalidates the judgment and requires that it be vacated.
We follow Petroff and Vaillencourt in concluding that, because the notice provision of MCR 2.603(B) is mandatory, when there is noncompliance with this rule the requirements of MCR 2.603(D) need not be followed in order for the defaulted party to prevail in its efforts to set aside a default judgment.
Defendant was entitled to notice of the request for entry of the default judgment of divorce. Plaintiff’s verbal communication two days before the default judgment was not sufficient or proper notice. Thus, the trial court abused its discretion in denying defendant’s motion to set aside the property provisions of the default judgment of divorce. We reverse the decision of the trial court insofar as it refused to set aside the property settlement provisions of the default judgment of divorce and remand for a hearing to determine a property settlement.
Reversed and remanded. We do not retain jurisdiction. | [
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Leave to appeal considered November 21, 1974 and, it appearing to this Court that the case of People v Jimmy Burden (Docket No. 55,989) is presently pending on appeal before this Court and that the decision in that case may be decisive of the issues raised in the present application for leave to appeal, it is ordered that the present application be held in abeyance pending decision in People v Jimmy Burden.
Reported below: 49 Mich App 80. | [
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Levin, J.
The question is whether § 146 of the Penal Code, before its 1972 amendment, prohibited discrimination in public accommodations based on hair length.
John Riegler was denied admission to the Holiday Skating Rink because his hair, alleged to be "slightly shorter than shoulder length”, was too long.
Riegler filed a complaint in the circuit court requesting that Holiday Skating Rink be enjoined from excluding males from its premises solely because of the length of their hair. He contends that Holiday’s "dress code” violates § 146, which he characterizes as "The Michigan Equal Accommodations Act”.
The trial court found that § 146 proscribed only discrimination in public accommodations based on race, creed or color, and that Riegler’s complaint was not within the statute.
The Court of Appeals reached the same conclusion and so do we.
The parties in their pleadings, the trial court and the Court of Appeals have limited this case to the construction of the statute; no constitutional issue is presented.
Holiday Skating Rink did not file a brief in the Court of Appeals and has not filed one in this Court. Holiday wrote a letter to this Court explaining that it is a small business and cannot afford to hire a lawyer to protect its interests.
I
Resolution of the question presented requires a determination whether the "race, creed, color” limitation which appeared in § 147 and § 148 of the Penal Code should be read into § 146.
Riegler contends that the intent of § 146 is to provide equal accommodations for "all persons” and to proscribe any and all types of discrimination against any and all persons. He finds support for this argument in the express language of § 146 ("[a]ll persons * * * shall be entitled to full and equal accommodations * * * subject only to the conditions and limitations established by law and applicable alike to all citizens and to all citizens alike, with uniform prices.”) and the absence in that section of the qualifying words "race, creed or color”. He argues that the explicit use of "race, creed, color” in §§ 147 and 148 shows that when the Legislature intends to limit the scope of the prohibition to discrimination based on "race, creed, color”, it says so.
He acknowledges that the Legislature had a special concern for eliminating discrimination based on "race, creed, color”, but argues that concern is evidenced by the provision of criminal sanctions in §§ 147 and 148. Nothing in §§ 147 or 148 indicates an intention to limit § 146 to discrimination based on race, creed, color. Section 146 establishes "a statutory civil right” guaranteeing "all persons” access to public accommodations free of any discrimination whatsoever.
II
We agree with the trial and appeals courts that the three sections should be read together and that so read § 146 was qualified by the limiting language of §§ 147 and 148 restricting the scope of the prohibition to denials of equal accommodations based on race, creed or color.
The three sections were first enacted in 1885 and were directed at discrimination based on "race or color”:
"Section 1. The People of the State of Michigan enact, That all persons within the jurisdiction of said State shall be entitled to the full and equal accommodations, advantages, facilities, and privileges of inns, restaurants, eating-houses, barber shops, public conveyances on land and water, theatres, and all other places of public accommodation and amusement, subject only to the conditions and limitation established by law and applicable alike to all citizens.
"Sec. 2. That any person who shall violate any of the provisions of the foregoing section, by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, the full accommodations, advantages, facilities, or privileges in said section enumerated or by aiding or inciting such denial, shall for every such offense be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not to exceed one hundred dollars, or shall be imprisoned not more than thirty days, or both.
"Sec. 3. That no citizen of the State of Michigan, possessing all other qualifications which are or may be prescribed by law, shall be disqualified to serve as grand or petit juror in any court of said State on account of race or color, and any officer or other person charged with any duty in the selection or summoning of jurors, who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than one hundred dollars, or imprisoned not more than thirty days, or both.” 1885 PA 130.
This Court has previously indicated its understanding of the legislative purpose:
"The act in question is usually called the 'civil rights act.’ Its purpose is apparent. While it applies to 'all persons in the jurisdiction of this State,’ it cannot be doubted that it was enacted with special reference to those of African descent. ” (Emphasis supplied.) Bolden v Grand Rapids Operating Corp, 239 Mich 318, 321; 214 NW2d 241; 53 ALR 183 (1927).
"This statute exemplifies the changed feeling of our people towards the African race, and places the colored man upon a perfect equality with all others, before the law in this State.” Ferguson v Gies, 82 Mich 358, 364; 46 NW 718 (1890).
By subsequent amendment the protection of the act was expanded to cover discrimination based on "creed”. This Court said, '[t]he intent and purpose of the legislature in its enactment cannot be doubted. * * * when the public are invited to attend places of public accommodation, amusement and recreation, there shall be no discrimination among those permitted to enter because of race, creed or color”. (Emphasis supplied.) Bolden v Grand Rapids Operating Corp, supra, p 323.
The foregoing expressions by the Bolden Court in 1927 were after the act took its present form in 1919 (see fn 5).
After Riegler filed his complaint, §§ 146 and 147 were amended. Section 147 was broadened to proscribe discrimination based on "national origin”, "sex”, or "blindness”, as well as discrimination based on "race”, "creed” (now "religion”), or "color”. 1972 PA 116. The following sentence was added at the end of § 146:
"Rooming facilities at educational, religious, charitable or nonprofit institutions or organizations, and restrooms and locker room facilities in places of public accommodation may be separated according to sex.”
If we were to accept Riegler’s construction of the statute, that each section should be read without reference to the limitations expressed in the other sections, then it might be argued that the Legislature intended that criminal penalties be imposed for separating according to sex "rooming facilities at educational, religious, charitable or nonprofit institutions and organizations, and restrooms and locker room facilities in places of public accommodation”, as that limitation is not contained in § 147, only in § 146. We would not ascribe to the Legislature such an intent.
We conclude, based on the history of this legislation, the language of the statute, and earlier expressions of this Court, that the nature of the right secured by § 146 cannot be defined without reference to §§ 147 and 148.
The question whether a similarly situated male would have a valid action for sex discrimination under the amended statute is not before us. We, therefore, do not consider this complaint in those terms.
The circuit court and the Court of Appeals are affirmed.
T. G. Kavanagh, C. J., and T. M. Kavanagh, Swainson, Williams, M. S. Coleman, and J. W. Fitzgerald, JJ. concurred with Levin, J.
MCLA 750.146; MSA 28.343.
We invited the Civil Rights Commission to file a brief amicus curiae addressing questions we posed.
MCLA 750.146-750.148; MSA 28.343-28.345. The following is the text of the three sections before the 1972 amendments:
"Sec. 146. All persons within the jurisdiction of this state shall be entitled to full and equal accommodations, advantages, facilities and privileges of inns, hotels, motels, government housing, restaurants, eating houses, barber shops, billiard parlors, stores, public conveyances on land and water, theatres, motion picture houses, public educational institutions, in elevators, on escalators, in all methods of air transportation and all other places of public accommodation, amusement, and recreation, subject only to the conditions and limitations established by law and applicable alike to all citizens and to all citizens alike, with uniform prices.
"Sec. 147. Any person being an owner, lessee, proprietor, manager, superintendent, agent or employee of any such place who shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages, facilities and privileges thereof or directly or indirectly publish, circulate, issue, display, post or mail any written or printed communications, notice or advertisement to the effect that any of the accommodations, advantages, facilities and privileges of any such places shall be refused, withheld from or denied to any person on account of race, creed or color or that any particular race, creed or color is not welcome, objectionable or not acceptable, not desired or solicited, shall for every such offense be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than $100.00 or imprisoned for not less than 15 days or both such fine and imprisonment in the discretion of the court; and every person being an owner, lessee, proprietor, manager, superintendent, agent or employee of any such place, and who violates any of the provisions of this section, shall be liable to the injured party, in treble damages sustained, to be recovered in a civil action: Provided, however, That any right of action under this section shall be unassignable. In the event that any person violating this section is operating by virtue of a license issued by the state, or any municipal authority, the court, in addition to the penalty prescribed above, may suspend or revoke such license.
"Sec. 148. Race or color not to disqualify for jury service. No citizen of the state of Michigan, possessing all other qualifications which are or may be prescribed by law, shall be disqualified to serve as grand or petit juror in any court of said state on account of race, creed or color, and any officer or other person charged with any duty in the drawing, summoning, and selection of persons who shall exclude from, fail, neglect and/or refuse, by words, trick and/or artifice, to draw the name of, summon and/or select any citizen for jury service because of his or her race, creed and/or color, shall be guilty of a misdemeanor and upon conviction shall be fined not less than 50 dollars or shall be imprisoned for a period of not less than 30 days, or both such fine and imprisonment in the discretion of the court.”
"The Michigan statute is one of the familiar type enacted by many states before and after this Court’s invalidation of Congress’ similar legislation in the Civil Rights Cases, 109 US 3 [3 S Ct 18; 27 L Ed 835 (1883)].10_
"io These cases were decided in 1883. The Michigan statute was enacted originally in 1885. Seventeen other states have similar, and in many instances substantially identical, legislation.” Bob-Lo Excursion Co v Michigan, 333 US 28, 33; 68 S Ct 358; 92 L Ed 455 (1948).
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T. G. Kavanagh, C. J.
In this slip and fall case the plaintiff was injured while walking through a passageway in defendant’s restaurant. Close to the passageway there was an ice-making machine from which ice had been spilled on previous occasions. There was conflicting testimony as to whether there was ice on the walkway at the moment of the plaintiff’s fall.
The trial judge, sitting without a jury, gave a judgment of no cause, finding as a matter of fact that there was no negligence on the part of the defendant nor was there any testimony that the ice machine in its location was "per se a dangerous instrumentality or condition”. The trial judge found further that the plaintiffs "failed to show that the condition existed for a sufficient length of time to attribute constructive knowledge to defendant or his employees”.
The Court of Appeals in a memorandum opinion affirmed.
Plaintiffs claim, and we agree, that the trial judge was in error when relying on Winfrey v S S Kresge Co, 6 Mich App 504; 149 NW2d 470 (1967), he concluded as a matter of law that the plaintiffs had to "show that the condition existed for a sufficient length of time to attribute constructive knowledge to the defendant or his employees”.
If there was ice on the floor at the time of fall, the plaintiffs would not have to show that defendant had actual or constructive knowledge of the condition. Defendant had ample notice that ice had been spilled by his employees on prior occasions. He is not entitled as a matter of law to separate notice on each subsequent occurrence, for the condition was created by his employees.
We hold that the correct rule of law was stated in Hulett v Great Atlantic & Pacific Tea Co, 299 Mich 59; 299 NW 807 (1941):
"It was not necessary for plaintiff to prove defendant had actual or constructive knowledge of the hazardous condition of its floor, as the alleged negligence was the act of defendant in creating this condition. Defendant could not by its own act create a hazardous condition and then demand that plaintiff, who was injured as a result thereof, prove it had knowledge of such condition. Knowledge of the alleged hazardous condition created by defendant itself is inferred.”
If the court had expressly found that 1) there was no ice on the floor, or 2) there was ice on the floor but the plaintiff did not slip on it, his decision would have to be affirmed. As fact finder he would have been free to reject the evidence that there was ice on the floor or equally free to find the plaintiff did not slip on it.
It is not fully clear, however, from the trial judge’s opinion exactly what he did find.
Because of his reliance on Winfrey, supra, we are persuaded that the trial judge addressed himself to the wrong question in deciding this case.
Accordingly we set aside the judgment and re mand for further consideration by the judge who tried this case. See Dauer v Zabel, 381 Mich 555 at 558; 164 NW2d 1 (1969).
Costs to abide the event.
T. M. Kavanagh, Swainson, Williams, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred with T. G. Kavanagh, C. J. | [
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Levin, J.
The issue is whether school teachers who strike may be discharged without a prior hearing.
Resolution requires construction of the public employment relations act (the PERA) in relation to the teachers’ tenure act and consideration of the teachers’ claim that the PERA is violative of the Due Process Clause unless construed to require a prior hearing.
Section 6 of the PERA provides that public employees who, in concerted action with others, in support of efforts to obtain a change in compensation or other conditions of employment, fail to render services shall be deemed on strike. If the employee is disciplined by his employer for striking, he is entitled, on request, to a determination whether he violated the provisions of the act. The request is to be made "within 10 days after regular compensation of such employee has ceased or other discipline has been imposed”. (Emphasis added.) If the employee is found to have violated the act, he may seek review by the circuit court.
In contrast, the teachers’ tenure act requires a hearing before discharge. That act provides that a teacher on continuing tenure may be discharged or demoted "only for reasonable and just cause, and only after such charges, notice, hearing and determination thereof’. (Emphasis supplied.)
The circuit court found that the failure of the school board to proceed in accordance with the teachers’ tenure act required reinstatement of the teachers who were discharged. The Court of Appeals affirmed.
We conclude that a teacher, including a teacher on continuing tenure, who strikes in violation of the PERA may be disciplined without a prior hearing, and we reverse the circuit court and the Court of Appeals.
I
The Crestwood Education Association (the union) and the Board of Education of the School District of Crestwood (the school board) have been involved in a prolonged labor dispute. There has been no collective bargaining agreement since August, 1973.
When the school year commenced on September 3, 1974, the teachers, members of the union, did not report for work. This action was brought against the union and the school board on September 30, 1974, by the plaintiffs as homeowners, taxpayers and parents. By subsequent stipulation, the plaintiffs were dismissed and the litigation has continued on the cross-complaint of the school board.
Injunctive orders were issued in October and classes resumed. In December the teachers again did not report for work and classes were suspended. Contempt proceedings followed. Thereafter the school board adopted a resolution requiring the teachers either to report for work or to submit a letter of resignation by December 27, 1974, failing which their employment would be terminated. Thirty-eight teachers reported for work, one submitted a letter of resignation and the remaining 184 were, by school board resolution of December 30, 1974, deemed to have terminated their employment.
The school board hired substitute teachers and attempted to operate the schools.
The union had theretofore filed unfair labor practice charges with the Michigan Employment Relations Commission (MERC). The union then filed an amended charge complaining that the school board had not bargained in good faith and was attempting to destroy and interfere with the union. The teachers sought individual § 6 hearings on January 6, 1975. On January 10th the circuit court set aside the school board’s resolution of December 30, 1974 and directed reinstatement of the teachers and the resumption of classes. The Court of Appeals aifirmed. The teachers returned to work.
II
The PERA defines "strike”, prohibits strikes by public employees, and interdicts any public employer from authorizing a strike.
Section 6 of the PERA empowers the officer or body generally having disciplinary authority over an employee to terminate the employment of or impose other discipline on an employee who strikes in violation of the PERA. In providing that an employee’s request for a hearing to determine whether he did violate the PERA be filed within ten days after regular compensation has ceased or other discipline has been imposed, the Legislature manifested an intention that the officer or body may impose discipline without a prior hearing.
Section 6 begins with the words "[notwithstanding the provisions of any other law”.
The Legislature, recognizing the diversity of legislation concerning public employees, provided in § 6 a specific, unitary procedure for the discipline of public employees who strike superseding the diverse procedures applicable to different public employees where the basis for discipline is a ground other than striking.
Section 6 further provides that the proceeding for the determination whether the public employee violated the provisions of the PERA shall be "appropriate” to a proceeding for the removal of the employee (fn 3), and thus, in the case of a tenured teacher, consonant with the tenor of the procedures spelled out in the teachers’ tenure act. But to the extent there is conflict — and manifestly there is conflict as the teachers’ tenure act provides that discipline may be imposed only after charges, notice, hearing and determination, while the PERA contemplates imposition of discipline before a determination of whether the act has been violated and provides for a hearing only on request of the employee after the imposition of discipline — the PERA is to govern "[Notwithstanding the provisions of any other law”.
In enacting the PERA, the Legislature did not, apart from the "[Notwithstanding the provisions of any other law” clause of § 6, specifically provide that the PERA supersedes or replaces existing laws which arguably also govern public employee labor relations. The union contends that the quoted clause modifies only the first sentence of §6.
This Court has consistently construed the PERA as the dominant law regulating public employee labor relations. In Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974), we held that residency and retirement benefits are mandatory subjects of collective bargaining under the PERA, although provisions of a city’s ordinance and charter, promulgated under the home-rule act, would otherwise govern. Earlier, in Regents of the University of Michigan v Employment Relations Commission, 389 Mich 96; 204 NW2d 218 (1973), this Court "harmonized” the constitutional authority of the Regents to supervise the university and the authority of the Legislature to provide for the resolution of public employee disputes, holding that interns and residents in the University of Michigan Hospital were entitled to engage in collective bargaining. In Wayne County Civil Service Commission v Board of Supervisors, 384 Mich 363, 374; 184 NW2d 201 (1971), this Court held that the original authority and duty of the Wayne County Civil Service Commission "was diminished pro tanto” by the PERA "to the extent of free administration of the latter”.
The analysis is the same whether we label this reconciliation repeal by expression or by implication, pro tanto diminishing or harmonizing. The supremacy of the provisions of the PERA is predicated on the Constitution (Const 1963, art 4, § 48) and the apparent legislative intent that the PERA be the governing law for public employee labor relations.
The teachers’ tenure act was not intended, either in contemplation or design, to cover labor disputes between school boards and their employees. The 1937 Legislature in enacting the teachers’ tenure act could not have anticipated collective bargaining or meant to provide for the resolution of labor relations disputes in public employment. This Court’s observation in Wayne County Civil Service Commission, supra, is pertinent: "In [no] instance could collective bargaining by public employees have been in the minds of the people, or of the [1937] legislators. The thought of strikes by public employees was unheard of. The right of collective bargaining, applicable at the time to private employment, was then in comparative infancy and portended no suggestion that it eventually might enter the realm of public employment.” (Emphasis by the Court.)
The State Tenure Commission has no authority to entertain an unfair labor practice charge against a school board. Its jurisdiction and administrative expertise is limited to questions traditionally arising under the teachers’ tenure act.
MERC alone has jurisdiction and administrative expertise to entertain and reconcile competing allegations of unfair labor practices and misconduct under the PERA.
There is no provision in the teachers’ tenure act analogous to § 16(h) of the PERA (see Part VI, infra) providing for temporary relief by a circuit court pending consideration of an unfair labor practice charge. The circuit court’s jurisdiction under the teachers’ tenure act does not arise until appeal from a decision of the State Tenure Commission.
All teachers do not have rights of continuing tenure. Yet both tenured and non-tenured teachers are in a single public employee bargaining unit and have the same rights and obligations under Michigan’s labor relations statutes.
A construction of the statutes providing uniform treatment of all public employee labor relations questions is more likely to eífect a sound and expeditious resolution of labor disputes. Requiring hearings under both the teachers’ tenure act and the Michigan labor relations statutes, with review of the former by the circuit court and of the latter by the Court of Appeals, could result in competing claims and conflicting adjudications with untoward and costly delay.
Public employees may be disciplined under § 6 of the PERA only for engaging in concerted strike action, while most disciplinary actions subject to the jurisdiction of the State Tenure Commission concern individual teachers. It should therefore be a rare case where the line separating disputes subject to the jurisdiction of the State Tenure Commission from those subject to the jurisdiction of the MERC will be unclear.
The Crestwood teachers have asserted that they justifiably withheld their services because they had not been able to negotiate a new labor contract since August, 1973. No claim is or could be made that the discharges were occasioned by any cause other than the labor dispute.
Excluding from the jurisdiction of the State Tenure Commission discharges for concerted strike action will not impede the goals sought to be achieved by enactment of the teachers’ tenure act. These goals, as set forth in Rehberg v Ecorse School Dist No 11, 330 Mich 541, 545; 48 NW2d 142 (1951), quoting cases from foreign jurisdictions, are to "maintain an adequate and competent teaching staff, free from political and personal arbitrary interference”; to promote "good order and the welfare of the State and of the school system by preventing removal of capable and experienced teachers at the personal whims of changing office holders”; and "to protect and improve State education by retaining in their positions teachers who are qualified and capable and who have demonstrated their fitness, and to prevent the dismissal of such teachers without just cause”.
This construction of the two acts will not enable MERC to circumvent, at the request of school boards, the protection provided tenured teachers by the teachers’ tenure act. If the school board claims that a teacher was discharged for striking, the appeal is to the circuit court, not to MERC. If the school board claims that the teacher was dis charged for a reason other than striking, MERC’s jurisdiction is invoked only if the teacher claims he was discharged for activity protected under the PERA and the teacher himself files an unfair labor practice charge with the MERC; such a charge would not preclude the teacher from also defending against the discharge at a teachers’ tenure act hearing on the ground that it was not supported by reasonable and just cause.
Ill
Whether a teacher’s employment can be terminated, consistent with the Due Process Clause, without a hearing need not be decided. The PERA provides for a hearing.
The claim that the Due Process Clause requires a prior hearing in every case of deprivation of a property right has been rejected by the United States Supreme Court.
When the government seeks to deprive a person of a property right — and we accept, arguendo, that a teacher’s statutory rights under the teacher’s tenure act constitute property — due process requires a "hearing appropriate to the nature of the case.” Mullane v Central Hanover Bank & Trust Co, 339 US 306, 313; 70 S Ct 652; 94 L Ed 865 (1950). "The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.” Boddie v Connecticut, 401 US 371, 378; 91 S Ct 780; 28 L Ed 2d 113 (1970). "The types of 'liberty’ and 'property’ protected by the Due Process Clause vary widely, and what may be required under that clause in dealing with one set of interests which it protects may not be required in dealing with another set of interests.” Arnett v Kennedy, 416 US 134, 155; 94 S Ct 1633; 40 L Ed 2d 15, 34 (1974). "The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v McElroy, 367 US 886, 895; 81 S Ct 1743; 6 L Ed 2d 1230 (1961).
In its most recent expression on the subject, the Supreme Court in Arnett v Kennedy, supra, rejected a due process challenge to a statute allowing the discharge of a Federal employee without a pre-disciplinary evidentiary hearing. A variety of rationales were espoused, but the uniform thrust of each opinion, including the dissents, is that the constitutional necessity of a pre-disciplinary hearing must be determined by balancing the competing interests of the government and employee.
"We have repeatedly observed that due process requires that a hearing be held 'at a meaningful time and in a meaningful manner,’ Armstrong v Manzo, 380 US 545, 552 [85 S Ct 1187; 14 L Ed 2d 62] (1965), but it remains for us to give content to that general principle in this case by balancing the Government’s asserted interests against those of the discharged employee.” Arnett v Kennedy, supra, 416 US 134, 212 (Marshall, J., dissenting with Brennan and Douglas, JJ.).
When public employees strike, the public employer must, like a private employer, be able to hire substitute employees so that the public business is not interrupted. In order to hire competent replacements, it may be necessary for the public employer to offer permanent employment and thus displace strikers. Where essential services have been suspended, the hiring of replacements often cannot await time-consuming adjudicatory processes.
The predominant interest secured by pre-disciplinary hearings, as advanced in Arnett, supra, is protection against removal of the wrong person and, assuming ultimate employee vindication, protection against interim financial deprivation.
The possibility of removal of a non-striker is minimized when, as here, the school board gives each striking teacher personal notice of the opportunity to return to the classroom before disciplinary action is taken. While on strike, a teacher receives no compensation; striking teachers do not suffer additional interim financial deprivation when disciplined.
IV
The union contends, and we agree, that by striking, the teachers did not cease to be employees. Their employment could only be terminated in accordance with the procedures set forth in § 6 of the PERA.
The Michigan labor relations acts are modeled on the National Labor Relations Act (NLRA). In the private sector, the use of economic pressure by the parties to a labor dispute "is part and parcel of the process of collective bargaining”. NLRB v Insurance Agents International Union, 361 US 477, 495; 80 S Ct 419; 4 L Ed 2d 454 (1960). Under the NLRA and the Michigan labor mediation act, the term "employee” includes an employee on strike. Both acts define "employee” as including:
"any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of [under the NLRA, "any unfair labor practice’Vunder the labor mediation act, "any act which is illegal hereunder”], and who has not obtained any other regular and substantially equivalent employment.”
In construing the Michigan labor mediation act and the PERA, this Court has frequently been guided by the construction placed on the analogous provisions of the NLRA by the NLRB and the Federal courts.
The NLRB and the Federal courts have developed an intricate body of law concerning the reinstatement of strikers. There are many permutations, but certain general principles have emerged. The Federal cases recognize an employer’s right to hire replacements for strikers. "Economic strik ers” have limited rights of reinstatement. "Unfair labor practice” strikers have an absolute right to reinstatement — unless guilty of misconduct — even if the employer has hired permanent replacements.
Although a strike begins as an economic strike, if it is determined that the employer engaged in an unfair labor practice, the strike may be held to be an unfair labor practice strike and the striking employees entitled to reinstatement.
Since an economic strike is protected concerted activity under the NLRA and the Michigan labor mediation act, it is an unfair labor practice for a private employer to discharge an employee for engaging in an economic strike before the employee has been replaced. The Crestwood school board discharged the school teachers before hiring replacements. However, in contrast with the NLRA and the Michigan labor mediation act, the PERA prohibits strikes in public employment; public employee strikes, therefore, are not protected "lawful concerted [activity] for the purpose of collective negotiation or bargaining or other mutual aid and protection” within the meaning of § 9 of the PERA, modeled on § 8 of the Michigan labor mediation act and § 7 of the National Labor Relations Act.
The Federal courts have held that a strike may be unlawful either because it has an unlawful purpose or unlawful means are used to accomplish a lawful purpose and strikers who engage in unlawful strike activity may be discharged.
The action of the Crestwood school board in discharging teachers for striking in violation of the provisions of the PERA prior to the hiring of replacements was not violative of that act. It does not necessarily follow, however, that these teachers may not be entitled to reinstatement should MERC determine that the school board engaged in an unfair labor practice.
V
The union filed an unfair labor practice charge with the MERC which has not been considered on its merits. Its amended charge, filed after the December 30, 1974 discharge of the teachers, asserts that "[a]ny interruptions in the performance of teaching duties by teachers in such district have been directly provoked and instigated by the unfair labor practices of respondent employer”.
If MERC should determine that the employing school district committed an unfair labor practice, MERC may, despite the illegality of the teachers’ strike, order reinstatement.
The distinction between administrative agencies and equity courts in the application of the "clean hands” doctrine was early recognized by the NLRB and the Federal courts in implementing the Congressional mandate that upon the finding of an unfair labor practice the board "take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of the [NLRA].” "Equally untenable is the contention that the strikers are not entitled to reinstatement because they have not come into court with clean hands. This principle is not applicable to a proceeding in which a governmental agency is seeking enforcement of its order in the public interest.” Republic Steel Corp v NLRB, 107 F2d 472, 479 (CA 3, 1939) modified on other grounds, 311 US 7; 61 S Ct 77; 85 L Ed 6 (1940).
The language of the Michigan labor mediation act spelling out the remedial authority of the MERC upon finding an unfair labor practice is identical to the corresponding language of the NLRA.
If the MERC finds that an unfair labor practice or other misconduct was committed by both sides, it should balance the competing equities to reach a result best effectuating the goals of the act.
"Where an employer who has committed unfair labor practices discharges employees for unprotected acts of misconduct, the Board must consider both the seriousness of the employer’s unlawful acts and the seriousness of the employees’ misconduct in determining whether reinstatement would effectuate the policies of the Act. Those policies inevitably come into conflict when both labor and management are at fault. To hold that employee 'misconduct’ automatically precludes compulsory reinstatement ignores two considerations which we think important. First, the employer’s antecedent unfair labor practices may have been so blatant that they provoked employees to resort to unprotected action. Second, reinstatement is the only sanction which prevents an employer from benefiting from his unfair labor practices through discharges which may weaken or destroy a union.” Local 833, UAW-AFL-CIO, etc v NLRB, 112 US App DC 107, 110-111; 300 F2d 699, 702-703 (1962). Upon remand Kohler Co, 148 NLRB 1434 (1964); aff'd 120 US App DC 259; 345 F2d 748 (1965); cert den 382 US 836; 86 S Ct 82; 15 L Ed 2d 79 (1965).
In this case, teachers sought review under § 6. Because of the pendency of this litigation, § 6 hearings have not been conducted. The hearings may now proceed or, if the parties agree, be deferred until determination by MERC of the unfair labor practice charges.
A § 6 hearing is of limited inquiry. Its sole purpose is to determine whether the employer correctly identified the particular employee as a violator of the act’s prohibition against striking. Since the hearing will ordinarily be conducted by the employer, as the officer or body having general disciplinary authority, a § 6 hearing is not an appropriate forum for the employee to assert in defense the employer’s violation of the act. Allegations of or defenses premised upon employer misconduct are the exclusive province of the MERC to resolve upon the filing of an unfair labor practice charge.
Even if it should be determined in § 6 hearings that particular teachers have violated the provisions of the PERA by striking and those determinations are sustained on review, if MERC orders reinstatement of striking teachers because it determines that this affirmative action will best "effectuate the policies of the act” and that determination is sustained on review, the teachers shall be reinstated.
VI
The status of the teachers presently in the class rooms pending resolution by MERC of the unfair labor practice charges is of considerable importance to the school children, parents, and school board, as well as to the teachers.
The teachers were reinstated pursuant to the Court of Appeals order of January 17, 1975. In granting leave we did not stay that aspect of that order.
Section 16(h) of the PERA provides that MERC shall have the power, upon issuance of a complaint charging that any person has engaged in or is engaging in an unfair labor practice, to petition the circuit court for "appropriate temporary relief or restraining order” and that the circuit court shall have jurisdiction to grant "to the board [MERC]” such temporary relief or restraining order as it deems just and proper.
When the union filed with MERC the amended unfair labor practice charge against the school board on January 6, 1975, it requested the Commission to seek immediate relief in the circuit court pursuant to § 16(h). The director of the MERC responded the same day: "It has been the consistent policy of this Commission to refrain from petitioning for temporary relief or a restraining order under the provisions of Section 16(h) of the act. Therefore, your request is denied and the charges filed in the matter will be processed in accordance with established statutory procedures.”
Whatever the reasons for this policy — financial or personnel limitations or other — the Commission may not properly adopt an arbitrary policy of refusing to consider exercising, without regard to the circumstances, power conferred upon it by the PERA.
The Commission should consider and decide the union’s request. If the Commission persists in its refusal to act on the request, it would appear that an order should enter directing it to do so.
VII
The Court of Appeals ordered the school board and the union to submit this dispute to compulsory arbitration. The union defends this directive on the ground that, having sought equity, the school board may appropriately be required to do equity. It is asserted that a court of equity has the power to grant "complete relief’, to "order done what ought to be done”, and to enter such orders as may be in the "public interest” and as "appeal to the conscience of the chancellor” so as to provide a remedy consonant with its directive that the teachers "work under conditions they had never agreed to and which remain patently obsolete in a period of mounting inflation. The court refused to impose continued 'involuntary servitude’ without providing a rational means of resolving the impasse between two stubborn parties.”
The Court of Appeals order was predicated on its court-rule-conferred power to "[g]ive any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief as the case may require”, and its statutory power "to issue any writs, directives and mandates that it judges necessary and expedient to effectuate its determination of cases brought before it”.
The union relies on cases where special masters, receivers or monitors were appointed. But in every such case, the person so appointed was authorized to exercise a power which the judge, if not otherwise preoccupied, could himself exercise. A special master, receiver or monitor exercises the powers conferred upon him subject to the judge’s power to substitute his own independent judgment at any time for the judgment of the special master, receiver or monitor unimpeded by the limitations generally pertaining when a court sits in judicial review of an arbitrator’s decision.
If the compulsory arbitration ordered by the Court of Appeals contemplated the kind of supervision a judge exercises over a special master, receiver or monitor or the kind of plenary equitable power a chancellor possesses, then, in the final analysis, the court itself would be called upon to decide the contract terms, to write a contract for the parties. If it was contemplated that the court would sit in judicial review of the compulsory arbitrator’s decision, then the special master-receiver-monitor analogy is inapposite.
While the PERA obliges a public employer to bargain collectively with the representatives of its employees, it is further provided that "such obligation does not compel either party to agree to ú proposal or require the making of a concession”.
The Constitution provides that it is the Legislature, not the judiciary, that has the power to "enact laws providing for the resolution of disputes concerning public employees”. The Legislature has chosen to provide for the resolution of impasses in collective bargaining only in the case of municipal police and fire departments. Apart from that enactment, there is no statute for the resolution of impasses in either public Or private collective bargaining.
A court is without power to make a contract for parties or to confer on someone else the power to make a contract for them. By like token, it cannot compel the parties to confer on someone else the power to make a contract.
A court, in law or equity, may indeed enter all appropriate orders, but only those consistent with the proper discharge of its judicial responsibility. It has been said that there is not a judicial remedy for every wrong or shortcoming in society or in a statutory scheme. The Legislature has left the resolution of collective bargaining impasses in limbo and there the matter shall remain until it chooses to act.
Reversed. No costs, a public question.
T. G. Kavanagh, C. J., and M. S. Coleman and J. W. Fitzgerald, JJ., concurred with Levin, J.
Williams, J.
(for affirmance except as to compulsory arbitration). We decide today a significant matter of state-wide importance involving the respective rights and duties of school teachers and a school board engaging in a labor dispute characterized by the teachers’ withholding their services and allegations of unfair labor practices on the part of the school board. In resolving the questions presented, the Crestwood school situation places this Court once again in its historic role of preserving traditional rights and fundamental values of the past while accommodating newer rights and requirements dictated by the necessities of the present and the future.
The ultimate and publicly understood issue in this case is — can the school board discharge allegedly unlawfully striking teachers without prior notice and hearing?
This ultimate issue, however, totally depends upon a threshold issue. The threshold and dispositive issue is narrow and technical — to what extent has the public employment relations act [hereafter "PERA”] repealed the teachers’ tenure act, [hereafter "TTA”] by implication, because TTA would clearly provide prior notice and hearing in this case.
The narrow, technical issue in turn depends upon whether the alleged repealing legislation, PERA, contains a discharge provision in conflict with the clear and detailed discharge provisions in TTA so that it can be said that the conflicting PERA provision repeals the TTA provisions by implication because PERA is subsequent legislation.
To begin with then, the dispositive issue in this case is — is there a discharge provision in PERA that conñicts with and repeals the discharge provisions in TTA?
The fact of the matter is that there is not a single word in PERA affirmatively providing for a discharge procedure. On the contrary, there is a PERA provision that refers outside of PERA to a separate discharge procedure clearly indicating that there is none in PERA. As a consequence, it is neither legally nor logically appropriate to say that there is a discharge provision in PERA that conflicts with, and hence repeals by implication, the discharge provisions of TTA.
The school board and Justice Levin’s opinion, however, attempt to infer a conflicting discharge provision in PERA, since they cannot refer to any provision which in so many words sets up a discharge provision, for the simple reason that, in fact, there isn’t any. It is submitted that it is legally unacceptable to construe repeal of a well-established statutory provision by a mere inference in a subsequent statute, especially when the meaning of that inference is dubious at the best.
As to the dispositive issue, bearing in mind this Court’s duty to reasonably and harmoniously construe legislation bearing on the same subject matter, and bearing in mind as well our duty to protect basic rights once granted by legislation or otherwise, it is our opinion that there is no PERA discharge provision that conflicts with, and hence repeals by implication, the traditional rights of notice and hearing prior to discharge which are at the heart of TTA. As a consequence, we affirm the Circuit Court order of January 10, 1975, and the Court of Appeals result minus "compulsory” arbitration.
I —Facts
Our Brother Levin cogently recites the factual background in this case in Section I of his opinion. It is worth noting, in addition to that recitation, that the circuit court based its order of January 10, 1975, setting aside the board’s discharge resolution of December 30, 1974, and reinstating the teachers, on the failure of the board to follow the procedural requirements of TTA, which a majority of that Court, Judges Bowles and Roumell, found to be controlling in this situation. The Court of Appeals, while unanimous in its affirmation of the circuit court order and finding of procedural infirmity, based its decision not on TTA alone but rather on a blend of the requirements of TTA and PERA § 6, the latter, the Court holding, being controlling in the two "irreconcilable” instances of conflict which it found.
II —Pertinent Statutory Provisions
The critical statutory provisions of TTA and PERA read as follows:
TTA
"The controlling board, if it decides to proceed upon * * * charges, [against a teacher] shall furnish the teacher with a written statement of the charges including a statement of the teacher’s rights under this article, and shall, at the option of the teacher, provide for a hearing to take place not less than 30 nor more than 45 days after the filing of such charges.” MCLA 38.102; MSA 15.2002.
"Any hearing held for the dismissal or demotion of a teacher, as provided in this act, must be concluded by a decision in writing, within 15 days after the termination of the hearing. A copy of such decision shall be furnished the teacher affected within 5 days after the decision is rendered.” MCLA 38.104(f); MSA 15.2004(f).
"A teacher who has achieved tenure status may appeal any decision of a controlling board under this act within 30 days from the date of such decision, to a state tenure commission.” MCLA 38.121; MSA 15.2021. PERA §6
"Notwithstanding the provisions of any other law, any person holding such a position who, by concerted action with others, and without the lawful approval of his superior, wilfully absents himself from his position, or abstains in whole or in part from the full, faithful and proper performance of his duties for the purpose of inducing, influencing or coercing a change in the conditions or compensation, or the rights, privileges or obligations of employment shall be deemed to be on strike but the person, upon request, shall be entitled to a determination as to whether he did violate the provisions of this act. The request shall be filed in writing, with the officer or body having power to remove or discipline such employee, within 10 days after regular compensation of such employee has ceased or other discipline has been imposed. In the event of such request the officer or body shall within 10 days commence a proceeding for the determination of whether the provisions of this act have been violated by the public employee, in accordance with the law and regulations appropriate to a proceeding to remove the public employee. The proceedings shall be undertaken without unnecessary delay. The decision of the proceeding shall be made within 10 days. If the employee involved is held to have violated this law and his employment terminated or other discipline imposed, he shall have the right of review to the circuit court having jurisdiction of the parties, within 30 days from such decision, for determination whether such decision is supported by competent, material and substantial evidence on the whole record.”
Ill —Applicable Rules of Statutory Construction
General comparison of the pertinent sections of TTA and PERA above indicates that they are statutes in pari materia. It is therefore our duty to harmonize them if we can:
"[I]f the courts can by any fair, strict or liberal construction find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation upon the subject it is their duty to do so.” Rathbun v State of Michigan, 284 Mich 521, 544-545; 280 NW 35, 44 (1938), quoting with approval from State ex rel Ellis v Givens, 48 Fla 165, 174; 37 So 308 (1904).
See also Borden, Inc v Department of Treasury, 391 Mich 495, 511, 523; 218 NW2d 667 (1974) (Opinion of Williams, J.).
Additionally, insofar as TTA and PERA cannot be reconciled and one act is in conflict with the other, PERA as the later legislation will be deemed to supersede TTA pro tanto. The Court of Appeals properly cited the general rule in this regard from Wayne County Civil Service Commission v Board of Supervisors, 384 Mich 363, 373; 184 NW2d 201 (1971):
"This is not to say that the act of 1965 repeals outright the act of 1941. Respecting as always our long since declared and regularly maintained rule that repeals by implication are not favored, and that it is only when the two measures in view are so incompatible that both or all cannot fully stand, we can only find that this is a striking instance for application of that rule which, back in 1877, was written into the Court’s opinion of Breitung v Lindauer (1877), 37 Mich 217, 233:
" 'The rule is that the latter act operates to the extent of the repugnancy, as a repeal of the first, or, if the two acts are not in express terms repugnant, yet if the latter covers the whole subject of the ñrst, and contains new provisions showing that it was intended as a substitute, it will operate as a repeal.’ ” (Footnote omitted.)
Further, there is voluminous case law standing for the proposition that a "repugnancy” pronounced enough as to work a repeal by implication "must be clear and unavoidable” — if the allegedly-conflicting statutes "can be reconciled and a purpose found to be served by each”, then there is no conflict. Detroit Police Officers Association v City of Detroit, 391 Mich 44, 65; 214 NW2d 803 (1974). The guiding principles of construction in this context are as follows:
" 'Repeal by implication is not permitted if it can be avoided by any reasonable construction of the statutes. Couvelis v. Michigan Bell Telephone Co., 281 Mich 223 [274 NW 771 (1937)]; People v. Hanrahan, 75 Mich 611 (4 LRA 751) [42 NW 1124 (1889)]. If by any reasonable construction 2 statutes can be reconciled and a purpose found to be served by each, both must stand, Garfield Township v. A. B. Klise Lumber Co., 219 Mich 31 [188 NW 459 (1922)]; Edwards v. Auditor General, 161 Mich 639 [126 NW 853 (1910)]; People v. Harrison, 194 Mich 363 [160 NW 623 (1916)]. The duty of the courts is to reconcile statutes if possible and to enforce them, Board of Control of the Michigan State Prison v. Auditor General, 197 Mich 377 [163 NW 921 (1917)]. The courts will regard all statutes on the same general subject as part of 1 system and later statutes should be construed as supplementary to those preceding them, Wayne County v Auditor General, 250 Mich 227 [229 NW 911 (1930)]. See, also, Rathbun v. State of Michigan, 284 Mich 521 [280 NW 35 (1938)].’ People v. Buckley, 302 Mich 12, 22 [4 NW2d 448 (1942)].
" 'This court has held that only, when 2 acts are so incompatible that both cannot stand, does a later act repeal a former.’ In re Estate of Reynolds, 274 Mich 354, 360 [264 NW 399 (1936)].” Valentine v Redford Twp Supervisor, 371 Mich 138, 144; 123 NW2d 227 (1963).
See also In re Lambrecht, 137 Mich 450, 455; 100 NW 606 (1904); Garfield Twp v A. B. Klise Lumber Co, 219 Mich 31, 35; 188 NW 459 (1922); Saginaw City Council v Saginaw Board of Estimates, 256 Mich 624, 633; 239 NW 872 (1932), and citations collected therein.
IV —Does PERA Provide a Discharge Procedure in Conñict with TTA?
TTA, as the statutory excerpts set out in Part II above indicate, provides a very specific discharge procedure including furnishing written charges along with a statement of the teacher’s rights, a hearing not less than 30 nor more than 45 days after filing charges, and a decision in writing within 15 days of the conclusion of the hearing, which must be furnished the teacher within 5 days after it is rendered.
TTA is in effect "the teachers’ Magna Charta.” The heart of it is this guarantee of due process in any discharge proceeding, especially prior notice and hearing.
It must be presumed therefore that if the Legislature should decide to repeal what it had so specifically granted it would not do so in an offhand manner but by specific repeal or repeal by implication clear beyond peradventure. As we said in Rathbun v State of Michigan, 284 Mich 521, 544; 280 NW 35 (1938), quoting 59 CJ, p 1051:
"it will not be presumed that the legislature, in the enactment of a subsequent statute, intended to repeal an earlier one, unless it has done so in express terms * * * .” (Emphasis added.)
Without question, PERA provides no specific repeal of TTA discharge procedure. Does PERA repeal TTA’s discharge procedure by implication by setting up a discharge procedure in direct, unavoidable conflict? The answer is that it does not.
Nowhere in PERA is any discharge procedure set up. PERA does not specify that there must be notice and hearing before discharge. PERA does not specify that notice and hearing are not necessary before discharge. PERA § 6 does not provide in any way, shape, or fashion the mechanism or authority for a discharge or disciplinary proceeding.
What PERA does set up is a procedure in its own words to be "a determination as to whether he [the alleged striker] did violate the provisions of this act”. The pertinent language is:
"[the alleged striker] shall be. entitled to a determination as to whether he did violate the provisions of this act. The request shall be filed in writing within 10 days after regular compensation of such employee has ceased or other discipline has been imposed.”
This hearing obviously is not a discharge or discipline hearing because it is only requested after discharge or discipline. In establishing the rules of conduct for such a determination, there is specific reference to a body of rules outside of PERA, which, in this case, Justice Levin’s opinion agrees is TTA. The text here referred to is as follows:
"In the event of such request [for a determination whether or not there was a violation of the PERA anti-strike provision] the officer or body shall within 10 days commence a proceeding for the determination of whether the provisions of this act have been violated by the public employee, in accordance with the law and regulations appropriate to a proceeding to remove the public employee. ” (Emphasis added.)
In short, since PERA does not set up a discharge procedure itself and specifically refers outside of PERA for such a procedure, it cannot be said, following the rules of statutory construction set out in Part III of this opinion, that PERA by implication has repealed the discharge procedure in TTA.
As a matter of fact, not only is there no statutory repugnancy here, it is perfectly possible and reasonable to read these statutes together, i.e., a PERA hearing shall occur only after there has been discipline imposed following the procedural dictates of TTA. We recognize that some might feel that the TTA time limits and requirements, though not by any means unduly long, might better be shortened to meet the exigencies of strike situations. This approach was in fact taken by the Court of Appeals in this case. However, we do not write legislation; the time periods involved are properly matters for legislative consideration and action.
Accordingly, as outlined above, we hold that the Crestwood Board of Education erred in discharging the subject teachers summarily, without prior notice and hearing, and without reference to the applicable provisions of TTA.
V —Contrary Contention
The opinion of our learned Brother Levin, however, states:
"Section 6 of the PERA empowers the officer or body generally having disciplinary authority over an employee to terminate the employment of or impose other discipline on an employee who strikes in violation of the PERA. In providing that an employee’s request for a hearing to determine whether he did violate the PERA be filed within ten days after regular compensation has ceased or other discipline has been imposed, the Legislature manifested an intention that the officer or body may impose discipline without a prior hearing.”
The conclusion reached in the first sentence is inferred in the second sentence from the following language in PERA § 6:
"Notwithstanding the provisions of any other law, any person holding such a position who, by concerted action with others * * * absents himself * * * shall be deemed to be on strike but the person,- upon request, shall be entitled to a determination as to whether he did violate the provisions of this act. The request shall be filed in writing, with the officer or body having power to remove or discipline such employee, within 10 days after regular compensation of such employee has ceased or other discipline has been imposed. * * * ”
Nowhere in this PERA language is there any description of a removal procedure. All there is is a description of a procedure for a determination as to violation of the PERA anti-strike provision after there has been a removal proceeding in no way described in PERA.
Consequently, the best that can be said for the conclusion in our Brother Levin’s opinion that PERA provides a procedure for discharge is that it is based on an inference. It certainly is not set out in so many words in PERA.
So the first question is — can there be a repeal by implication where the conflicting provision proposed to substitute for a well-established and precise provision is no more than a possible inference? Let us recall the direct Rathbun reference to this:
"[I]t will not be presumed that the legislature, in the enactment of a subsequent statute, intended to repeal an earlier one, unless it has done so in express terms * * * (Emphasis added.) 284 Mich 521, 544.
But the second question is even more damaging —can there be an inference from the above quoted PERA language that not only is there a removal procedure specified but that what is specified is discharge without prior notice and hearing? Surely this is too much — a true non sequitur.
Certainly the fact that an alleged striker has the right to contest the alleged violation of PERA within ten days after he has been disciplined, discharged or his pay stopped says nothing as to how his discipline or discharge was accomplished, i.e., with or without prior notice or with or without prior hearing. This is the pertinent language of the act:
"[The alleged striker] shall be entitled to a determination as to whether he did violate the provisions of this act. The request shall be filed in writing * * * within 10 days after regular compensation of such employee has ceased or other discipline has been imposed.”]
All it says is that after the alleged striker has been disciplined, he may request a hearing, nothing more — not a single word as to how the discipline was imposed.
Consequently, it is submitted this kind of an inference supplies no basis whatsoever to conflict with and repeal by implication a specific provision for the traditional prior notice and hearing provided in TTA.
In passing, it may be noted as well that the force of the phrase "[notwithstanding the provi sions of any other law”, which Justice Levin heavily relies upon in his analysis, focuses on establishing that the described concerted action "shall be deemed to be [a] strike” and, possibly, to the right of the person to request a determination as to whether he was or was not in violation.
We also take note that the opinion of Justice Levin expresses a commendable concern that there be in Michigan under aegis of PERA/MERC, similar to the Federal pattern of NLRA/NLRB, a unitary procedure for the discipline of public employees who strike. This is a concern, as Justice Levin’s opinion points out, that this Court as a whole shares, and this specific opinion agrees with. However, in his opinion, Justice Levin has pushed this concern further than the Legislature has given any warrant, and at too great a cost in established human rights.
It must be recognized that there is at least one significant difference between the NLRA/NLRB and PERA/MERC patterns, that is that the Congress in establishing the self-contained NLRA/ NLRB system specifically recognized and bottomed the system on the right to strike to balance employer power and labor power. As the United States Supreme Court noted in Division 1287, Amalgamated Association of Street, Electric Railway & Motor Coach Employees v Missouri, 374 US 74, 82; 83 S Ct 1657; 10 L Ed 2d 763 (1963), reh den, 375 US 870; 84 S Ct 29; 11 L Ed 2d 100 (1963):
"Collective bargaining, with the right to strike at its coré, is the essence of the federal scheme.”
On the other hand, the Michigan Legislature in PERA § 6 went back to the Hutchinson Act which was specifically "[a]n act to prohibit strikes by certain public employees”. To compensate for the lack of strike power, the Legislature over the years had guaranteed to public employees specific rights and procedures, among them those outlined in TTA. These rights and procedures, to a greater or lesser extent, carried over with PERA.
Historically and legally, therefore, while PERA was a big step forward by the Legislature in responding to the constitutional mandate to establish a system of collective bargaining for public employees, it is common knowledge that PERA did not in and of itself establish a clear, unified system but rather staked out a new system coexisting with an old system, with a murky gray area of operation and applicability in between them. The all too vivid judicial history in recent years of conflicting and ineffectual reactions to ever-worsening school labor relations has highlighted and increased public awareness and understanding of the legislative hiatus in the interlock between PERA and TTA.
Justice Levin has courageously applied his very considerable legal and forensic talents to terminate this legislative mish-mash. His opinion has produced a new order under the aegis of PERA/ MERC, but at the cost of eliminating the important and traditional rights of notice and hearing before discharge and at the further cost of blinking at the recognized rules of statutory construction.
We concede that the result of our opinion is not as tidy as that of Justice Levin’s opinion and leaves much for the Legislature to do. We reach this result not out of any overwhelming reluctance to utilize the full potential of judicial power but through the recognition that the proper balance of administrative order and efficiency on the one hand, and personal rights on the other, necessary to meet the complex demands of teacher — school board relations at this time of extreme tension is not a matter that lends itself to the limited options of judicial construction of the material before us but requires the most comprehensive, as well as the wisest, employment of the Legislature’s political and drafting skills. As a matter of fact, the Legislature is this very moment vigorously and exhaustively examining the subject, and the media have expressed the hope that a new solution carefully balancing all the equities is in the making. Under these circumstances and at this time, we feel the Legislature is best equipped to tackle the larger policy decisions and this Court can better serve the public by solving this case on the fundamentals of legislative construction, pointing out such anomalies in the PERA/TTA interlock as this case has brought to our attention.
VI —Teachers Remained Employees Under Tenure Act While on Strike
The Crestwood School Board further contends that the discharged teachers, by striking "discontinued their services” within the meaning of Art V, § 1 of the teachers’ tenure act, MCLA 38.111; MSA 15.2011, thereby forfeiting the procedural safeguards of that act. This is an issue which this Court specifically reserved for decision in Shiffer v Board of Education of Gibraltar School Dist, 393 Mich 190, 201-203; 224 NW2d 255 (1974).
We agree with Justice Levin’s analysis on this point, in Section IV of his opinion, concluding that "by striking, the teachers did not cease to be employees”. In addition, we note that in this case there was a contractual employment relationship between the board and the teachers during the fall of 1974, though the specific terms of that contractual relationship were court-ordered, and that the teachers had actually been working on the job. School Dist for the City of Holland v Holland Education Association, 380 Mich 314; 157 NW2d 206 (1968) (Opinions of O’Hara, Souris and Kelly, JJ.). Cf. OAG 1969-1970, No 4704, p 150 (June 24, 1970).
VII —Probationary v Tenured Teachers
The Crestwood School Board further contends that the circuit court and the Court of Appeals erred in their opinions in failing to distinguish between probationary and tenured teachers with respect to the applicability of the procedural provisions of TTA.
Article II, § 4 of the TTA, MCLA 38.84; MSA 15.1984 reads in its entirety as follows:
"Articles 4, 5, and 6 shall not apply to any teacher deemed to be in a period of probation.”
Articles 4 and 6 contain the hearing, review, and other procedural protections and rights guaranteed by law to tenure teachers.
The fact that probationary teachers are not included in those specific sections does not mean, however, that probationary teachers have no procedural rights at all. As this Court has previously noted:
"[T]he intent of the entire [teachers’ tenure] act was to eliminate capricious and arbitrary employment policies of local school boards. This includes the probationary as well as the tenure period of employment. ” [Latter emphasis added.] Munro v Elk Rapids Schools; 383 Mich 661, 688, 691; 178 NW2d 450 (1970) (Dissenting opinion of T. G. Kavanagh, J.), later aff'd in full in Munro v Elk Rapids Schools, 385 Mich 618; 189 NW2d 224 (1971) (On Rehearing).
In guarding against such arbitrary and capricious employment policies and, in light of the lack of legislative directive on the issue of the proper procedure to be followed in disciplining or discharging probationary teachers, the courts are forced to act to protect teachers from unreasonable and, potentially, unconstitutional dismissal. Cf. Hortonville Education Association v Hortonville Joint School Dist. 66 Wis 2d 469, 225 NW2d 658 (1975).
The Court of Appeals has previously acted in this regard to guarantee the right of review of dismissal to probationary teachers though TTA does not specifically make provision for such review. Caddell v Ecorse Board of Education, 17 Mich App 632, 635; 170 NW2d 277 (1969). Such review does not involve the same level of employment termination protection afforded tenure teachers by statute. Tenure teachers may only be discharged for "reasonable and just cause”. MCLA 38.101; MSA 15.2001. The discharge of a probationary teacher, however, in the absence of specific legislation or contractual provision on point, is permissible only where it is neither unreasonable nor arbitrary nor beyond the scope of the board’s authority. Caddell, supra, 636.
Similarly, we hold today, in the absence of specific legislation on point, that probationary teachers have a right to notice and a hearing prior to discharge. Again, probationary teachers are not thereby converted into tenure teachers by virtue of this right — the hearing, if requested promptly, would only be concerned with the issues of whether the employment termination was arbitrary and unreasonable, or whether it was action outside the scope of the board’s authority, rather than the broader issues of "reasonable and just cause” for discharge in the case of tenure teachers who have been given broader statutory protection.
Accordingly, we hold that the Crestwood Board of Education erred, inter alia, in discharging both its probationary and tenured teachers without prior notice and hearings.
VIII —Circuit Court Injunction Properly Issued
The board also contends that, in any case, the teachers were not entitled to equitable relief in the form of an injunction due to their lack of "clean hands” in violating a previous circuit court injunctive order of October 22, 1974. The teachers respond, inter alia, that appellant school board likewise violated injunctive orders in the course of these protracted proceedings and, accordingly, has no cause to complain.
The Court of Appeals agreed with the teachers, noting that "[a]ll three judges in the trial court agreed that both parties were in 'open, flagrant defiance and in violation of [Judge Rashid’s] orders’ ”. 57 Mich App 636, 647. Dissenting Judge Rashid, on the circuit court, ruling directly on the "clean hands” question, explicitly opined:
"I feel that both sides have been in error on this score. * * * The fact is that both sides actually violated the terms of the [October 8 and 22, 1974] order.”
We will not second-guess the courts below, especially the trial court which has had direct contact with this litigation throughout its course, on this issue. As we have previously ruled in Thompson v Enz, 385 Mich 103, 110; 188 NW2d 579 (1971):
"[A]s a general rule, equity will administer such relief as the nature, rights, facts, and exigencies of the case demand at the close of the trial or at the time of the making of the decree.” Quoting from 27 Am Jur 2d, Equity, § 248, p 818.
The circuit court acted within its discretion in issuing its injunction and order of January 10, 1975.
IX —Court of Appeals Compulsory Arbitration Order Improper
We do not believe that the sua sponte order of the Court of Appeals requiring compulsory arbitration was a proper exercise of judicial discretion in this case.
X —Conclusion
We hold, as did the circuit court majority and the Court of Appeals, that appellee teachers were discharged in a procedurally improper manner.
Accordingly, we affirm the Circuit Court order of January 10, 1975. We further affirm the conclu sion, except as to compulsory arbitration, but not the analysis of the Court of Appeals. This matter is remanded to Wayne Circuit Court for further proceedings not inconsistent with this opinion.
No costs, a public question being involved.
T. M. Kavanagh and Swainson, JJ., concurred with Williams, J.
MCLA 423.201 et seq.; MSA 17.455(1) et seq.
MCLA 38.71 et seq.; MSA 15.1971 et seq.
"Notwithstanding the provisions of any other law, any person holding such a position who, by concerted action with others, and without the lawful approval of his superior, wilfully absents himself from his position, or abstains in whole or in part from the full, faithful and proper performance of his duties for the purpose of inducing, influencing or coercing a change in the conditions or compensation, or the rights, privileges or obligations of employment shall be deemed to be on strike but the person, upon request, shall be entitled to a determination as to whether he did violate the provisions of this act. The request shall be filed in writing, with the officer or body having power to remove or discipline such employee, within 10 days after regular compensation of such employee has ceased or other discipline has been imposed. In the event of such request the officer or body shall within 10 days commence a proceeding for the determination of whether the provisions of this act have been violated by the public employee, in accordance with the law and regulations appropriate to a proceeding to remove the public employee. The proceedings shall be undertaken without unnecessary delay. The decision of the proceeding shall be made within 10 days. If the employee involved is held to have violated this law and his employment terminated or other discipline imposed, he shall have the right of review to the circuit court having jurisdiction of the parties, within 30 days from such decision, for determination whether such decision is supported by competent, material and substantial evidence on the whole record.” MCLA 423.206; MSA 17.455(6).
MCLA 38.101; MSA 15.2001.
The Union also relies on § 569 of the School Code of 1955 providing:
"Any board after a teacher has been employed at least 2 consecutive years by the board may enter into a continuing contract with such teacher if the teacher holds a permanent or life certificate. A continuing contract is a contract which shall remain in full force and effect, as provided in the rules and regulations of the board, until the teacher resigns, elects to retire, is retired, or is dismissed for reasonable and just cause after a fair hearing.” MCLA 340.569; MSA 15.3569. The foregoing language, with minor style variations, was added by 1943 PA 96 to a compilation of school laws which preceded the adoption of the School Code of 1955.
The last clause of this 1943 enactment, "dismissed for reasonable and just cause after a fair hearing”, parallels Art IV, § 1 of the earlier enacted teachers’ tenure act (1937 PA [Ex .Sess] 4) which provides that a teacher on continuing tenure may be discharged or demoted "only for reasonable and just cause, and ** * * hearing * * * ”. MCLA 38.101; MSA 15.2001.
The teachers’ tenure act provides that the teacher shall be provided with written charges and, at the option of the teacher, for a hearing on these charges "not less than 30 nor more than 45 days after the filing of such charges”. MCLA 38.102; MSA 15.2002. Although the charging board may suspend the accused teacher from "active performance” pending resolution of the charge, it may not withhold pay or otherwise sever the employment relationship before the hearing. MCLA 38.103; MSA 15.2003. A tenured teacher may appeal "any decision” of the board and be provided a hearing before the State Tenure Commission. MCLA 38.121; MSA 15.2021. Either party may seek judicial review of the commission’s decision.
57 Mich App 636, 226 NW2d 596 (1975).
"As used in this act: (a) 'strike’ means the concerted failure to report for duty, the wilful absence from one’s position, the stoppage of work, or the abstinence in whole or in part from the full, faithful and proper performance of the duties of employment, for the purpose of inducing, influencing or coercing a change in the conditions, or compensation, or the rights, privileges or obligations of employment.” MCLA 423.201; MSA 17.455(1).
"No person holding a position by appointment or employment in the government of the state of Michigan, or in the government of any 1 or more of the political subdivisions thereof, or in the public school service, or in any public or special district, or in the service of any authority, commission, or board, or in any other branch of the public service, hereinafter called a 'public employee,’ shall strike.” MCLA 423.202; MSA 17.455(2).
"No person exercising any authority, supervision or direction over any public employee shall have the power to authorize, approve or consent to a strike by public employees, and such person shall not authorize, approve or consent to such strike, nor shall any such person discharge or cause any public employee to be discharged or separated from his or her employment because of participation in the submission of a grievance in accordance with the provisions of section 7.” MCLA 423.203; MSA 17.455(3).
Const 1963, art 7, § 22; MCLA 117.1 et seq.; MSA 5.2071 et seq.
Const 1963, art 8, § 5.
Const 1963, art 4, § 48.
Paw Paw Board of Education v Paw Paw Education Association, 1973 MERC 668; Summerfield School Dist v Summerfield Education Association, 1969 MERC 439.
The present definition of strike as "concerted” activity represents a change from the Hutchinson Act under which a single employee, acting alone, could strike. See Howlett, Michigan’s New Public Employment Relations Act, 45 Mich St B J 12, 14 (April, 1966).
Apart from the field of labor relations, the right of tenured teachers to a hearing has not been thought to require a prior hearing in every case. The State Tenure Commission has held, and the Court of Appeals affirmed, that the notice and hearing provisions in the teachers’ tenure act do not apply "in cases of reduction of personnel due to economic reasons.” Steeby v School Dist of Highland Park, 56 Mich App 395, 396; 224 NW2d 97 (1974).
See, e.g., Arnett v Kennedy, 416 US 134; 94 S Ct 1633; 40 L Ed 2d 15 (1974); Mitchell v W T Grant Co, 416 US 600; 94 S Ct 1895; 40 L Ed 2d 406 (1974); North American Cold Storage Co v Chicago, 211 US 306; 29 S Ct 101; 53 L Ed 195 (1908); Central Union Trust Co v Garvan, 254 US 554; 41 S Ct 214; 65 L Ed 403 (1921); Corn Exchange Bank v Coler, 280 US 218; 50 S Ct 94; 74 L Ed 378 (1930); Phillips v Commissioner, 283 US 589; 51 S Ct 608; 75 L Ed 1289 (1931); Bowles v Willingham, 321 US 503; 64 S Ct 641; 88 L Ed 892 (1944); Fahey v Mallonee, 332 US 245; 67 S Ct 1552; 91 L Ed 2030 (1947); Ewing v Mytinger & Casselberry, Inc, 339 US 594; 70 S Ct 870; 94 L Ed 1088 (1950).
See School Dist for the City of Holland v Holland Education Association; 380 Mich 314; 157 NW2d 206 (1968). If the employment relationship is severed when an employee strikes, arguably there would be no governing law. The PERA, in terms, governs only relationships between public employers and their public employees.
Under the NLRA, a striking employee remains an "employee” for purposes of the act and remains protected against unfair labor practices. NLRB v MacKay Radio & Telegraph Co, 304 US 333, 345; 58 S Ct 904; 82 L Ed 1381, 1390 (1938).
61 Stat 136 (1947) et seq., 29 USCA 151 et seq.
MCLA 423.2; MSA 17.454(2); 61 Stat 137 (1947), 29 USCA 152.
See Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974); Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich 116, 127; 223 NW2d 283 (1974); Michigan Employment Relations Commission v Reeths-Puffer School Dist, 391 Mich 253, 260; 215 NW2d 672 (1974).
"Although § 13 provides, 'Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike,’ it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers.” NLRB v MacKay Radio & Telegraph Co, supra, at p 345. Note, Replacement of Workers During Strikes, 75 Yale L J 630 (1966).
An economic striker may be entitled to re-employment when the strike ends if his job has not been filled by a permanent replacement. Even when the job has been filled, if a vacancy subsequently occurs economic strikers who have indicated their continued availability have a qualified right to re-employment. See Morris, The Developing Labor Law (1971), pp 524-529; Note, Replacement of Workers During Strikes, supra.
See 45 ALR2d 887 Anno: National Labor Relations Act: Sitdown strike, violence, or similar misconduct during strike as affecting employer’s right to discharge employee or employee’s right to be reinstated after strike.
See NLRB v International Van Lines, 409 US 48, 52; 93 S Ct 74; 34 L Ed 2d 201 (1972); Local 833, UAW-AFL-CIO, etc v NLRB, 112 US App DC 107, 109; 300 F2d 699, 701 (CA DC, 1962); NLRB v Giustina Bros Lumber Co, 253 F2d 371, 373 (CA 9, 1958); NLRB v Reliance Clay Products Co, 245 F2d 599 (CA 5, 1957); NLRB v Waukesha Lime & Stone Co, Inc, 343 F2d 504, 510 (CA 7, 1965).
See NLRB v International Van Lines, supra. "[T]he authorities uniformly hold that the discharge of economic strikers prior, as here, to the time their places are filled constitutes an unfair labor practice.” NLRB v Globe Wireless, 193 F2d 748, 750 (CA 9, 1951).
MCLA 423.209; MSA 17.455(9).
MCLA 423.8; MSA 17.454(8).
61 Stat 140 (1947), 29 USCA 157.
Resort to violence and the so-called sit-down strike are unlawful means. Jurisdictional strikes and a strike whose aim is featherbedding are strikes for unlawful purposes under the NLRA. See generally, Morris, Ihe Developing Labor Law (1971), pp 529-535.
NLRA § 10(c), 61 Stat 147 (1947), 29 USCA 160(c).
See Chafee, Coming Into Equity with Clean Hands, 47 Mich L Rev 1065, 1080-1081 (1949).
"[T]o take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this act.” MCLA 423.216(b); MSA 17.455(16)(b).
To determine whether employee misconduct will bar reinstatement, the NLRB and the United States Courts of Appeals consider the gravity of the misconduct in light of the employer’s unfair labor practices and discriminatory discharges. Note, Strike Misconduct as Grounds for Denial of Reinstatement, 32 NYU L Rev 839, 843 (1957); Sahm, Picket-Line Misconduct and Employee Reinstatement, 56 ABAJ 561 (1970); Lipton, Misconduct in Concerted Activities Under the NLRA, 8 Labor L J 299 (1957).
In the following cases reinstatement was ordered: NLRB v Thayer Co, 213 F2d 748 (CA 1, 1954) cert den 348 US 883; 75 S Ct 123; 99 L Ed 694 (1954) (improper strike; discriminatory discharge); NLRB v Thor Power Tool Co, 351 F2d 584 (CA 7, 1965) (abusive language; discriminatory discharge); Allied Industrial Workers, AFL-CIO Local Union No. 289 v NLRB, 155 US App DC 112; 476 F2d 868 (1973) (following a car to coerce and harass the occupants not to report to work; employer unfair labor practice); NLRB v Wallick, 198 F2d 477 (CA 3, 1952) (unprotected strike; employer unfair labor practice); NLRB v Wichita Television Corp, 277 F2d 579 (CA 10, 1960) (mass picketing, blocking doorway, heckling; discriminatory discharge); NLRB v Elkland Leather Co, 114 F2d 221 (CA 3, 1940) (throwing stones at cars of "loyal” employees; employer unfair labor practice).
In the following cases reinstatement was denied: Seminole Asphalt Refining, Inc v NLRB, 497 F2d 247 (CA 5, 1974) (throwing cherry bombs into company property near storage tanks containing flammable petroleum; employer unfair labor practice); NLRB v Big Three Welding Equipment Co, 359 F2d 77 (CA 5, 1966) (pilfering company’s property; discriminatory discharge); NLRB v R C Can Co, 340 F2d 433 (CA 5, 1965) (threat of physical violence; discriminatory discharge); Iowa Beef Packers, Inc v NLRB, 331 F2d 176 (CA 8, 1964) (giving false testimony at hearing on unfair labor practice charge; unfair labor practice); NLRB v Longview Furniture Co, 206 F2d 274 (CA 4, 1953) (profanity, insults and striking of employee who attempted to continue working; employer unfair labor practice).
MCLA 423.216; MSA 17.455(16).
The same provision is to be found in § 23(i) of the labor mediation act. MCLA 423.23; MSA 17.454(25).
Our view that MERC should exercise its discretion regarding the teacher’s request in no way portends judicial review of MERC’s discretion. See Anno: Availability of Independent Suit in Federal District Court to Attack Action Taken or Order Issued by National Labor Relations Board, 2 ALR F 376, 399-400, § 6(c); Morris, The Developing Labor Law, 873-878. We simply hold that an administrative agency empowered to exercise discretion abuses its discretion and errs as a matter of law when it absolutely refuses in every and any instance to exercise its discretion.
MERC’s power under § 16(h) of the PERA to seek an injunction in circuit court is identical to the NLRB’s discretionary power under § 10(j) of the NLRA to seek such relief in Federal district court. For discussions of § 10(j)’s legislative history and its implementation by the NLRB and Federal courts see, Siegel, Section 100) of the National Labor Relations Act: Suggested Reforms for an Expanded Use, 13 Boston Col Ind & Comm L Rev 457 (1972); Note, Temporary Injunctions under Section 100) of the Taft-Hartley Act, 44 NYU L Rev 181 (1969).
The NLRB Field Manual lists guidelines used by the NLRB in considering whether to seek § 10(j) relief:
1. The clarity of the alleged violations;
2. Whether the case involves the shutdown of important business operations which, because of their special nature, would have an extraordinary impact on the public interest;
3. Whether the alleged unfair labor practices involve an unusually wide geographic area, thus creating special problems of public concern;
4. Whether the unfair labor practices create special remedy problems so that it would probably be impossible either to restore the status quo or effectively dissipate the consequences of the unfair labor practices through resort to the regular procedures provided in the Act for NLRB order and subsequent enforcement proceedings;
5. Whether the unfair labor practices involve interference with the conduct of an election or constitute a clear and flagrant disregard of NLRB certification of a bargaining representative or other NLRB procedures;
6. Whether the continuation of the alleged unfair labor practices will result in exceptional hardship to the charging party;
7. Whether the current unfair labor practice is of a continuing or repetitious pattern;
8. Whether, if violence is involved, the violence is of such a nature as to be out of control of local authorities or otherwise widespread and susceptible of control by § 10(j) relief.
NLRB Field Manual, § 10310.2 (reprinted in 48 Am Jur, Labor and Labor Relations, § 1016 [1974 Supp], p 127).
GCR 1963, 820.1(7).
MCLA 600.310; MSA 27A.310.
MCLA 423.215; MSA 17,455(15).
Const 1963, art 4, § 48.
1969 PA 312; MCLA 423.231 et seq.; MSA 17.455(31) et seq.
The Michigan Employment Relations Commission [hereafter "MERC”] has yet to decide whether or not the school board was guilty of an unfair labor practice thereby "provoking” the witholding of services.
MCLA 423.201 et seq.; MSA 17.455(1) etseq.
MCLA 38.71 et seq.; MSA 15.1971 etseq.
"In the event of such request [for a determination whether or not there was a violation of the PERA anti-strike provision] the officer or body shall within 10 days commence a proceeding for the determination of whether the provisions of this act have been violated by the public employee, in accordance with the law and regulations appropriate to a proceeding to remove the public employee.’’ (Emphasis added.) MCLA 423.206; MSA 17.455(6).
It is significant to note that both Judge Bowles and Judge Roumell have had distinguished backgrounds in labor law. Judge Roumell has previously served as Director of the Michigan office of the NLRB, as Director of the Michigan Employment Security Commission, and as the first Director of the Michigan Department of Labor. Judge Bowles, in addition to a distinguished career as a labor arbitrator in private practice, served as Chairman of a Labor Mediation Board in another state, and as Chairman of the NLRB Detroit field division.
MCLA 423.206; MSA 17.455(6).
"[T]he repugnancy must be clear and unavoidable.” In re Lambrecht, 137 Mich 450, 455; 100 NW 606 (1904).
Cf. Shiffer v Board of Education of Gibraltar School Dist, 393 Mich 190, 209-210; 224 NW2d 255 (1974) (Opinion of Williams, J.).
The Legislature’s action in 1967 amending MCLA 38.102; MSA 15.2002, well after the date of enactment of PERA, could be said to indicate a reaffirmation of legislative intent to preserve the discharge notice and hearing provisions in TTA. 1967 PA 216.
See 61 Stat 140 (1947), 29 USC 157 which reads in pertinent part:
"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * * .” (Emphasis added.)
1965 PA 379.
Const 1963, art 4, § 48.
See for example, Detroit Free Press, March 7, 1975, p 8-A (Editorial).
We are aware that in reaching this conclusion spelled out above, we outline a procedural system containing, potentially, some redundancy. For example, in cases where discharge proceedings are commenced solely on the basis of alleged participation in an unlawful strike, the question of participation in the strike can be raised both in the TTA hearing and in the PERA § 6 hearing. We do not, however, make legislation, we can only interpet and construe what we are given by the Legislature.
MCLA 38.111; MSA 15.2011, reads:
"No teacher on continuing tenure shall discontinue his services with any controlling board except by mutual consent, without giving a written notice to said controlling board at least 60 days before September first of the ensuing school year. Any teacher discontinuing his services in any other manner than as provided in this section shall forfeit his rights to continuing tenure previously acquired under this act.”
"On October 8, 1974, Wayne County Circuit Judge Joseph G. Rashid ordered that the teachers return to work and that the Board implement the terms of its proposed salary schedule.” Appellant’s Brief, p 1.
We note that the United States Supreme Court has not found an absolute constitutional right of a probationary teacher to due process protections in dismissal cases. See Board of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972); Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972). However, the Supreme Court has noted that due process does accord protection where, as here, the State, acting through the school administration, makes "any charge against him [the teacher] that might seriously damage his standing and associations in his community * ** * . For '[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ ” 408 US 564, 573.
As the Supreme Court of Wisconsin has ruled, referring to Roth, supra:
"It is apparent that such charges [discharge for strike activities] could detrimentally affect an individual’s reputation in the labor market and thereby significantly undermine his opportunities for reemployment. Due process requires a notice and hearing and an opportunity for the teachers to clear themselves of such charges.” Hortonville Education Association v Hortonville Joint School Dist, 66 Wis 2d 469, 225 NW2d 658 (1975).
"Assuming the necessity of eliminating 'capricious and arbitrary employment policies’ of local school boards, that requirement can be satisfied by forcing the school board to supply a reason for not rehiring and to afford the teacher an opportunity to respond and be heard. The difference between probationary and tenure teachers can still be preserved if in the probationary case courts are permitted 'to respect bases for non-retention enjoying minimal factual support and bases for non-retention supported by subtle reasons.’ ” (Footnote omitted.) 1970 Annual Survey of Michigan Law — Local Government, 17 Wayne L Rev 599, 615 (1971). | [
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T. M. Kavanagh, J.
The Court of Appeals, 44 Mich App 658; 205 NW2d 833 (1973), upheld a jury verdict in favor of plaintiffs based on the defendant’s alleged negligence in renting its premises to a state mental clinic and not, thereafter, taking appropriate steps to protect its other tenants and patrons from foreseeable criminal actions committed by patients-visitors to that clinic. We granted leave to appeal and now affirm.
Facts:
In December of 1964, the representatives of the Sagninaw Professional Building negotiated with Mr. George Eckes, the Director of the Mental Health Clinic in Saginaw, for location of that clinic within the building. Negotiations were completed and the clinic initiated occupancy in that building on the fourth floor from that date. The mental clinic was designated on the building directory as the "Saginaw Valley Consultation Center”, as was the sign on the door. The clinic would see approximately 10 to 25 patients a day, and these included patients from Traverse City State Hospital and from Ionia State Prison.
Mrs. Samson was employed as a secretary to an attorney who maintained offices on the fifth floor of the Saginaw Professional Building. At approximately 10 a.m. on March 30, 1966, she left her office to go to the coffee shop located on the first floor. As she entered the elevator, Donald Butzin (this defendant did not appeal to either the Court of Appeals or this Court) also got on. When the elevator started down, Butzin pushed the emergency stop button, produced a knife and demanded money. After taking her wallet, Butzin began stabbing her with a knife. He restarted the elevator, and when it reached the ground floor, ran away, and was later apprehended.
At the time of the attack, Butzin was a patient of the Saginaw Valley Consultation Center. In January of 1963, Butzin had previously attacked Mrs. Ann Weigold at her home, and slashed her with a knife. He was sent to the juvenile home, and then committed to the Traverse City Hospital on July 1, 1963, where he stayed for about a year. He then spent about two years at Ionia State Prison and returned for another year to the Traverse City Hospital. He was then placed on "convalescent leave” under the provisions of MCLA 330.36; MSA 14.826, but was not permanently discharged. He was to receive out-patient treatment with the Saginaw Valley Consultation Center approximately once a week. He was at the building on the day of the incident for such treatment.
Issues:
Appellant raises two issues here and in the Court of Appeals. They are:
1. Does a landlord and owner of a building who leases space to the State Mental Health Clinic owe any duty to an employee of a cotenant to protect such an employee from attack from a patient of the clinic?
2. Did the trial court err in admitting into evidence against the appellant the probate records of the codefendant, Donald Butzin, and the testi mony of the former stabbing victim of the co-defendant Donald Butzin?
TESTIMONY AND PROCEEDINGS:
The trial court denied motions for summary judgment, directed verdict, and judgment n.o.v. The jury returned a verdict of $60,492 in favor of the plaintiffs.
In affirming the trial court, the Court of Appeals stated, supra, p 663:
"Defendant challenges the existence of its duty upon such facts, claiming that it possessed no actual knowledge that the patients on convalescent leave possessed a propensity for violence, had no means available to discover such knowledge, and had a right to rely upon the decision by the Michigan State Department of Public Health to place the patients on convalescent leave status.”
The Court of Appeals then stated that the building’s owners did know that mental patients would visit the Saginaw Consultation Center, and that they had received some complaints from other tenants regarding the poor dress of the mental patients and they had also expressed their fear and apprehension regarding the patients’ use of the stairs and elevators to reach the fourth floor where the Center was located. The Court then stated, pp 663-664:
"These concerns should have at least placed defendant upon notice that a possible dangerous condition may exist. The common knowledge available to defendant’s officers and agents that assaults and homicides are committed by mental patients while on convalescent leave would have provided similar notice.”
The gist of the Court’s holding was stated as (pp 664-665):
"The fact that the consultation center would be treating mental patients and the fact that those patients with a propensity to be violent present a risk created sufficient knowledge to require defendant to inquire further to determine the type of patients that would visit its building with regularity. After evaluating the competing considerations, we do not find that such inquiry created an undue burden upon defendant. The present record indicates that defendant absolutely failed to make such further inquiry and this failure may well be sufficient to support a finding of negligence. Had defendant conducted such inquiry, the risk would have become sufficiently foreseeable to reveal defendant’s duty to adequately protect the employees of other tenants on the premises.”
In his dissent, Judge Danhof points out that even had the corporation made inquiries of the Consultation Center regarding the Center’s patients, any information they might have received would be very limited. He points out that the mental records of these patients were highly privileged information under our state laws. He further states that (pp 673-674):
"the state was maintaining supervision over the patients and had the power to recommit them if they manifested antisocial propensities. Does not the public have the right to rely on the state to do its duty?
"As an additional ground I do not believe that it is fair to say that the defendant corporation placed Butzin in a position where he could injure others. Granting that the location of the clinic in the building made it more likely that the plaintiff would come in contact with a mental patient, I do not think that the doctrine should be carried to this extent. The possible ramifications of finding liability in this case are tremendous. It is not only state-operated clinics that attract individuals like defendant Butzin. Consider the case of a private psychiatrist, an attorney, or a bail bondsman. Is it the policy of this state to make landlords reluctant to rent to these people?
" * * * If the landlord is liable it seems to be an a fortioii proposition that the tenant would be liable. After all, the tenant is in a far better position to know of his patients’, clients’, or customers’ propensities for viciousness. Is it the policy of this state to encourage psychiatrists to treat only those patients that he is absolutely sure are nonviolent? In this age of the greatly expanded right to counsel, is it the policy of this state to encourage attorneys not to represent criminal defendants?”
Opinion of the Court:
As noted by the parties, this case essentially asks the Court to revisit its recent decision in Johnston v Harris, 387 Mich 569; 198 NW2d 409, (1972). In that case this Court stated, p 573, that §§ 302B, 448 and 449 of Restatement of Torts, 2d, set forth the general rules of law applicable to the situation wherein an injured tenant attempts to hold his landlord liable for assaults upon him by a third party upon the landlord’s premises. § 302B of the Restatement provides:
"An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.”
The authors of the Restatement, 2d, have also furnished their comments on the applicability of this section to given fact situations, and the general concept of law which it was meant to express.
Comment d, p 89, states:
"Normally the actor has much less reason to anticipate intentional misconduct than he has to anticipate negligence. In the ordinary case he may reasonably proceed upon the assumption that others will not interfere in a manner intended to cause harm to anyone. This is true particularly where the intentional conduct is a crime, since under ordinary circumstances it may reasonably be assumed that no one will violate the criminal law. Even where there is a recognizable possibility of the intentional interference, the possibility may be so slight, or there may be so slight a risk of foreseeable harm to another as a result of the interference, that a reasonable man in the position of the actor would disregard it.”
This essentially was the position taken by Judge Danhof when he applied § 302B to the present case. However, the majority on the Court of Appeals preferred to base their opinion on Comment 3, pp 90-91 which states:
"There are, however, situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal, misconduct of others. In general, these situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct; or where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account. The following are examples of such situations. The list is not an exclusive one, and there may be other situations in which the actor is required to take precautions. * * *
"B. Where the actor stands in such a relation to the other that he is under a duty to protect him against such misconduct. Among such relations are those of carrier and passenger, innkeeper and guest, employer and employee, possessor of land and invitee, and bailee and bailor. * * *
"D. Where the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.”
However, the authors then comment that these are not the only factors to be applied in a given case. Comment f, p 93, states:
"It is not possible to state definite rules as to when the actor is required to take precautions against intentional or criminal misconduct. As in other cases of negligence (see §§ 291-293), it is a matter of balancing the magnitude of the risk against the utility of the actor’s conduct. Factors to be considered are the known character, past conduct, and tendencies of the person whose intentional conduct causes the harm, the temptation or opportunity which the situation may afford him for such misconduct, the gravity of the harm which may result, and the possibility that some other person will assume the responsibility for preventing the conduct or the harm, together with the burden of the precautions which the actor would be required to take. Where the risk is relatively slight in comparison with the utility of the actor’s conduct, he may be under no obligation to protect the other against it.”
Thus, many factors may be considered by the judge or jury in determining the ultimate question of whether or not a particular defendant was negligent. However, negligence itself has historically been spoken of in terms of its component parts which must be present before liability may exist. These have been embodied in § 302B. They are (1) the actor must realize or should realize that there is a risk of harm — this is foreseeability; (2) the perceived risk must be unreasonable — this is the basic element of all negligence; failure to act as a reasonable man would.
In the instant case other tenants of the defendant corporation had voiced their concern and uneasiness over the use of the elevators and stairwells of the building by these mental patients. At least to these tenants, the possibility of one of the patients committing a criminal act was foreseeable. This was communicated to the defendant.
Defendant argues, however, that this is the first incident of its type that had ever occurred in the building. The director of the Saginaw Valley Consultation Center also testified that this was the first incident of this type that he was aware of in the history of the program and also in his nine years of practice in Michigan. Thus, defendant asserts the actions of Donald Butzin in this case were unforeseeable and liability based thereon is precluded. Defendant argues in its brief, p 10:
"[S]ince the Saginaw Professional Building did not have any knowledge of any dangerous tendencies of Donald Butzin or any of the other patients of the mental health clinic, the action by Donald Butzin was clearly unforeseeable and could not have been prevented by the Saginaw Professional Building.”
Defendant’s argument on the facts of the case, however, is directed basically towards the "reasonableness” of the risk involved, and not its foreseeability. 2 Harper & James, The Law of Torts, § 16.5, pp 907-908, quite aptly points out the flaw in defendant’s argument. The authors state:
"Knowledge is fundamental to liability for negligence. The very concept of negligence presupposes that the actor either does foresee an unreasonable risk of injury, or could foresee it if he conducted himself as a reasonably prudent man. Foreseeability of harm, in turn, unless it is to depend on supernatural revelation, must depend on knowledge. Knowledge has been defined as the consciousness of the existence of a fact, and fact includes not only objects apparent to the senses but the characteristics and traits of people and animals and the properties and propensities of things — the laws of nature, human and otherwise.”
Foreseeability, therefore, depends upon whether or not a reasonable man could anticipate that a given event might occur under certain conditions. But the mere fact that an event may be foreseeable does not impose a duty upon the defendant to take some kind of action accordingly. The event which he perceives might occur must pose some sort of risk of injury to another person or his property before the actor may be required to act. Also, to require the actor to act, some sort of relationship must exist between the actor and the other party which the law or society views as sufficiently strong to require more than mere observation of the events which unfold on the part of the defendant. It is the fact of existence of this relationship which the law usually refers to as a duty on the part of the actor.
Negligence, however, is not found to exist unless an actor, who is under a duty to act, fails to act after he has perceived or should have perceived an unreasonable risk of harm to another. The fact that no prior events had taken place within the Saginaw Professional Building, and that the director had not been involved in instances of this nature in nine years, plus the fact that the State of Michigan had released these patients into the community, all go to the question of whether or not an unreasonable risk of harm was present under the circumstances. No prior incidents would possibly indicate a very low probability of an event occurring in the future. The low probability, however, must be balanced against the magnitude of the potential harm involved to determine whether or not inaction under these circumstances is reasonable. Also, reasonableness, as foreseeability, is normally a question for the jury to determine. General tort principles require this approach.
If the risk involves possible death or serious bodily injury to a number of persons, the law requires that some care be exercised even though the probability is slight that the incident will occur. Whether the care exercised was reasonable under the circumstances is for the jury to determine.
Defendant leased its premises to the Mental Health Clinic. For this act, by itself, our law imposes no liability and indeed should impose none. Whether or not the landlord retains any responsibility for actions which occur within the confines of the now leased premises is not now before this Court and need not be answered. It would appear, however, that he would not retain any responsibility for such actions except in the most unusual circumstances. However, the landlord has retained his responsibility for the common areas of the building which are not leased to his tenants. The common areas such as the halls, lobby, stairs, elevators, etc., are leased to no individual tenant and remain the responsibility of the landlord. It is his responsibility to insure that these areas are kept in good repair and reasonably safe for the use of his tenants and invitees.
The existence of this relationship between the defendant and its tenants and invitees placed a duty upon the landlord to protect them from unreasonable risk of physical harm. 2 Restatement Torts, 2d, § 314A (3).
The fact that such an event might occur in the future was foreseeable to this defendant. It had even been brought to its attention by other tenants in the building. The magnitude of the risk, that of a criminally insane person running amok within an office building filled with tenants and invitees, was substantial to say the least. To hold that, possessed of these facts and no other, this defendant should have inquired further into the reasonableness of its inaction, i.e., the probability of such an event occurring in the future, and that its failure to make such an inquiry may be deemed negligence on its part, does not shock the conscience of this Court.
Defendant’s arguments that it could not possibly protect all of its tenants all of the time, post guards in every hallway and on every elevator, plus screen every person who entered the building are premature for they are based on the assumption that even if it had inquired further it would have gained no additional information. Therefore, it argues, inaction on its part was appropriate. Such an argument is as conjectural as is defendant’s argument that it would have received no additional information. The record does not, and probably could not, contain testimony as to the answer to a question which was never asked. Defendant, however, was under a duty to ask such a question. It may not now conjecture on what the answer might have been and base its defense thereon.
In any event, the jury was instructed that the defendant could not have obtained the private records and history on Donald Butzin as defendant argued. The jury was, however, free to find that even with no additional knowledge as to the type of patients the mental health clinic treated, defendant was under a duty to provide some security measures or warnings for the safety of its tenants and visitors even if it be nothing more than a memo to all the office personnel to ride the elevators in pairs. As noted before, the reasonableness of defendant’s actions, with which its argument concerns itself, is a jury determination.
Nor are we unconcerned or unmindful of the social problems raised in this case by Judge Danhof. However, we are also aware that the duty imposed upon a possessor of land to keep his property safe for his tenants and invitees also carries with it strong social considerations which have been firmly imbedded in our legal structure since the earliest days of common law. We do not feel that this Court should now reexamine a legal duty that has proven itself so well over the course of many years and continues to prove its validity even more in our modern society.
We prefer to recognize and uphold that duty in these types of relationships, leaving it to the jury to determine the ultimate questions which may impose liability, those of foreseeability, reasonableness and proximate cause. As in every case, we remain ready to review their factual findings to assure that they are supported by the record presented, as they are in the instant case. The jury in the instant case found the actions of this defendant unreasonable. We are unable to disagree on this record.
In light of the opinion above, and under the facts of this case, we believe the Court of Appeals’ resolution of defendant’s second issue was correct. Accordingly, the judgment of that Court is affirmed.
ADDENDUM (January 17, 1975)
Subsequent to the writing of the above opinion, Justice Levin distributed his opinion. Justice Levin states:
"In traditional analysis, the plaintiff in a negligence action must establish (1) that he was legally protected against defendant’s conduct (duty); (2) that defendant’s conduct breached this duty (negligence); (3) that plaintiff’s injury resulted from defendant’s conduct (causal relation); and (4) the amount of loss suffered (damages).”
Justice Levin agrees that the existence of a special relationship between parties may impose a legal duty on one to protect the other from criminal attacks by a third person. He also says that such a special relationship exists between landlord and tenant.
He further states "[liability may properly be imposed on this landlord only if it could have taken a reasonable precaution which could reasonably have been expected to forestall such an attack”. With this we agree. An ordinarily prudent person might have rented to the state only office space on the first floor so that mental patients would have no need to use the elevators, stairwells, or other common areas of the building. He might have placed a guard on the elevators to protect the people lawfully using them. It was his duty, not the tenant’s, to remedy this potentially dangerous situation. Justice Levin himself states "[b]y virtue of his exclusive control, a landlord is in a unique position to remedy defects in common areas of the building. It is, therefore, appropriate to impose on the landlord liability for failure to discover and repair dangerous conditions giving rise to injury.” Whether or not he used that degree of care which an ordinarily prudent person would have used created a question of fact for the jury as to whether or not he breached his duty. The jury found that he did.
All my opinion says is that when the landlord is informed by his tenants that a possible dangerous condition exists in the building, he has a duty to investigate and take available preventive measures. Failure to do so, a jury could find, breaches his duty. The question was submitted to the jury under proper instructions. It found duty breached and damages. The judgment of the Court of Appeals is affirmed.
T. G. Kavanagh, C. J., and Swainson and Williams, JJ., concurred with T. M. Kavanagh, J.
Levin, J.
The Michigan Department of Mental Health operates clinics providing outpatient care for released mental patients. One such clinic, the "Saginaw Valley Consultation Center”, opened an office in the Saginaw Professional Building, owned and operated by defendant Saginaw Professional Building, Inc. The Consultation Center treated 10 to 25 patients a day. One of the patients was defendant Donald Butzin.
Carol Samson was a secretary working for a lawyer with an office on the fifth floor of the Saginaw Professional Building. The Consultation Center was on the fourth floor. While on an elevator in the building, Samson was robbed and stabbed several times by Butzin. She and her husband, Wendell Samson, sued Butzin and Saginaw Professional. The jury awarded damages of $60,000 to Carol Samson and medical expenses of $492 to Wendell Samson.
Butzin did not appeal. The Court of Appeals affirmed the verdict against Saginaw Professional based on its negligence in renting to a mental health clinic and in failing to protect the other tenants against "foreseeable” criminal attacks by patients visiting the clinic.
We would reverse.
I
Butzin was 16 years old at the time of the assault. Three years earlier he had entered a woman’s home, attempted to tie her up, and, when she tried to escape, slashed her with a knife. He was sent to a juvenile home, then released to his parents. A few months later, he was committed to the Traverse City State Hospital. After a year, he was placed on "convalescent leave”, released from the hospital, but not permanently discharged from the jurisdiction of the Department of Mental Health. For almost two years, from June, 1964 through March, 1966, Butzin visited the Consultation Center approximately once a week.
Neither Butzin nor any other patient had ever committed an assaultive act while visiting the Consultation Center. The Center moved to the Saginaw Professional Building in January, 1965, 15 months before the assault.
On the morning of the assault Samson left her office and entered the elevator, intending to go to a coffee shop on the first floor. Butzin came out of the men’s room on the fifth floor and entered the elevator with her. When the elevator started down, he pushed the emergency stop button, pulled a knife and asked her for money. He seized her wallet and began stabbing her. After somehow cutting himself, Butzin restarted the elevator. When it reached the first floor, he ran away, but was later arrested in the building.
II
The issue on appeal is the scope of tort liability of the owner of an office building for criminal acts committed by patients visiting a tenant.
Saginaw Professional contends that it had no "duty” to protect Samson, an employee of one tenant, from criminal attack by Butzin, a patient of another tenant. It concedes that an owner of property has a duty to exercise reasonable care to protect invitees from danger. However, it maintains that no duty arose here, as it neither knew nor should have known of the "danger”.
The Samsons assert that it is common knowledge that dangerous persons visit mental health outpatient clinics and, therefore, Saginaw Professional’s renting to the Department of Mental Health was a negligent act.
Alternatively, the Samsons contend that Saginaw Professional was negligent in failing at least to inquire about the patients that would visit the Consultation Center and warn the other tenants that persons formerly in mental institutions would be in the building.
Ill
We all agree that liability should not be imposed on the owner of an office building merely because it leased space to the state for operation of a mental health clinic.
Our disagreement concerns the scope of the landlord’s duty to act affirmatively to protect its tenants from acts of patients visiting such a clinic.
Generally, a person is under no legal duty to protect another even if he knows, or should know,
that such action is necessary. There is ordinarily no legal obligation to protect one stranger from criminal attack by another. See Anno: Private Person’s Duty and Liability for Failure to Protect Another Against Criminal Attack by Third Person, 10 ALR3d 619, 626.
A special relationship may, however, expose one person to tort liability for the criminal attack of another person. That special relationship may exist between the defendant and the actor, or between the defendant and the victim. Knowledge, actual or constructive, by the defendant of some danger to be protected against is usually a critical factor.
Such a special relationship exists between a landlord and his tenant. Liability has been imposed on landlords for criminal attacks against tenants by third persons. In no case, however, has the mere existence of the landlord-tenant relationship warranted recovery. In each instance, the landlord was guilty of independent negligence: despite prior knowledge (usually actual knowledge) of previous criminal acts in either the building or the general area, he failed to repair a defect in the property which invited or facilitated the criminal attack.
By virtue of his exclusive control, a landlord is in a unique position to remedy defects in common areas of the building. It is, therefore, appropriate to impose on the landlord liability for failure to discover and repair dangerous conditions giving rise to injury.
In Johnston v Harris, 387 Mich 569, 573; 198 NW2d 409 (1972), this Court held that a landlord was subject to liability in negligence for a criminal assault on a tenant entering the premises where, after being informed of similar assaults in the neighborhood, he failed to provide adequate lighting and locks in an area under his exclusive control and thus created "a condition conducive to criminal assaults”.
The Johnston rationale followed closely the reasoning in Kline v 1500 Massachusetts Avenue Apartment Corp, 141 US App DC 370, 374; 439 F2d 477, 481; 43 ALR3d 311, 315 (1970). There the court said that the landlord, "the only party who has the power to make the necessary repairs or to provide the necessary protection” (emphasis by the Court), could be liable for injuries resulting from "foreseeable” criminal acts caused (at least in part) by failure to make necessary repairs as well as for injuries caused by the physical defects themselves.
In Johnston and Kline, the landlords had notice of a substantial crime problem. In each case the landlord’s failure to remedy physical defects in the premises enabled a third person to assault a tenant.
In this case, no physical defect in the Saginaw Professional Building enabled Butzin to assault Samson. Butzin did not break into the building, but was rightfully there for an appointment at the Consultation Center. He could have been there to eat in the coffee shop, to visit a lawyer’s office, to see an insurance agent, or simply to get in out of bad weather. Failure to keep premises in good repair was not a cause of Samson’s injury.
IV
The Samsons contend that Saginaw Professional was negligent in failing to inquire about the types and dangerous propensities of the patients who would be visiting the Consultation Center.
Information regarding individual patients is confidential and would not have been revealed. At most, Saginaw Professional might have learned that some of the patients had previously committed criminal acts. It would have been assured, however, that patients on "convalescent leave” are not dangerous.
The Samsons would require Saginaw Professional to second-guess the professional judgment of medical doctors employed by the state. The Sam-sons have not shown, and indeed common sense suggests otherwise, that the state, which releases patients from institutions because they are no longer considered dangerous, would have informed Saginaw Professional that the patients posed a threat to the public safety.
V
This Court imposes on the owner of a building who rents space to a mental health clinic a duty to provide "some security measures”.
This suggests an archaic, unfounded fear of all persons who have been in mental institutions. Most persons afflicted with mental illness need not be confined indefinitely. With treatment, they can return to the community. Medical knowledge and human understanding have advanced beyond the time when the mentally ill were considered burdens to be cared for, but for whom cure was impossible. In requiring landlords to treat with suspicion persons who formerly suffered mental illness even after mental health officials have certified them ready to resume life in the community, this Court undermines this salutary and humanitarian advance and perpetuates the isolation of the mentally ill.
While we may take judicial notice of isolated incidents of violence committed by persons released from mental hospitals, we also note that persons without such a history commit violent acts and that countless former mental patients have successfully reentered society. In all treatment-release programs there have been and will continue to be failures.
There is understandable sympathy for Samson. She is the happenstance victim of a public policy which favors the release of mental patients who, in the judgment of the authorities, are ready to resume life in the community.
The cost of this policy may properly be imposed on all of society. Some states have enacted crime victim reparations acts. The National Conference of Commissioners on Uniform State Laws last year approved, and the American Bar Association recently endorsed, a uniform act. The Michigan Legislature may adopt such an act. But simply because it has not, we may not properly impose liability on this landlord because Butzin committed his senseless attack in its building instead of on the sidewalk across the street. Liability may properly be imposed on this landlord only if it could have taken a reasonable precaution which could reasonably have been expected to forestall such an attack. No such precaution has been suggested.
Our colleagues suggest that as a "security measure” Saginaw Professional should have written "a memo to all the office personnel to ride the elevators in pairs”. Even assuming that the tenants had originally adhered to the memo’s directives, it is most unlikely that after almost 15 months, with no criminal assaults, tenants would still be entering the elevators only in pairs.
The Samsons offered evidence that other tenants had complained about the dress of certain visitors and had expressed "apprehension” concerning them. If such concern did not prompt the tenants to ride the elevators in pairs, then clearly a memo from the owner would not have done so. A trier of fact could not reasonably infer that this "security measure” would have prevented Butzin’s attack.
VI
In traditional analysis, the pLaintiff in a negligence action must establish (1) that he was legally protected against defendant’s conduct (duty); (2) that defendant’s conduct breached this duty (negligence); (3) that plaintiff’s injury resulted from defendant’s conduct (causal relation); and (4) the amount of loss suffered (damages).
Duty is one of the concepts courts employ to confine the limits of negligence liability. The question of "duty” in a particular case is one of law for the court. Inevitably, regardless of the court’s analysis, the duty question turns on policy considerations: "whether one owes a duty of protection to another is ultimately a question of fairness”.
In Elbert v Saginaw, 363 Mich 463, 476; 109 NW2d 879 (1961), Justice Talbot Smith said:
"[T]he problem of duty is simply the problem of the degree to which one’s uncontrolled and undisciplined activities will be curtailed by the courts in recognition of the needs of organized society. This determination those of the vicinage are not trained to make, however faultless their composite judgment may be as to which of their neighbors is lying and which is telling the truth. It involves, as we have, seen, much of legal history, of precedent, of allocations of risk and loss. Prosser puts it succinctly. In discussing the apportionment of responsibilities between judge and jury he states among the duties of the court 'the determination of any question of duty — that is, whether the defendant stands in such a relation to the plaintiff that the law will impose upon him any obligation of reasonable conduct for the benefit of the plaintiff. This issue is one of law, and is never for the jury’.”
It is not enough, therefore, to say that Saginaw Professional owed Samson a duty to provide reasonably safe premises, that it was foreseeable that a mental patient visiting these premises might commit an act of violence and that it was, accordingly, for the jury to decide whether Saginaw Professional acted as a reasonable person would have acted under the same or similar circumstances.
While the above analysis is not inaccurate, it is incomplete. Negligence analysis limited to the question of foreseeability ignores the vital policy questions presented in this case.
"Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide 'police’ protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owner. And since hijacking and attack upon occupants of motor vehicles are also foreseeable, it would be the duty of every motorist to provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable.
"The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.” (Emphasis in the original.) Goldberg v Housing Authority of Newark, 38 NJ 578, 583; 186 A2d 291, 293; 10 ALR3d 595, 601 (1962).
The public policy of this state is to treat mental patients and, where possible, return them to the community. Before releasing a patient, careful consideration is given to his ability to cope with the responsibilities of "freedom” and the possible dangers he poses to himself and the community. The release decision necessarily reflects a judgment that the patient will not engage in violent behavior.
A landlord’s liability for defective conditions in common areas is premised on his control of those areas. In this case, there was no defective condition. The only effective control Saginaw Professional could have exercised would have been either to exclude the Consultation Center from the building or to provide armed guards to escort each patient from the sidewalk to the fourth floor, to and from the restrooms, and from the fourth floor back to the sidewalk.
Imposition of liability on Saginaw Professional may cause similarly-situated landlords to refuse to rent office space to the state for operation of outpatient mental health clinics and may impede the state’s goal of returning mental patients to the community.
The implications for other landlords with possibly "troublesome” tenants are apparent. No line is discernible to distinguish the liability sought to be imposed on Saginaw Professional from potential liability of landlords who rent to psychiatrists or lawyers who see persons with violent or criminal backgrounds. Liability might also be imposed on a landlord who rents an apartment to a former mental patient. Need a landlord check the background of a tenant for evidence of mental problems or criminal history and then, if he discovers such evidence, either exclude him or circulate a memo that a former or present mental patient or person with a criminal history works or lives in the building?
Imposition of liability in this case assures that former mental patients will continue to be investigated, guarded against and treated with suspicion. This Court revitalizes a stigma that after centuries has, it appears, only partially been eliminated.
We would reverse and remand for entry of a directed verdict in favor of Saginaw Professional.
M. S. Coleman and J. W. Fitzgerald, JJ., concurred with Levin, J.
A distinction must be drawn between negligence based on actions done by the actor, and negligence based on a failure of the actor to perform some act when he was under a legal duty to do so. See 2 Restatement Torts, 2d, §284. The present case involves negligence based upon the failure of the actor to perform some act.
As to the types of relationships which may impose a legal duty to act upon the actor, see 2 Restatement Torts, 2d, §§ 314-324A.
44 Mich App 658; 205 NW2d 833 (1973).
MCLA 330.54; MSA 14.844.
2 Restatement Torts, 2d, § 314, p 116.
See, e.g., Kline v 1500 Massachusetts Avenue Apartment Corp, 141 US App DC 370; 439 F2d 477; 43 ALR3d 311 (1970), and other cases discussed in Anno: Landlord’s Obligation to Protect Tenant Against Criminal Activities of Third Persons, 43 ALR3d 331.
MCLA 330.36; MSA 14.826.
Crime Victim Compensation: The New York Solution, 35 Albany L Rev 717 (1971).
Edelhertz, Chappell, Geis, and Sutton, Part II — Public Compensation of Victims of Crime: A Survey of the New York Experience, 9 Crim Law Bulletin 101 (1973).
Vitali, A Year’s Experience with the Massachusetts Compensation of Victims of Violent Crime Law, 1968 to 1969, 4 Suffolk Un L Rev 237 (1970).
Geis and Edelhertz, California’s New Crime Victim Compensation Statute, 11 San Diego L Rev 880 (1974).
Symposium, Governmental Compensation for Victims of Violence (articles by seven authors), 43 So Cal L Rev 1 (1970).
11 ULA 35.
Green, Foreseeability in Negligence Law, 61 Colum L Rev 1401 (1961).
Prosser, Torts (4th Ed), § 37.
Note, Landlord’s Duty to Protect Tenants from Criminal Acts of Third Parties: The View from 1500 Massachusetts Avenue, 59 Geo L J 1153,1180 (1971). | [
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] |
T. G. Kavanagh, J.
Defendant appeals his conviction of uttering and publishing a forged check. He makes five assertions of error.
One assertion of error has to do with the constitutionality of the uttering and publishing statute, and that subject is controlled by our decision in People v Hall, 391 Mich 175; 215 NW2d 166 (1974).
We granted leave in order to determine whether it is error to admit a statement made by a defend ant which had been ruled inadmissible in a prior Walker hearing* held in connection with a different charge.
The facts which are necessary to consider in this regard are the following:
Defendant was arrested near a certain market where he had negotiated a check. Upon his arrest, after being advised of his rights according to the testimony of one of the arresting officers, the defendant stated that his name was "Joses Anderson” the payee of the check which name the defendant had endorsed on the check in order to cash it in the store.
Defendant was taken to the sheriff’s office in the Kalamazoo County Building where, according to the police, he was again advised of his rights, and made a second statement in which he admitted cashing the check and told the officers where he had put the proceeds of the check. Approximately a half hour later when they could not find the money in the place described in the defendant’s statement, the police questioned the defendant for the third time in a "holdover” cell in the jail.
During this third interrogation the defendant appeared to be ill. He stated that he was a heroin addict and had methadone in his possession. He was taken to the hospital. Subsequently he was charged with unlawful possession of a narcotic.
In the prosecution on the narcotic charge, a Walker hearing was held, and the court determined that the last two statements were not voluntary and accordingly granted the motion to suppress them.
In the trial of the uttering and publishing charge the first two statements were admitted without objection on the part of defense counsel.
It is urged on appeal that to admit the second statement after it was determined to be not voluntary is error, for under the doctrine of collateral estoppel that issue can never be re-litigated.
The prosecutor maintains that a Walker hearing does not result in final determination of fact to which the doctrine of collateral estoppel applies.
We disagree with the prosecutor that a Walker hearing does not result in a final determination of fact. In People v Robinson, 386 Mich 551; 194 NW2d 709 (1972) we held that the determination of involuntariness at a Walker hearing was a factual determination. As such we are satisfied that it should be binding on the people for all purposes under the doctrine of collateral estoppel. We see no good purpose to be served by re-litigating the question of voluntariness when that matter has been fully and fairly presented to competent authority for determination.
But saying this does not mean that we agree with the defendant that error was committed in this case by the use of the defendant’s statements.
If the defendant had objected to their introduction by moving to suppress them as involuntary, certainly the second statement which had been held involuntary in the Walker hearing should have been suppressed and another Walker hearing ordered on the first statement.
However, in the circumstances of this case it was not error to admit these statements in the absence of objection. There was no attempt at re-litigation of the issue of voluntariness, for the theory of defense on which the case was tried was that because of a heroin high the defendant lacked the requisite criminal intent. In this circumstance whether to let the statements in or keep them out was undoubtedly a matter of complete indifference to the defense.
The other issues raised on appeal were adequately treated by the Court of Appeals, and we find no error in their disposition of them.
Affirmed.
T. M. Kavanagh, C. J., and Swainson, Williams, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred with T. G. Kavanagh, J.
MCLA 750.249; MSA 28.446.
Hearing held pursuant to People v Walker, 374 Mich 331; 132 NW2d 87 (1965).
MCLA 335.153; MSA 18.1123. | [
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] |
T. G. Kavanagh, C. J.
This is an interlocutory appeal from the Court of. Appeals’ decision which affirmed the trial court’s denial of defendant’s motion to quash the information.
We reverse the Court of Appeals and the trial court and direct that the information be quashed.
Defendant and three others were charged with carrying a concealed weapon in a motor vehicle, MCLA 750.227; MSA 28.424, and after preliminary examination defendants were bound over for trial.
Detroit Police Officer Ward testified at the preliminary examination that he and his partner observed a Ford Econoline van, in which defendant Smith was a passenger, make several erratic U-turns. The van was stopped and Officer Ward while approaching the vehicle observed through the right window what he believed to be the stock of a rifle. He opened the door and grabbed an M-l rifle from underneath the second seat. Defendant Smith was sitting on the third seat with his feet up. A cartridge belt and clips containing ammunition were found in the front seat between co-defendants Gaut and Turner.
Defendants filed motions to quash, defendant Smith contending that an M-l rifle was not a dangerous weapon within the meaning of the statute and that there was no evidence showing that defendant Smith was carrying the weapon involved, . so that the examining magistrate abused his discretion in binding the case over for trial.
The defendant urges two questions:
Question I
"Is a rifle over 30 inches in length a dangerous weapon within the meaning of MCLA 750.227 if said section is interpreted consistently with the constitution of the State of Michigan and with the intent of the Michigan Legislature?”
Question II
"Was the evidence presented at the preliminary examination sufficient to sustain a finding that Robert Smith had acknowledged that a rifle was in the vehicle or that he in any sense intended to carry said rifle, and therefore, support the finding of probable cause to believe that he committed the offense charged?”
Neither the trial court nor the Court of Appeals gave serious consideration to the objection that an M-l rifle is not covered by the proscription of MCLA 750.227; MSA 28.424.
We perceive this to be the controlling question.
The statute provides:
"Sec. 227. Carrying Concealed Weapons — Any person who shall carry a dagger, dirk, stiletto, or other dangerous weapon except hunting knives adapted and carried as such, concealed on or about his person, or whether concealed or otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him; and any person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry said pistol as provided by law, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than 2,500 dollars.” (Emphasis added.)
The trial court concluded that because an M-l is a military rifle it comes within the classification of a dangerous weapon. The Court of Appeals majority, observing that the 43-inch rifle is heavy and could also be used as a club, eschewed analysis of the statute because they had "no doubt that the Legislature, when they said 'dangerous weapon’, in fact meant dangerous weapon * * *
This misses the real question.
No one suggests that an M-l rifle is not a dangerous weapon. The question is whether this statute proscribes the carrying of all dangerous weapons or only those of the types specified.
In construing statutes in an effort to ascertain and give effect to the legislative interest, courts are guided by a rule of construction known as "ejusdem generis”.
This is a rule whereby in a statute in which general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated. See 73 Am Jur 2d, Statutes, §214, pp 407-408.
Thus here the phrase "or other dangerous weapon except hunting knives adapted and carried as such” following those specified types of stabbing weapons, under the rule would be limited to stabbing weapons. As to that part of the statute we see no intent to include firearms of any sort in the phrase "other dangerous weapon”.
Nor can we read the word "pistol” in MCLA 750.227; MSA 28.424 as applying to an M-l rifle. "Pistol” is defined in MCLA 28.421; MSA 28.91 to mean any firearm, loaded or unloaded, 30 inches or less in length, or any firearm, loaded or unloaded, which by its construction and appearance conceals it as a firearm.
In sum, MCLA 750.227; MSA 28.424 applies only to those dangerous weapons enumerated therein. M-l rifles are not so included. In reaching this conclusion it is important to stress, however, that the Legislature did not, through inadvertence or intent, neglect to consider the problems and dangers posed by the carrying about of long-barreled firearms. The Legislature made specific provision on point in an earlier section of the same act, which reads as follows:
"Carrying firearm or dangerous weapon with unlawful intent — Any person who, with intent to use the same unlawfully against the person of another, goes armed with a pistol or other ñrearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon or instrument, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years or by a fine of not more than 2,500 dollars.” (Emphasis added.) MCLA 750.226; MSA 28.423.
Without any question whatever, an M-l rifle is a "firearm” within the scope of MCLA 750.226. Concluding that M-ls are covered by MCLA 750.226 and not by MCLA 750.227 not only accords with a strict reading of both statutes involved, it reflects as well an ordered regulatory scheme enacted by the Legislature. The prohibition against carrying long-barreled firearms does not reasonably belong in a "concealed” weapons class of crimes.
The greater difficulty in prosecuting crimes proscribed under MCLA 750.226 which does require proof of "intent to use the [weapon] unlawfully” in order to support a conviction does not, of course, escape us. It appears, however, that the Legislature was cognizant of the fact that to hold that rifles are included within the proscription of MCLA 750.227 would be to subject most weekend hunters, for example, to potential felony prosecution under MCLA 750.227 notwithstanding their lack of intent to unlawfully use their hunting rifles. Whether the crime situation presently requires consideration of more stringent regulation of the carrying of long guns, under different conditions or with different intent from that set out in MCLA 750.226, would require legislative resolution and is beyond the proper authority of the judiciary.
In short, what we hold herein should not be taken in any way, shape or form to legalize the carrying about of M-l rifles or any other sort of weapon hitherto considered "dangerous” with unlawful intent. In light of the extant statutory scheme, we merely hold that the prosecution erred in charging and trying defendant under the inapposite auspices of MCLA 750.227.
Our disposition of this issue makes it unnecessary to reach question II.
The information should have been quashed.
Reversed.
T. M. Kavanagh, Swainson, Williams, and M. S. Coleman, JJ., concurred with T. G. Kavanagh, C. J.
Levin and J. W. Fitzgerald, JJ., did not sit in this case._
1931 PA 328.
However, it should be noted that the improper carrying of rifles is also illegal under MCLA 312.10(d-l); MSA 13.1339(d-l), wherein it is provided:
"It shall be unlawful:
"(d-1) For any person, except as may be otherwise permitted by law, to transport, or have in possession in or upon an automobile or any self-propelled vehicle designed for land travel any firearm except a pistol or revolver unless the same be taken down or enclosed in a case or carried in the trunk of such automobile.”
There are also other specific statutes which apply to dangerous weapons other than those specified in the statute under which the defendant was charged. See, for example, MCLA 750.224; MSA 28.421 which applies to the manufacture, sale or possession of a machine gun, silencer, bomb, blackjack, slung shot, billy, metallic knuckles, sand club, bludgeon, or gas container. | [
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Leave to appeal considered and, it appearing to this Court that the case of City of Livonia v Jasik (Docket No. 55715) is presently pending on appeal before this Court and that the decision in that case may be decisive of an issue raised in the present application for leave to appeal, it is ordered that the present application be held in abeyance pending decision in City of Livonia v Jasik. The motion by defendant-appellant to consolidate becomes thereby moot and is denied.
Case below, Court of Appeals No. 20287, order of July 31,1974. | [
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The request by defendant-appellant for counsel is considered and, it appearing to this Court that the case of People v Lucas (Docket No. 55488) is presently pending on appeal before this Court and that the decision in that case may be decisive of the issue raised in the present request for counsel, it is ordered that the present request for counsel be held in abeyance pending decision in
Case below, Court of Appeals No. 19442, order of May 31, 1974. | [
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On order of the Court, notice is hereby given pursuant to GCR 1963, 933, that the Supreme Court proposes an amendment to GCR 1963, 806 to read as follows (new matter in italics):
Rule 806. Appeals by Right and by Leave.
.1-.8 — Unchanged.
.9 Attorney General notice Federal litigation. Whenever any party to a cause, wherein the Attorney General of this state is not a participating counsel of record, alleges the unconstitutionality of a statute of this state, in an action brought before the Court of Appeals, said party shall, upon the ñling of a claim of appeal or the granting of an application for leave to appeal, or for delayed appeal, or upon the issuance of an order to show cause in an original proceeding, give immediate notice of the said challenge and the subject statute to the said Attorney General, with proof of service of said notice upon the clerk of the Court of Appeals.
A copy of this order shall be given to the Secretary of the State Bar of Michigan and to the Court Administrator, pursuant to GCR 1963, 933, and any comments with reference to the adoption of the proposed amended Rule 806 may be forwarded to the Chief Justice or Michigan Supreme Court Director of Legal Services on or before April 1, 1975. | [
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] |
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