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Graves, J.
The complainant filed this bill in his character of administrator in order to subject certain real property which his intestate once OAvned to the payment of demands against the estate, and the court below dismissed it on demurrer. The right to file such a bill is rested solely on the statute which enables an administrator in case of deficiency of assets to sue in chancery to recover rights or interests in real estate which the deceased shall in his lifetime have conveyed Avith intent to defraiid his creditors or to avoid some right, debt or duty, or whei’e the transfer is in law void as against creditors. Comp. L. §§ 4416, 4417.
But this bill fails to state any case Avithin the contemplation of the statute, and not only so, it presents a state of things tending to negative the existence of such a case. Several conveyances made just before the death of the intestate, and several other connected transactions, are set forth and explained. But there is no pretense of any fraud, nor any charge or suggestion impeaching good faith. On the contrary the bill expounds and construes the transaction in this manner:
“ That all of said deeds of conveyance hereinbefore mentioned as executed and acknowledged by said Frederick Basom were made for the purpose of distributing his estate among his heirs Avithout the aid of the probate court, and as and for or in lieu of a distribution thereof by will; and that none of said deeds were to be delivered or recorded before the death of said Frederick; that said Frederick, at the times respectively of the execution of the same, placed said deeds in the hands of your orator for safe-keeping, but at all times retained the control and direction of them, and the full right and power to destroy any or all of them at any time, excepting perhaps the deed mentioned in paragraph 11 (being a transfer running to his son William S. Basom) for which in his life-time said Frederick received a consideration as aforesaid, and that the same 'mortgages and notes specified in paragraphs II and 18 (being papers executed by those named as grantees m certain deeds and made to carry out arrangements of which the deeds were parts) were placed in the hands of your orator expressly subject to destruction with the deed to said William specified in paragraph 15, by said Frederick at any time that he might see fit, and that said mortgages and said notes were not to be and, in fact, were not delivered to the said George and the said Rufus or either of them until after the death of said Frederick.”
It is very plain that the bill cannot be supported.
The decree is affirmed with costs.
The other Justices concurred. | [
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Graves, J.
This is a writ of error brought to reverse a judgment given for the defendant on demurrer to the declaration. The case is governed by McLean v. Isbell 44 Mich. 129.
The judgment is reversed and the demurrer overruled with costs. The cause must be remanded for further proceedings, and my brethren are of opinion that the court' below may in its discretion permit the defendant in error to plead over.
The other Justices concurred. | [
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Cooley, J.
In this case the defendants in error, plaintiffs in the court below, have recovered on a guaranty by the plaintiff in error of purchases of merchandise by one Mrs. Coe. Two questions are made in the case — First, whether the guaranty was a continuous one; and second, whether the guarantor was entitled to notice of acceptance.
The plaintiffs below were merchants doing business in Chicago. Mrs. Coe, who had dealt with them before, was not in good credit, and they declined to sell to her on time without security. She proposed Crittenden, who resided in this State, as guarantor, and they thereupon wrote and transmitted to him a paper in the following words:
“Chicago, May 5, 1877.'
In consideration that D. B. Piste & Co., of Chicago, Illinois, will and do sell to Mrs. O. S. Coe, Ypsilanti, Michigan, upon credit, bills of goods from time to time as she may order, I, the undersigned, do hereby guaranty to the said D. B. Piste & Co. prompt. payment of all such bills at their maturity, the same being four months from the date of purchase or order, hereby waiving any and all notice of times or amounts of sales, or of defaults or delays in payment therefor, the amount guaranteed not to exceed the sum of -at any one time.”
Crittenden received this paper, struck out the words “ at any one time,” filled the blank with two hundred dollars, signed and returned it to the plaintiffs. In reliance upon it the plaintiffs sold Mrs. Coe goods from time to time from May 10, 1877, to July 24, 1878. At this last date she was owing them $242.93. Her total purchases had exceeded $800, and had been reduced by payment and other allowances to the sum named. No notice of the acceptance of the guaranty was given by the plaintiffs to Crittenden until after the dealings with Mrs. Coe had ceased.
I. Crittenden insists that this guaranty had fully performed its office when goods to the amount of two hundred dollars had been sold to Mrs. Coe in reliance upon it, and it was not continuous thereafter. If he is right in this, he was wholly discharged when the purchases first made to the amount of two hundred dollars had been paid for. But we do not agree in this construction. He agreed to guaranty the bills purchased from “ time to time ” on four months’ credit; and plainly contemplated that the payments as well as purchases would be continuous, leaving him still liable in a guaranteed amount not to exceed two hundred dollars. The case is not unlike Mason v. Pritchard 12 East 227, in which the guaranty was “ for any goods he hath or may supply my brother ~W. P. with, to the amount of 100i.,” and in which “ all the court were of opinion with the plaintiff that this was a continuing or standing guaranty to the amount of 100Í. which might at any time become due for goods supplied until the credit was recalled.” The cases of Hargreave v. Smee 6 Bing. 244; Douglass v. Reynolds 7 Pet. 113 ; Bent v. Hartshorn 1 Met. 24; Hatch v. Hobbs 12 Gray 447; Melendy v. Capen 120 Mass. 222; Gates v. McKee 13 N. Y. 232; Rindge v. Judson 21 N. Y. 61, and Grant v. Ridsdale 2 Har. & J. 186, support the same view, and some of them in their facts bear close resemblance to the case before ns. If the guaranty had evidently contemplated a §ingle transaction, it would have been different. Anderson v. Blakely 2 W. & S. 237; Boyce v. Ewart 1 Rice (S. C.) 126; Hotchkiss v. Barnes 31 Conn. 27; Congdon v. Read 7 R. I. 576; Strong v. Lyon 63 N. Y. 172; Boston etc. Co. v. Moore 119 Mass. 435 ; Reed v. Fish 59 Me. 358.
The defendant relied very much upon the fact that the words “ at any one time ” were struck out by him, as showing clearly that he only meant to be liable for purchases ¡aggregating two hundred dollars. But these words as they •stood might have made the defendant liable for purchases in excess of two hundred dollars if they had been made at ■different times; and the inference from their being stricken ■out is only this: that defendant declined to accept responsibility exceeding two hundred dollars; not that he intended "to limit the guaranty to the first purchases aggregating that sum.
II. We do not think defendant was entitled to notice of •acceptance. The guaranty was absolute in its terms, but ^neither party was bound by it until it had been acted upon. The acceptance by the plaintiffs consisted in their making '¡sales in reliance upon it; until that had been done defendant was at liberty to withdraw the guaranty, and plaintiffs were at liberty to decline to deliver goods upon it even if •they had verbally promised to do so. When therefore ■defendant in a guaranty absolute in form waives “ any and all notice of times or amounts of sales,” it is evident he does not expect notice of acceptance.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
McKay was convicted of assault and battery on Thomas Cooley, at the Grand Trunk station at Edwardsburg, in Cass county. McKay was station. keeper, and the assault originated in an altercation between them caused by Cooley’s spitting on the floor. He was smoking at the time, but no objection was made to this, and a question about it was properly held irrelevant. The defendant made a somewhat violent assault, and subsequently called in another servant of the company who compelled Cooley to leave the room, which he had refused to do at the demand of McKay. Cooley was a passenger on a train stopping temporarily at the station.
The court charged the jury very distinctly that if Cooley violated any rule made either by the company or the agent which had been brought home to his knowledge, the respondent had a right to require him to leave the waiting-room, and to remove him by such force as was necessary.
We think this charge was quite strong enough in favor of respondent. It is absurd to claim that the traveling community are bound to govern their behavior by the whims of an obstinate station-house keeper, or to leave the room when ever he thinks proper to drive them out. They are invited by the railroad company, and are entitled to remain there so long as they have occasion to do so, and commit no offence against the good order of the place and the reasonable regulations made to govern it.
The conviction was regular, and it must be certified to the court below that the people are entitled to judgment on it.
The other Justices concurred. | [
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] |
Cooley, J.
This suit is instituted to restrain the township board of health of the township of "Richland in the county of Kalamazoo from locating a burial place for the dead in the immediate vicinity of the dwelling house of the complainant in the incorporated village of Kichland in said township. The grounds of equitable jurisdiction which are assigned in the bill are, that the use of the proposed site for burial purposes will be detrimental to the health of the people of the village; that it will corrupt the water of their wells and render it unfit for use, and for these reasons become a public nuisance; and that it will also be specially injurious to complainant whose dwelling and well are near it. The defense to the suit is based on several distinct grounds, one of which is that the authority to establish burial places is confided in this State exclusively to the boards of health, and is a discretionary authority which cannot be controlled and overruled by the courts.
There is no doubt that under the statutes boards of health have large discretionary powers in providing for the interment of the dead. It is made the duty of the township board for each township to purchase therein so much land for burying grounds as shall be necessary for burying the dead of such township, provided suitable grounds can be procured in the township for the purpose, and if not, then in an adjoining township. They are also to make all regulations which 'they may deem necessary for the interment of the dead, and respecting burying grounds for their township. Comp. L. § 1696. These powers they must exercise according to their own judgment; and no appeal is provided for, whereby their action can be reviewed by any superior authority empowered to substitute its judgment for theirs. But if discretion is abused or their judgment improperly exercised, there is no doubt of the right of the judiciary to restrain the abuse. A superintending authoritj over all inferior tribunals is expressly conferred upon the circuit courts by the Constitution — art. vi, § 8 — and this will be exercised not only to keep them within their jurisdiction, but also to restrain any oppressive exercise of powers whereby the rights of the public or of individual citizens, will be invaded. As is said in Cooper v. Alden liar. Ch. 72r 91, the court of chancery “has undoubted-jurisdiction to» interfere, by injunction, where public officers are proceeding: illegally or improperly, under a claim of right to do any act to the injury of the rights of othersand it has been exercised in many cases, under a great variety of circumstances, and against State officers as well as those of inferior grade. Palmer v. Rich 12 Mich. 414; Ryan v. Brown 18 Mich. 196 ; Kinyon v. Duchene 21 Mich. 498; Merrill v. Humphrey 24 Mich. 170; Clement v. Everest 29 Mich. 19; Bristol v. Johnson 34 Mich. 123; Marquette etc. R. R. Co. v. Marquette 35 Mich. 504; Flint etc. Ry. Co. v. Auditor General 41 Mich. 635 ; Folkerts v. Power 42 Mich. 283.
But while it is undoubted that the court has jurisdiction, it is equally clear that the jurisdiction should only be exercised when a plain case has been made out. Defendants are acting officially, upon a subject which by law and the choice of their fellow-citizens has been committed to their charge, and it must be intended that they are acting in good faith until the contrary appears. The ordinary presumption is that officers perform their duty; and this will support the action of boards as well as of officers acting singly. Lacey v. Davis 4 Mich. 140; Thayer v. McGee 20 Mich. 195; Stockle v. Silsbee 41 Mich. 615. The principle is forcibly stated in Cooper v. Williams 4 Ohio 253: “ Although a case strong enough to justify our interposition may arise-from corruption, from malicious intention, or caprice, yet, in the absence of these, the court would pause, before it will assume to control the discretionary powers the law intends-to confide to them. The security, for the faithful exercise of this discretion, is found, not in the superintendence of courts of justice, but in the individual reputations of the-commissioners, in the tenure of their office, in their acting-openly on the rights of others, in the face of a people,. vigilant to watch and acute to discern, and in their being exposed to the overwhelming force of public opinion.”
Has the clear case, required by this principle, been made out by this complainant? The defendants insist that it has not. They deny that the evidence shows the proposed burying ground will be any nuisance whatever, either public or private. They say further that if it can be an inconvenience or annoyance to complainant he is precluded from complaining of it, for the reason that it is to be merely an addition to or extension of an existing cemetery by the side of which the complainant purchased and located liis residence many years since, thereby voluntarily assuming all the natural and inevitable consequences of being near it, and that his well, which he fears is to be ruined by it, is in no danger beyond that to which he has voluntarily exposed it, and which, in fact, has already rendered it unfit for use. Such in brief is the issue which is made by the answer.
The evidence is voluminous, but there is less conflict than is usually encountered in such cases. The village of Kichland appears to be a small hamlet, containing less than three hundred people, situated in a level country of prairie formation, and with its population on or near a highway running through it east and west. Another highway called Park street crosses this at right angles, leaving most of the population to the west. Some sixty rods east of the crossing was located the old burial ground mentioned in the answer, and this has been used many years until it is nearly filled with graves. It is admitted that while this ground was thus being used the complainant purchased the farm adjoining it on the east, his residence being twenty rods or so beyond the east boundary of the burying ground; and this is where he now resides. No other residence is so near the grounds except one on the opposite side of the highway about the same distance to the west. The grounds which the board of health have now procured for cemetery purposes are directly across the highway from the old grounds, but not extending so far east by two rods, and this, as well as the fact that they are on the other side of the highway, places them a little further from complainant’s residence. At first blush, therefore, there does not seem to be a very strong equity in complainant’s case. The nuisance he complains of he has voluntarily made his neighbor, and if the proposed action of the defendants is likely to add to the annoyance, the addition is one he might well have anticipated when he moved into the vicinity. The grounds then in use must in time require enlargement, and the natural enlargement to look for would be the purchase of adjoining grounds. In Gilbert v. Showermcm 23 Mich. 448, 456, where an offensive business was complained of under similar circumstances, we expressed the opinion that “ the complainant, having taken up his residence in a portion of the- city mainly appropriated to business purposes, cannot complain of the establishment of any new business near him, provided such new business is not in itself objectionable as compared with those already established, and is carried on in a proper manner.” Much of what is said in Robinson v. Baugh 31 Mich. 290, is also applicable to the facts of this case. And it is proper to mention as a significant fact that the complainant, though he assumes to speak for the public, comes alone to make this complaint. Others ought to be equally solicitous for redress if the neighborhood is likely to be rendered uninhabitable, by the action complained of.
But the evidence leaves us in no doubt that, as concerns the health of the neighborhood, the fears of injury on the part of complainant are groundless. Many experts were examined on both sides, including Professors Langley and i Vaughan of the State university, Professor Kedzie of the ¡State agricultural college, and a.number of the leading ■: physicians of the State, and the general result of their evidence is, that the proposed occupation of the grounds will not be likely to affect sensibly the atmosphere of the vicinity so as to render it unhealthy. They generally agree that the deleterious influence, if any, is to be traced underground, and perceived in the water of wells; and this will be a private nuisance only, to be complained of by the owner of a well affected, as a peculiar grievance to him. There is then no public nuisance, and the question is whether there is a private nuisance in. the threatened injury to complainant’s well.
We think the evidence tends to show that the occupation of the new grounds for burial purposes will be likely to affect to some extent any well that is or may be located in its vicinity, and particularly that it will be likely to affect the well of complainant. The evidence leads to the conclusion that the sub-surface waters from the burial grounds now in use find their way to the east, and that complainant’s well is more likely to be affected by the use of the new grounds than is any other. If, therefore, his case were unembarrassed by the previous existence of a burying ground adjoining him, there would be some reason in complainant’s protest even if there were not, in a strict legal sense, an equity. But he is further embarrassed by the fact, which is very clearly brought out in the testimony, that his barn-yard is nearer to his well than the burying ground, and much more likely to corrupt its waters. Indeed there seems to be little doubt that they are corrupted by it already; not, perhaps, to an extent appreciable without chemical tests, but sufficient to make it evident to experts that the danger complainant professes to fear is nearer at hand than the cause to which he directs the attention of the court. .At most the proposed use of the new grounds will only be a third cause of corruption to the well, in addition to two others which complainant voluntarily takes the risk of; and it is probably the least likely of the three to bring sensible harm.
It has been decided in several cases that the percolation of filthy matter from the premises of the party who suffers it through the soil upon'the premises of an adjacent owner to the injury of the latter is an actionable nuisance. Tenant v. Goldwin 1 Salk. 360; Tate v. Parrish 7 T. B. Monr. 325; Columbus Gas Co. v. Freeland 12 Ohio N. S. 392; Marshall v. Cohen 44 Ga. 489; Pottstown Gas Co. v. Murphy 39 Penn St. 251; Greene v. Nunnemacher 36 Wis. 50. And it has been said that the liability does not depend upon negligence, but that the reasonable precaution which the law requires is effectually to exclude the filth from the neighbor’s land. Ball v. Nye 99 Mass. 582; Hodgkinson v. Ennor 4 Best & S. 229. But all the cases in which this doctrine has been applied were cases in which, consistent with the proper use of the premises, the exclusion was practicable ; and none of them goes to the extent contended for here. All of them agree that the injury must be positive and substantial, and such as fairly imposes upon the party causing it the duty of restraint. Columbus Gas Co. v. Freeland, 12 Ohio N. S. 392, 400.
The movements of sub-surface waters are commonly so obscure that rights in or respecting them cannot well be preserved. .They do not often have a well-defined channel, and it is not easy in many cases to determine in what direction theii: movements tend. If corrupted at one point the effect may be confined within very narrow limits, while at another, though no surface indications would' lead one to expect it, the taint might follow the water for miles. In some cases a new-well at a considerable distance from an old one may withdraw the water from the other and destroy it, while in other cases, in which the same result would seem more likely, there is no perceptible influence. It is in view of these difficulties that the rule of law has become established that owners of the soil have no rights in sub-surface waters not running in well-defined channels, as against their neighbors who may withdraw them by wells or other excavations. Acton v. Blundell 12 M. & W. 324; Greenleaf v. Francis 18 Pick. 117; Roath v. Driscoll 20 Conn. 533; Chatfield v. Wilson 28 Vt. 49 ; Wheatley v. Baugh 25 Penn. St. 528 ; Bliss v. Greeley 45 N. Y. 671; Chase v. Silverstone 62 Me. 175 ; Frazier v. Brown 12 Ohio St. 294; New Albany etc. R. R. Co. v. Peterson 14 Ind. 112. But if withdrawing the water from one’s well by an excavation on adjoining lands will give no right of action; it is difficult to understand how corrupting its waters by' a proper use of the adjoining-premises can be actionable, when there is no actual intent to injure, and no negligence. The one act destroys the well, and the other does no inore; the injury is the same in kind and degree in the two cases. If the complainant may lawfully demand the relief he prays for in this case, we do not see.why the same relief may not be demandable in a great variety of cases where the private grounds of individuals in such little hamlets are being used for the most common and necessary purposes. A privy vault, for example, will probably corrupt the sub-surface water to a greater extent than several graves; and if the one may not exist in the vicinity of private dwellings, neither may the other. And if a burial ground is an actionable nuisance to a person living within twenty or thirty rods, under the facts as they are presented in this case, it may be an actionable nuisance under other circumstances to one living a mile away. What would be necessary to support the action would be, to trace, by the application of chemical tests to the sub-surface waters, the corrupting influence of the grave for that distance.
It is possible that in this case the board of health might have located the new burying grounds more wisely and more considerately; but we do not think their action is successfully assailed. They are not shown to have acted fraudulently or through caprice, or to have exceeded in any respect their jurisdiction. If complainant is injured by their action, the injury is incidental to the exercise of a lawful right, and can therefore give no ground for an action. Pontiac v. Carter 32 Mich. 164. The State has conferred upon the defendants the power they have exercised, and left the exercise to their judgment. They have acted according to their judgment, and the action is conclusive. Attorney General v. Burrell 31 Mich. 25.
The decree dismissing the bill must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
Leavitt sued plaintiffs in error on the common counts and served a bill of particulars in which the demands were set out under different forms and itemá as $10,000 money lent, $10,000 handed defendants for their nse on their guaranty that it should be repaid in a reasonable time, $10,000 deposited with them for their accommodation, and $2327.53 on account stated. He recovered $3027.53, which is claimed on the argument to have been made up by the sum of what is called an account stated, and an error of $700.
The plaintiff’s story on oath w^s that the'sum of $10,000 was advanced by him in May, 1880, to defendants for the purpose of controlling the wheat market at Detroit for what is called by the parties the May deal, with a view of forcing up prices, and producing what is understood as a comer, and compelling parties who had contracts to fill to pay a higher price for wheat to fill them. Defendants, 8(8 he testified, were to give him a third of the expected profits, and to repay the $10,000 with or without profits at all events.
Defendants claimed that Leavitt furnished the $10,000 as a margin for these wheat transactions, and was to bear his risks, and that the speculations resulted in a loss.
At the end of July, 1880, defendants gave plaintiff three documents or statements, exhibiting transactions up to that time, in which he was treated as a party concerned in the transactions, and one of these papers showed in a brief way that at that time there was left of' his share no more than $2327.50. This is now claimed to be an account stated.
Several special questions were left to the jury and they found that there was no loan made, and that defendants, when they rendered these statements, understood the business was closed. They also negatived the giving of the money for the purpose of contracting for more wheat than could be delivered, and thus artificially raising the price.
If the testimony is properly printed, it does not appear distinctly that any one swore the purpose was merely to raise the price of wheat so as to get the advantage of those who should agree to sell to defenidants themselves, but rather to so raise it as to compel all persons, who had wheat to deliver to anybody, to pay larger prices. The answer given by the jury does not fully meet the testimony.
"We do not understand on what basis plaintiff recovered under his bill of particulars. He never advanced to defendants any sums except two $5000 items, amounting to $10,000. • If there was any money to be returned under his particulars it could have been no less than $10,000. On the other hand both parties repudiated the idea that they had ever agreed on the July bills or any of them, as settling the amount due from one to the other; and there cannot be in law an account stated that neither party agrees to. It is impossible to support the judgment on any theory of the evidence that conforms to the demands of either party.
But the defendants, both at the close of plaintiff’s case and at the close of the whole testimony, asked for instructions that the plaintiff should not recover, and in our opinion they should have been given.
The object of the arrangement between these parties was to force a fictitious and unnatural rise in the wheat market for the express purpose of getting the advantage of dealers and purchasers, whose necessities compelled them to buy, and necessarily to create a similar difficulty as to all persons who had to obtain or use that commodity, which is an article indispensable to every family in the country.' That such transactions are hazardous to the comfort of the community is universally recognized. This alone may not be enough to make them illegal. But it is enough to make them so questionable that very little further is required to bring them within distinct legal prohibition.
The cases of The Morris Run Coal Co. v. Barclay Coal Co. 68 Penn. St. 173, and Arnot v. Pittston & Elmira Coal Co. 68 N. Y. 558, held contracts involving similar dealings with coal, to be against public policy. And we think the reasoning of those cases is based on familiar common-law principles, which apply more strongly to provisions than to any other articles.
There is no doubt that modern ideas of trade have practically abrogated some common-law doctrines which are supposed to unduly hamper commerce. At the common law there is no doubt such iransactions as were here contem plated, although confined to a single' person, were indictable misdemeanors under the law applicable to forestalling and engrossing. Some of our states have abolished the old statutes which were adopted on this subject, and which were sometimes regarded as embodying the whole law of such cases. Where this has been done, as in New York, the statutes have replaced them by restraints on combinations for that purpose, leaving individual action free. In England there have been several statutes narrowing or repealing all of the ancient statutes, and more recently covering the whole ground. But so long as the early statutes only were repealed, it was considered that enough remained of the common law to punish combinations to enhance values of commodities. And when this doctrine became narrowed, it seems to have been considered that such combinations to. enhance the price of provisions remained under the ban. \
In Rex v. Waddington 1 East 143, and s. c. 1 East 167, it was held the common law was still in force to punish i engrossing the necessaries of life or provisions by single J persons. The chief difficulty was in determining whether ; hops came within that rule, and it was held they did, and that the Legislature only could change the law. The defendant was heavily fined. That case has been sharply criticised as not in harmony with modern political economy, and it no doubt goes beyond what would be considered ¡ proper among us. It has never, so far as the researches / of Mr. Bishop have gone, — and he seldom over-looks important cases, — been judicially disapproved, although statutes have been made to change the rule. See 1 Bish. Or. L. §§ 527, 528, and notes to 6th edition. And he intimates that conspiracies for such purposes may perhaps be punished, even where the individual offence has been abolished. See also, vol. 2, §§ 202, 206, 216, 220, 230, 231 and notes.
In Rex v. Hilbers 2 Chitty 163, it was held that there must be a combination of more than one person before an information will be granted for enhancing the price of necessaries.
Mr. Bussell gives it as Ms opinion that in our day single offenders would not be regarded as punishable unless their offence relates to provisions. 1 Buss. 170. But where there is a conspiracy the law has been given a much wider application, and the case of Rex v. De Berenger 3 M. & S. 67, has obtained celebrity from the high rank of the offenders who were convicted, — (and one of them at least, Lord Cochrane, unjustly) — of conspiring to raise the price of stocks by false rumors.
We have not referred to these cases to assert the propriety of enforcing common-law criminal penalties contrary to the general understanding of the business community. While these offences have never been abolished in this State by statute, and might theoretically be, therefore, within the possible range of our laws, there would be no toleration of their strict prosecution against single persons to the common-law extent as crimes.
But the general sentiment has not led to any change in legislation orto any recognition of the legal propriety of allowing every species of produce gambling to be made susceptible of enforcement by contract. We must wilfully shut our eyes before we can fail to see that a combination between a man who furnishes money and dealers who manipulate the market, where the money invested is but a trifling percentage of the property to be handled, and where the only intent is to produce unnatural fluctuations in prices, is entirely outside the limits of buying and selling for honest trade purposes. It is the plainest and worst kind of produce gambling, and it is impossible for any but dangerous results to come from it.
We do not feel called upon to regard so much of the common law to be obsolete as treats these combinations as unlawful^ whether they should now be held punishable as crimes or not. The statute of New York, which is universally conceded to be a limitation of common-law offences, is referred to in the case in 68 N. Y. as rendering such conspiracies unlawful, and this had been previously held in People v. Fisher 14 Wend. 9, where the subject is discussed at length. There may be difficulties in determining con duct as in violation of public policy, where it has not before been covered by statutes or precedents. But in the case before us the conduct of the parties comes within the undisputed censure of the law of the land, and we cannot save the transaction without doing so on the ground that such dealings are so manifestly sanctioned by usage and public approval that it would be absurd to suppose the Legislature, if attention were called to them, would not legalize them. "We do not think public opinion has become so thoroughly demoralized; and until the law is changed we shall decline enforcing such contracts. If parties see fit to invest money in such ventures they must get it back by some other than legal measures.
Judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Campbell, J.
Sullings sued Shakespeare, who was publisher of the Kalamazoo Gazette, for publishing two alleged libels. One was claimed to be libelous because describing plaintiff as having performed a surgical operation by removing a “patty tuber” from the “hypogastrium” of one A. B. Smith. . The other contained an account of a ride taken by plaintiff in Kalamazoo written in a style tending to throw ridicule on plaintiff as displaying ostentation, and as not used to such indulgences.
The jury found a verdict for defendant. The case went throughout, and the charge also was based, on the theory that the articles unless in some way explained or accounted for were actionable. The chief objections to the rulings rest on the claim that as the case stood before the court they were too favorable to the defence. Before referring to the state of the issues and evidence a preliminary question arose concerning the jury.
The record shows that one juror who had an opinion that it would require evidence to remove was challenged, and the challenge was overruled, and then he was challenged peremptorily. But it appears further that when the trial was opened plaintiff had still one peremptory challenge that he did not nse. If by the overruling of the challenge anything conld be inferred in the cause prejudicial to the rights of the ■ plaintiff by compelling him to exhaust his peremptory challenges on persons liable to other objections, the case would be different. But when he runs no such risk the error does not appear to have been injurious. A second juror challenged for opinion seems by his answers to have had no definite recollections at all, and we are not satisfied there was any error in holding him not disqualified. His answers were vague, and the court below evidently determined on his testimony that he had not formed such an opinion as would be material.
A considerable number of objections assume that if an article is maliciously libelous, its truth alone will not be a defence. In this there is a confusion of civil and criminal remedies. In a criminal prosecution the truth alone, if not published with good motives and for justifiable ends, is not always a complete defence. But in civil cases it is well settled that no damages can be given fpr a libel that contains no falsehood. This disposes of the objections to a large amount of testimony concerning the circumstances of the second libel, which will be referred to more fully in its place.
At the beginning of the hearing, and before any proof of publication of the articles, an attempt was made to prove the circulation of the weekly edition of the Gazette, but the court refused to admit it at that time. The declaration did not aver publication in the weekly, and the offer was at least premature, and properly rejected.
After the articles were proven, an offer was made to prove the subsequent publication of the declaration, with head-notes referring solely to the attorney of plaintiff but not to the plaintiff. . The court excluded the head-notes. As they had no reference to plaintiff we do not think the exclusion erroneous. The declaration, setting out the obnoxious articles in full, was admitted to show repetition of the libels. This ruling was not injurious to plaintiff.
In the further discussion of this case, the two articles will require separate reference.
The court allowed defendant on cross-examination to explain that the article describing the surgical operation was not written by him. We can see no good reason for excluding this answer. Subsequently defendant testified fully on the subject and showed that the plaintiff wrote it himself and handed it to defendant with a desire that he should publish it, and it was accordingly handed over to the printers as it stood. There was evidence that it was very illegibly written, and there was no evidence of any intentional alteratioñ, and none, unless possibly by very remote inference, that there was any negligence. It was also testified by defendant that plaintiff complained to him of the error, but said if it could be corrected and put in the weekly he would be satisfied, and this was done. Plaintiff when put on the stand did not deny this, and was not examined at all concerning that article. There was no testimony whatever indicating what words had been altered in the article.
We think that this article could not under these circumstances go to the jury as a basis of damages. It does not occur to us that any necessary or natural inference would arise that the offensive words — which however^are not shown to have been so written as to put any one in fault — were any more than a printer’s blunder. We do not think a libelous meaning is apparent, although circumstances might put a different shade upon them.
Put the article being written by plaintiff as a gratuitous puff of himself, and published at his request, we do not see how a mistake of the printers without wrongful intent could be held a malicious libel. This is not a suit on the case for damage from negligence, and the law of libel does not we think reach such a blunder, if any was made.
We cannot forbear, in the interest of public morality, to call attention to the fact that the plaintiff, if a physician, has no right to publish matters of professional confidence, and that the article if published as he wrote it, without the approbation of the person operated on, would have been a very plain breach of professional duty. Such publications, for no purpose of public instruction and only for private gratification or laudation, deserve severe censure.
The matters included in the second article, which is undoubtedly written in a manner open to criticism, involve, first, matters of fact, and second, matters of comment. There was evidence to go to the jury on all the facts set forth in it, which were, whep reduced to their plain meaning, substantially these, viz.: That on the day previous the plaintiff, who was described with some superfluous initials and appendages, rode about town in an ostentatious style as the sole occupant of an elegant chariot. That he was expecting large profits from a suit with the Yulcanite Rubber Company. The comments, which were interspersed, intimated that the excursion was by way of practice and in anticipation of a more exalted station when more style would be necessary. The article also satirically denies the truth of some further parade, and intimates that it was the first ride he had ever taken.
However offensive the whole article might have been, it was unquestionably competent for the defendant to show that the facts alleged were true or that any part of them were true, and also how far their truth would leave any remaining cause of action. It was also proper to show under what circumstances the article was prepared and published.
Upon this the testimony was not contradictory as to the fact that on a mutual banter, the local editor of the Gazette agreed to pay and did pay the driver of the vehicle, if the plaintiff would ride in it. It is uncontradicted that he told plaintiff he proposed'to write an article on the subject, but there is a conflict as to plaintiff’s assent, and also as to the circumstances of the announcement. There was also evidence bearing on the Yulcanite litigation. Under these circumstances it is evident that plaintiff upon his own statement laid himself open to sharp comment, and upon defendant’s proofs there was evidence going far enough, if believed, to make out an assent to the publication.
When the record was in such a condition, it certainly was for the jury to determine, under proper instructions, whether the article was really libelous, if we assume that it would have been so if unexplained. And we cannot regard any of the surroundings as irrelevant.
Neither was the testimony as to his medical standing irrelevant. He made the injury to his medical character a ground of complaint. Moreover it may be remarked that the physicians who were put on the stand testified nothing to his discredit, and it is doubtful how far their testimony could be regarded as of any importance whatever.
The charge given to the jury was, we think, very fair and very explicit in granting all of the essential requests of the plaintiff except such as would have violated the rules before laid down. Nothing was excluded from consideration, and they were given full discretion on the subject of damages. It would have been misleading to give speculative charges on any theory that would have ignored the evidence; and it would have been erroneous to allow recovery for articles or parts of articles which were true. Beyond this we can discover no failure to present the plaintiff’s case in as strong a light as it could be placed.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
We cannot concur with counsel for plaintiff in error in this case in his view that there was no evidence to support a recovery under the qutmbum meruit for cutting and skidding logs. The plaintiff’s testimony tended to show an express contract under which he was to cut the logs and put them into the Muskegon river, and that after a certain quantity had been cut and skidded, the defendant directed him to cut no more, and afterwards gave farther directions that such logs should be put into Cedar Creek. This was such a change in the express contract, mutually agreed upon, as would enable the plaintiff to recover the fair value of the work done. There was no way under the old contract by which there could be an apportionment, and a part of the contract price allowed where but a part of the work had been done.
Had any portion of the logs been put into the Muskegon river, the contract price could have been allowed therefor. While that contract fixed the rate at three dollar’s per thousand for the entire work, it did not specify, and there was no evidence showing what part the cutting and skidding would bear to the whole work. The plaintiff’s case did not proceed upon the theory that the change to Cedar Creek was agreed upon as a mere deviation or substitute and that in all other respects the original agreement was to remain in force, and this court cannot determine that question from the evidence; that was a proper question for the consideration of the jury; and the theory of both parties was submitted by the court to the jury, with instructions that the bur-then of proof was upon the plaintiff in order for them to find that a new contract had been made.
The court committed no error in declining to allow the defendant interest upon the advances made by him. Under the original agreement and while it was in force the advances were made, and in the absence of an express agreement that he should receive interest thereon, he would not be entitled to make such a charge.
The testimony introduced by the plaintiff to show that he had no knowledge as to the form of the orders drawn by his daughter and given the men and upon which the defendant paid their wages was proper. If the plaintiff had no knowledge of the form of the orders they could not operate against him or tend to show that he was not acting merely as the agent of the defendant, and there was nothing in the fact of’ the orders being given and paid by the defendant that couldi estop the plaintiff from showing the facts and circumstances under which they were drawn.
As we discover no error in the record the judgment will be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
This case began in justice’s court where Dunckel replevied from Brown a horse which he claimed as owner. Brown defended in the right of Roehm & Davison for whom he was agent. Upon trial on appeal in the circuit court it was shown that one Malone was formerly the owner of the horse; that on April 20, 1879, Malone was indebted to Roehm & Davison, and gave them his promissory note for $200, payable -with interest six months from date; that on November 21, 1879, this note remained unpaid and Malone was also indebted to Roehm & Davison on account; the sum with the amount of the note being in all about $37» ; that to secure the payment of the whole sum Malone on .that day gave to the creditors a chattel mortgage upon the horse and other property, the condition of the mortgage being that the indebtedness with interest should be paid on the 20th of March, 1880 ; that the dealings between the parties continued and the indebtedness increased until March 29,1880, when Malone gave the creditors a second mortgage on other property for further security ; that in May following the indebtedness was still unpaid, and Malone went to Detroit to see the creditors, and in a conversation with Davison the latter expressed the opinion that the mortgages had become worthless and void, and he desired Malone to give a new mortgage on the same and other property. This Malone at first objected to, but the new mortgage was finally given on June 9th following.
Previous to this transaction, and in February,. 1880, Dunckel had bought the horse of Malone with knowledge of the mortgage. No question is made in this case of his right to the horse unless it is still subject to the mortgage lien. Whether it is or not depends upon the circumstances attending the giving of the third mortgage. It was testified by Malone that Brown, as agent for the creditors, called upon him to take the new mortgage; that the amount then due was $594.91, and for this sum a note was given and also a mortgage on the horse and other property, to secure the payment within, thirty days. Brown then, as agent for Boehm & Davison, receipted the account as paid by note, and the first note was surrendered to Malone. The witness also further testified “that at the time he gave said last mortgage he desired said Brown to release said horse from said first mortgage because he had sold said horse to Dunckel and received his pay, and that said Brown refused so to do, and told him that he did not purpose to release anything. That said Brown required him to include said horse in the third mortgage, and threatened to take it on the first unless he did so, but without assigning any reason why he so desired it included in said last mortgage.” Also “ that he understood, and thought Brown also understood, that said last mortgage was to be received by Boelnn & Davison in the place and stead of the first two.” Brown was also sworn as a witness, and testified that he took possession of the horse under the first and third mortgages.
It was contended before the jury by Dunckel that the demands for which the first mortgage was given were discharged -when, the third mortgage was given, and the case was made to turn upon that claim. In the instructions to* the jury by the trial judge occur the following passages, all of which were excepted to: “ My attention has been called to the circumstance that the $200 note and the account for which the first mortgage was given were surrendered. Now upon that subject I must say, that is certainly a very important circumstance; a very important circumstance. I cannot say as a matter of law it is decisive, but the surrender of the-evidence of the debt for which the first mortgage was security, certainly the significance of the circumstance tended strongly to show what the intention of the parties was, but it is to be considered in connection with all the other circumstances in the case, from which you must determine as-best you can whether the parties intended that the first mortgage should survive the last one or not. It is not necessary to prove a special and direct agreement between the parties-that the giving of a new note for an old one should operate-as payment of the old one, but that may be determined by the circumstances and actions of the parties.” The judge-also instructed the jury in response to requests, that the giving of a new note for the amount due on a former which is surrendered up will operate as payment of the old note if the parties so intended it, but the surrender of the note is-not entirely conclusive upon that question. It may be explained and shown, notwithstanding, that the parties really intended only to take an additional security without canceling the old indebtedness. Also that the possession of the old note and account receipted by Malone is prima faoieevidence that it was given up upon its payment, but this is-a circumstance that may be explained. Also that the giving-of a note for the debt did not as matter of law operate-as payment of the debt unless it was so expressly agreed, but it should be understood to be so expressly agreed if the-jury could ascertain from the facts and circumstances that it was so mutually understood between the parties. The jury returned their verdict for the plaintiff.
The instructions given were in accordance with the rulings in Hotchin, v. Secor 8 Mich. 494; Sage v. Walker 12 Mich. 425, and Burchard v. Frazer 23 Mich. 224, and were-correct if there was evidence in the case to justify them. We have recited the most important evidence so far as it is-given in the bill of exceptions, and cannot say the instructions were wholly unwarranted. The testimony of Malone- and Brown tends strongly to show that the pre-existing indebtedness was not understood to be satisfied when th& third mortgage was given, but it was not conclusive. The bill of exceptions does not purport to contain all the evidence, and there may have been proofs of a tendency equally strong the other way.
On the whole we cannot say that any error was committed, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
Defendant in error recovered in tbe circuit court for Hillsdale county as he bad previously recovered before commissioners appointed by tbe, probate court of that county, on a claim against bis father’s estate for moneys advanced at tbe decedent’s request to relieve Waldo L. Smith, tbe claimant’s brother, from a large indebtedness.
Tbe executors opposed tbe claim on various grounds, tbe chief of which was that if any promise was made by decedent it was void as against tbe statute of frauds. Tbe case was tried by jury.
An objection strenuously urged was tbe twofold claim that tbe proofs were not satisfactory, and tbe claim inequitable. It is enough to say on this matter that we have no power to revise tbe findings of juries on writ of error, and that if there is testimony enough to go to tbe jury, it is for that body to find tbe facts for itself.
Tbe main controversy arose upon tbe claim made by tbe executors that Sylvester B. Smith in all bis dealings for tbe relief of Waldo, was acting on bis own behalf and on bis own account, and that whatever promises were made by tbe decedent were verbal promises to make good bis losses in case Waldo failed to pay him; and that tbe promises referred to testamentary provisions and to nothing else.
There was testimony from which the jury might have found this, but-they did not so find. And whatever we may think we should have done bad we been in their ■ place, we cannot fail to see that there was such a conflict of testimony as left tbe conclusions of fact open to their determination on either theory.
It is alleged as error that tbe court failed to give certain charges desired, bearing on tbe difference between original and collateral undertakings under tbe statute of frauds. But on considering the charges actually given, we find all of these instructions were given very fully and very clearly, and that 'the court could not have done more to carry out the requests.
It is also urged that there was a note of $1000 held by Sylvester against "Waldo, the promise to pay which was clearly collateral, and that the court erred in letting this go to the jury.
There was distinct evidence, however, that this note was given up as part of the arrangement, and that the father’s liability for what he agreed to pay was in no way connected with the continued existence of the claim against Waldo. "Upon this question the charge was also very explicit and excluded any erroneous theories altogether.
If any injustice has been done, it has been by wrong conclusions of fact drawn by the jury. We have no means of knowing how this may be, and no means of correcting it if it exists.
The judgment must be affirmed with costs, and the proceedings allowing the claim certified to the court below.
The other Justices concurred. | [
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Campbell, J.
Plaintiff, who was defendant in a bastardy charge, brings certiorari to review the proceedings. The first error complained of relates to the sufficiency of the complaint. This was made on the 20th of March, 1880, and set forth the existing pregnancy of Mary Gloman, the complainant, and mentioned that it arose from three acts of intercourse had September 15, October 1, and October 15, 1879, but which of these she was unable to state. Hamilton was arrested, examined, and bound over, to appear in the circuit court for St. Joseph county. The child was born June 26, 1880.
We think the complaint was sufficient, and that there is nothing legally or otherwise impossible in the alleged ignor anee, when the complaint was made, which of the three acts of intercourse led to the result.
The objection to reading the complaint on the trial at the circuit is frivolous. The statute requires it, and it is necessary to inform the jury concerning the precise charge. We need not consider what effect it might have by itself in evidence. It was given no effect of that kind here, and the complainant was thoroughly examined and cross-examined, and so was the defendant. Tier examination covered all the matters set out in the complaint, and the jury acted on the evidence.
It is also objected that testimony was shut out of statements made in January, 1879, by the complainant to one Eugene Fort, that she was then in illicit relations with one Carpenter. The court, however, did not shut out this testimony. The witness answered the question in the negative. A dispute then arose in which the defence claimed they could introduce such questions for purposes of impeachment. The court said it might be done by way of cross-examination, but that it related to collateral matters and could not be contradicted. The defence insisted on offering it as a foundation for impeachment.
The ruling was correct. A witness cannot be impeached by contradiction on matters purely collateral. It was impossible for conduct in January, 1879, to have any bearing on the birth of the child in the summer of 1880. But after an answer had been received we do not see how this question could have arisen until an attempt had been made to contradict her. There is no ground on which complaint can properly be made of the rulings.
Objection was also made that the court erred in refusing to charge that the complaint must set forth the time and place of begetting the child, and that this must accord with known facts and the law of nature, and that the proofs must be confined to such complaint.
We do not think the court was bound to lay down any abstract views to the jury. If defendant desired to object to the sufficiency of the complaint, that was a proper ques tion which had been, previously raised and decided by the court. It was not the business of the jury to decide it. Neither was it the business of the jury to determine whether evidence had been improperly received. If there was supposed to be no testimony to go to the jury that question might have been presented definitely. And if specific charges in the complaint were deemed irrelevant or unsustained by proof they also should have been specifically noted.
But if, as we suppose, defendant desired to claim there was not evidence to go to the jury on the only real issue in the cause, which was the paternity of the child as begotten at one of the times set forth in the complaint, we have no doubt the jury fully considered the whole subject and had evidence authorizing the verdict they rendered. The complainant swore positively to every act set out in the complaint, and the jury were told that any wilful falsehood would authorize them to treat it all as unreliable, if it should so strike them. The defendant was sworn on his own behalf and the jury seem to have believed complainant, as they had a right to do, and disbelieved him.
We discover no error in the proceedings, and they must be affirmed with costs.
The other Justices concurred | [
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Marston, C. J.
In many respects this case resembles the Michigan Southern & Northern Indiana R. R. Co. v. Auditor General 9 Mich. 448; and People v. The Michigan Southern & Northern Indiana R. R. Co. 4 Mich. 398.
Some prehminary questions have been raised, which it was claimed should dispose of the present controversy, without the necessity of passing upon what might be considered the merits, and these perhaps had better first be disposed of.
As to the proceedings in the Wayne circuit court in chancery commenced in 1862 and in which a decree was rendered restraining the Auditor General from collecting taxes claimed to be due the State from the company for the years 1858 and 1861 inclusive, on account of the discounts and Jackson branch bonds hereinafter referred to, I am of opinion such proceedings are not res ad/judicata against the State in this case. If in the present case the State sought to recover the taxes for 1858-9-60 and ’61 which were then in controversy and the collection of which was restrained by the decree rendered in that case, the company might well say the State was concluded, and the mere fact that the decision was acquiesced in by the State, from necessity, would be no answer. Such, however, is not the present case. This action was commenced in 1880 and the State was permitted to recover taxes for the years 1872 and subsequent thereto. The decree in the Wayne circuit would not prevent the State from claiming and seeking to recover taxes accruing subsequent to the years or taxes then passed upon. This is a new controversy, for a new cause of action, and in which some of the legal questions then passed upon are again raised, and the decision of the court thereon is of no importance except as a precedent. In this case it is not conclusive. Such was the view of Mr. Justice Campbell upon a similar question in the case in 9 Mich., already referred to, and as that case is reported there does not seem to have been any diversity of opinion on this point. The parties are bound in so far as regards the subject-matter then involved, but are at liberty to raise anew the same legal questions in a case arising subsequently, even although the facts may be substantially alike in other respects. The principle is that a party shall not be twice vexed for the same cause; but this is not the same cause but one arising since then, and the State is not in this case seeking to recover any portion of the taxes the collection of which was restrained in that case.
The Auditor General having assessed the company upon the reports made by it, for the several years covered by this action, and such assessments having been paid, it is claimed that in the absence of fraud by the company the action of the Auditor was final.
The Auditor General is required to ascertain and estimate, from the annual report made by the company, the amount of the tax chargeable against it, and for this purpose he may require the company to make farther and additional reports. It is not claimed that there was any fraud practiced by the company, and the Auditor General seems to have been satisfied with the annual reports as made, as lie did not call for anything farther. An examination of one of- the reports made, all being alike, shows that the company gave therein the aggregate amount upon which it claimed the State could tax it, but whether correct or not, or whether the company was not liable to pay a tax upon the items in controversy in this case the Auditor General from the report could not determine. The company did not set up or present the facts in its report concerning these disputed items and leave it to the Auditor General to exercise his judgment and make an assessment therefrom. Had the company done so and the Auditor made his assessment therefrom, or had he called for a further report, or in any way passed upon the facts and made an assessment accordingly, the question presented would have been very different. In this case the Auditor General seems to have accepted the conclusion of the company as to the amount upon which it was liable to pay taxes, and having done so the amount of the tax was a matter of computation, a merely ministerial act. The only discretion or judgment he exercised, if any, was to not call for a farther report, but this was not a discretion or judgment passed upon any facts, but if anything, simply that he would not ask for or look into the facts at all. The law declared that the company should pay a certain tax upon its capital and loans actually employed in this State. From this the Auditor General had no power to exempt or relieve the corporation, and if in making and filing its report the corporation did not set forth the correct amount, the neglect or failure of the Auditor General to perform his duty would not operate as a payment or discharge to the company. The State ought not to be concluded by the mere non-action of one of its officers. It is sufficient for the protection of all, to hold the State bound, where án officer ascertains the facts and passes judgment thereon. The company made out its-report upon a mistaken basis, and if it thereby misled the Auditor the State should not be the loser.
A question was suggested whether, admitting the position taken by the State to be correct, any suit would he until the Auditor General of Ms own motion or by mandamus bad charged the tax sought to be recovered. As I understood counsel for the railroad company, they did not wish to press this objection, if upon such assessment hereafter being made, a recovery could be had. The company desired, and the public interests demand, that the entire matter in dispute should be passed upon on the merits. In such cases courts do frequently pass upon the merits, where the objection does not go to the jurisdiction of the court. See Youngblood v. Sexton 32 Mich. 406.
It seems to. me, in any view that can be taken of this case, we must hold that the opinions in the cases referred to in 4 and 9 Mich, settle beyond all controversy the liability of the company to pay taxes on the stock items of $261,410 and $584,518. We must in my opinion directly overrule both those cases before we can arrive at a different conclusion, and this we are not prepared to do. Upon this part of the case it is not necessary to repeat wliat was there said.
As to the item of $250,000 bonds issued and loaned to one Dwight. It appears that those bonds were issued to obtain money for constructing the road of the company, but before using them they were loaned to Dwight, he agreeing to return the same bonds at a time agreed upon, and giving as collateral thereto certain bonds of another railroad company.
Dwight failed to return the bonds as agreed, and the bonds received as collateral proved of no value. It is therefore evident that no sale or exchange of the company’s bonds was made or contemplated, but an unauthorized loan not sanctioned by the charter of the company or any one acting under authority for it. Had these bonds been exchanged for material to be used in the construction of the road, I can well see that the company should be obliged to pay a tax thereon, even although the material had been lost or destroyed before it was actually used by the company. Here there was neither sale nor exchange, but a loan, and the specific bonds loaned were to be returned, and it was only upon the failure to make such return that the company endeavored to realize from the collaterals which it held. Even if the company had power to ratify the loan, this eonld not be considered simply as a ratification, but as an effort to protect itself from the injurious effects of an illegal transaction. The company was held liable to taxation upon this item in the case in 4 Mich., upon the facts as there presented, upon the presumption that the^ bonds received were the equivalent of those issued, but as was said in 9 Mich., no such presumption can here be indulged in, it affirmatively appearing that the bonds received were of no value.
The next item is that of $184,549.34, representing the aggregate amount of discounts allowed or paid by the company in making loans. This was expressly passed upon in 4 Mich., and it was there held the company was liable to taxar tion thereon. In my opinion the conclusion there arrived at should be adhered to. I think the popular understanding is that the amount of a loan is that represented by the face of the obligation and not the amount received, and this I think must have been the intent of the Legislature. This view avoids all danger and difficulties that might otherwise be raised in the sale and negotiation of bonds, growing out of the commissions paid, or because of the fixed rate of interest or otherwise the bonds sold above or below par.
The court below permitted the State to recover interest, and this I think was erroneous. "Whether the reports made by the company were correct or not, until an assessment or charge was made by the Auditor General and notice thereof given the company, it was not in fault for not paying. Some act by the. Auditor General was necessary before the tax became due and payable. Interest is allowed where money is withheld, either upon the ground of a promise express or implied to pay interest or as damages for default in retaining money due and owing another. But upon whatever ground it may be placed, in the absence of an express promise, until the principal becomes due, no promise to pay interest can be implied, or be awarded as damages.
Campbell, J.
I feel reluctant to take any steps in this cause, because the action of the Auditor General cannot be anticipated, or any step taken to enforce a tax that he has not levied. But as the questions do not differ materially from those which have arisen before, I am not disposed to withhold my views.
Upon all of the questions which have been up previously, I adhere to the views which I expressed in the case decided in 9 Mich. I think that a loan made to the company cannot include money not loaned to them; and that if they borrow a sum for which they give obligations beyond the amount received, there is no loan made to them for the excess. The statute is designed, as I think, by its terms, to tax their actual receipts in money or its equivalent in property, or some other value, and not to tax their liabilities.
I agree that the stock dividends and issues of stock proportioned to that previously held by shareholders must stand on the same footing with original stock, and should be taxed as far as it is considered paid in. The arrangements allowing consolidation very clearly, in my opinion, were intended by the law to leave the Michigan company, which is the only one over which this State has any actual power of enforcing its laws directly, in its original position as to stock and loans, and to annex to its capital and loans those additions which are made proportional to the original amounts. The Michigan investment can never be less than what it was in the first place, and if gains are made which take the form of paid-up stock, each dollar of stock thus divided must be treated as having earned its share. There is no other possible way to discriminate between the Michigan and foreign investments, for neither stock nor loans are very often expended specifically in one place more than in another.
I am, therefore, of opinion that the items for bonds for which no equivalent was received, and the discount on bonds sold at less than par should not be taxed, but that the stock dividends to the amount reckoned as paid in should be taxed. No interest can be charged, because the tax has never been levied, and is not in default.
Graves, J. concurred.
Cooley, J.
having been of counsel for the people in a former litigation between the parlies as to a similar subject-matter, did not sit in the ease. | [
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] |
Marston, C. J.
Hansom brought assumpsit to recover a balance claimed for personal labor performed under a written agreement with the plaintiff in error. The cause was tried by the court, without a jury, and a judgment rendered in favor of the plaintiff. The case comes here on writ of error.
The first and second errors assigned relate to the testimony of the witnesses, Jacobs and Knight, in answer to interrogatories. The services which the plaintiff was to perform were to be rendered at Grand Hapids, in this State, while the witnesses interrogated resided at Sandusky, Ohio, and the question asked was what in their opinion the serv ices of the plaintiff would be worth as an assistant in the-manufacture and sale of a certain bed-spi’ing.
The specific objection pointed out on the trial was that the witnesses did not profess to know anything of the comparative value of wages at Sandusky and at Grand Bapids,. nor the value of services or labor at Grand Bapids. It is a sufficient answer to say that there is nothing in the case tending to show that they did not, and at the present time, in view of the facilities for obtaining accurate information, and of traveling from place to place, we cannot assume that these-men did not possess the necessary information to enable them to testify, or that there was any difference in the-prices paid for, or the value of, skilled labor between the-places mentioned. The form of the question was not any broader than the contract, as under it the plaintiff was-employed to assist in the manufacture and sale of the-patented article, and although the answers given may have-gone beyond the questions asked yet no objection was made-on that ground, or motion made to strike out any part thereof.
It is also claimed that this evidence was not competent, as under the written agreement the plaintiff was to be paid “ the same wages as shall be paid to other men in the employ of the company, filling similar positions.” The evidence is all set forth in the bill of exceptions and we do not find anything therein tending to show that the company had any other men filling similar positions, and in the absence thereof, the plaintiff was entitled to prove what his services were worth.
It is next claimed that the judgment is not supported by any evidence in the case. We are of a different opinion. There certainly was evidence tending to support the judgment, and the weight thereof we cannot consider.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Plaintiff was appointed city physician of Grand Rapids in May, 1873. On the 1st of June, 1874, another person was appointed by the council for the ensuing year and entered on the duties and received the salary. Plaintiff, who claims he was ready and offered to perform his duties, sues for his salary for the second year on the ground that the appointment of his successor was void because not made within twenty days after the first Monday of May as required by § 4 of title 2 of the charter. 2 Sess. L. 1871, p. 335.
The charter of Grand Rapids distinguishes very carefully between electme officers, who are voted for by the people, and appointed officers, who are chosen by ballot by the council. It provides that appointed officers “shall hold their offices for a period of one year from the time of their appointment, unless sooner removed,” etc.
By section 23 it is declared that whenever a vacancy occurs in any office the council may fill it; but if elective it shall continue only until the first Monday of the next May, and a new election shall be held at the annual election.
By section 33 an officer “ elected ” shall hold over after his term until his successor is elected or appointed and qualified. There is no such clause concerning appointed officers.
"We think it clear that the council can never be precluded from filling an appointed office, when there is no one holding it for a regular term, and that a failure to appoint at the proper time does not give the incumbent any right to hold over for a full year, or after Ms successor has been appointed and qualified. There may be some reason for limiting appointments by the council to offices elective by the people, and yet even in these there seems to be very full power to fill vacancies. It would be anomalous to give the council less power over offices which depend on their own choice than over those which depend on popular votes. And we do not think the charter has left any such consequences to be suffered.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
The respondent was charged with and convicted of an attempt to commit a larceny from the person, and the proof tended to show that he had put his hand into the outside cloak pocket of Emma Bellair; that there was no property of any kind in the pocket at that time and nothing therefore was taken therefrom. It was claimed that under such circumstances he could not be convicted.
We are of a contrary opinion. The charge is of an attempt to commit a crime. In burglary, and many cases of attempts, the intent is gathered from the taking or other act done. But this is not the only way of proving the intent; if it were, in many eases attempts to commit crime would go unpunished.
We fully concur in the views expressed by the Massachusetts court in Com. v. McDonald 5 Cush. 365. We think this is not only the better, but the only rule of law that could be adopted or recognized with safety to the rights of the public or of individuals.
It must be certified to the Recorder’s Court that we discover no error in the record, and that court is advised tc proceed to judgment.
The other Justices concurred. | [
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] |
Cooley, J.
Rockey sued Norton in trover for the conversion of a horse. No question appears to have been made on the trial that Rockey owned the horse, but Norton claimed to have impounded him damage feasant, and he also insisted that the right to bring suit had been cut off by a sale of the horse on an execution against Rockey, which was levied subsequent to the impounding.
The evidence tended to show without dispute that Norton found the horse in his corn-field doing damage, and that he took him and put him into his barn. The date when this •occurred is not shown. The horse was taken up towards night, and the next morning Rockey went to take it away. How he knew where to go for it does not appear. Norton did not know the horse when he took it up, and had given no notice. Rockey went into the barn, unhitched the horse and started to go away with it, when Norton stopped him .and' demanded a dollar for his damages. Rockey said he had but fifty cents and would pay no more. Thereupon Norton prevented his taking the horse away. The evidence tends to show that the damage done by the horse was more than Norton claimed. Rockey went away and brought suit, but the evidence does not show how soon.
The first question requiring notice is whether trover will , lie on this state of facts. The statute (Comp. L. ch. 214) recognizes the right to impound beasts doing damage, and provides that if there shall be no public pound within the township, the beasts shall be impounded in some suitable place under the immediate care and inspection of the person impounding them. § 6773. The evidence tended to show there was no public pound in the township. The statute further provides that the person impounding shall within twenty-four hours give notice to the owner or person having the care and control of the beasts, if known and living within .six miles of the place of impounding, which notice shall contain a description of the beasts and a statement of the time, place and cause of impounding. § 6774. The twenty-four hours had not expired when Rockey went to take his horse away, and so far as appears from the record Norton was then lawfully detaining the horse. What took place on that occasion accomplished all the purposes of the statutory notice, for it put Rockey. in possession of all the facts, and when he went away refusing to pay the damages, he must be deemed to have waived the formality of notice.
If Rockey was dissatisfied with the sum demanded by Norton, the statute gave him a right to an assessment by disinterested persons, § 6777; or he might replevy the horse and have the damages assessed in the replevin suit. § 6784 et segr. But he was not entitled to bring trover because of ■the original impounding and refusal to deliver.
The circuit judge struck out all the evidence relating to the impounding. The reasons for this ruling are not stated in the record, though it is inferable that it was because the statutory notice was not given. It may be that he was of opinion the subsequent acts or neglects of Norton had rendered him a trespasser ab vniUo, and deprived him of the protection to which he was entitled at first; but to make such acts important it must appear that they were done before suit was instituted. The suit only puts in question the rights of the parties as they then existed. Apparently the ruling striking put the evidence was erroneous, and we cannot tell from this record whether the facts or neglects occurring subsequent to the impounding should or should not affect the suit.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred.. | [
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Campbell, J.
Complainants filed their bill in aid of an • execution levied on certain land in St. Joseph county, the • record title of which was in defendant Rebecca, wife of John J. and step-mother of Adalbert N. McAllister. The debt was incurred by John J. and Adalbert N. jointly with Stephen Barnebee in 1878, and judgment rendered the same year. The deed to Mrs. McAllister was dated February 13, 1872, but not recorded until April 15, 1879. The -execution was issued in May, 1879.
The relief is based on a claim .that the land, which originally was vested in one Bourn, was bought of him in 1872 and then conveyed to one of the McAllisters, either John or Adalbert, and that, as is alleged, the deed to Rebecca was executed a long time subsequently, by their contrivance, to stand in lieu of the first deed, and without any re-conveyance to Bourn. • It is claimed not only that no title actually passed to Mrs. McAllister, but also that the apparent title was put in her, and the deed left unrecorded, without any consideration, and with a purpose of defrauding existing and future creditors, and that the debt to complainant was incurred on representations of ownership) of the land made to complainant.
If the transactions which actually took place conveyed any title to Mrs. McAllister, we are entirely satisfied there was no fraud in fact or in law in the conveyance. There is. no reason to believe from the testimony that any debts existed which would have rendered even a purely voluntary conveyance to Mrs. McAllister fraudulent. Her husband appears to have been solvent, and free from any indebtedness which he had any occasion to guard against. And there is not the least evidence, in our opinion, which would justify the belief that there was any fraudulent design whatever. The transactions all took place about six years, or nearly that, before the present indebtedness arose, and whatever equities exist in the matter are too old to be in any way affected by transactions in 1878 or thereafter, to which Mrs. McAllister was no party. There is some evidence concerning recent dealings with other lands, which are not involved in this litigation, and which cannot affect this, case. We think her rights must be determined by the original nature of the transactions.
The transfer of the land, as clearly shown from the proofs, was first made to John J. McAllister. He had previously received from his wife various moneys derived from the sale of her property, on which he had agreed to pay her interest until otherwise invested. At the time of the purchase from Bourn this debt exceeded the purchase money. Before his deed was put on record she desired her husband to secure her on this land, and under the advice of counsel it was understood by all parties that it could be legally done by giving up the first deed, and having a conveyance made directly to Mrs. McAllister from Bourn. Thig course was taken, and the delay in the recording of this last deed is accounted for, and we think truly, by the forgetfulness o£ the husband, who had no errand to the county seat for at long time thereafter. The <?ourt ^ below was satisfied thus-, far, and held the arrangement to be a valid mortgage but no more.
It appears further, that a few months after the deed was so taken, Mrs. McAllister made an arrangement to purchase the land absolutely, at an advance of five hundred dollars, and that she surrendered to her husband evidences of debt to the full amount and more, leaving a small balance still her due. If this was so, we think there was no difficulty in upholding it as a sale. She had the title in fee without any written defeasance, and no rule is .better settled than the right to extinguish by parol an interest that rests in parol. The cancelling of the debt was a complete payment of consideration, and no further ceremony was needed to make the contract a completely executed one, if she already held the title.
The state of the record might have misled creditors of Bourn, but it could not have deceived any one else. We do not think the facts justify any inference, of conduct on the part of Mrs. McAllister, of which her husband’s creditors can complain. There was no misrepresentation, and in fact it appears that the farm was quite generally supposed to be hers, by those who had any interest in knowing. But there was nothing in the management which could have much importance in such case, unless her title came by direct conveyance from her husband instead of from Bourn.
The question, then, arises, whether Bourn’s deed to her conveyed any title, in view of the former deed to her husband. There can be no doubt that under our recording laws she holds what the law presumes unexplained to be the best legal title. There can be as little doubt that in the absence of fraud on her part, complainants got by their levy no better title than McAllister possessed.
As between the parties, it is we think settled law that one who has deliberately and without any fraud or deceit practiced on him, but on the contrary with the intent for good reasons to have the legal title placed in some one else, obtained a transfer which has all the apparent qualities of such a title, cannot assail it by parol evidence, and show the existence of a former deed to himself which he has suppressed without recording, for the very purpose of having the land reconveyed by his own grantor. The case comes within the -rale laid down in Gugins v. Van Gordar 10 Mich. 523. It seems to be supposed that that case merely decided a technical point of evidence, and is not consistent with Hayes v. Livingston 34 Mich. 384, and some other decisions which hold that title to land cannot pass by mere estoppel shown by parol. In this case it is complainants and not defendants that rely on parol evidence to show a title. Mrs. McAllister holds the legal title of record. The presumptions in her favor cannot be destroyed without proof of an earlier right which is based on superior equities, because the first deed recorded is presumptively the best. There would be no equity whatever in allowing a party who has been the procuring agent in giving her this legal priority to destroy it in his own favor, by showing by parol evidence that he once had an unrecorded- deed from •the same grantor. Complainants show no equity whatever, .and are bound by the estoppel against McAllister.
Both parties appealed in this case. ' "We think Mrs. 'McAllister’s appeal was well taken, and that no relief should have been granted complainants against her. The decree must be reversed and the bill dismissed with costs of both ■courts in her favor.
■ The other Justices concurred. | [
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Graves, J.
Wiley, as assignee of the right of action, sued for an alleged breach of the covenant of seizin contained in a deed given by Lovely to one Charles M. Sheldon September 4,1877.
The cause was tried without a jury and the circuit judge-found- for the defendant. The deed set forth the property as being “ all that certain piece or parcel of land lying and being in the village of Fowlerville, county of Livingston and State of Michigan, and more particularly known and described as follows, to-wit: village lot number seventy-seven (77) of the original plat of the village of Eowlerville, as duly laid out, platted, and recorded in the office of the register of' deeds for said county of Livingston.”
The first plat of the village, which is of record, only designates twenty-nine lots and they are marked from one to twenty-nine. It therefore contains no lot numbered seventy-seven. Another plat is found in the record but it seems not to have been so executed as to entitle it to be recorded. This plat appears to have contained the lot under the designation of lot seventy-seven, but the register in transcribing it marked it by mistake as seventy-eight and hence his copy represents two adjoining lots as respectively lot seventy-eight. It therefore appears that the record of plats discloses no lot numbered seventy-seven, and on the strength of this fact the action is prosecuted.
The theory is that as the lawful record contains no lot seventj-seven the property the defendant assumed to convey never had any existence. But it is only necessary to glance at the further facts in the record to see that this view is wholly untenable. The case shows that another plat which has not been recorded does contain this lot, and that for more than twenty-five years the specific piece of ground has been held, taxed, recognized, known and dealt with as lot seventy-seven.
The grant was not impaired by the omission to record the plat, and it was competent to identify the parcel by parol evidence: Johnstone v. Scott 11 Mich. 232; Noonan v. Lee 2 Black 500. It is often necessary to resort to such evidence for the purpose of applying the deed to the subject-matter. That part of the description which speaks of the registry of the plat, and is found incorrect, may be rejected without any detriment: Johnstone v. Scott, supra; Slater v. Breese 36 Mich. 77; Jackson v. Clark 7 Johns. 217; Eggleston v. Bradford 10 Ohio 312; Noonan v. Lee, supra; Butler v. Trustees First Presb. Church of Minneapolis 27 Minn. 355 ; Doe ex dem. Smith v. Galloway 5 B. & Ad. 43; Doe ex dem. Roberts v. Parry 13 M. & W. 356. Enough is left to satisfy all legal requirements : Goodenow v. Curtis 18 Mich. 298 ; Sargent v. Adams 3 Gray 72; Gerrish v. Towne id. 82; Woods v. Sawin 4 Gray 322; Doe ex dem. Roberts v. Parry, supra; Jones v. Smith 73 N. Y. 205; Schlief v. Hart 29 Ohio St. 150. The description was irregular but there was no lack of subject-matter. Nothing was required which an interpretation and application according to the rules of law would not supply.
But another view is urged. It is contended that defend- ■ ant’s grantor derived title through an execution sale against one Tucker, and that this sale was void on the ground that the premises were Tucker’s homestead. "Whatever may be the truth concerning these facts it is sufficient that they are not found. Moreover there is no finding of damage. It is obvious that the record affords no foundation for a judgment in the plaintiff’s favor. See Shelden v. Dutcher 35 Mich. 10; Burdick v. Chamberlain 38 Mich. 610, and many other cases.
May the ease be dealt with as a mistrial ? A further finding was asked on three points : (1) Whether a patent covering the premises had been issued by the United States, and if so at what time and to whom ? (2) What title defendant claimed and assumed to hold at the time of his deed to Sheldon, and whether he had or claimed any other than was obtained by means of the execution sale against Tucker. (3) Whether during the proceedings by execution the lot was not Tucker’s homestead. No further finding was claimed.
The circuit judge denied the application and refused to find on either point, and the plaintiff’s counsel excepted. The record contains a bill of exceptions which purports to set forth all the evidence. But it is needless to inquire whether the showing was such as to make it the judge’s duty as trier of the facts to make express findings on these questions, and it is also useless to consider whether the case was fairly susceptible of findings on these subjects and under these requests, which would have shown, with the other facts, the breach of covenant complained of. ■ Had the judge fully complied with these requests and made findings on all the matters suggested and had such findings been in favor of the plaintiff in their utmost extent, yet there would have been no basis for a judgment in his favor. This court could not have proceeded to ascertain and assess the damage however well fixed the measure may be.
The plaintiff’s brief contains a statement that “ it is agreed that if the plaintiff recovers he shall recover $500 and interest from September 4, 1877.” This is no groundwork for a judgment. The materials for constructing a judgment must appear in the record, and they must be such as to generate the legal conclusion which constitutes the result. They are not to be collected from tradition or the argument of counsel. Had the finding conformed to the plaintiffs, requests the result must have been the same, because the state of facts even then would not have supported a judgment in his favor. There seems to be no room therefore for regarding the proceeding as a mistrial. Moreover the plaintiff does not aslc it.
The judgment must stand affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
The bill in this, cause was filed to foreclose a mortgage on lands in St. Clair cpunty, and to correct the description, which gave one of the lines as between sections 29 and 32, (which would have put the land in the body of the St. Clair river), instead of between sections 19 and 20. A previous statutory foreclosure was referred to, and there is no question made against the propriety of the bill to cover all of these matters if maintainable at all.
Donnelly, however, puts his main defence on the ground that the property mortgaged, being a homestead, could not pass by a defective description, and that he obtained paramount rights after the homestead' ceased to be such.
Donnelly’s title rests — First, on subsequent deeds from heirs of the original owners; and second, on an attachment, levy and sale. We do not, however, see how a levy on property misdescribed, is any better than a conveyance or mortgage. Neither do we think the facts indicate that he was a bona fide purchaser. Unless the mortgage was absolutely void, it ought to maintained. A brief reference to the facts will be sufficient.
The mortgaged premises formed part of a larger tract once owned by George St. Bernard, who conveyed the premises in 1851 to Stephen Moore, by the imperfect description which has been followed ever since. Moore was put in possession and built upon the lot, and it has been possessed actually or with temporary intervals ever since, until it came into the hands of Sands Van Wagoner, the mortgagor. No dispute ever arose concerning its identity. It contained a reference to a smaller adjacent tract which seems to have been carved out of the same estate, and which was readily identified. The case is the usual one where there are repugnant calls in the description, some of which must be rejected, and where long possession and repeated transfers remove all doubt as to the intention of the parties.
It is not disputed that the mortgage was so executed that if the description had not been imperfect it would have bound the homestead. It is not a description of another parcel of land entirely. It is simply an erroneous description of a parcel which is easily identified by the aid of some calls in the mortgage, aided by the possession. We do not understand that the constitutional provision requiring a mortgage of a homestead to be signed by the wife of the owner, requires such a mortgage to be construed on principles different from those which govern other conveyances similarly signed. If the parties have executed a mortgage which was meant to cover their homestead, they have bound the homestead if the description is not so defective as to make it beyond the power of the courts to identify and apply it. We have no doubt, and it is not disputed, that this description can be made good for all other purposes.
The decree below sustaining and correcting the-mortgage was correct, and must be affirmed, with costs of this court against Donnelly-; and the record must be remanded for-further proceedings.
The other Justices concurred. | [
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] |
Campbell, J.
The township of St. Joseph sued the plaintiff in error for the tax due on shares of William E. Higman for the year 1880, and recovered judgment therefor, which now comes up on error. The tax is resisted partly for alleged insufficiencies in the proceedings, and partly because it is insisted the tax is invalid entirely.
It is claimed the tax collection was illegally extended. It appears that there was no township clerk, and that at a meeting of the board one Junius H. Hatch, a justice of the peace, being summoned to be present as a member, was appointed to act as clerk or secretary, and in that capacity made the entries and certified the proceedings of extension.
The township clerk is a member of the board, and when present acts as its clerk. Comp. L. § 710. But the law con templates that circumstances may exist when he or any other member may'be unable to act, or when one of the offices may be vacant. In such case one of the justices of the peace is to be called in, and the board thus constituted has all the powers of the statutory board. Comp. L. § 707.
If the clerk is not present, then some one else must necessarily act in that capacity; because otherwise the clerk might defeat the lawful action of the board by his resignation or absence. The power to appoint a temporary secretary is a necessary incident .to corporate meetings, and his record and doings in that capacity must be held valid, if he has been entrusted with the functions, and cannot be invalidated by any presumption of his not being sworn. Hutchinson v. Pratt 11 Vt. 402. We have no statute which declares the acts of an officer de fa/ito invalid for any such reason. And in Sibley v. Smith 2 Mich. 486, it was held that there could be no presumption that an oath required by law, was not taken by an officer, where there is nothing requiring it to appeal*. Whether we regard Hatch as a regularly appointed clerk to fill a vacancy under § 693 of the Compiled Laws, or as a merely temporary substitute for particular purposes, makes no difference in this regard. We cannot presume that he has failed to make any necessary qualification. The extension of time granted by the board was therefore valid and properly shown. There .was positive proof of the book of records, and its authenticity cannot now be questioned.
It is also claimed that the warrant is defective, because not addressed to the treasurer of the township. The warrant is addressed to the treasurer of the township of-. But it is signed by the supervisor of St. Joseph, and annexed to the tax-roll of that town. The roll, taken together, gives all the means of identification, and cannot be destroyed by this technical omission, which corrects itself.
Objection is also made that the valuation on the roll against this stock is to be regarded as $110 and not as $11,000. This claim is made because there is no dollar-mark opposite the figures 11,000, and they are written in such a- way as to be divided by a red line supposed to indicate the division between dollars and cents.
But no one can look at this roll without seeing that the valuations are made up in even dollars, and that no attention was paid to the ruling. The amounts of taxes are all properly carried out and between the right lines. We do not think this objection well taken.
The principal objection to the tax is that no deduction was made, and it is claimed none is authorized to be made,, from the value of the- stock, for debts due by the owner, which it is insisted the act of Congress requires to be provided for, before our tax law can be maintained.
The act of Congress, under which the State gets power to levy this tax, declares that State taxation of national bank stock “ shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State.” Rev. St. § 5219. It is claimed that our tax law violates this rule by not allowing shareholders to deduct the amount of their debts from the value of their stock. And it is claimed that the decision in the case of People of New York v. Weaver 100 U. S. 539, is in point to dispose of this case.
We have no doubt of the duty of this State and all its authorities to carry out this rule to the fullest extent. The power to tax at all comes from the act of Congress, and it must be obeyed in thorough good faith. Our statute was-passed for the express purpose of conforming to the law as existing in 1869, and as substantially re-enacted by the Revised Statutes of 1872. In our judgment the State law and the act of Congress must be read together, and the State officers must act in harmony with the latter. We think there is nothing to prevent this. While we do not ourselves-discover any apparent inconsistency in the rule indicated by our statute, yet even if such inconsistency might appear from a strict interpretation of the language, we think that' there can be no difficulty in avoiding it in practice if found— as we think it will not be — to result from a construction of a State law by itself. We do not feel called upon to discuss- the statute at length, because the bank made no attempt to show that Mr. Iiigman was entitled to make any deduction.
It cannot be presumed that the assessor can have any personal knowledge of the private affairs of persons assessed, unless they choose to furnish it. The statutes provide fully for giving every tax-payer an opportunity to furnish a complete statement of his affairs, showing his property, debts and ■credits. Comp. L. §§ 980, 981, 982, 983, 984, 985. They also provide for a further opportunity to object to the correctness of the assessment, after it has been drawn up. § 986. If a person does not see fit to have his assessment ■corrected and perfected, when it is in his power to do so, it must be assumed that a failure to complain is equivalent to .an admission of correctness. And this view is intimated in Williams v. Weaver 100 U. S. 547.
In the case of People v. Weaver the New York assessment was held bad because bank stock was assessed at its full value without reduction, when all other personal property was subject to reduction by debts. Under the taxing laws as before existing there was no exception, apparently, to the rule that if a man’s debts exceeded his personalty he was not taxable at all, and was in any event only taxable for the excess over indebtedness. A law was then passed making bank stock taxable without deduction, but leaving other property on its old footing. The United States Supreme Court regarded this legislation as practically putting national banks, which constituted the principal body of banking corporations, at a disadvantage.
Our statutes have put all. personal property on the same footing and taxed it equally. No deduction of debts is allowed from such property for taxing purposes, and private and corporate property are dealt with on terms of absolute equality. The only consideration given to debts at all is in reduction of credits. The statute declaring what shall be taxable, after enumerating taxable property of other kinds contains, this clause making taxable “all moneys at interest, either within or without this State, due the person to be taxed more than he pays interest for, and all other debts due such persons more than their indebtedness.” § 969. The remaining clauses relate to all of the ordinary varieties of property, tangible and intangible.
This is a very different case from that in New York. Credits are by no means universally taxed at all, and it could hardly be claimed that there is anything in the act of Congress which would prevent their complete exemption. In some States it has been held they do not come within the constitutional definitions of taxable property. They never ■can be dealt with to the same extent as other property, ■because of legal and practical difficulties in subjecting them to reach, or to jurisdiction. See Cooley on Taxation, 15, 65, 134, 270. We cannot perceive any conflict with the act of Congress in applying to national banks the same rules which we apply to all other personal property, merely because in taxing credits we tax the balances and not the whole credits. Our Legislature has put all capital on the same footing, and has made no invidious distinction between banks and other business.
While, therefore, it does not seem to us that any deduction can be required in this State from the value of bank •stock, yet we also think that if it should be necessary in ■order to satisfy the act of Congress, the plaintiffs in error should. have made their claim of reduction before the assessment was made absolute, as was done in People v. Weaver.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
This is an action of ejectment, in which the court below found in favor of plaintiff and gave judgment accordingly. No exceptions were taken to the finding, and the errors assigned are all aimed at its sufficiency. The only objection which seems to have been brought to the attention of the court below relates to the alleged homestead right of defendant.
Defendant is wife of John Allen, who is still living, but not on the premises. He is the son of Green Allen, who died in 1879, leaving nine children who are his heirs at law. He owned a tract of land, including the premises in controversy and containing 470 acres. The land in controversy contains forty acres.
During his life he let John Allen go upon it and occupy a dwelling which had been before erected by them jointly, John paying rent some years and other years not paying, and the father paying taxes and cutting timber from the land. During John’s occupancy he put up some outbuildings and made some other improvements. There was no agreement made about the buildings. After his father’s death John paid rent to the administrator, and subsequently sold his interest in the whole estate, as tenant in common, to plaintiff. Dower was assigned to the widow of Green Allen, and partition was made in the probate court of the estate among the co-tenants. Plaintiff got as his portion the land in controversy, subject, however, to payment to the co-tenants, which he made, of $178.76, for equality of partition. Defendant did not sign her husband’s deed, and did not leave when he did. The land is within the homestead value.
The only question which seems by the finding to have been presented to the court below, and put in shape for revision in this court, is that of the defendant’s right of homestead. ■ There is nothing in the finding indicating that the partition was invalid, as it was within the scope of the statutes; and in .the absence of any facts or exceptions which would raise a doubt on the subject, we cannot review the conclusion of fact which the court below adopted. It must be assumed that when that court finds the conclusion that a judgment in partition passed the title, there was a valid judgment. If the defendant had any objections to the evidence of such a judgment there should have been exceptions taken, so that the facts might appear. No intimation is given of actual insufficiency, but we are asked to presume against the finding. This we cannot do.
Neither is there anything in the record indicating that John Allen should be a party. He does not claim any right, and is out of possession.
Having found general title in plaintiff and withholding by defendant against that title, there could be no finding by the court in her favor unless upon the determination of such facts as would establish a valid homestead. And we think the coui’t below was right in finding that none had been made out.
There is no right found in the dwelling itself, which was built before John Allen became a tenant, and which presumptively goes with the land in the absence of proof to the contrary, and there is no such finding, and it appears there was no such proof.
It appears affirmatively that John Allen neither took nor held possession under any claim or enjoyment, express or implied, which would create a homestead interest. He went on as his father’s tenant, and even as such tenant his occupancy was concurrent with his father’s exereise of acts of ownership involving entry on the land and removal of timber. No change of kind or character of tenancy was made after his father’s death, but he continued to pay rent to the representative of the estate. He claimed no separate ownership in this parcel as distinct from the rest of the inheritance, and never undertook as heir to assert any sole possession, but did directly the contrary.
The case indicates that he acted on the legal and correct theory that a tenant in common as such can have no peculiar interest in any specific portion of an entire tract, and his possession was subject to the incidents of partition which may or may not set apart to him .one portion rather than another. "Whatever portion he takes, he takes practically as a purchaser from the aggregate tenancies. Campau v. Barnard 25 Mich. 381.
Allen, therefore, never had any interest in this parcel different from what he had in the rest, and his possession as a co-tenant was a possession of the whole tract on the same terms, and subject to the incidents of partition. The only exclusive possession he ever had was as lessee and not as owner, and such a right he could lawfully convey without his wife’s consent, inasmuch as he had no title to the dwelling and is not found to have claimed to own it.
The constitutional exemption, as has been decided, is confined to an entirety. Amphlett v. Hibbard 29 Mich. 298. "We Lave given the statutes a somewhat broader interpretation, where there was a tenancy in common of a tract confined to the homestead quantity and claimed as a homestead. Sherrid v. Southwick 43 Mich. 515 ; Lozo v. Sutherland 38 Mich. 168. But where, as in the present case, there was not even a claim of that kind by the tenant, but there was a distinctly inconsistent holding, there is no room for the application of the law of homestead.
The judgment must be affirmed with costs, and the case remanded.
The other Justices concurred. | [
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ON REMAND
Before: NEFF, P.J., and JANSEN and COOPER, JJ.
Per Curiam.
In our original opinion, we found that § 5080 of the domestic relations arbitration act required a trial court to conduct a de novo evidentiary hearing upon a party’s request in order to make the ultimate determination regarding the best interests of a minor child. The Michigan Supreme Court reversed our opinion vacating the trial court’s judgment and remanding for a de novo evidentiary hearing, holding that “as long as the circuit court is able to ‘determine independently what custodial placement is in the best interests of the children[,]’ an evidentiary hearing is not required in all cases.” The Court found that, in this case, the trial court “was able to make such an independent determination without a hearing.” Accordingly, we are directed on remand to consider defendant’s remaining issue on appeal.
Defendant contends that the arbitrator failed to consider all the evidence in rendering her child custody decision and, therefore, her factual findings were against the great weight of the evidence and her ultimate determination to grant plaintiff sole physical custody was not in the minor child’s best interests. Therefore, defendant asserts that the trial court’s ratification of the arbitration award was improper. In relation to child custody cases, we review the trial court’s findings of fact pursuant to the “great weight of the evidence” standard, and discretionary rulings, including the court’s ultimate determination of custody, for an abuse of discretion.
The trial court agreed with the arbitrator’s finding that an established custodial environment existed with both parties. In order to change that custodial environment, a party must prove by clear and convincing evidence that the change is in the minor child’s best interests. The twelve factors to be considered in determining the best interests of a minor child are enumerated in MCL 722.23. In rendering his or her custody determination, the finder of fact must state his or her factual findings and conclusions under each best interest factor. These findings and conclusions need not include consideration of every piece of evidence entered and argument raised by the parties. However, the record must be sufficient for this Court to determine whether the evidence clearly preponderates against the trial court’s findings.
In this case, the arbitrator found that factors (b), (e), (g), (h), (j), and (k) favored plaintiff, while the parties were equal with regard to factors (a), (c), (d), (f), and (l). The arbitrator indicated that she considered the minor child’s preference under factor (i), but did not state that preference on the record. The trial court agreed with the arbitrator that it was in the child’s best interests to grant plaintiff sole physical custody. However, after reviewing the entire record, the trial court found that factor (c) slightly favored plaintiff and that the parties were equal with regard to factor (e). Defendant now challenges the trial court’s findings with regard to each best interest factor except factor (Z).
The trial court found the parties equal in regard to factor (a). Factor (a) refers to “[t]he love, affection, and other emotional ties existing between the parties involved and the child.” Defendant contends that plaintiffs negative results on an objective psychological exam, the Minnesota Multiphasic Personality Inventory (MMPI), should tip this factor in her favor. However, Dr. Ira Schaer testified that this test is based only on actuarial tables and found that plaintiff presented himself quite differently during interviews. Defendant retained an expert to review the psychological examinations. That doctor testified that she would have conducted more objective testing and indicated that she would have weighed some factors differently. The doctor also admitted that she had not interviewed the parties and that Dr. Schaer conducted the examinations within professional standards. Based on this evidence, the trial court properly declined to place more emphasis on the MMPI test results.
Furthermore, the record evidence supports the trial court’s finding on this factor. The record evidence reveals that the child loves and is bonded with both his parents, although each puts his or her own interests ahead of the child’s. Defendant demonstrates an unhealthy dependence on the child, makes inappropriate remarks about plaintiff, and reveals her volatile anger toward plaintiff in front of the child. Plaintiff spends many nights and weekends away from the home and the child to engage in optional work activities. Accordingly, finding the parties equal on this factor is not against the great weight of the evidence.
The trial court determined that factor (b) slightly favored plaintiff. Factor (b) measures “[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.” Although each party equally assisted the child with his schoolwork, hobbies, and religious education, the arbitrator found that plaintiff was the “rule giver” and was better able to provide guidance. Defendant often placed her need for the child’s affection above his need for discipline. The child admitted to Dr. Schaer in front of defendant that defendant provides little support, direction, and discipline. This evidence supports the trial court’s finding on this factor.
The arbitrator determined that the parties were equal with regard to factor (c). Upon a review of the record, the trial court determined that this factor slightly favored plaintiff. Factor (c) refers to “[t]he capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state . . . .” The evidence shows that both parties are willing and able to provide for the child. However, the trial court weighed this factor in favor of plaintiff in light of defendant’s evasive testimony regarding her reasons for discontinuing the child’s therapy sessions. In light of this fact, the evidence does not clearly preponderate against the trial court’s finding on this factor.
The trial court found the parties equal with regard to factor (d). Factor (d) refers to “[t]he length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.” The evidence reveals that the child had consistently lived with both parents throughout his life and that this environment became more volatile over the years. In reaching this conclusion, the arbitrator listed several instances in which defendant interfered with plaintiffs belongings or projects he had done in the home, often in the child’s presence. Defendant contends that the arbitrator should have used the fact that she threw out plaintiffs expired food in her favor. However, there is no record that the arbitrator made any finding based on this piece of evidence. In light of defendant’s interference with plaintiffs contributions to the home, this factor actually weighs in favor of plaintiff.
The arbitrator determined that factor (e) slightly favored plaintiff, while the trial court found the parties equal. Factor (e) refers to “[t]he permanence, as a family unit, of the existing or proposed custodial home or homes.” The family unit had not been intact for some time prior to the divorce. Plaintiff resided in a mobile home in the backyard. While the divorce proceedings were pending, the parties engaged in a “nesting” arrangement, in which each parent spent time alone in the family home with the child. The arbitrator based her determination on the fact that plaintiff wanted to remain in the marital home if he was granted custody, while defendant wanted to sell the home and split the proceeds. Plaintiff also indicated that he would adjust his schedule accordingly if granted physical custody. In light of this testimony, the trial court’s finding, which favors defendant, is not against the great weight of the evidence.
The trial court found that there was no dispute regarding factor (f) and, therefore, found the parties equal with regard to this factor. Factor (f) refers to “[t]he moral fitness of the parties involved.” Defendant now contends that this factor should have been weighed in her favor because plaintiff kissed a waitress in front of the child sometime after the divorce proceedings were initiated. Even if defendant’s allegation were true, it would not form the basis for a finding of immorality. Accordingly, finding the parties equal is not against the great weight of the evidence.
The trial court found that factor (g) favored plaintiff. Factor (g) measures “[t]he mental and physical health of the parties involved.” The record is replete with evidence of defendant’s uncontrollable and inappropriate displays of anger in the child’s presence. However, defendant again asserts that plaintiffs negative MMPI test results should have factored against him. As we noted previously, the arbitrator and the trial court properly weighed these results. Defendant also contends that the arbitrator ignored evidence that plaintiff instigated the incident in which she hit him with an iron. Even if this allegation were true, the numerous other incidents involving defendant’s volatile anger form a sufficient basis to support this finding. Accordingly, the trial court’s determination of this factor is consistent with the evidence.
The trial court found that factor (h) favored plaintiff. Factor (h) refers to “[t]he home, school, and community record of the child.” The arbitrator’s decision was based on the fact that the child’s grades and behavior at school declined following an incident in which defendant rearranged his room and damaged his belongings after he and plaintiff worked together to clean the room. As a result, the child began sleeping on the couch. Defendant contends that this factor should be weighed in her favor as plaintiff only became involved in the child’s boy scout activities following the initiation of divorce proceedings. However, defendant’s own testimony contradicts this allegation. This finding is, therefore, consistent with the record evidence.
In relation to factor (i), the arbitrator merely indicated that she considered the child’s preference in making her determination. Factor (i) takes into consideration “[t]he reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.” The trial court need not violate the child’s confidence by revealing that preference on the record. Furthermore, there is no record evidence to support defendant’s contention that the child is physically ill over the idea of living with plaintiff.
The trial court found that factor (j) favored plaintiff. Factor (j) considers “[t]he willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent... .” There is ample evidence to support the finding that defendant was unwilling to facilitate and encourage a close relationship between plaintiff and the child. She denigrated plaintiff in front of the child and Dr. Schaer, and interfered with plaintiffs parenting time. Conversely, the child told Dr. Schaer that plaintiff does not verbally attack defendant, and plaintiff allowed the child to stay with defendant when he had to go out of town during his scheduled parenting time. Accordingly, this finding is not against the great weight of the evidence.
Finally, the trial court found that factor (k) favored plaintiff. Factor (k) refers to “[d]omestic violence, regardless of whether the violence was directed against or witnessed by the child.” Both parties admitted spanking the child. However, as noted previously, the child witnessed defendant physically attack plaintiff and defendant did not deny these allegations of domestic violence. While defendant also raised allegations that plaintiff had been violent toward her in the past, the arbitrator found her testimony to be incredible. As we defer to the fact-finder’s determinations regarding witness credibility, we will not disturb this finding.
The trial court and the arbitrator properly considered each best interest factor and rendered factual findings consistent with the record evidence. As the evidence supported these findings, there is no basis on which to find that the trial court abused its discretion in granting plaintiff sole physical custody of the child.
Affirmed.
MCL 600.5080(2).
MacIntyre v MacIntyre, 264 Mich App 690, 697; 692 NW2d 411 (2005) (MacIntyre I).
MacIntyre v MacIntyre, 472 Mich 882 (2005) (MacIntyre II), quoting Harvey v Harvey, 470 Mich 186, 187; 680 NW2d 835 (2004) (emphasis added).
Id.
A history of the proceedings in this case appears in our original opinion. MacIntyre I, supra at 691-692.
Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001).
MCL 722.27(1)(c); Brown v Loveman, 260 Mich App 576, 594; 680 NW2d 432 (2004), quoting DeGrow v DeGrow, 112 Mich App 260, 269-270; 315 NW2d 915 (1982).
MCL 722.23 provides:
As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child' with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Foskett, supra at 9.
Id. at 12, citing MCR 2.517(A)(2), and Fletcher v Fletcher, 447 Mich 871, 883; 526 NW2d 889 (1994) (Fletcher II). See also LaFleche v Ybarra, 242 Mich App 692, 700; 619 NW2d 738 (2000).
Foskett, supra at 5, quoting LaFleche, supra at 695.
Factor (l) is a catchall, referring to “[a]ny other factor considered by the court to he relevant to a particular child custody dispute.” MCL 722.23(l).
MCL 722.23(a).
Dr. Ira Schaer conducted the Friend of the Court psychological examinations and administered the MMPI test. The MMPI results indicated that plaintiff may be psychologically inaccessible, unable to form bonds and attachments, potentially explosive toward others, and rigid in his stance on issues.
Dr. Schaer testified that plaintiffs test results indicated that he was a positive and cheerful person. Yet, plaintiff reported during the evaluation that he was depressed.
Plaintiff is a high school teacher and coaches extracurricular competitive robotic and electric car programs.
MCL 722.23(b).
MCL 722.23(c).
MCL 722.23(d).
Defendant believes that this fact positively reflects that she purchased the groceries and cared for the home. However, defendant also testified that she purposefully interfered with groceries plaintiff purchased by throwing away junk food regardless of the expiration date.
MCL 722.23(e).
While defendant testified that she wanted to stay in the marital home so the child could continue in the same school system, this is not the relief she sought in her proposed property settlement.
MCL 722.23(f).
See Fletcher II, supra at 887 (an extramarital affair is an insufficient ground for a finding of immorality under factor [f]); Hillard v Schmidt, 231 Mich App 316, 323-324; 586 NW2d 263 (1998) (cohabitation is an insufficient ground for a finding of immorality).
MCL 722.23(g).
The arbitrator relied on the following instances of defendant’s anger and violence, many of which occurred in front of the child, in weighing this factor: (1) knocking plaintiff on the arm with an iron; (2) throwing cold coffee at plaintiff while the child was nearby; (3) telling the child that it “looks like we’re going to get divorced — Daddy’s leaving,” plaintiff is “a shitty father,” “we may have to move,” plaintiff is an alcoholic, plaintiff works outside the home to “hurt [you],” plaintiffs mother has been in a psychiatric hospital, and plaintiffs parents are “Nazis”; (4) telling the Friend of the Court counselor that plaintiff was nothing more than a sperm donor; (5) not allowing plaintiff to watch the child while she was out of town during her scheduled parenting time; (6) not allowing the child to use the Pinewood Derby car that he had built with plaintiff; (7) sleeping with the child after the child expressed discomfort over this arrangement; (8) thinking that it was appropriate to discuss the divorce action with the child, including asking him what he told Dr. Schaer and accusing the doctor of lying in his report; (9) locking the child in his room overnight as punishment with a can in which to reheve himself; and (10) denigrating plaintiff in front of the child in Dr. Schaer’s office during an interview.
MCL 722.23(h).
Besides rearranging the furniture, defendant cut the wires to the child’s video game system, threw some of his belongings on the garage floor, and removed the child’s television console from the house.
When asked, defendant admitted that plaintiff was involved in the child’s boy scout activities prior to the institution of these divorce proceedings and “reluctantly” participated in the boy scouts’ annual Pinewood Derbies.
MCL 722.23(i).
Fletcher v Fletcher, 200 Mich App 505, 518; 504 NW2d 684 (1993) (Fletcher I), rev’d in part on other grounds Fletcher II, supra.
MCL 722.23(j).
MCL 722.23(k).
Defendant contended that plaintiff pushed her on several occasions and would physically block her retreat during arguments.
Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000). | [
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] |
Meter, J.
Defendant appeals as of right from an order granting partial summary disposition to plaintiff. Plaintiff sought a refund of taxes paid to defendant under the Single Business Tax Act (SBTA), MCL 208.1 et seq., for the years 1997, 1998, and 1999. Plaintiff alleged that the site-specific and apportioned capital acquisition deduction (CAD) codified at MCL 208.23(e) is not fairly apportioned under the Commerce Clause of the United States Constitution, US Const, art I, § 8, cl 3. The Court of Claims agreed with plaintiff that the CAD is unconstitutional and ordered defendant to refund plaintiff $4,864,436, plus statutory interest. We reverse.
The SBTA is a “consumption-type value-added tax” that is subject to certain exemptions, exclusions, and adjustments. Caterpillar, Inc v Dep’t of Treasury, 440 Mich 400, 408-409; 488 NW2d 182 (1992). Among these adjustments is the CAD. Id. at 409. The CAD statute allows taxpayers to reduce their tax base by the amount expended during the tax year to acquire capital assets. Id. Since the enactment of the SBTA in 1975, the CAD statute has been altered several times. See Jefferson Smurfit Corp v Dep’t of Treasury, 248 Mich App 271, 274-276; 639 NW2d 269 (2001). At issue in this case is the CAD statute effective during the years 1997, 1998, and 1999; it is contained in MCL 208.23(e), which reads as follows:
Except as provided in subdivisions (g), (h), and (i), for a tax year beginning sifter December 31, 1996 and before January 1, 2000, deduct cost, including fabrication and installation, paid or accrued in the taxable year of tangible assets of a type that are, or under the internal revenue code will become, eligible for depreciation, amortization, or accelerated capital cost recovery for federal income tax purposes, provided that the assets are physically located in this state for use in a business activity in this state and are not mobile tangible assets. This deduction shall be multiplied by the apportionment factor for the tax year as prescribed in chapter 3.
The SBTA provides that if subsection 23(e) is declared unconstitutional on appeal and that decision is not under appeal, the subsection becomes ineffective and MCL 208.23(i) takes effect. MCL 208.23(i); MCL 208.23a. MCL 208.23(i) allows a CAD for the apportioned cost of tangible assets but removes the requirement that the assets be located in Michigan.
Plaintiff is a Virginia corporation that supplies “components, modules, and complete systems to vehicle manufacturers and related aftermarkets.” Plaintiff conducts business in Michigan; this includes the operation of eleven manufacturing facilities and several sales offices. During the years at issue, however, approximately 90 percent of the products plaintiff sold to Michigan customers were produced outside Michigan.
Plaintiff filed amended SBTA returns for the years 1997, 1998, and 1999, claiming that refunds were owed it for each year because the CAD is not fairly apportioned and discriminates against interstate commerce. Defendant denied the refund claimed in the 1999 amended return, and plaintiff filed suit based on that denial in June 2001. That claim was held in abeyance pending resolution of Jefferson Smurfit and remained in abeyance at the time of the filing of the present complaint.
After the resolution of Jefferson Smurfit, defendant denied all three requests for refunds, stating that the CAD was constitutional. Defendant filed suit again, claiming that it was entitled to a refund of $4,864,436 for the three years at issue. The Court of Claims granted partial summary disposition in favor of plaintiff, holding that the CAD violates the Commerce Clause because it is not internally consistent and thus not fairly apportioned; the court awarded plaintiff the requested refund.
Defendant argues that the decision of the Court of Claims must be reversed because it is contrary to the holding in Jefferson Smurfit, supra at 281, a case in which the Court deemed the CAD constitutional. Plaintiff, in contrast, argues that Jefferson Smurfit did not address the central question at issue in the present case, i.e., whether the CAD is fairly apportioned.
We review de novo a trial court’s grant of summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). The constitutionality of a statute is a question of law that is also reviewed de novo on appeal. Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163 (2001). All statutes are presumed to be constitutional. Jefferson Smurfit, supra at 277. If tax legislation is at issue, then the presumption is especially strong. Id. Until a taxing statute has been shown to “clearly and palpably violated the fundamental law,” it will not be declared unconstitutional. Id. (citation and quotation marks omitted).
The plaintiff in Jefferson Smurfit challenged the CAD statute, MCL 208.23(e), that was in effect during the years 1997 and 1998 and requested a refund of taxes paid, alleging that the site-specific and apportioned CAD violates the Commerce Clause “because it burdens out-of-state businesses and thus discriminates against interstate commerce.” Jefferson Smurfit, supra at 276-277. The Court ruled that the CAD did not discriminate against interstate commerce, and it therefore rejected the plaintiffs claim of unconstitutionality. Id. at 278-281.
At least in broad terms, the facts and issues were the same in Jefferson Smurfit as they are in this case — an interstate company requested a refund for taxes paid in 1997 and 1998 (and 1999 in this case) on the basis of a claim that MCL 208.23(e) violates the Commerce Clause. However, plaintiff asserts that there is a crucial difference between this case and Jefferson Smurfit. Specifically, plaintiff claims that this case concerns fair apportionment, whereas Jefferson Smurfit concerned the discriminatory effect on interstate commerce of MCL 208.23(e).
In Complete Auto Transit, Inc v Brady, 430 US 274, 279; 97 S Ct 1076; 51 L Ed 2d 326 (1977), the United States Supreme Court noted the existence of a four-part test for determining the constitutionality of state taxing statutes under the Commerce Clause. Under this analysis, a tax must be (1) applied to an activity with a substantial nexus with the taxing state, (2) fairly apportioned, (3) nondiscriminatory, and (4) fairly related to the services provided by the state. Id. Plaintiff argues that, while the claim in Jefferson Smurfit was generally the same as that raised here — i.e., that MCL 208.23(e) is unconstitutional under the Commerce Clause— Jefferson Smurfit only considered the discrimination aspect of the Commerce Clause analysis and did not address whether the site-specific and apportioned CAD is fairly apportioned under the Commerce Clause. Defendant, on the other hand, contends that the substance of the Court’s analysis in Jefferson Smurfit was identical to the issue currently raised by plaintiff.
The pertinent question, then, is whether the specific Jefferson Smurfit analysis — which, nominally at least, focused on “discrimination” — and an analysis focusing on “fair apportionment” can be considered substantively identical.
A “discrimination” analysis involves deciding whether a statute “(1) is facially discriminatory against interstate commerce, (2) has a discriminatory effect, or (3) was enacted for a discriminatory purpose.” Jefferson Smurfit, supra at 278. In Jefferson Smurfit, the Court briefly concluded that the CAD statute was not facially discriminatory and was not enacted for a discrimina tory purpose. Id. at 279-280. With regard to “discriminatory effect,” the Court’s entire analysis was as follows:
States may compete with one another for a share of interstate commerce, they just may not discriminatorily tax the products manufactured or the business operations performed in other states. Boston Stock Exchange [v State Tax Comm, 429 US 318, 336-337; 97 S Ct 599; 50 L Ed 2d 514 (1977)]. Here, the CAD is available to all Michigan taxpayers who locate new property in Michigan, whether intrastate or multistate businesses, and it is available at the same apportioned rate as is applied to the taxpayer’s overall tax base. The three-factor apportionment formula of the SBTA has survived constitutional challenge, see Trinova [Corp v Dep’t of Treasury, 498 US 358, 387; 111 S Ct 818; 112 L Ed 2d 884 (1991)], and the availability of an apportioned CAD in a given tax year is not dependent on the initial location of the taxpayer’s assets, but rather turns on the taxpayer’s election to increase its Michigan investment.
We conclude, therefore, that the CAD provision is not designed to punish multistate taxpayers who choose not to increase their Michigan presence. Moreover, we are not convinced that the CAD provision is responsible for any deleterious effects suffered by multistate taxpayers who opt to increase activity outside Michigan. Accordingly, we note agreement with an analysis adopted by our Supreme Court in Caterpillar, supra at 425:
“Generally speaking, the overall tax consequences to a multistate taxpayer will be dependent upon the nature of its business activities and whether it is eligible and elects to avail itself of the tax reduction incentives afforded by the [single business tax].” [Pollock, Multistate taxpayers under the Single Business Tax Act, 22 Wayne L R 1101, 1113 (1976).]
We hold that the site-specific CAD available pursuant to subsection 23(e) has no discriminatory effect on interstate commerce. [Jefferson Smurfit, supra at 280-281.]
The Court in Jefferson Smurfit, supra at 280, emphasized that the CAD “is available at the same apportioned rate as is applied to the taxpayer’s overall tax base.” The Court, citing Trinova, supra at 387, noted that “[t]he three-factor apportionment formula of the SBTA has survived constitutional challenge . ...” Jefferson Smurfit, supra at 280. In Trinova, the United States Supreme Court considered whether the rate applied to the taxpayer’s overall tax base under the SBTA was fairly apportioned. Id. at 380-387. The Trinova Court mentioned “the requirement of fair apportionment, as expressed in the tests of internal and external consistency.” Id. at 385. The Court indicated that Michigan must only tax “its fair share of an interstate transaction,” id. at 386 (citation and quotation marks omitted), and the Court concluded that, “as applied to Trinova during the tax year at issue, the Michigan SBT[A] does not violate the... Commerce Clause[] of the Constitution.” Id. at 387. Clearly, the Trinova Court addressed the elements of “fair apportionment.” See Caterpillar, supra at 417-419 (indicating that a fair apportionment analysis focuses on whether an entity is taxed only for activity attributable to the taxing state and uses the concepts of “internal consistency” and “external consistency”).
The Jefferson Smurfit Court’s discussion of Trinova and its statement regarding apportionment convinces us that the Court in Jefferson Smurfit did in fact conclude that the CAD is fairly apportioned. As noted in W A Foote Mem Hosp v City of Jackson, 262 Mich App 333, 341; 686 NW2d 9 (2004), “[t]he rule of stare decisis generally requires courts to reach the same result when presented with the same or substantially similar issues in another case with different parties.” The rule of stare decisis mandates that published decisions of this Court are precedential and binding on lower courts and tribunals. MCR 7.215(C)(2). “[A] case is stare decisis on a particular point of law if the issue was ‘raised in the action decided by the court, and its decision made part of the opinion of the case.’ ” Terra Energy, Ltd v Michigan, 241 Mich App 393, 399; 616 NW2d 691 (2000), quoting 20 Am Jur 2d, Courts, § 153, p 440. We conclude that because the issue of the CAD’s constitutionality was raised, in general, in Jefferson Smurfit, and because the Jefferson Smurfit Court made the issue of apportionment “part of the opinion of the case,” we are bound to follow its holding regarding apportionment. The CAD is fairly apportioned, and the Court of Claims erred in concluding otherwise.
Plaintiff emphasizes that the Jefferson Smurfit Court explicitly stated that the “issue here is the third prong of the Complete Auto test,” i.e., whether the CAD discriminates against interstate commerce. See Jefferson Smurfit, supra at 278. Plaintiff contends that Jefferson Smurfit therefore does not constitute precedent for purposes of the instant case. Regardless of how the Jefferson Smurfit Court framed the issue initially, however, the Court made a conclusion regarding fair apportionment. To accept plaintiffs argument would be equivalent to elevating form over substance. The substance of the Court’s holding makes clear that it was addressing the issue we face in this case.
Moreover, the concepts of discrimination and fair apportionment are related; a fair apportionment analysis essentially constitutes a part of a discrimination analysis. As noted in Armco, Inc v Hardesty, 467 US 638, 644; 104 S Ct 2620; 81 L Ed 2d 540 (1984), “[a] tax that unfairly apportions income from other States is a form of discrimination against interstate commerce.” See also Trinova, supra at 385 (indicating that a fair apportionment analysis is a primary component of a discrimination analysis). If we were to agree with plaintiff that the site-specific and apportioned CAD is not fairly apportioned, then we would be finding that the CAD discriminates against interstate commerce, which would contradict this Court’s conclusion in Jefferson Smurfit, supra at 281. We instead find that the CAD is fairly apportioned, does not discriminate against interstate commerce, and is constitutional.
Reversed.
Plaintiff contends that defendant “has waived any argument that the site-specific, apportioned CAD meets the fair apportionment internal consistency test” because defendant did not make a proper argument below and did not submit an affidavit below to rebut plaintiffs affidavit. See MCR 2.116(G). This argument is without merit. Defendant explicitly argued below that the CAD statute was constitutional. Moreover, plaintiffs affidavit merely reiterated information from its complaint, and defendant then argued that the law was in its favor, even though plaintiff moved for summary disposition under MCR 2.116(C)(10), which, in general, focuses on facts rather than law. Defendant focused on the law and argued that it was entitled to summary disposition under MCR 2.116(I)(2) and MCR 2.116(C)(8). Defendant was not required to submit an affidavit to make its law-based argument, and, in failing to assert a factual dispute, defendant did not lose its right to assert a legal dispute. We note that MCR 2.116(0(10) states that summary disposition may be granted when “there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.’’ (Emphasis added.)
The concept of “internal consistency” addresses whether, if every state were to use the same taxing scheme, no more than 100 percent of a taxpayer’s business activity would be taxed. Caterpillar, supra at 419. “External consistency” addresses whether the tax in question covers only that portion of value attributable to business activity within the taxing state. Id. | [
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Kelly, J.
In this medical malpractice action, plaintiff appeals as of right the trial court’s order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7) on the basis that the statutory period of limitations expired before plaintiff filed her complaint. We affirm, holding that MCL 600.5851(1) and (7) unambiguously exclude medical malpractice claimants from the disability grace period and this exclusion does not violate equal protection guarantees.
i. FACTS
It is undisputed that plaintiffs medical malpractice claim accrued on December 13,1999, when, at Lakeland Medical Center-Niles, David Alan Speers, M.D., examined and allegedly misdiagnosed eleven-year-old Jeffrey Hurley. According to plaintiffs complaint, Speers diagnosed Jeffrey with gastritis influenza, but two days later, doctors at another hospital determined that Jeffrey suffered from viral encephalitis. Plaintiff alleged that, “at the time of his discharge, [Jeffrey] was still suffering from severe, permanent mental impairment due to the effects of the delayed and undiagnosed viral encephalitis.”
It is also undisputed that plaintiff sent a notice of intent to defendants on November 8, 2001, at which time, thirty-four days remained on the statutory period of limitations. The statutory period of limitations was tolled for 182 days from November 8, 2001, to May 9, 2002. With thirty-four days remaining in the period of limitations, plaintiff had until June 12, 2002, to file her complaint. Plaintiff did not file her complaint, however, until December 11, 2002.
Defendants filed motions for summary disposition arguing that the two-year statutory period of limitations expired before plaintiff filed her complaint. In response, plaintiff did not dispute that she filed her complaint after the two-year statutory period of limitations expired, but argued that because Jeffrey was insane, pursuant to MCL 600.5851(2), the statutory period of limitations was extended pursuant to the statutory grace period in MCL 600.5851(1). Plaintiff also argued that if MCL 600.5851(7) were applicable, it violates constitutional equal protection guarantees. Defendants replied that, pursuant to MCL 600.5851(7), Jeffrey had reached his eighth birthday at the time his claim accrued and, therefore, he was subject to the period of limitations in MCL 600.5838a, which, by reference to MCL 600.5805(6), required the action to be filed within two years from the cause of action accruing. Defendants also countered that MCL 600.5851(7) does not violate equal protection guarantees because its provisions are rationally related to a legitimate governmental interest. The trial court granted defendants’ motion.
II. STANDARDS OF REVIEW
This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998). This appeal also requires statutory interpretation.
Statutory interpretation is a question of law calling for review de novo. Michigan Basic Prop Ins Ass’n v Ware, 230 Mich App 44, 48; 583 NW2d 240 (1998). “The primary purpose of statutory interpretation is to ascertain and give effect to the intent of the Legislature.” Id. at 49. Where the statutory language is clear and unambiguous, a court must apply it as written. Howard v Clinton Charter Twp, 230 Mich App 692, 695; 584 NW2d 644 (1998). However, if the wording is susceptible to more than one reasonable interpretation, judicial construction is appropriate. Id. [Casey v Henry Ford Health Sys, 235 Mich App 449, 450; 597 NW2d 840 (1999).]
This Court also reviews de novo constitutional issues. Kuhn v Secretary of State, 228 Mich App 319, 324; 579 NW2d 101 (1998).
III. STATUTORY INTERPRETATION
Plaintiff contends that the trial court erred in granting defendants’ motion for summary disposition because, even though the two-year statutory period of limitations expired before she filed her complaint, MCL 600.5851(1) allowed her to file her claim when she did because Jeffrey was insane at the time the cause of action accrued. The issue presented to us is whether the disability grace period in MCL 600.5851(1) applies to medical malpractice claimants. Although our Supreme Court and this Court have addressed what constitutes insanity for the purposes of MCL 600.5851(1) within the context of medical malpractice claims, neither court has addressed the issue before us now.
In construing a statute, this Court “ ‘must give effect to every word, phrase, and clause in [the] statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.’ ” Jenkins v Patel, 471 Mich 158, 167; 684 NW2d 346 (2004), quoting State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). “ ‘[T]he meaning of the Legislature is to be found in the terms and arrangement of the statute without straining or refinement, and the expressions are to be taken in their natural and ordinary sense.’ ” Casey, supra at 452-453, quoting Gross v Gen Motors Corp, 448 Mich 147, 160; 528 NW2d 707 (1995). Our task is to give effect to a statute’s provisions while reading them to harmonize with each other. Casey, supra at 452. Further, when “a statute contains a general provision and a specific provision, the specific provision controls.” Gebhardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994). Additionally, a more recently enacted statute has precedence over an older statute. Travelers Ins v U-Haul of Michigan, Inc, 235 Mich App 273, 280; 597 NW2d 235 (1999). “This rule is particularly persuasive when one statute is both the more specific and the more recent.” Id.
In addition to these basic principles, we keep in mind that the wisdom of a statute is for the Legislature to determine and that the law must be enforced as written. Smith v Cliffs on the Bay Condo Ass’n, 463 Mich 420, 430; 617 NW2d 536 (2000); In re Worker’s Compensation Lien, 231 Mich App 556, 562-563; 591 NW2d 221 (1998). This Court “may not inquire into the knowledge, motives, or methods of the Legislature, and may not impose a construction on a statute based on a policy decision different from that chosen by the Legislature.” Fowler v Doan, 261 Mich App 595, 599; 683 NW2d 682 (2004) (citations omitted).
Applying these principles, we conclude that MCL 600.5851(1), read together with MCL 600.5851(7), unambiguously excludes medical malpractice claimants from the disability grace period. MCL 600.5851(1) provides:
Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years old or insane at the time the claim accrues, the person or those claiming under the person have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. This section does not lessen the time provided for in section 5852. [Emphasis added.]
MCL 600.5851(7) provides:
Except as otherwise provided in subsection (8), if, at the time a claim alleging medical malpractice accrues to a person under section 5838a the person has not reached his or her eight birthday, a person shall not bring an action based on the claim unless the action is commenced on or before the person’s tenth birthday or within the period of limitations set forth in section 5838a, whichever is later. If, at the time a claim alleging medical malpractice accrues to a person under section 5838a, the person has reached his or her eight birthday, he or she is subject to the period of limitations set forth in section 5838a.
MCL 600.5851(1) begins with the phrase: “Except as otherwise provided in subsections (7) and (8)....” There is nothing ambiguous about this phrase. An everyday word familiar to most English-speaking people, “except” is not defined by statute, but is defined in the dictionary as “With the exclusion of....” The American Heritage Dictionary, (2d college ed, 1985). Thus, the circumstances described in subsections 7 and 8 are excepted, or excluded, from the provisions of subsection 1. Further, subsections 1 and 7 do not conflict or, when read together, cause any ambiguity. MCL 600.5851(1) applies “if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues ....” (Emphasis added.) “[T]his act” is the RJA. Subsection 7 specifically applies to “a claim alleging medical malpractice accru[ing] to a person under section 5838a .. ..” Thus, subsection 1 applies to all claims (except medical malpractice claims) arising under the RJA and subsection 7 applies specifically to medical malpractice claims. Further, subsection 7 was enacted more recently than subsection 1, which was found in 1948 CL 600.5851. Subsection 7, on the other hand, was added by 1986 PA 178. Therefore, because subsection 1 clearly states: “Except as otherwise provided in subsections 7 and 8” and because subsection 7 is both more specific to medical malpractice claimants and more recently enacted, we conclude that medical malpractice claimants are excluded from the disability grace period set forth in subsection 1.
In this case, plaintiff does not dispute that she filed her complaint after the two-year statutory period of limitations expired. Because plaintiff is a medical malpractice claimant, MCL 600.5851(1) and (7) exclude her from the disability grace period. Therefore, the trial court did not err in granting defendants’ motion for summary disposition.
IV EQUAL PROTECTION
Plaintiff also contends that this application of MCL 600.5851(7) is unconstitutional because it violates equal protection guarantees. Specifically, plaintiff asserts that “it subjects certain minors to a shorter statute of limitations than minors in other actions, and than an adult when the claimant is insane . . . .” Following this Court’s reasoning in Bissell v Kommareddi, 202 Mich App 578, 579; 509 NW2d 542 (1993), we hold that the plain language of MCL 600.5851(7) does not violate equal protection guarantees.
First, MCL 600.5851(1) and (7), read together, exclude both minor and adult medical malpractice claimants from the disability grace period. Thus, all medical malpractice claimants are treated equally in that they are all excluded from the disability grace period in MCL 600.5851(1).
Second, although MCL 600.5851(1) and (7), read together, treat medical malpractice claimants differently than other claimants, the provisions do not violate equal protection guarantees. In Bissell, this Court addressed whether MCL 600.5851(7) violates equal protection when “it creates an unreasonable and arbitrary distinction between minors with tort claims based on medical malpractice and minors with tort claims based on other theories of recovery.” Bissell, supra at 579. In Bissell, supra at 579-580, the plaintiff sought application of the grace period for minority disability pursuant to MCL 600.5851(1). In determining the purpose of MCL 600.5851(7) under an equal protection analysis, this Court concluded:
Section 5851[(7) ] is part of the Tort Reform Act of 1986 and was ostensibly enacted to eliminate the “long tail” that arises when a minor is allowed to pursue a cause of action that may have accrued as much as eighteen years earlier. Clearly, the object of the challenged legislation was to limit the period of time during which health-care providers would be at risk from malpractice suits. [Bissell, supra at 580-581.]
This Court also determined that the classifications in the statute bore a rational relation to this purpose. Id. at 581.
Here, plaintiff raises the same issue addressed in Bissell, although she seeks application of the grace period for insanity disability in MCL 600.5851(1). We find the reasoning of Bissell persuasive. Accordingly, we adopt the Bissell analysis and extend it to the insanity disability and hold that MCL 600.5851(1) and (7) do not violate equal protection guarantees by excluding medical malpractice claimants from the disability grace period.
Affirmed.
HOEKSTRA, P.J., concurred.
In an affidavit attached to plaintiffs response to defendants’ motion for summary disposition, Robert M. Shuman, M.D., attested that Jeffrey’s disability “prevents him from comprehending rights that he is otherwise bound to know and he is unable to understand or appreciate legal rights which he may have.”
Generally, the statutory period of limitations for a medical malpractice action is two years. Burton v Reed City Hosp Corp, 471 Mich 745, 748; 691 NW2d 424 (2005); MCL 600.5805(6) and 600.5838a(2).
It is undisputed that MCL 600.5851(8) does not apply in this case. Therefore, even though MCL 600.5851(1) also appears to exclude cases that fall within the parameters of MCL 600.5851(8), we do not address that statute because it is not necessary to the resolution of the issues on appeal.
Before 1972, the age of “majority” was “21 years” instead of “18 years.”
As stated above, MCL 600.5851 was enacted in 1948, whereas MCL 600.5851(7) was enacted as part of the Tort Reform Act of 1986. Further, it is clear that Bissell addressed “the statute of limitations provided in MCL 600.5851(7)” and not MCL 600.5851 generally. Bissell, supra at 579. | [
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Kelly, J.
Following a bench trial, defendant was convicted of two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(c) (sexual penetration during the commission of another felony); one count of producing child sexually abusive material, MCL 750.145c(2); and one count of eavesdropping through installation of a camera, MCL 750.539d. The trial court sentenced defendant as a third-offense habitual offender to 35 years and 5 months to 60 years’ imprisonment for the CSC-I convictions, 20 to 40 years’ imprisonment for producing child sexually abusive material, and 2 to 4 years’ imprisonment for eavesdrop ping, to be served concurrently. Defendant appeals as of right his convictions and sentences. We affirm.
I. FACTS
In March 2003, Detective Robert Peto and Sergeant Craig Annas of the Ypsilanti Police Department went to defendant’s home to investigate criminal allegations unrelated to this case. The officers requested consent to search defendant’s home for a gun or knife. Defendant provided written consent to search his home except for rooms rented to tenants. While looking in the shower, Detective Peto observed a homemade device with electrical switches and a motion detector. He thought it was suspicious because it is unusual to have electrical switches and a motion detector in a shower, especially when female tenants used the shower. Detective Peto also saw a “small, approximate quarter-inch hole drilled underneath where the sensor normal — sensor housing normally is.” Detective Peto flashed his light on the hole and saw the reflection of glass, which appeared to him to be the lens of a microcamera. Because Detective Peto and Sergeant Annas knew that defendant’s tenants used the shower, they arrested defendant for eavesdropping. They also halted their search of the home, and Detective Peto left to obtain a search warrant.
Upon execution of the search warrant, Detective Peto retrieved the camera behind the panel. He found that the wiring from the camera led to recording systems in both defendant’s bedroom and the living room. A working remote control for the system was also found in defendant’s bedroom. The officers seized video and camera equipment, including a camera from atop defendant’s dresser, audio and visual recordings, and sexual toys and photographs.
Detective Peto testified that, during the initial consent search, he and Sergeant Annas found two videotape recordings between the mattresses on defendant’s bed. They were not concerned about the videotape recordings at the time. They were not looking for videotapes, and defendant volunteered that they were his personal videotape recordings. When the officers executed the search warrant later that night, however, they seized several other videotapes. On one tape, entitled “Mixed Signals,” defendant had recorded himself, a 14-year-old male, and a 16-year-old female engaging in sexual acts.
II. SEARCH AND SEIZURE
A. LEGALITY OF SEIZURE
Defendant argues that all the evidence found and seized after Detective Peto used his flashlight to examine the small hole in the shower should have been suppressed because shining the light in that hole, when the object of the search was a gun or knife, exceeded the scope of the consented-to search. We disagree.
We review a trial court’s findings of fact for clear error, giving deference to the trial court’s resolution of factual issues. “A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made.” We overstep our review function if we substitute our judgment for that of the trial court and make independent findings. However, we review de novo the trial court’s ultimate decision on a motion to suppress. [People v Frohriep, 247 Mich App 692, 702; 637 NW2d 562 (2001) (citations omitted).]
“Generally, if evidence is unconstitutionally seized, it must be excluded from trial.” People v Jordan, 187 Mich App 582, 588; 468 NW2d 294 (1991).
The right against unreasonable searches and seizures is guaranteed by both the state and federal constitutions. US Const, Am IV; Const 1963, art 1, § 11. The state constitutional standard is not higher than the federal standard. The constitutions do not forbid all searches and seizures, only unreasonable ones. Reasonableness depends upon the facts and circumstances of each case. The applicable test in determining the reasonableness of an intrusion is to balance the need to search, in the public interest, for evidence of criminal activity against invasion of the individual’s privacy. [Id. at 586 (citations omitted).]
“The exclusionary rule applies not only to evidence improperly seized during a search without a warrant, but to evidence subsequently seized pursuant to a warrant obtained as a result of an initial illegal search.” Id. at 588. “Among the recognized exceptions to the warrant requirement are exigent circumstance, consent, and plain view.” Id. at 587. “The plain view doctrine allows police officers to seize, without a warrant, items in plain view if the officers are lawfully in a position from which they view the item, and if the item’s incriminating character is immediately apparent.” People v Champion, 452 Mich 92, 101; 549 NW2d 849 (1996).
The initial search of defendant’s home took place under the consent exception. The scope of a consent search is limited by the object of that search. Florida v Jimeno, 500 US 248, 251; 111 S Ct 1801; 114 L Ed 2d 297 (1991). Defendant admits that he signed a written consent, which did not specify the object of the search and was not limited in any manner. However, it is undisputed that defendant orally consented to a search for a knife or a gun. Defendant only limited the search area to exclude the private rooms of his tenants. Detective Peto’s search of the shower for a gun or knife was clearly within the scope of defendant’s consent. Under the plain view doctrine, Detective Peto could have seized the device that he discovered in the shower without benefit of a warrant. Detective Peto was lawfully searching the shower, the device was in plain view, it was suspicious, and detective Peto knew that defendant’s female tenants used the bathroom. Thus, the incriminating nature of the device was readily apparent even though the full nature of the device was unknown at that time. According to defendant’s affidavit, Detective Peto removed screws from the unit and showed them to defendant before the search warrant was obtained. Even assuming that defendant’s statements are true, because detective Peto could have seized the device given its obvious incriminating nature, viewing the device with a flashlight and removal of the screws was also permitted. No other evidence was seized until after the search warrant was obtained. Therefore, trial court did not err in admitting the evidence.
B. REQUEST FOR POLYGRAPH EXAMINATION FOR PURPOSE OF MOTION TO SUPPRESS
Defendant further argues that the trial court erred when it denied defendant’s request for a polygraph examination, which would have assisted him in proving that the seizure of evidence was illegal and led to the suppression of the evidence against him. In addressing a trial court’s denial of a request for a polygraph examination, our Supreme Court held:
In cases involving preserved, nonconstitutional error, a defendant must demonstrate, “ ‘after an examination of the entire cause,’ ” that it “is more probable than not that the error was outcome determinative.” The reviewing court must examine the nature of the error and assess its effect “ ‘in light of the weight and strength of the untainted evidence.’ ” [People v Phillips, 469 Mich 390, 396-397; 666 NW2d 657 (2003) (citations omitted).]
Under the circumstances of this case, even if the trial court’s denial was error, defendant cannot demonstrate that it is more probable than not that it was outcome determinative. MCL 776.21(5) provides:
A defendant who allegedly has committed a crime under sections 520b to 520e and 520g of Act No. 328 of the Public Acts of 1931 [MCL 750.520b to 750.520e and MCL 750.520g], shall be given a polygraph examination or lie detector test if the defendant requests it.
“The purpose of affording individuals accused of criminal sexual conduct a right to a polygraph exam is to provide a means by which accused individuals can demonstrate their innocence, thereby obviating the necessity of a trial.” People v Phillips, 251 Mich App 100, 107; 649 NW2d 407 (2002), aff'd 469 Mich 390; 666 NW2d 657 (2003). In this case, however, defendant did not seek a polygraph examination to prove his innocence of the alleged crime. Rather, he sought a polygraph examination to support his argument that the evidence against him should have been suppressed because of an illegal search and seizure. As discussed above, even accepting defendant’s affidavit as true, these facts would not have affected the outcome of the suppression issue. Therefore, defendant cannot establish that the trial court’s denial of his request for a polygraph examination was outcome determinative.
C. INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING SUPPRESSION MOTION
Similarly, defendant cannot show that counsel was ineffective for failing to file a motion to suppress the evidence before trial, which motion would have allowed defendant to put the statements made in his affidavit on the record in the lower court. Because, as discussed above, defendant’s testimony would not have been outcome determinative on this issue, defendant cannot demonstrate ineffective assistance of counsel in this regard. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
III. CONSENT NOT A DEFENSE TO MCL 750.520b(1)(c) IF NOT A DEFENSE TO UNDERLYING FELONY
Defendant next argues that the trial court erred in precluding consent as a defense to the CSC-I charges under MCL 750.520b(1)(c) when the underlying felony was producing child sexually abusive material, MCL 750.145c(2). We disagree. We review de novo claims of instructional error. People v Hubbard (After Remand), 217 Mich App 459, 487; 552 NW2d 493 (1996). This issue also involves statutory interpretation. According to the well-established rules of statutory interpretation,
[w]hen construing a statute, our primary goal is “to ascertain and give effect to the intent of the Legislature.” To do so, we begin by examining the language of the statute. If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning and the statute is enforced as written. Stated differently, “a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.” “Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent.” [Phillips, supra, 469 Mich 395 (citations omitted).]
MCL 750.520b provides, in relevant part:
(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
According to the plain language of MCL 750.520b(1)(c), the prosecution must prove two elements: (1) a sexual penetration (2) that occurs during the commission of another felony. Accordingly, regardless of whether the penetration was consensual, if it occurs during the commission of another felony, the elements of MCL 750.520b(1)(c) are satisfied. The question then is whether consent is a defense to the “other felony”, i.e., the underlying felony. We hold that if consent is not a defense to the underlying felony, then it is not a defense to the CSC-I charge under MCL 750.250b(1)(c).
In this case, the underlying felony was producing child sexually abusive material in violation of MCL 750.145c(2), which provides, in pertinent part, “A person who . .. produces [or] makes ... any child sexually abusive activity or child sexually abusive material is guilty of a felony . . ..” The statute defines a “child” as “a person who is less than 18 years of age . . ..” MCL 750.145c(1)(b). It is undisputed that consent is not a defense to a charge under MCL 750.145c(2). If consent were a defense to the second element of MCL 750.520b(1)(c), i.e., the underlying felony, then it would be an appropriate defense to the charge under MCL 750.520b(1)(c). For example, because consent is a complete defense to the felony of kidnapping, MCL 750.349, consent is a defense to MCL 750.520b(1)(c) when the underlying felony is kidnapping. People v Thompson, 117 Mich App 522, 526; 324 NW2d 22 (1982); People v LaPorte, 103 Mich App 444, 448-449; 303 NW2d 222 (1981). But here, because consent is not a defense to the underlying felony, producing child sexually abusive material, defendant cannot argue consent as a defense to his charges under MCL 750.520b(1)(c). Therefore, the trial court properly excluded consent as a defense.
IV SUFFICIENCY OF THE EVIDENCE
Defendant next argues that there was insufficient evidence to support his conviction of CSC-I in counts I and II. We disagree. “Generally, we review a challenge to the sufficiency of the evidence in a bench trial de novo and in a light most favorable to the prosecution to determine whether the trial court could have found that the essential elements of the crime were proved beyond a reasonable doubt.” People v Sherman-Huffman, 241 Mich App 264, 265; 615 NW2d 776 (2000), aff'd 466 Mich 39; 642 NW2d 339 (2002). All conflicts with regard to the evidence must be resolved in favor of the prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997). Circumstantial evidence and reasonable inferences drawn from it may be sufficient to prove the elements of the crime. People v Watson, 245 Mich App 572, 595; 629 NW2d 411 (2001).
A. COUNT I — CSC-I PENETRATION DURING COMMISSION OF ANOTHER FELONY
The evidence was sufficient to support defendant’s conviction of CSC-I with respect to count I, defendant’s sexual penetration of the female victim. Defendant asserts that mere touching cannot support his conviction “where penetration is required.” However, pursuant to MCL 750.520a(o), “ ‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.’ ” (Emphasis added.) In the “Mixed Signals” videotape, defendant appears to place his mouth between the female victim’s legs on at least one occasion. Further, the male victim testified at trial:
Q. Do you have positive recollection of Mr. Wilkins [sic] touching [the female victim’s] vagina with those sex toys or any sex toy?
A. Yes.
Q. You’re positive that that occurred?
A. Yes.
Q. He used a sex toy and he touched her vagina?
A. Yes.
Viewing this evidence in the light most favorable to the prosecution, we conclude that there was sufficient evidence to permit a rational trier of fact to find that defendant made an intrusion, however slight, with a body part or object into the genital opening of the female victim’s body.
B. COUNT II — CSC-I AIDING AND ABETTING
There was also sufficient evidence to sustain defendant’s conviction with respect to count II of CSC-I as an aider and abettor.
MCL 767.39 provides:
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.
In count II, defendant was charged as follows:
[The defendant] did aid and abet the sexual penetration of another person, to-wit: cunnilingus, by [the male victim], under circumstances involving the commission of another felony, to-wit: production of child Sexually Abusive Material; contrary to MCL 750.520b(1)(c)....
The videotape evidence was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that defendant aided or abetted the male victim’s penetration of the female victim, which occurred during the commission of another felony. Therefore, defendant’s conviction under MCL 750.520b(1)(c) as an aider and abettor is supported by the evidence.
V. SCORING OF OFFENSE VARIABLES
Defendant next argues that several of the offense variables were improperly scored. We disagree. “A sentencing court has discretion in determining the number of points to be scored, provided that evidence of record adequately supports a particular score.” People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). “ ‘Scoring decisions for which there is any evidence in support will be upheld.’ ” Id., quoting People v Elliott, 215 Mich App 259, 260; 544 NW2d 748 (1996).
Defendant challenges the scoring of offense variable (OV) 4 for counts I and II (CSC-I). Ten points are scored for OV 4 if “[s]erious psychological injury requiring professional treatment occurred to the victim[.]” MCL 777.34(1)(a). Ten points should be scored if the “serious psychological injury may require professional treatment,” and the fact that treatment is not sought is not conclusive when scoring the variable. MCL 777.34(2).
With regard to the male victim, the videotape reveals that his attitude took a disturbing turn during the course of the 41-minute incident. Toward the end, he resorted to making violent threats against the female victim to coerce her into continuing the sex acts. This, in light of the fact that the male victim’s demeanor on the stand was rather casual, indicates that the male victim suffered serious psychological injury as a result of this incident such that he was rendered unable to comprehend the gravity of his actions. This supports the trial court’s scoring of OV 4.
With regard to the female victim, the trial court relied on statements that she made “on the videotape and everything else.” Though the female victim did not testify, the videotape shows that the female victim repeatedly indicated that she did not want to continue the sex acts and that the “motion lotion” was hurting her, yet defendant asserted that the videotape was not worth the money he spent on the female victim’s, clothes and urged the female victim to continue. Ultimately, the female victim sat up in bed and remained silent while defendant attempted to coax her into continuing. This evidence indicates that defendant’s actions caused the female victim anxiety, altered her demeanor, and caused her to withdraw; it supports a finding of serious psychological injury occurring to the female victim.
With respect to OV 9, MCL 777.39(1)(c), ten points are scored if there are two to nine victims. Each person “who was placed in danger of injury or loss of life as a victim” is counted when scoring the offense variable. MCL 777.39(2)(a). In this case, both the male victim and the female victim were placed in danger of injury by defendant’s conduct. During the making of the videotape, the male victim threatened the female victim with physical harm. Additionally, at defendant’s suggestion, the male victim used “motion lotion,” which the female victim complained burned her. Thus, she was placed in physical danger. Also, the female victim and the male victim, both minors, were placed in danger of physical injury from having drunk a large quantity of alcohol provided by defendant. The record supports the scoring of OV 9.
Offense variable 10, MCL 777.40, was also properly scored at ten points for counts I and II. OV 10 relates to the exploitation of a vulnerable victim and is scored at ten points if the offender “exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status[.]” MCL 777.40(1)(b). The word “exploit” means “to manipulate a victim for selfish or unethical purposes.” MCL 777.40(3)(b). The word “vulnerability” means “the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation.” MCL 777.40(3)(c). The female victim, a 16-year-old with a history of running away from her adoptive parents, stayed in defendant’s house for a period. On the night in question, defendant provided her with alcohol and purchased clothes and food for her. The “Mixed Signals” videotape was then made so that the female victim could pay defendant back for the clothes. The record supports that defendant “exploited” the victim’s youth by manipulating her with clothes and alcohol in exchange for making the sexually abusive videotape.
OV 11, MCL 777.41, was also properly scored for counts I and II. OV 11 provides that 25 points should be scored if one sexual penetration occurred. MCL 777.41(1)(b). The statute further provides:
All of the following apply to scoring offense variable 11:
(a) Score all sexual penetrations of the victim by the offender arising out of the sentencing offense.
(b) Multiple sexual penetrations of the victim by the offender extending beyond the sentencing offense may be scored in offense variables 12 and 13.
(c) Do not score points for the 1 penetration that forms the basis of a first- or third-degree criminal sexual conduct offense. [MCL 777.41(2).]
The statute instructs that only penetrations of the victim arising out of the sentencing offense are scored, but the one penetration that forms the basis of the sentencing offense is excluded. People v McLaughlin, 258 Mich App 635, 674-677; 672 NW2d 860 (2003). The phrase “arising out of the sentencing offense” refers to all penetrations arising out of the entire assault. Id. at 674. In count I, defendant was sentenced for his penetration of the victim. But the evidence demonstrates that defendant penetrated the female victim with both his mouth and a sex toy. The evidence supports the score of 25 points for OV 11 for count I because defendant was charged with only one penetration, yet he penetrated the female victim more than once during the making of the videotape. Similarly, in scoring count II, defendant was sentenced as an aider and abettor to the male victim’s penetration of the female victim. The evidence demonstrates that, in addition to aiding and abetting the male victim’s penetrations of the female victim, defendant also penetrated the female victim at least one other time. Thus, the evidence supports scoring 25 points for OV 11 for count II. There was no error in the scoring of this offense variable.
There was also no error in the scoring of OV 13. Twenty-five points are scored for OV 13 where the offense is part of a pattern of felonious criminal activity involving three or more crimes against a person. MCL 777.43(1)(b). In scoring OV 13, all crimes within a five-year period are counted, including the sentencing offense, regardless of whether the offenses resulted in a conviction. MCL 777.43(2)(a). In this case, defendant was convicted of two counts of CSC-I and one count of eavesdropping for videotaping a female tenant in the shower. Further, at the time of his sentencing, defendant had two additional counts of CSC-I pending. Clearly, there was evidence in the record to support the scoring of 25 points for OV 13.
VI. FAILURE TO PRODUCE THE FEMALE VICTIM AS WITNESS
Defendant next argues that his right to confront and cross-examine the female victim and his right to due process were violated because she was not produced as a witness against him. Although defendant states that he had the right to confront a witness “against him,” defendant is not claiming that evidence of the female victim’s out-of-court statements should have been excluded because the female victim did not appear at trial. Further, defendant, while using the phrase “against him,” actually argues that the prosecution should have been required to present the female victim as a witness because she would have been helpful to his defense.
In a case in which the defendant raised a similar issue, People v Lee, 212 Mich App 228, 257-258; 537 NW2d 233 (1995), the defendant argued that the prosecution denied him the right to confront witnesses because some witnesses were not called to testify. This Court, noting that the defendant was able call these witnesses on his own, found no violation of the defendant’s right of confrontation or due process because “[w]hile the prosecutor has certain obligations with respect to witnesses, it is not the prosecutor’s responsibility to call any witnesses whom the defendant believes may support his defense in some way.” Id. Here, the prosecution did not offer the female victim’s statements against defendant at trial. On appeal, defendant argues that if she had testified, she would have testified favorably for defendant. Thus, as in Lee, the prosecu tion had no obligation to call a witness that defendant believed would be favorable to him, and defendant has failed to explain why he was unable to call the female victim as his own witness. We discern no constitutional violation arising from the female victim’s absence at trial.
VII. DOUBLE JEOPARDY
Defendant next argues that his guaranteed constitutional protection against double jeopardy was violated when he was convicted of CSC-I, MCL 750.520b(1)(c); and production of child sexually abusive material, MCL 750.145c(2). This challenge presents a question of law that we review de novo. People v Lett, 466 Mich 206, 212; 644 NW2d 743 (2002). This issue was previously resolved in People v Ward, 206 Mich App 38, 43; 520 NW2d 363 (1994), in which this Court held:
Because the Legislature intended to punish conduct violative of distinct social norms and did not authorize punishments based on a continuum of culpability, it is apparent that the Legislature intended that the crimes of criminal sexual conduct and child sexually abusive activity be punished separately. Accordingly, we hold that defendant’s convictions do not violate the double jeopardy protection against multiple punishments. [Citation omitted.]
Following Ward, we conclude that defendant’s claim has no merit.
Affirmed.
BANDSTRA, J., concurred.
This conviction is not at issue on appeal.
Defendant also argues that his appellate counsel was ineffective for not raising this issue in his “primary” brief on appeal. However, defendant raised the issue himself, and we have addressed it. Therefore, defendant cannot demonstrate any prejudice in appellate counsel’s failure to raise the issue. | [
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R. B. Burns, J.
An arbitration panel awarded Sullivan Brothers Excavating, Inc. (hereinafter Sullivan) $214,000 against Ministrelli Construction Co., Inc. (hereinafter Ministrelli). Upon Ministrelli’s application, the trial court vacated the award and ordered the matter be rearbitrated before a new panel. Sullivan appeals. We affirm.
Ministrelli, general contractor on a Michigan State Highway Department construction project, brought suit in circuit court against Sullivan, a subcontractor on the project. Sullivan counterclaimed for money earned but not paid. Pursuant to the terms of the subcontract, the matter was submitted to arbitration. Hearings before the arbitrators were concluded June 3, 1976, the award was made June 30, 1976, and the parties were promptly notified of the award. Sullivan made a motion to affirm the award in circuit court on July 21, 1976. On August 4, 1976, Ministrelli answered and made a motion to vacate the award.
Facts established in circuit court indicate that between June 3, 1976, and June 30, 1976, each arbitrator made an ex parte telephone contact with a witness. One arbitrator called Ministrelli’s office, another arbitrator called Sullivan’s office, and the third arbitrator called the Michigan State Highway Department. The arbitrator who called Ministrelli’s office spoke to a Ministrelli employee, who answered questions outside his field of expertise concerning calculation of damages. The employee did not inform his employer until one or two weeks after the third week of July, 1976.
The circuit court judge determined that Minis trelli had timely raised an issue of misconduct by the arbitrators, inferred that the ex parte contracts were of a prejudicial nature, and ruled that the award must be vacated.
An arbitration award may be vacated upon the grounds stated in GCR 1963, 769.9(1), which provides in part:
"Upon application of a party, the court shall vacate an award where:
"(a) The award was procured by corruption, fraud or other undue means;
"(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
"(c) The arbitrators exceeded their powers; or
"(d) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing as to prejudice substantially the rights of a party.”
The time within which the application may be brought is limited by GCR 1963, 769.9(2), which provides:
"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.”
5 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 449, states:
"A party seeking to vacate an award must apply by motion within twenty days after delivery to him of a copy of the award if the grounds he advances in support of his motion appear on the face of the award, or occurred overtly in the proceeding (i.e., the arbitrators exceeded their powers, sub-rule 769.9(1)(c); or refused postponement for good cause, refused material evidence, or otherwise indulged in prejudicial conduct, sub-rule 769.9(1)(d); or showed evident partiality, sub-rule 769.9(1)(b)). Applications to vacate awards for the other causes listed in the sub-rule (fraud, corruption, or other misconduct) must be made within twenty days after such grounds become known, or should have been known. Sub-rule 769.9(2).” (Emphasis supplied.)
We agree that the actions of the arbitrators constituted misconduct. Ministrelli applied to vacate the award within 20 days of the date such conduct became known and therefore applied in a timely manner.
Affirmed. Costs to plaintiff.
Cynar, P.J., concurred. | [
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M. B. Breighner, J.
Defendant was jury convicted of first-degree murder. MCL 750.316; MSA 28.548. The trial judge sentenced him to life imprisonment.
The case against defendant was circumstantial. The evidence against him tended to show that he was in possession of several items of personal property taken from the decedent’s home (site of the murder), that his fingerprints had been found in the decedent’s home, and that he had committed a subsequent and separate murder. The defense primarily attacked the credibility of testimony establishing these circumstantial facts. Defense counsel rested on the argument that the state had not shown beyond a reasonable doubt that defendant had committed the murder with which he was charged.
Defendant’s appeal as of right raises a single meritorious issue. Did the trial court err in allowing evidence of another murder under the "similar acts” statute, MCL 768.27; MSA 28.1050, as refined by the Supreme Court in People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), and by this Court in People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978)?
In reviewing a trial court’s decision to allow evidence of similar bad acts, Oliphant and Wilkins require us to determine three issues: (1) was the evidence material to a matter in issue; (2) did the trial court, balancing many factors, determine whether the prejudicial effect of the evidence would not substantially outweigh its probative value; and (3) did the trial court abuse its discretion in determining that the evidence was substantially more probative than prejudicial?
In the present case the evidence that defendant had committed another murder was clearly material to a matter in issue. There was substantial evidence of its commission by the defendant. The circumstances surrounding the other alleged murder were sufficiently special and similar to the circumstances surrounding the charged murder to be probative of the identity of its perpetrator. The defendant disputed his identity as the murderer. See also People v Wilkins, supra at 269; 266 NW2d at 786 (identity always in dispute).
It is not clear whether the trial court determined that the prejudicial effect of the evidence would not substantially outweigh its probative value.
In a closely analogous case, People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), the Supreme Court has held that a trial court commits reversible error if it does not recognize that it has discretion to admit or preclude evidence of a witness’s prior convictions even if they are relevant and material to the issue of the defendant’s credibility as a witness. In People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), the Supreme Court ruled that "In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion”.
No reported appellate decision in this state has expressly applied the Cherry order to Oliphant In Oliphant itself, the Court did find that the trial judge had recognized that the similar acts statute is cast in permissive language and undertook to balance probative value against prejudicial impact. The Wilkins panel did not reach the issue of whether the trial court in fact had exercised its discretion under Oliphant. The trial court’s admission of evidence of other bad acts in that case was found to be erroneous because the evidence was immaterial under the Oliphant standards. In People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), three justices found that a trial judge had not abused his discretion in admitting evidence of other bad acts, noting that the trial judge had "carefully considered the matter”. Id. at 14; 260 NW2d at 61. Justice Williams concurred in the result. Justice Levin dissented. Citing People v Cherry, he argued that the record did not support the conclusion that the trial judge had carefully considered the matter.
We fail to discern a distinction between Oli phant and Jackson that reasonably would preclude us from applying the Cherry order to Oliphant. However, we believe it would be inexpedient for us to so extend Cherry in light of the Supreme Court’s opportunity and neglect to do so in Duncan. It would be especially inexpedient for us to extend Cherry in view of Justice Levin’s dissent in Duncan which suggested that a different result would have obtained in that case had Cherry been applicable. Thus, we do not hold that in order to comply with Oliphant a trial court must positively identify and indicate its exercise of discretion.
Nonetheless, it is still our duty to determine whether the trial judge in this case properly exercised his discretion under Oliphant. People v Jackson, supra.
The record reveals that there was extensive argument on the issue of admissibility. Mainly, the prosecutor and defense counsel debated whether the other murder would be probative of any of the statutorily authorized matters and whether the proof of its occurrence would be substantial. One point made by defense counsel did relate to the balancing prong of the Oliphant test. "The last thing”, he contended, "is that my client is standing trial for the [other murder], strictly on evidence produced in this trial by this witness about to take the stand. He has to go on May 18 and defend that all over again.” This intimates most strongly the possibility of confusion, unfairness and undue delay.
After hearing this debate the trial judge stated, "In view of the Oliphant case, it seems like almost anything is admissible”. He then pointed to several factors that made the state’s position in this case weaker than its position in Oliphant. The judge noted that there was less substantial evi dence that the present defendant had committed the other bad act. In addition he pointed out that there was going to be a great deal of evidence in this case that the other murder was dissimilar to the one for which defendant was on trial. (There was going to be evidence that the cause of death was different.) Nonetheless, the trial judge concluded, "In view of the Statute, and in view of the People versus Oliphant, this Court’s opinion is that this testimony is permissible”.
Three aspects of this record are central to our determination of whether the trial judge complied with Oliphant.
First of all, the transcript does not reveal any formal recognition and exercise of discretion. Compare People v Strickland, 78 Mich App 40, 53; 259 NW2d 232, 238 (1977). However, the judge’s recognition of Oliphant as controlling authority is some indication that he knew of his duty to balance. Also, by concluding that the evidence was "permissible” the trial judge seemed to acknowledge that the similar acts statute is cast in permissive language. Cf., People v Burse, 62 Mich App 204, 211-212; 233 NW2d 232, 235-236 (1975) (applying Cherry).
Secondly, the tone of the ruling suggests that this trial judge would allow evidence of similar bad acts in almost all cases. Yet, in the Jackson-Cherry line of cases this Court has said, "[B]y allowing trial judges discretion in these matters, the Supreme Court must have accepted the fact that some judges would lean to allow impeachment in most cases, whereas others would usually prohibit it”. People v Strickland, supra.
Thirdly, there is no on-the-record balancing of the factors enumerated in Oliphant and Wilkins that weigh in the determination of probative value and prejudice. Moreover, the factors articulated by the court to distinguish this case from Oliphant were factors indicative of materiality only. This suggests that the trial judge was primarily concerned with the materiality prong of the Oliphant test. As related above, while there was extensive argument on the issue of admissibility, there was no extensive argument on the point of probative value versus prejudice. Compare People v Oliphant, supra at 493; 250 NW2d at 451. In this context, the court’s statement that nearly all things are admissible under Oliphant may be read as a statement that nearly anything is material under Oliphant. That of course only states half the test. On the other hand, this Court has held that even under the Cherry standard, a trial court need not make a record of its balancing. People v Strickland, supra. But see People v Florida, 61 Mich App 653, 665 fn 2; 233 NW2d 127, 134 fn 2 (1975). Also, as related above, defense counsel did make at least one point that related to the second part of the Oliphant test.
We find that this record is sufficient to show the trial judge exercised his discretion under Oliphant. While recognizing the highly inflammatory impact of testimony linking an accused murderer to another murder, we further hold that the trial court did not abuse its discretion in allowing the similar acts testimony in this case. See People v Duncan, supra at 14-15; 260 NW2d at 61.
For guidance in future trials, however, we note our disagreement with the trial court’s assertion that almost anything is admissible under Oliphant. Our Supreme Court has repeatedly announced as a general rule that evidence of other crimes is not admissible, because it precludes an objective assessment of the evidence by the jury. That is the norm. The similar acts statute creates an exception. People v Oliphant confines that exception. Most importantly, it emphasizes that such evidence may be excluded even if it is relevant and material. The Oliphant Court held that in determining admissibility a trial judge must balance many factors to determine whether the probative value of the evidence is outweighed by its prejudice. The matter remains discretionary with the trial court, but the presupposition is against admissibility.
Affirmed.
R. B. Burns, J., concurred.
A witness testified that he accompanied the defendant to a home on Muirland Street in Detroit. Inside he discovered a corpse. According to the witness he accompanied the defendant to the Muirland home to purchade a television defendant has offered to sell. They entered the home without a key. After discovering the body they removed several items of personal property including a television similar to the one defendant had offered to sell. The next day on the way to pawn some of the items taken from the house, defendant confessed to the Muirland Street murder and described how he accomplished it. Immediately thereafter he withdrew the confession. Compare People v Duncan, 402 Mich 1; 260 NW2d 58 (1977) with People v Roeder, 79 Mich App 595; 262 NW2d 872 (1977).
Both victims were strangled with household items which were left on the necks of the victims. Neither residence showed signs of forced entry or disarray. Both killings occurred within a relatively short time, the principal one on or about October 29, the one on Muirland Street in Detroit on or about November 1. In both cases the defendant was shown to have taken or been in possession of personal property of the decedent. The victims were similar in that at the time of or shortly before their deaths they resided with male roommates. Compare People v Padgett, 306 Mich 545; 11 NW2d 235 (1943), with People v Kelly, 386 Mich 330; 192 NW2d 494 (1971). | [
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Cooley, J.
The bill in this case is filed to obtain a perpetual stay of execution on a judgment obtained by the defendant, the Citizens’ Bank, against the Marquette & Pacific Bolling Mill Company. The facts are simple and not controverted.
On January 19, 1873, the Citizens’ Bank recovered judgment against the Bolling Mill Company for upwards of $10,000. Execution was not taken out on the judgment until October 13,1875, when it was delivered to the sheriff and by him levied upon real estate belonging to the defendant therein. On making the levy, the sheriff filed a notice thereof with the register of deeds in compliance with the statute (Public Acts 1875, p. 3), which provides that “no-levy by execution on real estate, made after this act shall take effect as a law, shall be valid against bona fide conveyances made subsequent to such levy, until a notice thereof' containing the name of the parties to the execution, a description of the premises levied upon, and the date of such levy, shall be filed by the officer making the same, in the office of the register of deeds of the county where the premises are situated; and such levy shall be a lien thereon only from the time when such notice shall be so deposited.” The lands were at that time subject to a mortgage of uncertain amount, and the officer, instead of proceeding to a sale,' awaited the orders of the plaintiff’s attorney.
Three other judgments were subsequently recovered against the Bolling' Mill Company as follows: By Gilliland and others, August 29, 1876, by Brenneman & Ward,. November 20, 1876, and by Bobinson & Lea, January 22,. 1877; the three aggregating about eleven thousand dollars. Upon these executions were taken out in February, 1877, and levied upon the same lands above mentioned. The levy was followed by a sale in October, 1877, and William H. Parks became tbe purchaser. His certificate of purchase was at once assigned to complainant, who received a sheriff’s deed in completion of the sale in January, 1879. In October, 1879, the sheriff, under directions from the attorney for the bank, proceeded to advertise the lands for sale on its judgment. The bill in this case was then filed to restrain any •sale, and to have the lien claimed by the bank declared null and void as against complainant.
It is averred in the bill that neither Parks at the time of his purchase nor complainant when he took an assignment from Parks, had any actual notice of the bank levy. They had constructive notice, however, from the notice in the register’s office; and this for all the purposes of this suit was as effectual as would have been actual knowledge. The case, then, must turn exclusively upon the efEect of the long delay in proceeding to a sale under the first levy.
Many cases are cited by counsel for complainant which hold that when the officer levies upon personal property and then, instead of proceeding to a sale, allows the property to remain in the debtor’s hands, the efEect is that the lien of his levy is suspended. These are no doubt proper decisions; for the effect of such proceedings is to mislead other creditors, and to defraud them if the levy is still effectual. Put they have no application to the case of a levy on land of which the statutory notice is given. This notice in the case of real estate answers the same purpose as the taking possession of the property in the case of personalty; and no one when the notice is on file need be misled.
It is also urged on the part of the complainant that a levy thus made and allowed to stand may be used for the fraudulent purpose of assisting the debtor in hindering and delaying other creditors in the collection of their demands. This is possible, perhaps, under some circumstances; but there is nothing in this case to indicate any such purpose. The evidence tends to show that the officers of the bank delayed proceeding to a sale under some expectation of receiving their money without; and no ground is furnished by the evidence for suggesting collusion with the judgment debtor.
Under our statute the life of a judgment in a court of record is ten years. Parsons v. Wayne Circuit Judge 37 Mich. 287. We know of no ground for holding a levy duly made and notified void from the mere lapse of less than half this time. The good faith of the bank is not successfully assailed in this case; and we are therefore of opinion that there was no ground for setting aside its levy.
The decree must be reversed, and the bill dismissed with costs of both courts.
The other Justices concurred. | [
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] |
Cooley, J.
This is a bill in equity to remove a cloud upon title. The following is a summary of the facts as they are set forth in the bill:
In March, 1875, the defendant John ITuggard was the owner of certain parcels of land in the township of Nelson, Kent county, comprising in all two hundred and forty acres, and had the record title thereto. While so the owner, he became indebted to complainant and also to S. D. Clay for professional services. On May 13, 1875, John Huggard mortgaged all the lands to his co-defendant Francis Huggard for the nominal consideration of three thousand dollars, but the bill avers that there was no real consideration whatever therefor, and that it was executed for the purpose and with the intent of defrauding complainant and Clay in the collection of their demands. Complainant took an assignment from Clay, and bn September 17, 1875, commenced suit against John Huggard and attached the lands. September 22,1877, complainant obtained judgment in this suit for the sum of $567.16 and costs taxed at $88.77. Subsequent to the attachment releases were given by John to Francis of certain portions of the mortgaged lands, and the bill avers that these were executed with the like intent to defraud. On January 19,1878, complainant caused all the lands to be sold on an execution issued upon his said judgment, and they were struck off to him as purchaser for the sum of $716.10, and on May 5, 1879, after the time for redemption had expired, they were conveyed to him by the sheriff in completion of the sale. The bill further shows that the mortgage from John to Francis was recorded immediately on its execution, but avers that its existence was only discovered by complainant after he had become purchaser of the lands at the execution sale. The prayer of the bill is that the mortgage and releases be decreed to be altogether fraudulent and void as against complainant, and that the said Francis be required to release.
The answer of the defendants denies all fraud, and insists that the mortgage from John to Francis was given in good faith, and for full consideration of money loaned. Issue was taken on the answer, and the case heard on pleadings and proofs. The circuit court made a decree in favor of complainant, in conformity with the prayer of the bill. It appears from the record that the complainant established the indebtedness, the judgment, the sale and conveyance by the sheriff, but the proofs negative the allegation of the bill that the mortgage came to the knowledge of complainant after the sale was made. The complainant himself testified that he knew of the mortgage while his suit at law was pending, and narrated a conversation he had concerning it with one of the defendants before the judgment was obtained. Upon the question of good faith in giving and receiving the mortgage we find in the record a large amount of evidence, very contradictory in its nature. The evidence of the defendants is very circumstantial and positive that the consideration was full and bona fide, but the complainant insists that it is overcome by various circumstances of improbability and suspicion which he points out as surrounding the transaction as it is described by defendants.
The questions arising upon the record are — First, whether the alleged fraud is established; and if so, second, whether in respect of such fraud the law will grant to the complainant the relief he seeks. The second may properly be considered first, in view of the serious conflict of evidence in respect to the fraud. i
It is not denied on the part of the defendants that when complainant discovered the existence of the mortgage, some proper remedy was available to him for the purpose of testing its bona fides, and having it declared inoperative as against his judgment if he could establish the fraud. The steps usually taken in such cases are, first to levy the execution, and then file a bill in aid. Williams v. Hubbard 1 Mich. 446; Pashby v. Mandigo 42 Mich. 172; Pursel v. Armstrong 37 Mich. 326; Cole v. Tyler 65 N. Y. 73; Hecht v. Koegel 25 N. J. Eq. 135; Lewis v. Lanphere 79 Ill. 187; Wallace v. Treakle 27 Grat. 479; Lindley v. Cross 31 Ind. 106. A decree for complainant on such a bill would have relieved the title of the cloud which the recorded mortgage cast upon it, and the sheriff would then have been able to offer an unencumbered title to purchasers. Defendants-insist that this was the only course open to complainant, and that he was not at liberty to have the land sold in its apparently encumbered condition, and file a bill to set aside the-encumbrance afterwards.
The point has never before been distinctly presented in this State, though since the decision in Cleland v. Taylor 3 Mich. 202, it has perhaps been assumed that the right to question the bona fides of any conveyance by the judgment debtor was. as much available to the creditor after he had caused the land to be sold on execution and become the purchaser, as it was before. In that case the debtor had made an absolute conveyance, and the creditor, without proceeding to have the conveyance set aside, had become purchaser at the execution sale, and then brought ejectment. The defendant in ejectment questioned the right to inquire into the fraud in a court of law for the purpose of avoiding the deed; but the court, citing and relying upon Jackson v. Myers 18 Johns. 425 ; Jackson v. Parker 9 Cow. 73; Jackson v. Timmerman 7 Wend. 436, and 12 Wend. 299, and Stephens v. Swialavr 1 Hill 143, decided that it was as competent to set aside the fraudulent deed by suit at law as by bill in equity, and that ejectment by the purchaser at the ■execution sale was a suitable proceeding for the purpose. There are numerous decisions In other states to the same •effect, and we do not question their authority.
But the case of Cleland v. Taylor, and the others referred ho, have little analogy to this. In those cases the judgment ■debtor had conveyed away his whole interest, and any offer to sell on an execution against him necessarily attacked his conveyance. The judgment debtor would understand this, and his grantee would understand it and take his measures accordingly. So would all persons who should be inclined to become bidders at the sale understand it, and all would stand on an equality with the judgment creditor in making bids. No doubt it would be proper for the sheriff expressly to give notice at the sale that the validity of the debtor’s conveyance was disputed, but as the offer to sell would be idle and meaningless if the conveyance was not contested, .any such notice would obviously be unimportant.
In this case the situation was altogether different. The judgment debtor had only mortgaged his lands, and an interest remained in him which was subject to execution sale without questioning the mortgage. There is no doubt the judgment creditor might proceed to have this interest sold, and if he might also sell the complete title with the right to have the mortgage annulled afterwards, we must see whether he did the one or the other in this instance. On this point the bill is silent, but the silence itself seems to us altogether conclusive against the complainant’s ease. It does not appear by the bill that the sheriff in any of his action questioned the validity of the mortgage; it does not appear that he offered to sell anything beyond the judgment debtor’s apparent interest in the land; it does not appear that at the time of the sale anything was said or done that would have apprised Francis Huggard, the mortgagee, that the right to contest the mortgage was involved in the sale, or that would have given one coming there in the character of bidder to understand that something besides the equity of redemption was being sold. A stranger to the judgment purchasing under such circumstances would have purchased the equity of redemption only, for he would have bid for nothing else, and would have offered and paid only what he considered the equity of redemption worth to him.
It cannot plausibly be claimed that the law will suffer the judgment creditor to occupy any more favorable position as bidder at his sale than do all other persons. Judicial sales are required to be public, for the purpose of inviting full and free competition, with the primary object of producing for the benefit of parties concerned as large a price as public biddings can secure for them. A secondary object is to give all who may desire the property an equal opportunity to compete for it. But full and free competition implies that all parties have equal knowledge of the state of the title; and the policy of the law is defeated if some one party may bid with such advantages as render competition impossible. Ledyard v. Phillips 32 Mich. 13.
But nothing can be plainer than that, if the judgment creditor could bid with the secret assurance that he was to have an unencumbered title, when others must suppose they were buying subject to the mortgage, this assurance gave him an advantage in bidding to the full amount of the mortgage, and practically put competition entirely out of the question. Not only would this be unfair to other bidders, and for that reason inadmissible, but it would be particularly unfair to the mortgagee. When the sale appears to be of the equity of redemption only, the mortgagee has no occasion to trouble his mind about it; but if he were distinctly notified that it was made in hostility to his mortgage, he might, even if conscious of his good faith, prefer to-redeem rather than encounter the risks of litigation. This would be his legal right and it cannot lawfully be taken from him through a secret understanding between the officer and the creditor of which he has neither actual nor implied notice. It is true that if the defendant FrancisITuggard has knowingly accepted a fraudulent mortgage; and becomes a loser thereby, he is entitled to no sympathy ;■ but even voluntary fraud does not put one’s interests out of the protection of the law, or entitle the jaarty defrauded to confiscate them. A fraudulent conveyance is good as between the parties; Cleland v. Taylor 3 Mich. 203 ; Millar v. Babcock 29 Mich. 526 ; McMaster v. Campbell 41 Mich. 513; and even creditors are not permitted to assail it. except by judgment and execution. Fox v. Willis 1 Mich. 321. And there may be equities between the parties which, will support a mortgage, void as to creditors, when the creditors do not attack it by proper proceedings.
While therefore the complainant had an undoubted right, to have the bona fides of the mortgage tested before sale, there can be no equity in permitting him to purchase the-land apparently subject to the mortgage, and then to have-its lien annulled afterwards. He has a right to reach his-debtor’s property, and have it sold for what it will bring at a fair and open sale; but he has no claim to speculate out of his debtor’s fraud, and by using the mortgage to keep-others from competing, obtain the property for so much less-than its value. A purchase under such circumstances must, be held to be, what it appeared to be at the sale, a purchase-subject to the mortgage.
These views render the question of fraud in taking the-mortgage unimportant. The decree so far as it directed a. release of the mortgage is erroneous and must be reversed with costs of this court. As the releases by John to FrancisHuggard were subsequent to the levy of the attachment on the lands, they could not have affected complainant’s right to redeem from the mortgage, and a declaration of their invalidity seems therefore unimportant. Complainant can, however, if he deems it material, embody in the decree a provision that the releases are inoperative as against his right to redeem.
The other Justices concurred. | [
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Cooley, J.
This case originated in justice’s court, and was removed to the circuit court by certiorari. Hicks was plaintiff in the justice’s court, and counted upon the conversion of a chattel note which was payable in cedar posts. In justice’s court he recovered judgment which was reversed in the circuit court.
The sole questions which we find to be open to us on this record are — First, whether such a note is the subject of conversion; and second, if so, whether there was in the case any evidence tending to show a conversion. On both these questions the case is with the plaintiff.
A chattel note in this State is the subject of transfer, and suit may be brought upon it in the name of the assignee. Oomp. L. § 5778. As respects this action, therefore, it does not differ from a promissory note; and the right to bring trover for a promissory note, is unquestionable. Bose v. Lewis 10 Mich. 483. The evidence of conversion in this case was that the note was left with Lyle, together with other papers belonging to different persons, to be delivered to the several persons owning them, and that the maker of this note, by means of the false statement that he had paid it up with the exception of two dollars, induced Lyle to give it up for that sum, and immediately destroyed it. The maker of the note admitted that his statement was false, but he added that Lyle knew it at the time. It is probable • this was false, but we do not weigh testimony or judge of its truth. There was certainly evidence tending to show that Lyle delivered the note to the maker for destruction without any authority therefor; and this was evidence of a conversion.
The judgment of the circuit court must be reversed with costs of both courts and that of the justice affirmed.
The other Justices concurred. | [
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Per Curiam.
The office in question in this case is that of alderman of the city of Detroit. The question is whether this court can review the decision of the council in determining, upon the facts, that the respondent was elected. On a similar case we have held that we have no power to interfere. People v. FitzGerald 41 Mich. 2. | [
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Marston, C. J.
The complainant seeks to have a deed executed by her father in 1869 to the defendant set aside because of the incompetency of the grantor at the time of executing the instrument.
In 1874 complainant’s father conveyed a certain other description of land to another son, William Dunn, and the same year a third piece of land to his son Michael Dunn. Separate bills were filed against each of these parties to have these deeds set aside and for the same reason, and in each case a decree was rendered in favor of complainant, from which appeals were taken by the defendant in each case.
The cases were heard together upon pleadings and proofs. A large number of witnesses were examined in favor of the complainant, and the evidence given by them tended very strongly to show that the grantor, now deceased, was at the time of executing the conveyances in question incompetent and not capable of doing any business. On the part and behalf of defendants a still larger number of witnesses were called who, many of them having had equal opportunities with those called by complainant, agree in saying that at the time these several instruments were executed the grantor was fully capable and competent to do business, and they testify to having seen and had conversations with him, and some of them to doing business with him.
In my opinion the weight of the testimony is in fayor of the grantor’s competency and the validity of the conveyances. The burthen of proving incompetency is upon the complainant, and if the case was left in doubt, she must fail, as conveyances, when made and acted upon, should not be set aside upon slight and uncertain evidence.
I am of opinion that the decrees in the court below should be reversed, and a decree entered in each case, dismissing the bill of complaint with costs.
The other Justices concurred. | [
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Marston, C. J.
¥e are of opinion that the circuit judge should have settled a case for review in this court, but as he has since the answer was filed resigned, the writ as prayed for cannot be issued. The relator should apply to the present circuit judge for relief, who undoubtedly would grant a new trial, if upon examination he became satisfied that justice would be advanced thereby.
The other Justices concurred. | [
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Cooley, J.
In the circuit court the judge directed the jury to return a verdict for the plaintiff; and the writ of ■error raises the question whether he could rightfully do this on the ease as it stood.
The respondent in the circuit court was the estate of Albert Staley. The claimant was Sarah M. Durfee, as administratrix on the estate of James F. Durfee, deceased. The claim was made upon a bond, which, with the justification of sureties and approval of the probate judge, is given in the margin. No question is made that the jurisdictional facts essential to the giving of a valid bond existed, bnt it was denied that the bond in controversy was ever so executed as to make it a binding obligation of Staley.
It will be observed that Solomon Kittridge is named in the bond as one of the sureties, but he does not sign it. It must be assumed that the other sureties when they signed contemplated that he would join in the execution; and the absence of his name makes it incumbent upon the claimant to give some explanation before she can be in position to demand judgment against Staley and Savage. Johnston v. Kimball 39 Mich. 187; Hall v. Parker id. 287. But Savage denied under oath the execution of the bond by himself, and gave strong evidence tending to show that his alleged signature was a forgery and the pretended justification a. fraud. This showing added to the necessity that the claimant should give such evidence as should affirmatively establish the fact that Staley signed and delivered the bond with full knowledge of all the. facts.
The claimant undertook to give such evidence, and we take from the brief of her counsel a statement of what is supposed to have been shown.
Tbe bond was drawn by it. P. Eldridge, wbo was attorney for Gardner M. Durfee in tbe probate appeal. Durfee signed it Saturday evening, October 27, 1877. The next day it was taken to Staley’s bouse and signed by bim. In tbe subsequent proceedings Staley appears as tbe actor. Kittridge was at Staley’s bouse that forenoon, but refused to sign tbe bond. Staley sent for Savage, and Savage signed it, on being assured by Staley that tbe bond was bad and that be would protect Savage against all barm. Staley afterwards got Abram Maxon to sign tbe bond as a witness, and then went without being accompanied by Savage to the bouse of Hart, tbe justice, and induced bim to sign tbe certificate of justification. Tbe next day tbe bond was sent to the county seat and delivered to tbe judge of probate.
The most of these facts tbe claimant insists are entirely undisputed on tbe evidence; and she claims that they establish beyond question tbe liabibty of Staley on tbe bond, and that tbe judge was at liberty to so instruct the jury. But tbe difficulty is that tbe facts were not conceded or beyond dispute: there was evidence of them which probably ought to have satisfied any one to whom it was addressed; but evidence is for tbe jury, and the trial judge cannot draw conclusions for them. It is said that on some points there was no evidence of a conflicting nature; but that does not aid tbe claimant. A jury may disbelieve tbe most positive evidence, even when it stands uncontradicted; and tbe judge cannot take from them their right of judgment. If they return what be thinks is a perverse verdict, be may set it aside and order a new trial; but be cannot take upon himself their functions as was done here.
Tbe judgment must be reversed, with costs, and a new trial ordered.
Tbe other Justices concurred.
State of Michigan, County of Macomb, —ss. :
In probate court for said county.
In the Matter oe the Estate oe James S. Dureee, deceased.
Know all men by these presents, that we, Gardner M. Durfee, as principal, and Albert Staley, and Solomon Kittridge, and Hiram Savage, as sureties, are held and firmly bound unto Sarah Durfee, administratrix of the estate of James S. Durfee, late of said county, deceased, in the sum of four hundred dollars, lawful money of the United States of America, to be paid to the said Sarah Durfee, administratrix of the estate of said James S. Durfee, deceased, or to her certain attorney, heirs, executors or assigns, well and truly to be made, we bind ourselves, our heirs, executors and administrators, each and every of them, firmly by these presents.
Sealed with our seals, and dated the 27th day of Oct., A. D. 1877.
The condition of this obligation is such, that whereas, the said Gardner M. Durfee has made and filed his appeal to the circuit court for the county of Macomb, and State of Michigan, from the order and decree made by the judge of probate, for said county, on the 29th day of November, 1876, and recorded in the probate office of said county, on the same day, admitting to probate one certain instrument, dated the 5th day of September, 1868, one codicil dated the 5th day of September, 1868, and one codicil dated the 16th day of September, 1874, and purporting to have been executed by said deceased, in his life-time, and for the last will and testament of said deceased, and from the decree and order of the judge of probate for said county, made the 8th day of January, 1877, admitting said will, and granting letters of administration of the estate of said deceased, with a copy of said will annexed, to Sarah Durfee, widow of said deceased, as appears by the orders and decrees, of record in said court.
Now, then, if the said Gardner M. Durfee, appellant, shall diligently prosecute said appeal, and shall pay all damages and costs that shall be awarded against Mm in case he shall fail to obtain a reversal of said decree and orders so appealed from, the preceding obligation to be void and of no effect; otherwise to remain in full force and virtue.
Gardner M. Durfee. Seal.
Albert Stalev. Seal.
Hiram Savage. Seal.
In presence of Abram Maxson.
State of Michigan, County of St. Claw, — ss.:
On tMs 27th day of October, 1877, before me, a justice of the peace in and for said county, personally came Albert Staley and Hiram Savage, the sureties named in and who executed the foregoing bond, and being by me duly sworn depose and, each one for himself, says that he is the owner, individually, of real and personal estate of the value of four hundred dollars and over, situate in the county of St. Clair, and State aforesaid, over and above all debts and liabilities they are respectively liable for and over and above all exemptions they are entitled to claim under the laws of said State. Moses Hart,
Justice of the Peace of said county.
County of Macomb, — ss.:
At a session of the probate court for the county of Macomb, holden at the probate office on Tuesday, the 30th day of October, 1877, I have approved of the foregoing bond, and order the same to be filed in the records of tMs court. James B. Eldridge,
Judge of Probate. | [
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] |
Cooley, J.
Miller, the defendant in error, had a contingent claim against the heirs of Matilda V. Chapaton, which became absolute in his favor in January, 1880, when he was compelled to pay on their behalf the sum of $1105.95. When they should pay this, the heirs claimed that the estate of Theodore J. Campau was bound to indemnify them; and in the preceding November they presented to the probate court a petition that their claim to indemnification be allowed as a contingent claim against the Campau estate; The probate court permitted the claim to be referred to commissioners, who reported upon it as follows: “ Amount of their contingent claim as per their petition to which we hereby refer, $700, and interest from October 4th, 1872.” "Whether the commissioners reported the evidence given in favor of the claim we are not informed.
This action of the commissioners appears to have been considered an allowance of the claim contingently, so that when the liability of the Ohapaton heirs' became definitely fixed afterwards they were entitled on the basis of it to indemnity. Acting on this supposition Miller, instead of calling upon the Ohapaton heirs to pay him what he had been compelled to pay in their interest, filed his claim •directly against the Oampau estate, asking that he be subrogated as against that estate to the rights of the Ohapaton heirs, and that the sum he had paid be allowed to him. The circuit court on an appeal being taken to it, made the allowance, and the case comes before us on a writ of error.
The case is a very proper one for subrogation, inasmuch as it saves for the Oampau estate the cost of one suit if its liability is finally established. But in respect to the proofs there are some errors in this case which render it impossible to sustain the order of the circuit court. In that court the liability of the Oampau estate was not proved otherwise than by putting in evidence the action of the commissioners upon the contingent claim. Unless therefore that action was an, allowance of the claim contingently, it has never been judicially determined that-the Oampau estate is liable .at all.
It is manifest, we think, that the parties have overlooked the case of Buchoz v. Pray 36 Mich. 429, in which pains were taken to show that commissioners on the estates of deceased persons have no power to allow contingent claims. Their authority is limited to receiving and reporting the evidence; and the case then stands until the claim is supposed to have become absolute, when for the first time it may be definitely acted upon and adjudicated. It was therefore not «sufficient for'Miller to show that the Ohapaton heirs had become liable to him: he must go farther and put in such evidence as will make out their right to indemnity.
The order of the circuit court must be reversed with costs, and the case remanded for a new trial.
The other Justices concurred. | [
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Cooley, J.
The charge on which the defendant has been convicted is of 'having, in the month of May, 1879, feloniously taken and enticed one Jennie. L. Hendricks, a female under the age of sixteen years, from and without the consent of James Barry, her guardian, who had the legal charge and custody of her person. In different counts of the information his intent is charged to have been for the purpose of prostitution, of concubinage and of marriage. The case comes up for review on exceptions before sentence.
1. The first exception is to the action of the court in exerting a juror. The record states that one John Blake, having the qualifications of a juror of said county, was summoned as a talesman, “to whom no challenge or objection was made by either party, whereupon said Blake stated he was in attendance at said court as a witness in a case yet to be tried at said term, and the next case on call,” whereupon the judge excused him and the defendant excepted. The exception has no merit. Before a juror has been sworn in the case, the judge may excuse him for any reason personal to the juror which seems to the judge sufficient. This was recognized in Atlas Mining Co. v. Johnston 23 Mich. 36, but it needs no authority.
2. The prosecution was also permitted to challenge peremptorily a person who had once been placed in the jury-box, both parties saying they were satisfied with him. lie had not been sworn, and there is no doubt of the right to make the challenge.' It was said on behalf of the defendant at the argument that the defendant had at the time exhausted his peremptory challenges. Whether that would make any difference we need not consider, as the record does not show the fact.
3. The principal exceptions relate to the right of Barry to be regarded as the legal guardian of the person of the girl for the purposes of the'proseeution. The evidence tended to show that the father of the girl was dead or supposed to be dead; that the mother was living with another man as his wife, but whether legally married to him did not appear; that the girl was living in Barry’s family; and that on November 29,1818, on the petition of the girl, who was then over fourteen years of age, the judge of probate of Calhoun county appointed Barry to be her guardian. In the petition Jennie states that she is possessed of no estate, “but that it is necessary a guardian should be appointed for said minor for the purpose of taking care of the interest of said minor in her person.” The order of appointment was the usual order which is made for the guardianship of property, and it is objected that it gave no legal control of the person. But the fact that Jennie lived in the family of Barry after the appointment with the consent or at least with the knowledge and without the objection of the mother was proved, and that she continued there until the time of the alleged offense. The necessaries of life were supplied to her in the mean time by Barry, as they were to other members of his family.
The circuit judge charged the jury that the letters of guardianship did not make Barry the guardian of the girl’s person, but that they were properly in the case for the bearing they might have on the actual custody. But he further instructed them that the parent having a right to the custody of a child may delegate the authority; that this right was primarily in the father, but in his absence belonged to the mother, who may if she see fit give the custody to a third person for a longer or shorter period, resuming the control at will; that it was not necessary in this ease that Barry’s right should be of that character that the mother would be precluded from resuming her control; it' was enough if, while the girl lived at Barry’s, the mother had consented to his exercising the same control over her in respect to. her liberty that the mother herself could exercise for the time being. If she had done so, and had not revoked that permission, then Barry had that right to the custody and control which in contemplation of law amounts to a legal charge of the girl.
We fail to discover any just ground of objection to this instruction.' The statute provides that “ Every person who shall take or entice away any female under the age of sixteen years, from her father, mother, guardian, or other person having the legal charge of her person, without their consent, either for the purpose of prostitution, concubinage, or marriage, shall be punished,” etc. This plainly contemplates that there may be a legal charge in one who is neither parent nor guardian, but who under the ’facts of the case •stands in the place of one or the other. It is the actual state of things and not the existence of a legal relation that the statute contemplates; and an orphan adopted into a family without legal guardianship, or a girl abandoned by her parents and given a home by charitable persons, is as much within the reason and intent of the statute as any other female. The protection was meant to be general; and presumptively every female within the age indicated, who has not already abandoned herself to a depraved life, is in the legal charge of some one. Barry, under the facts shown, had unquestionably the legal charge of this girl; and neither the court nor the jury erred in the conclusions arrived at.
4. It was also insisted that there was no evidence to go to the jury tending to show that the defendant enticed the woman from Barry’s custody, or that if he did, his purpose was either prostitution, concubinage or marriage. The facts were that defendant induced a brother of the girl to persuade her to. meet him at a place away from Barry’s house, and •that after the interview which there took place the girl went •off at once to Canada. How far, if at all, this was induced by the persuasions of the defendant was left to the jury on the facts. As throwing light upon the intent the prosecution was allowed to show that the girl had previously lived with defendant in illicit relations in Canada. The defendant claimed that the evidence showed the girl herself proposed the action which she took, and that the defendant in seeking for the interview had no other motive than to explain to her his conduct and motives in another transaction in respect to which it was expected her evidence was to be used against him. The circuit court charged the jury that before they could convict they must be satisfied the defendant enticed the girl away. “ It may have been done by open solicitation to go for one purpose or for another purpose. It may have been done by designedly portraying to her her situation, and the result of going back to Mr. Barry, or the place from which she came, in such a light as to lead her to go to escape a return. If this were done with the design of getting her to go, it is an enticing, although the defendant may not have asked her to go, and apparently only consented to go with her; but if he had no design to get her to go away, and did nothing to bring about such an end, it would not be an enticing, and the defendant could not be convicted.”
This instruction was correct. A man cannot be suffered to evade the statute by artfully avoiding a direct proposition that she go off with him, when his conduct is equivalent to such a proposition, and not only suggests it to the girl, but is calculated and designed to induce her to go. The judge also instructed the jury that the previous relations of the parties might be considered as bearing upon the intent of the defendant in enticing the girl away. This also was correct. The previous relations of the parties were not conclusive, but they were very significant. People v. Jenness 5 Mich. 305. It may be added, however, that the evidence of subsequent conduct was so conclusive of the unlawful intent that the proof of previous misconduct might well have been dispensed with.
Other rulings of the court were criticised on the argument, but we see no occasion to discuss them. No error in law was committed, and the record gives no indication of any. want of fairness or impartiality on the part of either court or jury.
It must be certified to the circuit court that judgment should be rendered on the verdict.
The other Justices concurred. | [
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Graves, J.
This is a cause in chancery. The hearing below was on demurrer and the bill was dismissed for want of equity. The suit is a manifest experiment and the matters relied on to bring a court of equity to assume cognizance are so peculiar that no abridgement can succeed in presenting the case in the exact light in which it appears in the record. But the bill is too long to be repeated and a brief refei’ence must suffice.
Complainant alleges his appointment as administrator in 1873, with the approbation of the widow and heirs, and the various steps taken to settle the estate. That certain lands were sold by him under license of the probate court and certain personal assets disposed of; but that certain personal estate and one hundred and fifty-seven acres of land remained. That the widow and children desired that no more property should be disposed of; although a claim allowed by the commissioners in favor of John Schneider and amounting to $1336.62 was still unpaid. That in tin's state of things it was agreed between complainant and the judge of probate and the widow and children that no more of the estate should be sold, and that the probate court should pass the administration account of complainant and .assign the property to the widow and heirs, and that the same was done in December, 1875. That by the advice of the judge of probate complainant turned over the property to the widow and heirs, and did so with the full belief on his part “ that said widow and the heirs at law would take care of the balance of the debts and especially this debt to John Schneider (which in fact had not been paid) as they agreed to do and as (complainant) is advised and believes they were equitably bound to do.” That in October, 1878, he was cited to show cause why Schneider’s claim had not been paid, and, on the hearing, the present judge of probate held that the estate could not be opened and that complainant “must go into the court of chancery to get his claims.” That he then paid the Schneider claim and proceeded to institute this suit in order to obtain indemnity out of the estate or against the widow and heirs.
It is scarcely necessary to say more than that the statements in the bill do not amount to a cause of action in chancery. Complainant’s counsel have not succeeded in suggesting any head of equity to which it would be possible to .assign the case which is set out, and we are satisfied there is none. According to the explanation given by complainant there is no doubt that the judge of probate might have •opened the administration at the time complainant was cited for not having paid the Schneider claim. Yet as he did not press his application, and by appeal, if necessary, insist on the remedy which was then practicable, but proceeded to pay and satisfy the claim against the estate out of his own, pocket, and thereby altered his position and assumed a new character, namely, that of a personal creditor, or a mere volunteer, I am not satisfied that any remedy 'remains. In any event it is quite certain that there is no ground for equitable interference on the facts in this record.
The decree must be affirmed with costs.
Marston, C. J. and Campbell, J. concurred.
Coolev, J.
If the complainant finds himself in such a position that he must lose the large sum he paid in satisfaction of the claim of John Schneider, it must be attributed to his disregard of the law. It often happens that parties are wronged under such circumstances, but if they will not regard the law, they cannot be protected in their interests by it.
Complainant shows by his bill that as administrator of John F. Schneider he had in his hands abundant means to pay all the debts. Instead of paying John Schneider’s debt, however, which had been proved and allowed, he saw fit to enter into some understanding with the widow and heirs whereby he rendered a final "account which assumed that all the debts were paid, and obtained his final discharge, on turning over the property to the family. A part of the heirs were minors, and of course no understanding they may have entered into could be binding upon them. But of course the whole arrangement was unwarranted and illegal, and the natural result followed that when John Schneider called for the payment of his claim the court cited complainant to show cause why he had not paid it.
On complainant paying this claim, in response to this citation, I should be inclined to think he might stand in the shoes of John Schneider, and claim- the benefit of such remedies as were open to him, were it not for one fact which is stated by him, and which apparently deprives the case of all equity. It appears by the bill that complainant sold real estate subject to existing mortgages, and took for $3500, the purchase price, a mortgage on the’land sold. What possible-excuse he could have had for thus exposing the whole purchase price to the risks of the prior mortgages we are not informed: the judge of probate must have been deceived in relation to it or he would never have confirmed the sale. The bill avers that the mortgage proved to be worthless; so that whatever might have been realized to the estate by a proper sale was lost' to it.' The bill therefore on its face-shows culpable disregard of duty, whereby a considerable sum was, lost to the estate; and as this is more than the-claim complainant paid for the estate, he could, under no-circumstances, be entitled to relief on the case made. It seems probable from the statements in the bill that all par ties concerned participated in the disregard of law; and if so, they should not complain if the law leaves them where they have put themselves. It may be that the widow and heirs ought to save complainant harmless, but there is, as I think, no law compelling it.
The other Justices concurred. | [
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] |
Campbell, J.
Complainant having a purchase-money mortgage on lands in Ionia county conveyed to Nickerson - in 1867, and having no personal obligation secured by it, proceeded in chancery to foreclose, and obtained a decree in March, 1879, for $4716.51.' He had begun to advertise, when Nickerson proposed to reconvey the property in satisfaction of the decree. This reconveyance was made by quitclaim deed on the 15th of May, 1880, too -late for record on that day. On the same day, a little while before this deed was delivered, the defendant Alderman put on record a mortgage from Nickerson for the sum of $1800. Corey executed a discharge of his mortgage at the time when the deed was made.
Corey now files his bill to set aside this discharge and have his decree and mortgage reinstated, in preference to' the Alderman mortgage. He claims that this latter was exeeuted.and recorded fraudulently, in order to cheat him out of his claim, by conspiracy between Alderman and Nickerson. The circuit court' gave the relief prayed, and defendants appeal.
The facts in the case make it clear that either complainant was trying to get a conveyance recorded first in order to> defeat Alderman’s mortgage, or that the latter was trying to-defraud complainant. The land is not worth enough to pay complainant in full.
Ve have no doubt the decree below was founded on the true state ,of facts. It' appears that complainant, immediately before exchanging papers, had carefully examined the records, and there is no possible motive which can be supported by the evidence, for his running any risks whatever as to priority. In the conflict of testimony we think his version is correct, and that the defendants got np the Aider-man mortgage and procured its registry for the purpose of ■destroying his priority of title. It would be of little use, on a mere question of fact, to enlarge upon the details. ¥e rare satisfied of the fraud.
The court below might properly have set aside the Aider-man mortgage and allowed the deed to stand. Complainant ■ought not to have been put to the expense of further advertising and sale. As he has not appealed the decree will have to be affirmed as it stands, with costs of both courts ■and $15 damages for delay.
The other Justices concurred. | [
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] |
Campbell, J.
Plaintiff sued defendant for not delivering part of a quantity of logs which the company had in charge to deliver at White Lake, after running them down from their place of reception on White river. As the case was passed upon by the jury they necessarily found that there had been no fault or negligence in defendant, and the only question before us is whether defendant was a common carrier, and liable at all events, except for the risks of a public enemy or inevitable casualty.
The duty undertaken by the defendant was in accordance with its stautory power to drive, run, raft and boom logs in White river for any person having logs to float down the stream, and the case shows that the work of all kinds was done at regular rates, and for all alike.
The dispute, therefore, is narrowed down to the single question whether the handling of logs, as managed by the log-driving and booming companies, is properly to be treated as common carriage.
It is admitted to be like common carriage in the universality of the duty, and by statute a lien is given for charges, not only on the specific logs for charges on each, but on a part to secure the whole charges. Comp. L.' § 2788. The statute moreover gives a special remedy to enforce the lien. It also contemplates, by the section just referred to, that it is only in the absence of express contract that a uniform rate is provided for.
These rights resemble in important respects the rights of common carriers. But the statute contains no declaration' that the companies shall be so treated, and the whole matter is left to be determined by legal analogies.
When we look at the business done, it will be found to resemble in some respects the business of carriage, and in some respects it is like different business, while in most things it is peculiar and subject to its own conditions. Tt has one peculiarity in which, it differs entirely from common carriage, which was held by this court in Fitch v. Newberry, 1 Doug. 1, to create no rights against property not voluntarily entrusted to the carrier.' One important part of the compensated business of these companies includes the temporary control of logs interfering with the free running of the body of logs in the stream. Comp. L. § 2793.
The peculiarity which is most apparent is that there is no carriage whatever either in vehicles or by application of motive power, unless in some emergency. The logs of various owners are usually, as they were in the present case, set floating promiscuously, and only sorted and separated when the run is as to some portion at least substantially completed. The logs are floated down the streams by the force of the current, sometimes aided by dams and flooding, and if it were not for the risk of jams, no interference to any great extent would be needed. The chief work of the companies when running and driving logs is to see that they are kept in the way of floating down stream, and not allowed to accumulate in jams and obstruct the floatage. And it is to prevent this that the compulsory powers are exercised.
It is manifest that this kind of service differs very much from the possession and transfer of articles which are always in custody and which could not be moved except by the vehicles of the carrier. Among the somewhat fanciful reasons given for the peculiar duties and responsibilities of' common carriers, we cannot always determine how far any of them actually operated in shaping the legal rules. But it is dangerous to run after supposed analogies and extend peculiar rules to new cases substantially different from the old. Courts have no doubt settled the law of common carriers as applying to all classes of carriage, however free from most of the special risks and temptations which were relied on to uphold the ancient doctrines. But when it is sought to extend the rules outside of the carrying business altogether, we should not do this unless on very plain reasons of fitness.
Taking heed to give no excessive force to resemblances, we may find, nevertheless, some other duties which are at least quite as analogous as carriage. Drovers — or as the common law calls them, agisters — perform functions not unlike those of log drivers. Their animals move .themselves, while logs are moved by the stream, and the beasts have a species of intelligence, while logs and currents move unconsciously. Net the chief business of the men in charge of both is to prevent the property from straying or stopping, and to guide it where it belongs. No one regards drovers as carriers. Angelí on Carriers, §§ 24, 52; Story on Bailments, § 443. The entire absence of any motive power, and the function of guiding and regulating things which move themselves or are moved by some independent force, make it impossible to treat these classes of business as carriage in fact, and it is difficult to see how, if involving no carriage, there is any propriety in calling them carriage.
There is always hardship and often wrong in holding persons liable for what they have done their best to .avoid. While we are bound to respect established rules, we cannot wisely extend them beyond their reasonable application. We think the court below decided correctly that the extreme .liabilities of common carriers did not apply to defendants.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Marston, C. J.
It clearly appears in this case that under and by virtue of the bankruptcy proceedings all the property, of which the organ in controversy was a part, of Roe Stephens passed to and became vested in Barrington, who was then entitled to the possession of the same. There was no evidence given on the trial below tending to show that Barrington had parted with the title he thus acquired in this organ, or that he had done or permitted anything to be done which would revest title thereto in Stephens, or that would tend to show that Stephens had any title thereto or interest therein subject to levy and sale under an execution at the time of the levy and sale by the sheriff.
.The court committed no error and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
On tbe fourteenth day of January, 1846, Amos Rathbun sold and conveyed to "William H. McConnell a piece of land in the village — now city — of Grand Rapids, described in the deed as “ a part of lot one, section seven of Campau’s plat of said village, bounded as follows: Commencing at a point on Monroe street twenty-four and a half
feet from the corner of Waterloo and Monroe streets; thence along the line of Monroe street to the south-easterly line of said lot one; thence along said line, being at right angles with Monroe street, eighty-two feet; thence on a line jparallel with Monroe street to a point within twenty-four and a half feet of Waterloo street, and thence on a line parallel with Waterloo street to the place of beginning; also the right of way of an alley 10 feet wide on rear end of said eighty-two feet.” Rathbun had previously owned the lot twenty-four and a half feet by eighty-two feet on Waterloo street, and had conveyed the same to one Winsor, who had erected a building thereon covering the whole, which was known as Faneuil Hall. He also at the time of conveying to McConnell owned .the land in the rear of the lots conveyed to AVinsor and McConnell.
McConnell, after making his purchase, erected two stores; which covered the front of his lot and extended back seventy-five feet. These were soon occupied for mercantile purposes, and have been ever since. For access to the rear of these he used a way then open and in use, in the rear of Faneuil Hall and his own lot from AVaterloo street, and assumed that there was a lane or alley there ten feet in width for the whole distance. This is the only mode of access he had to the rear of his stores with teams. There is some evidence in the case that his right to pass to Waterloo street in the rear of Faneuil Hall was soon disputed, but his use and that of his grantee was not interrupted before 1870. McConnell conveyed his lot to Margaret R. Somers, now Margaret R. McConnell, in 1849, and she lias ever since been the owner. Subsequently Amos Rathbun conveyed the land in the rear to Emily Rathbun, and in 1870 she or parties claiming under her commenced obstructing the passage-way at the line of Waterloo street, and threatened entirely to-close up the same with buildings, and Margaret McConnell filed the bill in this case. The object of the bill is to-establish her right to the alley, and to obtain a perpetual injunction against obstruction.
The bill does not claim a right to the easement by prescription, but insists upon it under the grant. Defendants-claim that the grant is of the use of an alley whose length was to be measured by the width of the lot conveyed; and a plausible argument to this effect is made on the wording-of the deed. But all grants must be construed reasonably, and in the light of the surrounding circumstances. The easement granted was “a right of way of an alley”; and this ex vi termini implies, we think, a passage-way leading away from the land conveyed. It would be a misnomer to call a mere open space ten feet wide in the rear of this land, shut in on all other sides by lands over which the grantee had no right to pass, either a right of way or an alley. It might be a convenient space to use for some purposes, but certainly not for a right of way. The suggestion that the passageway intended was merely a rear passage from one of the stores McConnell intended to erect to the other has ho plausibility. An alley for such a purpose would be of little or no value: the alley is needed for access to and from the street with teams.
But the difficulties disappear when we find that at the time a passage-way extending to Waterloo street was actually in use in the rear of Faneuil Hall, and that it has been in use ever since. The grant must be construed in the light of this fact; and this makes clear what the alley was the parties had in mind, and shows that it was one useful if not necessary to the proper and full enjoyment of the land conveyed. The subsequent continuous use of the alley for more than twenty years without interruption tends to confirm the correctness of this construction, though we do not rely upon it as essential to establish the right.
The circuit court sustained the easement, and we think correctly. Its decree must therefore be affirmed with costs.
The other Justices concurred. | [
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] |
Marston, C. J.
Two principal questions have been presented on the argument in this case. The declaration it is said is defective in not averring specifically the negligence of the defendant which caused the injury. The declaration is that at a certain time and place the defendant negligently and carelessly drove a certain locomotive upon and along the railroad up to, upon and across a certain public highway, at the crossing of the same and the said railroad, without giving the necessary statutory signals, viz., ringing a bell or sounding a whistle. Here the specific act of negligence is pointed out, and evidence was introduced tending to sustain the averment. This averment with allegation of consequental injury, in our opinion, was sufficient, and entitled the plaintiff to introduce evidence, under the plea of the defendant, in support thereof. It was the duty of' the company to at least ring a bell on approaching the highway where the injury was done, and a failure so to do would render it liable, in case any person was injured in consequence of such neglect.
It is next claimed that the facts as proven would not entitle the plaintiff to recover, because, under his own showing, he was guilty of contributory negligence.
It is conceded that the record shows but few disputed facts. If the testimony of the plaintiff, taken as a whole, fairly tended to make out a case in all its parts, then the court was right in submitting the same to the jury under proper instructions, even although the evidence on the part of the defendant may have been strong against a right to recover.
The plaintiff was a farmer, aged sixty-seven, and on the morning of July 11th started from his home, accompanied by his daughter, for Flint. He drove a spirited team of well-broken three-year-old colts, that had never been near or seen the cars. The highway as it approached the track had been cut down, leaving quite high embankments which prevented a view of the railroad track in the direction from which the locomotive approached. The plaintiff when about sixteen rods from the track stopped his team, listened and watched, and as he approached the track, the highway was narrow on account of the grade, a wagon loaded with gravel crossed the track, and the driver thereon spoke to the plaintiff, but owing in part to the latter being a little deaf, he did not hear what was said, but inferred from the motions made that a train was coming. The plaintiff could not then see the train; he spoke to his horses, and as they reached the track, or when within two rods of it, he saw the locomotive approaching about twelve rods distant. He said, “ At the first glance I made up my mind I would get across that track and I swung my whip, and they (the horses) both jumpedand while crossing the locomotive struck the hind wheels of his wagon causing the injury. The banks on the north side of the road were some twelve or fifteen feet high, and the following testimony will perhaps show as clearly as any other, the plaintiff’s view of the situation at the time and why he took the course which he did.
Question. You may state to the jury why it was when you first saw the train you didn’t hold your horses and let the train pass. Answer. It was under the impulse of the .moment the whole thing was done; had I undertaken to have held them one chance out of a hundred they might •have stood; they were a pair of three-year-old colts at the top of their mettle. Q. State why you didn’t stop your horses ? A. I was partly sure I would get under the cars if I undertook it; if the horses would whirl they could not whirl this way, (illustrating) against the bank, and if. they whirled that way (illustrating) they would throw me on the track; if I was in the same position to-day I would do the same thing. * * * Q. Did you hear any bell rung or whistle sounded before you were struck? A. No, sir. Q. ■State what effort you made to hear it ? A. I did the very best I knew how. Q. Where yoii listening for it ? A. Yes, sir. Q. State what care you exercised in looking for the train before you reached the crossing ? A. I took every care I could. Q. What did you dó ? A. I drove carefully, watching and leaning forward and looking; when I got pretty near there I saw the cars and then I made an effort to aret across.
On cross-examination he said that if his team had been steady and not afraid, so that he could have controlled them in such a place, he would have stopped and not attempted to cross on first discovering the cars. Question. The only object you had in crossing was because you thought you ■could not control the horses when the engine passed? Answer. It was because I was afraid the horses would ■throw me on the track. Q. The only reason why you undertook to cross before the engine did, was because you were fearful you could not control the colts and hold them while the engine went up the track? A. Tes, sir. Q. That is one reason? A. Tes, sir. Q. Before you raised the whip to increase the motion of your horses you saw the ■engine approaching? A. Tes, sir. Q. Tou thought by .applying the whip to the colts that you could get across the track before the engine got to you? A. Certainly. Q. 'That is what you calculated on? A. Tes sir.
• There was another road the plaintiff could have taken, ■and avoided this particular crossing, by going about a mile further; but this was the road usually taken by him, and was a public highway used as such.
The fact that the plaintiff was driving a span of colts, or that he took this road instead of another and perhaps safer •one, would not be such contributory negligence on his part as to prevent a recovery. His right to drive young horses and to travel on any public thoroughfare cannot thus be abridged. We do not say that there may not be cases, where the character of the team, and the road taken, in preference to another equally convenient or nearly so, and •safer, might not be taken into consideration by a jury with the other facts in the case, as tending to show a want of ■ordinary care. It must however be a very strong state of facts indeed, that would justify a court in taking the case from the jury. The matter should not be in doubt, and we-are not prepared to say that men of ordinary care, prudence and intelligence would have considered it dangerous to have taken the road in question with a team like the one driven by the plaintiff. From his testimony it does not appear tbat he did not exercise due care and caution in approaching the crossing, and it is only when he gets within a few feet of the railroad track and sees a train approaching and close at hand, that he can be charged with negligence in attempting to cross the track. This was the first warning or knowledge that he had that a train of cars was near, and with a high embankment on one side, and the apparent danger in attempting to turn in an opposite direction; without time for reflection or to deliberate and calculate or measure distances he had to determine his course and instaneously • make the attempt. That he was in a dangerous position, whether he stood still, attempted to turn or to cross the-track cannot be doubted; and of this he seems to have been well aware. The preservation of his life and property, we may well assume, would lead him to take what he then considered the safest course, in view of the facts and surrounding circumstances then apparent to him. A stricter rule should not be held here than in criminal cases, where-the right of one in apparent danger to act upon circumstances as they appear to him at the time is well settled, and although subsequent investigation may show that he erred, yet that alone will not make him criminally responsible. If the neglect of the company to sound a whistle when approaching the highway, permitted the plaintiff to drive into a dangerous position, under circumstances which allowed him, no time for calm reflection,, and he, acting-upon the spur of the moment, in his efforts to avoid the-danger, made a mistake, and took what subsequent cool deliberate investigation may show to have been wrong, and that some other course would have been better if not absolutely safe, yet he cannot be charged with contributory negligence because of such error of judgment under such dangerous circumstances. This is the rule in both civil and criminal cases, sustained by an abundance of authority if any indeed were needed. This case was, therefore, very properly submitted to the jury upon the facts.
We do not understand any serious objection made to the-charge of the court, touching the right of the plaintiff to recover, in case the jury found him to have been guilty of negligence, and a careful examination of the instructions given shows that no complaint could well be made thereto. The court repeatedly told the jury that the plaintiff could not recover if he was negligent — so full and explicit were the instructions upon this subject that we need not cpioteat length therefrom.
In our opinion no error was committed and the judgment: must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
The controversy in this case concerns the proper basis for estimating the tax to be annually assessed by the State authorities against the Lake Shore & Michigan Southern Railroad Company in respect to that portion of its road in the State of Michigan. Its determination involves the construction of various statutes, but especially the General Railroad Law as originally passed and subsequently revised, and the application to this company of the provisions of that law respecting taxation.
The Michigan Southern Railroad Company was originally organized under a special charter. Laws of 1846, p. 170. The company purchased of the State an uncompleted railroad, and by its charter it was provided that “ The said company shall pay to the State an annual tax of one-half of one per cent, upon the capital stock paid in, including the five hundred thousand dollars of purchase money paid, or to be paid to the State, until the first day of February, 1851, and thereafter an annual tax of three-fourths of one per cent, upon its capital stock paid in, including the five hundred thousand dollars of purchase money aforesaid, and also upon all loans made to said company, for the purpose of constructing said railroad, or purchasing, constructing, chartering or hiring of steamboats authorized by this act to be held by said company, which tax shall be paid in the last week in Januaiy in each year to the State treasurer, and the property and effects of said company, whether real, personal or mixed, shall, in consideration thereof, be exempt from all and every other tax, charge and exaction by virtue of any laws of this State now or hereafter to be in force, except penalties by this act imposed.” Sec. 31.
Afterwards, in tlie year 1855, an act was passed by the Legislature of this State “ to authorize the Michigan Southern Railroad Company to consolidate with the Northern Indiana Railroad Company.” Laws of 1855, p. 300. The latter company was at that time operating a railroad from the point where the Michigan Southern Railroad at its westerly end intersected the southern boundary of the State, to Chicago, in the State of Illinois, and the consolidation would give to the consolidated company a continuous line from the eastern boundary of this State to Chicago, and also by means of the Erie & Kalamazoo Railroad, a leased road extending from Toledo, in the State of Ohio, westerly, and connecting with the line of the Michigan Southern Railroad at Adrian, a continuous line from Toledo to Chicago. One of the provisions of the act of consolidation was that “ The said corporation so to be organized, by virtue of this act, shall continue subject to the same rate of tax as though such consolidation should not take place; and the amount of its capital and loans hereafter, upon which such taxation shall be paid, shall be such portion of the whole of its capital and loans as is actually employed in the State of Michigan, to be. ascertained on or before the first day of January in each year, by the Auditor General of this State, from the annual report of said corporation, or from such other reports on oath as he may deem necessary for such purpose, to be ordered by him from the office of such corporation.” Sec. 3.
The consolidation authorized by this act immediately took place, and the consolidated company appears to have been treated and considered as a new corporation from that time on. The same Legislature which passed this act of consolidation also passed a general law under which companies formed to construct railroads were authorized to incorporate themselves. By one of the sections of this law “ every corporation formed ” under its provisions was required to pay to the State an annual tax of one per cent, on the capital stock paid in. Comp. Laws 1857, p. 652.
The General Railroad Law was amended in 1869, by an act approved April 3d of that year, and one of the amendments changed the annual tax to “ an annual tax of one per cent, on the capital stock paid in,” and also upon all such sums of money “ as shall from time to time be invested in the original constructing and stocking, or in any new constructing or stocking of said road.” Laws 1869, p. 262. There was never any claim that up to this time the Michigan Southern & Northern Indiana Railroad Company was taxable otherwise than as provided by the charter of the' Michigan Southern Railroad Company in the section above recited, and by the act of consolidation above mentioned.
Among other provisions of the General Railroad Law of 1855 was one that “ Any railroad company in this State, forming a continuous or connected line with any other railroad company, may consolidate with such other company either in or out of this State, into a single corporation; Provided, That no such companies having parallel lines, or lines diverging and converging, but being conterminous, shall be permitted to consolidate themselves.” The act pointed out the method in which the consolidation should be effected,, and provided that when the proceedings were completed and the consolidation agreement duly filed in the office of the Secretary of State the consolidating 'corporations “ shall be merged in the new corporation provided for in such agreement, to be "known by the corporate name therein mentioned.” Laws 1855, pp. 171, 175.
After the passage of the amendatory act of 1869, and within the same year, the Michigan Southern & Northern Indiana Railroad Company entered into consolidation agreements with certain Ohio, Pennsylvania and New York corporations, whereby it was intended to form a continuous line from Ohicago to Buffalo in the State of New York, with various branches or side lines which need not be particularly mentioned. It is assumed in this case that there were statutes in the several States above named purporting to authorize such consolidation agreements, and they were carried into practical effect, and the consolidation agreements duly filed with the Secretary of State at Lansing as above provided. The consolidated company was now called the Lake Shore & Michigan Southern Railroad Company, and it paid taxes on the same basis on which they had previously been assessed against the Michigan Southern & Northern Indiana Railroad Company.
In 1871 the laws providing for the incorporation of railroad companies were revised, and the basis of taxation was essentially changed. 'Every company was thereby required to make to the Auditor General, an annual report which, among other things, should show the gross receipts of the company for the preceding year, and it was further required to pay to the State Treasurer an annual tax computed as follows: Upon the gross receipts to the amount of $3000 or less per mile of road regularly operated, one and one-half per cent; upon the gross receipts in excess of $3000 and less than $6000 per mile, two per cent.; and upon the gross income in excess of $6000 per mile three per cent. Laws of 1871, p. 354. No tax has ever been assessed against the Lake Shore & Michigan Southern Railroad under this law, or under the law next mentioned.
In 1873 the General Railroad Law of 1871 was revised and the basis of taxation again changed. The railroad companies “ formed under the provisions ” of the revising act were required to pay an annual tax upon all gross receipts not exceeding $4000 per mile of road actually and regularly operated, two per cent.; and upon gross receipts in excess of $4000 per mile, three per cent. But it was provided that “ when a railroad lies partly within and partly without this State, there shall be paid such portion of the tax herein imposed as the length of the operated road lying within this State bears to the whole length of the operated portion thereof.” Laws 1873, p. 532.
It is now urged on behalf of the relator that ever since the consolidation of the several companies heretofore mentioned into the Lake Shore & Michigan Southern Railroad Company, the consolidated company has been liable to taxation under the several railroad laws, and that the State authorities have erred in assessing taxes as provided by the charter of the Michigan Southern Eailroad Company, or on any other basis than that from time to time prescribed by the General Eailroad Law as amended and revised. And the purpose of this application is to compel the respondent, who is Auditor General of the State, to assess and collect of the Lake Shore & Michigan Southern Eailroad Company a tax under this act of 1813 on the computation made for the purpose by the Commissioner of Eailroads.
The capital stock paid in of the Lake Shore & Michigan Southern Eailroad Company is reported at $50,000,000, and the State tax upon the company, had it been assessed according to the terms of the General Eailroad Law as it stood up to 1869, would have been $500,000 annually. This is about nine times the amount now claimed as annually assessable against the company under the General Eailroad Law as it now stands, and it is not pretended that it could be held to be in any sense a just tax, or a tax proportionate to what is charged against other subjects of taxation within the State. This disproportion is so great that it seems plain the Legislature never intended this enormous burden should be imposed, and it suggests the inference, if it does not require it, that the Legislature supposed the case of this company was specially provided for otherwise. It cannot be that the Legislature meant to tax other companies a certain per cent-age on a capital stock represented wholly by property within the State, and then to tax this company the same percentage on a capital stock represented by property by far the larger portion of which was in other States; especially when such property is permanent in its nature, and cannot by_ any implication of law or legal intendment be held or deemed to be property which is subject to or protected by the laws of this State. Indeed, if the intent of the General Eailroad Law had been to bring this whole property within its provisions concerning taxation, it would be subject to the objection that the State was attempting by this law to reach out and subject to its sovereign power of taxation property situated in other States, liable and justly liable to taxation there, and thereby in some degree to shift the burdens of its own government from the subjects of taxation which should justly bear them, upon other subjects which were beyond its jurisdiction, and therefore not subject to its control for any purpose. For the State can no more tax the whole capital stock, which represents the track from Chicago to Buffalo, the rolling stock and other equipments, than it can tax the whole track and equipments. The capital stock is taken as the basis of taxation rather than the road and equipments for reasons of convenience; but whether the one or the other is selected for the purpose the limitations of sovereignty alike apply, and the State can tax only what is within its jurisdiction, whether it be the part of the road which is within its limits or the proportion of the stock which represents that part of the road. There may sometimes be difficulty in determining what is the just proportion of the stock which is thus taxable; but the principle is plain enough, and it is not likely the State ever intended to disregard it.
Like consequences would have attended the taxation of the railroad company under the act of 1871. That act required the levy of taxes on a basis measured by the gross earnings of all the roads; and it made no provision whereby the gross earnings of any road whose line was partly in other states might be apportioned for the purpose of this taxation. All the gross earnings of this railroad company, therefore, accumulated by the use of its lines in New York, Pennsylvania, Ohio, Indiana and Illinois, must have b.een taxed within and for the benefit of the State of Michigan; and the tax would not only have been illegal, because not levied by any rule of equality as between this company and other railroad companies, and unjust from its oppressive disproportion to other railroad taxes, but it would have been clearly in excess of State power for the reason above assigned. No State can have any authority to take advantage of the fact that a portion of a railway is within its limits to draw within its taxing power all the road or all its business. As well might it take advantage of the temporazy presence of a nonresident within its limits to compel him to pay taxes on his hoznestead in another State, or on his business not carried on under the protection of its laws, or on the moneys or credits which' he might chance to have about his person at the time of his visit. Any such attempt at taxation would be usurpation.
But the General Railroad Law as revised in 1873 does contain provisions whereby the tax may be apportioned when the road is partly, within and partly without the State; and the objection that the State is attempting to tax property not subject to its jurisdiction will not be available against this law if we find its intent to be to bring the Lake Shore & Michigan Southern Railroad Company within its provisions. Whether the apportionment it provides for is a fair one, is questioned by counsel; but it was meant to be fair, and for the purposes of the validity of the law that was probably sufficient. The vital question is whether it was intended that it should apply to this company. Upon that question the fact that the provisions in the General Railroad Law as it before stood from time to time could not be applied, may have some bearing, since there is nothing in the wording of the act of 1873, any more than in the law at any time before, which is indicative of a clear intent that this company should come under its provisions. It is nevertheless possible that the Legislature may, at all times since the consolidation of the Lake Shore line, have intended to tax this company under the general law, and that the previous defects in the law were in mind when the act of 1873 was passed, and were intended to be cured thereby. To that act we may therefore now direct our attention.
The taxing provisions of the act of 1873 are expressly by its terms made applicable to “ every company formed under the provisions” thereof. The argument on behalf of the relator is that when the consolidation of 1869 took place the Michigan Southern & Northern Indiana Railroad Company and the other companies in .Ohio, Pennsylvania and New York with which it consolidated ceased to exist, and that the new company which succeeded to their corporate powers came into existence as a corporation in this State by virtue of the authority to consolidate, which was given by the Gen eral Railroad Law then in force, and which was revised in 1873. The company, - it is said, could not otherwise have had existence in this State, and was consequently in the strictest sense a corporation “ formed under the provisions ” of the act revised. It must therefore have been intended by the Legislature that the act of 1873 should apply to it, for that act was inconsistent with and repealed the previous general law, with its provisions respecting taxation.
Had all the consolidated companies been corporations of this State, possessing like powers, privileges and immunities, and had they proceeded to consolidate under the act of 1873, there would have been little or no difficulty in saying that they thereby ceased to exist, and were consolidated into one corporation “ formed under the provisions ” of that act. A State at its pleasure may authorize two or more existing corporations to associate together and organize themselves into a new corporation, with the same full power that it exercises when it incorporates individuals. Bishop v. Brainerd 28 Conn. 289 : Clearwater v. Meredith 1 Wall. 25; State v. Maine Central R. R. Co. 66 Me. 488; s. c. in error 96 U. S. 499. There is no difficulty here, for each incorporation is effected by an exercise of the will of the same sovereign authority.
But how can it be said that the Lake Shore & Michigan Southern Railroad Company, owning and operating a line of railway in six States, and exercising within them corporate powers emanating from them all, is a corporation “ formed under” the General Railroad Law of Michigan ? Why under the law of Michigan any more than under that of Ohio or that of any other State ? And what authority can the laws of Michigan have to authorize the company to operate a railroad in New York, or how can they punish a corporate misfeasance in Pennsylvania, or compel the performance of a corporate duty in Illinois ? And if in any restricted sense it be said that the consolidated company is a corporation formed under our laws because their assent was given to its formation; then what are its powers, duties, liabilities and immunities? May the corporation exercise within this State powers which have been conferred in Pennsylvania or Ohio, but which our laws would expressly withhold, and is it released by the laws of New York from duties which our laws impose \
A corporation is the creature of the sovereign will. "When one sovereignty creates it, it can operate within the limits of another only by the express permission of the latter, or by implied permission springing from principles of comity. If such permission were given by express law, it would not. make the corporation any less a foreign corporation than before; it would still be- the corporation of the State whose sovereign will had created it; and if two States should incorporate the same persons for the same purpose, with identical powers, there would in contemplation of law be two corporations deriving their authority from different sources. This would be altogether a different thing from one State granting the charter and the other giving permission for the exercise of the franchises within its limits.
Tile authority to consolidate the Lake Shore lines, as has been said above, was claimed under the laws of several States, and not under the laws of Michigan alone. Concede that the consolidation has resulted in one great corporation into which it has merged the others, and the fact remains, that this is no more effected under the laws of Michigan than under the laws of any other assenting State. The consolidated company is not, therefore, a corporation formed under the laws of Michigan. The laws of Michigan were powerless to confer upon the new corporation all the powers and charge it with all the duties of the several old corporations : the State might consent to the consolidation, and this is all it assumed to do.
"Whether by the concurrent action of all the States through or into which the Lake Shore line extends the Lake Shore & Michigan Southern Nailroad Company can be said to have become a corporation in the full sense, or whether it is to> be regarded as merely a corporation de facto, or whether the consolidation is to be considered a business union of several different railroad companies under one common name which the laws of the several States recognize for the purposes of the transaction of business, the holding of property and the bringing of suits, or whether all the old corporations, are to be deemed still in existence and exercising their several powers in their respective States in the name of the consolidation, is not now important, and we do not care to-speculate on the several interesting questions that here suggest themselves to our minds. It is enough for our purposes-that the consolidated company is not in our opinion a corporation “formed under” the General Railroad Law of this State, within the meaning of that law, and that it is not, therefore, taxable under it. The Auditor General, we think, has acted in strict accordance with duty in continuing to levy the tax on the basis prescribed in the charter of the Michigan Southern Railroad Company and the act under which that company and the Northern Indiana Railroad Company were consolidated. The case is altogether different from what it would have been had the Michigan company which entered into the consolidation been organized under the general law.
Many questions discussed on the argument are rendered immaterial by the conclusion we have reached.
The writ applied for must be denied.
The other Justices concurred. | [
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] |
Graves, J.
This is a certiorari to review the proceedings for the laying out and construction of certain ditches in Wayne county. A preliminary question is raised that the writ was not seasonably applied for and ought therefore to be dismissed. The proceedings- were commenced in March, 1879, and on the 23d of June the contracts for ditching were given out. The expense was required to be raised in three instalments, one-third in 1879, one-third in 1880, and the residue in 1881. The plaintiff admits in the petition that the entire work was finished as early as July,. 1880. He neglected, however, to make application -for the writ until April, 1881, a period of more than eight months thereafter, and until as would seem there remained in arrear no other assessments except those charged against him.
T-he only reason intimated as an explanation for the delay is a statement in the petition that the plaintiff was absent, from the United States at the time he was first informed that the ditches were finished in July, 1880. There is nothing in this circumstance to excuse the continued failure for so-many months to take steps. There will be danger of great injustice in allowing persons to lie by in cases, of this class-until all the benefit to arise from the work is secured and nothing remains but the payment of their share of the expense, and then permit them to intervene by oertiora/ri and procure the proceedings to be overthrown, and before, permitting it the court should be satisfied that the delay has not been owing to any fault or neglect on the part of the applicant.
Whatever right the applicant may have, the present is not the proper remedy.
The writ of cerúiora/ri is quashed with costs.
The other Justices concurred. | [
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] |
Per Curiam.
No order of the circuit court is necessary to complete the transfer of a cause from that court to the courts of the United States after the necessary papers for ' the removal have been filed, and where such an order has been made in the circuit court, the vacating thereof would have no effect upon the cause. Where a cause has been removed -to the United States court, and the party opposed to such removal wishes to have the cause proceed in the State court, he should make a motion in the United States court to have the cause remanded, and if the motion is denied he has a remedy given him by Act of Congress whereby the question can be passed upon by the Supreme Court of tlie United States. And as the question involves the proper construction of an act of congress it is eminently proper that the remedy thus provided should be pursued and not resort to the State court. | [
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Neff, J.
Appellants James and Maria McEvoy, parents of minor Sean McEvoy, appeal as of right an order of the family division of the circuit court directing that they pay $715,581.49 in restitution to appellee insurer SET-SEG for insurance compensation paid to Howell Public Schools after a fire set by Sean caused extensive property damage to Howell High School. We affirm in part, but vacate the restitution order and remand for a redetermination of the amount of the loss sustained by Howell Public Schools.
I
This case presents issues of first impression under the juvenile code, MCL 712A.1 et seq., to determine the extent to which a court may order restitution for offenses committed by a juvenile. The key question for our decision is whether, pursuant to MCL 712A.30 and MCL 712A.31, a court may require parents, on the basis of their status as supervisory parents, to pay restitution to an insurance company for compensation paid to an insured school district under a property insurance policy.
We hold that the court’s imposition of restitution under MCL 712A.30 and MCL 712A.31 did not violate appellants’ constitutional right to substantive due process and the statutory provisions for restitution did not act as an unconstitutional bill of attainder. However, the court erred in imposing an obligation to pay SET-SEG restitution based on the replacement value of property damages paid pursuant to its policy of insurance provided to Howell Public Schools rather than on the basis of the school district’s actual loss.
II
The parties do not dispute the underlying facts in this case. During the early morning hours of April 8, 2002, Sean, then fifteen years old, broke into Howell High School, vandalized the school, and set several fires. The fires activated the automatic sprinkler system, which extinguished the fires, but the sprinkler system was on for several hours before the police and fire department arrived, which caused extensive water damage in the school.
Within a matter of days, Sean was arrested in connection with the fire and charged with various criminal offenses. Under a plea agreement, Sean admitted several charges against him, including arson of nondwelling real property, MCL 750.73, and malicious destruction of personal property, MCL 750.377a(1).
Following the fire, the school district hired contractors to clean up, and refurbish or replace damaged equipment and furniture. SET-SEG, the property insurer for Howell Public Schools, paid $744,195.47 in claims to compensate the school district for its costs related to the fire. SET-SEG then filed a petition for restitution in the family division, seeking reimbursement from Sean and appellants for the compensation paid to the school district. Following an evidentiary hearing, the court ordered that Sean pay restitution of $715,581.49, noting that although the insurance company’s actual drafts to the school district totaled $744,195.47, the actual invoices supported a lesser sum of $715,581.49. After farther hearings concerning payment of restitution, the court ordered that appellants were liable for payment of restitution to SET-SEG, but that SET-SEG may seek to satisfy this obligation only from proceeds of insurance policies issued to appellants, and not from their personal assets.
III. STANDARD OF REVIEW
An order of restitution is generally reviewed for an abuse of discretion. People v Byard, 265 Mich App 510, 511; 696 NW2d 783 (2005). When the question of restitution involves a matter of statutory interpretation, review de novo applies. Statutory interpretation is a question of law subject to a review de novo. People v Law, 459 Mich 419, 423; 591 NW2d 20 (1999); People v Crigler, 244 Mich App 420, 423; 625 NW2d 424 (2001).
The primary goal in interpreting statutes is to ascertain the intent of the Legislature. Id. “ ‘The first criterion in determining the Legislature’s intent is the specific language of the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither permitted nor necessary.’ ” Id., quoting People v Fox (After Remand), 232 Mich App 541, 553-554; 591 NW2d 384 (1998). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Draprop Corp v City of Ann Arbor, 247 Mich App 410, 415; 636 NW2d 787 (2001).
IV
The juvenile code, MCL 712A.30, provides for restitution of a loss sustained by a victim of a juvenile offense:
(2) Except as provided in subsection (8), at the dispositional hearing for a juvenile offense, the court shall order, in addition to or in lieu of any other disposition authorized by law, that the juvenile make full restitution to any victim of the juvenile’s course of conduct that gives rise to the disposition or to the victim’s estate.
(3) If a juvenile offense results in damage to or loss or destruction of property of a victim of the juvenile offense, or results in the seizure or impoundment of property of a victim of the juvenile offense, the order of restitution may require that the juvenile do 1 or more of the following, as applicable:
(a) Return the property to the owner of the property or to a person designated by the owner.
(b) If return of the property under subdivision (a) is impossible, impractical, or inadequate, pay an amount equal to the greater of subparagraph (i) or (ii), less the value, determined as of the date the property is returned, of that property or any part of the property that is returned:
(i) The value of the property on the date of the damage, loss, or destruction.
(ii) The value of the property on the date of disposition.
Subsection 8 provides an exception to the statutory mandate for restitution to the victim “if the victim or victim’s estate has received or is to receive compen sation for that loss,” in which case the court shall order restitution directly to an individual or entity that has or will be compensating the victim:
The court shall order restitution to the crime victims compensation board or to any individuals, partnerships, corporations, associations, governmental entities, or any other legal entities that have compensated the victim or victim’s estate for a loss incurred by the victim to the extent of the compensation paid for that loss. The court shall also order restitution, for the costs of services provided, to persons or entities that have provided services to the victim as a result of the juvenile offense. Services that are subject to restitution under this subsection include, but are not limited to, shelter, food, clothing, and transportation. However, an order of restitution shall require that all restitution to a victim or victim’s estate under the order be made before any restitution to any other person or entity under that order is made. The court shall not order restitution to be paid to a victim or victim’s estate if the victim or victim’s estate has received or is to receive compensation for that loss, and the court shall state on the record with specificity the reasons for its actions. If an entity entitled to restitution under this subsection for compensating the victim or the victim’s estate cannot or refuses to be reimbursed for that compensation, the restitution paid for that entity shall be deposited by the state treasurer in the crime victim’s rights fund created under [MCL 780.904], [MCL 712A.30(8).]
The juvenile code further provides in subsection 15 that if a juvenile is unable to pay all the restitution ordered, the court may order payment from the juvenile’s supervisory parent:
If the court determines that the juvenile is or will be unable to pay all of the restitution ordered, after notice to the juvenile’s parent and an opportunity for the parent to be heard, the court may order the parent or parents having supervisory responsibility for the juvenile at the time of the acts upon which an order of restitution is based to pay any portion of the restitution ordered that is outstanding. An order under this subsection does not relieve the juvenile of his or her obligation to pay restitution, but the amount owed by the juvenile shall be offset by any amount paid by his or her parent. As used in this subsection, “parent” does not include a foster parent. [MCL 712A.30(15).]
MCL 712A.31 contains provisions for determining the amount of restitution under § 30:
(1) In determining the amount of restitution to order under section 30 of this chapter, the court shall consider the amount of the loss sustained by any victim as a result of the juvenile offense. In determining whether to order the juvenile’s supervisory parent to pay restitution under section 30(15) of this chapter, the court shall consider the financial resources of the juvenile’s supervisory parent and the other factors specified in section 30(16) of this chapter.
***
(4) Any dispute as to the proper amount or type of restitution shall be resolved by the court by a preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the juvenile offense shall be on the prosecuting attorney. The burden of demonstrating the financial resources of the juvenile’s supervisory parent and the other factors specified in section 30(16) of this chapter shall be on the supervisory parent.
MCL 712A.30(1)(b) defines the term “victim” for purposes of §§ 30 and 31:
“Victim” means an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a juvenile offense. For purposes of subsections (2), (3), (6), (8), (9), and (13), victim includes a sole proprietorship, partnership, corporation, association, governmental entity, or other legal entity that suffers direct physical or financial harm as a result of the commission of a juvenile offense.
A
The juvenile code employs the same statutory scheme for restitution found in the Crime Victim’s Rights Act (CVRA), MCL 780.766 and MCL 780.767, and contains identical language in various corresponding provisions. Accordingly, the Legislature’s overall intent in mandating restitution for crime victims may be discerned from the comprehensive scheme governing victims under the CVRA as well as the juvenile code. Further, our courts’ interpretations of provisions in the CVRA are properly applied to statutory interpretation of substantively identical corresponding provisions in the juvenile code.
B
The first issue for our resolution is whether the statutory scheme permits the trial court to order appellants, as parents, to pay restitution on behalf of the school district victim. We find no merit in appellants’ contention that pursuant to the definition of “victim” in MCL 712A.30(1)(b), the school district is a victim for purposes of only “subsections (2), (3), (6), (8), (9), and (13),” and therefore parents may not be required to pay restitution under subsection 15 to a “non-individual” victim. Appellants premise this argument on the Legislature’s purported intent to engage in “social engineering” by holding a juvenile’s parents liable only with respect to individual victims, but not other victims. Appellants argue that had the Legislature intended to treat individual and entity victims equally, the Legisla ture would have chosen a single unified definition of “victim.” We find no support for appellants’ interpretation of the statute and cannot read such intent into the statute on the basis of appellants’ strained interpretation of the statutory scheme.
Foremost in negating appellants’ logic is the fact that the word “victim” does not appear in subsection 15, and therefore there is no need to define the term for purposes of that subsection. Further, the key language in the definition of the term “victim” is identical in both the juvenile code and the CVRA: “For purposes of subsections (2), (3), (6), (8), (9), and (13), victim includes a sole proprietorship, partnership, corporation, association, governmental entity, or other legal entity that suffers direct physical or financial harm as a result of the commission of a juvenile offense.” MCL 712A.30(1)(b). Subsection 2 is the key substantive provision providing for restitution, and that subsection expressly states that the court shall order that the juvenile “make full restitution to any victim,” which by definition includes a legal entity such as the school district. MCL 780.766(1) and (2), and 712A.30(1)(b) and (2); see also People v Gahan, 456 Mich 264, 271; 571 NW2d 503 (1997) (the CVRA “clearly states that restitution may be ordered with respect to ‘any’ victim”).
Most convincing, however, is the simple explanation that the subsections omitted from the entity definition of “victim” found in MCL 712A.30(1)(b) are either at odds with the broader definition because of their subject matter or the distinction in definition serves no purpose with respect to the particular statutory provision. In the former instance, the subject matters are simply inapplicable to a legal entity, e.g., “physical or psychological injury” to a victim, subsection 4; “death of a victim” and the cost of the “funeral,” subsection 5; and a “deceased” victim, subsection 7. In the latter instance, the provisions not included in the broader definition are primarily procedural in nature.
Michigan law has long recognized and protected the rights of crime victims. In 1976, Public Act 223 established a crime victims compensation program that reimbursed victims for certain out-of-pocket expenses. MCL 18.352. In 1985, the CVRA was enacted, providing for specific rights of felony victims and specifying duties for the criminal justice system. 1985 PA 87. In 1988, the CVRA was expanded to provide for the rights of victims of juvenile offenders and of certain specified “serious misdemeanors.” 1988 PA 21; MCL 780.811(1)(a) and 780.812. Also in 1988, voters approved an amendment to the Michigan Constitution, which added art 1, § 24, setting forth specific rights for crime victims. House Legislative Analysis, SB 469, September 21, 1993, p 1.
Subsequent legislative enactments have further expanded the rights of crime victims and the availability of restitution for both individuals and others that have sustained losses. In 1993 and 1996, the provisions for restitution to crime victims were further strengthened through a package of bills amending both the CVRA and the juvenile code. Id. at 1-2; see also 1993 PA 344, 1996 PA 123, and 1996 PA 561. Art 1, § 24 and the CVRA “were intended to enable victims to be compensated fairly for their suffering at the hands of convicted offenders.” People v Peters, 449 Mich 515, 526; 537 NW2d 160 (1995).
Given the language of the statute itself, the comprehensive nature of the statutory enactments to protect crime victim rights, and the recent legislation to strengthen those statutes, we are convinced that the Legislature did not intend an obtuse exception to restitution for nonindividuals when a supervisory parent is held liable for a juvenile who is unable to pay restitution. Changes in an act must be construed in light of predecessor statutes and historical developments. Advanta Nat’l Bank v McClarty, 257 Mich App 113, 120; 667 NW2d 880 (2003). Moreover, nothing will be read into a clear statute that is not within the manifest intention of the Legislature as derived from the language of the statute itself. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002). We hold that the school district is a victim for the purposes of the provisions in subsections 8 and 15.
C
We next consider whether the restitution that may be ordered under subsection 15 is limited in amount. We find no support for appellants’ argument that § 30 of the juvenile code should be read in pari materia with the parental liability act (PLA), MCL 600.2913, to engraft onto the juvenile code the PLA’s limitation of $2,500 liability in civil court actions. The 1993 amendments to the juvenile code increased the amount of restitution that a juvenile’s parents could be ordered to pay from $2,500 to $5,000. 1993 PA 344, in former MCL 712A.30(17). The 1996 amendment removed the limitation altogether and substituted the words “any portion” for the $5,000 limitation. 1996 PA 561. MCL 712A.30(15) now states that “the court may order the parent or parents having super visory responsibility for the juvenile at the time of the acts upon which an order of restitution is based to pay any portion of the restitution ordered that is outstanding.” (Emphasis added.) Given the Legislature’s action of substituting the words “any portion” for the previous $5,000 hmitation on liability, we find no merit in appellants’ argument that the $2,500 limitation in the PLA should be read into subsection 15. A change in a statutory phrase is presumed to reflect a change in the meaning. Edgewood Dev, Inc v Landskroener, 262 Mich App 162, 167-168; 684 NW2d 387 (2004); People v Pigula, 202 Mich App 87, 90; 507 NW2d 810 (1993).
Moreover, appellants’ interpretation of the statute is contrary to the overall statutory scheme for restitution to victims of crimes. The CVRA and subsection 9 of the juvenile code provide for a setoff of restitution against damages in a civil proceeding:
Any amount paid to a victim or victim’s estate under an order of restitution shall be set off against any amount later recovered as compensatory damages by the victim or the victim’s estate in any federal or state civil proceeding and shall reduce the amount payable to a victim or a victim’s estate by an award from the crime victims compensation board made after an order of restitution under this section. [MCL 780.794(9) and 712A.30(9).]
This specific provision for a setoff clearly recognizes that the statutory scheme for restitution is separate and independent of any damages that may be sought in a civil proceeding. This Court has repeatedly recognized that restitution is not a substitute for civil damages. People v Orweller, 197 Mich App 136, 140; 494 NW2d 753 (1992); People v Tyler, 188 Mich App 83, 89; 468 NW2d 537 (1991). Accordingly, we conclude that the juvenile code does not limit the amount of restitution for which a supervisory parent may be held liable.
V
Having rejected appellants’ interpretation of the statute, we must now consider the consequent constitutional issues raised by appellants. Appellants contend that because subsection 15 permits imposition of unlimited restitution without a showing of fault on the part of the supervisory parent, it unconstitutionally deprives parents of substantive due process and acts as a bill of attainder. We disagree.
A
The constitutionality of a statute is a question of law, reviewed de novo on appeal. Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163 (2001). “A statute is presumed constitutional, unless its unconstitutionality is readily apparent.” Id. The party challenging a statute’s constitutionality cannot merely claim unconstitutionality, but has the burden of proving its invalidity. People v Abraham, 256 Mich App 265, 280; 662 NW2d 836 (2003).
“A rational basis standard of review governs this Court’s scrutiny of the legitimacy of social and economic legislation.” Romein v Gen Motors Corp, 436 Mich 515, 525; 462 NW2d 555 (1990), aff'd 503 US 181 (1992). Legislative acts that adjust the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and the burden is on the party complaining of a due process violation to establish that the Legislature acted arbitrarily and irrationally. Id.
B
Appellants’ due process claim is premised on subsections 15, 16, and 17 of § 30, which, together, provide authority for and limitations on imposing payment of restitution on the supervisory parent of a juvenile offender:
(15) If the court determines that the juvenile is or will be unable to pay all of the restitution ordered, after notice to the juvenile’s parent and an opportunity for the parent to be heard, the court may order the parent or parents having supervisory responsibility for the juvenile at the time of the acts upon which an order of restitution is based to pay any portion of the restitution ordered that is outstanding. An order under this subsection does not relieve the juvenile of his or her obligation to pay restitution, but the amount owed by the juvenile shall be offset by any amount paid by his or her parent. As used in this subsection, “parent” does not include a foster parent.
(16) If the court orders a parent to pay restitution under subsection (15), the court shall take into account the financial resources of the parent and the burden that the payment of restitution will impose, with due regard to any other moral or legal financial obligations that the parent may have. If a parent is required to pay restitution under subsection (15), the court shall provide for payment to be made in specified installments and within a specified period of time.
(17) A parent who has been ordered to pay restitution under subsection (15) may petition the court for a modification of the amount of restitution owed by the parent or for a cancellation of any unpaid portion of the parent’s obligation. The court shall cancel all or part of the parent’s obligation due if the court determines that payment of the amount due will impose a manifest hardship on the parent. [MCL 712A.30.]
Although the 1996 amendment of § 30 removed the $5,000 monetary limitation on parental liability, it added additional language to reasonably circumscribe the liability imposed. Under subsection 15, restitution may be imposed only on the parent or parents having supervisory responsibility for the juvenile at the time of the acts upon which an order of restitution is based. Further, although there is no statutory limitation on the amount of restitution, under subsection 16, a court must consider the parent’s financial resources, the burden of the payment of restitution, and any other moral or legal financial obligations that the parent may have. Additionally, the statute mandates that the court cancel all or part of the parent’s obligation if payment of the amount due will impose a manifest hardship on the parent. MCL 712A.30(17).
Contrary to appellants’ argument, the statute does not impose liability solely on the basis of familial relationship. The Legislature has clearly sought to link liability with responsibility in a reasonable but purposeful manner, rather than burdening society in general or the victim in particular for the costs of a juvenile’s illegal acts. The statute reasonably imposes liability on the parent responsible for supervising the child. In this case, the court limited appellants’ liability to available insurance proceeds. Appellants have not met their burden of establishing either that no legitimate public purpose is served by MCL 712A.30(15) or that there is no rational relationship between the statute’s provisions and a legitimate public purpose. Ludington & Northern R Co v Epworth Assembly, 188 Mich App 25, 43-44; 468 NW2d 884 (1991).
We conclude that the juvenile code provisions for restitution by a supervisory parent bear a reasonable relation to a permissible legislative objective, so there is no violation of appellants’ due process rights. Phillips v Mirac, Inc., 470 Mich 415, 436; 685 NW2d 174 (2004). The guaranty of due process “demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.” McAvoy v H B Sherman Co, 401 Mich 419, 435-436; 258 NW2d 414 (1977).
Our conclusion is in keeping with the holdings in other jurisdictions that have considered similar statutes providing restitution for crime victims and have found no due process violation. See, e.g., In re Kory L, 194 Ariz 215, 219; 979 P2d 543 (Ariz App, 1999) (holding that a restitution statute is not unconstitutional on the ground that it punishes an innocent party for the crimes of another), In re Sorrell, 20 Md App 179; 315 A2d 110 (1974) (holding that a statute imposing strict vicarious liability on parents for damage caused by the willful misconduct of their children is constitutional), and Bd of Ed of Piscataway Twp v Caffiero, 86 NJ 308; 431 A2d 799 (1981) (holding that a statute imposing vicarious liability on parents or the guardian of a public school pupil for injuries to school property did not violate due process requirements or equal protection requirements and was, therefore, constitutional). We find the reasoning in Piscataway particularly applicable in this case:
The existence of the parent-child relationship provides a rational basis for imposing liability and is a reasonable means to accomplish the purposes of compensation and deterrence. The United States Supreme Court has recognized that “parents have an important ‘guiding role’ to play in the upbringing of their children.” H. L. v. Matheson, [450 US 398, 410; 101 S Ct 1164; 67 L Ed 2d 388] (1981); Bellotti v. Baird, [443 US 622, 637-639; 99 S Ct 3035; 61 L Ed 2d 797] (1979). The Legislature could have reasonably believed that subjecting parents to vicarious liability for their children’s willful and malicious acts of vandalism would encourage parents to exercise their “guiding role” in the upbringing of their children. Through better parental supervision and guidance, the Legislature hoped to deter delinquent conduct. Our concern is not whether that hope has been or will be fulfilled but whether there is a rational basis for it. Though we acknowledge the difficulties of being a parent, we cannot say that there is no rational basis for the statute. [Bd of Ed of Piscataway Twp, supra at 320.]
C
Appellants’ further argue that MCL 712A.30 is an unconstitutional bill of attainder because it punishes parents for their status, not their conduct. We conclude that the restitution obligation imposed on parents offends neither historical nor modern concepts of the bill of attainder prohibition.
The Michigan Legislature is prohibited from enacting bills of attainder. US Const, art I, § 10, cl 1; Const 1963, art 1, § 10. A legislative act that determines guilt and inflicts punishment on an identifiable group of individuals without the protections of a judicial trial is a bill of attainder. Selective Service Sys v Minnesota Pub Interest Research Group, 468 US 841, 846-847; 104 S Ct 3348; 82 L Ed 2d 632 (1984); Matulewicz v Governor, 174 Mich App 295, 305; 435 NW2d 785 (1989). Historically used in England in times of rebellion or political upheaval, such bills commonly imposed penalties including death, imprisonment, banishment, or the punitive confiscation of property by the sovereign against persons considered disloyal to the crown or state. Nixon v Administrator of Gen Services, 433 US 425, 473-474; 97 S Ct 2777; 53 L Ed 2d 867 (1977). In modern applications, the proscription against bills of attainder prohibits such sanctions as legislation barring individuals or groups from participation in specific types of employment or vocation. Id. at 474-475.
Appellants’ claim necessarily requires that the order of restitution imposed on them be validly characterized as punishment in the constitutional sense. Matulewicz, supra at 305. A statutory enactment that imposes deprivations or disabilities that are disproportionately severe and inappropriate to nonpunitive ends is immediately constitutionally suspect. Nixon, supra at 473. However, the mere fact that harm is inflicted by the government does not make it punishment; there may be reasons other than punishment for a deprivation. Id. at 471 n 32.
A determination whether a statute inflicts forbidden punishment implicates three specific inquiries: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably furthers nonpunitive legislative purposes; and (3) whether the legislative record evinces a congressional intent to punish. Matulewicz, supra at 306, citing Selective Service Sys, supra at 852; see also Nixon, supra at 473, 475-476, 478. Applying this analysis, we conclude that the burdens placed on parents by MCL 712A.30 do not make those burdens punishment within the meaning of the proscriptions against bills of attainder.
The challenged statutory provisions for restitution do not fall within the historical meaning of legislative punishment and are not validly characterized as punishment in the constitutional sense. The statutory enactments at issue were designed to protect the rights of crime victims and they underscore the compensatory nature of restitution in Michigan. Peters, supra at 524. These laws authorize the payment of restitution because the victims of crimes have suffered significant losses. Id. at 523. The fact that a restitution order is intended to cause “financial pain” does not transform the restitution order into a primarily penal sanction. Id.
Moreover, the statute furthers nonpunitive legislative purposes. As previously noted, the Legislature’s enactments providing for restitution “were intended to enable victims to be compensated fairly for their suffering at the hands of convicted offenders.” Id. at 526. “The compensatory nature of restitution is .. . specifically designed to allow crime victims to recoup losses suffered as a result of criminal conduct.” People v Grant, 455 Mich 221, 230; 565 NW2d 389 (1997). Authorizing courts to hold supervisory parents secondarily accountable for restitution not only furthers the goal of making innocent victims whole, but also promotes increased parental supervision in society in general.
The statute incorporates provisions to mitigate any excessive financial burden imposed on parents through protections in subsections 16 and 17. These subsections temper any potentially harsh ramifications of the statute and mandate that a court cancel all or part of the ordered restitution if the order imposes a manifest hardship on the parents. In appellants’ case, the court-ordered restitution was to be satisfied solely from proceeds of policies of insurance issued to appellants and not from appellants’ personal assets.
Given the above factors, the law must be held to be an act of nonpunitive legislative policymaking. Unless an enactment is punitive in its purpose and effect, there is no bill of attainder. Selective Service Sys, supra at 859 (Powell, J, concurring, citing Nixon, supra at 472). The statute does not constitute a bill of attainder.
VI
The remaining issue for our consideration is whether the court erred in the amount of restitution awarded. Appellants argue that they were entitled to a directed verdict or involuntary dismissal at the close of the prosecution’s proofs because the prosecutor failed to establish the value of the damaged or destroyed property. We disagree that appellants were entitled to a directed verdict or involuntary dismissal. However, we find error to the extent that the court ordered restitution based on the amount of the loss compensated by SET-SEG, i.e., replacement cost, rather than the actual loss sustained by the school district. We therefore remand for a redetermination of the proper amount of restitution to be imposed.
It is undisputed that the rules of evidence were inapplicable to the hearing in the family division. Accordingly, appellants’ argument that the contractor bills and invoices were inadmissible hearsay is without merit. Further, it is beyond dispute that the actual loss sustained by the school was included within the proofs submitted to the trial court. That is, it cannot reasonably be argued that the prosecutor provided no proof whatsoever of damages in this case. Appellants were not entitled to a directed verdict or involuntary dismissal.
To the extent, however, that appellants claim that the statute does not support the award of restitution for replacement value of the property damaged, we agree. In this case, SET-SEG sought restitution under MCL 712A.30(8) on the ground that SET-SEG had paid compensation to the victim, Howell Public Schools, for losses sustained in the fire set by Sean. Subsection 8 empowers courts to order restitution to legal entities that have already compensated a victim “for a loss incurred by the victim to the extent of the compensation paid for that loss.”
Appellants assert that SET-SEG compensated the victim for more than the actual loss, contrary to the statute, because the insurance policy provided replacement cost coverage. We agree.
The controlling factor with respect to determining the amount of restitution is the victim’s loss. See Law, supra at 428, (forgone interest is one aspect of the victim’s actual loss). Pursuant to MCL 712A.31(1), “In determining the amount of restitution to order under section 30 of this chapter, the court shall consider the amount of the loss sustained by any victim as a result of the juvenile offense.” (Emphasis added.)
In this case, the victim is the school district, which is the entity that suffered “direct or threatened physical, financial, or emotional harm as a result of the commission of a juvenile offense.” MCL 712A.30 (1)(b). SET-SEG is an entity that compensated the victim. Under subsection 8 of § 30, an entity that compensated a victim “for a loss incurred by the victim” is entitled to receive restitution “to the extent of the compensation paid for that loss,” clearly meaning the loss of the victim, not the loss of the compensating entity. (Emphasis added.)
MCL 712A.30(3) specifically addresses restitution in cases of property damages:
If a juvenile offense results in damage to or loss or destruction of property of a victim of the juvenile offense, or results in the seizure or impoundment of property of a victim of the juvenile offense, the order of restitution may require that the juvenile do 1 or more of the following, as applicable:
(a) Return the property to the owner of the property or to a person designated by the owner.
(b) If return of the property under subdivision (a) is impossible, impractical, or inadequate, pay an amount equal to the greater of subparagraph (i) or (ii), less the value, determined as of the date the property is returned, of that property or any part of the property that is returned:
(i) The value of the property on the date of the damage, loss, or destruction.
(ii) The value of the property on the date of disposition. ...
Although the directive in this subsection is permissive with regard to the inclusion in an order of restitution, the statutory provisions are nevertheless instructive in discerning legislative intent regarding the calculation of restitution for property damáge. Such damage is specified as “[t]he value of the property on the date of the damage, loss, or destruction.” 712A.30(3)(b)(i).
Reading the statute as a whole, we conclude that the amount of restitution ordered in this case cannot be based on the replacement value of the property damaged. To do so improperly orders restitution for the loss of the compensating entity without regard to the actual loss of the victim. Under the circumstances of the case, the loss of the compensating entity is based on the commercial transaction involved, i.e., the school district’s purchase of replacement coverage insurance, rather than the loss resulting from the fire, which underscores that the result is incongruent with the purpose of the statute. Although the amount of restitution is within the discretion of the trial court, the court erred to the extent it ordered restitution to SET-SEG on the basis of the amount SET-SEG compensated the school district, rather than the amount of the actual loss sustained by the school. Restitution must be based on the value of the property damaged, i.e., the victim’s actual loss.
We affirm in part, but vacate the order of restitution and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
At some point after the school was opened in 1981, the school disconnected its direct alarm to the police and fire departments because of false fire alarms at the school. Consequently, the damage was not discovered until school personnel reported for work. The court rejected appellants’ argument that restitution should be limited on this basis, and this issue has not been raised on appeal.
The juvenile code was amended in 1993 to require the probate court, since redesignated as the family division of the circuit court, to order a juvenile offender or his or her parents to pay restitution as provided by the CVRA. House Legislative Analysis, SB 469, September 21, 1993, p 2; see also 1993 PA 344.
MCL 780.766(1) states: “For purposes of subsections (2), (3), (6), (8), (9), and (13), victim includes a sole proprietorship, partnership, corporation, association, governmental entity, or any other legal entity that suffers direct physical or financial harm as a result of a crime.”
US Const, Am V and Am XIV; Const 1963, art 1, § 17.
Appellants’ argument is premised on challenged testimony and exhibits presented in the hearings of January 16, 2003, and March 5, 2003; however, the transcripts of these hearings are not included in the record on appeal. This claim is therefore not properly presented for review. Myers v Jarnac, 189 Mich App 436, 443-444; 474 NW2d 302 (1991). For the same reason, we decline to address any issues that are not included in appellants’ statement of questions presented. Caldwell v Chapman, 240 Mich App 124, 132; 610 NW2d 264 (2000). | [
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Neff, J.
Defendant appeals as of right a default judgment and a previous order denying his motion for summary disposition and reinstating a default. We affirm.
I. INTRODUCTION
In this dental malpractice case, we must decide whether defendant had a duty to respond to a summons and complaint given a later judicial determination after an evidentiary hearing that the affidavit of merit filed with the complaint did not comply with MCL 600.2912d(1), but was not “grossly nonconforming.” We hold that defendant was not relieved of his duty to timely respond to the summons and complaint. Defendant was properly defaulted when he failed to timely respond, and the trial court properly considered whether defendant had shown good cause and a meritorious defense to warrant setting aside the default. We affirm the trial court’s order denying defendant’s motion for summary disposition and reinstating the default and we affirm the default judgment.
II. FACTS AND PROCEDURE
On August 28, 2001, plaintiff filed suit alleging that defendant committed malpractice in performing a root canal. The complaint was accompanied by an affidavit of merit signed by Mark Nearing, D.D.S., whose dental practice is limited to root canals. Defendant failed to timely answer the complaint, and on October 4, 2001, plaintiff filed a default.
On December 10, 2001, defendant moved to set aside the default on the ground that defendant’s employee faxed the summons and complaint to defendant’s insurance carrier, but that the fax was not received, and therefore the carrier did not forward the complaint to its counsel for response. Further, plaintiff was not prejudiced, and defendant’s affidavit established a meritorious defense based on the facts. At a hearing on the motion, defense counsel argued that the default should be set aside because policy favored setting aside defaults in favor of a fair, reasonable hearing on the merits and this case involved completely innocent circumstances of a failed communication. The trial court granted defendant’s motion to set aside the default.
On January 4, 2002, defendant filed an answer to the lawsuit. On March 20, 2002, defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that the statute of limitations was not tolled by the filing of the complaint because the affidavit of merit did not meet the statutory requirements. While that motion was pending, plaintiff moved for discovery sanctions or reinstatement of the default. The trial court denied defendant’s motion for summary disposition, but granted plaintiffs motion to reinstate the default. The trial court concluded that the motion to set aside the default had been improvidently granted and that plaintiffs affidavit of merit, while technically deficient, was sufficient to commence the complaint.
In its opinion and order, the court noted that it earlier set aside the default on the basis of defendant’s representations that the fax of the summons and complaint was not received by defendant’s insurance carrier and the failure to try this case on the merits would result in manifest injustice to defendant. However, the court observed that, following discovery, defendant’s phone records called into question defendant’s representation that the summons and the complaint were faxed to the insurance carrier as indicated. Further, the court was misled concerning setting aside the default because defendant now sought dismissal of the case on the ground that the affidavit of merit was signed by an expert in the field of endodontics rather than general dentistry. The court concluded that, unlike White v Busuito, 230 Mich App 71; 583 NW2d 499 (1998), in which the plaintiff filed no affidavit of merit with the complaint and, therefore, failed to commence a suit, here the affidavit was filed. Consequently, defendant was not relieved of his obligation to answer or otherwise defend the action and the default was not void ab initio. The court denied defendant’s motion for reconsideration.
III. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001).
A motion to set aside a default or a default judgment is to be granted only if the movant shows good cause and files an affidavit demonstrating a meritorious defense. MCR 2.603(D)(1). Good cause consists of: (1) a substantial procedural defect or irregularity or (2) a reasonable excuse for the failure to comply with the requirements that created the default. Manifest injustice is not an independent factor in establishing good cause. It is the result that would occur if a default were allowed to stand after a party had demonstrated good cause and a meritorious defense. Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 233; 600 NW2d 638 (1999). The decision to grant or deny a motion to set aside a default or a default judgment is within the. discretion of the trial court. Park v American Cas Ins Co, 219 Mich App 62, 66; 555 NW2d 720 (1996).
IV ANALYSIS
The statute of limitations for a medical malpractice action is two years. MCL 600.5805(6). To commence a medical malpractice action, a plaintiff must file both a complaint and an affidavit of merit. MCL 600.2912d(1). The affidavit of merit must be “signed by a health professional who the plaintiffs attorney reasonably believes meets the requirements for an expert witness under [MCL 600.2169].” MCL 600.2912d(1). If the defendant against whom testimony is offered is a general practitioner, the expert witness during the year immediately preceding the occurrence at issue must have devoted a majority of his or her professional time to either or both active clinical practice as a general practitioner or instruction of students in an accredited health professional school or residency or clinical research program in the same health profession in which the party against whom the testimony is offered is licensed. MCL 600.2169(1)(c).
An affidavit of merit that is grossly nonconforming to the statutory requirements is not an affidavit of merit that satisfies the statutory filing requirements and does not support the filing of a complaint that tolls the running of the period of limitations. Geralds v Munson Healthcare, 259 Mich App 225, 239-240; 673 NW2d 792 (2003); Mouradian v Goldberg, 256 Mich App 566, 573-574; 664 NW2d 805 (2003).
A
It is undisputed that plaintiffs complaint was filed on August 28, 2001, before the expiration of the period of limitations, and the complaint was accompanied by an affidavit of merit signed on July 10, 2001, by Mark V Nearing, D.D.S. Defendant argues that the affidavit of merit was insufficient to commence the lawsuit and thereby toll the period of limitations because Nearing was not a properly qualified affiant under MCL 600.2169 and the trial court found that plaintiffs counsel did not have the reasonable belief that Nearing was qualified, as required for filing under MCL 600.2912d(1). However, whether defendant may have been entitled to dismissal on the basis that the affidavit was deficient and did not toll the period of limitations is not the threshold question in this case. Defendant failed to timely answer the complaint or otherwise defend the action, and a default was entered. “Once the default of a party has entered, that party may not proceed with the action until the default has been set aside by the court in accordance with [MCR 2.603(D)] or MCR 2.612.” MCR 2.603(A)(3).
Cases cited by defendant that address dismissal in the context of the expiration of the period of limitations, an affirmative defense, are inapposite. Scarsella v Pollak, 461 Mich 547, 550 n 1, 551-552 n 2; 607 NW2d 711 (2000). “[T]he purpose of a tolling provision is to protect a plaintiff from a statute of limitations defense.” Burton v Reed City Hosp Corp, 471 Mich 745, 754-755; 691 NW2d 424 2005. A statute of limitations defense must be raised in a defendant’s first responsive pleading or in a motion filed before that pleading. MCR 2.116(D)(2); Burton, supra at 755. “[T]he remedy against a party who ‘fail[s] to plead or otherwise defend’ in an action is default.” Id. at 756, quoting MCR 2.603(A)(1).
Although this Court has held that a complaint filed with an affidavit that is defective for purposes of MCL 600.2912d(1) is insufficient to “commence” a medical malpractice action, Geralds, supra at 240, our Supreme Court has repeatedly instructed that cases decided in the context of the tolling of the statutes of limitations are factually and legally distinguishable from cases that do not involve a statute of limitations issue. Scarsella, supra. In Scarsella, the Supreme Court adopted this Court’s opinion, which stated, “for statute of limitations purposes in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit.” Id. at 549, quoting Scarsella v Pollak, 232 Mich App 61, 64; 591 NW2d 257 (1998) (emphasis added). Cases not involving a statute of limitations issue are of a different view and must be analyzed accordingly. “While § 2912d states the affidavit of merit ‘shall’ be filed with the complaint, it does not indicate the action may not be commenced without the affidavit.” VandenBerg v VandenBerg, 231 Mich App 497, 502; 586 NW2d 570 (1998).
b
Defendant argues that, because the affidavit was signed by a person unqualified as an expert witness under MCL 600.2169, the affidavit was invalid; accordingly, he had no duty to answer the complaint, and the default is void ab initio under White. We disagree.
In White, supra, the plaintiff failed to file an affidavit of merit or security for costs with her medical malpractice complaint. The Court observed that the plain language of MCL 600.2912d required a medical malpractice plaintiff to file either security for costs or an affidavit of merit with the complaint. Further, a defendant’s duty to answer is conditioned on the filing of the affidavit or security for costs. The Court noted that MCL 600.2912e(1) provided that a defendant in a medical malpractice action shall file an answer “within 21 days after the plaintiff has furnished security or filed an affidavit in compliance with section 2912d.. ..” White, supra at 76. Likewise, MCR 2.108(A)(6) stated in relevant part that “the defendant must serve and file an answer within 21 days after being served with the notice of filing the security for costs or the affidavit in lieu of such security required by MCL 600.2919d.” White, supra at 76. Giving this language its plain and ordinary meaning, the Court concluded that “a plaintiffs filing of security for costs or an affidavit of meritorious claim is an absolute prerequisite to the defendant’s obligation to answer or otherwise defend the action.” Id. The Court held that, because the plaintiff never filed an affidavit of merit or security for costs, the defendant’s “answer was not yet due” be cause the tweiity-one-day period for filing the answer never began to run. Id. at 76-77.
We conclude that White does not control in this case. In White, an affidavit was never filed, and it was clear that the statutory requirements were not met. In this case, plaintiff filed a presumably valid affidavit of merit with the complaint. According to plaintiffs counsel’s affidavit, at the time he filed the complaint, he believed that the affidavit of merit satisfied the statutory requirements. It was only in subsequent judicial proceedings that the affidavit was found to be deficient on the basis of this Court’s holding in Decker v Flood, 248 Mich App 75; 638 NW2d 163 (2001). In Decker, this Court observed that an endodontist is one who specializes in the practice of endodontics, and, thus, is not a general practitioner within the meaning of the statutory limitations on expert witnesses in medical malpractice cases. Id. at 83-84. However, Decker was not decided until October 26, 2001, after the default in this case was entered, and long after defendant’s answer was due.
Moreover, in White, the Court expressly noted that, although the plaintiffs medical malpractice complaint appeared to be deficient with regard to stating a claim for medical malpractice, the deficiencies did not relieve the defendant of his obligation to file an answer. White, supra at 78 n 7. Likewise, the deficiency in the affidavit in this case did not relieve defendant of his duty to file an answer.
To hold that a duty to answer the complaint never arose in this case would open the floodgates to all manner of retrospective claims that a defendant had no obligation to respond to a summons and complaint. Such reasoning would undermine the fundamental purpose of default and the finality of judgments. It rewards dilatory response to lawsuits in circumstances in which a lawsuit is, by all initial accounts, valid. .
Worse, to rule as defendant urges would create the opportunity for defendant to knowingly foster the running of the limitations period by ignoring a lawsuit and then simply bypass the default by attacking the affidavit of merit, depriving plaintiff of the legitimate opportunity to cure a defect if attacked in an answer or affirmative defense. A defendant would suffer no adverse consequences if a postdefault attack on the affidavit were successful. In the meantime, a plaintiffs claim is laid to rest as the limitation period expires.
The requirement that a defendant answer a complaint tests the adequacy of the complaint and affidavit. If procedural devices permit a complaint to go unanswered to no disadvantage, the test fails in its purpose. We decline to extend the holding in White, in which the affidavit was nonexistent, to the circumstances of this case.
c
The remaining question is whether the trial court abused its discretion in failing to set aside the default.
The ruling on a motion to set aside a default or a default judgment is entrusted to the discretion of the trial court. Where there has been a valid exercise of discretion, appellate review is sharply limited. Unless there has been a clear abuse of discretion, a trial court’s ruling will not be set aside. [Alken-Ziegler, supra at 227 (citations omitted).]
We conclude that the court did not abuse its discretion. Following discovery, the court found that the telephone records called into question defendant’s representation that the summons and complaint were faxed to the insurance carrier as indicated and that the fax was not received. After defendant had misled the court concerning setting aside the default, he sought dismissal of the case on the ground that the affidavit of merit was signed by an expert in the field of endodontics rather than general dentistry.
It is clear that the court was not persuaded by defendant’s assertion that he had a reasonable excuse for failing to timely answer the summons and complaint. Viewing the record, we find no basis for ruling otherwise.
It is undisputed that defendant was served with the summons and complaint on September 7, 2001. Twelve days later, on September 19, 2001, defendant’s employee allegedly faxed the summons and complaint to the insurance carrier. However, defendant’s phone records showed no charge for a long distance call on the alleged date of the fax. There was no contact with the insurance carrier to advise it of the summons and complaint, other than the alleged fax, and there was no follow-up to determine whether the fax was received. The insurance carrier had previous notice of the lawsuit because it was provided with the statutory notice of intent to file a claim in March 2001. Considering the facts on which the court acted, an unprejudiced person cannot say that there is no justification or excuse for the court’s ruling. Id. at 228.
Although not directly relevant to the grounds for setting aside the default, the court’s finding that defendant misled the court was germane to the court’s considerations. At the hearing in December 2001, de fendant argued that the default should be set aside and the case should be heard on the merits. Defendant did not argue the statute of limitations defense or the alleged defect in the affidavit at the time of the hearing even though Decker had already been decided by this Court. It was only later, in March 2002, that defendant cited Decker as the basis for his motion for summary disposition.
An appellate court may not substitute its judgment in matters falling within the discretion of the trial court. Alken-Ziegler, supra at 228. The trial court’s decision to reinstate the default is entitled to great deference. Id. We find no circumstances warranting reversal.
Affirmed.
COOPER, J., concurred.
In an order entered April 12, 2002 (Docket No. 239005), another panel of this Court denied plaintiffs application for leave to file an interlocutory appeal of that decision.
The lower court case register of actions indicates that an answer was filed, although no answer is found in the lower court record submitted on appeal.
The parties agreed to settle plaintiffs claim while preserving defendant’s right to appeal.
Defendant’s phone records showed that no long distance phone call was made on the date of the alleged fax that would have allowed the machine to process the fax, e.g., to a misdialed number.
Compare Mouradian, supra at 571, quoting the same sentence from Scarsella, but omitting the introductory clause (“[Plaintiffs’ complaint, filed without the affidavit of merit required by MCL 600.2912d, did not toll the limitations period because ‘in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit.’ ” [Punctuation and citation deleted.]).
The statutory provision in effect at the time the plaintiffs complaint was filed required that a medical malpractice plaintiff file either security for costs or an affidavit of meritorious claim with the complaint. White, supra at 75-76.
Defendant’s sole challenge to the affidavit is based on the fact that Dr. Nearing limits his practice to endodontics; defendant does not claim that the affidavit is otherwise deficient.
We recognize that, following an evidentiary hearing, the trial court concluded that plaintiffs counsel’s belief was not reasonable in light of stipulated facts concerning the extent of plaintiffs counsel’s investigation of defendant’s credentials and Dr. Nearing’s credentials before filing the lawsuit. | [
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] |
Per Curiam.
Plaintiff Eric Heckmann is a civilian employee of the fiscal operations section (FOS) of the Detroit Police Department. On September 11,2002, plaintiff wrote a five-page letter to the then newly appointed chief of police detailing allegations of gross mismanagement and fraud within the department, including the hiring of unnecessary employees who performed no meaningfiil work, misuse of overtime, falsification of time records, misuse of government properly, and premature payments of invoices. Plaintiff claims that as a result of this letter, defendants threatened or otherwise discriminated against him in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Plaintiff sued and also alleged in a second count that defendants intentionally inflicted emotional distress. The trial court granted defendants’ motion for summary disposition, and plaintiff appeals by right. Because we find that plaintiff pleaded and factually supported some of his WPA claims, we reverse in part, affirm in part, and remand for further proceedings in the trial court.
I. SUMMARY OF FACTS AND PROCEEDINGS
Plaintiff is a longtime city of Detroit employee who has worked for the city’s police department since 1992. In 2002, plaintiff was a principal accountant in the department’s FOS. Plaintiff claims that in August 2002, he sent a memorandum to Deputy Chief Brenda Goss Andrews, supervisor of the department’s management services bureau, requesting a meeting to discuss his observations of financial misconduct within the FOS. Upon receiving no response from Andrews, plaintiff sent his September 2002 letter to newly appointed chief of police, Jerry Oliver. Plaintiff also forwarded a copy of the letter to Detroit Mayor Kwame Kilpatrick and to the president of the Association of Professional and Technical Employees, a union in which plaintiff was a member. Plaintiff acknowledged that beginning in January 2003 the union had initiated approximately five grievance procedures on his behalf.
Plaintiff asserts that he did not receive a response to his September 2002 letter until being called to a meeting in Andrews’s office on April 8, 2003. Defendants Marlene Hobbs and Hasumati Patel, the manager of the FOS also attended. After Patel’s appointment in January 2003, plaintiff initiated the first of his grievances, which alleged that Patel had been appointed to her position contrary to the union contract and the city’s own rules regarding promotional opportunities. Plaintiff also had criticized Hobbs in his September 2002 letter, but Hobbs was promoted in April 2003 to the position of head governmental analyst in charge of the accounts payable unit of the FOS. Plaintiff claims that, during the April meeting, Andrews discussed his September 2002 letter and that Andrews told plaintiff that he should “start looking for a job elsewhere” if he kept “making waves” and forcing Andrews to waste her time.
Plaintiff asserts that Andrews’s comment to him at the April meeting was a “threat” within the meaning of MCL 15.362. Plaintiff further alleges that after the April meeting, defendants “otherwise discriminated” against him by reducing his duties and socially isolating him. With respect to the former claim, plaintiff testified that Patel authored a memorandum on April 10, 2003, outlining the respective work assignments of various FOS personnel. According to plaintiff, although others were assigned ten or more duties, he was assigned only four. Plaintiff acknowledged, however, that his four assigned responsibilities entailed accounting for approximately $65 million to $80 million. Regarding social isolation, plaintiff testified that his supervisors would ignore him but make a point of saying hello to every other person in the office. But plaintiff acknowledged that he had a working relationship with Patel, with whom he communicated regularly by e-mail. Plaintiff also admitted that no acrimony existed between him and his coworkers, with whom he also maintained a working relationship.
In moving for summary disposition, defendants argued that plaintiff’s September 2002 letter was not a “report” within the meaning of the WPA because it was not made to an outside agency; rather, it was merely an intra-agency complaint sent up the normal chain of command. Defendants also argued that plaintiff had not suffered an adverse employment, action because he had not been fired, demoted, or transferred to a different job; plaintiff retained the same job classification he had held, albeit with some altered job assignments. Defendants further noted that although plaintiff was a union member, he had not initiated a grievance regarding his WPA claims.
In opposing defendants’ motion for summary disposition, plaintiff alleged that he was passed over for promotion in January 2003 when the position of supervisor was filled without being posted or through other normal procedures. Plaintiff also pointed to his claim that in April 2003 Andrews told him to start looking for another job if he continued to “make waves.” Plaintiff also argued that his duties had been significantly reduced and that being ignored had created hostility.
In granting defendants summary disposition, the trial court stated:
Okay, in this case the Plaintiff is a member of a union and subject to a collective bargaining agreement and has not exhausted his administrative remedies. Secondly, he was not fired. He was not demoted. He was not transferred. Because he didn’t get a promotion is not the basis for [a] cause of action. The motion is granted on all counts.
On appeal, plaintiff challenges the trial court’s ruling that dismissal of the WPA claim was proper because plaintiff had not suffered an adverse employment action for the purposes of the act and had failed to exhaust union remedies, and that, in fact, he should have received summary disposition on that claim because he established without rebuttal a prima facie case. Plaintiff further asserts that he established the existence of a genuine issue of material fact concerning whether he had suffered outrageous and extreme conduct for the purposes of his emotional distress claim. Plaintiff additionally argues that defendants were not entitled to summary disposition because they failed to comply with the rules of discovery.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual sufficiency of a complaint and must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b); Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The trial court and this Court must view the substantively admissible evidence submitted at the time of the motion in the light most favorable to the party opposing the motion. Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, supra at 183.
We also review de novo questions of law, including statutory construction. Anzaldua v Band, 457 Mich 530; 578 NW2d 306 (1998).
III. WPA ANALYSIS
A. EXHAUSTION OF ADMINISTRATIVE REMEDIES
We first hold that the trial court erred as a matter of law by applying the doctrine of exhaustion of adminis trative remedies to plaintiffs statutory WPA claim. Plaintiffs administrative remedies are separate and distinct from his rights and remedies under the WPA. To apply the doctrine of exhaustion of administrative remedies would frustrate the purpose of the statute, particularly when the statute provides that relief must be sought “within 90 days after the occurrence of the alleged violation of [the] act” or be lost. MCL 15.363(1).
We are guided by the following principles of statutory construction set forth by our Supreme Court in Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997):
The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. The first step in discerning intent is to examine the language of the statute in question. We read the language according to its ordinary and generally accepted meaning. Judicial construction is authorized only where it lends itself to more than one interpretation. We also consider that remedial statutes, such as the Whistleblowers’ Protection Act, are to be liberally construed, favoring the persons the Legislature intended to benefit. [Citations omitted.]
Nowhere in the statute has the Legislature either expressly or impliedly limited its protection to whistle-blowers who have exhausted other possible remedies, whether those possible remedies are statutory, contractual, or administrative. Indeed, when the WPA duplicates possible common-law remedies, the statute provides the exclusive remedy. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78-79; 503 NW2d 645 (1993). The purpose of the statute is “to alleviate . . . the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses,” id. at 75, by removing the barrier of fear of retribution that prevents employees in the best position to report corruption from reporting it, Shallal, supra at 612. We thus further the purpose of the WPA of protecting whistleblowers by not reading into the statute limitations the Legislature did not express.
Our reading of the statute is also consistent with prior case law applying the WPA and comparable employment discrimination statutes. See, e.g., Shallal, supra at 617, quoting Rouse v Farmers State Bank of Jewell, Iowa, 866 F Supp 1191, 1204 (ND Iowa, 1994) (“ ‘ [W]histleblower statute[s] [are] analogous to antiretaliation provisions of other employment discrimination statutes and . . . the policies underlying these similar statutes warrant parallel treatment. . . .’ ”)• See also Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 280; 608 NW2d 525 (2000) (the WPA bears substantial similarities to Michigan’s civil rights statutes).
This Court first addressed the WPA in Hopkins v Midland, 158 Mich App 361; 404 NW2d 744 (1987). At issue in Hopkins was whether a union grievance resulting in an arbitration decision in favor of the employer barred the plaintiffs subsequent WPA action. The Court held “that [the] plaintiffs failure to submit [his WPA] claims to arbitration does not act as res judicata or collateral estoppel....” Id. at 366. The Hopkins Court reasoned that the rights and remedies accorded by the WPA are different from those of a collective bargaining agreement, noting that “the act creates rights belonging to individual employees, not collec tively represented groups.” Id. at 374-375. Consequently, “the arbitration proceeding [in Hopkins] was brought by [the] plaintiffs union, as is the usual case, to assert rights created under a collective bargaining agreement.” Id. at 375. But, “a civil action may be required to achieve the act’s goals.” Id.
This Court reviewed Hopkins when faced with the question whether a whistleblower who reports a violation of the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq., must bring the retaliation claim under MIOSHA. Tyrna v Adamo, Inc, 159 Mich App 592, 600; 407 NW2d 47 (1987). The Tyrna Court determined that the whistleblower did not have to do so and held “that an employee who reports a public health or safety violation to appropriate local authorities may maintain an action under the whistle-blowers’ act notwithstanding the fact that the employer’s wrongful conduct also violates MIOSHA.” Id. at 594. Although MIOSHA provides its own antiretaliation provision, the Tyrna panel reasoned that the WPA had broader application and provided a wider panoply of legal and injunctive remedies. Tyrna, supra at 598-600. Because the Court found no conflict between MIOSHA and the WPA, the Court held that, without further legislative direction, the plaintiff could pursue his claim under either statute. Tyrna, supra at 600-601.
This Court applied similar reasoning in concluding that a settlement of a union grievance filed on behalf of a discharged employee did not bar an action alleging wrongful termination under the Persons With Disabili ties Civil Rights Act (formerly the Handicappers’ Civil Rights Act), MCL 37.1101 et seq., and the Civil Rights Act (CRA), MCL 37.2101 et seq. Florence v Dep’t of Social Services, 215 Mich App 211, 216-217; 544 NW2d 723 (1996). The Court observed that a union has a duty to speak for its members with respect to the terms of a collective bargaining agreement, but a union does not have a similar duty to uphold rights its members possess independently of the collective bargaining agreement. Id. at 214. The Court held that because the employee’s contractual rights and statutory rights were distinctly separate, the employee had a right to proceed on her statutory claims regardless of the agreement that her union reached with respect to the contractual grievance. Id. at 214-216.
In sum, we hold that the trial court erred by ruling that plaintiff must have exhausted his administrative remedies, that is, by the filing of a union grievance, before he could invoke his statutory WPA rights. Our conclusion is consistent with the WPA’s requirement that claims be brought promptly or not at all, with the statute’s lack of any express or implied requirement for exhaustion of administrative remedies, and with a construction of the WPA “favoring the persons the Legislature intended to benefit.” Shallal, supra at 611.
B. ADVERSE EMPLOYMENT ACTION
We also hold that the trial court erred as a matter of law by implicitly ruling that plaintiff must show that he was fired, demoted, or transferred in order to state a viable WPA claim and that other bases, such as not getting a promotion or being threatened with employment action including discharge, were not sufficient. Plaintiff alleged, and supported by his deposition testimony, that Andrews referenced his September 2002 letter to the chief of police and told him to start looking for a job elsewhere if he kept “making waves” and wasting Andrews’s time. Viewed in the light most favorable to plaintiff, this allegation and evidence support inferences that defendant Andrews threatened plaintiff with discharge in retaliation for his September letter.
MCL 15.362 provides:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a. public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [Emphasis added.]
Thus, the elements necessary to establish a prima facie case of a WPA violation are: “(1) that plaintiff was engaged in protected activities as defined by the act; (2) that plaintiff was subsequently discharged, threatened, or otherwise discriminated against; and (3) that a causal connection existed between the protected activity and the discharge, threat, or discrimination.” Phinney v Perlmutter, 222 Mich App 513, 553; 564 NW2d 532 (1997). Here, plaintiffs allegation and testimony regarding Andrews’s statement, viewed in the light most favorable to plaintiff, support inferences that would be sufficient to satisfy elements 2 and 3, that is, reasonable jurors could find that defendant Andrews threatened plaintiff with discharge in retaliation for his September letter. See id. at 555-556. Accordingly, material disputed questions of fact exist regarding whether Andrews made the comment, whether it was a threat of discharge, and whether it was causally related to plaintiffs September 2002 letter. Summary disposition was therefore inappropriate. West, supra at 183.
Moreover, plaintiff alleges that as a result of his September letter, defendants significantly reduced his work responsibilities. In Peña v Ingham Co Rd Comm, 255 Mich App 299, 311; 660 NW2d 351 (2003), in the context of a retaliation claim under Michigan’s CRA, this Court addressed what constitutes an adverse employment action. This Court “defined an adverse employment action as an employment decision that is materially adverse in that it is more than a mere inconvenience or an alteration of job responsibilities and that there must be some objective basis for demonstrating that the change is adverse because a plaintiffs subjective impressions as to the desirability of one position over another are not controlling.” Id., citing Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 364; 597 NW2d 250 (1999) (other citations and internal punctuation omitted). Further, although an exhaustive list of adverse employment actions does not exist, the Peña Court noted “typical” adverse employment actions include “a termination in employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.” Peña, supra at 312 (citations omitted).
The record here is insufficient to determine whether plaintiff presented sufficient evidence to establish a material question of fact regarding his allegation of “significantly diminished material responsibilities.” Although plaintiff relies on Patel’s April 2003 memorandum indicating other employees in the FOS were assigned more duties than he was, plaintiff acknowledged that his assigned duties were significant and entailed accounting for between $65 million to $80 million. Moreover, even if plaintiffs material responsibilities were significantly diminished, plaintiff must also establish a causal connection to his September 2002 letter. “Summary disposition for the defendant is appropriate when a plaintiff cannot factually demonstrate a causal link between the protected activity and the adverse employment action.” West, supra at 184. This requires more than showing a mere temporal relationship between a protected activity and the alleged adverse employment action. Id. at 185-186, 186 n 12. Furthermore, in this case, there is a span of eight months between the protected activity and the alleged adverse employment action.
In addition, plaintiff alleges that his being socially isolated in the office creates a material question of fact regarding an adverse employment action. We find plaintiffs claim in this regard legally and factually deficient. In Peña, supra at 315, this Court held that the “type of ostracism or isolation [plaintiff alleges] is not the sort of conduct that rises to the level of an adverse employment action.” Moreover, plaintiff admitted in his deposition that he regularly communicated by e-mail with his supervisor and maintained a “working relationship” with her. Further, plaintiff admitted that he also maintained a civil “working relationship” with his coworkers; consequently, this allegation fails as a matter of law and fact.
Plaintiff also argues on appeal that he was passed over for promotion in January 2003 and April 2003. Although a failure to promote, if motivated by an intent to retaliate for protected activity, may come within the protection of the WPA, see Hopkins, supra at 377-378, plaintiff alleged neither incident in his complaint. Other than noting that the limitations period expired on the January 2003 appointment of Patel before plaintiff filed his complaint, see n 1, we decline to address this appellate argument further.
C. REPORT TO A PUBLIC BODY
Defendants argue, as an alternative basis for affirming the trial court decision, that plaintiff did not engage in a protected activity because his September 2002 letter to the chief of police and the mayor was merely a report submitted through the normal chain of command, not to a public body as required by the WPA. See Dickson v Oakland Univ, 171 Mich App 68, 71; 429 NW2d 640 (1988), overruled in part by Dudewicz, supra at 77. The trial court did not rule on this issue, but the issue presents a question of law, and we have before us the facts necessary to resolve the issue. See Providence Hosp v Nat’l Labor Union Health & Welfare Fund, 162 Mich App 191, 194-195; 412 NW2d 690 (1987). Accordingly, because this issue will arise on remand, we address it. To the extent that the WPA requires that a whistleblower report to a “public body” other than the whistleblower’s employer, we hold that plaintiff satisfied the requirement by forwarding a copy of his September 2002 letter to the mayor.
We discern in the plain language of the WPA no exception for reporting a violation or a suspected violation of a law to a public body when the whistleblower is also an employee of a public body. We also discern no ambiguity permitting judicial construction. Shallal, supra at 612. Nevertheless, we feel constrained by our Supreme Court’s partial approval in Dudewicz of the analysis in Dickson. In Dickson, the plaintiff was a police officer employed by the Oakland University Department of Public Safety. The plaintiff alleged that his superiors criticized him for not exercising more discretion before making an arrest. The plaintiff also alleged that his superiors declined to seek an arrest warrant for a university student after he reported being assaulted by the student. The Dickson Court reasoned that the WPA “is designed to protect employees who report suspected wrongdoing by their employer to a higher authority from retaliatory discharge.” Dickson, supra at 70. The Court held that because the plaintiff only “reported the wrongdoing of students and others to his employer pursuant to his job function,” his claim did not come within the meaning of the WPA. Dickson, supra at 71.
In Dudewicz, the plaintiff claimed that the defendant discriminated against him because he reported alleged criminal activity of a coemployee. The defendant argued that the WPA was limited to situations in which a whistle-blower reports alleged wrongdoing of his or her employer, not a fellow employee. The trial court agreed, relying on Dickson. Our Supreme Court, however, found no such limitation in the plain language of the statute. Dudewicz, supra at 74-76. The Court held that the Dickson Court erred by suggesting that the WPA was limited to protecting whistleblowers who report wrongdoing by employers. Dudewicz, supra at 77. But the Court also noted, that “the plaintiff in Dickson reported the violation only to his employer, not to a public body within the meaning of the WPA. On these facts, the panel correctly found that the WPA was inapplicable.” Id. at 77 n 4.
We hold that on the facts of this case plaintiffs report to the mayor satisfies the requirement of DicksonDudewicz. Although the mayor is the chief executive officer of the city, of which the police department is a part, the mayor’s office and the police department are separate “public bodies” as that term is defined in the WPA. Thus, a report to the mayor of wrongdoing within the police department constitutes a report to a “higher authority” under Dickson-Dudewicz and satisfies the statutory definition of “public body.”
MCL 15.361(d) defines “public body,” among other things, as:
(iii) A county, city, township, village, intercounty, intercity, or regional governing body, a council, school district, special district, or municipal corporation, or a board, department, commission, council, agency, or any member or employee thereof.
***
(v) A law enforcement agency or any member or employee of a law enforcement agency.
Just as the statute defines a “public body” as a “board, department, commission, council, agency,” or “law enforcement agency,” this Court too has recognized that an employee of a public body who reports a violation or a suspected violation of a law or regulation to a larger umbrella entity that is also a public body has made a report to a public body within the meaning of the WPA. For example, in Phinney, the plaintiff was a senior research associate at the Institute of Gerontology at the University of Michigan. The plaintiff reported the theft of her research to many University of Michi gan employees. This Court held that the University of Michigan was a “public body” as defined by the WPA and that her report to the U of M satisfied any requirement that the plaintiff whistleblower must report to a “higher authority.” Phinney, supra at 555.
In sum, to the extent that the WPA requires a whistleblower who is an employee of a public body to report a violation or a suspected violation of a law or regulation to a different public body, plaintiff has satisfied that requirement here.
D. PLAINTIFF’S CLAIM TO SUMMARY DISPOSITION
Plaintiff argues that the trial court should have granted him summary disposition on his WPA claim because he established a prima facie case of a violation of the act that defendants failed to rebut. We disagree.
When considering claims under the WPA, this Court applies the burden-shifting analysis used in retaliatory discharge claims under Michigan’s Civil Rights Act. Roulston, supra at 280-281. Accordingly,
the plaintiff bears the initial burden of establishing a prima facie case of retaliatory discharge. If the plaintiff succeeds, the burden shifts to the defendant to articulate a legitimate business reason for the discharge. If the defendant produces evidence establishing the existence of a legitimate reason for the discharge, the plaintiff must have an opportunity to prove that the legitimate reason offered by the defendant was not the true reason, but was only a pretext for the discharge. [Id. (citations omitted).]
As discussed in part III(B), plaintiff pleaded and factually supported at least one alleged WPA violation. But this conclusion is reached when the evidence plaintiff submitted is viewed in the light most favorable to him, as it must be on defendant’s MCR 2.116(0(10) motion for summary disposition. A presumptive view ing of the evidence in plaintiffs favor is not the same as concluding that reasonable minds could not differ regarding the conclusions to be drawn from the evidence. West, supra at 183. Accordingly, the trial court did not err in declining to grant plaintiff summary disposition on his WPA claim.
IV INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
We hold that the trial court properly dismissed plaintiffs claim for intentional infliction of emotional distress.
Although our Supreme Court has not formally recognized this tort, in recent years, we have. See, e.g., Nelson v Ho, 222 Mich App 74, 85 n 6; 564 NW2d 482 (1997), citing Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985).
In order to establish intentional or reckless infliction of emotional distress, a plaintiff must show (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Liability attaches . only when a plaintiff can demonstrate that the defendant’s conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. A defendant is not liable for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. [Lewis v LeGrow, 258 Mich App 175, 196; 670 NW2d 675 (2003) (citations and internal punctuation omitted).]
To determine whether conduct is so extreme and outrageous that it would trigger liability, one must consider whether relating the facts of the case to an average member of the community “ ‘would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” ’ ” Auto-Owners, supra at 603, quoting 2 Restatement Torts, 2d, § 46, comment d, p 73. Because reasonable minds could not differ and would conclude that defendants’ alleged conduct that forms the basis of plaintiffs claim is not “outrageous,” the court properly granted summary disposition. West, supra at 183.
Moreover, to the extent that plaintiff can prove damages as result of emotional distress causally related to a WPA violation, his exclusive remedy lies in the WPA. See Dudewicz, supra at 78-79. See, also, Phinney, supra at 560, holding that “emotional distress damages are awardable in a claim brought under the WPA.”
V. CONCLUSION
Because the trial court erred as a matter of law when it applied the doctrine of exhaustion of other remedies to plaintiffs WPA claim, and an erroneous standard regarding what may constitute an adverse employment action within the meaning of the WPA, we affirm in part, reverse in part, vacate the trial court’s order granting summary disposition to defendants, and remand this case to the trial court for further proceedings consistent with this opinion. We leave to the trial court’s discretion whether to grant the parties additional time for discovery. We do not retain jurisdiction. No costs may be awarded because neither party completely prevailed.
Plaintiff does not allege a failure to promote as a WPA violation in his complaint. Indeed, because plaintiff filed his complaint on July 1, 2003, the ninety-day WPA period of limitations had expired with respect to the January 2003 appointment of Patel as supervisor of the FOS. MCL 15.363(1). See also Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 290; 696 NW2d 646 (2005), declaring, with respect to the general three-year period of limitations of MCL 600.5805 and a Civil Rights Act retaliation claim, MCL 37.2701, that “the ‘continuing violations’ doctrine . .. has no continued place in the jurisprudence of this state.”
Generally, where statutory language is clear and unambiguous, the Legislature must have intended the meaning it clearly expressed, and the statute must he enforced as written; no further construction is required or permitted. Anzaldua, supra at 535. “A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.” Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002).
We note that MCL 408.1065 provides for the filing of a complaint with the Department of Labor with an opportunity for judicial review and enforcement of the administrative agency’s decision. In a case arising before the effective date of the WPA, this Court held that MIOSHA’s administrative remedies were exclusive. Ohlsen v DST Industries, Inc, 111 Mich App 580, 584; 314 NW2d 699 (1981).
We observe that plaintiffs report of a violation or a suspected violation of a law in this case implicated several fellow coworkers who might also be members of the same union. If so, the union would face a difficult conflict of interest by representing plaintiff regarding alleged retaliation for reporting wrongdoing.
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Markey, J.
In this case of first impression, we must decide whether Holly Township timely adopted a resolution to exempt its taxes from capture by the Village of Holly Downtown Development Authority. MCL 125.1653(3) provides, in pertinent part: “Not more than 60 days after a public hearing held after February 15, 1994, the governing body of a taxing jurisdiction levying ad valorem property taxes that would otherwise be subject to capture may exempt its taxes from capture by adopting a resolution to that effect and filing a copy with the clerk of the municipality proposing to create the authority.” The issue on appeal is whether, despite the use of the indefinite article “a” preceding “public hearing,” the Legislature intended to refer only to those public hearings necessary to create a downtown development authority or to amend the boundaries of an existing authority. By reading subsection 3 in context, we conclude that the Legislature intended to refer only to public hearings specified in MCL 125.1653. Accordingly, we reverse the trial court’s judgment to the contrary.
STATEMENT OF FACTS
In 1975, the Legislature adopted the downtown development authority act (the “Act”), MCL 125.1651 et seq. 1975 PA 197. As stated in its title, the Act was intended to allow the creation of downtown development authorities to, among other things, “correct and prevent deterioration in business districts; to encourage historic preservation;... to authorize the creation and implementation of development plans in the districts; [and] to promote the economic growth of the districts ....” Further, the Legislature stated that the Act was intended to “provide a means for local units of government to eliminate property value deterioration and to promote economic growth in the communities served by those local units of government.” MCL 125.1651a(h). The Act provides for the funding of downtown development authorities (DDAs) by “capturing” increases in taxes on property within the boundaries of the DDA levied by other governmental bodies. In theory, the “captured” increased taxes result from the increase of property values over an initial assessed valuation attributed to economic development the DDA activities stimulate. Thus, “tax increment financing is a government financing program that contributes to economic growth and development by dedicating a portion of the increase in the tax base resulting from economic growth and development to facilities, structures, or improvements within a development area thereby facilitating economic growth and development.” MCL 125.1651a(d).
The Act requires two types of public hearings. Section 3, MCL 125.1653, requires a public hearing before a municipality (a city, village, or township) creates a DDA with specified boundaries or amends an existing DDA’s district boundaries. Section 18, MCL 125.1668, requires a public hearing before the governing body that created the DDA adopts an ordinance approving the DDA’s development plan or tax increment financing (TIF) plan.
The village of Holly formed its DDA in 1984. In 1993, the Legislature amended the Act to add a procedure for taxing jurisdictions affected by a proposed new or expanded DDA to “opt out” and thereby prevent the DDA from capturing revenue that would otherwise go to the taxing jurisdiction. As amended by 1993 PA 323, § 3 of the Act provides:
(1) When the governing body of a municipality determines that it is necessary for the best interests of the public to halt property value deterioration and increase property tax valuation where possible in its business district, to eliminate the causes of that deterioration, and to promote economic growth, the governing body may, by resolution, declare its intention to create and provide for the operation of an authority.
(2) In the resolution of intent, the governing body shall set a date for the holding of a public hearing on the adoption of a proposed ordinance creating the .authority and designating the boundaries of the downtown district. Notice of the public hearing shall be published twice in a newspaper of general circulation in the municipality, not less than 20 or more than 40 days before the date of the hearing. Not less than 20 days before the hearing, the governing body proposing to create the authority shall also mail notice of the hearing to the property taxpayers of record in the proposed district and for a public hearing to be held after February 15, 1994 to the governing body of each taxing jurisdiction levying taxes that would be subject to capture if the authority is established and a tax increment financing plan is approved. Failure of a property taxpayer to receive the notice shall not invalidate these proceedings. Notice of the hearing shall be posted in at least 20 conspicuous and public places in the proposed downtown district not less than 20 days before the hearing. The notice shall state the date, time, and place of the hearing, and shall describe the boundaries of the proposed downtown district. A citizen, taxpayer, or property owner of the municipality or an official from a taxing jurisdiction with millage that would be subject to capture has the right to be heard in regard to the establishment of the authority and the boundaries of the proposed downtown district. The governing body of the municipality shall not incorporate land into the downtown district not included in the description contained in the notice of public hearing, but it may eliminate described lands from the downtown district in the final determination of the boundaries.
(3) Not more than 60 days after a public hearing held after February 15, 1994, the governing body of a taxing jurisdiction levying ad valorem property taxes that would otherwise be subject to capture may exempt its taxes from capture by adopting a resolution to that effect and filing a copy with the clerk of the municipality proposing to create the authority. The resolution takes effect when filed with that clerk and remains effective until a copy of a resolution rescinding that resolution is filed with that clerk.
(4) Not less than 60 days after the public hearing, if the governing body of the municipality intends to proceed with the establishment of the authority, it shall adopt, by majority vote of its members, an ordinance establishing the authority and designating the boundaries of the downtown district within which the authority shall exercise its powers. The adoption of the ordinance is subject to any applicable statutory or charter provisions in respect to the approval or disapproval by the chief executive or other officer of the municipality and the adoption of an ordinance over his veto. This ordinance shall be filed with the secretary of state promptly after its adoption and shall be published at least once in a newspaper of general circulation in the municipality.
(5) The governing body of the municipality may alter or amend the boundaries of the downtown district to include or exclude lands from the downtown district pursuant to the same requirements for adopting the ordinance creating the authority. [MCL 125.1653, as amended by 1993 PA 323; text added or altered by that public act shown in italics.]
1993 PA 323 did not affect § 18 of the Act, which requires a public hearing before a municipality adopts an ordinance approving a DDA development plan or TIF plan. As originally enacted and at all times pertinent to this case, § 18 provides:
(1) The governing body, before adoption of an ordinance approving a development plan or tax increment financing plan, shall hold a public hearing on the development plan. Notice of the time and place of the hearing shall be given by publication twice in a newspaper of general circulation designated by the municipality, the first of which shall be not less than 20 days before the date set for the hearing. Notice of the hearing shall be posted in at least 20 conspicuous and public places in the downtown district not less than 20 days before the hearing. Notice shall also be mailed to all property taxpayers of record in the downtown district not less than 20 days before the hearing.
(2) Notice of the time and place of hearing on a development plan shall contain: a description of the proposed development area in relation to highways, streets, streams, or otherwise; a statement that maps, plats, and a description of the development plan, including the method of relocating families and individuals who may be displaced from the area, are available for public inspection at a place designated in the notice, and that all aspects of the development plan will be open for discussion at the public hearing; and other information that the governing body deems appropriate. At the time set for hearing, the govern ing body shall provide an opportunity for interested persons to be heard and shall receive and consider communications in writing with reference thereto. The hearing shall provide the fullest opportunity for expression of opinion, for argument on the merits, and for introduction of documentary evidence pertinent to the development plan. The governing body shall make and preserve a record of the public hearing, including all data presented thereat. [MCL 125.1668.]
The parties agree on the pertinent facts leading up to this appeal. This dispute arose after the village passed a resolution giving notice of its intent to expand the boundaries of its DDA and noticed a public hearing for July 11, 2000. Although the DDA of the village of Holly had existed for a decade before the right of taxing jurisdictions to exempt their taxes from capture was created, subsection 5 of § 3 requires that DDA boundary expansions be approved through the same notice and public hearings process as for a new DDA. MCL 125.1653(5). Therefore, the village’s proposed DDA boundary expansion had to be considered at a public hearing. MCL 125.1653(2).
Following the July 11, 2000, public hearing, however, the village took no action on the original proposal and instead decided to consider different boundaries for an expanded DDA district. A second public hearing was held on October 24, 2000, to consider a new proposed ordinance to expand the boundaries of the DDA district. Holly Township was one of the affected taxing jurisdic tions that were given notice of the second public hearing as required by the Act. The parties agree that no taxing jurisdiction within the proposed expanded DDA boundaries adopted a resolution exempting its taxes from capture during the sixty days following the October 24, 2000, public hearing. On January 9, 2001, more than sixty days after the October 24, 2000, public hearing, the village adopted an ordinance to expand the boundaries of the DDA district. The village filed the ordinance with the Secretary of State and published it as required by law. See MCL 125.1653(4).
The village then gave the notices required under the Act for an April 24, 2001, public hearing on a proposed development plan, MCL 125.1667, and a TIF plan, MCL 125.1664, for the expanded DDA. The public hearing on the proposed plans occurred as scheduled, and the village thereafter adopted an ordinance approving them. Because of a problem with the original notice for the April 24, 2001, public hearing, the village again noticed and held a new public hearing on July 10, 2001. The village again enacted its ordinance approving the DDA’s development and TIF plans on August 14, 2001. See MCL 125.1668.
Meanwhile, on May 15, 2001, the township adopted it own resolution entitled “Resolution to Exempt Taxes from Capture.” The village received the township’s resolution on May 17, 2001. Thereafter, the township treasurer refused to account for or transfer taxes that the expanded DDA would otherwise have captured.
Unable to persuade the township that its exemption resolution was ineffective, plaintiffs, the village and its DDA, sought declaratory and equitable relief against the township and its treasurer. Plaintiffs asked the court to declare that (1) the township’s exemption resolution was invalid because it was not adopted within sixty days following the public hearing regarding expanding the boundaries of the DDA, (2) the DDA was entitled to the TIF revenue specified in the plan, (3) plaintiffs were entitled to an accounting, and (4) plaintiffs were entitled to the capture revenue and interest from the time the TIF plan was approved.
The trial court decided the case on cross-motions for summary disposition, the parties’ stipulation of facts and exhibits, and briefs. In its opinion, the trial court began with the premise that the Act requires two public hearings: the first to create a DDA or alter its boundaries and the second to adopt a TIF plan. The trial court noted that the parties agreed that the township’s exemption resolution was adopted within sixty days of the second public hearing (on the TIF), but not within sixty days of the first public hearing (on the DDA’s boundaries). The court ruled that the township’s exemption resolution was timely, reasoning “that absent a specific determination by [the] [legislature requiring exemption to be after the first hearing required, that the only fair interpretation is that the exemption may be done after any required public hearing, incident to the Act.” As self-described dicta, the court also reasoned that until a “final determination” was made, a taxing jurisdiction would not have a “full and clear understanding of the effect of the action taken,” and that “the Legislature did not intend for a hasty decision ..., but provide[d] for an opportunity [to opt out] once it was clear all issues had been determined by the enacted body.”
The village and its DDA appeal by right. Amici curiae, the Michigan Downtown and Finance Association and the Michigan Municipal League, have also filed briefs.
STANDARD OF REVIEW
The application of a statute is a question of law this Court reviews de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003). “If the language of a statute is clear, no further analysis is necessary or allowed.” Id. This tenet is based on the principles that when interpreting statutes, the judiciary’s primary goal is to give effect to the intent of the Legislature. The primary source of discovering legislative intent is the language of the statute itself. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). “The Legislature is presumed to have intended the meaning it has plainly expressed, and if the expressed language is clear, judicial construction is not permitted and the statute must be enforced as written.” Robertson v DaimlerChrysler Corp, 465 Mich 732, 748; 641 NW2d 567 (2002). When reading a statute, we must ascribe to every word or phrase its plain and ordinary meaning unless otherwise defined in the statute, and “it is important to ensure that words in a statute not be ignored, treated as surplusage, or rendered nugatory.” Id.
Furthermore, we must not read a word or phrase of a statute in isolation. Each word or phrase and its placement must be read in context of the whole act. Shinholster v Annapolis Hosp, 471 Mich 540, 549; 685 NW2d 275 (2004). “Contextual understanding of statutes is generally grounded in the doctrine of noscitur a sociis: ‘[i]t is known from its associates,’ see Black’s Law Dictionary (6th ed), p 1060. This doctrine stands for the principle that a word or phrase is given meaning by its context or setting.” Tyler v Livonia Pub Schools, 459 Mich 382, 390-391; 590 NW2d 560 (1999). Thus, this Court must consider “both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999), quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995).
ANALYSIS
We first summarize the salient parts of the excellent briefs of the parties and amici curiae.
Plaintiffs argue that MCL 125.1653(3) is ambiguous because it is susceptible to two or more constructions. But the Legislature intended that a taxing jurisdiction’s ability to exempt its taxes from capture is limited to the sixty-day period following a § 3 hearing because there is no similar opt-out provision in § 18 for a TIF plan hearing. Plaintiffs also argue that the sixty-day period of subsection 3 dovetails with the sixty-day waiting period of subsection 4 before a municipality may create an authority or amend the boundaries of an existing DDA. Plaintiffs further note that in the critical sentence of subsection 3, the phrase “the clerk of the municipality proposing to create the authority” pertains to the future, i.e., to a DDA not yet created. This indicates the Legislature’s intent to limit the opt-out ability of a taxing jurisdiction to only § 3 hearings necessary to create a DDA or amend its boundaries. Plaintiffs further argue that their construction of the statute is supported by the Act’s legislative history and the position of the State Tax Commission in a document it published entitled “Frequently Asked Questions About Tax Increment Financing.” In addition, plaintiffs contend that defendants’ interpretation of subsection 3 would frustrate the Act’s purposes.
Defendants argue that subsection 3 is clear and unambiguous; therefore, it must be enforced as written. According to defendants, the Legislature could have specifically limited the ability of a taxing jurisdiction to exempt its taxes from capture to sixty days following a § 3 public hearing, but instead used the indefinite article “a” to modify “public hearing.” This wording unambiguously includes either a § 3 hearing or a § 18 hearing. Defendants further assert that their interpretation of subsection 3 is consistent with the definition of the word “a” to mean “any.” See, e.g., Hagerman v Gencorp Automotive, 457 Mich 720, 728-729; 579 NW2d 347 (1998), quoting Black’s Law Dictionary (5th ed) in comparing the definitions of “a” and “the”:
“The word ‘a’ has varying meanings and uses. ‘A’ means ‘one’ or ‘any,’ but less emphatically than either.. ..
“.. . The most unlettered persons understand that ‘a’ is indefinite, but ‘the’ refers to a certain object.”
Defendants also argue that their interpretation of subsection 3 is consistent with good public policy because it permits taxing jurisdictions the opportunity to study details of proposed TIF and development plans before deciding whether to exempt their taxes from capture.
Amicus curiae, the Michigan Downtown and Finance Authority (MDFA), argues that reading the Act as a whole, and keeping in mind the separate purposes of a § 3 hearing and a § 18 hearing, the reference in subsection 3 to “a public hearing” is clear and unambiguous: It limits the ability of taxing jurisdictions to exempt taxes from capture to the sixty-day window following a § 3 public hearing conducted either to create a new DDA or to amend the boundaries of an existing DDA. The MDFA also argues that allowing taxing jurisdictions to opt out after a DDA has been created would hamper the DDA’s ability to adopt or amend development or TIF plans, thus denying such authorities a stable revenue stream.
Amicus curiae, the Michigan Municipal League (MML), agrees with the MDFA that the plain language of subsection 3 limits the opt-out provision to a § 3 hearing conducted to either create a new DDA or amend the boundaries of an existing DDA.
The MML argues in the alternative that if subsection 3 is ambiguous, the Legislature’s intent to limit the opt-out window to sixty days following a public hearing to create a new DDA or a public hearing to amend a DDA’s boundaries is manifested by contemporaneous amendments to similar statutes. Specifically, the MML notes that at the same time that the opt-out provision was added to the Act, an identical provision was added to the Local Development Financing Act (LDFA), MCL 125.2151 et seq., but not to the Tax Increment Finance Authority Act (TIFA), MCL 125.1801 et seq Although new development plans and TIF plans could be created within existing TIF authority boundaries, new TIF authorities could not be created or expanded after 1986, and, therefore, it was unnecessary to provide taxing jurisdictions with an opt-out provision. So, the MML argues, the Legislature’s failure to add opt-out language to the TIFA shows that it only intended that process to apply when an authority was being formed or boundaries amended.
We agree with defendants and the amici curiae that MCL 125.1653(3) is not ambiguous. Although reasonable minds may differ on the interpretation of subsection 3, that is not the test to determine whether a statutory ambiguity justifies judicial construction. Fluor Enterprises, Inc v Dep’t of Treasury, 265 Mich App 711, 720; 697 NW2d 539 (2005), citing Lansing Mayor v Pub Service Comm, 470 Mich 154, 165-166; 680 NW2d 840 (2004). “Rather, a provision of the law is ambiguous only if it ‘irreconcilably conflicts] ’ with another provision,... or when it is equally susceptible to more than a single meaning.” Id. at 166, citing Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003). We conclude that no conflict exists between subsection 3 and any other statutory provision and that, when read in context, subsection 3 is not equally susceptible to more than a single meaning. Consequently, subsection 3 is unambiguous, precluding judicial construction other than on the basis of the text of the statute. Shinholster, supra at 549. We hold that the interpretation of MCL 125.1653(3) advanced by plaintiffs and the amici curiae best states the Legisla ture’s intent. See Lansing Mayor, supra at 164 (the judiciary must “read the actual language of the law and determine its best interpretation”), and Houghton Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127, 135; 662 NW2d 758 (2003) (“This Court must determine the reasonable construction that best effects the Legislature’s intent.”). Our conclusion is based on the text of the statute, not policy reasons. We reject all policy-based arguments regarding subsection 3 because our “ ‘judicial role precludes imposing different policy choices than those selected by the Legislature ....’” Robertson, supra at 752, quoting People v Sobczak-Obetts, 463 Mich 687, 694; 625 NW2d 764 (2001).
Read as a whole, § 3 of the Act establishes the procedure for creating a DDA or amending the boundaries of an existing DDA. MCL 125.1653(1) and (5). Subsections 2, 3, and 4 of § 3 all dovetail harmoniously and indicate that “a public hearing held after February 15, 1994,” in subsection 3 must refer to the public hearing necessary for purposes of subsection 1 or 5. Subsection 2 requires notice “to the governing body of each taxing jurisdiction levying taxes that would be subject to capture if the authority is established and a tax increment financing plan is approved”, of “a public hearing to be held after February 15, 1994 ....” Subsection 3 provides an opt-out opportunity within sixty days of a public hearing described in the same manner as in subsection 2: “a public hearing held after February 15, 1994 ....” Further, the sixty-day opt-out window of subsection 3 exactly corresponds to the sixty-day waiting period of subsection 4 before a municipality may adopt an ordinance creating a DDA or amending an existing DDA’s boundaries as permitted by subsection 5. We therefore conclude that the most reasonable interpretation of these interlocking provisions is that “a public hearing to be held after February 15, 1994,” in subsection 2 and “a public hearing held after February 15, 1994,” in subsection 3, both refer to the same public hearing, one held to create a DDA or modify the boundaries of a DDA. Indeed, subsections 2, 3, and 4 provide the logical time sequence of establishing a DDA or modifying an authority’s boundaries: (1) notice to taxpayers and taxing jurisdictions of a public hearing, (2) a public hearing, (3) a sixty-day period during which taxing jurisdictions may opt out and during which the governing body desiring to create or amend a DDA may not act, and (4) adoption of an ordinance creating a DDA or amending its boundaries.
This reading of the statute is confirmed by the Legislature’s use of language with a future sense in the critical sentence conveying the right upon taxing jurisdictions to “exempt its taxes from capture by adopting a resolution to that effect and filing a copy with the clerk of the municipality proposing to create the authority.” MCL 125.1653(3). This language clearly limits “a public hearing held after February 15,1994,” in subsection 3 to a hearing to create a new DDA or to amend the boundaries of an existing DDA pursuant to subsection 5. In other words, a DDA is no longer “proposed” once its founding municipality completes the actions required to form the authority, i.e., adoption of the “ordinance establishing the authority and designating the boundaries of the downtown district. .. .” MCL 125.1653(4) (emphasis added). Defendants’ interpretation fails because a § 18 public hearing on a proposed development plan or TIF plan can only be held when a DDA already exists. MCL 125.1668. Indeed, a DDA must exist to propose a TIF or development plan. MCL 125.1664(1) and 125.1667(1).
Moreover, 1993 PA 323, which added subsection 3 of § 3, did not amend § 18 of the Act. In contrast to MCL 125.1653(2), which requires that notice be given “to the governing body of each taxing jurisdiction levying taxes that would be subject to capture if the authority is established and a tax increment financing plan is approved,” the Legislature did not require that notice be given to taxing jurisdictions of a § 18 public hearing. MCL 125.1668. Instead, before a public hearing on a proposed TIF or development plan, the governing body must afford taxing jurisdictions within the DDA district the opportunity to meet to be fully informed “of the fiscal and economic implications of the proposed development area.” MCL 125.1664(4). “The [DDA] may enter into agreements with the taxing jurisdictions and the governing body of the municipality in which the development area is located to share a portion of the captured assessed value of the district.” Id. (emphasis added). This plain and-unambiguous language makes permissive revenue-sharing agreements between an existing DDA and a taxing jurisdiction that has not timely exempted its taxes at the boundaries-creation stage during the sixty-day window afforded under subsection 3 of § 3 of the Act. See Phinney v Perlmutter, 222 Mich App 513, 561; 564 NW2d 532 (1997) (“The term ‘may’ in a statute ordinarily designates a permissive provision.”).
Our reading of the statute is further supported by the fact that the Legislature included a requirement that notice be provided to taxing jurisdictions and a sixty-day window to opt out in § 3 of the Act, but omitted such provisions from § 18 of the Act. We must assume that the omission from § 18 was intentional. Houghton Lake, supra at 135. “The omission of a provision in one part of a statute, which is included elsewhere in the statute, should be construed as intentional.” Cherry Growers, Inc v Agricultural Marketing & Bargaining Bd, 240 Mich App 153, 170; 610 NW2d 613 (2000). We cannot, under the guise of interpretation, give an option to taxing jurisdictions at the TIF or development plan stage that the Legislature has not provided for in the Act because courts should not include provisions in a statute that the Legislature has not included. Polkton Charter Twp v Pellegrom, 265 Mich App 88, 103; 693 NW2d 170 (2005), citing In re Wayne Co Prosecutor, 232 Mich App 482, 486; 591 NW2d 359 (1998).
The Legislature’s use of the indefinite article “a” preceding “public hearing held after February 15, 1994,” in subsection 3 of § 3 is defendants’ sole text-based argument in support of their position. Read literally and in isolation, “a public hearing held after February 15, 1994,” would include any public hearing after February 15, 1994, whether or not related to a DDA or the capture of taxes. But words in a statute should not be assigned their literal meanings where the context of their surroundings and the statute read as a whole indicate otherwise. Tyler, supra at 390-391; Root v Ins Co of North America, 214 Mich App 106, 109; 542 NW2d 318 (1995). Here, defendants concede that the phrase “a public hearing held after February 15, 1994,” is limited by its placement in the Act to a subset of public hearings related to the Act, i.e., public hearings after February 15, 1994, either pursuant to § 3 or pursuant to § 18. Defendants’ argument fails because it offers no textual basis for including § 18 public hearings in the phrase “a public hearing held after February 15, 1994,” that counters the text-based reasons for limiting that phrase to § 3 public hearings.
In summary, we hold that the Legislature intended “a public hearing held after February 15,1994,” in subsection 3 of § 3, MCL 125.1653(3), to mean only a public hearing specified in § 3 of the Act, i.e., either a public hearing to create a DDA or a public hearing to amend the boundaries of an existing DDA. Accordingly, we reverse the judgment in favor of defendants and remand this case to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Section 3 of the Act was further amended by 2004 PA 521 and 2005 PA 13, which amendments do not affect the analysis of the issue presented in this case.
2 2005 PA 13 added the following language at the end of subsection 1 of § 18: “Beginning June 1, 2005, the notice of hearing within the time frame described in this subsection shall be mailed by certified mail to the governing body of each taxing jurisdiction levying taxes that would he subject to capture if the development plan or the tax increment financing plan is approved or amended.” 2005 PA 13 also made other minor changes to § 18. These amendments do not affect our analysis.
The other taxing jurisdictions affected by the proposed DDA boundary expansion include Oakland County, Oakland Community College, the Oakland Intermediate School District, the Holly Area Schools, and the village of Holly.
We note that a TIF plan “may he modified if the modification is approved by the governing body upon notice and after public hearings and agreements as are required for approval of the original plan.” MCL 125.1664(5).
With respect to the LDFA, MCL 125.2154(3), as amended by 1993 PA 333, provides in pertinent part:
Not more than 60 days after a public hearing held after February 15,1994, the governing body of a taxing jurisdiction with millage that would otherwise be subject to capture may exempt its taxes from capture by adopting a resolution to that effect and filing a copy with the clerk of the municipality proposing to create the authority.
The bills that produced 1993 PA 323 and 1993 PA 333 were among numerous bills that required the enactment of all the specified bills for any to become law, including those bills that became Public Acts 312 through 314, 322, 323, 325 through 334, 336, 338, and 340 of 1993.
With respect to the TIFA, MCL 125.1829(1) provides: “Beginning January 1,1987, a new authority or authority district shall not be created and the boundaries of an authority district shall not be expanded to include additional land.”
2005 PA 13 amended § 18 to require taxing jurisdictions be notified of TIF or development plan public hearings as of June 1, 2005. See n 2 of this opinion. But the 2005 amendment cannot affect what the Legislature’s intent was in 1993 when it added subsection 3 of § 3 of the Act. Although the Legislature has now required that taxing jurisdictions receive notice of TIF or development public hearings, mandatory opportunities for informational meetings with governing bodies and permissive revenue-sharing agreements with DDAs remain unchanged. MCL 125.1664(4). | [
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R. B. Burns, J.
Defendant appeals from an order of the Workmen’s Compensation Appeal Board affirming the decision of the referee ordering payment of compensation benefits to plaintiff.
Plaintiff worked for defendant in an automobile body construction plant as a laborer from 1946 until January 24, 1974. There was evidence from which it may be inferred that plaintiff developed asthma, bronchitis, and emphysema from exposure to dust, smoke, fumes, and other pulmonary irritants in the plant. Plaintiff testified that he decided to retire early, because his breathing problems had progressed to the point where he had great difficulty getting through a day’s work. Defendant sought to establish that plaintiff’s breathing problems were not severe and were under control and that plaintiff actually retired early in order to obtain the higher pension benefits until age 65 which would apply before a pending change in the pension plan took effect. Medical testimony concerning disability and work relatedness was conflicting. After weighing the testimony, the board concluded that plaintiff became disabled from exposure to pulmonary irritants in the workplace. In the course of its opinion, the board referred to the controversy concerning the reason for plaintiff’s early retirement, stating:
"Be that as it may, it is immaterial why plaintiff left his job and the real issue is whether or not he suffered a work-related disability. Perry v Standard Automotive Parts, 392 Mich 756 (1974); Ward v Detroit Bd of Education, 399 Mich 879 (1977).”
It is not disputed on appeal that there exists competent evidence in the record to support the findings of fact made by the board. Rather, defendant argues that the board made an error on a question of law, see, e.g., Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923, 926 (1978), by concluding that it was immaterial why plaintiff left his job. Assuming defendant is correct, we may infer that the board might have reached a contrary conclusion had it not erroneously excluded from its consideration material evidence. Consequently, plaintiffs argument that we may not, or need not, reach the question of law because there exists competent evidence to support the board’s findings of fact is without merit. If, having found evidence to have been improperly excluded from consideration, we were to nonetheless affirm because other competent evidence supports the conclusion of the board, we would be improperly substituting our discretion for that of the board as to the weight to be given the excluded evidence vis-á-vis the remaining evidence. See, e.g., Pulley v Detroit Engineering & Machine Co, 378 Mich 418, 424; 145 NW2d 40, 43 (1966).
Although the board correctly recognized that the real issue was whether or not plaintiff suffered a work-related disability, rather than why plaintiff left his job, the board erred in concluding that the reason plaintiff left his job is immaterial.
Whether a worker has a compensable disability depends upon whether his injury resulted in a loss in wage earning capacity. See, e.g., Sims v R D Brooks, Inc, 389 Mich 91, 93; 204 NW2d 139, 140-141 (1973), Pulley v Detroit Engineering & Machine Co, supra, Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich App 217; 210 NW2d 360 (1973). Loss of wage earning capacity is a complex fact issue dependent upon the nature of work performed, continuing availability of work of that kind, the nature and extent of the disability, and the wages earned subsequent to injury. See Pulley v Detroit Engineering & Machine Co, supra, at 423; 145 NW2d at 43, Frammolino v Richmond Products Co, 79 Mich App 18, 27; 260 NW2d 908, 913 (1977). Evidence that an employee was still able to perform his job after injury is proba tive of the issue of whether the employee suffered a loss of wage earning capacity, but need not be decisive; it is only one of a complex of factors to be considered. See Pulley, supra, Medacco v Campbell, Wyant & Cannon Foundry Co, supra, Ward v Detroit Board of Education, 72 Mich App 568, 575-579; 250 NW2d 130, 133-134 (1976) (Bronson, J., dissenting). Similarly, evidence that an employee left his job for reasons unrelated to his injury tends to establish that he was still able to do the work, and had not suffered a loss in wage earning capacity.
Since the reason why an employee leaves his job is only one factor pertinent to the ultimate issue of whether the employee is entitled to compensation for his injury, it is improper to shift the inquiry from whether there was a loss in wage earning capacity to the issue of why the employee left his employment. Thus, in Perry v Standard Automotive Parts, 392 Mich 756 (1974) and Ward v Detroit Board of Education, 399 Mich 879 (1977), the Supreme Court remanded to the board for determination of whether plaintiffs suffered work-connected disabilities and not whether their work was terminated as a result of work-connected disabilities. Perry and Ward did not hold that the reason for termination is irrelevant to the determination of whether there was a loss in wage earning capacity. Such evidence is relevant. See Pulley, supra, Medacco, supra.
Evidence that plaintiff retired early because of lung problems would tend to establish loss of wage earning capacity. Evidence that he left early to obtain higher pension benefits would tend to establish the contrary. The weight to be given the evidence is for the board’s determination.
Remanded for reconsideration. | [
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Per Curiam.
Defendant was charged with and convicted by a jury of aiding and abetting the delivery of heroin, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a), MCL 767.39; MSA 28.979, and appeals by right.
From mid-September to November, 1974, defendant was under police surveillance for suspected trafficking in heroin. During this time, a police informant and an undercover policewoman made numerous purchases of heroin that had been supplied by defendant but delivered to them by an intermediary. This period of surveillance ended with defendant’s arrest on November 7, 1974. The prosecutor brought a number of separate but related cases against the defendant as a result of this investigation, one of which ended in defendant’s conviction and incarceration on September 18, 1975.
Defendant raises essentially four claims of error; due to our view of this case, however, we find it unnecessary to discuss three of these errors and direct our attention to defendant’s claim that the prosecutor violated MCL 780.131; MSA 28.969(1), by failing to bring the defendant to trial on a pending information within the 180 days specified in the statute. As a result, the defendant asserts that the trial court lost jurisdiction to try the instant case and that it must be dismissed.
MCL 780.131; MSA 28.969(1) provides a 180-day period in which a state prison inmate must be brought to trial on an outstanding charge. The sanction for violation is thé court’s loss of jurisdiction and dismissal. MCL 780.133; MSA 28.969(3) . Although the literal language of the statute speaks in terms of notice between prosecutor and the Department of Corrections to trigger the 180-day period, judicial interpretation has made it clear that actual notice is not necessary. People v Hill, 402 Mich 272, 280-281; 262 NW2d 641 (1978), People v Parker, 21 Mich App 399, 407; 175 NW2d 879 (1970).
In circumstances where there is a warrant, information, indictment or complaint outstanding against a defendant, the 180-day period is commenced by the coincidence of:
"[His] incarceration * * * in a state prison or [his] detention * * * in a local facility to await such incarceration * * * [and] the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one sentenced to their custody.” People v Hill, supra, at 281.
Defendant was convicted and sentenced on September 18, 1975, on another charge while another indictment was pending against him. The record does not reveal the actual date of his delivery to the Department of Corrections. In their brief, the people assert that the defendant was not "under lock and key” from September 18, 1975, to June 25, 1976, apparently to raise the issue of defendant’s actual incarceration. However, the people do not argue that the defendant was not in custody during this period or present an alternative method by which to measure the 180-day statutory period. That the defendant had appeared in other court proceedings during this period does not alter the ultimate fact of his detention on or about September 18, 1975, and that the Department of Corrections knew or should have known of the outstanding untried information against defendant as of that date. The coincidence of these two events marked the beginning of the statutory 180-day period.
The dispositive issue on appeal is whether the people complied with the statutory requirement that "such inmate shall be brought to trial within 180 days”. MCL 780.131; MSA 28.969(1). It is clear that the prosecutor need not conclude the trial within the 180 days. The people must, however, take good faith action to ready the case for trial within that time. People v Hill, supra, at 281, People v Castelli, 370 Mich 147; 121 NW2d 438 (1963), People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959). Courts have found lack of good-faith action where the prosecution did not keep a case alive with continued good-faith action, or where there has been a period of unexplained inaction in excess of 180 days or where the initial good faith action is followed by an "inexcusable delay” which evidences an intent not to bring the case to trial promptly.
An examination in some detail of the proceedings in the instant case is needed before a determination of compliance or noncompliance with the 180-day rule can be made.
Defendant was originally arraigned on the information on November 15, 1974. He was convicted of other violations of the Controlled Substances Act on September 18, 1975, that also grew out of the same period of police surveillance. As of that date, the instant case had not been tried or otherwise disposed of. After this conviction, the following proceedings in the case at bar appear on the record as occurring within the 180-day period:
September 26, 1975: The case is transferred to the Prosecutor’s Repeat Offender Bureau of the Wayne County Prosecutor’s Office for handling.
November 18, 1975: The prosecutor dismissed as to a co-defendant, taking no action as to defendant.
December 11, 1975: Trial is adjourned without date by the court.
February 9, 1976: Trial date of April 8, 1976, is set.
After the expiration of the 180-day limit trial was adjourned twice more, with the latest adjournment setting trial for July 21, 1976. Three writs of habeas corpus were procured to obtain the presence of defendant at trial, once on May 10, 1976, once on June 4, 1976, for pre-trial, and finally on June 16, 1976, for trial on June 21. The case was assigned to another trial judge; trial finally commenced on June 25, 1976.
Case law indicates that the people have the burden of establishing good faith action to comply with MCL 780.131; MSA 28.969(1). People v Hill, supra, at 282; see also, People v Forrest, 72 Mich App 266, 273; 249 NW2d 384 (1976). The people urge that they have met this burden by arguing that the defendant was brought to trial as soon as possible under the prevailing circumstances, pointing out that trial in the instant case was delayed by three intervening cases.
In People v Hill, supra, at 282, the Supreme Court determined that delay of a defendant’s trial resulting from other proceedings does not necessarily constitute a violation of MCL 780.131; MSA 28.969(1). However, the Court did not view such delay as justification for an automatic finding of good faith, but placed a duty on the prosecutor to demonstrate the reasonableness of his action.
In examining the record, we note that the intervening proceedings asserted as justification for the delay comprised pre-trials in two cases, held on the same day before the same judge. The trials were later adjourned and the cases eventually dismissed after sentencing in the instant case. Trial in yet a third case involving defendant commenced on April 4, 1976, and continued through April 6, 1976, at which time it was adjourned one week to await motions. The case evidently also did not proceed to verdict and sentencing and was dismissed after sentence was passed in the present case. It thus appears that a two-month hiatus existed between defendant’s April trial and the trial here.
We therefore do not find the delay to have been so reasonable as to justify a violation of the 180-day rule. The preliminaries in the instant case were complete many months in advance of trial. The intervening cases developed from the extensive surveillance of defendant involved the same principals and related violations of the Controlled Substances Act. Due to their similarities, these cases appear not to have created any particular problems of trial preparation that might reason ably create delay, nor does the prosecutor direct our attention to any difficulties in this regard.
We note, in concluding that the delay was not reasonable, that a prosecutor has a certain control in the management of his docket. He must be aware, in filing simultaneously several charges against one defendant, that a conviction of any one will trigger the 180-day rule. He must, therefore, absent delays by the defendant or extraordinary circumstances, take sufficient good faith action on all pending cases with reasonable dispatch to avoid a violation of the 180-day rule.
It remains to be seen whether any other action taken by the people to ready the case for trial may constitute good faith action within the 180-day period. The record reveals that within the 180-day period, after the case was assigned to the Prosecutor’s Repeat Offender Bureau, it was adjourned without date on December 12, 1975. A trial date of April 8, 1976, was later set on February 9, 1976. In those cases where good faith compliance with the 180-day rule was found, the prosecution had advanced the case with sufficient dispatch to conclude important initial procedural phases within 180 days and proceeded promptly thereafter. People v Castelli, supra (prosecution obtained writ of habeas corpus), People v Hendershot, supra (procurement of writ of habeas corpus, arraignment and preliminary examination), People v Wilder, 51 Mich App 280; 214 NW2d 749 (1974), lv den, 394 Mich 774 (1975) (holding of preliminary examination within 180 days), People v Asher, 32 Mich App 380; 189 NW2d 148 (1971), lv den 385 Mich 767 (1971) (preliminary examination held, court found consistent and eventual movement towards trial thereafter).
In the instant case, initial procedural steps had been completed well before defendant’s incarceration. Within the subsequent 180 days, proceedings were marked by periods of inaction, interrupted only by the setting and postponement of the trial date without reason given (a delay chargeable to the people, People v Forrest, supra, and a prior adjournment of trial without date. We are therefore not persuaded that the steps taken by the people satisfied their burden of good faith action sufficient to prevent the trial court’s loss of jurisdiction pursuant to MCL 780.133; MSA 28.969(3).
Accordingly, we reverse and remand to the trial court for entry of an order of dismissal with prejudice.
MCL 780.131; MSA 28.969(1) provides:
"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.”
This section states:
"In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, infor mation or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”
People v Parker, supra.
People v Forrest, 72 Mich App 266; 249 NW2d 384 (1976).
People v Hendershot, supra.
Copies of records apparently kept of the proceedings by the prosecutor’s office show that a pre-trial was held on December 31, 1975, before Judge Crockett, Jr. The actual Recorder’s Court file does not show that such a pre-trial was held on that date.
Trial was adjourned on March 23, 1976, to May 13, 1976, and again on May 17, 1976, to July 21, 1976. One week after this last adjournment, trial was re-set for June 21, 1976.
Records of proceedings against the defendant in three intervening cases between his conviction and trial in the case at bar, PlaintiffAppellee’s Brief, Appendix A. | [
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] |
V. J. Brennan, J.
Plaintiff, National Car Rental, appeals by leave the lower court’s order denying its motion to set aside an entry of default relating to the counterclaim filed by defendant, S & D Leasing.
In December, 1974, National filed a complaint in a district court in Shiawassee County against S & D Leasing to collect money allegedly due on an open account. National, a Minnesota corporation, had engaged the service of Payco, a collection agency, which in turn retained attorney Harry S. Cohen, who filed the original complaint. S & D counterclaimed, seeking damages for breach of contract in the amount of $500,000. Because of the amount in question, the case was removed to the circuit court.
According to the record, between April, 1975, and October, 1976, attorney Cohen wrote several letters to Payco advising them of the status of the litigation and of his belief that defense of a counterclaim was not within the scope of his representation of National. He requested that Payco inform National of his position, and advised in one of the letters that National might face a default. Cohen wrote to the circuit court in October, 1975, informing it of his position in the proceedings. Cohen maintained that he had not entered an appearance in the circuit court litigation and that he would try to contact National for the purpose of having an appearance made.
On October 4, 1976, an entry of default was entered against National. On that same date, the circuit court entered a default judgment in favor of S & D in the amount of $388,838.75, plus interest. In April, 1977, the circuit court clerk issued a writ of garnishment against the Bank of the Commonwealth in an effort to obtain funds owed to National. National maintains that this writ was its first notice of the default judgment.
National then filed a motion seeking to set aside the default judgment. In July, 1977, National’s motion to set aside the default judgment was granted, however the lower court refused to set aside the entry of default. This Court granted National’s application for leave to appeal on March 29, 1978.
On appeal the plaintiff has devoted the great majority of its brief to the "good cause shown” requirement of GCR 1963, 520.4 in setting aside a default. Plaintiff argues that attorney Cohen abandoned plaintiff’s representation, which, in and of itself, is sufficient good cause to set aside the default. Due to the interplay of the court rules and the particular facts and circumstances of this case, we need not address this aspect of plaintiff’s argument.
As stated above, plaintiff initiated the suit with attorney Cohen as its legal representative. Defendant brought its counterclaim. Pursuant to GCR 1963, 107.2(1), service upon plaintiff was performed by delivery to plaintiff’s attorney Cohen. Plaintiff was not actually served with process, since personal jurisdiction had been obtained by its initial filing of the suit. In addition, although attorney Cohen notified Payco of the counterclaim, he never actually notified plaintiff of the claim filed against it. The lower court improperly based its decision on GCR 1963, 520.4 and ruled that attorney Cohen’s neglect, being attributable to plaintiff, was not sufficient good cause to set aside the default.
Proper disposition of plaintiff’s motion to set aside the default judgment should have been made under GCR 1963, 528.2, which provides:
"Defendant Not Personally Notified. Any defendant over whom personal jurisdiction was necessary and acquired but who did not in fact have knowledge of the pendency of the action may, at any time within 1 year after final judgment, enter his appearance, and if he shows reason justifying relief from the judgment and innocent third persons will not be prejudiced, the court may relieve him from the judgment, order, or proceedings as to which personal jurisdiction was necessary, on payment of such costs thereon or such creditors as the court deems just.”
In 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 180, the above-quoted rule is explained as follows:
"The intent of the rule is that failure to receive actual notice is itself sufficient ground for relief of default judgment, if the defendant can show that he has a meritorious defense and if the rights of innocent third parties will not be prejudiced.” (Emphasis added.)
Accordingly, the requisite showing affording relief under the rule is (1) lack of actual notice, (2) meritorious defense, and (3) rights of third parties will not be prejudiced. In the present case there has been no showing that third-party rights would be prejudiced by setting aside the entry of default and judgment. Further, the affidavits filed below by plaintiff indicate the existence of a meritorious defense. The only fact we need address is whether plaintiff was somehow actually notified of the counterclaim.
The lower court found, in reliance on the deposition of Mr. Valentino, that, as a matter of fact, plaintiff was actually notified. A trial court’s finding of fact will not be set aside unless it is clearly erroneous. GCR 1963, 517.1. A finding is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). This standard involves both a consideration of whether there was sufficient evidence and whether that evidence supports the trial court’s finding.
Upon review of the Valentino deposition, the only indication of actual notice to plaintiff is a statement by the deponent that in August, 1976, he contacted by telephone an employee of plaintiff, Mrs. Ervasti, and stated that a counter-suit had been filed. He also stated that he mailed to Mrs. Ervasti "some papers regarding a counter-suit with S & D”. However, on Payco’s file jacket, there was no indication that any transmittal letter of any other "papers” was in fact mailed; and the notation as to the call in no way indicated the subject of any discussion. In Mrs. Ervasti’s affidavit filed below she stated that she could not recall a telephone conversation with Valentino, and that she did not receive any correspondence relating to the counterclaim. Ervasti’s supervisor, Mr. Haber-man, stated in his affidavit filed below that he did not receive any correspondence relating to a counterclaim and that he had no knowledge of its receipt by anyone under his supervision.
Taking into account the sparsity of evidence on the question of plaintiffs actual notice, together with the lower court’s emphasis on plaintiffs imputed knowledge through attorney Cohen, we are left with the firm conviction that a mistake has been made. Upon careful review we find that plaintiff had no actual notice of the counterclaim.
Under GCR 1963, 528.2, as stated above, lack of actual notice is sufficient to set aside the default and judgment in the case at bar. Even if we were to apply the "good cause shown” standard of GCR 1963, 520.4, we would conclude that lack of actual notice was "a reasonable excuse for failure to comply with the requirements which resulted in the default”. Okros v Myslakowski, 67 Mich App 397; 241 NW2d 223 (1976).
The lower court’s order is reversed, the default is set aside and the cause is remanded for proceedings consistent with this opinion.
Costs to plaintiff.
Bashara, P.J., concurred.
A plaintiff is within the ambit of this rule when a counterclaim is filed, since such action places a plaintiff in the position of a defendant to that counterclaim.
Mr. Valentino was an employee of Payco in charge of the subject collection acount. | [
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Per Curiam.
Citizens Insurance Company of America brought an action seeking a declaration that it was not liable to its insureds Marvin Detloff and Paula Detloff under either its contract of insurance or Chapter 31 of the Insurance Code of 1956 as amended, MCL 500.3101 et seq.; MSA 24.13101 et seq. Its motion for summary judgment was denied and leave for interlocutory appeal was granted.
On or about June 4, 1976, the minor defendant Paula Detloff was a pedestrian on a public highway in Macomb County. She was struck and severely injured by a forklift which was being driven from one construction site to another. The forklift was owned by the Hajduk Construction Company and was not insured as a motor vehicle, was not registered with the Secretary of State, and carried no license plate. The forklift has four wheels and is powered by an internal combustion engine. It is conceded that the machine was being operated on a public highway at the time of the incident. Paula’s father, defendant Martin Detloff, is the insured under a "no-fault” insurance policy issued by the plaintiff Citizens Insurance Company of America (Citizens).
The controversy arises out of the following language contained in the policy:
"The Company will pay in accordance with Chapter 31 of the Michigan Insurance Code to or on behalf of each eligible injured person or his dependent survivors, personal protection benefits consisting of
"(a) allowable expenses
"(b) work loss, and
"(c) survivor’s loss
"as a result of the ownership, operation, maintenance, or use, including loading or unloading of a motor vehicle as a motor vehicle.
" 'Motor vehicle’ means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than two wheels.”
MCL 500.3101; MSA 24.13101 provides in pertinent part as follows:
"Sec. 3101. (1) The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall be in effect continuously during the period of registration of the motor vehicle.
"(2) 'Motor vehicle’ as used in this chapter, except for section 3103, means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels, but does not include a moped * * * [citation omitted].
"(3) Security may be provided under a policy issued by an insurer duly authorized to transact business in this state which affords insurance for the payment of such benefits. A policy of insurance represented or sold as providing security shall be deemed to provide insurance for the payment of the benefits.” (Emphasis supplied).
As can be seen the definition of "motor vehicle” in the insurance contract is exactly that set forth in § 3101(2). Citizens does not argue that this language does not include the forklift for it had more than two wheels, was powered by an internal combustion engine, and was in fact being operated on a public highway when the accident occurred. Citizens, however, does argue that the insurance contract incorporates all of Chapter 31 of the Michigan Insurance Code and claims that § 3101(1) of Chapter 31 operates to relieve it of liability, despite the definition in its insurance contract, because the forklift is not required to be registered. We cannot agree.
There is no conflict between the contract of insurance and the above-quoted statute, nor does the reference to Chapter 31 create an ambiguity, as Citizens argues. Citizens was free to have incorporated the specific language of § 3101(1) into its definition of "motor vehicle”, thus limiting the definition of "motor vehicle” to those vehicles requiring registrations. Citizens chose not to do so, instead incorporating the broader definition of § 3101(2). The express definition must control.
Assuming arguendo that, as Citizens contends, the phrase "the company will pay in accordance with Chapter 31 of the Michigan Insurance Code” incorporates the registered vehicle limitation of § 3101(1) and is not overridden by the inclusion of the express definition of "motor vehicle” drawn from § 3101(2), we would still be inclined to affirm the decision of the trial court. If such were the case a true ambiguity would exist.
However, when ambiguities exist in a contract of insurance they are to be construed against the author of the contract. Dochod v Central Mutual Ins Co, 81 Mich App 63; 264 NW2d 122 (1978), citing Nickerson v Citizens Mutual Ins Co, 393 Mich 324, 330; 224 NW2d 896 (1975), which set forth the principle that ambiguous language in an insurance contract was to be "strictly construed against the insurer”.
We note that the trial court did not consider the language to be ambiguous. The motion for summary judgment asked for a decision based upon the contract as well as upon Chapter 31. The decision of the trial court based upon the contractual language was correct.
Affirmed. Costs to appellees. | [
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D. F. Walsh, J.
Defendants appeal entry by the Court of Claims of judgment for plaintiffs. The Court of Claims ruled that plaintiffs, officers and classified employees of the Michigan State Police, were entitled to compensation for standby time. Specifically, the Court of Claims judge found that scheduled off-duty standby hours were "work” within the meaning of the rules of the Civil Service Commission. He further ruled, however, that the Court of Claims did not have jurisdiction to require the Civil Service Commission to set any particular rate of compensation.
We address two issues on appeal:
1. Did plaintiffs’ failure to exhaust administrative remedies preclude judicial review?
2. If administrative remedies had been exhausted, or if exhaustion was unnecessary or had been excused, did the Court of Claims have jurisdiction over plaintiffs’ action?
Only two of the named plaintiffs attempted to exhaust administrative remedies before filing for relief in the Court of Claims. Detective Sergeant James M. Thomas filed a grievance but stopped at step three of the Civil Service Commission’s established grievance procedure. Detective Sergeant George Bays proceeded to step four, where he requested a hearing on his grievance. In response to his request, John G. Fitch, employee relations administrator of the Civil Service Commission’s state employee relations division, wrote the following letter:
"This letter is in response to your appeal to Step 4. A conference between the parties was called by the Employee Relations Division and held on September 28, 1973.
"Since your appeal concerns a 'stand-by’ pay policy it will be necessary for you to provide this office with a copy of the policy which has been violated before we can process your grievance further.
"If no 'stand-by’ pay policy exists, and the intent of your grievance is to have the Hearing Officer provide such a policy, then the matter cannot be handled through the Grievance Procedure. It is not within the jurisdiction of the Hearing Officer to legislate policies, rules or regulations.”
Det. Bays did not respond to Mr. Fitch’s letter. He did not appeal to the Civil Service Commission itself (step five). Instead, he filed his claim for standby compensation in the Court of Claims. In addition to challenging the jurisdiction of the Court of Claims over plaintiffs’ claim, defendants unsuccessfully argued in that forum that plaintiffs had not exhausted the administrative remedies available to them as established by the Civil Service Commission.
It is plaintiffs’ position that, based on Mr. Fitch’s letter, further pursuit of Civil Service Commission remedies would have been an exercise in futility. Trojan v Taylor Twp, 352 Mich 636, 638-639; 91 NW2d 9 (1958). We disagree. In the Court of Claims plaintiffs stated their theory as follows: "Plaintiffs claim that these after duty hours, which said officers are required to serve, on a scheduled basis, are actual hours worked, and are compensable.” They then proceeded to discuss various rules of the Civil Service Commission which, they argued, supported their claim. (Theory of Plaintiffs’ Case and Brief in Support Thereof, filed in the Court of Claims February 3, 1977.) In rendering a decision for plaintiffs, the Court of Claims judge relied on certain Civil Service Commission rules which, he found, established their right to compensation for standby time.
We are not convinced that, had he set forth the specific basis for his grievance as later revealed in the Court of Claims (i.e., certain rules of the Civil Service Commission), plaintiff Bays would have been denied a hearing at step four. Nor are we convinced that it would have been futile for him to take his grievance to step five and ask the commission to order a step four hearing. The record does not set forth sufficient evidence of prejudgment on the part of the Civil Service Commission to allow immediate judicial review. Hardy v State Personnel Director, 392 Mich 1, 5, fn 1; 219 NW2d 61 (1974). We note also that the Civil Service Commission has filed an amicus curiae brief in this Court and has indicated its desire for development of a full record before the commission. In light of the several significant policies served by the doctrine of exhaustion of administrative remedies, we are not persuaded that exhaustion was excused in this case. IBM Corp v Dep’t of Treasury, 75 Mich App 604, 610; 255 NW2d 702 (1977), lv den 401 Mich 816 (1977).
We also reject plaintiffs’ argument that exhaustion was not necessary because their action filed in the Court of Claims was not an appeal from the Civil Service Commission but rather a claim for compensation for past services. The cases cited by plaintiffs in support of their argument did not involve interpretation of civil service rules. Farrell v Unemployment Compensation Comm, 317 Mich 676; 27 NW2d 135 (1947), Norris v Liquor Control Comm, 342 Mich 378; 70 NW2d 761 (1955). The instant plaintiffs were in effect asking the Court of Claims to exercise supervisory power over the Civil Service Commission. The Court of Claims has no power to do so. Farrell v Unemployment Compensation Comm, supra, at 680.
We hold that exhaustion of administrative remedies was necessary and now turn to the question of which court will be the appropriate forum for review in the event of appeal from a final Civil Service Commission ruling.
Although the Administrative Procedures Act does not apply to the internal procedures of the Michigan Civil Service Commission, Viculin v Dep’t of Civil Service, 386 Mich 375, 393-394, 396-397, fn 20; 192 NW2d 449 (1971), MCL 24.203(2); MSA 3.560(103)(2), the Supreme Court has adopted GCR 1963, 706.3, which was intended to promote uniformity of the appeal process from administrative agencies, Viculin v Dep’t of Civil Service, supra at 396, fn 20, and which provides as follows:
"An appeal from a decision of the Michigan Civil Service Commission is governed by the provisions for appeals from administrative agencies in the Administrative Procedures Act.” MCL 24.201 et seq.; MSA 3.560(101) et seq.
The Administrative Procedures Act establishes the proper forum for judicial review of administrative decisions in MCL 24.302; MSA 3.560(202):
"Judicial review of a final decision or order in a contested case shall be by any applicable special statutory review proceeding in any court specified by statute and in accordance with the general court rules. In the absence or inadequacy thereof, judicial review shall be by a petition for review in accordance with sections 103 to 105 [MCL 24.303-24.305; MSA 3.560(203)-3.560(205)].”
Under § 103 of the APA, judicial review of administrative decisions is available in circuit court. We agree with Justice Levin that the Court of Claims has no jurisdiction to review administrative action:
"The Court of Claims Act [MCL 600.6401 et seq.; MSA 27A.6401 et seq.] does not establish an 'applicable special statutory review proceeding’ and therefore judicial review may be obtained in the circuit court. The Court of Claims Act establishes a procedure for commencement and adjudication of original actions against the state. The Court of Claims, a statutory court of limited jurisdiction, has no power of judicial review of administrative action. Judicial review of administrative action may be obtained only in the circuit court, the Court of Appeals and this Court.” Greenfield Construction Co, Inc v Dep’t of State Highways, 402 Mich 172, 222; 261 NW2d 718 (1978), reh den 402 Mich 961 (1978). (Opinion of Levin, J.) (Footnotes omitted.)
The Court of Claims has exclusive jurisdiction over "all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its * * * agencies”. MCL 600.6419(1)(a); MSA 27A.6419(1)(a). The Court of Claims Act, however, is not to be construed so as to deprive circuit courts of jurisdiction over review of state agency determinations. MCL 600.6419(4); MSA 27A.6419(4).
Since the jurisdiction of the Court of Claims over claims against the state and its agencies is always exclusive, to hold that judicial review of a state agency’s decision can be sought in the Court of Claims would be to require all such appeals to be brought in that forum. This would directly contradict the plain intent of the Legislature that judicial review of state administrative agencies be available in the circuit court.
We hold that, after exhaustion of Civil Service Commission remedies and in the event of appeal from a final Civil Service Commission decision, jurisdiction over this action shall be in the circuit court. The entry of judgment for plaintiffs in the Court of Claims is vacated; this case is remanded to the Civil Service Commission. We do not retain jurisdiction.
No costs, a public question.
The Court of Claims reserved judgment on whether the named plaintiffs could proceed as representatives of a class composed of all officers of the Michigan State Police similarly situated. We do not express an opinion as to this issue. We note, however, that our order of remand to the Civil Service Commission for exhaustion of administrative remedies will be adequately followed if one of the named plaintiffs exhausts those remedies. The reviewing court, if judicial review is sought, can then reach the merits of the class action issue if it is again raised in that forum.
Nor do we express any opinion on the statute of limitations issue raised in the Court of Claims by defendants, since the Court of Claims reserved judgment on that issue.
As originally worded this court rule required that appeals from the Civil Service Commission be filed in the circuit court. The change in language "involve[d] reorganization and style rather than substance”. 400 Mich 970-971 (1977). | [
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R. M. Maher, J.
Plaintiff Natalie Whitmore brought this action for damages she allegedly suffered in a fall in the parking lot of the Port Huron store of defendant Sears. Defendant Globe Union Company’s liability was premised on the action of its driver in causing fuel to spill from its truck onto the Sears parking lot, creating a slippery area on which plaintiff fell. At the close of plaintiff’s proofs, defendants moved for a directed verdict. The motion was denied by the trial court, and defendants proceeded to present their defenses. The jury returned a verdict in favor of plaintiff and against defendant Sears for $40,000. As against defendant Globe Union, the jury found no cause of action. Sears filed a motion for judgment n.o.v. or, in the alternative, for a new trial. Upon consideration of this motion, the trial court modified the jury’s verdict to $30,000 and ordered that both defendants be held jointly and severally liable therefor. Both defendants now appeal, Sears alleging inter alia error in the trial court’s denial of its motion for a directed verdict. Globe Union joins in Sears’ claims of error and alleges in addi tion that the trial court erred in making it jointly and severally liable for the judgment against Sears.
The only evidence presented by plaintiff at trial was her own testimony and that of a companion who witnessed her fall. Plaintiffs companion, Emily Blackney, testified that she went with plaintiff, in plaintiffs automobile, to Sears at about 10:30 a.m. on August 16, 1972. They parked in the south corner of the parking lot and entered the store to shop. Later, they went to a nearby restaurant for lunch, returning to the store after about an hour. Upon returning to Sears, they picked up a catalog at the catalog desk and then left the store. As they walked to Mrs. Whitmore’s car, Mrs. Blackney noticed a wet area on the parking lot just as she stepped into it. She started to warn plaintiff to watch her step, but at the same moment plaintiff fell onto her knees. After the fall, plaintiff was assisted by several Sears employees, who also took steps to soak up the wet substance, which now appeared to be a petroleum product.
Plaintiff’s testimony regarding her movements on the day in question confirmed Mrs. Blackney’s testimony. Plaintiff added only that they left the restaurant at about noon to return to Sears and left immediately after picking up the catalog. She testified that she did not see the substance on the parking lot until she stepped in it, although she acknowledged that she had a clear view of the area. The remainder of plaintiffs testimony concerned the damages she allegedly suffered as a result of the fall.
Defendants claim that their motions for directed verdicts should have been granted because plaintiff failed to make out a prima facie case of negligence against either of them. We are constrained to agree. We note first of all that there was no testimony whatsoever to link Globe Union with the substance on the parking lot which allegedly caused plaintiffs fall. Neither plaintiff nor her witness testified to seeing Globe Union’s agent spill the oily substance or, indeed, to seeing anyone or anything connected with Globe Union in the parking lot or nearby. Where there is no evidence from which defendant’s negligence may be inferred, the trial court is justified in directing a verdict of no cause of action, Rockey v General Motors Corp, 1 Mich App 100; 134 NW2d 371 (1965). We have no doubt that the trial court in this case erred in denying Globe Union’s motion for a directed verdict. In view of the fact that the jury rendered a verdict of no cause of action against Globe Union, the error might be considered harmless, Shepard v Barnette, 4 Mich App 243; 144 NW2d 685 (1966). Because the trial court set aside that verdict and entered judgment against Globe Union, however, we are constrained to reverse the judgment against Globe.
The error committed by the trial court in denying Sears’ motion for a directed verdict, on the other hand, cannot be regarded as harmless, in view of the subsequent jury verdict against Sears. The cause of action against Sears rests on a storekeeper’s duty to provide safe premises for business invitees. The parameters of that duty were summarized in Serinto v Borman Food Stores, 380 Mich 637, 640-641; 158 NW2d 485 (1968), quoting a much earlier case:
"Carpenter v Herpolsheimer’s Co. (1937), 278 Mich 697 [271 NW 575] (syllabus 1), distinctly and concisely sets forth defendant’s duty as a storekeeper, as follows:
" 'It is the duty of a storekeeper to provide reasonably safe aisles for customers and he is liable for injury resulting from an unsafe condition either caused by the active negligence of himself and his employees or, if otherwise caused, where known to the storekeeper or is of such a character or has existed a sufficient length of time that he should have had knowledge of it. ’ (Emphasis ours.)”
See also Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975).
Thus, in order to recover from Sears, plaintiff must show either that an employee of Sears caused the unsafe condition or that a servant of Sears knew or should have known that the unsafe condition existed, Anderson v Merkel, 393 Mich 603; 227 NW2d 554 (1975), Suci v Mirsky, 61 Mich App 398; 232 NW2d 415 (1975). Notice may be inferred from evidence that the unsafe condition has existed for a length of time sufficient to have enabled a reasonably careful storekeeper to discover it, Suci v Mirsky, supra, Winfrey v SS Kresge Co, 6 Mich App 504; 149 NW2d 470 (1967). Where there is no evidence to show that the condition had existed for a considerable time, however, a directed verdict in favor of the storekeeper is proper, Serinto v Borman Food Stores, supra, Suci v Mirsky, supra, Winfrey v SS Kresge Co, supra. Cf. Holliday v National Dairy Products Corp, 391 Mich 816 (1974), reversing 50 Mich App 366; 213 NW2d 289 (1973).
Plaintiff had the burden of producing evidence sufficient to make out a prima facie case, Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708; 202 NW2d 727 (1972), Rose v McMahon, 10 Mich App 104; 158 NW2d 791 (1968). Where a motion for directed verdict was made at the close of plaintiff’s proofs, we look only at plaintiff’s case in chief to determine whether she has carried her burden, Taylor v Butcher, 349 Mich 581; 84 NW2d 779 (1957), Snyder v Johnson, 264 Mich 286; 249 NW 856 (1933). Should we find any evidence there, however slight and circumstantial in nature, from which a jury could infer that defendant was negligent, we would then weigh defendant’s proofs to determine whether they bolster the inference of negligence or rebut it, Mitcham v Detroit, 355 Mich 182; 94 NW2d 388 (1959), Kasza v Detroit, 370 Mich 7; 120 NW2d 784 (1963). This latter rule is sometimes referred to as the Michigan version of the doctrine of res ipsa loquitur, Gadde v Michigan Consolidated Gas Co, 377 Mich 117; 139 NW2d 722 (1966), Weisenberg v Village of Beulah, 352 Mich 172; 89 NW2d 490 (1958). The doctrine was well-articulated in Burghardt v Detroit United Ry, 206 Mich 545, 546-547; 173 NW 360; 5 ALR 1333 (1919), quoted in Gadde, supra, 121:
" 'This Court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made.’ ”
See also Stefan v White, 76 Mich App 654; 257 NW2d 206 (1977), Rose v McMahon, supra.
Applying these rules to the case before us, we conclude that plaintiff did not establish circumstances "such as to take the case out of the realm of conjecture” and into "the field of legitimate inferences from established facts”. Gadde, supra, 121. Plaintiff established that there was an oily substance on Sears’ parking lot at the spot where she fell, from which one might be able to infer that the substance caused her fall, cf. Stefan v White, supra. There is no testimony, however, from which one may infer that the substance came there as a result of the actions of Sears’ employees; nor is there evidence that Sears had actual notice of the presence of the substance. Finally, there is no testimony that the substance had been in the parking lot for a considerable period of time, evidence from which the inference could be drawn that Sears should have known of its presence. Indeed, there is no evidence from which a jury could infer that the substance had been on the parking lot surface for some time (e.g., testimony that many cars appeared to have driven through the substance). Here, as was the case in Serinto v Borman Food Stores, supra, the substance was indisputably at the spot where plaintiff fell, but how and when it came there were matters of conjecture.
Plaintiff failed to carry the burden of establishing a prima facie case against defendants; defendants’ motions for directed verdicts at the close of plaintiffs case should therefore have been granted. We therefore reverse and remand for entry of judgments in favor of both defendants. Because of our disposition of this issue, we do not reach defendants’ other claims of error.
Reversed.
As authority for the proposition that a denial of a motion for directed verdict is reviewed as of the time it was made, the cited cases cite 1948 CL 618.56 and 618.57 and their predecessor statutes, which have been carried forward, substantially unchanged, as GCR 1963, 515. | [
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Bronson, P.J.
The present case involves the proper interpretation to be given the recently enacted Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., specifically whether the act prohibits a public body from voting by secret ballot.
Due to an increase in population, defendant township became eligible for three additional class C liquor licenses. Approximately 27 people applied for the licenses and in order to trim the number of applicants to the three that would be granted the licenses, the township board utilized a system of elimination ballots. On the first elimination ballot the board members voted for 12 applicants and passed the ballots to the clerk who tallied the votes and announced the names of the 12 people who received the most votes. The clerk did not, however, announce which board members voted for which applicants nor did she record the votes in the minutes. This same procedure was repeated to reduce the number of applicants from 12 to six and finally from six to three. After the number of applicants had been reduced to three, individual resolutions for each successful applicant were approved by a roll call vote which was recorded in the minutes. Although plaintiff was present at the meeting, he raised no objection to this voting procedure.
Following the meeting, plaintiff commenced the present lawsuit, seeking a declaration pursuant to GCR 1963, 521 that the voting procedure used by the township board was in violation of § 3(2) of the Open Meetings Act. Plaintiff also sought to have the board’s decision granting the liquor li censes invalidated and to enjoin the board from using this method of voting in the future. Defendant township moved for summary judgment claiming plaintiff failed to state a cause of action under the act. The trial court granted the motion and plaintiff now appeals as of right.
In support of its motion for summary judgment defendant first alleged that plaintiff’s complaint failed to allege the statutory requirements set forth in MCL 15.270(2); MSA 4.1800(20X2) which are prerequisities to the invalidation of any decision of a public body under the act.
"A decision made by a public body may be invalidated if the public body has not complied with the requirements of § 3(1), (2) and (3) in making the decision * * *."
Defendant contends that since the Legislature used the word "and” the requirements are conjunctive, not disjunctive. According to defendant, plaintiff must plead and prove violations of all three sections before a decision can be invalidated, and since plaintiff only alleged a violation of § 3(2) he failed to state a cause of action.
While it is true that the use of the word "and” in a statute usually connotes the conjunctive, this rule is not an absolute.
"The popular use of 'or’ and 'and’ is so loose and so frequently inaccurate that it has infected statutory enactments. While they are not treated as interchangeable, and should be followed when their accurate reading does not render the sense dubious, their strict meaning is more readily departed from than that of other words, and one read in place of the other in deference to the meaning of the context.” Heckathorn v Heckathorn, 284 Mich 677, 681; 280 NW 79 (1938).
Therefore, when it is clear that the Legislature intended to have the clauses read in the disjunctive, the word "or” can be substituted for the conjunctive "and”. See Aikens v Dep’t of Conservation, 387 Mich 495; 198 NW2d 304 (1972). In Aikens, the Department of Conservation seized certain catches of perch on the grounds that the fish were undersized as they failed to meet the "in the round” length requirement of the following statute:
"(d) Perch, of a less length than 8 1/2 inches in the round and filleted perch of a less weight than 13/4 ounces; perch with heads and tails off of a less length than 5 1/2 inches; * * *” (Emphasis added.) MCL 308.14(1)(d); MSA 13.1505(1)(d).
The fisherman contended that because the statute used the word "and” the fish were not illegally caught unless they were less than 8-1/2 inches in the round and weighed less than 1-3/4 ounces when filleted, and were less than 5-1/2 inches in length with the heads and tails off. The Supreme Court, however, stated that a careful reading of the statute indicated that the Legislature intended to set up three separate tests, not one, and if the fish failed to meet any of the tests, the fish were illegally possessed.
The Aikens case is applicable to the present case. A careful reading of the statute shows that the Legislature intended that a decision of a public body could be invalidated for a violation of either § 3(1), (2), or (3), as each was an independent objective of the act.
Defendant’s interpretation of the statute would render it meaningless. Under such an interpretation, a public body would not be in violation of the statute if it made its decisions in public but deliberated in private or conversely, deliberated in public but made its decisions in private, or if it opened its meetings to the public, but held the meetings in a place which was inaccessible to the public. The Legislature clearly intended to make all three actions illegal, and intended to made any of the three violations an independent basis for invalidating the illegal actions. Plaintiff did not fail to state a cause of action for this reason.
Defendant next contends that the Open Meetings Act does not expressly prohibit secret ballots, but instead only requires that "[a]ll decisions of a public body shall be made at a meeting open to the public”. Therefore, according to defendant the township board complied with the act because even though it voted by secret ballot, the balloting was done at a meeting open to the public. We find this contention unconvincing.
Prior to enacting the current Open Meetings Act, the Legislature created a special committee to study the operation of the former open meetings law. The committee, in its report recommending passage of a new Open Meetings Act, decried the evils of secret voting by public officials.
"Secret voting by elected officials at every level in the government tends to foster an atmosphere of suspicion and mistrust of decision-making by public officials, whether it be real or imagined. Such an atmosphere is an intolerable impediment to respect for our public institutions as well as public officialdom and cannot be allowed to persist.
"As U.S. Senator Adlai E. Stevenson III of Illinois has observed, 'Excessive secrecy breeds distrust. It prevents accountability. It does violence to the principle of government based on the informed consent of the governed.’ ”
The legislative history of the act thus supports the contention that the act was passed to combat secret voting in all of its forms whether it be by closed meeting or by secret ballot.
In Wexford County Prosecutor v Pranger, 83 Mich App 197; 268 NW2d 344 (1978), this Court stated that the Open Meetings Act was enacted to provide openness and accountability in government, and is to be interpreted so as to accomplish this goal. Defendant’s interpretation of the act would not be in keeping with this objective. It can hardly be contended that a vote by secret ballot at an open meeting is any more open than a vote at a closed meeting. In either case the public official has shielded his stand from public scrutiny and accountability.
It should also be recognized that because the act requires all meetings to be opened to the public it implicitly requires that all parts of the meeting (unless specifically excluded by the act) also be open to the public. Clearly a public body could not open only the first five minutes of the meeting and then close the rest of the meeting and argue that it complied with the Open Meetings Act. Similarly, a secret ballot effectively closes part of a meeting to the public, since the balloting withdraws from public view an essential part of the meeting.
For these reasons, we hold that the Open Meetings Act prohibits a public body from voting by secret ballot, and the trial court erred in not granting plaintiff’s complaint for declaratory relief on this point.
Merely because secret balloting is prohibited by the Open Meetings Act does not automatically mean that the board’s decision in the present case must be invalidated, and that an injunction must issue restraining defendant from utilizing the procedure in the future.
Invalidation of decisions made in contravention of the act is discretionary with the court. Those seeking to have the decision invalidated must allege not only that the public body failed to comply with the act, but also that this failure impaired the rights of the public. MCL 15.270(2); MSA 4.1800(20)(2). This was not done in the present case. Plaintiff did not allege that the township board willfully or intentionally sought to violate the act. Nor is there any allegation that the board or any of its members were trying to cover up for misdeeds or to hide the identity of the persons for whom they voted. Since plaintiff failed to allege that the rights of the public were impaired by the secret ballot, he failed to state a cause of action under the act for invalidating the decision of the board.
Finally, the record indicates that the board acted in good faith in utilizing the voting procedure. There was no subterfuge involved, but instead the board adopted the procedure as an expedient, albeit improper, method of narrowing the field of applicants. Under this set of circumstances, there is no real and imminent danger of irreparable injury requiring issuance of an injunction. See Wexford County Prosecutor v Pranger, supra, at 205.
Affirmed in part and reversed in part. No costs, a public question being involved.
D. C. Riley, J., concurred.
The liquor licenses were issued pursuant to MCL 436.1 et seq.; MSA 18.971 et seq. The applicants first applied to the Michigan Liquor Control Commission which in turn sought local approval of the applicants by the township pursuant to MCL 436.17; MSA 18.988.
MCL 15.263(2); MSA 4.1800(13)(2).
"All decisions of a public body shall be made at a meeting open to the public.”
"Sec. 3. (1) All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act.
"(2) All decisions of a public body shall be made at a meeting open to the public.
"(3) All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public except as otherwise provided in sections 7 and 8.”
MCL 15.263(2); MSA 4.1800(13)(2).
The vote was by secret ballot even though each of the final three applicants was granted a liquor license by a roll call vote. This final vote was merely perfunctory, since the real decisions had already been made in the preliminary secret balloting.
MCL 15.251 et seq.; MSA 4.1800(1) et seq.
Special Senate Study Committee on Political Ethics, Final Report (1973), at 10.
We are definitely not alone in interpreting the Open Meetings Act in this manner. In interpreting its own Open Meetings Act which was similar to Michigan’s in that it only required that "all public proceedings shall be open to any citizen of this state * * *” (Burns Indiana Statutes Annotated, Code Edition, 5-14-1-4), the Indiana Supreme Court also held that the statute prohibited secret balloting. State v La Porte Superior Court #2, 249 Ind 152; 230 NE2d 92 (1967).
The fact that the Open Meetings Act prohibits secret balloting does not mean that all votes must be roll call votes. The act’s requirements are met when the vote is by roll call, show of hands, or any other method whereby the way the public official voted is made known to the public. For instance, in the present case if the board members’ names had been inscribed on the elimination ballots, so that in recording the votes in the official minutes the clerk could determine which board member voted for which candidates, the Open Meetings Act would be satisfied. This is so because even though the way the members voted would not be proclaimed aloud at the meeting, any interested person could determine how the board members voted by merely checking the official minutes.
These are merely examples of some of the situations which could show_ an impairment of the rights of the public. These examples are not intended to constitute either an all-inclusive list or a list of mandatory allegations. | [
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D. C. Riley, P.J.
Defendant was convicted of third-degree criminal sexual conduct, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b), on July 8, 1977. He was sentenced to 5 to 15 years in prison and appeals by right.
The people introduced the testimony of three witnesses at defendant’s trial. The complainant, an 18-year-old male, and the owner of the residence where the incident occurred, both testified from the witness stand. The preliminary examination testimony of a third witness, Anthony Grondin, who had witnessed and participated in the incident giving rise to the charge, was read to the jury after the court ruled that the people had made a diligent effort to produce him at trial.
Defendant contends that tlie trial judge erred in finding that the people had exercised due diligence to secure the appearance of the res gestae witness, and argues that the admission of Grondin’s prior testimony into evidence therefore constituted reversible error.
At the trial which began on July 6, 1977, the prosecutor indicated that three separate attempts to serve Grondin with a subpoena were unsuccessful. Those attempts were made on June 20, 21, and 29, 1977. During the last attempt, the officers learned that Grondin was "out of the state, out-of-town on vacation, that his location was unknown”. On July 5, 1977, the day before trial, the prosecutor called someone who identified herself as Grondin’s mother. She stated that "he is out-of-town, his whereabouts are unknown” and that she "didn’t know * * * when he would be coming back”.
Testimony taken at an examination or preliminary hearing may be used by the prosecutor whenever the witness who gave the testimony cannot, for any reason, be produced at trial. MCL 768.26; MSA 28.1049. However, this statute gives way to the defendant’s constitutional right of confrontation where a witness’s absence from trial stems from the prosecution’s lack of good faith efforts or failure to exercise due diligence in attempting to secure his presence. Barber v Page, 390 US 719; 88 S Ct 1318; 20 L Ed 2d 255 (1968), People v McIntosh, 389 Mich 82; 204 NW2d 135 (1973), People v Nieto, 33 Mich App 535; 190 NW2d 579 (1971), lv den 385 Mich 771 (1971). The determination of due diligence is a matter for the trial court, and that determination will not be overturned on appeal unless a clear abuse of discretion is shown. People v Casteneda, 81 Mich App 453, 460; 265 NW2d 367 (1978), People v Baldwin, 74 Mich App 700, 704; 254 NW2d 619 (1977).
Due diligence requires devoted and painstaking application to accomplish an undertaking. People v Johnson, 51 Mich App 224, 231; 214 NW2d 713 (1974). Where there are no leads as to a witness’s whereabouts, the prosecutor should inquire of known persons who might reasonably be expected to have information that would help locate the witness. Where there are specific leads as to a witness’s location, the prosecutor must check them out. See McIntosh, supra, People v Hunter, 48 Mich App 497; 210 NW2d 884 (1973), lv den 390 Mich 805 (1973). Due diligence circumscribes not only efforts to pursue specific leads, but also those endeavors reasonably likely to produce them.
Here the prosecution followed the leads it had and came up empty. However, other steps were clearly feasible. Complainant was able to name five other individuals who were present on the night of the alleged incident, one of whom testified at trial, and one of whom was identified as Grondin’s girl friend. Surely some inquiry could have been made of these individuals, but none appears in the record. Further, the complainant had heard a rumor about Grondin’s whereabouts. A casual remark by defense counsel also suggests that some of the officers where defendant was incarcerated were well-acquainted with the movement of people in the Dryden area, the home of all the principals. Pursuing these potential sources of information would not have been excessively burdensome in this case. Whether such inquiries would have been fruitful is immaterial. "The fact that an attempt may prove unsuccessful does not justify the prosecution’s failure to make that attempt.” People v McIntosh, supra at 87.
We therefore conclude that the lower court abused its discretion in finding due diligence, see People v Hunter, supra, and remand this case for a hearing in accordance with the procedures outlined in People v Pearson, 404 Mich 698; 273 NW2d 856 (1979), as to whether defendant was prejudiced by the prosecution’s failure to exercise due diligence. Defendant shall be presumed prejudiced until the contrary is established. If the prosecution can show that the missing testimony consisted of cumulative testimony or that its absence constituted harmless error, or that the res gestae witness could not have been produced at trial, the burden of overcoming the presumption will have been met and the conviction affirmed. However, a failure to do so shall result in a new trial.
In conclusion, we note that many due diligence issues are appealed when the court does not make a full record of all the efforts which have been made to bring a witness to trial. In light of Barber v Page, supra, a trial judge cannot rely on the belief that he has absolute discretion in such matters. Before admitting preliminary examination testimony into evidence under MCL 768.26; MSA 28.1049, a trial judge should require the prosecutor to recite on the record all efforts made to reach the missing witnesses. Such a procedure will not only aid in a trial judge’s efforts to make a sound discretionary choice, but prevent uninformed second guessing on the part of appellate courts.
Reversed and remanded.
Bronson, J., concurred. | [
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Per Curiam.
Defendant Herman Rasch (hereinafter referred to as defendant) appeals as of right from a summary judgment entered against him in a case involving the return of a $5,000 deposit, paid by plaintiff to defendant’s broker pursuant to an offer to purchase real estate.
In a complaint filed September 22, 1976, plaintiff filed an action against defendant Hartman Group, who, allegedly as broker for defendant, was paid $5,000 in conjunction with an offer to purchase certain real estate. This offer was contained in a purchase agreement which was signed by defendant and an agent of plaintiff’s. It was conditioned upon plaintiff obtaining certain permits and provided that the agreement would be void and the deposit money returned if the permits could not be obtained to its satisfaction. The complaint further alleged that plaintiff could not obtain the permits, but, upon notifying the Hartman Group, was unable to obtain the return of its deposit.
The Hartman Group answered and counterclaimed for interpleader, asserting that defendant, as vendor of the subject property, claimed a right to the deposit. Defendant was subsequently made a party to the action. He claimed that he had a binding agreement with plaintiff for the purchase of the property. He contended that plaintiff’s failure to obtain an occupancy permit constituted a breach of the contract and counterclaimed for specific performance of the contract.
In a motion dated October 4, 1977, plaintiff moved for summary judgment under GCR 1963, 117.2(3), claiming it was entitled to judgment as a matter of law. In support of this motion plaintiff noted defendant’s deposition testimony admitting that he was married at the time of the alleged acceptance of the purchase agreement and that his wife had not signed the agreement. Plaintiff argued that it was entitled to withdraw its offer, as the contract, prior to her acceptance, was unenforceable under the statute of frauds, MCL 566.108; MSA 26.908. In addition, plaintiff noted that the purchase agreement contained the phrase "if seller is married, wife must sign” directly below the line indicated for the seller’s acceptance. In an order dated January 25, 1978, the trial judge ruled that the agreement was unenforceable due to the absence of defendant’s wife’s signature and granted plaintiff’s motion for summary judgment.
Defendant initially contends that the trial court erred in considering plaintiff’s arguments in support of the motion for summary judgment because they were not raised in plaintiff’s pleadings. Technically defendant is correct. Initially plaintiff was proceeding on the theory that the contract was unenforceable due to the nonoccurrence of the condition precedent regarding the permits. After learning that defendant was married, it failed to amend its complaint to raise the arguments contained in support of the summary judgment motion. Nor were these arguments raised in the answer to defendant’s counterclaim and, under GCR 1963, 111.3, were waived.
However, GCR 1963, 117.3 provides that, in conjunction with a motion for summary judgment:
"Each party shall be given opportunity to amend his pleadings as provided by Rule 118 unless the evidence then before the court shows amendment would not be justified.”
In light of the early stage of the proceedings, plaintiff’s recent discovery of defendant’s marital status and the liberal policy in favor of permitting the amendment of pleadings, Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973), plaintiff would have been permitted to amend its pleadings had it so moved. Although no such motion was ever proffered, defendant was not prejudiced thereby. It had notice of the issues raised and fully briefed them. Under these circumstances, reversal is not required. See Gellenbeck v Sears, Roebuck & Co, 59 Mich App 339, 341-342; 229 NW2d 443 (1975).
Defendant also argues that the trial judge erred in granting plaintiff’s motion for summary judgment. We disagree. The statute of frauds, MCL 566.108; MSA 26.908, requires that every contract for the sale of land must be signed by the party "by whom the * * * sale is to be made”. The statute was interpreted in Fields v Korn, 366 Mich 108; 113 NW2d 860 (1962), to require the signature of each holder of an undivided one-half interest in the property being sold. In the absence of the required signatures, the Court in Fields ruled that the contract for the sale of the land was void, as a violation of the statute of frauds.
Although in the instant case we are dealing with the dower interest of defendant’s wife, MCL 558.1; MSA 26.221, we find this distinction insignificant and conclude that Fields controls this situation as well. Since there was no acceptance between the parties in this case by defendant’s wife of plaintiffs offer to purchase the property, no valid contract was ever created. Plaintiff was free to withdraw its offer prior to acceptance by requesting a refund of its deposit. Board of Control of Eastern Michigan University v Burgess, 45 Mich App 183, 186-187; 206 NW2d 256 (1973).
Affirmed. Costs to plaintiff.
Because of our resolution of this issue we need not discuss the effect, if any, of the phrase "if seller is married, wife must sign” contained in the purchase agreement. | [
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Per Curiam.
On March .28, 1977, the Michigan Workmen’s Compensation Appeal Board affirmed the July 15, 1974, decision of the referee which denied plaintiff workmen’s compensation benefits on the ground that plaintiff had refused favored work. Plaintiff appeals this order by leave granted on August 11, 1977.
On July 17, 1969, plaintiff was employed by defendant when, during the course of his employment, he was injured while attempting to put an air filter on a lathe. Plaintiff continued working until September, when he was hospitalized and put in traction. He had a back operation (laminectomy) in October. Defendants voluntarily paid workmen’s compensation benefits for the period from September, 1969 through August 9, 1973. During this time plaintiff returned to work for a five-month period between May 24, 1970, and October 6, 1970. During this five-month period he worked on tool and die making. Plaintiff’s reason for leaving this job at the conclusion of the five-month period was that he reinjured his back. In response to a petition for compensation benefits filed May 12, 1971, defendant Eaton voluntarily commenced benefits and the petition was dismissed August 26, 1971.
In March of 1973 plaintiff was examined by Dr. James W. Lyons, a specialist in orthopedic surgery. At that time plaintiff complained of recurrent back pains in the lower back, pain in the left leg, and a feeling of coldness in the left foot. Dr. Lyons concluded that plaintiff was disabled from doing heavy manual labor but not totally disabled from doing any work. He testified that it was his opinion that plaintiff could perform a job if it did not involve heavy lifting.
In addition to Dr. Lyons’ testimony the medical proofs also include depositions of Adam Brish, M.D. and Maurice E. Meier, M.D. on behalf of plaintiff. Dr. Brish was the operating neurosurgeon and his testimony only dates to his final examination of October 19, 1970. At that time he found the neurological examination of plaintiff negative.
Dr. Meier, testifying on behalf of the plaintiff, essentially found him totally and permanently disabled but conceded that "he could certainly try and see what happens.”
On July 11, 1973, Mr. Sjoquist, defendant’s plant manager, wrote plaintiff concerning possible light work. Plaintiff answered the letter promptly, appearing at defendant’s plant two days after the letter was mailed. Plaintiff was turned over to union officials and to a plant superintendent to examine the jobs. Mr. Sjoquist could not personally confirm that specific job offers had been made. Wilfred Mineau, the plant superintendent, testified at the February hearing. He stated that plaintiff was never taken around the plant to look at the jobs because he refused to go. Plaintiff stated to Mr. Mineau that there were no jobs he could do out there, and that "[t]here wasn’t any jobs he could do standing up or sitting down”. He testified that plaintiff was offered a job assembling panels on that day. In addition, plaintiff was offered a job coil winding, which would have required him to be at the job constantly. Mineau stated that he did not have the authority to provide a job which would allow plaintiff to lie down when his back bothered him and that he did not feel this would be tolerated by the company or the union: Plaintiff testified that he did not try the jobs in the plant because they required sitting or standing in one place, which he was incapable of doing.
Plaintiff raises two issues on this appeal: (1) whether the Workmen’s Compensation Appeal Board misapplied the favored work doctrine so as to place a duty on plaintiff to prove that he could not perform the favored work offered him, and (2) whether the favored work doctrine as applied is a violation of plaintiff’s due process and equal protection rights. In this Court’s opinion no reversible error has been committed here. The finding of the board is affirmed.
Chairman Gillman, for the majority of the appeal board, applied the following legal standard in the case at bar:
"As we read the law, defendant has the burden of making a good faith job offer of sufficiently favored work (Kolenko v U.S. Rubber Products, 285 Mich 159 [280 NW 148 (1938)]), which was done here. Plaintiff has the burden of attempting to perform same (Lynch v Briggs Mfg Company, 329 Mich 168 [45 NW2d 20 (1950)], Pulley v Detroit Engineering and Machine Company, 378 Mich 418 [145 NW2d 40 (1966)], et. al.).”
Where the Workmen’s Compensation Appeal Board has applied the proper legal standard, and there is competent evidence to support its finding, this Court is bound by law to accept its decision. Const 1963, art 6, §28, MCL 418.861; MSA 17.237(861), Barrett v Bohn Aluminum & Brass Co, 69 Mich App 636, 640; 245 NW2d 147, 150 (1976).
A refusal of favored work that an injured employee is capable of performing terminates that employee’s right to continued compensation benefits. Brown v Premier Manufacturing Co, 77 Mich App 573, 577; 259 NW2d 143, 145 (1977). The board’s statement that plaintiff had the "burden of attempting to perform same” is not inconsistent with the case law. Plaintiff refused to even examine the jobs offered. In light of this total refusal it cannot be said that plaintiff acted in good faith, as was found to be the fact in Kolenko v United States Rubber Products, Inc, 285 Mich 159, 162; 280 NW 148, 149 (1938). In this Court’s opinion the board’s statement that plaintiff has the burden of attempting to perform refers to this duty of good faith. Especially is this true in light of the fact that in the immediate preceding sentence the board referred to the defendant’s burden of making a good faith job offer. Since the record contains competent evidence to support the board’s factual determinations, and since this Court’s review is limited to whether or not the proper legal stan dards were applied, this Court finds this issue to be without merit.
As to the second issue, the record shows that plaintiff has not initiated the statutory procedure for determining his right to vocational rehabilitation benefits by petitioning the director of the Workmen’s Compensation Bureau for a hearing on the matter. MCL 418.391; MSA 17.237(391). Plaintiff contends that this statute impliedly repeals the judicially created favored work doctrine. This Court does not agree. The statute merely provides an injured employee the right to receive vocational training and rehabilitation. The favored work doctrine operates to give the employer a similar remedy for initiating a determination of the injured employee’s ability to work. The remedies offered to each party under each doctrine are distinct in nature though reaching the same issue. These remedies cannot be said to conflict.
Since no fundamental rights are involved the proper standard to be applied in determining whether a denial of equal protection has occurred is whether any reasonable relation exists between the classification and a legitimate state interest. Wahl v Brothers, 60 Mich App 66, 70; 230 NW2d 311, 313 (1975), rev’d on other grounds 394 Mich 797 (1975). Since the favored work doctrine and the vocational rehabilitation statute provide symmetrical remedies to both parties this Court finds neither a denial of equal protection nor of due process.
The order of the Workmen’s Compensation Appeal Board is affirmed. | [
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M. J. Kelly, J.
We agree with Judge Burns’ opinion and with the affirmance of the conviction for assault with intent to rob and steal being armed, but we are of the opinion that reversal of the felony-firearm conviction is mandated for the reasons stated in Judge Kaufman’s dissent in People v Drake Johnson, 85 Mich App 752; 272 NW2d 599 (1978).
D. E. Holbrook, Jr., P.J., concurs.
R. B. Burns, J. Defendant was convicted by a jury of assault with intent to rob and steal being armed, MCL 750.89; MSA 28.284, and possession of a firearm during the commission of a felony, MCL 750.227(b); MSA 28.424(2). Defendant appeals and we affirm.
Beryle Harris, the complaining witness, testified that he was a truck driver, and forced off 1-94 by a blizzard. He checked into a motel and was assigned to the ground floor. Returning to his room from a nearby restaurant, he observed a black male get out of an automobile and walk in front of him along the walk. As the witness approached his room the person turned around and walked right up to the witness. The witness said "hi” and the man said "open the door”. At this time the man was within two feet of the witness and the witness looked right at him. The witness then said "what?” and the man repeated "open the door”. The man had a gun in his right hand. The witness turned towards the door and the man came up behind him, pushing, and said "hurry up and open the door or I will blast you”. The witness inserted the key in the door and just as he opened the door he wheeled around and hit the man in the mouth, knocking him across the driveway. After the man stopped rolling he got up on his knees and shot the witness in the left shoulder.
The witness testified that he got a good look at the man when he faced him in front of the door and when the man was on his knees just prior to the shot. The witness especially noticed the man’s eyes. The witness identified defendant as the man who shot him.
Defendant first argues that the trial court erred by refusing to grant him a Walker hearing in this case. Defendant had made several statements to the police. In another case pending against defendant, a Walker hearing was held, and the same statements determined to be voluntary. The trial court in this case correctly ruled that collateral estoppel forbids defendant from relitigating this issue. People v Gray, 393 Mich 1; 222 NW2d 515 (1974).
Defendant next argues that the complaining witness’s in-court identification was tainted by an unnecessarily suggestive confrontation at the preliminary examination. See People v Solomon, 391 Mich 767; 214 NW2d 60 (1974). At the preliminary examination, the witness saw defendant shackled and in the company of police officers. Defendant was the only black person in the room, was seated next to defense counsel, and responded affirmatively when the magistrate asked "Is Robert Lee Mann present?”.
Although defendant moved to strike the identification at the preliminary examination, defendant never sought to suppress the subsequent identification made at trial. Factors going to the quality of that identification were extensively developed at trial. Application of those factors to the standards for the determination of whether there existed an independent basis for identification, People v Kachar, 400 Mich 78; 252 NW2d 807 (1977), indicates there exist negative and positive factors with no evident preponderance. Ordinarily, failure to object to an identification procedure precludes review. See, e.g., People v Moss, 397 Mich 69; 243 NW2d 254 (1976). Since we detect no manifest injustice, we find defendant has failed to preserve this issue for review. We express no opinion as to whether the prior confrontation was unnecessarily suggestive.
Defendant also complains that it was error to deny him a lineup. The complaining witness was in a hospital at the time defendant was arrested, and left the area as soon as he was released from the hospital. Defendant was not entitled to a lineup as a matter of right. People v Farley, 75 Mich App 236, 238; 254 NW2d 853, 855 (1977). There was no error.
Defendant’s other claims have been considered, but do not merit discussion.
Affirmed.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
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] |
Per Curiam.
Helen Hack and her husband brought this tort action to recover for damages incurred as a result of an assault upon Mrs. Hack by defendants’ dog. Plaintiffs alleged that while Mrs. Hack was walking her miniature schnauzer along Livernois in the city of Detroit, the schnauzer was attacked and killed by defendants’ Doberman pinscher. During the affray Mrs. Hack was knocked to the ground, as a result of which she allegedly suffered an injury to her back. Defendants did not deny the attack on plaintiffs’ dog by their dog, but denied liability for any damages on grounds that they were not negligent. Defendants claimed that their dog broke his leash while being exercised by Thomas Foster, Jr., and that the attack took place before Foster could regain control of his dog. From a jury verdict of no cause of action, plaintiffs appeal as of right.
Plaintiffs rested their case in large part on the fact that defendants’ dog was unleashed, in violation of Detroit City Code, § 7-2-1, and MCL 287.262; MSA 12.512, and requested that the relevant portions of each be read to the jury as part of the court’s charge to the jury. The court read the ordinance, but failed to read the statute. Plaintiffs claim that the trial court’s failure to read the statute was prejudicial error because of the different legal effects of a violation of a statute and a violation of an ordinance: violation of a statute is prima facie evidence of negligence, creating a rebuttable presumption of negligence, while violation of an ordinance is merely evidence of negligence, Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976).
We agree that it was error for the trial court to fail to read the statute upon timely request. In this case, however, the error was harmless, because § 7-2-3 of the ordinance, which was read to the jury, provides that a violation is prima facie evidence of negligence, thus giving it the same effect as the statute.
Plaintiffs also assign as error the instruction regarding the effect of rebutting evidence on the presumption of negligence raised by violation of the ordinance. After reading the ordinance, the court gave the following instruction:
"Now, the plaintiffs assert that violation of the city ordinance is prima facie evidence of negligence. However, this prima facie presumption of negligence has no weight as evidence. It may establish a prima facie case, but if it is challenged by rebutting evidence, the presumption cannot be weighed against the evidence.” (Emphasis added.)
Plaintiffs’ counsel timely objected to this instruction, protesting that it is not the law in Michigan. We are constrained to agree.
In Zeni v Anderson, supra, the Supreme Court discarded the prior rule that violation of a statute was negligence per se in favor of the rebuttable presumption rule, noting that it was the latter rule which was in fact most often applied in Michigan. The Court in Zeni articulated the rule thus:
"[T]he rule concerning the proper role of a penal statute in a civil action for damages is that violation of the statute which has been found to apply to a particular set of facts establishes only a prima facie case of negligence, a presumption which may be rebutted by a showing on the part of the party violating the statute of an adequate excuse under the facts and circumstances of the case.” Zeni v Anderson, supra, 129-130. (Footnotes omitted. Emphasis added.)
This is the same rule which is incorporated into the Detroit ordinance by § 7-2-3.
The present state of the law in Michigan on rebuttable presumptions was reviewed and clarified in the recent case of Kar v Hogan, 399 Mich 529, 541-542; 251 NW2d 77 (1976):
"The thrust of the Wood [In re Wood Estate, 374 Mich 278; 132 NW2d 35; 5 ALR3d 1 (1965)] case was to change the law in this state concerning the effect that a presumption has after rebuttal evidence has been introduced. Prior to Wood, Michigan held to the "Thayer” or "bubble bursting” approach; that is, the presumption governed only the burden of going forward with evidence and the presumption was totally dissipated if rebuttal evidence was offered. See In re Haskell’s Estate, 283 Mich 513; 278 NW 668 (1938). Wood rejected the "Thayer” approach and adopted the view that once rebuttal evidence was introduced, the presumption, originally a 'mandatory inference’, was reduced to a 'permissible inference’. Unless the defendants’ controverting evidence met the standard for a directed verdict, the presumption, as a 'permissible inference’, was sufficient to get the case before the jury. Wood, supra, 290-291.
"If the trier of fact finds the evidence by the defendant as rebuttal to be equally opposed by the presumption, then the defendant has failed to discharge his duty of producing sufficient rebuttal evidence and the 'mandatory inference’ remains unscathed. This does not mean that the ultimate burden of proof has shifted from plaintiff to defendant, but rather that plaintiff may satisfy the burden of persuasion with the use of the presumption, which remains as substantive evidence, and that the plaintiff will always satisfy the burden of persuasion when the defendant fails to offer sufficient rebuttal evidence.”
The trial court’s instruction in the case at bar utilized the now-discarded "bubble bursting” approach, thus preventing the jury from weighing the presumption against the rebutting evidence. The effect of the presumption arising from the violation of the ordinance and the statute was the crucial issue in the case, and the error in instructing on the law applicable thereto requires reversal.
We have considered plaintiffs’ other claims of error and find them to be without merit.
Reversed and remanded for a new trial. Costs to abide the event.
The parties did not address the question whether a local legislative body may elevate an ordinance to the evidentiary level of a statute merely by including a provision to that effect in the ordinance. Because of the peculiar circumstances presented, the question need not be decided in the case before us. We therefore express no opinion on the issue. | [
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Beasley, J.
Plaintiff appeals from a determination by a referee for the Michigan Employment Security Commission (MESC) disqualifying him from unemployment benefits for a six-week period. The referee found that the plaintiff had been discharged for "misconduct connected with his work” pursuant to MCL 421.29(1)(b); MSA 17.531(1)(b). This decision of the referee, which was affirmed by both the appeal board and the circuit court, is supported by competent, material evidence on the whole record. The referee made the following findings of fact after hearing the contradictory testimony regarding a two-by-four thrown through a window on April 18, 1974, and damage to a cafeteria door on December 30, 1974:
"The claimant worked approximately one year for this employer as a machinist. On or about December 30, 1974 while in the plant, he came through one of the doors with such force that the hinges were bent, two bolts were knocked out, and the portion of the air stopper on the door attached to the frame was pulled out. This is a Union shop, and he was terminated and subsequently filed a grievance, which was to no avail.
"The claimant contends he just opened the door and that someone prior to that had loosened the bolts, and to the best of his knowledge there was no damage. The employer witness stated it took him 1 1/2 to 2 hours of labor, plus two bolts, and he straightened the door out with a hammer and a vise. The witness stated no one actually saw the claimant push the door, but the witness who testified that when he heard the noise, he witnessed the claimant charging in after the door was pushed open by him. The witness also testified that when he was a foreman, on or about April 18, 1974, the claimant was given a reprimand for throwing a 2x4 through the window. The claimant states this was accidental as he meant to throw it in the wood pile as another employee threw it at him. The claimant was terminated on December 30, 1974 by the foreman, and the reason given him was 'abuse of company property.’ The Referee notes this was identical to the notice given to the claimant (Ex. #11) on April 18, 1974.”
In support of his decision, the referee cited Miller v F W Woolworth Co, and concluded that plaintiff could be disqualified from receiving unemployment compensation benefits under the misconduct provision of the act for a discharge which resulted from a "pattern of misconduct”.
The standard for disqualifying misconduct is enunciated in Carter v Employment Security Comm as:
"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.”
Applying this definition to this case, we find that the referee’s decision was in conformance with both the law and the evidence.
Affirmed.
D. E. Holbrook, J., concurred.
This disqualification period was based on the version of MCL 421.29(3); MSA 17.531(3) then in effect. Subsequently, the statute was amended, effective June 6, 1975, to provide a 13-week disqualification period for benefits where an employee is discharged for misconduct under MCL 421.29(1)(b); MSA 17.531(1)(b). See, 1975 PA 110, § 1.
Const 1963, art 6, § 28; MCL 421.38; MSA 17.540.
359 Mich 342; 102 NW2d 728 (1960).
MCL 421.29(1)(b); MSA 17.531(1)(b).
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YOUNG, J.
Defendant Wyngaard was convicted of being a prisoner in possession of contraband. MCL 800.281(4); MSA 28.1621(4). The Court of Appeals, in a split decision, affirmed in part, reversed in part, and remanded for further proceedings. Defendant then appealed to this Court, arguing that the admission at trial of his guilty plea from a prior prison disciplinary hearing violated his Fifth Amendment right against compelled self-incrimination.
Before oral argument, we were apprised that the Attorney General had just discovered evidence that defendant had signed a Department of Corrections form informing that any statements he made at his disciplinary hearing would not be used in a subsequent criminal trial except for purposes of impeachment or rebuttal. This assurance was made pursuant to the Court of Appeals decision in People v Carr, 149 Mich App 653, 659; 386 NW2d 631 (1986). As explained below, although we now overrule Carr, we hold that due process requires that we remand this case for a new trial from which defendant’s incriminating statements shall be excluded, except for purposes of impeachment or rebuttal.
I. FACTUAL AND PROCEDURAL BACKGROUND
At the time of the instant offense, defendant was an inmate at the Kinross Correctional Facility in Chippewa County. Acting on a tip, corrections officers searched defendant immediately after he was observed being handed a toothpaste box. The box was found to contain marijuana. A few days later, a Department of Corrections administrative hearing was conducted before a hearing officer regarding the matter. At the hearing, defendant admitted that he had knowingly possessed marijuana. He was punished in accordance with Department of Corrections guidelines.
Months later, criminal proceedings were initiated. Defendant testified, stating that he had not known that the box he was handed contained marijuana. After considering the evidence, the jury was unable to reach a unanimous verdict. At a subsequent trial, a new witness was produced. The prosecution presented the hearing officer who had presided over defendant’s disciplinary hearing. He testified that defendant had admitted at the hearing that he had knowingly been in possession of marijuana. This testimony was introduced, not for impeachment or rebuttal purposes, but as substantive evidence in the prosecutor’s case in chief. Defendant failed to object to this testimony. The second jury found defendant guilty.
A few days before oral argument in this Court, a representative of the Attorney General’s office filed an emergency motion to supplement the record. We granted the motion. The assistant attorney general advised in the motion that, in the course of preparing for oral argument, he had discovered the “Major Misconduct Report” form that was used at the disciplinary hearing.. That form contained a notation that read as follows:
Note: Your statement at this hearing will not be admissible in a criminal trial on this matter except for purposes of impeachment or rebuttal.
This form had been signed both by prison officials and by defendant.
II. DEFENDANT’S DUE PROCESS RIGHTS
We originally granted leave in this case to consider the validity of the Court of Appeals decision in Carr, supra at 659, holding that
any evidence derived from testimony at a [prison] disciplinary hearing is inadmissible at subsequent criminal proceedings on the underlying charge, save for impeachment or rebuttal, and the accused must be advised before testifying at the disciplinary hearing that his testimony will not be admissible against him at a subsequent criminal trial on the underlying offense.
Before addressing that issue, however, we first must consider whether defendant’s due process rights were violated when, at his criminal trial, the prosecution introduced defendant’s statements from the prior disciplinary hearing despite the contrary assurance made by prison officials.
We agree with Judge Markman’s opinion below that, because defendant was advised at the disciplinary hearing that his statements would not be admissible against him at a subsequent criminal trial, and those statements were in fact later used against him, ele mentary notions of due process require that his conviction be reversed. 226 Mich App 695.
We have, on two occasions, addressed the enforceability of promises made by state officials in the criminal justice context. In People v Reagan, 395 Mich 306; 235 NW2d 581 (1975), the prosecutor agreed to dismiss the prosecution against the defendant if he passed a polygraph examination administered by the Michigan State Police. The defendant initially passed the examination, and the prosecutor prepared an order of nolle prosequi, which order was approved by the trial court. Subsequently, the prosecutor had doubts about the reliability of the test results and retained another expert who informed the prosecutor that the results could have been distorted if administered to a schizophrenic. The prosecution then filed a new complaint on the same charges. This Court reversed the defendant’s conviction on the ground that the prosecutor gave “a pledge of public faith which became binding when the nolle prosequi order was approved by the trial judge.” Id. at 309.
Reagan might be read to suggest that all so-called “pledges of public faith” must be specifically enforced. However, we reject any such reliance on Reagan because, as we later observed in People v Gallego, 430 Mich 443, 451; 424 NW2d 470 (1988), the decision in Reagan “did not rest on constitutional grounds.” Reagan did not purport to hold that due process requires specific performance of all promises made in the criminal justice context.
We do, however, find guidance in our subsequent decision in Gallego. In that case, the defendant was arrested following a drug transaction involving an undercover Michigan State Police officer. However, the police failed to recover $33,000 that the undercover officer used to purchase the drugs from the defendant. The defendant subsequently entered into a written agreement with representatives of the state police and the Federal Drug Enforcement Agency (dea) whereby defendant would return the $33,000 in exchange for the officers’ agreement not to prosecute him for any state or federal drug offenses. After the officers retrieved the money, the defendant was released. However, the county prosecutor did not feel bound by the police agreement and subsequently charged the defendant with delivery of cocaine. Id. at 446-447.
The defendant in Gallego sought specific performance of the police agreement on the ground that he had surrendered his Fourth Amendment right against unreasonable search and seizure and his Fifth Amendment right against compelled self-incrimination in reliance on the agreement he made with the police. Id. at 456. Although we acknowledged the United States Supreme Court’s recognition in Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), and Mabry v Johnson, 467 US 504; 104 S Ct 2543; 81 L Ed 2d 437 (1984), that due process provided a right to relief for the violation of an authorized plea agreement, we denied the defendant his requested relief on two grounds. First, we concluded that “the police lacked the authority to make a binding promise of immunity or not to prosecute.” 430 Mich 452. Second, we recognized “the presence of an alternative remedy which essentially restores defendant to the position he enjoyed prior to making the agreement in question with the police.” Id. at 455-456. In that regard, we concluded that suppression or exclusion of the written agreement and purchase money was an appropriate remedy that cured the defendant's detrimental reliance. Id. at 456.
Gallego did not address the precise issue presented here: What remedy must be afforded under due process principles when a defendant surrenders a constitutional right in reliance on an authorized agreement? However, Gallego did recognize that, even in the context of authorized plea agreements, the United States Supreme Court has never held that the constitution compels specific performance. Id. at 450. Indeed, we can discern no basis under due process principles for a requirement that all authorized agreements be specifically enforced. Logic dictates that we should remedy a due process violation by attempting to cure the defendant’s detrimental reliance. Accordingly, we apply the Gallego analysis here to conclude that, even if an agreement was authorized, due process requires only that the defendant’s detrimental reliance be cured.
Here, prison officials promised defendant that any statements he made at the disciplinary hearing would not be used against him in a subsequent criminal proceeding except for purposes of impeachment or rebuttal. After signing the agreement, defendant admitted that he knowingly possessed marijuana, thus partially surrendering his ability to later assert his Fifth Amendment privilege. Defendant’s right to due process was violated when his statements were later used against him as substantive evidence. We hold that due process principles require us to cure defendant’s detrimental reliance by excluding defendant’s statements made at the disciplinary hearing, except for purposes of impeachment or rebuttal.
While defendant failed to object to the hearing officer’s testimony, reversal is supported by our decision in People v Carines, 460 Mich 750; 597 NW2d 130 (1999). In that case, this Court held that the plain error rule applies to unpreserved claims of constitutional error. Id. at 764. Under that rule, plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Id. at 763. To avoid forfeiture of the error, three requirements must be met: (1) error must have occurred, (2) the error was plain, that is, clear or obvious, and (3) the plain error affected substantial rights. Id. The third requirement usually requires a showing of prejudice, namely, that the error affected the outcome of the lower court proceedings. Finally, reversal is warranted when the plain error resulted in the conviction of an actually innocent defendant or when the error seriously affected the fairness, integrity, or public reputation of judicial proceedings, independent of the defendant’s innocence. Id. at 763-764.
These requirements axe fulfilled in this case. A plain error occurred in that the state breached an agreement not to use defendant’s statements made at the disciplinary hearing against him in a subsequent criminal trial save for impeachment or rebuttal. As stated, this error affected defendant’s substantial rights to due process of law as required by both the federal and state constitutions. Next, defendant has easily met the burden of persuasion regarding prejudice. His first trial, without the error, resulted in a hung jury. Whereas the second trial, which included as substantive evidence defendant’s prior statements, resulted in his conviction. Therefore, the error apparently affected the outcome of the lower court proceedings. Finally, we exercise our discretion in deciding to reverse defendant’s conviction. The error in this case—admitting defendant’s statements as substantive evidence of guilt despite a contrary agreement upon which defendant detrimentally relied—fulfills the second prong of the Carines test for reversal in that it seriously affected the fairness, integrity, and public reputation of the proceedings. We therefore reverse the decision of the Court of Appeals and remand for a new trial. On remand, the prosecution may not introduce defendant’s statements made at the disciplinary hearing as substantive evidence of guilt.
m. PEOPLE v CARR
Given our decision to remand this case for a new trial, the validity of Carr, supra, is no longer squarely before us. However, in light of the fact that the Department of Corrections is bound to follow Carr by continuing to advise inmates that their statements will not be used against them as substantive evidence in a criminal proceeding, it will be virtually impossible for this issue to be directly presented to this Court. Accordingly, we are obligated to address it here.
In Carr, supra, the Court of Appeals, having determined that Miranda warnings do not apply in the context of a prison disciplinary hearing, considered whether the Fifth Amendment was violated by what the Court believed to be a “Catch 22” situation in which prisoners
can either testify at the prison disciplinary hearing and incriminate themselves or for[]go the right to offer exculpa tory or mitigating statements and face the potential penalties for prison misconduct based on evidence which they cannot refute or explain. [Carr, supra at 658-659.]
The Court reasoned that “if an inmate’s statements at the disciplinary hearing can be used against him in a subsequent criminal trial, it is likely that such statements will be withheld from the administrative hearing examiner for fear of being used against the inmate at a later time.” Id. at 659. This, the Court of Appeals determined, “constitutes an impermissible penalty for the exercise of the privilege against self-incrimination.” Id. Therefore, the Court decided that it would “adopt” the following “procedure”:
[A]ny evidence derived from testimony at a disciplinary hearing is inadmissible at subsequent criminal proceedings on the underlying charge, save for impeachment or rebuttal, and the accused must be advised before testifying at the disciplinary hearing that his testimony will not be admissible against him at a subsequent criminal trial on the underlying offense. [Id]
A. THE FIFTH AMENDMENT PRIVILEGE
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” This prohibition “not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ ” Minnesota v Murphy, 465 US 420, 426; 104 S Ct 1136; 79 L Ed 2d 409 (1984). However, as the Fifth Amendment privilege speaks only of compulsion, it “is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ ” Colorado v Connelly, 479 US 157, 170; 107 S Ct 515; 93 L Ed 2d 473 (1986). “It does not preclude a witness from testifying voluntarily in matters which may incriminate him.” Murphy, supra at 427.
B. COMPELLED SELF-INCRIMINATION IN THE PRISON SETTING
There is no dispute that the Fifth Amendment privilege extends to inmates involved in disciplinary proceedings. Thus, as the Supreme Court explained in Baxter v Palmigiano, 425 US 308, 316; 96 S Ct 1551; 47 L Ed 2d 810 (1976), “if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered ‘whatever immunity is required to supplant the privilege’ . . . .”
As stated, the Carr Court believed that the so-called “Catch 22” choice faced by inmates in the prison discipline setting—either incriminate themselves or forgo the right to offer exculpatory or mitigating statements—“constitutes an impermissible penalty for the exercise of the privilege against self-incrimination.” Id. at 659. We disagree with the Carr Court’s analysis.
The United States Supreme Court has indeed held on more than one occasion that a penalty imposed on the exercise of the Fifth Amendment privilege creates a compulsion repugnant to the constitution. For example, in Garrity v New Jersey, 385 US 493; 87 S Ct 616; 17 L Ed 2d 562 (1967), several police officers were questioned by the Attorney General in connection with an investigation concerning the fixing of traffic tickets. Each officer was warned that refusal to answer would result in removal from office. Some of the answers given were used, over objections, in subsequent criminal prosecutions. Id. at 494-495. In reversing the defendants’ convictions, the Garrity Court explained that “[t]he option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or remain silent.” The Court held that the officers’ statements “cannot be sustained as voluntary.” Id. at 497-498. Thus, what Garrity and its progeny make clear is that a state “ ‘may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.’ ” Murphy, supra at 434, quoting Lefkowitz v Cunningham, 431 US 801, 805; 97 S Ct 2132; 53 L Ed 2d 1 (1977).
Unlike the situation in Garrity, however, Michigan’s prison disciplinary process does not place any direct penalty on an inmate’s decision to exercise his Fifth Amendment privilege. The hearing officer’s decision must be made on a preponderance of the evidence presented. MCL 791.252(k); MSA 28.2320(52)(k). An inmate at all times has the choice not to testify. We agree with Judge Markman’s opinion below that “[t]he tactical decision that an inmate must make regarding whether to testify at a disciplinary hearing, when his testimony might potentially be used against him in a subsequent criminal proceeding, while perhaps quite difficult, does not constitute ‘compulsion’ under the Fifth Amendment.” 226 Mich App 692-693. The Carr Court’s holding to the contrary is overruled.
IV. CONCLUSION
Before admitting at his disciplinary hearing that he knowingly possessed marijuana, defendant was promised that his statements would not be used against him in a subsequent criminal trial except for purposes of impeachment or rebuttal. Contrary to that agreement, defendant’s incriminating statements were used against him as substantive evidence. We hold that elementary notions of due process require that defendant’s conviction be reversed and the case remanded for a new trial. On remand, defendant’s statements from his disciplinary hearing cannot be used against him as substantive evidence.
Finally, we hold that Michigan’s prison disciplinary process does not penalize inmates for exercising their Fifth Amendment privilege. Instead, inmates have a free choice concerning whether to remain silent or provide statements at a disciplinary hearing. The contrary holding in Carr is overruled. Accordingly, inmates facing disciplinary hearings should no longer be advised in accordance with Carr.
Reversed and remanded.
Weaver, C.J., and Taylor, and Corrigan, JJ., concurred with Young, J.
226 Mich App 681; 575 NW2d 48 (1997).
The Fourteenth Amendment of the United States Constitution guarantees that no state shall deprive any person of “life, liberty, or property, without due process of law.” Const 1963, art 1, § 17 provides the same protection.
The Reagan Court did not define the term “pledge of public faith,” explain its significance, or provide its jurisprudential origin. It did, however, reject contract law as a basis for enforcing such a “pledge.” Id. at 314.
The agreement in question was authorized, indeed compelled, by the Court of Appeals decision in Carr.
Because defendant agreed that his statements could be used for purposes of impeachment or rebuttal, such use would not have violated the Fifth Amendment.
The dissent asserts that “[i]f this were the test for reaching issues, the United States Supreme Court would have revisited Miranda hundreds of times over . . . Post at 676. The dissent reasons that “police officers are ‘bound’ by that case to provide its warnings. Yet, somehow, Miranda violations continue to occur, providing several opportunities to visit the issues presented.” Id. That argument would be more persuasive if the Miranda example was truly analogous to our action today. However, it clearly is not. As our decision in People v Daoud, 462 Mich 621; 614 NW2d 152 (2000), illustrates, simply reading a suspect his Miranda “rights” is but the tip of the proverbial iceberg. Indeed, the United States Supreme Court has been presented with multiple “opportunities” to revisit Miranda only because the “constitutional rule” promulgated in that decision, see Dickerson v United States, 530 US 428; 120 S Ct 2326; 147 L Ed 2d 405 (2000), is difficult to decipher and apply, not because police officers routinely decline to provide the Miranda warnings at all. In order for us to reach Carr, the Department of Corrections would have to defy the Court of Appeals decision in that case. Unlike the dissent, we will not presume that the department would engage in such lawlessness.
The dissent asserts that this case “consists of a narrow question whether defendant’s due process rights were violated . . . .” Post at 675. Surely the dissent recalls that we in fact originally granted leave in this case to address Carr. Thus, we admit to being puzzled at the dissent’s claim that we have decided to address Carr only because we are somehow “dissatisfied” by the “narrow” issue concerning the violation of defendant’s due process rights.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
We decline in this case to reach or address the Carr Court’s holding on this issue. Accordingly, we leave for another day the question of when, if ever, Miranda warnings apply in the prison setting.
Const 1963, art 1, § 17 likewise provides that “[n]o person shall be compelled in any criminal case to be a witness against himself . . . .” We confine our analysis to the Fifth Amendment because defendant has not argued that art 1, § 17 provides broader protections. Moreover, as we noted in People v Cheatham, 453 Mich 1, 10; 551 NW2d 355 (1996), “[t]he wording of the Michigan Constitution granting protection from compelled self-incrimination is identical to the Fifth Amendment protection.”
Because we decline in this case to address Miranda’s applicability in the prison setting, the dissent accuses us of leaving “no constitutional protections for these inmates from today forward.” Post at 677. To the contrary, as we have already explained, the Fifth Amendment prohibits prison inmates from being compelled to incriminate themselves. | [
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D. F. Walsh, P.J.
Plaintiff Shirley Brown and defendant Richard Turnbloom were divorced in Wisconsin in 1975. Plaintiff was awarded custody of their four children. Because of the lack of personal service on defendant, the amount of child support was left open for determination at a later date. In 1977 plaintiff initiated proceedings in Wisconsin under the Uniform Reciprocal Enforcement of Support Act (hereinafter URESA) to compel defendant, a Michigan resident, to pay reasonable child support. Plaintiff was then receiving $411 per month from the Portage County, Wisconsin, Department of Social Services for the support of the children. The Wisconsin court found that defendant owed a duty of support to his children and transmitted the necessary documents to Wexford County, Michigan. The Wexford County Fried of the Court recommended that defendant be ordered to pay $14 per week per child. The Wexford County circuit judge ordered defendant to pay $7 per week per child.
At the Wexford County hearing on the URESA petition the judge, over the objection of the prosecuting attorney who represented plaintiff, heard testimony by defendant that he had not been allowed to visit with his children. In ordering defendant to pay $7 per week per child, the judge noted that, in determining the amount of child support, he had considered the fact that defendant had not been allowed to visit with his children. The prosecutor’s petition for reconsideration was denied. Plaintiff appeals.
The issue presented for our determination here is this. In a URESA action where Michigan is the responding state, may the Michigan circuit judge, in determining the amount of support, take into consideration the alleged denial of the obligor’s visitation rights?
The purpose of URESA (MCL 780.151 et seq.; MSA 25.225(1) et seq.) is "to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto”. MCL 780.152; MSA 25.225(2). (Emphasis supplied.) To effectuate these purposes we hold that the circuit judge erred in considering the alleged denial of visitation rights in determining the amount of child support to be paid by defendant.
We find persuasive the reasoning of the Florida court in Vecellio v Vecellio, 313 So 2d 61 (Fla App, 1975), where it was noted that URESA focuses on only one aspect of domestic relations — the duty of support. The act does not contemplate that the custodial parent come to the responding state to defend against claims arising from other domestic relations matters. Aggrieved noncustodial parents should return to the state of divorce to adjudicate other matters. Id. at 62. Accord, Grosse v Grosse, 347 So 2d 1099 (Fla App, 1977).
In the following cases courts of various jurisdictions have held that the responding court is without subject matter jurisdiction over matters of visitation and may not condition payment of support on observance of visitation rights: Kline v Kline, 260 Ark 550; 542 SW2d 499 (1976), Pifer v Pifer, 31 NC App 486; 229 SE2d 700 (1976), Hoover v Hoover, — SC —; 246 SE2d 179 (1978). In each case the reviewing court cited that portion of the act which provides, "Participation in any proceedings under this act shall not confer upon any court jurisdiction of any of the parties thereto in any other proceedings”. MCL 780.172; MSA 25.225(22).
In Robinson v Harris, 87 Mich App 69; 273 NW2d 108 (1978), the defendant father, a Michigan resident, challenged a court order requiring him to pay child support. The plaintiff mother had been awarded custody of the parties’ children following their divorce. Since the divorce, the children had become increasingly embittered toward defendant. There was no longer any possibility of a meaningful relationship between defendant and his children. The plaintiff was an Ohio resident and a URESA petition was filed in her name seeking child support payments from defendant. The following language of this Court is particularly relevant to the stiuation of the instant plaintiff, a welfare recipient:
"The custodial parent, the mother in this case, is receiving aid from the State of Ohio for the support of her minor children. Under the Uniform Reciprocal Enforcement of Support Act, adopted in both Ohio and Michigan, the State of Ohio is entitled to reimbursement from a person liable under a proper order of support where the state has itself made support payments. MCL 780.159; MSA 25.225(9). Thus, the real party in interest on the side of the plaintiff is the State of Ohio. Whatever the decision of this Court, the named plaintiff will not be affected. To speak in terms of punishing the named plaintiff for her conduct regarding the children or of forcing compliance with court orders by withholding support misses the mark.” Id. at 71.
We adopt the view expressed in the foregoing cases. URESA makes no mention of visitation matters. Its scope is expressly limited to support. The act contemplates ex parte proceedings where only duties of support are adjudicated. It does not provide for adversary proceedings where other matters are to be decided. There is no mechanism for requiring the custodial parent to appear to answer allegations of the noncustodial parent as to the denial of visitation privileges. Adjudication of visitation matters is, therefore, best left to the state of divorce.
Our holding finds support in the history of Michigan’s adoption of the Uniform Reciprocal Enforcement of Support Act. There have been two major versions of the act approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association — the original act, as adopted in 1950 and amended in 1952 and 1958, and the revised act of 1968. 9 ULA, Uniform Reciprocal Enforcement of Support Act, Historical Note, p 805. Michigan adopted most of the 1950 act and only the 1952 amendments. Id., General Statutory Notes, p 892. Of particular significance to the issue raised in the instant case was the Michigan Legislature’s failure to adopt § 21 of the 1950 act as amended in 1958. That section provided that, if the complainant was absent from the responding state and the respondent presented evidence constituting a defense, the responding court was to continue the case for further hearing and submission of evidence by both parties. Id. at 922. See id. Commissioners’ Prefatory Note (1958), p 886. Since the Michigan statute contains no provision suggesting that an adversary proceeding was contemplated by the Legislature, we are convinced that a streamlined process focusing solely on the issue of support was intended. The lack of due process protections for the absent custodial parent compels this conclusion.
Although it has not been adopted in Michigan it is of interest to note that, with particular reference to visitation, the 1968 revised act expressly provides, in § 23, that "the determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court”. Id. at 862. The comment of the commissioners with regard to this amendment suggests that it was perhaps not intended to indicate a change in their original intent as to the scope of inquiry in URESA proceedings. According to the commissioners, the 1968 amendments, like previous amendments, were designed only "to plug loop holes and cure defects in the enforcement procedure”. Id., Commissioners’ Prefatory Note, p 806.
The Legislature failed to provide for adversary proceedings in URESA matters. We decline to engraft into Michigan’s version of the act the due process protections which would be necessary before issues such as visitation could be fairly considered.
Accordingly, we reverse the order setting the amount of child support and remand for further proceedings consistent with this opinion.
No costs, a public question.
T. M. Burns, J., concurred.
Defendant’s testimony was not entirely clear as to the reasons he was unable to visit with his children. At one point he indicated that he did not go to their home because the police were after him. He also testified that plaintiff did not cooperate with him with regard to visitation. For purposes of this appeal, we interpret defendant’s testimony as indicating that plaintiff prevented him from visiting with the children.
Although there is some Michigan authority suggesting that support obligations and visitation rights are interrelated, see, e.g., McLauchlin v McLauchlin, 372 Mich 275; 125 NW2d 867 (1964), Pronesti v Pronesti, 368 Mich 453; 118 NW2d 254 (1962), the recent trend is contrary, see, Stevenson v Stevenson, 74 Mich App 656, 658, fn 1; 254 NW2d 337 (1977), Henshaw v Henshaw, 83 Mich App 68; 268 NW2d 289 (1978), Robinson v Harris, supra. In any event, the nature of a URESA proceeding is significantly dissimilar to that of an action involving enforcement of support obligations between parties divorced in Michigan and present at the Michigan enforcement proceedings. | [
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Corrigan, J.
We granted leave in this case to determine whether an indigent defendant is entitled to the appointment of appellate counsel at public expense when applying for leave to appeal a plea-based conviction. We hold that neither the state nor the federal constitution requires the appointment of counsel under these circumstances. Under our federalist scheme of government, Michigan remains free to decide the conditions under which appellate counsel will be provided where our state constitution commands that the mechanism of appellate review is discretionary. Const 1963, art 1, § 20.
Accordingly, we vacate the order of the Court of Appeals that remanded this case to the trial court for reconsideration in light of People v Najar, 229 Mich App 393; 581. NW2d 302 (1998), reinstate the trial court’s order denying defendant’s motion for appointment of appellate counsel, and remand this case to the trial court so that defendant may pursue his application for leave to appeal his convictions.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Defendant pleaded guilty in Saginaw Circuit Court on July 10, 1995, to possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and possession of marijuana, MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d). The trial court sentenced him to concurrent terms of imprisonment of six to twenty years for the cocaine conviction and one hundred forty-five days for the marijuana conviction. Defendant subsequently requested that the trial court appoint counsel to prepare his application for leave to appeal to the Court of Appeals. The trial court denied defendant’s request. Defendant, along with several similarly situated defendants, then sought superintending control in this Court. This Court dismissed the complaint, but granted defendant and the other petitioners twenty-one days in which to move for appointed appellate counsel in the trial court. This Court further ordered the trial court to appoint counsel to argue the motion.
Defendant thereafter moved for the appointment of appellate counsel. The trial court appointed counsel to represent defendant for purposes of the motion and any resulting appeal. Following argument, the trial court denied defendant’s motion in an opinion and order. The court noted that, in November 1994, the people of Michigan ratified Proposal B, which amended Const 1963, art 1, § 20 to state that “as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court,” but left the provision regarding the appointment of counsel unchanged. The trial court further observed that, following the approval of Proposal B, this Court amended MCR 6.425(F)(1)(c) to provide that “[i]n a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request [for appointment of an attorney] if it is filed within 42 days after sentencing.”
In denying counsel, the trial court reasoned that appointing counsel for every indigent defendant who seeks leave to appeal a plea-based conviction would defeat the purpose of Proposal B, which was to reduce costs and burdens on the criminal justice system arising from guilty plea appeals. It also observed that the need for counsel is less compelling in applications from plea-based convictions because the simplicity of the proceedings makes the process of identifying errors easier. The court further concluded that appointment of counsel was not constitutionally required. The court then reviewed the plea and sentencing proceedings in this case and, noting the lack of apparent error, denied defendant’s request for counsel.
Defendant applied for leave to appeal the denial of his motion for appointed counsel. In lieu of granting leave, the Court of Appeals remanded the case to the trial court for reconsideration in light of Najar, supra. The Court stated:
Najar neither requires the appointment of appellate counsel under MCR 6.425(F)(1)(c) in every case, nor forecloses the ability of a trial court to exercise its discretion to appoint counsel under MCR 6.425(F)(1)(c) in any case in which it concludes that the defendant is in need of assistance to pursue an application for leave to appeal. [Unpublished order, entered July 21, 1998 (Docket No. 209031).]
In Najar, the Court of Appeals addressed the question presented in the instant case. The Court reasoned that while Const 1963, art 1, § 20 entitles a defendant to “reasonable assistance in perfecting and prosecuting an appeal[,] . . . [a]n application for leave to bring an appeal is plainly and simply not an appeal.” Najar, supra at 398. The Court further concluded that neither the state nor the federal constitution guarantees a right to appointed counsel to pursue an application for leave to appeal. Finally, the Court considered the language of MCR 6.425(F)(1)(c), and concluded that the trial court has discretion to appoint counsel, but should appoint counsel when a defendant
raises any issue other than one relating to (1) the facial regularity of the plea-taking procedure, (2) the trial court’s adherence to a sentencing agreement, (3) a plain correction of clerical error in court documents, such as a misspelling or a mathematical miscalculation, or (4) other instances absolutely devoid of merit .... [Najar, supra at 403-404.]
Following the order of the Court of Appeals remanding this case to the trial court for reconsideration in light of Najar, defendant sought leave to appeal to this Court, which we granted. 459 Mich 873 (1998).
II. HISTORY OF RELEVANT STATE AUTHORITIES
Before the ratification of the 1963 Michigan Constitution, Const 1908, art 2, § 19 provided that an accused was entitled “in courts of record, when the trial court shall so order, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.” Criminal defendants, however, were not entitled to an appeal as of right. Const 1963, art 1, § 20, provided before the adoption of Proposal B in 1994 that a defendant had “an appeal as a matter of right; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.” (Emphasis added.)
Art 1, § 20, in its earlier form, thus provided defendants an appeal of right from all criminal convictions. Accordingly, this Court held in People v Smith, 402 Mich 72; 259 NW2d 558 (1977), that defendants could appeal by right from plea-based convictions. Moreover, the Court of Appeals held that a defendant’s right to appeal plea-based convictions included a corollary right to appointment of appellate counsel. People v Gazaway, 35 Mich App 39, 42; 192 NW2d 122 (1971).
Before the ratification of Proposal B in 1994, Michigan was one of only a handful of states that provided an unconditional right of appeal for those who pleaded guilty. In 1994, the Legislature submitted Proposal B to the electorate to decide whether to make appeals from plea-based convictions discretionary. “Eliminating appeals as a matter of right from plea-based convictions was suggested as a way to help control the case load [sic] of the Michigan Court of Appeals.” Note, Limiting Michigan’s guilty and nolo contendere plea appeals, 73 U Det Mercy L R 431 (1996). By 1992, the Court of Appeals had a backlog of more than 4,000 cases awaiting decision, and “[p]lea-based appeals constitute^] approximately thirty percent of all appeals facing the Michigan Court of Appeals.” Id., p 438. Eliminating appeals of right from plea-based convictions was one method proposed to reduce a crushing burden on our appellate courts.
The voters approved Proposal B by a margin of sixty-four percent to thirty-six percent. Id., p 431. As amended, Const 1963, art 1, § 20 now states that an accused is entitled “to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court . . . .” (Emphasis added.) Proposal B did not alter the provision of art 1, § 20 that grants defendants “as provided by law, when the trial court so orders, . . . such reasonable assistance as may be necessary to perfect and prosecute an appeal.” The Legislature subsequently enacted MCL 770.3(l)(e); MSA 28.1100(l)(e), providing for appeals from plea-based convictions by application for leave to appeal.
On December 30, 1994, this Court acted “to preserve the issue of appointment of counsel and payment therefor pending legislative clarification” because of “the absence of legislative action clarifying the Legislature’s position regarding the right to appointment of counsel in guilty plea cases in light of the November 1994 amendment of Const 1963, art 1, § 20 . . . .” 447 Mich cl. We adopted, on an interim basis, MCR 6.425(F)(1)(c), which provides that “[i]n a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request [for appointed counsel] if it is filed within 42 days after sentencing.” 447 Mich cliii.
This Court extended the expiration date of the amended court rule on several occasions “in anticipation of legislation regarding the appointment of appellate counsel in guilty plea cases.” 455 Mich lxxx (1997). Concluding after several years of interim rules that the Legislature was not moving to address the problem, this Court extended the rule indefinitely. Id. In joining this Court’s order, Justice Boyle explained:
Absent legislative implementation of the constitutional amendment and consistent with our reluctance to prejudge legal issues through exercise of the rule-making power, we have entered four interim orders authorizing appointment of counsel in order to protect an indigent defendant’s ability to have the assistance of counsel in pursuing appellate remedies.
We have therefore repeatedly sought clarification of the Legislature’s understanding of the amendment to avoid imposing costs on local funding units through court rules, expressing concern that the Legislature’s failure to act reflects Headlee considerations.
Every indication is that we have reached stalemate. Rather than deprive defendants of the assistance of counsel that the voters might not intend, I agree that the Court should extend the rules indefinitely. [Id., pp Ixxx-lxxxi.]
While this case has been pending in this Court, statutory amendments were enacted requiring the appointment of appellate counsel in guilty plea cases in certain defined circumstances, permitting appointment in another, and otherwise providing that appellate counsel shall not be appointed. 1999 PA 200, MCL 770.3a; MSA 28.1100a. This act took effect on April 1, 2000. Because this new statute does not apply to defendant, the question of its constitutionality is not before us.
HI. RIGHT TO COUNSEL UNDER CONST 1963, ART 1, § 20
We first address defendant’s contention that Const 1963, art 1, § 20 entitles him to appointed counsel. As amended, art 1, § 20 provides, in part:
In every criminal prosecution, the accused shall have the right ... to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal. [Emphasis added.]
We emphasize that, after the ratification of Proposal B, indigent defendants who plead guilty or nolo contendere are no longer entitled to appeal their convictions as a matter of right. Rather, they must apply for leave to appeal. Defendant contends that, when applying for leave to appeal, he is entitled to the appointment of counsel as “reasonable assistance” that is “necessary to perfect and prosecute an appeal.” A defendant, however, is entitled to “reasonable assistance” only when it is “provided by law” and “the trial court so orders.” As discussed below, we conclude that defendant has no right to appointed counsel under our state constitution because the appointment of appellate counsel for an indigent defendant applying for leave to appeal from a plea-based conviction was not provided by law at any relevant time in this case.
In construing our constitution, this Court’s object is to give effect to the intent of the people adopting it. Charles Reinhart Co v Winiemko, 444 Mich 579, 606; 513 NW2d 773 (1994). ‘ Hence, the primary source for ascertaining its meaning is to examine its plain meaning as understood by its ratifiers at the time of its adoption.” Id. Since the 1972 amendment, art 1, § 20 has provided that a defendant is only entitled, as provided by law, and when the trial court so orders, to such reasonable assistance as is necessary to perfect and prosecute an appeal. Before the passage of Proposal B, however, no reason existed for this Court to construe the “as provided by law” language. Since guilty plea appeals were as of right, and the United States Constitution requires that the state provide counsel in a first appeal of right, Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963), this Court was never called upon to decide whether the appointment of appellate counsel in guilty plea appeals was “provided by law.” Because the ratification of Proposal B made guilty plea appeals discretionary, we must now consider that question.
The drafters of the 1963 Constitution used the phrase “provided by law” in several provisions. See, e.g., Const 1963, art 6, §§ 10, 15, 28. This Court has consistently construed the “provided by law” language as vesting authority to act in the Legislature. For example, Const 1963, art 6, § 15 provides that the jurisdiction, powers, and duties of the probate courts “shall be provided by law.” In Buback v Governor, 380 Mich 209, 226; 156 NW2d 549 (1968), this Court held that art 6, § 15 grants the Legislature the power to define the probate courts’ jurisdiction and noted as follows regarding the meaning of the phrase “provided by law” in our constitution:
The committee on style and drafting of the constitutional convention of 1961 made a distinction in the use of the words “prescribed by law” and the words “provided by law.” Where “provided by law” is used, it is intended that the legislature shall do the entire job of implementation. Where only the details were left to the legislature and not the overall planning, the committee used the words “prescribed by law.” See 2 Official Record, Constitutional Convention of 1961, pp 2673, 2674. [380 Mich 226.]
See also In re Kasuba Estate, 401 Mich 560, 566; 258 NW2d 731 (1977) (“[t]he Constitution provides for statutory definition of the jurisdiction of probate courts and our power to make rules of practice and procedure cannot be used to expand that jurisdiction without legislative consent”).
The drafters also used the phrase “provided by law” in art 6, § 10: “The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court.” The plain language of this section clearly reveals that the phrase “provided by law” does not include this Court’s rulemaking powers. Accordingly, this Court stated in People v Cooke, 419 Mich 420, 430; 355 NW2d 88 (1984), that “[t]he Legislature, not this Court, has the power under the constitution to prescribe the jurisdiction of the Court of Appeals.”
Further, Const 1963, art 5, § 29, provides, in part, that the Civil Rights Commission “shall have other powers provided by law to carry out its purposes.” In Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405, 419; 157 NW2d 213 (1968), Justice Adams, writing for a plurality of the Court, construed art 5, § 29 to afford the Legislature the task of granting such “other powers” to the Civil Rights Commission. Thus, this Court has consistently held that use of the phrase “provided by law” in our constitution contemplates legislative action. Where action by this Court pursuant to its rulemaking powers is contemplated, the constitution explicitly says so. See, e.g., Const 1963, art 6, §§ 10, 30.
The constitutional provision presently under consideration, art 1, § 20, provides that an accused has the right “as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.” (Emphasis added.) Given the use of the phrase “as provided by law” in this section, our state constitu tion entitles defendant to the appointment of counsel only to the extent that such assistance is legislatively required. When defendant requested appointment of appellate counsel at state expense, the Legislature had not acted to provide appointed counsel for indigent defendants seeking leave to appeal from plea-based convictions. Since the Legislature had not acted, the appointment of counsel for defendant was not “provided by law.” Accordingly, Const 1963, art 1, § 20, does not afford defendant the right to appointed counsel.
Defendant does not contend in this Court that 1999 PA 200 governs his case as his request for counsel occurred before the effective date of the act. Nor does defendant argue that, if the statute applied, he would satisfy any of the conditions for appointing counsel to pursue the application.
Defendant’s reliance on MCR 6.425(F)(1)(c) is likewise misplaced. When defendant requested counsel, the court rule provided:
In a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request [for appointed counsel] if it is filed within 42 days after sentencing.
Under Const 1963, art 1, § 20, however, this Court lacked the authority to adopt MCR 6.425(F)(1)(c). The phrase “provided by law” permits action by the Legislature only. Accordingly, this Court could not use its rulemaking powers to provide for appointed appellate counsel in the absence of legislative action. The Michigan Constitution does not afford indigent defendants seeking leave to appeal from plea-based convictions the right to appointed counsel absent legislative action.
IV. RIGHT TO COUNSEL UNDER THE FEDERAL CONSTITUTION
We next address defendant’s argument that the federal constitution guarantees him the right to appointed appellate counsel when seeking leave to appeal his guilty plea conviction. Of course, the federal constitution does not require the fifty states to provide any appeal whatsoever to criminal defendants. Ross v Moffitt, 417 US 600, 606; 94 S Ct 2437; 41 L Ed 2d 341 (1974); McKane v Durston, 153 US 684; 14 S Ct 913; 38 L Ed 867 (1894). As discussed, after the enactment of Proposal B, Michigan no longer affords an appeal of right to defendants who plead guilty or nolo contendere. Art 1, § 20. A defendant who pleads guilty or nolo contendere may only appeal his conviction by seeking and obtaining leave from the Court of Appeals.
Our research discloses no authority that recognizes the right to appeal a plea of guilty as a fundamental right. Under the due process-equal protection test of Ross v Moffitt, supra, Michigan’s scheme gives guilty-pleading defendants a fair opportunity to have their claims heard in our appellate courts. Further, Michigan’s current arrangements for inmate access to the courts, including law libraries, paralegal assistance, and staff attorney programs, satisfy the so-called right to meaningful access. Accordingly, we conclude that Michigan’s scheme does not offend the Fourteenth Amendment.
The United States Supreme Court has never specifically held that the federal constitution commands that an indigent defendant who pleads guilty or nolo contendere, and whose appeal therefrom is purely discretionary, is entitled to the appointment of appellate counsel. In Douglas, the California District Court of Appeals denied the defendants’ request for appointed appellate counsel in their appeal of right following their convictions at trial. Douglas, supra, pp 353-355. The Court required the states to furnish appellate counsel for indigent defendants in their first appeal as of right. Id., pp 356-357. The Douglas Court relied on Griffin v Illinois, 351 US 12; 76 S Ct 585; 100 L Ed 891 (1956), in which the Court, in a plurality opinion, held that a state cannot deny a defendant an appeal because he lacks the financial resources to purchase a trial transcript. In Douglas, the Court reasoned, in part, as follows:
There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that Ms case is without merit [under California’s then-existmg system for deciding whether to appoint counsel], is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has oMy the right to a meamngless ritual, wMle the rich man has a meanmgful appeal. [Id., pp 357-358.]
The Court also noted, however, “that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’ ” Id., p 356.
In Ross, North Carolina provided the defendant appointed counsel in his appeal of right to their intermediate appellate court following a conviction at trial. Id., pp 603-604. That court affirmed the convictions, and the defendant then sought to invoke the discretionary review procedure of the North Carolina Supreme Court. Id. The North Carolina Supreme Court refused to appoint counsel for review in that court. Id.
The Supreme Court affirmed the North Carolina Supreme Court. It held that the federal constitution does not require the appointment of appellate counsel on discretionary review to the North Carolina Supreme Court. Id., pp 610-612. Unlike Douglas, Ross separately analyzed the issue under both the Due Process and Equal Protection Clauses. In its due process analysis, the Court noted a fundamental difference between the trial and appellate stages of criminal proceedings. Id., pp 610-611. At trial, due process requires that the state provide the accused counsel as a shield to fend off the state’s efforts to convict him. Id. “By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a judge or jury below.” Id., p 610. Appellate counsel serves as a sword rather than a shield. Id., pp 610- 611. The Court thus concluded that “[ujnfaimess results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis.” Id., p 611.
In its equal protection analysis, the Ross Court explained that the Fourteenth Amendment does not require absolute equality, but does require an appellate system that is free of unreasoned distinctions. Id., p 612.
The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process. [Id., p 616.]
In concluding that appointed counsel is not required for a discretionary appeal to a state Supreme Court, the United States Supreme Court noted that the defendant had “received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals” in his first appeal of right. Id., p 614. The United States Supreme Court thus reasoned:
We do not believe that it can be said, therefore, that a defendant in respondent’s circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court. At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion of the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review. [Id., p 615.]
The doctrinal basis of the Griffin/Douglas line is difficult to ascertain. To the extent that Griffin and Douglas rely on equal protection principles, Washington v Davis, 426 US 229; 96 S Ct 2040; 48 L Ed 2d 597 (1976), undermined their validity by making proof of discriminatory puipose an essential element of an equal protection claim. Const 1963, art 1, § 20 is unquestionably facially neutral. Defendant in this case has not shown that the state intended to discriminate against criminal defendants on the basis of indigency. Recently, however, the Supreme Court in MLB v SLJ, 519 US 102; 117 S Ct 555; 136 L Ed 2d 473 (1996), rejected the notion that Davis had implicitly overruled the Griffin/Douglas line. In MLB, the Court extended the Griffin rationale to require Mississippi to supply a record to an indigent parent whose parental rights had been terminated to permit proper appellate consideration of her claims. While noting that the Griffin line of cases have reflected both equal protection and due process concerns, the MLB Court reasoned that most decisions in this area rest on an equal protection framework since “due process does not independently require that the State provide a right to appeal.” Id., p 120. The Court distinguished termination of parental rights cases from the “mine run,” id., p 116, of civil cases on the ground that they involve the permanent destruction of “the most fundamental family relationship.” Id., p 121. The Court did not explain, however, why the Davis purposeful discrimination requirement is inapposite. Indeed, the Supreme Court has yet to articulate any constitutional underpinnings for its “access to appeal” decisions in light of its own modem equal protection jurisprudence.
Despite the muddled state of its jurisprudence, we adhere to our duty to attempt to understand and apply what the Supreme Court has opined regarding the right of meaningful access. As explained below, we conclude that meaningful access does not require the appointment of counsel for defendants who seek discretionary leave to appeal from their guilty pleas. Our current system already provides those defendants with an adequate opportunity to present their claims fairly.
A. DISTINCT NATURE OF PLEA PROCEEDINGS
Appeals from plea-based convictions and appeals from convictions obtained following trials, like those appeals at issue in Douglas and Ross, are fundamentally different. Foremost, a defendant who tenders a plea has admitted guilt of the offense in open court. “[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v Henderson, 411 US 258, 267; 93 S Ct 1602; 36 L Ed 2d 235 (1973).
Further, the state has a “fundamental interest in the finality of guilty pleas . . . .” Hill v Lockhart, 474 US 52, 58; 106 S Ct 366; 88 L Ed 2d 203 (1985). A guilty plea evidences a defendant’s desire to terminate the prosecution. Thus, a defendant who concedes his guilt has acceded to the state’s fundamental interest in finality.
Plea proceedings are also shorter, simpler, and more routine than trials; the record most often consists of the “factual basis” for the plea that is provided to the trial court. In contrast with trials, less danger exists in plea cases that the record will be so unclear, or the errors so hidden, that the defendant’s appeal will be reduced to a meaningless ritual. Also, a concession of guilt limits considerably the potential issues that can be raised on appeal. See 1A Gillespie, Michigan Criminal Law & Procedure (2d ed), § 16:30, pp 94-104 (discussing the effect of a plea on the availability of various appellate claims). These are all reasoned distinctions that are relevant to determining whether Michigan provides “meaningful access” to the appellate courts.
B. INDIGENT GUILTY PLEA DEFENDANTS IN MICHIGAN HAVE MEANINGFUL ACCESS TO THE APPELLATE SYSTEM
Given the obvious differences between trial-based and guilty plea convictions, it is clear that our current guilty plea procedures provide sufficient methods of assistance to meet the Ross meaningful access requirement. To preserve an issue for appeal, a defendant must move to withdraw his plea before the trial court. MCR 6.311(C). MCR 6.005(H)(4) states that “unless an appellate lawyer has been appointed, [appointed trial counsel is responsible for the] filing of postconviction motions the lawyer deems appropriate, including motions ... to withdraw plea, or for resentencing." (Emphasis added.) Thus, our court rules require trial counsel to assist the defendant in organizing and presenting to the trial court any potential appellate issues that warrant preservation. Accordingly, a pro se defendant seeking discretionary review will have the benefit of a transcript, trial counsel's framing of the issues in the motion to withdraw, and the trial court’s ruling on the motion. As in Ross, these factors will aid the defendant in identifying and asserting claims. Further, prison inmates filing discretionary applications will have the same access to law libraries, paralegal assistance, and staff attorneys that Michigan provides to them in other postconviction proceedings. While trial counsel cannot be relied on to advise the defendant of ineffective assistance of counsel claims, those claims that have merit likely will be apparent on the record.
We acknowledge that the tools available to indigent defendants seeking leave to appeal from their guilty pleas are not equivalent to those present in Douglas and Ross. However, Douglas and Ross both involved appeals from convictions following trial. Neither Douglas nor Ross addressed the issue before us, namely, whether a defendant is entitled under the federal constitution to appointed counsel in a first discretionary appeal from a plea-based conviction. As stated, the differences between trial- and plea-based convictions are undeniable. Thus, any statements in Douglas and Ross suggesting the necessity of a reasoned lower court decision and a brief prepared by an attorney in the lower court must be considered in the context in which those cases were decided.
Finally, we acknowledge that the Court has, since Ross, continued to expand its “meaningful access” line of cases in the context of filing fees and transcripts. See, e.g., MLB, supra. However, we note that none of those decisions have expanded on the right to counsel recognized in Douglas. Thus, we conclude that the free transcript and counsel cases are really on separate trajectories. Indeed, compare the Court’s expansive jurisprudence in the free transcript/filing fees cases against its contracting jurisprudence regarding the right to counsel in identical settings. See, e.g., 3 LaFave, Israel & King, Criminal Procedure (2d ed), §§ 11.2(c) and (d). The Court has extended the right to transcripts at state expense in collateral attack cases and habeas corpus proceedings. In the analogous postconviction setting, the Court has never voted to expand the Douglas right to counsel. Since Douglas itself, the Supreme Court has never, not once, even in the case of inmates on death row, ordered counsel appointed for individual petitioners as a component of the right of meaningful access.
V. CONCLUSION
No one questions that the appointment of appellate counsel at state expense would be more efficient and helpful not only to defendants, but also to the appellate courts. The distinct character of plea proceedings, however, will “make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right,” Ross, supra, p 616, from a trial conviction. Even more important, “the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required.” Id. “The Fourteenth Amendment ‘does not require absolute equality or precisely equal advantages,’ . . . nor does it require the State to ‘equalize economic conditions.’ ” Id., p 612. “We address not what is prudent or appropriate, but only what is constitutionally compelled.” Smith v Robbins, 528 US 259,_; 120 S Ct 746, 763; 145 L Ed 2d 756 (2000) (internal quotation omitted).
In summary, defendant is not entitled to appointed appellate counsel under either the state or federal constitution. Defendant is not entitled to the appointment of appellate counsel under art 1, § 20 because such assistance was not “provided by law” when defendant requested counsel. Moreover, the federal constitution does not mandate appointment of counsel under the present circumstances because defend ant has not been denied meaningful access to Michigan’s appellate courts. Accordingly, we vacate the Court of Appeals order, reinstate the trial court’s order denying appointment of counsel, and remand the case to the trial court so that defendant may pursue his application for leave to appeal his convictions.
Weaver, C.J., and Taylor and Young, JJ., concurred with Corrigan, J.
The Legislature subsequently enacted MCL 770.3(l)(e); MSA 28.1100(l)(e), providing that appeals from plea-based convictions shall be by application for leave to appeal.
The “as provided by law” language in this portion of Const 1963, art 1, § 20 was added by a constitutional amendment approved at a special election held on August 8, 1972.
See Krull, Eliminating appeals from guilty pleas, 29 Oct Ariz Atty 34, 35 (1992). Before a 1992 rule change in Arizona, that state
was but one of a small minority of states (seven in all) that allowed for the unrestricted appeal from judgments and sentences imposed pursuant to plea agreements. Of the remaining states, 21 do not allow for any appeals from plea agreements, six allow for appeals from plea agreements but restrict the issues that can be raised, and 16 allow for the express waiver of the right to appeal as a condition of a plea agreement. Arizona apparently has elected to become a member of this last group.
Following the statute’s enactment, we amended our court rules to eliminate the “liberally grant” standard of MCR 6.425(F)(1)(c) and to provide for the appointment of counsel in those circumstances directed by the statute.
To the extent that the Court of Appeals relied on and construed MCR 6.425(F)(1)(c) in Najar, supra, that decision is overruled.
As the Court later noted in Ross, the Douglas Court did not explicitly indicate whether its holding was based on the Due Process Clause or the Equal Protection Clause. “Neither Clause by itself provides an entirely satisfactory basis for the result reached, each depending on a different inquiry which emphasizes different factors.” Id., 417 US 609.
By pleading guilty or nolo contendere, a defendant waives the following issues: search and seizure claims, defective complaint and warrant claims, claims of error as to the preliminary examination (including sufficiency of the proofs to bind over), Fifth Amendment claims, noiyurisdictional evidentiary issues, challenges to operating a vehicle while under influence of alcohol predicate offenses, claims (including constitutional claims) relating to the defendant’s factual guilt and the prosecution’s ability to prove the case, claims of error in juvenile waiver proceedings, speedy trial claims (if the plea is unconditional), claims of violation of the statutory 180-day rule, claims of speedy trial under MCL 768.1; MSA 28.1024, claims of failure to timely file the habitual information, statute of limitations claims, unpreserved entrapment claims, double jeopardy claims that are unpreserved so that the necessary facts to support the claim are missing, and ineffective assistance of counsel claims in which the underlying issues are waived by a guilty plea. Gillespie, Michigan Criminal Law & Procedure, Practice Deskbook (2d ed), § 10:50, pp 10-15 to 10-17.
The dissent asserts that “a ‘correct adjudication of guilt’ involves more than just an admission of guilt. Claims of failures to honor plea bargains, coercion or involuntariness of a plea, or lack of mental capacity to knowingly enter a plea, for example, all address the correctness of the ‘a<Jjudication of guilt.’ ” Post, p 560.
The dissent utterly fails to explain why the constitution compels appointment of counsel to identify and assert those guilty plea issues that the dissent labels as involving a “ ‘correct adjudication of guilt.’ ” Id. Claims of failures to honor plea bargains, coercion or involuntariness of a plea, and lack of mental capacity to enter a plea are all examples of issues that require preservation by a motion to withdraw under MCR 6.311(C). A defendant will accordingly have assistance of appointed trial counsel in identifying and raising those issues worth preserving. MCR 6.005(H)(4).
Moreover, most of these claims would likely be apparent to the defendant either from the record or through his own knowledge; a defendant normally would not require the assistance of an appellate attorney to know, for example, that he was coerced into pleading guilty or that the prosecutor made a promise that has not been honored. The possibility that an attorney might prove helpful in some cases does not mean that the constitution requires the appointment of appellate counsel.
The dissent continually asserts that our decision in this case creates a new scheme. In truth, the people of Michigan created a new scheme. Their approval of Proposal b made guilty plea appeals discretionary. Also, the people’s representatives in the Legislature had not acted to provide appellate counsel at taxpayer expense to upset guilty pleas during the relevant period in this case. Rather than creating a new scheme, our decision upholds the system created by the people directly and through their elected representatives.
Similarly, the dissent suggests that our holding creates the “system we will come to know in Michigan.” Post, p 553. The dissent overlooks the fact that our decision concerns only those guilty pleas appeals after the passage of Proposal b but before the enactment of 1999 PA 200. Thus, the “system we will come to know in Michigan” is the one recently chosen by the Legislature, barring a successful challenge on constitutional grounds.
The dissent accuses us of “sandwiching this quotation from Ross between [our] own modifiers” and of “relying on snippets from Ross without accounting for its reasoning that counsel could be denied on a discretionary appeal following an appeal where counsel was provided.” Post, p 560. This accusation is baseless. We have fully and fairly discussed Ross’ reasoning and holding. We obviously do not suggest through the above quotation that Ross decided the precise issue in this case.
The dissent devotes much of its analysis to showing that appointment of counsel would aid a defendant in identifying potential errors and asserting claims. This line of reasoning is based on a faulty premise, i.e., that the constitution requires states to do everything that would make appellate practice easier and more efficient. Ross, supra, p 616. By arguing, in effect, that appointment of counsel would be “prudent or appropriate,” the dissent fails to explain why it is “constitutionally compelled.” Smith, supra, 120 S Ct 763.
We observe that the United States District Court for the Eastern District of Michigan recently enjoined the enforcement of 1999 PA 200 and the provisions of MCR 6.425 designed to implement it following that court’s earlier declaration that the statute is unconstitutional. Tesmer v Kowalski, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued June 30, 2000 (Docket No. 00-CV-10082). However, the district court expressly limited the scope of its ipjunctive order to the enforcement of 1999 PA 200. Accordingly, as the federal district court itself acknowledged, the decision in Tesmer does not affect the proceedings in this case. | [
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] |
Kelly, J.
We granted leave in this case to review a 1997 Court of Appeals decision in which that Court held unconstitutional §§45 and 46 of the Administrative Procedures Act (apa). I would affirm in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1977, the Legislature enacted an amendment to the apa. It required administrative agencies to obtain the approval of a joint committee of the Legislature or the Legislature itself before enacting new administrative rules. The statute now states in relevant part:
(8) If the committee approves the proposed rule within the time period provided by subsection (6), the committee shall attach a certificate of its approval to all copies of the rale bearing certificates except 1 and transmit those copies to the agency.
(9) If, within the time period provided by subsection (6), the committee disapproves the proposed rule or the committee chairperson certifies an impasse after votes for approval and disapproval have failed to receive concurrent majorities, the committee shall immediately report that fact to the legislature and return the rule to the agency. The agency shall not adopt or promulgate the rale unless 1 of the following occurs:
(a) The legislature adopts a concurrent resolution approving the rale within 60 days after the committee report has been received by, and read into the respective journal of, each house.
(b) The committee subsequently approves the rale.
(10) If the time permitted by this section expires and the committee has not taken action under either subsection (8) or (9), then the committee shall return the proposed rules to the agency. The chairperson and alternate chairperson shall cause concurrent resolutions approving the rale to be introduced in both houses of the legislature simultaneously. Each house of the legislature shall place the concurrent resolution directly on its calendar. The agency shall not adopt
. or promulgate the rule unless 1 of the following occurs:
(a) The legislature adopts a concurrent resolution approving the rale within 60 days after introduction by record roll call vote. The adoption of the concurrent resolution requires a majority of the members elected to and serving in each house of the legislature.
(b) The agency resubmits the proposed rale to the committee and the committee approves the rale within the time permitted by this section.
* * *
(12) If the committee approves the proposed rale within the time period provided by subsection (6), or the legislature adopts a concurrent resolution approving the rale, the agency, if it wishes to proceed, shall formally adopt the rule pursuant to any applicable statute and make a written record of the adoption. Certificates of approval and adoption shall be attached to at least 6 copies of the rule. [MCL 24.245; MSA 3.560(145).]
An agency shall not file a rule . . . until at least 10 days after the date of the certificate of approval by the committee or after the legislature adopts a concurrent resolution approving the rule. [MCL 24.246(1); MSA 3.560(146)(1).]
Governor Milliken promptly requested an advisory opinion on the constitutionality of the amendments, but this Court declined, stating; “The Court stands ready to examine carefully, and to resolve expeditiously, any controversy that comes to it out of application of 1977 PA 108 in a factual setting.” Request for Advisory Opinion on Constitutionality of 1977 PA 108, 402 Mich 83, 87; 260 NW2d 436 (1977). That opportunity is now before us.
In 1995, the Department of Corrections (DOC) proposed a series of administrative rules that limited the number and type of persons who could visit a prison inmate. Doc then submitted its proposed rules to the Joint Committee on Administrative Rules (jcar). At public hearings before jcar, prisoner rights groups, prisoners’ relatives, and other interested persons expressed vigorous opposition to the proposed rules. Jcar did not approve the rules and scheduled more hearings.
Doc then withdrew the proposed rules from jcar and adopted them without jcar’s approval. Doc forwarded the rules to the Governor and the Office of Regulatory Reform, which, in turn, sent them to the Secretary of State. The rules then became effective without a certificate of legislative or jcar approval.
In the wake of these events, prison inmates brought actions in the Jackson and Ingham Circuit Courts, challenging the validity of the new visitation rules. They asserted that DOC had enacted the rules in violation of the legislative oversight provisions of the apa and that the rules were unconstitutional. Both courts denied relief.
After consolidating the two cases, the Court of Appeals affirmed. It held that §§45 and 46 of the apa are unconstitutional and void. The procedures they establish, that effectively empower jcar to veto administrative rules, fail to satisfy the enactment and presentment requirements of the Michigan Constitution. 222 Mich App 397-398.
The panel went on to hold that the authority granted to JCAR violates the doctrine of separation of powers. It contains no provision for presentment to the Governor for approval of the Legislature’s veto of a rule. Id. at 398. The panel’s holding severed §§45 and 46 from the APA and rendered them void. Id. at 402. In addition, the Court of Appeals found doc’s new visitation rules valid and enforceable. They were promulgated in compliance with doc’s enabling statute, as well as with the procedures enunciated in the apa. Id.
We granted leave. 459 Mich 879 (1998).
II. ANALYSIS
A. CONSTITUTIONALITY OF PARTS OF §§ 45 AND 46
The first issue before us is whether §§45 and 46 of the apa violate the Michigan Constitution by requiring that a joint legislative committee, or the Legislature itself, approve new administrative rules. In making this determination, I recognize that we exercise our power to declare a statute unconstitutional only when the violation is clear. Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510, 515; 104 NW2d 182 (1960). We review the constitutionality of statutes de novo. McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999).
The Michigan Constitution contains a provision that separates the powers of the state among three branches of state government. It provides:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. [Const 1963, art 3, § 2.]
The Michigan Constitution vests the legislative power in the Senate and the House of Representatives. Const 1963, art 4, § 1. The constitution provides that “[n]o bill shall become law without the concurrence of a majority of the members elected to and serving in each house.” Const 1963, art 4, § 26. In addition, “[e]very bill passed by the legislature shall be presented to the governor before it becomes law . . . .” Const 1963, art 4, § 33. These provisions of Const 1963, art 4, are the enactment and presentment requirements of the Michigan Constitution.
The Legislature’s statutory delegation of authority to executive branch agencies to adopt rules and regulations consistent with the purpose of the statute does not violate the separation of powers provision. Coffman v State Bd of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1951); In re Quality of Service Standards for Regulated Telecommunications Services, 204 Mich App 607; 516 NW2d 142 (1994). The issue here is whether the Legislature, upon delegating such authority, may retain the right to approve or disapprove rules proposed by executive branch agencies.
The United States Supreme Court has ruled that such oversight is not permissible because of the bicameralism and presentment requirements of the federal constitution. Immigration & Naturalization Service v Chadha, 462 US 919, 956; 103 S Ct 2764; 77 L Ed 2d 317 (1983). In Chadha, the Court addressed the constitutionality of a resolution passed by the United States House of Representatives pursuant to § 244(c)(2) of the Immigration and Nationality Act, 8 USC 1101 et seq. The resolution overrode the Attorney General’s decision to suspend the deportation of an individual.
The Court found that the House of Representatives’ action was inherently legislative in nature. For sup port, the Court made four observations. First, the action “had the purpose and effect of altering . . . legal rights, duties and relations of persons . . . outside the legislative branch.” Id. at 952. Second, the action supplanted legislative action. The only way the House could have obtained the same result would have been by enacting legislation. Id. at 952-954. Third, the House’s action involved determinations of policy. Id. at 954-955. Fourth, the constitution explicitly authorizes only four instances where one house of Congress can act alone. It does not include the authority for one house to exercise a legislative veto over duly authorized actions of the executive branch. Id. at 955-956.
The Court then held § 244(c)(2) unconstitutional, because it authorized a house of Congress to exercise legislative power without adhering to the Enactment and Presentment Clause of the United States Constitution. Id. at 958. The Court held that the House had exercised legislative power without the approval of the Senate and presentment to the President. By that action, it had violated the bicameralism and presentment requirements of the federal constitution and eroded the “carefully defined” separation of powers. Id. at 957-958.
1. CHADHA APPLIES TO THIS CASE
We have the discretion to interpret or apply a provision in our state constitution differently than the United States Supreme Court has done with a parallel provision of the federal constitution. Doe v Dep’t of Social Services, 439 Mich 650, 674, n 31; 487 NW2d 166 (1992). However, here, I find the United States Supreme Court’s reasoning in Chadha persuasive and applicable to the Michigan Constitution.
Petitioners argue that Chadha should not be applied to this case. They note that Chadha stands for the proposition that it is improper for Congress to delegate authority to an executive branch agency, then let one house summarily override that authority. Petitioners assert that this case differs in that, here, the Legislature is not withdrawing any authority. Instead, it is conditioning its delegation of authority on the agency’s compliance with apa mandates, including jcar review.
I disagree. The Legislature passed and the Governor signed the legislation that delegated to DOC the authority to promulgate rules. MCL 791.206; MSA 28.2276. If the Legislature or jcar invalidates a rule proposed by DOC, it effectively overrides the authority the Legislature has delegated to doc. In essence, pursuant to §§ 45 and 46, the Legislature has the power to render illusory its delegation of rulemaking authority. Therefore, I find that the provisions of the apa at issue in this case are similar to the legislative veto struck down in Chadha.
2. SECTIONS 45 AND 46 OF THE APA AUTHORIZE LEGISLATIVE ACTION
When applying Chadha to this case, I find that the action of JCAR or the Legislature in exercising the authority granted by §§ 45 and 46 of the apa is inherently legislative. Therefore, it is subject to the enactment and presentment requirements of the Michigan Constitution. My conclusion is based on the facts of this case.
First, if jcar or the Legislature can block the implementation of doc rules, it has the power to alter the rights, duties, and relations of parties outside the legislative branch. The Legislature assigned to the director of doc the duty to supervise and control the doc. MCL 791.203; MSA 28.2273. It also delegated to the director the authority to promulgate rules for “[t]he management and control of state penal institutions.” MCL 791.206(l)(d); MSA 28.2276(l)(d). Consistent with that statutory assignment and delegation, doc promulgated the rules at issue in this case. If enforced, the authority of JCAR or the Legislature to block implementation of the rules would effectively interfere with the duty of the director to administer the department. By affecting the duty of the doc director, who is an individual outside the legislative branch, the action becomes legislative in nature. Chadha, supra at 952.
Second, jcar’s failure to approve the rules promulgated by doc involves policy determinations. Policy determinations are fundamentally a legislative function. American States Ins Co v DAIIE, 117 Mich App 361, 367; 323 NW2d 705 (1982). Jcar conducted hearings on the proposed rules. During the hearings, it took testimony and received comments from prisoner rights groups, prisoners’ relatives, and other interested parties. After the hearings, jcar did not approve the rules. Instead, it scheduled another hearing. I do not know to a certainty the rationale behind its failure to approve the rules. However, I reasonably can infer that JCAR considered the testimony and comments received at the hearings. Those deliberations equate to consideration of the inevitable policy issues that surrounded the proposed rules.
Third, jcar’s action in failing to approve the rules proposed by doc is inherently legislative in nature, because it supplants other legislative methods for reaching the same result. If jcar lacked its statutory authority, then the only way that the Legislature could influence the promulgation of the rules would be to enact new legislation. Therefore, I find that the authority vested in jcar and the Legislature by §§ 45 and 46 of the apa is, in essence, the authority to perform legislative acts.
3. MICHIGAN’S CONSTITUTIONAL PROVISIONS LIMIT THE LEGISLATURE FROM ACTING UNILATERALLY UNDER §§ 45 AND 46 OF THE APA
I have considered the amicus curiae brief of the Michigan State Employees Association. It notes that the Michigan Constitution, unlike its federal counterpart, is a limitation on the Legislature’s power, not a grant of power to it. Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311, 317-318; 254 NW2d 544 (1977). Absent a limitation in the Michigan Constitution, “the Legislature has the power to legislate within a particular field.” Federated Publications v MSU Bd of Trustees, 460 Mich 75, 83; 594 NW2d 491 (1999). Therefore, the msea asserts, there is no constitutional limitation on the Legislature’s authority to approve or disapprove proposed agency rules. Petitioners support that argument. They point out that the constitution expressly furnishes to jcar the authority to suspend the implementation of proposed agency rules when the Legislature is not in session, without gubernatorial approval. Const 1963, art 4, § 37.
That the Michigan Legislature may legislate absent constitutional limitations does not mean that it may wield legislative power in a manner other than that carefully prescribed by the Michigan Constitution. As demonstrated above, the action of JCAR or the Legislature in approving or disapproving the rules that agencies have proposed is in essence legislative action. To determine the propriety of such action I consider the separation of powers provision. I consider, as well, the provisions vesting executive power in the Governor, judicial power in “one court of justice,” and legislative power in the House and Senate. When the Legislature engages in “legislative action” it must do so by enacting legislation. Failure of JCAR or the Legislature to do so violates the enactment and presentment requirements, usurps the Governor’s role in the legislative process, and violates the separation of powers provision. Thus, in this case, the separation of powers provision and the enactment and presentment requirements act as expressed limitations on the power of JCAR and the Legislature. I conclude that the Legislature cannot circumvent the enactment and presentment requirements simply by labeling or characterizing its action as something other than “legislation.”
Furthermore, I find that § 37 of article 4 does not support petitioners’ position. First, § 37 grants the Legislature the independent authority to temporarily suspend the implementation of a rule promulgated by an administrative agency between regular legislative sessions; § 37 does not grant it the authority permanently to block implementation of a rule. Indeed, a fair reading of § 37 of article 4 suggests that it serves merely as a stopgap measure. It prevents a proposed rule promulgated between legislative sessions from taking effect before the Legislature has had the opportunity to respond by enacting legislation.
Second, I infer from the limited grant of independent authority in § 37 of article 4 that the people of Michigan intended to restrict the Legislature’s power over agency rulemaking. The enactment and presentment requirements, as well as the separation of powers provision, restrict that power.
I conclude that, in this case, a committee of the Legislature acted in an inherently legislative manner without adhering to the enactment and presentment requirements of the constitution. Const 1963, art 4, §§ 1, 22, 26, 33. As a consequence, it violated Michigan’s Separation of Powers Clause. Const 1963, art 3, §2.
My holding is consistent with the decisions of the majority of other jurisdictions that have considered this issue. The high courts of eight different states have declared that legislative oversight of executive branch rulemaking is unconstitutional. Alaska v ALIVE Voluntary, 606 P2d 769 (Alas, 1980); State ex rel Stephan v Kansas House of Representatives, 236 Kan 45; 687 P2d 622 (1984); Opinion of the Justices, 121 NH 552; 431 A2d 783 (1981); New Jersey General Assembly v Byrne, 90 NJ 376; 448 A2d 438 (1982); State ex rel Barker v Manchin, 167 W Va 155; 279 SE2d 622 (1981); Missouri Coalition for the Environment v Joint Committee on Administrative Rules, 948 SW2d 125 (Mo, 1997); Gilliam Co v Oregon Dep’t of Environmental Quality, 316 Or 99; 849 P2d 500 (1993), rev’d on other grounds sub nom Oregon Waste Systems, Inc v Oregon Dep’t of Environmental Quality, 511 US 93; 114 S Ct 1345; 128 L Ed 13 (1994); Legislative Research Comm by and through Prather v Brown, 664 SW2d 907 (Ky, 1984). The courts varied in their reasoning but uniformly resolved that oversight provisions violated the Enactment and Presentment Clauses or the separation of powers provisions in the states’ constitutions.
The high courts of two states have decided the matter differently. In Martinez v Dep’t of Industry, Labor & Human Relations, the Wisconsin Supreme Court upheld a statute that authorized a joint committee to suspend the implementation of administrative rules pending bicameral legislative review and presentment to the governor. There, the legislature can permanently block the promulgation of agency rules only through a legislative act that complies with constitutional requirements of the state constitution. Michigan’s apa has no similar provision.
In Mead v Amell, the Idaho Supreme Court agreed with the dissent in Chadha. It held that the legislature could constitutionally reject agency-promulgated rules on the basis of a concurrent resolution adopted by each house. The court stated that Idaho’s executive branch agencies were not executing the law by promulgating rules. Id. at 667. Rather, it reasoned, the agencies were acting according to a legislative delegation of power. Agency rulemaking lacked the constitutional protection from legislative oversight that other inherently executive activities enjoyed. Id. Therefore, it was constitutional for the legislature to override agency rulemaking activities without adhering to the formality of the enactment and presentment require ments of the Idaho Constitution. Id., citing Chadha, supra at 986-987.
I decline to follow Mead, because the Idaho court failed to recognize that passing a resolution to override rules promulgated by an executive branch agency is an inherently legislative action. As I have pointed out, such action has the same purpose and effect as legislation. The Michigan Constitution requires that legislative acts adhere to the enactment and presentment requirements of the constitution. Const 1963, art 4, §§ 1, 22, 26, 33.
In this case, the “legislative acts” did not comply with the enactment and presentment requirements embodied in the Michigan Constitution. Therefore, the acts usurped the role of the Governor in the lawmaking process and violated the separation of powers provision. Const 1963, art 3, § 2. Accordingly, jcar’s and the Legislature’s authority under §§45 and 46 is unconstitutional.
B. SEVERABILITY OF §§ 45 AND 46
Having determined that jcar’s and the Legislature’s authority to approve or disapprove agency-promulgated rules is unconstitutional, I address whether the offending sections can be severed from the APA. The alternative is to strike down the entire act as unconstitutional. The general rule favors severability:
In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:
If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable. [MCL 8.5; MSA 2.216.]
In Maki v East Tawas, this Court noted that MCL 8.5; MSA 2.216 requires us to consider whether a statutory provision ruled unconstitutional is independent of the remainder of the act in which it is found. Id. at 159. In addition, the Court must consider whether the remainder of the act is “otherwise complete in itself and capable of being carried out without reference to the unconstitutional [section].” Id. Therefore, I make a two-step analysis to determine whether we may sever the invalid statutory provisions from the remainder of the act. I consider, first, whether the Legislature expressed that the provisions at issue were not to be severed from the remainder of the act. If it did not, then I must determine whether the unconstitutional portions are so entangled with the others that they cannot be removed without adversely affecting the operation of the act.
Turning to the relevant portions of §§ 45 and 46, I find that there is no express provision in the APA that prohibits the Court from severing the offending portions.
Next, I find that we can sever the invalid portions of §§ 45 and 46 without adversely affecting the remainder of the apa. Without the provisions authorizing jcar or legislative approval, the apa continues to provide for public notice and an opportunity to be heard. MCL 24.208; MSA 3.560(108) requires the Mich igan Register to publish proposed administrative rules. MCL 24.241; MSA 3.560(141) requires a public hearing and notice of hearing before the adoption of a rule.
I find it significant, also, that the apa, as originally enacted, did not include the provisions for JCAR or legislative review of agency-promulgated rules. See 1969 PA 306. Those provisions were not added until the Legislature amended the APA in 1971. See 1971 PA 171. Thus, I find that the original provisions of the APA can remain effective even after the unconstitutional portions from the remainder of the act are severed.
I would sever the offending portions of §§ 45 and 46 from the APA, specifically subsections 8, 9, 10 and 12 of § 45 and the second sentence of subsection 1 of § 46. The remaining provisions of the APA would remain in effect.
C. CONSTITUTIONALITY OF THE ENABLING ACT
The next issue is whether the enabling act that gives DOC the authority to promulgate rules is an unconstitutionally broad delegation of legislative power. The Legislature must provide standards to an administrative agency for the exercise of power delegated to it. In Blue Cross & Blue Shield of Michigan v Governor, 422 Mich 1, 51-52; 367 NW2d 1 (1985), the Court stated:
The criteria this Court has utilized in evaluating legislative standards are set forth in Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976): 1) the act must be read as a whole; 2) the act carries a presumption of constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires or permits. The preciseness required of the standards will depend on the complexity of the subject. Argo Oil Corp v Atwood, 274 Mich 47, 53; 264 NW 285 (1935). Additionally, due process requirements must be satisfied for the statute to pass constitutional muster. State Highway Comm v Vanderkloot, 392 Mich 159, 174; 220 NW2d 416 (1974).
In Blue Cross & Blue Shield, the Court considered the constitutionality of a delegation of power to the Insurance Commissioner. It found that, where the delegation simply provided the commissioner with the discretion to “approve” or “disapprove” risk factors proposed by health care corporations, it was unconstitutional.
Here, the statutory delegation of authority to the Director of doc contains many more limitations on that authority than were present in Blue Cross & Blue Shield. The provisions at issue state:
1) The director may promulgate rules pursuant to the administrative procedures act . . . which may provide for all of the following:
a) The control, management, and operation of the general affairs of the department.
* :|: *
d) The management and control of state penal institutions ....
x x x
3) The director may promulgate further rules with respect to the affairs of the department as the director con siders necessary or expedient for the proper administration of this act. [MCL 791.206; MSA 28.2276.]
When the delegation of authority to doc is examined in total, I find that it contains sufficient guidelines and restrictions. First, the director must abide by the terms of the apa in promulgating new rules. MCL 791.206(1); MSA 28.2276(1). Second, the director may promulgate rules only for the effective control and management of DOC. MCL 791.206(l)(a); MSA 28.2276(l)(a). Third, the director may not promulgate rules that apply to jails owned by municipalities that detain persons fewer than seventy-two hours. MCL 791.206(l)(d); MSA 28.2276(l)(d). Fourth, the director may promulgate rules only as “necessary or expedient for the proper administration of this act.” MCL 791.206(3); MSA 28.2276(3). Fifth, the director may not promulgate rules that prohibit a probation or parole officer from carrying a firearm on duty or that allow a prisoner to have his name changed. MCL 791.206(4); MSA 28.2276(4).
These are but a few of the “guidelines” contained in the enabling statute. Accordingly, I find that the powers delegated to the director of doc, when read as a whole, are sufficiently limited to pass constitutional muster.
Furthermore, the constitution does not require the enabling act to specify in great detail the standards that an executive branch agency must follow in promulgating rules. West Ottawa Public Schools v Director, Dep’t of Labor, 107 Mich App 237; 309 NW2d 220 (1981). The Legislature may provide standards in “ ‘quite general language, as long as the exact policy is clearly made apparent ....’” Id. at 243 (citation omitted).
Here, I find that the standards make it clear that the director of doc is to promulgate rules to manage and control DOC, subject to the limitations and directions noted. I find such detail sufficient, in this context, to make the role of the director clearly apparent and to satisfy due process. Therefore, petitioners have not overcome the presumption that the enabling act is a constitutional delegation of power to the executive branch.
D. CONSTITUTIONALITY OF THE PROMULGATED RULES
The final issue is whether the visitation rules promulgated by DOC exceed the scope of authority that the enabling act delegated to it. In making its determination, the Court considers: “(1) whether the rule is within the subject matter of the enabling statute; (2) whether it complies with the legislative intent underlying the enabling statute; and (3) whether it is arbitrary and capricious.” Dykstra v Dep’t of Natural Resources, 198 Mich App 482, 484; 499 NW2d 367 (1993), citing Luttrell v Dep’t of Corrections, 421 Mich 93, 100; 365 NW2d 74 (1984).
I find that the rules are within the subject matter of the enabling act. The enabling act delegates authority to DOC to promulgate rules for the management and control of DOC and the state’s prisons. MCL 791.206; MSA 28.2276. The rules at issue limit who may visit prisoners and how many times a prisoner may have visitors. Such rules are directly related to the director’s responsibility to manage and control the state’s prisons. Therefore, the doc’s rules meet the first prong of the test.
I find also that the rules promulgated by DOC are consistent with the legislative intent underlying the enabling act. The Legislature gave doc broad authority to make rules necessary to manage and control the prison system. MCL 791.206; MSA 28.2276. I infer from that broad grant of authority that the Legislature intended doc to address specific issues, such as visitation rules and guidelines, as in this case.
Finally, I find that the rules that doc promulgated are not arbitrary and capricious. A rule is not arbitrary or capricious if it is rationally related to the purpose of the enabling act. Dykstra, supra at 491. Doc has proffered that it set forth the rules “to increase the security of the state’s penal institutions, to assure the safety of both the residents of and the visitors to these facilities, and to reduce the incidence of contraband smuggled into such facilities.”
I find that rules promulgated for such purposes are rationally related to the authority of DOC to manage and control the state’s prison facilities. MCL 791.206; MSA 28.2276. Therefore, the DOC rules at issue in this case meet the Dykstra/Luttrell test for validity, and I would uphold them as proper.
Petitioners’ final argument is that doc’s rules limiting visitation violate prisoners’ rights to due process, free exercise of religion, and the effective assistance of counsel. I find petitioners’ argument unfounded for the reasons set forth in the Court of Appeals opinion. 222 Mich App 408-409; see also Bazzetta v McGinnis, 124 F3d 774 (CA 6, 1997), supplemented 133 F3d 382 (CA 6, 1998); Bazzetta v Dep’t of Corrections Director, 231 Mich App 83; 585 NW2d 758 (1998). Accordingly, I would affirm the Court of Appeals holding on that issue.
m. conclusion
The Legislature’s reservation of authority to approve or disapprove rules proposed by executive branch agencies violates the Michigan Constitution. Action taken pursuant to that authority is inherently legislative in nature and does not comply with the enactment and presentment requirements of the constitution. Accordingly, it usurps the role of the Governor in the legislative process and violates the separation of powers provision. Therefore, I would hold that subsections 8, 9, 10, and 12 of § 45 and the first sentence of subsection 1 of § 46 are unconstitutional.
I also would hold that the offending portions of §§45 and 46 may be severed from the rest of the apa without declaring the entire apa unconstitutional. I would distinguish this holding from that of the Court of Appeals, because it would not strike down §§45 and 46 in their entirety. This holding would sever only the specified portions of the sections. The remaining portions would remain effective.
In addition, I would hold that the Legislature provided sufficient standards in its statutory grant of authority to doc to promulgate administrative rules so that the delegation passes constitutional muster. Finally, I would hold that the rules at issue in this case are valid and constitutional.
Corrigan and Young, JJ., concurred with Kelly, J.
222 Mich App 385; 564 NW2d 130 (1997).
1977 PA 108.
Discussed below, part n(A).
The United States Supreme Court discussed the similar requirements of the federal constitution in Immigration & Naturalization Service v Chadha, 462 US 919, 957-958; 103 S Ct 2764; 77 L Ed 2d 317 (1983):
The bicameral requirement, the Presentment Clauses, the President’s veto, and the Congress’ power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those checks, and maintain the separations of powers, the carefully defined limits on power of each Branch must not be eroded.
Unlike the dissent, I find this issue to be quite different from that of the constitutionality of delegation of rulemaking authority to executive branch agencies.
8 USC 1254(c)(2).
The United States Constitution requires that, before a bill becomes law, both houses of Congress pass it and, then, that it be presented to the President. US Const, art I, § 7.
I agree with the dissent that not every action resembling legislation requires the passing of a law, and, therefore, that the Legislature may constitutionally delegate rulemaking authority to executive agencies. However, I find that there is a distinction between executive rulemaking and the JCAR approval process.
When an executive agency such as the doc interprets a statute it administers by promulgating a rule, the action must be taken within the confines of the enabling statute. In that sense, the agency’s action is “checked” by the statute. However, when the Legislature, as here, reserves to itself the power to block agency rules from taking effect, there is no corresponding check. See Chadha, supra at 954, n 16. Instead, the Legislature’s action exerts a “policy-making effect equivalent to amending or repealing existing legislation. ” New Jersey General Assembly v Byrne, 90 NJ 376, 388; 448 A2d 438 (1982) (emphasis added). Therefore, such actions are subject to the enactment and presentment requirements of our 1963 Constitution. As the Alaska Supreme Court explained in Alaska v ALIVE Voluntary, 606 P2d 769, 777 (Alas, 1980), “[t]he fact that [the Legislature] can delegate legislative power to others who are not bound by [the enactment and presentment requirements] does not mean that it can delegate the same power to itself and, in the process, escape from the constraints under which it must operate.”
There is also a distinction between the JCAR review process and a proposal that is introduced into a legislative committee. Unlike an executive branch agency with statutory authorization to promulgate rules, a representative or senator has no independent discretionary authority to pass bills. Thus, when a proposal introduced into a legislative committee does not become a bill, the Legislature has not infringed upon any authority granted to a particular legislator. When the jcar or the Legislature blocks the promulgation of an administrative rule, that action limits or effectively revokes the authority granted by the Legislature to an executive branch agency. Thus, the dissent’s analogy of the jcar review process to a proposal introduced into a legislative committee is inapposite. See post at 175, n 11.
The dissent states that I misapprehend the argument of petitioner and amici curiae. Yet the dissent simply restates what I have identified here as the argument made by them.
The constitutional provision states:
The legislature may by concurrent resolution empower a joint committee of the legislature, acting between sessions, to suspend any rule or regulation promulgated by an administrative agency subsequent to the atfjoumment of the last preceding regular legislative session. Such suspension shall continue no longer than the end of the next regular legislative session.
165 Wis 2d 687; 478 NW2d 582 (1992).
117 Idaho 660; 791 P2d 410 (1990).
385 Mich 151; 188 NW2d 593 (1971).
MCL 24.245(8>(10), (12); MSA 3.560(145)(8)-(10), (12).
MCL 24.246(1); MSA 3.560(146)(1). The sentence reads: “An agency shall not file a rule . . . 'until at least 10 days after the date of the certificate of approval by the committee or after the legislature adopts a concurrent resolution approving the rule.”
I would not go as far as the Court of Appeals holding that struck down both §§ 45 and 46 in their entirety. | [
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Markman, J.
I. INTRODUCTION
Considerable confusion exists in the Michigan judiciary in a significant area of worker’s compensation law—the standards for reviewing decisions of the magistrate and the Worker’s Compensation Appellate Commission (wcac). As a result of this confusion, there is, in our judgment, sometimes the appearance (although we do not believe the reality) that decisions are made in this realm at least partly on the basis of which results are favored by a particular appellate court. In addition, because the decisions of the appellate courts are resultantly more arbitrary and less predictable, the appellate process has become a more prolonged one as parties understandably are more inclined to pursue repeated appeals in the hope of eventually achieving a favorable judgment at some level.
Where the WCAC and the magistrate agree on the facts and legal conclusions in a particular worker’s compensation case, the courts will rarely disturb the result. However, the problem arises when the wcac reverses the magistrate on some issue and the judiciary is presented with two conflicting decisions from the administrative level. In that situation, judges are confronted with two distinct lines of case law, each of which sets forth a fundamentally different administrative and judicial standard of review in worker’s compensation cases. Depending upon which of these lines of case law is emphasized, there is a high likelihood that a different appellate result will be reached. Courts that cite case law such as Holden v Ford Motor Co, 439 Mich 257; 484 NW2d 227 (1992), that stresses the extraordinary deference accorded to the wcac in this highly technical area of the law, will more often than not affirm the wcac in its award or denial of benefits to an employee. Meanwhile, courts that cite case law such as Goff v Bil-Mar Foods, Inc (After Remand), 454 Mich 507; 563 NW2d 214 (1997), that stresses the deference accorded by the wcac to the magistrate, will more often than not reverse the WCAC in this decision. Because of these conflicting lines of case law, there is inevitably a perception that courts may have been tempted to choose which line of cases to emphasize in accordance with the results reached in an individual case. In effect, such conflicting law undermines the appearance of there being a principled and consistent standard defining the proper level of review that should be exercised by the courts. Further, it may appear to the public that the result in a particular case is a function less of well-defined legal principles than of the predispositions of individual judges. In addition, because of the heightened potential for arbitrary decision making, worker’s compensation cases may often take years to work their way back and forth through the administrative and judicial processes and attain finality. The uncertainty concerning Worker’s Disability Compensation Act (wdca) standards of review manifested by such a prolonged reviewing process benefits neither the injured employee nor the employer, while undermining public confidence in the fairness of the judicial system in a sensitive area of decision making.
Therefore, in these combined worker’s compensation cases, we once again face the task of clarifying and definitively setting forth the proper standards of administrative and judicial review, to resolve the confusion currently existing in the law and to further the efficient administration of worker’s compensation cases. To that end, we reaffirm our decision in Holden, supra, regarding the administrative and judicial standards of review applied in worker’s compensation cases. Because we believe that this Court’s decision in Goff, supra, implicitly contradicted the Holden rule and altered the announced standards of review, we overrule Goff insofar as it is inconsistent with the statutory language and with our decision in Holden. Further, we overrule the holding of Layman v Newkirk Electric Associates, Inc, 458 Mich 494; 581 NW2d 244 (1998), to the extent that it clearly misstated the law with regard to the wcac’s authority to make independent factual findings.
With respect to the instant cases, in Mudel v Great Atlantic & Pacific Tea Co, we find that the requirements of MCL 418.861a(11); MSA 17.237(861a)(11) were satisfied because the plaintiff argued alternatively for both occupational disease and personal injury benefits. Further, in Connaway v Welded Construction Co, we find that the successive injury rule requires the plaintiff to pursue worker’s compensation benefits in the state of New York, where her disability arose, rather than in Michigan. After examining the decision of the wcac in each of these cases, we conclude that the wcac acted within its authority in Mudel by affirming the magistrate’s award of benefits, and in Connaway by reversing the magistrate’s award of benefits. We therefore affirm the holdings of the wcac in each of these consolidated cases.
II. STANDARDS OF REVIEW
In worker’s compensation cases, there are two separate levels of review: administrative review and judicial review. As explained in Holden, supra, the WCAC reviews the magistrate’s findings of fact under the “substantial evidence” standard, while the judiciary reviews the wcac’s findings of fact under the “any evidence” standard. These two standards of review are separate and distinct; they originate from different statutory sources and serve different purposes.
We must begin with the Michigan Constitution, which provides the underlying basis for both standards of review. Const 1963, art 6, § 28, provides as follows:
Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.
The constitution makes clear that the Legislature has authority to adopt different standards of review in worker’s compensation cases, that is, standards that are “otherwise provided by law,” through the enactment of statutory provisions. Indeed, the Legislature has provided these standards throughout the long and complex evolution of this state’s worker’s compensation statute, now entitled the WDCA; MCL 418.101 et seq.; MSA 17.237(101) et seq. Through 1985 PA 103, effective October 1, 1986, the Legislature adopted the “substantial evidence” standard for the wcac’s administrative review of the magistrate’s fac tual findings, replacing the de novo standard of review previously applied by the former Worker’s Compensation Appeal Board (wcab) under earlier versions of the worker’s compensation statute. The “substantial evidence” standard, contained in MCL 418.861a(3); MSA 17.237(861a)(3), provides as follows:
Beginning October 1, 1986 findings of fact made by a worker’s compensation magistrate shall be considered conclusive by the commission if supported by competent, material, and substantial evidence on the whole record. As used in this subsection, “substantial evidence” means such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion.
The surrounding statutory provisions serve to flesh out the proper meaning and application of the “substantial evidence” standard. The “whole record,” for instance, means “the entire record of the hearing including all of the evidence in favor and all the evidence against a certain determination,” MCL 418.861a(4); MSA 17.237(861a)(4), and the wcac’s “review of the evidence pursuant to this section shall include both a qualitative and quantitative analysis of that evidence in order to ensure a full, thorough, and fair review.” MCL 418.861a(13); MSA 17.237(861a)(13). Therefore, the wcac’s review of the magistrate’s decision involves reviewing the whole record, analyzing all the evidence presented, and determining whether the magistrate’s decision is supported by competent, material, and substantial evidence.
An important part of the wcac’s statutory reviewing authority is the “qualitative and quantitative” analysis of the “whole record.” This statutory language, along with that of MCL 418.861a(14); MSA 17.237(861a)(14), grants the wcac certain fact-finding powers, and permits it in some circumstances to substitute its own findings of fact for those of the magistrate, if the WCAC accords different weight to the quality or quantity of evidence presented. However, application of the clear and plain language of MCL 418.861a(13); MSA 17.237(861a)(13) does not connote a de novo review by the WCAC of the magistrate’s decision, as asserted by the dissent. Clearly, it would be improper for the wcac to engage in its own statutorily permitted independent fact finding if “substantial evidence” on the whole record existed supporting the decision of the magistrate.
In contrast to the standard for administrative review, a separate statutory provision sets forth the standard by which the judiciary reviews the wcac’s findings of fact. MCL 418.861a(14); MSA 17.237(861a)(14) provides that the judiciary must treat the wcac’s factual findings as conclusive on appellate review:
The findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have the power to review questions of law involved with any final order of the commission, if application is made by the aggrieved party within 30 days after the order by any method permissible under the Michigan court rules.
Strikingly absent from the statutory formulation of the judicial standard of review, in contrast to the administrative standard of review, are any references to a review of the whole record, a qualitative or quantitative analysis of the evidence presented on both sides, and a determination of whether competent, material, or substantial evidence supports the decision made below. Despite these marked distinctions, the dissent simply fails to engage in the necessary process of parsing the clear and plain language of the WDCA. While the wcac’s review is a highly fact-intensive examination, judicial review is not. Instead, the judiciary is directed, by constitutional and statutory provisions, to treat the wcac’s findings of fact as conclusive, in the absence of fraud.
In Holden, supra, 439 Mich 263, we examined the above constitutional and statutory provisions and concluded as follows:
The Legislature, by employing the language of the constitution in stating that the fact finding of the wcac is final subject to limited judicial review, made clear that judicial review by the Court of Appeals or this Court of a wcac decision is to be of the findings of fact made by the wcac and not the findings of fact made by the magistrate. And the findings of fact made by the wcac are conclusive if there is any competent evidence to support them. [Emphasis added.]
This is the crucial difference between the administrative and judicial standards of review in worker’s compensation case's: the role of the wcac is to ensure that factual findings are supported by the requisite evidence, while the role of the judiciary is to ensure the integrity of the administrative process. The WCAC is required by MCL 418.861a(13); MSA 17.237(861a)(13) to employ a “qualitative and quantitative analysis” of competing evidence, on consideration of the whole record, and determine the level of support for the magistrate’s factual findings. The judiciary does not engage in this type of review, but must accept the wcac’s factual findings as conclusive, in the absence of fraud.
These two very distinct standards of review created by the Legislature contain very different levels of deference for the decision under review. The “substantial evidence” standard, governing the wcac’s review of the magistrate’s findings of fact, provides for review which is clearly more deferential to the magistrate’s decision than the de novo review standard previously employed. Nevertheless, the wcac has the power to engage in both a “qualitative and quantitative” analy sis of the “whole record,” which means that the wcac need not necessarily defer to all the magistrate’s findings of fact.
In contrast, the “any evidence” standard, governing the judiciary’s review of the wcac’s findings of fact, provides for less searching review—one that is deferential to the skill and experience of the wcac in this highly technical area of the law. As this Court explained in Holden, the judicial standard of review is extremely deferential:
If it appears on judicial appellate review that the wcac carefully examined the record, was duly cognizant of the deference to be given to the decision of the magistrate, did not “misapprehend or grossly misapply” the substantial evidence standard, and gave an adequate reason grounded in the record for reversing the magistrate, the judicial tendency should be to deny leave to appeal or, if it is granted, to affirm, in recognition that the Legislature provided for administrative appellate review by the seven-member wcac of decisions of thirty magistrates, and bestowed on the wcac final fact-finding responsibility subject to constitutionally limited judicial review. [439 Mich 269.]
The Holden formulation of judicial review, which requires the courts to ensure that the wcac did not “misapprehend or grossly misapply” the “substantial evidence” standard, means that the judiciary must ensure that the wcac did not misapprehend its administrative appellate role in reviewing decisions of the magistrate. As long as there exists in the record any evidence supporting the wcac’s decision, and as long as the WCAC did not misapprehend its administrative appellate role (e.g., engage in de novo review; apply the wrong rule of law), then the judiciary must treat the wcac’s factual decisions as conclusive.
We continue to believe that the Holden decision correctly established the distinction between the proper standards for administrative and judicial review in worker’s compensation cases, and we expressly reaffirm our decision in that case. Unfortunately, decisions of this Court in the wake of Holden effectively overruled that precedent, without doing so expressly. Specifically, this Court’s decision in Goff requires an independent judicial determination whether the magistrate’s findings of fact are supported by the requisite competent, material, and sub stantial evidence on the whole record. In Goff, the majority stated:
[W]here a party claims that the wcac has exceeded its power by reversing the magistrate, meaningful review must begin with the magistrate’s decision, because if competent, material, and substantial evidence based on the whole record supports the magistrate’s decision, the wcac need go no further. If it does, the wcac is exceeding its authority. [454 Mich 513.]
In her dissenting opinion in Goff Justice Weaver warned against the effect that the majority opinion in that case would have on the Holden decision and on the standards of review in worker’s compensation matters:
[T]he [Gqff] majority opinion will have the effect of undermining this Court’s decision in Holden v Ford Motor Co, 439 Mich 257; 484 NW2d 227 (1992), and rendering it virtually useless, increasing the backlog of reviewing courts, and depriving the [wcac] of its authority to conduct a qualitative, as well as a quantitative, review of the whole record . . . [and] the majority’s standard will expand judicial appellate review to an extreme unintended by the Legislature and contrary to the legislative scheme for review of worker’s compensation awards .... In effect, the majority’s position has appellate courts stepping into the shoes of the commission by conducting a qualitative and quantitative review of the whole record that the Legislature only intended the commission perform. In so doing, the majority, in the name of further explaining this Court’s Holden analysis, has so deviated from Holden as to render that decision virtually useless. [454 Mich 540-541.]
We axe persuaded that Goff resulted in an errant construction of plain statutory language, erroneously requiring the judiciary to look first at the magistrate’s decision and to determine anew whether that deci sion is supported under the substantial evidence standard. This is a direction that is inconsistent with Holden. The rule of law established by Goff is not faithful to the statutory language, which commands that the “findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclusive.” MCL 418.861a(14); MSA 17.237(861a)(14). The dissent’s assertion that Goff is consistent with the wdca avoids the inconvenience of grappling with the actual statutory language of the act. The judiciary is simply not empowered to look beyond the wcac’s findings of fact. The Legislature has granted to the wcac the authority and responsibility for reviewing the magistrate’s findings of fact, to determine whether those findings are adequately supported by the record. The Legislature has withheld that same authority and responsibility from the judiciary—the role of the Court of Appeals and this Court is to treat the wcac’s findings as conclusive and to “review questions of law involved with any final order of the commission.” MCL 418.861a(14); MSA 17.237(861a)(14).
That the justices of this Court may have come to a different conclusion than the WCAC if we were evaluating a matter de novo, or that we may find the magistrate’s conclusion to be better supported than the wcac’s conclusion, is irrelevant. Given the limited scope of judicial review in worker’s compensation cases, we may not substitute our own judgment for that of the wcac by independently reviewing each magistrate’s decision to determine whether there is competent, material, and substantial evidence on the whole record supporting the magistrate’s findings of fact. If that were the case, then what would be the role of the WCAC as the presumably expert administrative agency in this realm? The courts would routinely be stepping into the wcac’s shoes and conducting an independent review of the entire record, to determine if the magistrate’s decision complied with the “substantial evidence” standard. This cannot be what the Legislature intended when it established a two-tiered reviewing process that principally entrusted factual issues to the wcac and legal issues to the judiciary.
The decision in Goff also contains language that improperly directs the wcac to review a magistrate’s decision under the “any evidence” standard, rather than the “substantial evidence” standard. In Goff, supra, 454 Mich 538, the majority stated:
If the magistrate’s decision is reasonably supported in the record by any competent, material, and substantial evidence, then it is conclusive and the wcac must affirm. If it does not, it is exceeding the scope of its reviewing power and impermissibly substituting its judgment for the magistrate’s. [Emphasis added.]
This language conflates the separate and distinct standards of review employed at the administrative and judicial levels. The dissent’s statement that the “mere use of the word ‘any’ does not have the effect of fusing or confusing the ‘substantial evidence’ standard with the ‘any evidence’ standard,” post at 735, altogether ignores the grammatical application of the adjective; the word “any,” as used in Goff, clearly expresses an attribute of the word “evidence” that follows. Thus, while “any competent, material, and substantial evidence” may not equate with “any evidence” in the dissent’s judgment, it would hardly be irrational for the WCAC, pursuant to Goff, to determine that, if the magistrate’s finding of fact was supported by “any” evidence, it must affirm. However, this determination would be contrary to the actual statutory language of MCL 418.861a(3); MSA 17.237(861a)(3), wherein the word “any” is nowhere to be found.
While MCL 418.861a(3); MSA 17.237(861a)(3) established the “substantial evidence” standard for WCAC review over the magistrate’s decision, MCL 418.861a(14); MSA 17.237(861a)(14) established the “any evidence” standard for judicial review over the WCAC’s decision. These two standards of review are clearly separate and distinct, emanating from different statutory sources and imparting different standards of review.
Therefore, unlike the unstated but effective overruling of Holden in Goff, we expressly overrule Goff, insofar as it contradicts the statutory language and departs from our decision in Holden. Yet, we wish to make clear that we do not lightly overrule existing precedent. In People v Graves, 458 Mich 476, 480-481; 581 NW2d 229 (1998), this Court recently discussed the proper circumstances under which it would overrule prior case law:
It is true of course that we do not lightly overrule a case. This Court has stated on many occasions that “[u]nder the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed.” Further, . . . “[bjefore this court overrules a decision deliberately made, it should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it.”
When it becomes apparent that the reasoning of an opinion is erroneous, and that less mischief will result from overruling the case rather than following it, it becomes the duty of the court to correct it. Although we respect the principle of stare decisis, we also recognize the common wisdom that the rule of stare decisis is not an inexorable command. [Citations omitted.]
Moreover, as we recently explained in Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), a court is most justified in overruling an earlier case if the prior court misconstrued a statute.
Directing the wcac to review the magistrate’s decision under the “any evidence” standard, and requiring the judiciary to review the magistrate's decision and determine anew whether that decision is supported under the “substantial evidence” standard, as espoused in Goff, unequivocally contradicts the clear and plain language of the WDCA. Therefore, allowing Goff to stand, in our judgment, would perpetuate the lack of a principled and consistent standard defining the proper level of review to be applied by the courts and would permit the continuation of a heightened potential for arbitrary, inconsistent, and highly confused decision making in worker’s compensation cases. Such results would be contrary to the statute and far more injurious to the administrative and judicial processes than any effect associated with our statutorily compelled decision to overrule Goff
The wcac must review the magistrate’s decision under the “substantial evidence” standard, while the courts must review the wcac’s decision under the “any evidence” standard. Review by the Court of Appeals and this Court begins with the wcac’s decision, not the magistrate’s. If there is any evidence supporting the wcac’s factual findings, and if the wcac did not misapprehend its administrative appellate role in reviewing decisions of the magistrate, then the courts must treat the wcac’s factual findings as conclusive.
We next consider the holding of Layman, supra, with regard to the wcac’s authority to make independent factual findings. In Layman, the WCAC reversed the magistrate’s open award of worker’s compensation benefits to the plaintiff, and the Court of Appeals denied leave to appeal. This Court granted leave to appeal and vacated the wcac’s decision on the grounds that the WCAC lacked the authority to make factual findings, holding that the WCAC must always remand a case to the magistrate where additional factual findings need to be made, even when the record is complete:
Where a factual finding needs to be made, but has not been rendered by the magistrate, the case should be remanded to the magistrate. When the commission finds that the magistrate has failed to make necessary fact findings, it should remand the case to the magistrate for that purpose. [458 Mich 509.]
Contrary to the above language of Layman, this Court cannot abrogate the express statutory language enacted by the Legislature, absent a finding that the statute contravenes the dictates of our state or federal constitution. That the Legislature provided the WCAC with fact-finding powers cannot be denied:
The findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclu sive. [MCL 418.861a(14); MSA 17.237(861a)(14) (emphasis added).]
How can the dissent, in a consistent manner, reconcile “[t]he findings of fact made by the commission” with its statement that the WCAC must avoid independent fact finding, and thus its conclusion that Layman remains “sound”? We are left wanting with regard to an answer to this question because the Legislature clearly and plainly authorized the WCAC to make findings of fact.
Additionally, we believe the Layman holding is insupportable in light of MCL 418.861a(12); MSA 17.237(861a)(12), which provides that the WCAC “may remand a matter to a worker’s compensation magistrate for purposes of supplying a complete record if it is determined that the record is insufficient for purposes of review.” The Legislature’s use of “may” rather than “shall” clearly indicates that the wcac is not required to remand a case to the magistrate in every instance in which the magistrate has failed to make full factual findings. The dissent’s belief that the wcac is precluded from engaging in any independent fact finding effectively substitutes its own public policy choice for those already made by the Legislature and ignores the clear and plain language of MCL 418.861a(14); MSA 17.237(861a)(14). As long as the WCAC is presented with a record that allows it to intelligently make its own factual findings, the Legislature has declared that the wcac is free to do so.
We believe that Layman's reliance on Woody v Cello-Foil Products (After Remand), 450 Mich 588; 546 NW2d 226 (1996), was misplaced. Woody stands for the limited proposition that the WCAC cannot review a decision by a magistrate, if the magistrate’s opinion is insufficiently detailed to allow the reviewing body to separate findings of fact from legal determinations. 450 Mich 594-595. Because the magistrate had not sufficiently separated his factual and legal determinations, the wcac was forced to speculate regarding the facts and the legal reasoning relied upon. Contrary to Layman, Woody did not hold that the WCAC lacked authority to make independent factual findings.
Nevertheless, we do recognize that aspects of the Woody opinion are confusing, as they may be read in a manner that conflicts with our current holding. First, the Woody opinion purported to look beyond the wcac’s findings of fact to examine the magistrate’s findings of fact in order to weigh those findings against the “substantial evidence” standard. As explained above, the judiciary’s role is to review the wcac’s findings of fact, not the magistrate’s, and the judiciary is compelled by statute to treat the wcac’s findings of fact as conclusive if supported by any evidence in the record, as long as the WCAC did not misapprehend its administrative appellate role.
Second, the Woody opinion remanded the case to the magistrate for further factual findings. Because the Legislature expressly granted the WCAC fact-finding authority, MCL 418.861a(14); MSA 17.237(861a)(14), and because it is the wcac’s role to conduct a thorough review of the matter, including “both a qualitative and quantitative analysis” of the “whole record,” the case should have been remanded to the wcac, not to the magistrate. While we recognize the confusing aspects of Woody, we nevertheless believe that the opinion focused not on the wcac’s authority to make independent findings of fact, but on the need for the reviewing body to avoid speculation, when it is impossible to “separate the facts found from the law applied.” 450 Mich 597. Therefore, Layman’s reliance on Woody was misplaced.
We believe that Layman expressly contradicts the text of the wdca by declaring that the wcac has no authority to make original findings of fact. Given this obvious and express error in the application of statutory language, this Court must overrule the Layman holding. We are convinced that Layman was wrongly decided, as its holding explicitly contradicts the statutory grant of fact-finding authority to the WCAC. Further, we believe that far less injury will result from overruling the case than from following it. Graves, supra at 480-481. It is clear that application of the Layman holding carries the potential for creating a substantial administrative backlog in worker’s compensation cases, because Layman requires the WCAC to remand all cases where the magistrate has failed to articulate a specific finding of fact on any issue, regardless of whether the record is sufficient for the WCAC to resolve the matter without resort to speculation. This remand requirement thus threatens to create unnecessary delays in the worker’s compensation system and to dilute some of the benefit of an administrative system designed to make relatively expedi tious decisions about compensation for injured employees.
A return to the express language of the Legislature, granting the wcac authority to make independent findings of fact, will further the efficient administration of worker’s compensation cases, in accord with the Legislature’s explicit intent. Because the Legislature clearly granted the wcac authority to make independent factual findings, Layman’s holding to the contrary is clearly erroneous. Because less injury will result from overruling the case than from following it, we expressly overrule Layman here.
m. MUDEL v GREAT ATLANTIC & PACIFIC TEA CO
In Mudel, plaintiff John Mudel worked for defendant A&P, in various capacities, for almost fifty years. He began employment with A&P as a bagger in 1944, at age sixteen. He soon moved to the position of night stocker, which he performed for eleven years. In 1953, Mudel began working as a meat cutter, and he remained in that position for thirty-nine years, until his last day of work. As a meat cutter, Mudel was required to spend a great deal of time standing, walking, and lifting, in cold temperatures. On April 1, 1992, after working most of a typical shift, Mudel began to feel ill and left work thirty minutes early. When he arrived home, he told his wife that his left leg felt sore. At 2:00 A.M. the following morning, Mudel awoke in severe pain. His wife drove him to the hospital emergency room, where Doctor Dennis Lynch diagnosed Mudel’s condition as acute deep vein thrombosis (dvt) of the left leg. Mudel never returned to work.
Mudel applied for worker’s compensation benefits on July 28, 1992, alleging disabling injuries to his leg and back. The magistrate concluded that Mudel suffered from an occupational disease and entered an open award of benefits. A&P appealed from the magistrate’s decision to the wcac, arguing that Mudel was not entitled to benefits. Alternatively, A&P argued that the magistrate should have entered a closed award of benefits, on the theory that work activities did not cause, but only temporarily aggravated, Mudel’s dvt. Mudel neither appealed nor cross-appealed from the magistrate’s favorable ruling. The WCAC, on administrative appeal, determined that the magistrate’s findings of fact regarding occupational disease were not supported by competent, material, and substantial evidence on the whole record. However, the wcac affirmed the magistrate’s award of benefits by correcting the statutory basis for that award from an occupational disease compensable under § 401 to a personal injury compensable under § 301. As the WCAC held:
There was no testimony presented in this matter to suggest that prolonged standing was unique to defendant’s business, or that moving from warm to cold temperatures in and out of the freezer, combined with the prolonged standing, was unique to defendant’s business. While it is clear that plaintiff suffers from a work-related disability, the finding of an occupational disease is not sustainable. We affirm the decision of the Magistrate with a modification to reflect that plaintiff is disabled pursuant to § 301(4). [1997 Mich ACO 1285, 1287.]
A&P sought leave to appeal from the wcac’s decision to the Court of Appeals, which denied leave to appeal. A&P then applied to this Court for leave to appeal, which we granted.
A&P first argues that the wcac committed legal error by addressing issues not raised by either party when it corrected the statutory basis for Mudel’s wage loss benefits from a § 401 occupational disease to a § 301 personal injury. Specifically, A&P argues that the wcac violated MCL 418.861a(ll); MSA 17.237(861a)(ll), which provides:
The commission or a panel of the commission shall review only those specific findings of fact or conclusions of law that the parties have requested be reviewed.
A&P avers that the only issue properly before the wcac was the magistrate’s award of benefits on the basis of an occupational disease. Once the wcac determined that Mudel’s DVT did not qualify as an occupational disease, A&P contends that the WCAC was required to end its analysis there and terminate Mudel’s disability benefits, regardless of whether Mudel’s dvt qualified as a compensable personal injury.
On the contrary, our review of the record reveals that Mudel did request the wcac to review whether he was entitled to benefits for a § 301 personal injury. Mudel filed a brief with the wcac responding to A&P’s appeal, which stated as follows:
However, even if plaintiff does not have a compensable occupational disease, he does have a compensable personal injury pursuant to MCL 418.301(1); MSA 17.237(301)(1) .... Based upon plaintiff’s credible testimony, coupled with that of Dr. Lynch, it is clear plaintiff has a work-related disability, be it on the basis of a personal injury or an occupational disease.
We decline A&P’s invitation to decide whether MCL 418.861a(ll); MSA 17.237(861a)(ll) would prevent the wcac from resolving the issues in this case if Mudel had not raised the alternative grounds in his responsive pleading, because that factual situation is not currently before us.
A&P next contends that the wcac made impermissible factual findings not supplied by the magistrate, regarding the causal relationship between Mudel’s employment and his dvt. Although A&P candidly acknowledges that the wcac may properly engage in independent factual findings, and affirmatively argues for the reversal of Layman, it nevertheless contends that the wcac impermissibly conducted independent fact finding in this case, and seeks reversal on that ground.
As set forth above, the wcac has statutory authority to make findings of fact independent of those made by the magistrate. Furthermore, the judiciary applies the “any evidence” standard of review to the wcac’s findings of fact. As long as any evidence exists in the record to support the wcac’s determination that Mudel’s employment caused his dvt, and the wcac did not misapprehend its administrative appellate role in reviewing decisions of the magistrate, this Court must treat the wcac’s factual finding as conclusive. MCL 418.861a(14); MSA 17.237(861a)(14). On review of this case, we are convinced that the wcac properly understood and exercised its administrate appellate reviewing function.
Moreover, it is clear that, contrary to the dissent’s assertion that Layman is not implicated in the present case, the WCAC did clearly engage here in independent fact finding. First, the wcac identified medical testimony that the magistrate ignored—the testimony of Mudel’s treating physician that “the precipitating cause [of Mudel’s dvt] was his occupation” and that standing in cold temperatures for long periods was “a primary cause [of] his dvt.” Second, the wcac appears to have thoroughly reviewed the expert medical testimony presented below and exercised care in its consideration of this case—it did not simply substitute its judgment for that of the magistrate. Further, it articulated adequate reasons grounded in the record for concluding that Mudel’s dvt was caused by his employment. Thus, Layman, holding that it is impermissible for the wcac to make independent factual findings, is implicated and we have not “reach[ed] beyond the issues presented to overrule precedent.” Post at 733.
Because we find no clear indication that the wcac misapprehended its administrative appellate role or that it otherwise exceeded its authority, we defer to its findings, which were supported by record evidence.
A&P argues in the alternative that the wcac should have awarded Mudel benefits for a closed period because his dvt was only aggravated and not caused by his employment with A&P. The WCAC expressly rejected this argument, stating as follows:
Defendant next argues that at most, plaintiff experienced an exacerbation of his deep vein thrombosis and should, at most, be entitled only to a closed award of benefits. In making this argument, defendant relies upon the testimony of its examining physician, Dr. Aboulafia. In making this argument, however, defendant ignores the specific testimony of plaintiff’s treater, Dr. Lynch, who testified that the deep vein thrombosis did, in fact, damage plaintiff’s deep venous system. This is clear evidence of a pathological change which is more than a temporary exacerbation of an underlying condition. Moreover, there is competent, material, and substantial evidence to support the Magistrate’s conclusion that the condition remains disabling. [1997 Mich ACO 1287.]
Because the wcac’s factual findings on this issue are supported by record evidence, we must affirm.
Finally, A&P contends that the wcac committed legal error requiring reversal by failing to apply the significant manner standard of MCL 418.301(2); MSA 17.237(301)(2). However, this argument was never advanced before the magistrate, the wcac, or the Court of Appeals. Because the issue was not preserved, we decline to address it.
For the reasons set forth above, we conclude in Mudel that the wcac acted within its authority when it affirmed the magistrate’s open award of benefits but altered the statutory basis for that award, and we affirm the holding of the wcac.
IV. CONNAWAYv WELDED CONSTRUCTION CO
In Connaway, plaintiff Deborah Connaway worked for defendant Welded Construction Company as a welder’s helper. Connaway is an Illinois resident, and Welded Construction is a company engaged in pipeline construction in several states. In 1989, Welded Construction hired Connaway to work on a project in Gould City, Michigan, by placing a telephone call to her union hall in Tulsa, Oklahoma. Connaway traveled to Michigan for the job and on November 2, 1989, her first day of work at the Michigan job site, she fell off a pipe and injured her right knee. She applied for and received Michigan worker’s compensation benefits as a result of that injury.
Connaway was treated by Dr. Raymond L. Coss, an orthopedic surgeon, who performed arthroscopic surgery on her right knee in February 1990. After several months of physical rehabilitation, including a “work hardening” program, Coss recommended that Connaway return to work, placing no restrictions on job duties she could perform. Welded Construction assigned her to a job site in New York state performing the same tasks as a welder’s helper that she performed before her initial injury, and Connaway started working the New York job in August 1990. On September 4, 1990, after she had worked about two weeks on a schedule of ten hours a day and six days a week, she again injured her knee.
After the New York injury, Connaway received worker’s compensation benefits in the state of New York, but additionally applied for worker’s compensation benefits in Michigan. Addressing the petition for Michigan benefits, the magistrate faced the question whether the New York injury should be characterized as a “recurrence” or an “aggravation” of the Michigan injury. This distinction was critical to the result, under the so-called “Massachusetts-Michigan successive injury rule,” which this Court adopted in Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 253-254; 262 NW2d 629 (1978), to allocate responsibility for paying worker’s compensation benefits where an injured employee has suffered successive injuries. In this case, if the New York injury was a mere recurrence of the Michigan injury, then the successive injury rule would assign responsibility for Connaway’s worker’s compensation benefits to her Michigan employer. However, if the New York injury aggravated Connaway’s original Michigan injury, independently contributing to her present disability, even slightly, then the successive injury rule would assign responsibility for Connaway’s worker’s compensation benefits to her New York employer. Given that Connaway’s employer was the same in both states, the rule would effectively determine which state’s worker’s compensation system applied to Connaway’s claim for disability benefits.
The magistrate determined that Connaway’s second injury was a mere recurrence of the first, concluded that Michigan law applied, and entered an open award of benefits in her favor. Welded Construction appealed from the magistrate’s decision to the wcac, arguing that Michigan lacked jurisdiction to award benefits to an employee who received a disabling injury in New York, particularly where the employment contract was not entered into in Michigan, defendant was not a Michigan corporation, and plaintiff was not a Michigan resident. The WCAC framed the issue as “whether there is a continuing disability from a Michigan injury or a new and separate injury resulting from the work in New York.” 1997 Mich ACO 304.
Applying the “substantial evidence” test, the wcac determined that the magistrate’s factual findings regarding Connaway’s continuing disability and a recurrence of her Michigan injury, were not supported by competent, material, and substantial evidence, and therefore reversed the magistrate. Citing expert medical testimony contained in the record, the wcac determined that the New York injury was truly an aggravation of the Michigan injury, and that the successive injury rule required Connaway to pursue worker’s compensation benefits in the state of New York, rather than Michigan. 1997 Mich ACO 304. Connaway sought leave to appeal from the wcac’s decision to the Court of Appeals, which granted leave and affirmed the WCAC in a published opinion. Connaway then sought leave to appeal to this Court, which we granted.
Connaway’s principal argument before this Court is that the magistrate’s findings were supported by competent, material, and substantial evidence on the whole record, and that the WCAC erred in ruling otherwise. Connaway relies on the language in Goff, supra, 454 Mich 513, which suggests that the courts must begin by reviewing the magistrate’s decision, not the wcac’s decision, and must independently determine whether the magistrate’s findings are supported by the requisite evidence. As set forth above in part II, this suggestion is incorrect. The courts review the wcac’s decision, not the magistrate’s decision, and the judiciary’s role is to ensure that the WCAC properly recognized and exercised its administrative appellate function. For these reasons, we reject Connaway’s invitation to review the whole record anew and determine whether the magistrate’s decision was supported under the “substantial evidence” standard of review.
Connaway next argues that the wcac’s decision is not supported under the “any evidence” standard and that even if the New York injury did aggravate her previous injury, she is entitled to Michigan worker’s compensation benefits. We disagree. The “Massachusetts-Michigan successive injury rule,” adopted in Dressier, supra, was described in Mullins v Dura Corp, 46 Mich App 52, 55-56; 207 NW2d 404 (1973), quoting 3 Larson, Workmen’s Compensation, § 95.12, pp 508.130-508.133, as follows:
“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....
“On the other hand, if the second incident contributes 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.” [Emphasis in original.]
The dissent would reverse the wcac’s decision on the “legal basis” that it violated the “legislative command” of MCL 418.861a(3); MSA 17.237(861a)(3), by “fail[ing] to give the appropriate deference to the properly supported factual findings of the magistrate.” Post at 744, n 8. However, the dissent ignores the wcac’s authority, provided by MCL 418.861a(14); MSA 17.237(861a)(14), to conduct a “qualitative and quantitative” analysis of the “whole record” in determining whether the magistrate’s factual findings are supported by competent, material, and substantial evidence. Thus, the wcac cannot be accused of “violating] . . . legislative command” when it attaches more or different weight or credibility to the evidence than that given by the magistrate.
Contrary to the dissent’s assertion that Layman is not implicated by the issues presented here, the wcac did make independent findings of fact. Although the WCAC noted that Connaway clearly suffered a work-related injury in November 1989, causing a work-related disability, the record supports its factual finding that this disability “had resolved itself” before Connaway’s New York injury; she was released to return to work without restrictions in August 1990 and was again working as a welder’s helper when she incurred the New York injury. Moreover, the record supports the wcac’s determination that Connaway’s New York injury was neither a mere recurrence nor a temporary aggravation of her Michigan injury: (1) the plaintiff’s physical condition following the New York injury was “subjectively different” than her physical condition before such injury, (2) the plaintiff experienced pain following the New York injury that she had not felt before such injury, (3) following the New York injury,- the plaintiff was incapable of engaging in activities that she was capable of performing before such injury, (4) following the New York injury, the plaintiff’s treating physician restricted her from participating in any “heavy industry,” and (5) an examining physician opined, more than two years following the New York injury, that the plaintiff was incapable of engaging in any prolonged climbing, kneeling, and squatting, and that she would experience difficulty performing any prolonged standing or walking. Further, the WCAC observed that, six years following the New York injury, Connaway had yet to return to work.
The record demonstrates that the New York injury did not simply elevate temporarily the severity of the plaintiff’s pre-New York injury physical condition, thus allowing her subsequent return to that condition. Rather, the evidence illustrates that the plaintiff’s current inability to engage in work activity is significantly impacted by the New York injury, an event that occurred almost ten years ago (as opposed to the nine-month period of disability following the Michigan injury). If the New York injury was simply a recurrence of the Michigan injury, or merely temporary in nature, logic would suggest that the plaintiff’s ability to return to work would have been restored to the status quo ante once the effects of that injury ameliorated. However, the evidence demonstrates that the New York injury resulted in an “independent contribution,” permanent in effect, to the plaintiff’s “final condition” (her current disability).
Under the “any evidence” standard of judicial review, Connaway’s New York injury independently contributed, with permanent effect, to the causation of her current disability. Thus, the successive injury rule compels the conclusion that Michigan’s worker’s compensation benefits are not available for Connaway’s current disability. Because the New York injury independently contributed to the causation of her current disabled condition, she must pursue the worker’s compensation benefits available to her in New York, where the independent contributing injury occurred.
Because the wcac’s determination was supported by record evidence, we must treat its factual findings as conclusive. That this Court might come to a different conclusion, as the dissent would do, than the wcac, if reviewing on a de novo basis, or that it might determine that the magistrate’s decision is better supported than the wcac’s, does not mandate reversal of the WCAC; rather, our limited review function under the law, in contrast to that of the wcac, is not to weigh or balance the evidence, but merely to determine whether “any evidence” exists in support of the wcac’s decision.
Furthermore, we do not believe that the wcac misapprehended its administrative appellate role in reviewing the magistrate’s decision. First, the wcac identified medical testimony that the magistrate ignored. Second, the WCAC exercised care in its consideration of this case, and did not simply substitute its judgment for that of the magistrate. The wcac obviously considered the expert medical testimony at great length, quoting extensively from the record in explaining which testimony the magistrate had ignored. Further, the wcac articulated adequate reasons grounded in the record for concluding that Connaway’s New York injury aggravated her knee condition. Because we find no clear indication that the wcac misapprehended its administrative appellate role or that it otherwise exceeded its authority, we defer to its findings, which were supported by record evidence.
For the reasons set forth above, we conclude in Connaway that the WCAC acted within its authority when it reversed the magistrate’s award of wage loss benefits for an injury that occurred in New York, and we affirm the holding of the wcac.
V. THE DISSENT
The dissent denigrates our analyses in these cases and accuses us of “needlessly reach[ing] beyond the issues presented to overrule precedent.” Post at 733. We have attempted, in a highly difficult area of the law, to apply as faithfully as possible the policy decisions reached by the Legislature—policy decisions reflected in the express language of its statutes. In contrast, the dissent departs from the language of these statutes, and appears to be unencumbered by the need to explain or justify such departures.
1. THE DISSENT ASSERTS THAT GOFF MUST BE AFFIRMED.
The dissent fails to reconcile Goff with the policy decisions of the Legislature by failing to give any meaning to the following statutory language:
The findings of fact made by the [wcac] ... in the absence of fraud, shall be conclusive. [MCL 418.861a(14); MSA 17.237(861a)(14).]
The rule in Goff, that the judiciary must first examine the magistrate’s decision in determining whether the “substantial evidence” standard was met, manifestly conflicts with this statutory language. With regard to judicial appellate review, the wcac’s factual findings are to be considered conclusive. Thus, judicial engagement in determining whether the magistrate’s findings of fact are supported by “substantial evidence” violates the “any evidence” standard of review to be applied by the judiciary and exceeds the Legislature’s intended appellate review by looking beyond the conclusive factual findings of the wcac.
Rather than engaging in the “extraordinary act of overruling Goff,” as we are accused of doing by the dissent, post at 734, we have simply recognized that Goff is logically inconsistent with Holden. The two cases cannot stand simultaneously, for their interpretations are different. To the extent that Goff is the better-decided case, then Holden cannot stand; to the extent that Holden is the better-decided case, Goff cannot stand. Thus, the failure to overrule one or the other would result in the perpetuation of confusing and conflicting outcomes in this important area of the law, one in which both employees and employers have an interest in a clear and predictable rule of law.
2. THE DISSENT ASSERTS THAT THE WRONG STANDARD OF APPELLATE REVIEW MUST BE APPLIED.
Contrary to the statutorily required wcac “substantial evidence” standard of review, Goff directs the wcac to apply the “any evidence” standard when reviewing the magistrate’s decision
[i]f the magistrate’s decision is reasonably supported in the record by any competent, material, and substantial evidence .... [Id. at 538.]
The word “any” is nowhere to be found in MCL 418.861a(3); MSA 17.237(861a)(3); to insert this word subverts the intent of the Legislature as demonstrated by clear and plain statutory language.
3. THE DISSENT ASSERTS THAT LAYMAN MUST BE AFFIRMED.
The dissent fails to reconcile Layman with the policy decisions of the Legislature by ignoring or failing to give any meaning to the following statutory language:
The findings of fact made by the commission ... in the absence of fraud, shall be conclusive. [MCL 418.861a(14); MSA 17.237(861a)(14).]
The rule in Layman, that the wcac is prohibited from making independent factual findings, manifestly contradicts the clear and plain statutory language of § 861a.
VI. CONCLUSION
The Legislature has created two very distinct standards of review for worker’s compensation cases. The “substantial evidence” standard governs the wcac’s review of the magistrate’s findings of fact, while the “any evidence” standard governs the judiciary’s review of the wcac’s findings of fact. The wcac enjoys statutory authority to make independent findings of fact, regarding issues that have been addressed or overlooked by the magistrate, as long as the record is sufficient for administrative review and does not prevent the wcac from reasonably exercising its reviewing function without resort to speculation. The role of the wcac is to ensure that the factual findings in worker’s compensation cases are supported by the requisite evidence. The role of the judiciary is to ensure that the wcac properly recognized and exercised its administrative appellate role.
We expressly reaffirm our decision in Holden, supra, and we overrule Goff, supra, in that it contradicted our decision in Holden. Furthermore, we overrule Layman, supra, to the extent that it clearly mis stated the law with regard to the wcac’s authority to make independent factual findings.
Weaver, C.J., and Taylor, Corrigan, and Young, JJ., concurred with Markman, J.
appendix
WCAC REVIEW OF THE MAGISTRATE
The wcac treats the magistrate’s findings of fact as conclusive “if supported by competent, material, and substantial evidence on the whole record.” MCL 418.861a(3); MSA 17.237(861a)(3).
“[Substantial evidence” means “such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion.” MCL 418.861a(3); MSA 17.237(861a)(3).
The “whole record” means “the entire record of the hearing including all of the evidence in favor and all the evidence against a certain determination.” MCL 418.861a(4); MSA 17.237(861a)(4).
The wcac’s review “shall include both a qualitative and quantitative analysis of that evidence in order to ensure a full, thorough, and fair review.” MCL 418.861a(13); MSA 17.237(861a)(13).
The wcac has authority to make independent findings of fact, and is not required to remand a case to the magistrate where factual findings necessary to the decision are lacking, as long as the record is sufficient for administrative appellate review and the wcac is not forced to speculate. MCL 418.861a(14); MSA 17.237(861a)(14).
JUDICIAL REVIEW OF THE WCAC
The judiciary treats the wcac’s findings of fact, made within the wcac’s powers, as conclusive absent fraud. If there is any evidence supporting the wcac’s factual findings, the judiciary must treat those findings as conclusive. MCL 418.861a(14); MSA 17.237(861a)(14).
The judiciary reviews the wcac’s decision, not the magistrate’s decision. MCL 418.861a(14); MSA 17.237(861a)(14).
The judicial tendency should be to deny leave to appeal from decisions of the wcac or, if leave is granted, to affirm, in recognition of the wcac’s expertise in this extremely technical area of law. Holden v Ford Motor Co, 439 Mich 257, 269; 484 NW2d 227 (1992).
The judiciary exercises a very narrow scope of review over the wcac’s decisions, designed to ensure that the wcac did not misapprehend its administrative appellate role in reviewing decisions of the magistrate. Id.
The judiciary continues to review questions of law involved in any final order of the wcac under a de novo standard of review DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300 (2000).
Contrary to the dissent’s assertion, the standards of review in worker’s compensation cases are far from “settled.” Thus, we attempt to clarify the standards of review in this vexing area of jurisprudence, by construing and implementing the statutory language drafted by the Legislature as faithfully as possible. Although we believe that we have done so as conscientiously as possible, we are not oblivious to the fact that ten sions will continue to operate within the act, at least until the Legislature clarifies its language.
The dissent contends that “this Court has been careful to craft workable standards of appellate review.” Post at 733. However, as Judge Whitbeck noted in Connaway v Welded Construction Co, 233 Mich App 150, 160; 592 NW2d 414 (1998), “Few subjects in Michigan jurisprudence have been so thoroughly explored—indeed one might even say dissected'—as the endlessly intricate question of the appropriate standard of review in WDCA cases.” Despite that thorough exploration, the current case law fails to provide the bench and bar with clear guidance.
For the sake of assisting the bench and bar, an appendix to this opinion provides a summary of the proper legal principles to be applied regarding the standard of review applied by the wcac and the judiciary over findings of fact in worker’s compensation cases. This Court continues to review questions of law involved in any final order of the wcac under a de novo standard of review. DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300 (2000).
We do not attempt to define the parameters of the wcac’s “qualitative and quantitative” review in the instant cases because the facts presented do not require us to do so and because the parties did not address the issue.
This distinction between the administrative and judicial standards of review flows from the long-recognized principle that administrative agencies possess expertise in particular areas of specialization. Because the judiciary has neither the expertise nor the resources to engage in a fact-intensive review of the entire administrative record, that type of detailed review is generally delegated to the administrative body. In the particular context of worker’s compensation cases, a highly technical area of law, the judiciary lacks the expertise necessary to reach well-grounded factual conclusions. Worker’s compensation cases typically involve lengthy records replete with specialized medical testimony. These cases require application of extremely technical and interrelated statutory provisions that determine an employee’s eligibility for disability benefits. The judiciary is not more qualified to reach well-grounded factual conclusions in this arena than the administrative specialists. Therefore, the Legislature has decided that factual determinations are properly made at the administrative level, as opposed to the judicial level.
Further, the courts simply cannot review the record in every worker’s compensation case in the detail required to make conclusions about the sufficiency of the magistrate’s decision. Worker’s compensation cases are typically fact intensive, involving lengthy deposition testimony and medical documentation. If the courts were to attempt a review of each and every worker’s compensation case with an eye toward making detailed factual conclusions, dockets would become impossibly burdened with worker’s compensation cases, further delaying the resolution of injured workers’ claims for benefits. These considerations—lack of appropriate expertise and resources—demonstrate the practical benefits flowing from the Legislature’s creation of a two-tier reviewing process, which delegates to the wcac the role of ultimate factfinder, while limiting the judiciary to the role of guardian of procedural fairness.
Consideration of whether the wcac has misapprehended its administrative appellate role arises from this Court’s attempts to resolve the tensions inherent in the statutory language. Although the dissent fails to recognize the clarifying and defining aspects of today’s holding, we believe that by adhering to the straightforward statutory language relating to judicial review of worker’s compensation cases, these tensions can and will be mollified.
Although we are compelled to overrule Goff, we note that both Chief Justice Mallett, writing for the majority, and Justice Weaver, dissenting in part and concurring in part in that case, observed that a recent Court of Appeals opinion, York v Wayne Co Sheriff's Dep’t, 219 Mich App 370; 556 NW2d 882 (1996), remanded 456 Mich 893 (1997), set forth a correct application of the Holden guidelines:
A recent decision by the Court of Appeals illustrates the correct analysis that the Court must employ in determining whether the wcac exceeded its reviewing authority. . . . Correctly applying the guidelines from Holden, the Court of Appeals held that the wcac properly found that the magistrate’s decision was not based on substantial evidence. [454 Mich 528, n 16.]
[W]hile the majority opinion cites York ... , as an illustration of correct judicial review, and I agree it is, it seems to me that the majority fails to adopt the standard articulated in that case. [454 Mich 543-544.]
These comments hardly demonstrate an intentional rejection of Holden.
See footnote 3.
When granting leave to appeal in Mudel, we directed both parties to address “whether this Court should overrule its decision in Layman v Newkirk Electric Associates, Inc, 458 Mich 494 [581 NW2d 244] (1998).” 460 Mich 851 (1999).
For example, in the instant case, a&p argues that Layman’s requirement of “[rjemand for factual determination of an overlooked point slows the administrative process to a virtual standstill.” A&p contends that docket congestion at the administrative level results in a delay of twelve to eighteen months before the wcac typically resolves an appeal from the magistrate. The administrative process is further delayed when a case is remanded to the magistrate for additional findings of fact because the case returns to the wcac after remand, where another twelve to eighteen months pass before the wcac issues its second opinion and order.
The obvious question avoided by the dissent is as follows: Should we “bow to precedent” where such precedent incorporates a manifestly incorrect interpretation of a statute that is inconsistent with its clear and plain language? The dissent to the contrary, it is the faithful interpretation of the language of a statute, not the reflexive adherence to a conflicting and wrongly decided case law, that promotes “jurisprudential stability.” Robinson, supra.
The defendant in this case has been variously referred to as Farmer Jack’s, Borman’s Inc., Great Atlantic & Pacific Tea Company, and a&p. For the sake of clarity, we will refer to this defendant simply as “a&p.”
Mudel’s treating physician described this condition as one which led to the development of blood clots in the patient’s veins. Counsel for a&p similarly analogized dvt to a “heart attack in the legs” caused by blood clots and insufficient blood supply in the extremities.
MCL 418.301; MSA 17.237(301).
Mudel v Great Atlantic & Pacific Tea Co, unpublished order of the Court of Appeals, entered February 27, 1998 (Docket No. 204028).
460 Mich 851 (1999).
A&p conceded at oral argument that the wcac was presented with the factual basis necessary to resolve Mudel’s case. Further, a&p conceded that the grounds for awarding benefits for a personal injury and an occupational disease were not necessarily exclusive. Thus, the magistrate’s award of benefits to Mudel under § 401 does not necessarily imply a rejection of his qualification for benefits under § 301.
MCL 418.301(2); MSA 17.237(301)(2) provides:
Mental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner.
For the sake of clarity, we will refer to the November 2, 1989, injury as the “Michigan injury” and the September 4, 1990, injury as the “New York injury.”
Connaway, supra, 233 Mich App 150.
Our order granting leave to appeal directed that this case be argued and submitted to the Court together with Mudel. 461 Mich 870 (1999).
The dissent engages in a lengthy factual review of this case and determines that “the wcac exceeded its reviewing power in overturning [the magistrate’s decision].” Post at 747. However, contrary to the straightforward statutory language relating to judicial review of the wcac, the dissent uses the wrong standard, “substantial evidence,” in reviewing the wrong entity, the magistrate. | [
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Weaver, C.J.
This case involves an order terminating parental rights pursuant to MCL 712A.19b; MSA 27.3178(598.19b). Specifically, we address, on first impression, the constitutionality and operation of subsection (5) of this statute that was enacted by 1994 PA 264. Appellant-respondent contends that subsection 19b(5) violates due process and that the probate court erred in terminating her parental rights.
We hold that subsection 19b(5) makes termination mandatory if the petitioner establishes a statutory ground for termination under subsection 19b(3) unless the court finds that termination is clearly not in the child’s best interest. We hold further that subsection 19b(5) is constitutional.
For the reasons that follow, we affirm the termination of appellant-respondent’s parental rights in this case.
I. FACTS
Appellant-respondent (hereinafter respondent) was divorced in November 1994 and awarded legal cus tody of the couple’s three children. Respondent soon found herself unable to provide suitable housing and care for the children. On April 28, 1995, respondent approached the Department of Social Services (hereinafter petitioner) requesting placement in foster care for two of her three minor children, then ages one and three years old. Respondent expressed concern that she might verbally abuse the children. She had already placed her five-year-old son in the care of her parents.
On May 1, 1995, respondent was interviewed by petitioner, at which time she did not agree to the suggested assistance designed to keep the family intact. Testimony also revealed that respondent did not seek or accept assistance from other family members or friends. Instead, she took the two children to their father’s place of work and left them. The father was also unable to provide suitable housing for the children.
Petitioner filed a complaint and a petition for temporary custody pursuant to MCL 712A.2(b)(l); MSA 27.3178(598.2)(b)(l) in the Oakland County Probate Court, and a preliminary hearing was held on May 2, 1995. At the preliminary hearing, the court found that probable cause existed to support the allegations in the petition and ordered that the three children be placed in the care and custody of petitioner on May 2, 1995. Petitioner placed the two younger children in foster care and allowed the eldest child to stay with his maternal grandparents.
At the pretrial hearing on May 15, 1995, both parents pleaded being responsible for allegations in an amended petition, including the allegations of failure to provide adequate housing and, as to the respondent, her fear that she would verbally abuse the children if they were left in her care.
Regular review hearings were held over the following twelve months. Pursuant to a series of parent-agency agreements, respondent obtained transportation and a full-time job for an extended period. However, she failed to obtain or maintain housing adequate for the children. She moved five times from the beginning of the temporary wardship until the petition for the termination of her parental rights was filed in July 1996. Respondent did complete parenting classes after a slow start and over an extended time schedule, but her reviews from the completed classes were poor. Respondent also had difficulties complying with the individual therapy requirements of the agreement. She quit her first counselor abruptly. Her attendance at sessions with her second counselor was sporadic and her progress slow.
Respondent’s visitations were supervised at first, but were ordered unsupervised after a June 1995 review hearing. At that time, all three children were placed together with the paternal grandparents. However, testimony revealed that the care of the three young children proved too difficult for the paternal grandparents. At a review hearing in September 1995, the paternal grandparents asked for assistance from respondent and other family members. Because they did not receive sufficient assistance from respondent or other relatives, the children’s guardian ad litem filed an emergency review petition. After reviewing the petition filed on October 20, 1995, the three children were placed in foster care.
Initially, the children were not in the same foster care home. The five and three year old were placed together and the one and a half year old with a different foster care family. The children were separated until the foster family that had taken the older children received licensure that allowed them to have three children. The youngest child joined her siblings in April 1996.
There was testimony from the foster parents that the older children would act out—first, after unsupervised overnight visitations, and then, with increasing intensity, after every unsupervised visitation. At a review hearing in March 1996, the court ordered that the visits again be supervised and that the parents, who fought in front of the children, visit separately. During the supervised visits that followed, the caseworker observed that respondent was unwilling or unable to control her children’s increasingly difficult and sometimes violent behavior.
Pursuant to MCL 712A.19a; MSA 27.3178(598.19a), a permanency planning hearing was held on June 12, 1996. The court found that there continued to be no viable plan for the return of the children to either parent and no compelling evidence that the matter would improve in another three months. The court further found that it had not been demonstrated that initiating termination of parental rights proceedings would be adverse to the interests of the children.
Petitioner filed a petition to terminate parental rights on July 12, 1996. The petition alleged three statutory grounds for termination. The hearing on the petition to terminate parental rights commenced September 25, 1996, and was continued on Septem ber 27, October 27 and November 20. The court determined at the outset that it would consider the alleged grounds and the best interest evidence separately.
Petitioner presented one witness regarding the alleged grounds for termination, the family’s case worker, who was examined and cross-examined by the parties. Respondent did not call any witnesses regarding the alleged grounds for termination. After hearing the case worker’s testimony, the court found that petitioner had proven subsections 19b(3)(c)(i) and 19b(3)(g) by clear and convincing evidence. Following this conclusion, the court asked to hear testimony regarding the best interests of the children. Two days of testimony regarding the children’s best interests followed. On November 20, 1996, the court concluded that the evidence had clearly and convincingly demonstrated that termination was in the children’s best interests, and it entered an order terminating respondent’s parental rights on December 2, 1996.
Respondent filed her claim of appeal on January 13, 1997. The Court of Appeals affirmed in a unpublished opinion per curiam on June 12, 1998 (Docket No. 200486). We granted leave to appeal. 459 Mich 1001 (1999).
H
Under MCL 712A.19b(3); MSA 27.3178(598.19b)(3), it is well established that the petitioner for the termination of parental rights bears the burden of proving at least one ground for termination. In re Sours Minors, 459 Mich 624; 593 NW2d 520 (1999). The question presented by this case is how to apply subsection 19b(5), which was enacted by 1994 PA 264. Subsection 19b(5) provides in pertinent part that the court “shall” terminate parental rights if one statutory ground for termination is found, “unless” termination is clearly not in the child’s best interests.
Before the amendments to chapter XIIA of 1939 PA 288 enacted by 1994 PA 264, a court’s decision to terminate parental rights was discretionary once the court found clear and convincing evidence that one or more statutory grounds for termination existed. The prior statute did not expressly require consideration of the child’s best interests. The amendments to the law addressing the termination of parental rights enacted by 1994 PA 264 reflected ongoing concern that children were languishing indefinitely in the temporary custody of the court. The statute, as amended by 1994 PA 264, requires that, if the court finds clear and convincing evidence that the petitioner has proven one or more grounds for termination,
the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made, unless the court finds that termination of parental rights to the child is clearly not in the child’s best interests. [MCL 712A.19b(5); MSA 27.3178(598.19b)(5).]
The amended court rule, MCR 5.974, similarly mandates termination once one or more grounds for termination is proven, unless “termination is clearly not in the best interest of the child.” MCR 5.974(E)(2).
This Court has not directly addressed the operation of subsection 19b(5). The prevailing interpretation of subsection 19b(5) at the Court of Appeals is that the statute creates “a mandatory presumption that can only be rebutted by a showing that termination is clearly not in the child’s best interest.” In re Hall-Smith, 222 Mich App 470, 472; 564 NW2d 156 (1997). As to the best interest provision of 19b(5), Hall-Smith held:
Although the burden of proof remains with the petitioner to show that a statutory ground for termination has been met by clear and convincing evidence, MCR 5.974(A)(3) and (F)(3), we believe that the burden of going forward with evidence that termination is clearly not in a child’s best interest rests with the respondent. [Id., pp 472-473.]
While we acknowledge Hall-Smith’s attempt to give meaning to the mandatory language of subsection 19b(5), we reject the notion that the best interest clause of subsection 19b(5) imposes a burden of production on the party opposing termination. Nor does the best interest provision of subsection 19b(5) impose any further burden of proof on the petitioner once the petitioner has carried its burden of establishing one or more grounds for termination.
Subsection 19b(5) unambiguously provides that once the petitioner proves at least one ground for termination by clear and convincing evidence, the court “shall order termination.” Absent any further language, the statute would create a legally binding rule. However, reading subsection 19b(5) in its entirety, we conclude that subsection 19b(5) preserves to the court the opportunity to find that termination is “clearly not in the child’s best interests” despite the establishment of one or more grounds for termination.
We reject Hall-Smith’s characterization of subsection 19b(5) as creating a rebuttable presumption, because the plain language of subsection 19b(5) does not expressly assign any party the burden of producing best interest evidence. Although Hall-Smith and its progeny specifically require the parent to put forth some evidence that termination is clearly not in the child’s best interest, subsection 19b(5) does not specify that it is the parent who carries the burden of producing best interest evidence opposing termination. While we recognize that the party opposing the established grounds for termination will almost always be a parent, we hold that under subsection 19b(5), the court may consider evidence introduced by any party when determining whether termination is clearly not in a child’s best interest. Further, even where no best interest evidence is offered after a ground for termination has been established, we hold that subsection 19b(5) permits the court to find from evidence on the whole record that termination is clearly not in a child’s best interests. Thus, we expressly reject the dicta of In re Boursaw, 239 Mich App 161, 180; 607 NW2d 408 (2000), that, “[i]f the parent does not put forth any evidence addressing the issue [of the child’s best interests], termination is automatic.”
Subsection 19b(5) attempts to strike the difficult balance between the policy favoring the preservation of the family unit and that of protecting a child’s right and need for security and permanency. While the operation of subsection 19b(5) imbues the court with some discretion, that discretion is significantly diminished from the prior law, which permitted the court to not terminate, even where at least one ground for termination was established. Once a ground for termination is established, the court must issue an order terminating parental rights unless there exists clear evidence, on the whole record, that termination is not in the child’s best interests.
m
Respondent first contends that once a ground for termination has been established, the best interest clause of subsection 19b(5) violates due process because it imposes the “impossible” burden of proving a negative, i.e., that “termination ... is clearly not in the child’s best interests.” We conclude that subsection 19b(5) is constitutional and that the subsection 19b(5)’s best interest provision, in fact, provides an opportunity for the court to find that termination is clearly not in the child’s best interest, despite the establishment of one or more grounds for termination.
Statutes must be construed in a constitutional manner if possible, and the burden of proving that a statute is unconstitutional is on the party challenging it. Gora v City of Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998). In determining the constitutionality of the best interest provision of subsection 19b(5), a review of the procedural requirements once a petition to terminate parental rights is filed is helpful. A respondent must be afforded written notice of a hearing on the petition to terminate parental rights. MCL 712A.19b(2); MSA 27.3178(598.19b)(2). As we have stated, MCL 712A.19b(3); MSA 27.3178(598.19b)(3) requires that the petitioner prove by clear and convincing evidence at least one ground for termination. A respondent is afforded the opportunity to present evidence and witnesses at a hearing on the termination of parental rights and to confront and cross-examine evidence and witnesses used against the respondent. MCL 712A.19b(l); MSA 27.3178(598.19b)(l), see also MCR 5.974. The court must state its findings and conclusions on the record or in writing. MCL 712A.19b(l); MSA 27.3178(598.19b)(l).
Once the petitioner has presented clear and convincing evidence that persuades the court that at least one ground for termination is established under subsection 19b(3), the liberty interest of the parent no longer includes the right to custody and control of the children. See In re LaFlure, 48 Mich App 377, 387; 210 NW2d 482 (1973). In re LaFlure, supra, upheld the constitutionality of 1972 PA 59, subsection 19a®, because the Court held that subsection 19a(f) required the petitioner to prove at least one ground for termination by clear and convincing evidence. Similarly, once at least one ground for termination is proven under subsection 19b(3), we hold that the parent’s interest in the companionship, care, and custody of the child gives way to the state’s interest in the child’s protection.
The best interest provision of subsection 19b(5) provides the court the opportunity to find that termination is clearly not in the child’s best interest. The primary beneficiary of this opportunity is intended to be the child. Secondarily, the provision affords respondents additional protection by permitting the court to consider evidence, within the whole record, that termination is clearly not in a child’s best interests. Again, the court must state its findings and conclusions regarding any best interest evidence on the record or in writing. MCL 712A.19b(l); MSA 27.3178(598.19b)(l).
Rather than imposing an impermissible burden on respondent, the best interest provision of subsection 19b(5) actually provides an opportunity to avoid termination, despite the establishment of one or more grounds for termination. Because this opportunity effectively serves respondent’s interests, we reject respondent’s argument that it violates her due process.
iv
Respondent argues that the probate court erred by terminating her parental rights. We review decisions terminating parental rights for clear error: “a decision must strike us as more than just maybe or probably wrong . . . .” Sours, supra, p 633 (citations omitted). We review for clear error both the court’s decision that a ground for termination has been proven by clear and convincing evidence and, where appropriate, the court’s decision regarding the child’s best interest.
Our review reveals that the probate court’s conclusion that two grounds for termination had been established is supported by the record. Further, we conclude that the evidence did not establish that termination was clearly not in the children’s best interests. We note that the court, in fact, went beyond the statutory best interest inquiry by concluding that termination was in the children’s best interests. Subsection 19b(5) allows the court to find that termination is “clearly not in the child’s best interests” despite the establishment of one or more grounds for termination. The statute does not require that the court affirmatively find that termination is in the child’s best interest.
A
As to the grounds for termination, the probate court found that petitioner had proven by clear and convincing evidence that two of the three alleged grounds for termination existed.
The first ground found to be established was subsection 19b(3)(c)(i), which states:
The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds [that] [t]he conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the condition will be rectified within a reasonable time considering the child’s age. [MCL 712A. 19b(3)(c)(i); MSA 27.3178(598.19b)(3)(c)(i).]
As to this ground, the probate court found that, although the respondent had apparently overcome her ambivalence to the custody of her children that had in part led to the initial adjudication, she had never resolved the housing issue or produced a viable custodial plan for the care of her children. The court noted that respondent had had five addresses since her children were placed in the temporary custody of the court and that none had been suitable. The court also found that respondent had failed to produce a custodial plan for the care of children, a condition that initially led respondent to leave one child with grandparents and the others with her ex-husband. Thus, the court concluded that subsection 19b(3)(c)(i) had been proven by clear and convincing evidence.
Our review of the record for clear error reveals that the respondent was given lists of low income housing by the caseworker. It appears respondent was required to obtain and maintain a two- or three-bedroom apartment from the testimony. Respondent may have obtained or nearly obtained potentially suitable housing on two occasions, but was unable to maintain those accommodations, allegedly for financial reasons. Further, the caseworker was unable to determine the suitability of the accommodations because of respondent’s frequent moves. The respondent did not dispute that her living situations from the time the children were adjudicated temporary wards of the state through the date the petition to terminate her parental rights was filed were unsuitable for the children. As of the date of the court’s findings regarding the grounds for termination, respondent was allegedly on the waiting list for a two-bedroom apartment, but had not in fact obtained a two-bedroom apartment. The record also reveals that the respondent did not produce a custodial plan for the care of her children from the time she first contacted the Department of Social Services in the spring of 1995 through to the initial days of the termination hearing in September 1996.
On the evidence presented, we cannot conclude that the court clearly erred by finding that the respondent’s inability to obtain and maintain housing and her failure to offer a viable custodial plan were conditions that led to the adjudication, and were conditions that continued to exist as of September 27, 1996. The dissent’s assertion that the court lacked information regarding the suitability of respondent’s living situation as of that date is incorrect. The undisputed testimony revealed that respondent acknowledged her current housing situation was unsuitable. Further, given respondent’s inability to maintain housing and her frequent moves, we can find no error in the court’s finding that there appeared no reasonable likelihood that these conditions would be rectified within a reasonable time considering the children’s ages. More than a year had passed since the children had become temporary wards of the state. That respondent held merely a place on a waiting list for a two-bedroom apartment on the date of the termination hearing reinforces the conclusion that her living conditions would not likely be rectified within a reasonable time considering the age of the children.
Given our conclusion that subsection 19b(3)(c)(i) was established by clear and convincing evidence, it is technically unnecessary to address the second ground for termination alleged in the petition because the petitioner need only establish one ground for termination under subsection 19b(3)(g). However, because our review of this allegation may provide a more complete understanding of this case, we offer the following analysis. The second ground found to be established was subsection 19b(3)(g):
The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age. [MCL 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g).]
To support this ground, the petition for termination alleged that respondent had not sufficiently complied with court-ordered requirements in the parent-agency agreements. Of the eight parent-agency agreement requirements with which respondent allegedly failed to comply, the court found clear and convincing evidence to support two. The first requirement again involved respondent’s failure to obtain and maintain appropriate housing for three consecutive months discussed above. The second involved respondent’s failure to demonstrate progress toward the provision of proper care and custody for the children. In this regard, the court focused on respondent’s failure to follow through with and progress in the required individual therapy. In light of respondent’s failure to meet these two requirements, the court concluded that there was clear and convincing evidence to support subsection 19b(3)(g).
Our review of the record for clear error reveals that some delay in respondent’s progress in individual therapy may well have been attributable to bureaucratic delays in the referral process. The record nonetheless reflects that respondent quit her first referral because she did not like the counselor. While in certain circumstances, the failure to attend further sessions with a counselor may be excusable, it appears clear in this case that it was the process of counseling, as much as the personality of the counselor, that respondent found difficult. Respondent had attended ten sessions with her second counselor, but had simply failed to attend six sessions and canceled one. The excuse on the record for her sporadic attendance with the second counselor was that counseling proved too depressing, and on a few of those occasions, she could not get transportation. Further, the second therapist testified that she had to reinitiate contact with respondent after missed sessions, because respondent did not attempt to reschedule appointments on her own. We agree that the evidence of respondent’s inability to obtain and maintain suitable housing supports the court’s conclusion that respondent, without regard to her intent, had failed to provide proper care or custody of her children as alleged under subsection 19b (3) (g). Further, we conclude that the court did not clearly err by finding that the evidence of respondent’s slow progress in counseling established the alleged ground for termination under subsection 19b(3)(g).
B
Respondent presented best interest evidence following the court’s conclusion that two statutory grounds were supported by clear and convincing evidence. Respondent testified that she would be moving into an appropriate two bedroom apartment on October 26, 1996, the day following the first day of testimony regarding whether termination was clearly not in the children’s best interests. She had remarried on October 3, 1996, to a man she had been seeing since mid-1995, approximately the time the children were made temporary wards of the court, and whom she had been seriously considering marrying since February 1996. She testified that she would be able to handle having the children back within three months and that she planned to gradually introduce them to her new husband over the following three months before moving the children into his three bedroom home. Respondent also presented testimony of friends regarding their observations of her parenting before and after the children were made temporary wards of the court.
While the court acknowledged that respondent had shown progress since the petition to terminate her parental rights had been filed in July 1996, the court questioned her ability to successfully execute her reunification plan, given her history of false starts and resistance to outside guidance. The court was trou bled by respondent’s failure to share information regarding her relationship with her new husband with caseworkers and noted the seeming impulsiveness of her recent marriage. There was serious question whether respondent’s plans “would just add to the chaos and the confusion” the children were exhibiting after over a year in temporary foster care. The court concluded that to place the children with their mother, only to remove them again, would be devastating for the children and that there was “clear and convincing evidence” that termination was in the children’s best interests.
On our review of the entire record, we cannot conclude that the court’s assessment of the children’s best interests was clearly erroneous. The evidence that respondent may have acquired an apartment in October 1996 suitable for the children, during the pendency of the permanent custody hearing, does not clearly overwhelm the respondent’s failure over the year the children had been in the court’s temporary custody to obtain or maintain suitable housing. The court did not clearly err by refusing to further delay permanency for the children, given the uncertain potential for success and extended duration of respondent’s reunification plan.
v
We hold that subsection 19b(5) mandates termination once a petitioner establishes at least one statu tory ground for termination under subsection 19b(3), unless the court finds that termination is clearly not in the child’s best interest. This interpretation of subsection 19b(5) imposes no additional burden of production upon a respondent-parent and is constitutional.
In this case, the court’s finding that two statutory grounds for termination were established by clear and convincing evidence was not clearly erroneous. Nor was the court’s finding regarding the children’s best interests clearly erroneous. For these reasons, the termination of respondent’s parental rights is affirmed.
Kelly, Taylor, Corrigan, and Young, JJ., concurred with Weaver, C.J.
MCL 712A.19b(5); MSA 27.3178(598.19b)(5) states:
If the court finds that there are grounds for termination of parental rights, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made, unless the court finds that termination of parental rights to the child is clearly not in the child’s best interests.
The father has not appealed the Court of Appeals affirmance of the order terminating his parental rights. We, therefore, address only the facts and issues relevant to respondent’s appeal.
In this case, the court ordered that respondent comply with the parent agency agreement in its July 14, 1995, dispositional order. Parent-agency agreements are voluntary agreements between the caseworker and the parent that obligate each to steps specifically tailored to the family’s needs. However, as in this case, the requirements of parent-agency agreements often become part of the court order that implements the case service plan. MCR 5.973(A)(5)(b). Case service plans provide guidance to the agency, parent, and court in assessing a parent’s progress toward reunification. They typically outline the services that will be provided and the expectations of the parents regarding services and visitations. MCL 712A.19; MSA 27.3178(598.19). Failure to substantially comply with a court-ordered case service plan “is evidence that return of the child to the parent may cause a substantial risk of harm to the child’s life, physical health, or mental well being.” MCR 5.973(C)(4)(b).
The requirement for a permanency planning hearing is triggered if a child remains in foster care and the parental rights have not been terminated within 364 days of the original petition.
The alleged grounds included subsections 19b(3)(c)(i), 19b(3)(c)(ii) and 19b(3)(g):
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.
(ii) Other conditions exist that cause the child to come within the court’s jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.
* *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.
The children’s guardian ad litem filed a motion to combine the “best interest phase with fact finding phase” of the termination hearing pursuant to MCR 5.973(A)(2). The respondent argued that MCR 5.974(E) required that the two “phases” be separately argued. We note that neither party cited the correct court rule, given the status of this case. The applicable court rule when, as here, the children have been in foster care in the temporary custody of the court is MCR 5.974(F).
The referee concluded on the facts of this case that “there really is not a provision ... on the amended court rule for a best interest hearing.” Despite this correct conclusion, the referee determined that it would first consider the alleged grounds to support termination and, if a ground was established, proceed to separate consideration of best interest testimony. The dissent incorrectly characterizes this decision as a procedural error that led the parties to wait to produce witnesses at the best interest hearing. The referee’s conclusion regarding the scheduling of the proceeding, in fact, gave both parties the notice and opportunity to present witnesses on each issue. Electing to save witnesses for the best interest hearing is a tactical decision, as is the decision to present only one or zero witnesses regarding the grounds for termination. That only one witness was called with respect to the grounds for termination does not compel the conclusion that the evidence is “plainly insufficient” to support the court’s findings as suggested by the dissent.
Under the court rule applicable in this case, MCR 5.974(F), there need not be a separate hearing regarding the grounds for termination and whether termination is clearly not in the child’s best interest, because under (F)(2) the admissible evidence for both issues includes “all relevant and material evidence, including oral and written reports . . . even though such evidence may not be admissible at trial." (Emphasis added.) In contrast, we note that under MCR 5.974(D) and (E) separate hearings are a practical necessity because evidence to support the grounds for termination must be legally admissible while the evidence regarding whether the termination is clearly not in the child’s best interest is governed by (F)(2).
The corresponding court rule, however, required the court to further find that “termination is in the best interest of the child.” MCR 5.974(E)(2), amended in 1995 in response to 1994 PA 264.
Amendments made to the law by 1988 PA 223 through 225 were intended to address barriers that delayed the placement of children in permanent loving homes once those children entered the juvenile justice system. 1994 PA 264, which became effective January 1, 1995, addressed additional barriers.
MCR 5.974 defines three procedures, depending on the particular circumstances of the termination proceeding. MCR 5.974(D) addresses terminations that occur at the initial disposition hearing, MCR 5.974(E) addresses terminations involving children already within the jurisdiction of the court and where termination is sought on the basis of one or more circumstances different from the offense that led the court to take jurisdiction over the children, and MCR 5.974(F) addresses the termination of parental rights over children that have been in foster care in the temporary custody of the court.
Id., p 473; see also In re Hamlet (After Remand), 225 Mich App 505; 571 NW2d 750 (1997), In re Huisman, 230 Mich App 372; 584 NW2d 349 (1998), In re JS & SM, 231 Mich App 92; 585 NW2d 326 (1998), In re EP, 234 Mich App 582; 595 NW2d 167 (1999), and In re Boursaw, 239 Mich App 161; 607 NW2d 408 (2000).
MCR 5.903(A)(13)(b) defines “party” in a protective proceeding to include “petitioner, child, respondent parent, or other parent or guardian in a protective proceeding.”
We also reject In re Boursaw’s dicta that after a parent presents any best interest evidence the petitioner must “again meet its burden of proof with regard to the matter.” Id. We reiterate, the petitioner carries its burden of proof, and need prove nothing more, once one or more grounds for termination is found.
These tasks were among the requirements of the court’s original order of disposition when the children were removed to foster care. See n 3.
The parent-agency agreements obligated the caseworker to “monitor and assist parent in obtaining/maintaining suitable, safe housing for self and children by providing referrals for housing, furniture and household items, advocating for utilities, assessing home for cleanliness and providing guidance to improve housekeeping conditions.”
As will be discussed below, the respondent did present a plan for the reunification of her children during the termination hearing on October 27, 1996. However, this information was based on events that had not occurred at the time the court found the grounds for termination established on September 27, 1996.
Because the court had ordered that respondent comply with the requirements of the parent-agency agreements in the July 14, 1995, dispositional order, the dissent’s argument that subsection 19b(3)(g) does not require compliance with the parent-agency agreement misses the point. The parent-agency agreements in this case were part of the court order, and respondent’s failure to comply with those requirements was indicative of neglect. See n 3.
In an effort to discredit the court’s conclusion, the dissent attempts to make it appear that the court leapt straight from a purportedly “vague explanation” of its conclusions regarding respondent’s difficulty with therapy to a discussion of the father’s lack of housing. To clarify the court’s rationale, we offer the following quotation of the court’s analysis and conclusion on the therapy issue:
There has been some effort on the part of the mother to follow through with therapy, although she did stop originally and that may have been a result of confusion on her part or part of her psychological distress in not being able to connect with the therapist.
It also may have been may have been a result of her ambivalence, which was very clear in the beginning, and in fact, not even ambivalence. In the very beginning she clearly indicated that she did not want the children back.
So it’s not clear why exactly the therapy was so slow to start. Part of it, of course, was the bureaucratic requirement that was made reference to that slowed this down, but once it started, the mother stopped therapy extensibly [sic] because she didn’t like the therapist. The exact reason, perhaps, is less important than the fact that it stopped, it slowed down for a while and that delayed this situation.
The end result, however, is that even after a year, even discounting any intent on the mother’s part, there has not been a provision of proper care or custody for these children at ages five, three and one and a half, a little bit older than that now, but at young ages, because of the lack of progress here, that this Court is not satisfied that there is a reasonable expectation that Miss Trejo will be able to provide care and custody within the foreseeable future.
We note that while the court had before it and understood the substance of respondent’s lack of progress while in counseling at the hearing regarding the grounds for termination, see n 17, the specifics of respondent’s sporadic attendance cited here are derived from the testimony of the second counselor regarding respondent’s progress in counseling between May 1996 and September 1996. This testimony was presented after the court had already concluded that the grounds were established by clear and convincing evidence.
We reiterate, the court went beyond the statutory best interest inquiry by concluding that termination was in the children’s best interests. The statute does not require that the court affirmatively find that termination is in the child’s best interest. Ante at 357. | [
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Taylor, J.
(for reversal). The question in these consolidated appeals is whether the state of Michigan was barred by MCL 333.7409; MSA 14.15(7409) from indicting defendants for conspiracy to possess with intent to deliver more than 650 grams of a mixture containing cocaine when they had previously been convicted in federal court in Florida of conspiracy to possess with intent to distribute more than five kilograms of cocaine.
I would hold that the state prosecution was not barred by MCL 333.7409; MSA 14.15(7409) because conspiracy charges are not a violation of “this article” (article 7 of the Public Health Code) for purposes of the statute. The statute does not apply because the conspiracy charges arose under chapter 24 of the Penal Code, not under article 7 of the Public Health Code. Therefore, I would reverse the judgments of the trial court and Court of Appeals and reinstate defendants’ convictions.
i
In July 1990, both defendants were convicted in federal court in Florida of conspiring to possess with intent to distribute five or more grams of cocaine. In the same month, an Oakland County grand jury indicted defendants for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine. Defendants moved to quash the state indictment, arguing that the subsequent state prosecution violated their rights under Const 1963, art 1, § 15 not to be put in jeopardy twice for the same offense. The trial court denied the motions after defendants had been convicted, and the Court of Appeals affirmed.
Both defendants filed applications for leave to appeal with this Court. This Court granted Hermiz’ application and held Konja’s application in abeyance. In separate opinions, a majority of the Court rejected Hermiz’ state double jeopardy claim. All justices agreed, however, that Hermiz was entitled to a remand to the trial court to address whether the state prosecution had violated MCL 333.7409; MSA 14.15(7409). This Court also remanded Kouja’s case to the trial court for consideration of the same issue. On remand, the trial court dismissed the charges against defendants, finding the successive state prosecutions had violated the statute. On appeal by the prosecution, the Court of Appeals affirmed. This Court subsequently granted leave to appeal to the prosecution.
n
In accordance with our remand orders, the focus in the trial court and the Court of Appeals has been whether the Michigan conspiracy should be considered “the same act” as the Florida conspiracy. However, before oral argument, we permitted amicus curiae Prosecuting Attorneys Association of Michigan to file a brief that argues that the statute does not apply because the defendants’ conspiracy convictions were obtained under the Penal Code and not pursuant to article 7 of the Public Health Code.
At oral argument, appellant Oakland County Prosecutor indicated full agreement with the argument of the amicus curiae. The Court explored this issue at oral argument, and we subsequently asked the parties to file supplemental briefs addressing the issue. The supplemental briefs have now been filed and the case is ripe for resolution.
I begin by acknowledging that this Court’s earlier remand orders arguably assumed, without expressly holding, that the Michigan charges would have been barred if they constituted “the same act” as the Florida conspiracy. As explained below, I am persuaded that this assumption was in error. Given such conclusion, and the fact that it was a mere assumption, as opposed to a contested holding, I am unwilling, to close my eyes to this new dispositive argument.
I also acknowledge that amicus curiae has raised an argument that appellant Oakland County Prosecutor did not argue in the trial court or the Court of Appeals. Absent exceptional circumstances, amicus curiae cannot raise an issue that has not been raised by the parties. United Parcel Service Inc v Mitchell, 451 US 56, 60, n 2; 101 S Ct 1559; 67 L Ed 2d 732 (1981). However, this is not a hard and fast rule. See Teague v Lane, 489 US 288, 300; 109 S Ct 1060; 103 L Ed 2d 334 (1989) (addressing the question of retroactivity of a habeas corpus petitioner’s claim despite the fact that it was raised only in an amicus curiae brief), and Allen Park Village Council v Allen Park Village Clerk, 309 Mich 361, 363; 15 NW2d 670 (1944).
It is also the case that, ordinarily, this Court does not review arguments that were not presented below. Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). However, we will allow an issue to be raised for the first time on appeal if we are persuaded that its consideration “is necessary to a proper determination of a case.” Prudential Ins Co v Cusick, 369 Mich 269, 290; 120 NW2d 1 (1963); Dation v Ford Motor Co, 314 Mich 152, 160-161; 22 NW2d 252 (1946). Further, in limited circumstances, this Court will address an issue that was not raised by the parties “where justice so required.” Paramount Corp v Miskins, 418 Mich 708, 731; 344 NW2d 788 (1984). Moreover, pursuant to MCR 7.316(A)(3), we have the authority to permit the reasons or grounds of an appeal to be amended or new grounds to be added.
Frequently it will be more appropriate to remand a new potentially dispositive issue to the trial court or Court of Appeals for initial resolution. Paramount Corp at 731. However, given that these cases have already produced three published opinions, have been up and down the appellate ladder over the last decade, and the fact that we have allowed the filing of supplemental briefs, I deem this one of the rare cases where, in the interest of judicial economy and finality, it is appropriate for us to reach an issue not specifically developed below. Thus, having determined that it is necessary to a proper determination of the case, that justice so requires, and having allowed defendants the opportunity to file supplemental briefs addressing the issue, we exercise our discretion pursuant to MCR 7.316(A)(3) and consider the question whether the statute applies to conspiracy charges.
in
MCL 333.7409; MSA 14.15(7409) provides:
If a violation of this article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.
The reference to “this article” in the statute is a reference to article 7 of the Public Health Code, which is the Controlled Substances Act. However, the conspiracy statute is found in chapter 24 of the Penal Code and not in article 7 of the Public Health Code. Nevertheless, it is also the case that defendants were charged with conspiring to violate a crime that is found in article 7 of the Public Health Code, i.e., the predicate substantive offense is part of the Controlled Substances Act.
As we recently stated in People v Morey, 461 Mich 325, 329-330; 603 NW2d 250 (1999):
We review questions of statutory construction de novo. In doing so, our purpose is to discern and give effect to the Legislature’s intent. We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed-—no further judicial construction is required or permitted, and the statute must be enforced as written. [Citations omitted.]
Under the plain meaning of the statute, the question is whether the conspiracy charges are a violation of article 7 of the Public Health Code. As previously indicated, they are not. Rather, the conspiracy statute is found in chapter 24 of the Penal Code, not in the Public Health Code/Controlled Substances Act. It simply is not a violation of article 7 of the Public Health Code to conspire to commit a crime found in article 7 of the Public Health Code.
My analysis is supported by the fact that the Legislature amended MCL 333.7407a; MSA 14.15(7407a) in 1994 to make it a crime to “attempt,” to “solicit,” to “induce” or to “intimidate” another into violating “this part.” Conspicuously absent from this list is making it a crime to “conspire” to violate “this part.” The reference to “this part” in MCL 333.7407a; MSA 14.15(7407a) is to part 74 of article 7 of the Public Health Code. The predicate offense that defendants were charged with conspiring to commit was MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), and this statute is found in part 74 of article 7 of the Public Health Code. The Legislature did not include the word “conspire” in MCL 333.7407a; MSA 14.15(7407a). •This omission must be respected by this Court. Indeed, if we were to find that the statute barred the conspiracy charges we would be guilty of rewriting MCL 333.7409; MSA 14.15(7409) as follows:
If a violation of this article or the penal code is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.
We also would be effectively amending MCL 333.7407a; MSA 14.15(7407a) as follows:
(1) A person shall not attempt or conspire to violate this part.
(2) A person shall not knowingly or intentionally solicit, induce, or intimidate another person to violate this part.
We, of course, should not be willing to amend or to rewrite statutes.
I recognize that under the statutory scheme set up by the Legislature persons who violate the Controlled Substances Act have the protection afforded by MCL 333.7409; MSA 14.15(7409), but persons who conspire to violate the Controlled Substances Act do not have the protection afforded by the statute. This is because the conspiracy statute is found in the Penal Code and not the Public Health Code, and because the Legislature did not include conspiracy in the list of crimes forbidden by MCL 333.7407a; MSA 14.15(7407a).
Justice Cavanagh’s opinion asserts that my interpretation of § 7409 produces an illogical result in contravention of the Legislature’s intent. I reject this charge because my interpretation is based on the language of the statute. The inclusion or lack thereof of conspiracy in the list of crimes forbidden by MCL 333.7407a; MSA 14.15(7407a) does not implicate logic. What we have here is merely a choice that the Legislature made that is as “logical” one way as the other. Given this situation, and that the Legislature was acting within its constitutional authority when it did not include conspiracy in the list, the Legislature should not have to suffer judicial interference with the choice made in its legislative product. Indeed, our constitutional duty demands nothing less of us.
IV
In conclusion, while I acknowledge that this Court’s prior opinion contributed to a misunderstanding regarding the applicability of MCL 333.7409; MSA 14.15(7409), I do not apologize for refusing to apply the statute under circumstances where it clearly does not apply. It is for all these reasons that I would reverse the judgments of the lower courts and reinstate defendants’ convictions.
Corrigan and Young, JJ., concurred with Taylor, J.
If a violation of this article (article 7 of the Public Health Code) is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.
MCL 750.157a; MSA 28.354(1) and MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).
21 USC 841(A)(1).
MCL 750.157a; MSA 28.354(1) (“Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein”).
People v Hermiz, 207 Mich App 449; 526 NW2d 1 (1994); People v Konja, unpublished opinion per curiam, issued June 20, 1995 (Docket No. 150596).
People v Mezy, 453 Mich 269; 551 NW2d 389 (1996) (Hermiz’ appeal was the companion case to lead defendant Mezy).
453 Mich 953 (1996).
People v Hermiz, 235 Mich App 248; 597 NW2d 218 (1999).
461 Mich 880 (1999).
As this Court stated with reference to amicus curiae briefs in Grand Rapids v Consumers Power Co, 216 Mich 409, 415; 185 NW 852 (1921): “This court is always desirous of having all the light it may have on the questions before it.” Hence, we express our gratitude to amicus curiae paam for bringing this dispositive argument to our attention.
The Oakland County Prosecutor has argued that the statute did not bar the state prosecution because the state conspiracy was not “the same act” as the Florida conspiracy.
As stated in People v Justice, 454 Mich 334, 345-346; 562 NW2d 652 (1997):
Conspiracy is defined by common law as a partnership in criminal purposes. Under such a partnership, two ór more individuals must have voluntarily agreed to effectuate the commission of a criminal offense. Establishing that the individuals specifically intended to combine to pursue the criminal objective of their agreement is critical because the gist of the offense of conspiracy lies in the unlawful agreement meaning the crime is complete upon formation of the agreement.
The specific intent to combine, including knowledge of that intent, must be shared by two or more individuals because there can be no conspiracy without a combination of two or more. This combination of two or more is essential because the rationale underlying the crime of conspiracy is based on the increased societal dangers presented by the agreement between the plurality of actors. [Citations and internal quotation marks deleted.]
I note that Justice Cavanagh’s opinion has no answer to this point, apparently being content to issue an opinion that would rewrite the statute. I take comfort in the fact that the Legislature is free to amend MCL 333.7409; MSA 14.15(7409) to make it applicable to conspiracy charges if it so desires.
While the Legislature need not explain its choices to us, it may be that it chose not to include “conspiracy” charges within MCL 333.7407a; MSA 14.15(7407a), and thus within the protection of MCL 333.7409; MSA 14.15(7409), because of the additional danger to society that conspiracies represent.
As stated in People v Sammons, 191 Mich App 351, 374; 478 NW2d 901 (1991):
While the controlled substance provisions of the Public Health Code are designed to protect society from the “patently harmful” effects of drug trafficking, see People v Gorgon, 121 Mich App 203, 206-207; 328 NW2d 619 (1982), the purpose of the conspiracy statute is to protect society from the “increased and special danger to society presented by group as opposed to individual activity.” People v Carter, 415 Mich 558, 569-570; 330 NW2d 314 (1982).
As indicated, distinct social norms are involved. Further, the conspiracy statute, MCL 750.157a; MSA 28.354(1), provides for punishment equal to the substantive crime; it does not impose an hierarchical, harsher penalty on the basis of the presence of aggravating factors. Additionally, as noted in Carter, supra at 569:
It is a settled principle of black-letter law that conspiracy is a crime that is separate and distinct from the substantive crime that is its object. LaFave & Scott, Criminal Law, § 62, p 494; People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975); People v Chambers, 279 Mich 73; 271 NW 556 (1937).
Justice Cavanagii’s opinion also claims my opinion is inconsistent with People v Denio, 454 Mich 691, 695; 564 NW2d 13 (1997). I disagree. In Denio, this Court construed the sentencing provision of the conspiracy statute, which provides for punishment “by a penalty equal to that which could be imposed if [the defendant] had been convicted of committing the crime he conspired to commit The conspiracy statute thus expressly incorporates the penalty provisions of the offense that is the object of the conspiracy. Denio concluded that the term “penalty” encompassed the consecutive sentencing provisions of the Controlled Substances Act. The language of MCL 333.7409; MSA 14.15(7409), in contrast, does not link the statutes. Therefore, MCL 333.7409; MSA 14.15(7409) simply does not include the conspiracy statute within its scope.
Our holding is also supported by the decision of the North Dakota Supreme Court in State v Meyer, 356 NW2d 149 (ND, 1984). North Dakota has a statute similar to MCL 333.7409; MSA 14.15(7409) that provides:
If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state. [ND Cent Code, § 19-03.1-28.]
In North Dakota, conspiracy is an offense under a different chapter than the chapter cited in the statute. Thus, the North Dakota Supreme Court held that its statute did not bar a state prosecution for conspiracy where there had been a previous prosecution in another state for a related conspiracy. | [
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] |
Cooley, J.
This is an action of trespass. The question involved is the true location of the boundary line between lots three and. four of block fifty-nine of Hoyt’s plat of East Saginaw. Objection was taken to the plat that it was not properly acknowledged; but as it appeared that the conveyances under which both parties claimed referred to and were made in reference to it, the objection has no force. Johnstone v. Scott 11 Mich. 232.
The principal controversy related to the proper construction of a paragraph in the explanations which were upon the map when executed. This was as follows: “ Said lots are 60 feet in width and 120 feet in length with the exception, ■of such lots as are made fractional by the plank road and the boundaries of said city as are here laid down on this map.” To an understanding of what will be said it is necessary that •a section of the map, including block 59, should be given.
It appears from this map that blocks 44 and 45 are full blocks of twelve lots each, and no indication is given by marks or apparent distances that any lots were meant to be fractional. West of block 44 is block 35 which corresponds to it exactly, and west of that is block 18, which in the same way is divided into twelve lots, apparently of uniform size, and at the westerly end of lot one, which corresponds to lot ■one on block 59, the width is expressed as being sixty feet.
It is thus made clear heyond question that in the survey and original platting blocks 18, 35 and M and the west half of block 59 were taken and supposed to be 360 feet in length, and that this supposed distance was intended to be divided by iot lines into six equal parts. The evidence tends to show, however, that the distance, instead of being 360 feet is but 352 or thereabouts; and there is consequently a shortage which must be lost by one or more of the lot-owners. The defendant contends that this shortage is to be equally •apportioned between the six lots, while the plaintiff insists that it must fall exclusively upon the lots upon the plank-road, because such is the express provision of the explanatory mote accompanying the plat.
The general rule is familiar that an apparent shortage like that which is met with here is not to be taken from any one lot, but is to be apportioned among all according to the length of their lines as indicated by the survey. The principle is clearly stated in the leading case of Morela/n&v. Page 2 Iowa 139, 153: “Where on a line of the same survey, between remote corners, the whole length of which line is found to be variant from the length called for, in re-establishing lost intermediate monuments, as marking subdivi■sional tracts, we are not permitted to presume merely, that a variance arose from the defective survey of anypcvrt; but we must conclude, in the absence of circumstances showing the contrary, that it arose from the imperfect measurement of the whole line, and distribute such variance between the several subdivisions of such line, in proportion to their respective lengths.” This rule is so obviously just and reasonable, that surveyors are accustomed to apply it without question or doubt.
But it is said the rule capnot be applied to this case, because the plat expressly prescribes another, namely, that •all the lots shall be of the uniform width of sixty feet except those on the plank-road; and that the effect is to throw all the shortage on the lots bordering upon that road. But the wording of the explanation is that the lots “ are 60 feet in width and 120 feet in length, with the exception of suoh lots as are made fractional by the plank-road and the boundaries of said city as are here laid down on this map.” We must search the meaning of these words with the map before us, and they should have effect, if possible, as the proprietor understood them when the plat was made. It is not necessarily implied from'the words of the explanation that all the lots on the plank-road are fractional: it is only said that “ such ” as are made fractional by that road are not of uniform width and length with the others. We look to the plat, then, to see what lots are and what are not made fractional by that road. The plat shows that lot 12 of block 59, lots 7 and 8 of block 58, and lots 4, 5, 7, 8 and 9 of block 67 are made fractional by the plank-road, but there is no indication whatever that any other lot on those blocks was not of the uniform size of 60 by 120 feet. On the contrary the fact that all the blocks west of block 59 are divided off into lots of uniform size, and that the parallel lines which divide them are continued to the north and south middle line of block 59, is conclusive that the west half of block 59 was supposed to be divided into lots ■ of uniform size also. And this must govern unless the explanatory note has the effect to make fractional lots of all which adjoin the -plank-road.
To interpret the plat correctly we should place ourselves as nearly as possible in the position of the proprietor when he made it, and have its subdivisions before us as they were before him at that time. It does not appear that stakes or other monuments were planted to indicate lot lines, but if any had been -placed along the west line of block 59, they must, in order to be true to the plat, have divided that line into six equal portions. If these monuments had been planted, they must have controlled, because they would have constituted the most conclusive and satisfactory explanation of the proprietor’s intent in making the subdivision. But if the map shows with reasonable certainty that Ms intent was to make an equal subdivision, the absence of stakes is not very important. We must look at his work as he regarded it, and uphold the subdivisions which he by his plat then supposed he had made. By the plat the west line of block 59 was assumed to be 360 feet iu length when it was really but 352 or thereabouts. But the plat divided it into six equal parts, and made no fractional lot on the plank-road. -The proprietors must therefore abide by this equal division, and none of them has a right to insist on making a, fraction where the proprietor made none. The shortage, in. accordance with the familiar rule already referred to, must, be equally apportioned between the six lots. O’Brien, v. McGrane 27 Wis. 446.
This conclusion is different from that reached by the circuit judge, and so far as we can judge from this record, is likely to determine the controversy. But as the case must go back for a new trial, and it is possible there may still be disputed questions of fact to settle, it is proper to add that we discover no error in rulings of the circuit court which were complained of, except upon this main question.
The judgment must be reversed, with costs, and a new trial ordered.
Marston, O. J. and Graves, J. concurred.
Campbell, J.
It seems to me to be the plain meaning of the recitals on the plat that all of the lots not bounded on the plank-road should have the full measure of sixty feet, and that if this would not leave that width for the lot so bordering, then that lot should be treated as fractional. I cannot conceive any reason for leaving the width of the bulk of the lots to be determined in the future by measurements, which could not be readily made, and which would be-directly misleading. The construction claimed against the ruling below makes all of the lots, and not merely one, uncertain. I can see no reason why this course should be contemplated, and it does not appear to me the language used sustains it. The question being one of construction, it is not one on which it would be of service to discuss it at. length.
I think the judgment should be affirmed. | [
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Graves, J.
The only question raised by this record is whether a justice of the peace ought to wait an hour for the defendant to appear in the same cases in which by the terms of the statute such time is given to the plaintiff. The subject was referred to in Smith v. Brown 34 Mich. 455, and notice was taken of the general practice to apply the same rule to the defendant as to the plaintiff. The distinction made by the words of the statute is not easily explained. No good reason is perceived for giving an additional hour to the plaintiff and withholding it from the defendant. It is the policy of the law that full opportunity shall be allowed for a fair hearing in these courts of the litigation which is proper to them, and justice requires that, both parties shall have equal chances, and any rule likely to-lead to what are called snap judgments cannot have any presumption in its favor. The popular understanding has always been that a delay of m hour for a defendant was legal, and it is not improbable that the Legislature supposed that the practice was already so firmly fixed as to supersede the necessity for any express reference to it. But however this may be it is certain that the justice ought to wait a reasonable time for the defendant and that, by analogy to-the time allowed for the plaintiff, may well be regarded as an hour. This accords with the general usage and common opinion and is in every view favorable to justice.
The judgments of both courts must be reversed with the costs of all.
The other Justices concurred. | [
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Graves, J.
This case is in an awkward shape and must be briefly disposed of. It appears that Coming brought replevin for a quantity of logs which had been cut by Woodinon Coming’s land. Neither Coming’s ownership of the land, nor the fact of cutting by Woodin, was controverted. But Woodin claimed that he did the cutting under an oral sale to him by Coming, which amounted to a license. This-sale was denied by Coming, and whether one was made or not, was the important question of fact in the cause. The-evidence in regard to it was conflicting. The jury found against the plaintiff.
In the course of the trial the defendant’s counsel stated in substance before the court and jury that in a previous case of trover between the parties the question whether such a contract of sale was actually made was distinctly in issue and decided as now contended by defendant, and that the deliberate decision of the jury then made ought to settle the-present case in defendant’s favor, and on the close of the evidence he produced the charge delivered in the case-referred to and read it to the court in the presence and hearing of the jury.
These proceedings were objected to by plaintiff’s counsel,, but the judge refrained from interference and remained silent. Tie neither announced a ruling on the objection, nor expressed any disapprobation of the practice of defendant’s-counsel, and the jury must have inferred that it had the judge’s approval. No other view was possible.
The whole proceedings were improper.
It is now said that as there was no declared ruling there is-no foundation for the charge of error. No doubt it was the judge’s duty to interpose without waiting to be moved thereto-by plaintiff’s counsel; but the objection taken was an explicit call upon him to do so, and his omission to state any opinion cannot be set up as a bar against revision of tlie proceedings. Injurious irregularities at tlie trial cannot be protected against review in an appellate court, by tlie judge’s refusal to make express rulings on objections properly made against them. Were it otherwise it would be in his power to stifle the right to a revision in many cases.
The proper view of the present record is to construe the judge’s silence as an actual permission and allowance of what was objected to. Some attempt was made by defendant’s counsel to avert the effect, but we are satisfied, on careful examination of the whole case and especially on consideration of other parts of his address to the jury, that the influence was not wholly dissipated.
As there must be a new trial on account of tlie practice mentioned it is hardly expedient to consider anything further. The state of facts next time may be quite different.
The judgment is reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Graves, J.
September 26, 1872, a decree of divorce from the bonds of matrimony was granted complainant by the circuit court for Wayne county in chancery. The defendant was not personally served and did not appear. She was staying at her father’s in Toledo in the state of Ohio and had been from the pi’evious November, and the case pux’poi'ted to be carried on in virtue of an ox’der of publication under the statute. In the fall of 1872 the complain ant gave her notice of the divorce, and about the same time he entered into marriage with a woman by the name of Bittner who had recently been granted a divorce from a former husband. The decree against defendant has never been enrolled.
May 12, 1880, complainant died intestate leaving, as represented, real property amounting to $3000 and personal estate, including $2000 arising from a life insurance, of the value of $3000. Letters of administration were issued to Frederick «L Kunze and the woman whom Zoellner married after the decree against defendant, claims in character of his widow. March 31, 1881, the defendant Margaretha filed her petition to have the decree of divorce against her set aside on the ground that the order of publication and the showing therefor were false and'fraudulent and an imposition on the court. A hearing was had on the petition and several accompanying affidavits, and the court denied the application and Mrs. Zoellner appealed.
A number of questions of considerable difficulty were referred to on the argument and others have occurred to the court since. But as we do not consider that the fate of this appeal depends upon them they will not be discussed. The case must be governed by our own mode of procedure, and be decided on grounds which are well recognized where other contentions not very different in their real object are in question.
First. The exclusive object of the suit against the petitioner was to sever the bond of marriage, and the death of her husband, the complainant, brought the suit to an end. There remained no longer in the case a party complainant to contend nor any subject-matter of contention. There was not a mere abatement in the sense of equity, which is a state of suspension with a capacity for revival. But the whole ground of action was extinguished. Mitford Eq. Pl. 58; Story Eq. Pl. § 356; Barb. Ch. Pr. book 4, ch. 1, p. 39.
Whatever effect there may have been on property interests was a result only of the change of status declared by the decree in the cause, and was not an end directly pro chicecL by tbe cause itself. And no complaint of such effect by the petitioner upon any ground reaching back to, the decree and turning on its validity, can be heard and decided in the old case, which, as just stated, is not only destitute of an opposing party but is not depending. The proceeding indeed survives, and supposing it to be assailable by the petitioner to enable her to regain a position carrying with it a right to property as against others now apparently entitled, her only course would be to proceed by a new suit with the proper parties representing the property interests liable to be affected. The application before us is not such a suit. It is a petition in the divorce case. This is certain. Not only the title and the body of the petition show it, but it is also evident from the entire course of proceeding. The application is against a deceased complainant and in a case which came to an end nearly a year before it was made.
In my judgment the petitioner obtained no standing in court, and that for the reasons here stated the denial of her .application ought to be affirmed.
Second. Waiving all objections based on the manner in which the relief sought is applied for, and viewing the case .as it stands explained by the petitioner, the court is of ■opinion that the decision of the court below should' not be •disturbed. Nothing is now involved except property. The ¡sole motive of the petitioner in assailing the judicial proceeding which purported to sever her connection with the ■deceased complainant is to get, through a kind of post mortem adjudication, a share of the property he left. We think she was not disposed to attack the proceedings during his life-time, and when, if successful, the result would have been a revival of the state of marriage. But that she designedly abstained from moving until, in consequence of his death, the property interest might be pursued without the risk of any restoration of conjugal connection. The ■claim set up by the petitioner is therefore to be judged by the standard applicable to property questions. The decree in question is.prima facie valid; and granting that it was obtained by the means asserted, still the facts are extrinsic, and are only provable by outside evidence. Tbe case is, hence, one where the adjudication must subsist and operate .as valid until overthrown by a judgment pronounced against it upon appropriate evidence.
Now, the decree of divorce, as we have noticed, was .given in September, 1872, at the city of Detroit. The petitioner was at her father’s, in Toledo, distant about two .hours by railway, and she was very soon informed by complainant.
The defects in the proceedings which are now set up were open to detection by the least attention to facts which must have been obvious to her, and the notice from her husband, and the surrounding circumstances with which she was intimate, were urgent calls upon her to look into the proceedings. In short, if her present explanations are correct the facts of which she had full knowledge implied conclusively that the decree was a fraud, and there is no reason to suppose that she was not then as eligibly situated to take .action as she is now. And although she continued in the same near neighborhood, she yet waited from the fall of 1872 until the 31st of March, 1881, an interval of between eight and nine years, and including in it the period of more than seven and a half years whilst complainant was living and the space of nearly a year subsequent to his death. And the case is bare of circumstances to palliate the delay.
The proceeding is consequently subject to the proposition that the public peace and good order are concerned in withholding the assistance of equity from those who grossly neglect to take care of their own rights.
The order must be affirmed.
The other Justices concurred. | [
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] |
Marston, O. J.
On October 10,1879, a collision occurred on the railroad company’s road at Jackson junction, caused by the negligence of the company’s yard-master in sending a! switch-engine and train of cars upon the main track when the Pacific express train was past due, by which the engineer, Milton Gilbert, in charge thereof, without negligence on his part, and while in the performance of his duty, was killed.
Three principal questions are raised in this court, all relating to the sufficiency of the evidence introduced to establish the several propositions upon which alone the plaintiff would be entitled to recover, and these may be stated in the language adopted by counsel for plaintiff in error in' the brief submitted, as follows:
1. That the sending out of the switch-engine upon the main track, whereby the collision occurred, was an act of negligence directly attributable to Evander T. Colwell, a co-employee with Gilbert, who was yard-master at the Jackson junction yard.
2. That Colwell was an unfit and incompetent person to perform the duties of yard-master.
3. That the railroad company knew, or might have known in the exercise of reasonable diligence, that Colwell was an unfit and incompetent person for that position.
The first proposition is not disputed, but the sufficiency of the evidence to establish either of the others is, and questions are also raised as to the competency of some of plaintiff’s evidence to establish either.
The questions asked witnesses as to the number of tracks in the yard at the junction; the 'lumber of engines ordi narily employed in switching; the number of freight trains there on an average, and questions of similar import, were in my opinion relevant and proper, as tending to show the character and importance of the work Colwell was placed in charge of, and that from its extent, the character of the employment and the dangers incident to it, a man of corresponding ability and experience should be found in charge of it placed there by the company.
While we may say as a general proposition that the degree of care required in all cases is that which men of ordinary care and prudence exercise, yet it is to the business itself that we must look when we desire to ascertain whether such care and prudence have or not been exercised in a given case. Ordinary care and prudence, or what might clearly be considered such, in a given case, might if applied in like manner, where the hazard and responsibility was greater, fall far short or be grossly negligent. A man might be fully qualified to act as yard-master at a small unimportant station, who would be wholly unfitted to take charge of a large yard with many tracks and where a large number of trains were arriving and departing each day.
The plaintiff introduced testimony as to special instances of alleged incompeteney or carelessness on Colwell’s part, and this also is complained of. It was not claimed in support of such testimony, and certainly it could not well be, that it had any tendency to prove that he was negligent in fact on the night of the collision. It was however incumbent on the part of the plaintiff to show, that the company was guilty of negligence in first employing Colwell because unfitted for the position, or in afterwards retaining him This they could do by showing specific acts of incompetency, and bringing them home to the knowledge of the company, or by showing them to be of that nature, character and frequency, that the company, in the exercise of due care on its part, must have brought them to its notice.
While it is true that when a company has exercised due care and prudence in the choice of its servants, and that where this has been done no presumption of unfitness afterward arises, yet the master cannot shut his eyes, close his ears, and rest in peaceful security, unconscious and indifferent to what may thereafter take place. A vigilance corresponding in degree to the dangers attending or likely to-attend careless management, ever remains on the pari of the master, and when the plaintiff has shown repeated instances of carelessness or incompeteney of a certain character on the part of the servant, it remains for the jury to determine whether they did come to the knowledge of the master, or would have, had ordinary care been exercised on his pari. Any other rule would absolve the master from all danger, if he but exercised due caution in the first place, unless actual knowledge was afterwards brought home to him, which in many cases it would be most difficult to prove. Devis v. Detroit etc. R. R. Co. 20 Mich. 121; Cooley on Torts, 559 and cases cited.
"Were the specific instances enquired about in the present case of that nature as to bring them within the rule that would by implication bring them home to the knowledge of the railroad company ?
The following are some of the questions asked and answered:
Q. “ What was the character of Colwell in reference to-being a man of hasty and reckless action; what was his-general conduct in that respect % ”
A. “ Colwell was a very hasty man and a very passionate man at- all times; it took but little to excite him.”
The witness who gave this testimony was Joseph TL Sawyer, who had been a switchman, a brakeman and helper at this yard, and who testified to a previous occasion when Col-well took the risk of running a switch train on the main track when a train was due, but no accident then happened, nor was the fact reported. This witness was afterwards asked:
Q. “ Now,-1 will ask you if, in the course of time that you were there with Colwell, there were other occasions upon which you refused to have your switch engine go out upon the main track after the time the train was due f ”
A. “Yes, I had refused him, I should think, two or three times, when we went out and escaped the Pacific.”
Q. “ Do you know whether if you -had obeyed his orders and'gone out, any accident would have happened ? ”
A. “That would owe to the condition of the track; it would owe to whether he had any cars to his engine or not; I did refuse one night; I know if I had gone out with my •cars I do not doubt but what we would have gotten into trouble.”
It seems very difficult to me to say that the first question and answer in any way tend to show Colwell’s unfitness for the position. He may have been a most prudent and careful man, and his passion and excitement aroused from seeing others’ acts of rashness and his desire to promptly prevent accidents resulting therefrom. The answer to the second question and the facts called for therein, relate but to the fact that Colwell had desired to send a switch engine on the main track after the time a train was due. I do not understand from anything in the record in this case, that the fact of a coming train being past due, in and of itself would conclusively prevent any such use of the main track. The evidence shows that all trains were run by telegraph, find the time they passed each station reported, so that the position of the coming train and the time of, its arrival ■could be known by the yard-master, and that the rules of the company prevented any use of the main track for a certain length of time before its expected arrival.
A train may be past due according to the' schedule time .as understood by the switchman, and yet it may be well known to the yard-master and officers of the company that by reason of accident or otherwise, it cannot arrive for perhaps hours, and surely in such a case, the mere fact of past ■due, should not prevent a use of the track. That fact alone does not necessarily imply negligence.
The answer to the third question was mere matter of ■opinion, in a certain sense purely speculative, and from the very nature of all such evidence it could only be known, if not reported, by the immediate actors therein. It was not a matter that could have been known generally, as would the fact of an accident; it would not call for or lead to any inquiry, and was known but to these two persons, so that no matter how active and diligent the officers of the railroad company may have been, unless they inquired of Mr. Saw yer they would have heard nothing even to put them upon inquiry. I am very clearly of opinion that such evidence was not admissible unless brought home to the knowledge of the officers of the road.
Objection was taken to certain questions asked concerningColwell’s habits of intemperance which it was claimed was unknown to officers of the company. There is evidence tending to show that the officers of the company did have their attention called to the fact that Colwell had at times used beer if not stronger drink. The evidence may not be very strong but the weight and importance to be given it were questions proper for the consideration of the jury. Having had their attention called to the fact, in view of the great danger likely to result should one in Colwell’s position be likely to indulge in the use of intoxicating liquors, it became their duty to make careful and frequent investigation upon the subject. In my opinion there was sufficient evidence to be submitted to the j ary upon this question as the information given was certainly sufficient to-put the company upon its guard.
Except as to the spécific acts of incompetency as already noticed, I am of opinion that there was upon all the other questions sufficient evidence to be submitted to the jury, within the ride laid down in Conely v. McDonald 40 Mich. 150, and as a new trial must be ordered, I consider it more prudent not to enter upon any extended discussion of the evidence in support of this view.
A question was also raised in reference to remarks made by counsel upon the final argument of the case. I doubt whether the question was properly raised, or even if raised whether it comes within the rule laid down in Scripps v. Reilly 35 Mich. 371, but as the question is not likely to be of much importance upon a new trial, no definite opinion need be expressed.
For the errors already pointed out I am of opinion the judgment should be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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O’Connell, J.
In this medical malpractice action, plaintiff appeals as of right an order striking plaintiffs expert witness testimony and granting defendants’ motion for summary disposition under MCR 2.116(C)(10). We vacate and remand.
Flaintiffs decedent sought medical treatment for symptoms that were consistent with pneumonia. In July 1997, defendant Robert Baker, M.D., a radiologist, reviewed an x-ray of the decedent’s chest and lungs. At that time, Dr. Baker reported no abnormal findings. In February 1998, however, plaintiffs decedent was diagnosed with lung cancer, which claimed her life in March 1999. Plaintiff thereafter filed a medical malpractice wrongful death action against Dr. Baker and Chippewa County War Memorial Hospital, the hospital with which Dr. Baker was affiliated. Plaintiff primarily alleged that Dr. Baker was negligent in reading and interpreting the results of the July 1997 chest x-ray and that the delay in diagnosing the decedent’s lung cancer delayed treatment and caused her death.
During discovery, plaintiff deposed his causation experts, Drs. Stephen Veach and Barry L. Singer. Both doctors are board-certified in medical oncology. According to the doctors’ deposition testimony, lung cancer is staged at Stages I through TV for the purposes of treatment and prognosis. Patients with Stage I lung cancer have a five-year survival rate of seventy percent, while patients with Stage II lung cancer have a five-year survival rate of forty percent. Dr. Veach testified that the decedent’s lung cancer would have been at either Stage I or Stage II in July 1997. However, he conceded that he could not state with a reasonable degree of certainty how much the decedent’s cancer had metastasized in July 1997. Dr. Singer testified that the decedent’s lung cancer would have been at either Stage I or Stage II in 1997, but that he “favored” staging the cancer at Stage I at that time. When asked what literature or information he relied on in forming his opinion, Dr. Singer asserted that he was relying on his “general experience” as an oncologist. Dr. Singer conceded that he could not state with a reasonable degree of probability that the decedent’s cancer was at Stage I or II in July 1997. However, he stated that he could conclude with a reasonable degree of certainty that if the decedent’s cancer had been diagnosed in July 1997, her chances of survival would have been sixty percent. Dr. Singer based his opinion about the decedent’s chances of five-year survival on what he called the “weighted averages” of the five-year survival rates for individuals with Stage I or Stage II lung cancer.
Defendants filed separate motions to strike plaintiffs causation experts’ testimony, arguing that it was speculative and lacked a reliable scientific basis. Specifically, defendants contended that plaintiffs experts’ testimony was inadmissible under MRE 403, MRE 702, and MCL 600.2955. In the alternative, defendant hospital moved for the trial court to conduct a Davis-Frye hearing. Defendants also moved for summary disposition under MCR 2.116(C)(10).
The trial court ruled that while plaintiffs experts were qualified, they did not have a scientific basis for asserting that the decedent’s cancer was at Stage I or Stage II in July 1997, and it was therefore impossible to determine the stage of the decedent’s cancer in July 1997. The trial court characterized as mere “speculation and conjecture” plaintiffs experts’ contention that had the decedent’s cancer been diagnosed in July 1997, the decedent would have had a greater than fifty percent chance of surviving the cancer. Without plaintiffs experts’ testimony, plaintiff was unable to establish that the decedent would have had a greater than fifty percent chance to survive. Therefore, the trial court granted defendants’ motion for summary disposition under MCR 2.116(C)(10).
This Court reviews de novo a trial court’s grant or denial of summary disposition under MCR 2.116(C)(10). Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. Downey v Charlevoix Co Rd Comm’rs, 227 Mich App 621, 625; 576 NW2d 712 (1998). The pleadings, affidavits, depositions, admissions, and any other documentary evidence submitted by the parties must be considered by the court when ruling on a motion brought under MCR 2.116(C)(10). Downey, supra at 626; MCR 2.116(G)(5). When reviewing a decision on a motion for summary disposition under MCR 2.116(C)(10), this Court “must consider the documentary evidence presented to the trial court ‘in the light most favorable to the nonmoving party.’ ” DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 539; 620 NW2d 836 (2001), quoting Harts v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999). A trial court has properly granted a motion for summary disposition under MCR 2.116(C)(10) “if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law.” Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
This Court reviews the trial court’s decision regarding the qualification of an expert witness for an abuse of discretion. Bahr v Harper-Grace Hospitals, 448 Mich 135, 141; 528 NW2d 170 (1995). While the trial court’s exercise of its role as a gatekeeper under MRE 702 to ensure that expert testimony is reliable “is within a court’s discretion, a trial judge may neither ‘abandon’ this obligation nor ‘perform the function inadequately.’ ” Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d 391 (2004), quoting Kumho Tire Co Ltd v Carmichael, 526 US 137, 158-159; 119 S Ct 1167; 143 L Ed 2d 238 (1999) (Scalia, J., concurring).
MRE 702 governs the admissibility of expert testimony. MRE 702 provides:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise ....
The trial court has an obligation under MRE 702 “to ensure that any expert testimony admitted at trial is rehable.” Gilbert, supra at 780. “Careful vetting of ah aspects of expert testimony is especially important when an expert provides testimony about causation.” Id. at 782. In People v Beckley, 434 Mich 691, 711; 456 NW2d 391 (1990) (opinion by Brickley, J.), our Supreme Court articulated three conditions for the admissibility of expert testimony under MRE 702: (1) the expert must be qualified, (2) the testimony is relevant to assist the trier of fact to understand the evidence or to determine a fact in issue, and (3) the testimony is derived from recognized scientific, technical, or other specialized knowledge. In Craig v Oakwood Hosp, 471 Mich 67; 684 NW2d 296 (2004), our Supreme Court stated:
Under MRE 702, the trial court had an independent obligation to review all expert opinion testimony in order to ensure that the opinion testimony . .. was rendered by a “qualified expert,” that the testimony would “assist the trier of fact,” and... that the opinion testimony was rooted in “recognized” scientific or technical principles. These obligations applied irrespective of the type of expert opinion testimony offered by the parties. While a party may waive any claim of error by failing to call this gatekeeping ' obligation to the court’s attention, the court must evaluate expert testimony under MRE 702 once that issue is raised. [Id. at 82 (emphasis in original).]
We find that the trial court failed to properly exercise its function as a gatekeeper of expert opinion testimony in striking plaintiffs experts’ testimony without either conducting a more searching inquiry under its obligation to preclude speculative and unreliable evidence under MRE 702, see Beckley, supra at 710-719, or holding a Davis-Frye evidentiary hearing to determine whether plaintiffs experts’ testimony regarding the “backwards staging” of the decedent’s cancer had achieved general scientific acceptance for reliability. We therefore remand this case to the trial court. On remand, the trial court shall either conduct a Davis-Frye evidentiary hearing or a more thorough inquiry under MRE 702 to ensure that the testimony satisfied the three Beckley conditions for admissibility.
Davis-Frye applies only to novel scientific principles. People v Coy, 258 Mich App 1, 10; 669 NW2d 831 (2003). The parties did not address, and the trial court did not decide, whether the process of “backwards cancer staging” constitutes a novel scientific principle. On remand, the trial court shall make such a determination. If, on remand, the trial court decides that such evidence is a novel scientific principle, then it must hold a Davis-Frye hearing. Even if the testimony did not involve a novel scientific principle, however, the trial court still had an obligation to ensure that plaintiffs experts’ testimony was reliable under MRE 702. “Because the court’s gatekeeper role is mandated by MRE 702, rather than Davis-Frye, the question whether Davis-Frye is applicable to evidence that is not ‘novel’ has no bearing on whether the court’s gatekeeper responsibilities extend to such evidence. These responsibilities are mandated by MRE 702 irrespective of whether proffered evidence is ‘novel.’ ” Gilbert, supra at 781 n 52. The trial court’s obligation under MRE 702 “mandates a searching inquiry, not just of the data underlying expert testimony, but also of the manner in which the expert interprets and extrapolates from those data. . . . The proponent must also show that any opinion based on those data expresses conclusions reached through reliable principles and methodology.” Gilbert, supra at 782. If the trial court decides that plaintiffs experts’ testimony does not constitute a novel scientific principle, the trial court shall conduct a more “searching inquiry” under MRE 702. See Beckley, supra at 710-719.
The proponent of expert testimony bears the burden of proving that the contested opinion is based on generally accepted methodology. Craig, supra at 83. In this case, by striking plaintiffs experts’ testimony without holding a Davis-Frye hearing or conducting a more searching inquiry under MRE 702, the trial court foreclosed plaintiffs ability to sustain this burden. In other words, the trial court prematurely struck plaintiffs experts’ testimony and deprived plaintiff of the opportunity to provide medical or scientific authority to support his experts’ claims that the decedent’s lung cancer was at Stage I or Stage II in July 1997. Plaintiff should have been afforded the opportunity to present the testimony of disinterested and impartial experts to show that his causation experts’ testimony regarding the “backwards cancer staging” of the decedent’s cancer to July 1997 was supported by medical or scientific data. See Coy, supra at 10.
Our decision to remand for the trial court to conduct a more searching inquiry under MRE 702 or a Davis-Frye hearing should not be interpreted by the trial court as a mandate to admit plaintiffs experts’ testimony. We merely hold today that the trial court should not have stricken the testimony without either conducting a more searching inquiry under MRE 702 or holding a Davis-Frye hearing. On remand, the trial court may once again determine that plaintiffs causation experts’ testimony must be stricken as unreliable and speculative. Before reaching this conclusion, however, the trial court must satisfy its obligation under MRE 702 or conduct a Davis-Frye hearing and give plaintiff the opportunity to establish the reliability of the testimony. We recognize that there are unique complications with establishing the reliability of this type of testimony because conducting a medical or scientific study on this subject would require cancer patients to do the unthinkable: volunteer to participate in a study in which their cancer would be left untreated so that doctors could then track the progression and staging of their cancer. No patient would volunteer for such a study, and no ethical medical or scientific study would ask cancer patients to submit to such a study. The fact that such studies are nonexistent should not necessarily operate as a complete bar to plaintiffs medical malpractice action, however, in the absence of a more searching inquiry into the reliability of the testimony supplied by plaintiffs experts.
Even if there is a lack of specific scientific or medical data on the subject, plaintiffs experts’ opinion testimony may nevertheless be deemed sufficiently reliable if the process of “backwards cancer staging” and the bases for plaintiffs experts’ opinions are generally accepted in the medical community as being reliable. See Beckley, supra at 718-719. It may be that oncologists generally do engage in “backwards cancer staging” and that they consider certain specific factors in doing so. On the record before us, however, it is impossible to determine whether such conduct is generally accepted in the medical community. The trial court acted too hastily in precluding the testimony without more carefully examining the reliability of the testimony. We find that plaintiff should be given the opportunity to establish, by impartial and disinterested experts, that it is accepted in the medical community for doctors to engage in backwards cancer staging and to explain the bases for the propriety of engaging in such backward cancer staging, which might include the doctor’s individual knowledge and experience, the general knowledge in the scientific community, the type of cancer, the patient’s individual presentation, as well as additional relevant factors. It may be that the trial court will once again find the evidence to be too speculative and unreliable. Indeed, the fact that Drs. Veach and Singer could not agree on whether the decedent’s cancer was a slow-growing or fast-growing cancer underscores the reliability concerns with this type of evidence. Nevertheless, in the absence óf a more searching inquiry into the reliability of such evidence, we cannot affirm the trial court’s decision in this case.
Given the limited record before us, we are unable to determine whether testimony that the decedent’s lung cancer was at Stage I or Stage II in July 1997 was competent evidence. The trial court should have either conducted a more searching inquiry under MRE 702 or a Davis-Frye evidentiary hearing before striking the testimony of plaintiffs causation experts. Therefore, we remand this case to the trial court. If, on remand, the trial court determines that plaintiffs experts’ testimony regarding “backwards cancer staging” is a novel scientific principle, then the trial court shall conduct a Davis-Frye evidentiary hearing. If the trial court determines that the evidence does not constitute a novel scientific principle, then the trial court shall conduct a more searching inquiry under MRE 702 to determine whether the testimony satisfies the three Beckley conditions articulated above.
Vacated and remanded. We do not retain jurisdiction.
See People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 US App DC 46; 293 F 1013 (1923). The Davis-Frye test allows the admission of expert testimony regarding novel scientific evidence only if the evidence has gained general acceptance among scientific experts in the field.
Although it is true that in certain clinical trials participants receive placebos, this rarely occurs in a clinical trial involving treatment for cancer. According to the American Cancer Society:
Placebos are rarely used alone in cancer research, unless no known effective treatments exist. It’s certainly not ethical to have someone take a placebo if an effective standard treatment is already available. When cancer clinical trials compare treatments, they compare the new treatment against the current standard treatment. At times, a study may be designed so that patients may not be told which one they are receiving, but they know they are at least getting the current standard of care. [American Cancer Society, Clinical Trials: What you Need to Know <http://www.cancer.org/docroot/ETO/content/ETO_6_3_ Clinical Trials_ -_Patient_ Participation.asp> (accessed October 6, 2005).] | [
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] |
Fitzgerald, J.
These consolidated appeals arise out of condemnation proceedings initiated by the Detroit/Wayne County Stadium Authority (the stadium authority) to acquire various parcels of property for use in constructing new stadiums for the Detroit Lions and the Detroit Tigers. The stadium authority acquired several parcels without the need for condemnation. The present cases involve properties for which condemnation actions were necessary because the property owners refused the stadium authority’s good-faith offers. Defendants did not contest the necessity of the takings and, therefore, the trial court entered orders vesting title in and granting possession of the parcels to the stadium authority. The stadium authority was ordered in each case to pay defendants the amount of the good-faith offer. Defendants pursued additional compensation in court, contending that, in the absence of the dual-stadiums project, the “highest and best use” of their properties was for assemblage with other properties for casino development, rather than for commercial development as contended by the stadium authority. A jury trial was held in each case, with the sole issue being the amount of just compensation owed for property taken pursuant to the power of eminent domain.
In Docket No. 251799, the stadium authority had offered $150,000 for the property, a 7,500-square-foot parcel of land with 75 feet of frontage on Adams and 100 feet of frontage on Witherell. The property was paved and contained a small Coney Island restaurant. The property was also periodically used as an overflow parking lot in connection with events at local theaters. The jury returned a verdict of $150,000.
In Docket No. 251800, the stadium authority had offered $20,000 for the property, a 1,892-square-foot vacant lot with 25 feet of frontage on Elizabeth Street. The jury returned a verdict of $20,000.
In Docket Nos. 251801 and 251802, the stadium authority had offered $170,000 for the property known as parcel 152, an 11,159-square-foot parcel of land with 71 feet of frontage on the east service drive for the Fisher Freeway. The property contained an abandoned home and an abandoned three-story industrial building. The stadium authority had offered $107,000 for the property known as parcel 151, a 10,700-square-foot vacant lot with 80 feet of frontage on the east service drive for the Fisher Freeway. The jury returned a verdict of $170,000 for parcel 152 and $107,00 for parcel 151.
In Docket No. 251869, the stadium authority had offered $32,000 for the property, a 25-foot by 80-foot strip of land containing 2,000 square feet. The jury returned a verdict of $194,720.
In Docket No. 251870, the stadium authority had offered $156,000 for the property, a 15,600-square-foot parcel of land that was used as a parking and maintenance lot for taxi and transportation service businesses. The jury returned a verdict of $1,427,181, consisting of $1,248,000 for the land and $179,181 as compensation for the interruption of business during relocation from the property.
FACTS
In 1993 former Detroit Mayor Coleman Young supported legislation known as “Speeda Legislation” that would provide funds to construct a new stadium for the Detroit Tigers. Young’s mayoral successor, Dennis Archer, also supported the legislation. . The stadium was proposed for the east side of Woodward Avenue across the street from the Fox Theater. Shortly after a March 1996 citywide vote was held to determine if the city would be able to use public or city funds to help finance a new stadium, the Detroit Lions expressed an interest in relocating to the city of Detroit and constructing a new stadium. On August 10, 1996, a joint press conference was held to announce that the Detroit Tigers and the Detroit Lions had agreed to construct dual stadiums on the east side of Woodward Avenue, in an area known as “Foxtown,” where defendants’ properties are located. Defendants’ properties were taken pursuant to the power of eminent domain for the purpose of constructing the dual stadiums.
In each case, defendants rejected the stadium authority’s good-faith offers and sought just compensation on the theory that, in the absence of the dual-stadiums project, their properties would have been combined with many other parcels of property and used in connection with casino development. The stadium authority introduced evidence that, at the time of the condemnation of defendants’ properties, the highest and best use of the properties was for commercial development. It introduced evidence that government policy made it impossible for any casino to locate in the area of defendants’ properties and that no casino developer had an interest in developing a casino in Foxtown after the Governor indicated in June 1995 that he would not approve off-reservation Indian gaming in the city of Detroit. Defendants introduced evidence that, in the absence of the dual-stadiums project, their properties would have been used in connection with casino development, and presented evidence in support of their theory of valuation.
DOCKET NOS. 251799, 251800, 251801, 251802
Defendants argue that the trial court erred by providing a jury instruction premised on the probability of assemblage for casino development rather than the possibility of .assemblage for casino development. Claims of instructional error are generally reviewed de novo. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 8; 651 NW2d 356 (2002). A determination based on a legal issue is a question of law subject to review de novo. Jackson v Nelson, 252 Mich App 643, 647; 654 NW2d 604 (2002). Reversal is not required unless the failure to reverse would be inconsistent with substantial justice. MCR 2.613(A); Ward v Consolidated Rail Corp, 472 Mich 77, 84, 87; 693 NW2d 366 (2005). There is no error requiring reversal if, on balance, the theories of the parties and the applicable law were adequately and fairly presented to the jury. Murdock v Higgins, 454 Mich 46, 60; 559 NW2d 639 (1997); In re Flury Estate, 249 Mich App 222, 225-226; 641 NW2d 863 (2002).
Defendants argue that the trial court erred in instructing the juries about how to evaluate prospective uses of their properties, specifically the prospective use for casino development. Defendants argue that the instruction that directed the juries to consider whether “a prudent buyer would have had a belief that private assemblage was reasonably probable within a reasonable time and for a reasonable price” was erroneous because the jury should have been instructed to consider whether it was “reasonably possible” — not “reasonably probable” — that a private assemblage for casino development would occur.
In the condemnation setting, “just compensation” is defined as the amount of money that will put the person whose property has been taken in as good a position as the person would have been in had the taking not occurred. Dep’t of Transportation v VanElslander, 460 Mich 127, 129; 594 NW2d 841 (1999); In re Acquisition of Land for the Central Industrial Park Project, 142 Mich App 675, 676-677; 370 NW2d 323 (1985); SJI2d 90.05, now M Civ JI 90.05. An award of just compensation is based on the fair market value of the property. Fair market value is to be determined as of the date of the taking. See Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 378-379; 663 NW2d 436 (2003). “Fair market value” is
“the highest price estimated in terms of money that the land will bring if exposed for sale in the open market with a reasonable time allowed to find a purchaser buying with knowledge of all the uses and purposes to which it is adapted and for which it is capable of bring used; the amount which land wouíd bring if it were offered for sale by one who desired, but was not obliged, to sell, and was bought by one who was willing, but not obliged to buy; what the land would bring in the hands of a prudent seller, at liberty to fix the time and conditions of sale; what the property will sell for on negotiations resulting in sale between an owner willing but not obliged to sell and a willing buyer not obliged to buy; what the land would be reasonably worth on the market for a cash price, allowing a reasonable time within which to effect a sale.” [Consumers Power Co v Allegan State Bank, 20 Mich App 720, 744-745; 174 NW2d 578 (1969) (Consumers Power I) (citation omitted). See also SJI2d 90.06, now M Civ JI 90.06.]
In determining fair market value, one must also determine the highest and best use of the property. St Clair Shores v Conley, 350 Mich 458, 462; 86 NW2d 271 (1957); In re Condemnation of Lands in Battle Creek for Park Purposes, 341 Mich 412, 419-420; 67 NW2d 49 (1954). “Highest and best use” means “the most profitable and advantageous use the owner may make of the property even if the property is presently used for a different purpose or is vacant, so long as there is a market demand for such use.” SJI 2d 90.09, now M Civ JI 90.09; see also Jack Loeks Theatres, Inc v City of Kentwood, 189 Mich App 603, 618-619; 474 NW2d 140 (1991), vacated in part 439 Mich 968 (1992).
In determining the highest and best use of the property, Michigan courts have permitted consideration of the assemblage doctrine. Consumers Power I, supra at 737-738. Assemblage involves the use of a parcel of property in conjunction with other properties.
In support of their argument, defendants rely on a series of cases involving rezoning, variances, and special use permits. The stadium authority concedes that Michigan law, including the civil jury instructions, makes it clear that the “reasonably possible” standard applies to the prospect of rezoning, but asserts that there is no authority to establish that it applies to the prospect of private assemblage. It argues that Michigan case law addressing jury instructions regarding the prospect of assemblage is consistent with the instructions given in these cases and that the instructions are consistent with Michigan condemnation law for determining just compensation.
Both the stadium authority and defendants agree that Consumers Power I is the leading authority regarding how a jury should be instructed to evaluate a prospective use of condemned property that involves the private assemblage of the property with other privately owned parcels. In Consumers Power I, a public utility sought to create a gas storage facility from an underground cavern that had originally held natural gas but had been emptied. The utility sought to use eminent domain to condemn the numerous parcels of property that contained the cavern. In one of the cases arising from these condemnations, the property owners sought to have the fact-finder value the property as though it could have been used as a gas storage facility, even though it was not being so used at the time of taking. The question arose in the trial court whether and how the jury should be instructed to account for the prospect of assembling the subject property with other parcels for the purpose of using all the properties as a gas storage facility. Consumers Power I, supra at 735-737.
In considering this question, this Court stated:
“Even though the increased market value is due to the adaptability of the property for valuable uses in conjunction with other properties, it may be considered, if the practicality of the combination of all necessary properties on which such availability depends is at the time of the condemnation so great as probably to affect the public mind, and therefore increase the price which a purchaser might be expected to give. This rule is not, however, applied where the chance of different parcels of land being brought together by agreement or purchase, in such a way as to be available for the use, is to be regarded as too remote and speculative to have any legitimate effect upon the valuation.” [Id. at 737-738 (emphasis added; citation omitted).]
This Court expressly employed the concept of “probability” rather than “possibility” to describe the degree of likelihood that was necessary to support a finding that the subject property’s fair market value would be affected by the prospect of a use for which assemblage was required.
Defendants contend that the Supreme Court in Consumers Power II used the concepts of “reasonable probability” and “reasonable possibility” interchangeably. This contention is misplaced, as the use of those concepts occurred in an opinion partially concurring, not in the majority opinion. Rather, the majority opinion simply affirmed this Court’s holding without any discussion of the concepts of “reasonably probable” or “reasonably possible.”
Defendants also contend that this Court in Consumers Power I recognized the distinction between the “reasonably probable” standard and the “reasonably possible” standard. Defendants purport to find this distinction in this Court’s opinion through this Court’s reliance on City of Allegan v Vonasek, 259 Mich 310; 243 NW 14 (1932) (Vonasek I), and City of Allegan v Vonasek, 261 Mich 16; 245 NW 557 (1932) (Vonasek II). Although this Court’s opinion in Consumers Power I does cite the Vonasek II case, it does not directly rely on it. This Court distinguished its holding from Vonasek II by asserting that “[o]ur case can be better likened to Emmons v. Utilities Power Company (1927) 83 NH 181 (141 A 65), as reported in 58 ALR 788.” Consumers Power I, supra at 740. This Court relied directly on the Emmons opinion to assert that a jury should consider the prospect of assemblage only when it was so likely that it would probably affect market value. Id. (“ ‘if the practicability of the combination of all the necessary properties on which such availability depends was at the time of condemnation so great as probably to affect the public mind’ ”).
Additionally, the Vonasek cases do not support defendants’ contention that the “reasonably possible” standard should apply in assemblage cases. In Vonasek I, the Supreme Court held that the jury should be instructed to account for prospective uses only to the extent that such uses “may be reasonably expected in the immediate future.” Vonasek I, supra at 316. The Court did not hold that where a prospective use depended on a private assemblage, a jury should be instructed to account for that use whenever there is a “reasonable possibility” that the assemblage could be accomplished. Rather, the Court held that the jury should account for the prospects of assemblage only when the fulfillment of those prospects was sufficiently likely that a reasonable person would expect it to happen in the immediate future.
A jury may consider a prospective use that would come from private assemblage if the likelihood of such use is sufficiently great to affect fair market value:
Thus, where the adaptability for a specific use depends upon the land’s being used in combination with lands belonging to other persons, such use may be shown if the possibility of such combinations is so great as to have a definite effect in enhancing the market value of the property. [4 Nichols, Eminent Domain (3d ed), § 12B.12, p 12B-115.] would have affected the mind of a prospective purchaser of the plaintiffs power in its unimproved state at the time it was taken.” Emmons, supra at 188.
Although this passage does not include the term “probable,” the passage also does not assert that a jury may consider any “reasonably possible” use. Rather, it provides that a jury may only consider those uses that are “so great as to have a definite effect” on market value. This language suggests a standard more akin to “probability” than “possibility.”
Also, with regard to prospective uses:
The possibility of its use for all purposes, present and prospective, for which it is adapted and to which it might in reason be applied, must be considered. Its value for the use to which men of prudence and wisdom and having adequate means would devote to the property if owned by them must be taken as the ultimate test. On the other hand, possible uses which are so remote and speculative and which would require the concurrence of so many extrinsic conditions and happenings as to have no perceptible effect upon present market value must be excluded from consideration. [4 Nichols, Eminent Domain (3d ed), § 12B.12, pp 12B-89 to 12B-101.]
According to this passage, uses that are too remote and speculative and that depend on the concurrence of numerous contingencies must not be considered. The United States Supreme Court has stated:
Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable, should be excluded from consideration, for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value — a thing to be condemned in business transactions as well as in judicial ascertainment of truth. [Olson v United States, 292 US 246, 257; 54 S Ct 704; 78 L Ed 1236 (1934).]
And, in Jack Loeks Theatres, supra at 618-619, this Court, in determining the admission of testimony regarding value, quoted the general principle about the evaluation of prospective uses for condemned property that is set forth in 4 Nichols, Eminent Domain (3d ed), § 12B.12 p 12B-104:
“To warrant admission of testimony as to the value for purposes other than that to which the land is being put,.. . the landowner must first show: (1) that the property is adaptable to the other use, (2) that it is reasonably probable that it will be put to the other use within the immediate future, or within a reasonable time, and (3) that the market value of the land has been enhanced by the other use for which it is adaptable.” [Emphasis added.]
In light of this authority, the trial court’s instruction directing the juries to consider whether “a prudent buyer would have had a belief that private assemblage was reasonably probable within a reasonable time and for a reasonable price” was not erroneous.
Defendants’ reliance on cases dealing with rezoning to support the proposition that all cases involving prospective uses of condemned property require the use of the “reasonably possible” standard is misplaced. The Michigan Model Civil Jury Instructions provide a specific instruction governing rezoning that establishes a particular standard for cases in which the possibility of rezoning affects the likelihood of a prospective use. See M Civ JI 90.10; see also SJI2d 90.10. A similar instruction for other kinds of prospective uses does not exist, demonstrating that rezoning cases are unique in themselves. Indeed, rezoning relates only to the single contingency of whether the government agency will authorize rezoning, whereas assemblage relates to a chain of contingencies (whether several different landowners will sell to a single buyer in several independent transactions for a particular use and for a reasonable price within a reasonable period of time). The contingencies involved in any private assemblage make the proof of a private assemblage materially different from the proof of rezoning.
Defendants also argue that the trial court improperly allowed testimony that the city of Detroit would exercise the power of eminent domain to obtain the properties necessary to assemble land for casino sites if voluntary purchases were not made because eminent domain is not a lawful basis for acquisition of property for a private use. This Court reviews a trial court’s ruling regarding the admission of evidence for an abuse of discretion. Reed v Reed, 265 Mich App 131, 160; 693 NW2d 825 (2005).
Defendants argue that Mayor Archer testified that the city would have exercised the power of eminent domain to acquire the properties chosen by the city for casino development and that this testimony improperly suggested to the jury that no private market existed for casino development. In their only reference to the record, they state that “[t]he mayor, who identified himself in his direct examination as a former Supreme Court Justice, contended that the taking of property for such a use would ‘pass’ constitutional muster.”
Defendants assert that they filed a “Motion to Preclude Reference to Potential Use of Eminent Domain Had Casinos Been Sited in the Subject Areas” after the mayor’s deposition was taken. They do not cite the record, nor do they provide copies of the motion or the trial court’s ruling, the date of the hearing, or any explanation of the court’s ruling, other than to state that “the trial court denied this motion.” Thus, this issue is not properly presented for appellate review.
Nonetheless, the only reference made to the mayor’s testimony in defendants’ brief is to the cross-examination of the mayor by defense counsel. The mayor testified on direct examination, without objection, that the city might attempt to use eminent domain to assemble property for casino development. The following colloquy occurred during cross-examination by defense counsel:
Q. You’re an attorney, of course, aren’t you, Mr. Mayor?
A. Yes.
Q. And I believe you’re a former justice of the Michigan Supreme Court?
A. Yes.
Q. Isn’t it true that the courts might not allow the city to utilize the power of eminent domain to acquire property to accommodate casinos?
A. I think it’s unlikely because I think the predicate is set forth that the city can satisfy all of the principal requirements and meet the test that has been set forth by the Michigan Supreme Court.
Q. And that’s your opinion?
A. You asked for my opinion. I just gave it to you.
Clearly, it was defense counsel who solicited the mayor’s testimony to which defendants now object in an attempt to discredit the mayor’s testimony on direct examination.
On this record, without a copy of the motion, without a transcript of the motion hearing, and without a copy of the trial court’s ruling, and absent an objection to the testimony during the deposition, we cannot conclude that the trial court abused its discretion by admitting the testimony.
Finally, defendants argue that Mayor Archer gave improper opinion testimony in his deposition. Specifi cally, they contend that the mayor prognosticated about future legislative action when he answered hypothetical questions about whether he would or would not have allowed the development of casinos absent the taking for the stadiums project. In support of this argument, defendants cite only one unpublished decision, Nelson Drainage Dist v Book, unpublished opinion per curiam of the Court of Appeals, issued March 29, 1995 (Docket No. 152341), and a number of foreign cases cited in that case.
Defendants do not refer to the location in the record where any objection to the testimony was made and do not refer to any ruling by the trial court. This issue is therefore not properly perfected nor preserved and, therefore, we decline to address it.
DOCKET NOS. 251869 AND 251870
I. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
The stadium authority first argues that it was entitled to judgment notwithstanding the verdict (JNOV) because there was no issue of fact with regard to whether the highest and best use of defendants’ properties was for casino development. This Court reviews de novo a trial court’s ruling on a motion for JNOV In reviewing a trial court’s denial of a motion for JNOV this Court should examine the testimony and all legitimate inferences therefrom in the light most favorable to the nonmoving party. Attard v Citizens Ins Co of America, 237 Mich App 311, 321; 602 NW2d 633 (1999). “A trial court should grant a motion for JNOV only when there was insufficient evidence presented to create an issue for the jury.” Id.
In determining market value, one must determine the highest and best use of the property. St Clair Shores v Conley, supra at 462; In re Condemnation of Lands in Battle Creek for Park Purposes, supra at 419-420. “Highest and best use” means “the most profitable and advantageous use the owner may make of the property even if the property is presently used for a different purpose or is vacant, so long as there is a market demand for such use.” SJI 2d 90.09; see also Jack Loeks Theatres, supra at 618-619.
“The possibility of its use for all purposes, present and prospective, for which it is adapted and to which it might in reason be applied, must be considered.... Although a use reasonably likely to take place in the future can be considered the highest and best use, such future use becomes too speculative for consideration if the ‘future’ that is contemplated is beyond the ‘near future.’ To warrant admission of testimony as to the value for purposes other than that to which the land is being put,... the landowner must first show: (1) that the property is adaptable to the other use, (2) that it is reasonably probable that it will be put to the other use within the immediate future, or within a reasonable time, and (3) that the market value of the land has been enhanced by the other use for which it is adaptable.” [Jack Loeks Theatres, supra at 618-619, quoting 4 Nichols, Eminent Domain (3d ed), § 12B.12.]
The stadium authority’s argument that casinos would not have been approved for development on defendants’ properties is premised on its assertion that the undisputed evidence established that the mayor and the city council had complete authority over the location of casinos and that Archer unequivocally testified that he would not have approved casino development on defendants’ land because of the proximity to the stadiums, to a residential development, and to Woodward Avenue. But defendants presented evidence that while Archer also stated that he did not want casino development on the riverfront, he. ultimately changed his position and approved the development of casinos on the riverfront. Defendants also presented evidence of the city’s interest in locating casinos in the central business district, as well as of the interest of the Foxtown Group in developing a casino in the Foxtown area. In addition, defendants presented evidence that Foxtown had all the characteristics necessary and desirable for casino development. The jury is the judge of the credibility of witnesses and the truthfulness of their statements. It has the benefit of the testimony and its determination is final. The court may not disturb the jury’s determination of value as long as it is within the fair range of the testimony. In re Widening of Michigan Ave, 298 Mich 614; 299 NW 736 (1941). In each case, it was for the jury to weigh the testimony of the witnesses to determine the highest and best use of the property and the fair market value of the property.
II. MOTION FOR NEW TRIAL
The stadium authority argues that the trial court erred by denying its motion for new trial on several grounds. This Court reviews the trial court’s denial of a motion for new trial for an abuse of discretion. Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001).
A. GREAT WEIGHT OF THE EVIDENCE
The stadium authority’s sole argument with regard to this issue is that “for all the reasons discussed [in its argument concerning JNOV], the jury did not have a sound basis in fact for determining that the highest and best use of the Property was for use in connection with a casino.” As discussed in part I of this opinion, however, in light of the conflicting testimony on the question of “highest and best use,” the issue was properly left to the discretion of the jury.
B. EVIDENCE OF POSTTAKING SALES
The stadium authority argues that the trial court abused its discretion by allowing defendants’ expert appraiser, Michael Ellis, to testify about comparable sales made after the dates of the takings. The stadium authority’s arguments in Docket Nos. 251869 and 251870 are identical; in fact, the brief in No. 251869 contains the taking date and transcript references from No. 251870. Accordingly, in No. 251869, the stadium authority does not identify a transcript reference to an objection to the admission of the evidence. In No. 251870, the stadium authority did object to the admission of exhibits 9 and 10, showing comparable sales for casinos occurring in August 1997 and September 1997, one and two months, respectively, after the July 23, 1997, taking in No. 251870, and three and four months, respectively, after the April 4, 1997, taking in No. 251869.
In a pretrial ruling, the court ruled during a hearing on a motion to exclude “evidence that surfaced after the date of taking” that “anything that could have been known [to a willing buyer and willing seller] can be introduced... as substantive evidence.” The court ruled on reconsideration that the court would exclude posttaking evidence relevant to the issue of fair market value to the extent that (1) the evidence was not known in some form before the taking or (2) the evidence was not that of a comparable sale as determined by the totality of the circumstances. The court also ruled that the posttaking evidence may be admissible to impeach the credibility of witnesses.
Upon the stadium authority’s objection at trial, defense counsel noted that “this has been the subject of extensive discussion in the past. The Court has ruled that if they are relatively close in time, they are fair indicators of value.” The trial court stated that it “will be left for the jury to decide whether or not these are comparables.”
In a rather brief argument, the stadium authority argues that “post-date-of-taking valuations are totally irrelevant to determine just compensation,” that “the market value of the property must be determined in light of ‘all facts affecting the market value’ as of the date of taking,” and that “[subsequent values, impacted by subsequent events, are not relevant. ...” In support of these propositions, the stadium authority relies on four cases. In re Urban Renewal, Elmwood Park Project, 376 Mich 311; 136 NW2d 896 (1965), involved a dispute concerning when the taking occurred. The property owner argued that even though the condemnation action did not begin until 1962, the condemning authority had taken a series of steps designed to reduce the value of the property and thereby deprive the owner of just compensation. The trial court instructed the jury that it was to “ ‘find the value of the property at the time of taking, which is the time of your verdict and at no other time.’ ” Id. at 314 (emphasis omitted). On appeal, the property owner successfully challenged this instruction because it advised the jury that the time of taking was a time subsequent to when it actually occurred. Id. at 320. The Court did not consider the issue presented in this case, and the case presents no support for the proposition that evidence of posttaking sales is necessarily irrelevant.
Consumers Power I simply explained the definition of fair market value. It made clear that comparable land sales used by appraisers are not evidence, but are merely tools to help the appraisers arrive at their estimate of a fair price and value for the condemned property. Consumers Power I, supra at 745. In using such tools, an appraiser must employ comparable sales for the light they shed on the value on the date of taking.
The stadium authority also relies on Grand Rapids v Assfy, 44 Mich App 473; 205 NW2d 502 (1973), for the proposition that it is error for the trial court to admit evidence relating to the value of the property after the date of taking when the taking has changed its value. In that case, the Court held that photographs taken after the date of the condemnation and showing “damage which would indicate vandalism” were too prejudicial to admit. Id. at 477. The crucial element in Assfy was that posttaking evidence was not relevant because of changes since the date of the taking. The stadium authority merely states in conclusory fashion that the evidence in these cases “necessarily reflected the changes in the market caused by later significant events.” But the stadium authority fails to point out any basis for concluding that conditions changed.
Generally, a condemnation award is based on the fair market value at the time of the taking. In re Edward J Jeffries Homes Housing Project, 306 Mich 638; 11 NW2d 272 (1943). Evidence regarding value is to be liberally received. In re Memorial Hall Site (Detroit v Cristy), 316 Mich 215, 220; 25 NW2d 174 (1946). The determination of value is not a matter of formulas or artificial rules, but of sound judgment and discretion based on consideration of all relevant facts in a particular case. In re Widening of Bagley Ave, 248 Mich 1, 4; 226 NW 688 (1929).
In State v Heirs of Halemano Kapahi, 48 Hawaii 101, 111-112; 395 P2d 932 (1964), in addressing the issue of evidence of comparable sales, the court stated:
“They [the courts] usually assume that if property similar in other respects has been sold within a reasonable time of the taking, its sale price is relevant in determining the market value of property taken. As to what constitutes a reasonable time, a wide discretion is vested in the trial court and the appellate courts are reluctant to reverse the lower court’s determination as a matter of law. In the usual run of cases, a sale within a year is admitted as a matter of course. In any case, however, a finding that the evidence falls within a reasonable time does not imply that market conditions are precisely the same and it remains open to either party to dispute the significance of the sale by proving a change in market conditions. Generally speaking, the courts make no distinction between sales occurring prior to the taking and sales consummated after the date when title has vested in the condemner. They usually admit the latter type of evidence, sometimes qualifying their ruling by stating that the sale adduced must not be too remote in time or that there must be no drastic change in market conditions.”
The test is the similarity of the lands and the reasonableness of the time of sale in order to have any application to the value of the land taken at the time of condemnation, which is the sole question before the jury.
So long as it meets the test of comparability of commodity and propinquity, evidence of commerce in land after the date of condemnation has been held competent and admissible as bearing on the value of the condemned land at the time of the taking. [Citation omitted.]
The court then concluded:
From the foregoing authorities emerge the following applicable principles: Where evidence of a comparable sale or lease is offered, the trial judge may, in his discretion, admit or exclude it considering such factors as time of the transaction, size, shape and character of the comparable land, and whether there has been any enhancement or depression in value. It makes no difference whether the transaction occurred before or after the date of condemnation so long as it is not too remote a period of time and the land is reasonably comparable, having been neither enhanced or decreased in value by the project or improvement occasioning the taking. The weight to be given such evidence is for the jury. The trial judge’s determination as to admissibility or non-admissibility of such evidence will not be upset on appeal unless it is a clear abuse of discretion. See also: 18 Am.Jur., Eminent Domain, § 351; 29 C.J.S. Eminent Domain § 273; 30 C.J.S. Eminent Domain § 363; 4 Nichols on Eminent Domain (3d ed.), § 12.311(3); 6 Nichols on Eminent Domain (3d ed.), § 26.731(2); II Wigmore on Evidence (3d ed.), § 463. [Id. at 112-113.]
The reasoning in Heirs of Kapahi is logical and persuasive and not inconsistent with Michigan law. It is within the sound discretion of the trial court whether the sale of the property referred to took place within a reasonable time of the taking. See In re Jeffries, supra at 650. The trial court’s reasoning in the present cases follows the reasoning of the Heirs of Kapahi court. The trial court did not abuse its discretion by permitting the appraisal experts to utilize comparable sales occurring within one to four months after the dates of taking in determining fair market value.
The stadium authority also argues that the posttaking sales evidence was improperly utilized to impeach Archer’s testimony that he had the final decision regarding. where casinos would be located and that he would not have approved casino development on or near defendants’ properties. The trial court’s ruling admitting impeachment evidence provides no grounds xfor reversal. The trial court allowed posttaking evidence to be admitted solely on the question of whether Archer’s position was consistent.
C. ADMISSION OF THE MOULTON MEMO
The stadium authority argues that the admission of a document referred to as the “Moulton Memo” amounted to error requiring reversal because it was hearsay, was not authenticated, and no showing was made that Moulton was unavailable for trial. Despite a record request, a copy of the memo has not been provided to this Court.
At a hearing regarding defendants’ motion to admit the Moulton Memo, the stadium authority objected to admission of the memo, arguing that it was hearsay, that it was “second-generation,” and that the memo did not satisfy the requirements for admission as a business record. Defendants sought to admit the memo as a business record under MRE 803(6), and also under MRE 803(24) (equivalent circumstantial guarantee of trustworthiness).
Defendants relied on the deposition testimony of Brian Moulton, corporate director of gaming development for Harrah’s casinos. Harrah’s, together with the North American Gaming Group, had formed a partnership known as the “Foxtown Group” to explore the possibility of off-reservation Indian gaming in the city of Detroit. Moulton apparently testified that the memo was prepared in the course of his duties and that the memo was prepared from notes taken by him at an October 10,1994, meeting he attended to discuss casino development with Archer. Moulton’s memo contains the notes of a meeting with Archer, Moulton, the North American Gaming Group, and others interested in developing off-reservation Indian gaming. Moulton indicated that the memo was accurate when it was prepared while it was fresh in his mind. It was maintained in Harrah’s files in the ordinary course of business. Moulton sent the draft memo to an attorney for Harrah’s for review. The attorney offered comments. Moulton indicated that 12 people received a copy of the final memo, and that he never received feedback from any of them indicating that the memo was in any way inaccurate.
Defendants argued that the memo was not hearsay under the business record exception of MRE 803(6) and that the memo had equivalent circumstantial guarantees of trustworthiness under MRE 803(24). The trial court admitted the document under MRE 803(24).
MRE 803(24) is the “catch-all” exception to the hearsay rule. Evidence admitted under MRE 803(24) must satisfy four elements: “(1) it must have circumstantial guarantees of trustworthiness equal to the categorical exceptions, (2) it must tend to establish a material fact, (3) it must be the most probative evidence on the fact that the offering party could produce through reasonable efforts, and (4) its admission must serve the interests of justice.” People v Katt, 468 Mich 272, 279; 662 NW2d 12 (2003).
Considering the totality of the circumstances surrounding the memo, the memo was sufficiently trustworthy. See id. at 291 n 11. Factors that lead to this conclusion of reliability include that the memo was made from notes taken at the October 10, 1994, meet ing, and that the memo was drafted shortly after the meeting. The memo was prepared to memorialize the meeting. The memo was allegedly circulated to 12 persons, at least some of whom attended the meeting, and no one apparently notified Moulton of any inaccuracies in the memo. Although the attorney may have reviewed the memo before its circulation, there is no indication that any comments made by the attorney when reviewing the memo were incorporated into the memo. The memo tended to establish what was discussed at the meeting and was the most probative documentary evidence of what was discussed at the meeting. And the general purpose of the hearsay rules, as well as the interests of justice, was best served by the admission of the memo. The trial did not abuse its discretion in ruling that the memo was admissible under MRE 803(24).
Even if the trial court erred by admitting the Moulton Memo, any error was harmless. Evidence regarding the meeting with Archer was presented to the jury through the testimony of others, including Archer and members of the Foxtown Group. The information contained in the memo was placed before the jury through the testimony of these witnesses. Thus, the memo was merely cumulative evidence. Improper admission of evidence is harmless if it is merely cumulative to other properly admitted evidence. Sackett v Atyeo, 217 Mich App 676, 685; 552 NW2d 536 (1996).
D. ADMISSION OF EVIDENCE THAT TWO WITNESSES HAD A PREVIOUS AFFILIATION WITH PLAINTIFF’S COUNSEL
The stadium authority suggests that defendants were improperly permitted to introduce evidence that Archer and another witness for the stadium authority were previously affiliated with the law firm represent ing the stadium authority. It contends that “[t]his evidence was not relevant to the value of the Property or its highest and best use” and should have been excluded under MRE 403. Without any citation of the record or elaboration, the stadium authority asserts that “[d]efendant[s] insinuated, without any basis in fact, that the witnesses were less believable because of their former association.” However, it is always permissible upon cross-examination of an adverse witness to pursue facts that may bear on a witness’s bias. People v Layher, 464 Mich 756, 768; 631 NW2d 281 (2001); Hayes v Coleman, 338 Mich 371, 381; 61 NW2d 634 (1953). A witness’s credibility is a primary question for the jury to evaluate, and questions eliciting bias, prejudice, or interest are appropriately allowed within the trial court’s discretion. The trial court did not abuse its discretion by permitting defendants to question the witnesses about their affiliation with the stadium authority’s counsel.
E. THE STADIUM AUTHORITY’S REQUESTS REGARDING ORDER OF PROOF AND SPECIAL JURY INSTRUCTIONS AND JURY INTERROGATORIES
The stadium authority alleges error in the trial court’s rulings requiring the stadium authority to present its proofs first and rejecting several special jury instructions “addressing the connection between the range of testimony and the jury’s award of compensation, speculative theories, and the burden of proof.” It contends that the order of proofs suggested to the jury that the stadium authority carried the burden of establishing just compensation and that the instructions given to the jury did not adequately apprise it of its need to make an award based on facts known to a buyer as of the date of taking. However, the stadium authority does not make reference to the transcript and does not elaborate on its assertions. The stadium authority does not set forth the proposed jury instructions and does not explain why the standard jury instructions as given by the court were inadequate.
MCL 213.52 of the Uniform Condemnation Procedures Act, MCL 213.51 et seq., provides that “[a]ll.. . court rules applicable to civil actions shall apply to condemnation proceedings except as otherwise provided in this act.” MCR 2.507 governs trials. MCR 2.507(B) states that “[ujnless otherwise ordered by the court, the plaintiff must first present the evidence in support of the plaintiffs case.” A review of the record reveals that the trial court informed the jury of the order that proofs would be presented. Nothing in the instructions suggested that the order of proofs was connected to the burden of proof.
Additionally, the court instructed the jury that “the market value of the property must be determined as of [April 4, 1997, in No. 280169 and July 23, 1997, in No. 280170]” and that just compensation must be based on “what a prudent buyer could or would have known as of the date of taking.” The court also instructed the jury not to consider posttaking evidence substantively:
Some testimony was received as to actions which occurred after the date of taking on the location of casinos. I instruct you that the postdate of taking activity could not have been known by a prudent buyer before the date of taking. You may consider postdate of taking evidence when judging the credibility of witnesses.
Thus, the stadium authority’s arguments as presented are without factual support and are without merit.
E THE PRESENCE OF A TAINTED JUROR (DOCKET NO. 251869 ONLY)
The stadium authority asserts that it is entitled to a new trial on the basis of juror bias or misconduct, MCR 2.611(A)(1)(b). On the third day of trial, a juror sent a note to the trial court indicating that she had personal knowledge of an offer to purchase the dilapidated Women’s City Club in Detroit. The trial court noted that the juror had no reason to suspect that the proofs in this case would focus on the city club property. The court invited counsel to question the juror. The stadium authority’s counsel asked whether, if there were testimony regarding an offer for the city club, it would affect her view of the case. The juror responded, “Yes.”
Upon questioning by the court, the juror indicated that she would try to comply with the jury instruction requiring a witness to disregard any information about a particular case and to decide the case on the basis of the evidence introduced in court. After an off-the-record discussion, counsel stipulated that there was no objection to the continuation of the juror on the jury and that no basis had been presented to the court on which she could have been excused.
The following Monday, counsel for the stadium authority requested to withdraw his earlier stipulation and urged the court to excuse the juror. The trial court, noting that no testimony had been presented about the Women’s City Club, concluded that there was no failure to disclose:
There was considerable testimony'about the YMCA and considerable testimony regarding DCL. And the witnesses have indicated offers that were made on that property by option or otherwise.
The queation [sic] that was asked of the jurors during voir dire were questions that had to do with whether or not they owned any property in the area and whether or not they knew where the Fox Theater was and what the area was. No juror was ever asked if they had been inside buildings in close proximity. They were asked about Second City and about the Fox Theater. Therefore, this Court cannot find that the juror failed to disclose any information.
There being no failure to disclose, and, frankly, no inquiry, specific inquiry made even to other jurors, the Court would not find that — find that this jury [sic] has committed any even unintentional error in not disclosing, and the information is that she is concerned about the information that has absolutely nothing to do at this point with this case.
The jurors were not questioned regarding whether they had any knowledge of the price of any buildings sold in the central business district or whether they knew details about the sale or purchase of property in the downtown area. There is no indication that the juror failed to disclose information asked of her during voir dire. Because the juror did not fail to disclose or otherwise fail to answer truthfully, the stadium authority cannot demonstrate that it would have challenged for cause or otherwise dismissed the juror. Further, the record is not sufficient to make a finding that a challenge for cause would have been successful in light of the juror’s statement that she could decide the case without considering the information. In addition, the stadium authority merely speculates that the “jury’s verdict reflects this personal knowledge, and, as such, the foreperson’s prejudice apparently infected the entire jury.” There is no indication that the juror was biased as a result of her knowledge or that she shared information regarding the city club sale with the other members of the jury.
G. THE admission of evidence regarding FAIR MARKET VALUE (DOCKET NO. 251869 ONLY)
Without citation of the record to establish that this issue is preserved, the stadium authority asserts that it is entitled to a new trial because of the erroneous admission of testimony of casino gaming expert Robert Kleiman through the testimony of appraiser Ellis. The stadium authority contends that Kleiman’s report was inadmissible and, therefore, it was error for Ellis to rely on the report. A review of the record reveals that Kleiman never testified at trial and that his deposition was not admitted. A review of Ellis’s testimony reveals that Ellis never testified that he relied on Kleiman’s work in forming his opinion; indeed, Kleiman’s name is never mentioned. Rather, it appears that Ellis likely reviewed Kleiman’s report regarding property values in other gaming cities as one of the 10,000 to 15,000 documents he reviewed in an attempt to determine fair market value. The record does not factually support the stadium authority’s argument. Nonetheless, the stadium authority concedes that under the version of MRE 703 in effect at the time of trial, it was not necessary that the facts or evidence underlying an expert’s opinion be admitted or even admissible. Swanek v Hutzel Hosp, 115 Mich App 254, 260; 320 NW2d 234 (1982). This issue is without merit.
H. THE ADMISSION OF EVIDENCE OF BUSINESS INTERRUPTION DAMAGES (DOCKET NO. 251870 ONLY)
The stadium authority contends that the trial court erred by allowing defendants James Wingate, Sr.; Alzalia City Cab Company; Transport Systems Company; and City Cab Company to introduce evidence concerning damages related to lost profits in support of their claim for business interruption damages.
Damages resulting from business interruption are compensable in condemnation cases, provided the damages can be proven with a reasonable degree of certainty. Detroit v Hamtramck Community Fed Credit Union, 146 Mich App 155, 158; 379 NW2d 405 (1985). But damages related to lost profits are not recoverable in a business interruption case. See In re Slum Clearance, 332 Mich 485, 496; 52 NW2d 195 (1952). The stadium authority does not dispute that relocation costs are proper business interruption damages. It contends, however, that ongoing costs incurred as a result of the new location, such as the increased cost of defendants’ ongoing van operations because of the new location and the increased operations costs of defendants’ new site, simply reduce the profitability of defendants’ businesses and constitute ongoing claims of lost profits.
In Detroit v Larned Assoc, 199 Mich App 36; 501 NW2d 189 (1993), the expert witness testified that because of an increase in rent, an increase in advertising expenses, and a steady decline in sales revenue, defendant Buckland-Van Wald would suffer $4,888,000 in business interruption damages as a result of the condemnation. The expert arrived at this figure by projecting Buckland-Van Wald’s losses over the 15-year period of its new lease and reducing the amount to present value. On appeal, this Court held that the expert’s testimony regarding expenses such as rent and advertising was proper and that the jury was free to accept or reject it. Id. at 41. However, with regard to testimony regarding the decline in sales revenue, this Court stated that
we agree with the city that the bulk of [the expert’s] testimony concerning damages related to lost profits. Whether couched in terms of a decline in sales, loss of income, or loss of earnings, we think it clear that BucklandVan Wald’s claim for damages was premised on its alleged inability to achieve its former level of profitability as a result of being forced to relocate. [Id. at 41-42].
In the present case, Thomas Czubiak testified that defendants would incur increased costs as a result of the need to travel to and from a location further away from the location where the bulk of defendants’ business occurred. According to Czubiak, each van run would result in increased labor costs and increased van operation costs that were not incurred when defendants operated the businesses from their former location. He calculated total business interruption costs, including increased rent and advertising, at $179,181. The bulk of Czubiak’s testimony regarding damages related to labor costs and increased van operation costs that are a result of being forced to relocate, damages that clearly relate to lost profits and not business interruption damages. Larned Assoc, supra. This testimony should not have been presented to the jury. We therefore vacate the award for business interruption damages and remand this matter to the trial court for retrial on the business interruption theory only.
Docket Nos. 251799, 251800, 251801, 251802, and 251869 are affirmed. Docket No. 251870 is affirmed in part, reversed in part, and the matter is remanded. Jurisdiction is not retained.
MCL 213.55(1) requires a condemning agency, before initiating negotiations for the purchase of property, to make a “good faith written offer” based on the agency’s appraisal of just compensation for the property.
“ ‘Highest and best use’ is a concept fundamental to the determination of true cash value. It recognizes that the use to which a prospective buyer would put the property will influence the price which the buyer would he willing to pay.” Edward Rose Bldg Co v Independence Twp, 436 Mich 620, 633; 462 NW2d 325 (1990).
An acre of land is 43,560 square feet.
Because these appeals involve five separate lengthy trials, specific facts will be discussed where relevant to the issues raised on appeal.
In modifying the case, the Supreme Court vacated the award of attorney fees.
See Dep’t of Transportation v Haggerty Corridor Partners Ltd Partnership, 473 Mich 124, 136-138; 700 NW2d 380 (2005).
A majority of the Supreme Court affirmed this Court’s decision in Consumers Power I without any material comment on or alteration of this Court’s ruling on how the jury should have been instructed. Consumers Power Co v Allegan State Bank, 388 Mich 568, 574; 202 NW2d 295 (1972) (Consumers Power II). Accordingly, this Court’s statement of the law regarding jury instructions on assemblage is authoritative.
In Emmons, the court stated that “the plaintiffs undeveloped water power here may be considered in its relation to the whole of any mooted combination, but only to the extent that the probability of such a union
The trial court’s ruling was likely based on Poletown Neighborhood Council v Detroit, 410 Mich 616; 304 NW2d 455 (1981), in which the Court held that the condemnation of land in Poletown to be conveyed to General Motors Corporation for the construction of new assembly plants was for a public purpose.
Further, the mere fact that the case on which the mayor apparently relied to support his opinion that eminent domain was available for use in siting casinos, Poletown Neighborhood Council v Detroit, 410 Mich 616; 304 NW2d 455 (1981), has been overruled by Wayne Co v Hathcock, 471 Mich 445; 684 NW2d 765 (2004), is not relevant in this case.
Nonetheless, we disagree with defendants’ labeling of the mayor’s testimony as “prognostication about future legislative action.” The mayor’s testimony regarding the siting of casinos was fact-based and did not involve any prognostication about future municipal legislation, because it was the mayor who recommended casino locations to the city council. Moreover, in light of our resolution, we need not address the cross-appeals.
Foxtown is in the general area of the central business district.
The trial court apparently ruled that evidence of posttaking comparable sales and valuations could he used to impeach witnesses and to confirm an expert’s valuation as of the date of taking.
A copy of the deposition has not been provided to this Court.
Although not entirely clear, it also appears that the trial court admitted the memo under MRE 803(6).
A Michigan standard jury instruction regarding condemnation, SJI2d 90.03, now M Civ JI 90.03, recommended that no instruction on the general burden of proof be given in condemnation cases. The comment to SJI2d 90.03 stated that “[tjhere is strictly speaking no general burden of proof applicable to all issues in all condemnation proceedings.” (Emphasis in original.) The comment specifically stated that neither party has the burden of proof on the issue of damages.
The stadium authority also states, without any argument or authority, that “the instructions also failed to instruct the jury on the issues of. . . speculation, and assemblage.” This Court need not consider this argument that is not properly presented.
In light of our resolution, we need not address the cross-appeals. | [
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Saad, J.
The trial court entered judgment in favor of plaintiffs against defendant. Defendant appeals the judgment, and we reverse and enter judgment in favor of defendant.
I. NATURE OF THE CASE
When a citizen claims that a governmental land-use regulation, or its regulatory implementation, adversely affects the value of his or her property, and seeks just compensation under the Taking Clause of the Fifth Amendment, our courts must decide whether the challenged governmental action, and its consequent effect on private property, constitutes a “regulatory taking” under federal and state taking jurisprudence.
More specifically, when, as here, the government regulates land use — as opposed to taking physical possession of land — and where, as here, the challenged regulation is stipulated to be for the public good, our limited role is to answer the specific constitutional question: where implementation of a valid land use regulation negatively impacts a private citizen’s valuable property rights, does the Taking Clause require compensation? To answer this question, our Supreme Court has instructed us to examine the United States Supreme Court’s seminal decision in Penn Central Transportation Co v New York, 438 US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978).
The United States Supreme Court in Penn Central laid out a three-factor test for courts to apply to answer this important constitutional question:
[1] The economic impact of the regulation on the claimant and, particularly, [2] the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is [3] the character of the governmental action. A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good. [Id. at 124 (citations omitted).]
The taking jurisprudence articulated by the United States Supreme Court in Penn Central and its progeny requires that our courts consider the following factors in deciding whether a “regulatory taking” claim is compensable: (1) what is the average reciprocity of advantage, in other words, is the aggrieved property owner singled out to pay for the public good, or is the land-use regulation so universal and ubiquitous that the benefits and burdens of the land-use regulation fall relatively equally among all, including the complaining party; (2) what use could the landowner reasonably expect to make of the land given the state of the land-use regulations at the time of acquisition (as part of this inquiry, it is necessary to take into account whether the landowner knew, or should have known, of the land-use regulation at the time of purchase); and (3) did the specific, challenged application of the land-use regulation leave the property owner valuable land use rights or did it instead render the land virtually worthless?
Stated another way, if the land-use regulation, like traditional zoning and wetland regulations: (1) is comprehensive and universal so that the private property owner is relatively equally benefited and burdened by the challenged regulation as other similarly situated property owners, and (2) if the owner purchased with knowledge of the regulatory scheme so that it is fair to conclude that the cost to the owner factored in the effect of the regulations on the return on investment, and (3) if, despite the regulation, the owner can make valuable use of his or her land, then compensation is not required under Penn Central.
Here, plaintiffs claim that the denial by the Department of Environmental Quality (DEQ) of a permit to fill in the wetland on their property constitutes a regulatory taking. Wetland regulations are, like zoning regulations, all but ubiquitous. At the federal level, the Clean Water Act (CWA) provides for the regulation and protection of wetlands, while Michigan’s wetland protection act (WPA) serves the same purpose for this state. Our Legislature made clear that it enacted the WPA to benefit all the people of this state. The act provides that “[t]he legislature finds that. . . [w]etland conservation is a matter of state concern since a wetland of 1 county may be affected by acts on a river, lake, stream, or wetland of other counties.” MCL 324.30302(1)(a).
Clearly, all people, including property owners, are the intended beneficiaries of the regulation of wetlands. Like zoning regulations, wetland regulations place a burden on some property owners, but this burden ultimately benefits all property owners, including those who claim they are unfairly burdened.
As we will discuss in detail later, we reject plaintiffs claim because (1) wetland regulations are, much like zoning regulations, comprehensive, universal, and ubiquitous, and provide an “average reciprocity of advantage” for all property owners, including plaintiffs; (2) plaintiffs have developed and retain the ability to develop a significant amount of their property, and thus plaintiffs’ property retains a significant value even after the permit denial; and (3) plaintiffs are experienced commercial land developers who clearly had or were on notice of the wetland regulations promulgated under the WPA, and, therefore, plaintiffs’ distinct, investment-backed expectations would reasonably have been tempered with the knowledge that their development of the property would be restricted because of the presence of wetlands.
II. FACTS AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
This case was originally filed in the Court of Claims on December 29, 1988. Plaintiffs, K & K Construction, Inc., the J.EK. Company, and Resorts and Company, alleged that defendant, then the Michigan Department of Natural Resources (DNR) (currently the Department of Environmental Quality), had effected a regulatory taking of plaintiffs’ property when it designated part of that property as wetland and denied a permit to fill in the wetland and build on the property. Following a nonjury trial, the trial court entered judgment in favor of plaintiffs. The trial court found that the DEQ’s failure to issue the requested permit constituted a categorical taking of plaintiffs’ property.
The DEQ appealed to this Court, which, as it turns out, erroneously affirmed the trial court’s judgment. K & K Constr, Inc v Dep’t of Natural Resources, 217 Mich App 56; 551 NW2d 413 (1996) (K & K I), rev’d 456 Mich 570 (1998). The DEQ then appealed to our Supreme Court, which reversed this Court’s decision and the trial court’s judgment. K & K Constr, Inc v Dep’t of Natural Resources, 456 Mich 570; 575 NW2d 531 (1998) (K & K II). Our Supreme Court held that (1) the trial court erred when it considered only the parcel of land that contained wetland (parcel one) and did not include two other contiguous parcels of land owned by plaintiffs (parcels two and four) and (2) plaintiffs were not deprived of all economic use of the land and thus there was no “categorical taking.” Id. at 586. Further, our Supreme Court remanded to the trial court with instructions (1) to include the value of the two other parcels, (2) to make a finding of fact regarding whether a third parcel (parcel three) should be included in the value, and (3) to apply the balancing test articulated by the United States Supreme Court in Penn Central to determine whether plaintiffs proved their regulatory taking claim. K&K II at 588.
On remand, plaintiffs J.F.K. Company and Resorts and Company were succeeded by J.F.K. Investment Co, LLC (JFK). The parties stipulated that parcel four was not to be included in the trial court’s determination, and the trial court held that parcel three would be included with parcels one and two when it determined whether a taking had occurred because of the wetland regulation. The trial court then held that under Penn Central, a taking had occurred and entered judgment in favor of plaintiffs.
The DEQ once again has appealed to this Court, and plaintiffs have cross-appealed.
B. FACTUAL HISTORY
1. OVERVIEW
This case involves four contiguous parcels of land with a total area of approximately eighty-two acres in Waterford Township in Oakland County (parcels one through four). In 1988, a partnership was formed between J.EK. Company and Resorts and Company, with each holding a fifty percent interest, for the purpose of developing the land in issue. At some point, plaintiff J.F.K. Investment Company, LLC, replaced J.F.K. Company and Resorts and Company as a successor in interest. Plaintiff K & K Construction is a Michigan corporation in which Kosik owns fifty percent of the shares of stock.
Parcel one is zoned for commercial use, consists of approximately fifty-five acres, and approximately twenty-seven of those acres are wetland. Parcel two consists of sixteen acres directly south of parcel one and has a small area of wetland. Parcel three is 9.34 acres of land directly south of parcel two, with no wetland. Parcel four is 3.4 acres of land bordering the south side of parcel one and the east side of parcel two, and it has no wetland. Parcels two, three, and four are zoned for multiple-family housing. The parcels are bounded by Highland Road (M-59) on the north, North Oakland Drive on the east, Hospital Road on the west, and Pontiac Lake Road on the south.
Plaintiffs began work on a “C. J. Barrymore’s Restaurant” in 1988, which was to occupy forty-two acres on parcel one and to consist of a restaurant and a sports complex, including a baseball diamond. Waterford Township issued plaintiffs a cease-and-desist letter that stated that part of parcel one contained wetland and that plaintiffs would need to get a permit from the DEQ. Plaintiffs then filed a permit application with the DEQ dated May 28, 1988, which was received by the DEQ on June 21, 1988. On June 7, 1988, plaintiffs filed an “administrative complaint” with the DEQ and sought a ruling from the department that would remove a “designation of wetland” from plaintiffs’ property. Waterford Township sent a letter to plaintiffs informing them that their permit for lowland filling would be denied pending the outcome of the DEQ permit process. In November 1988, the DEQ issued a letter that denied plaintiffs’ permit application. Plaintiffs filed this ac tion in December 1988.
In May 1990, plaintiffs filed another application for a permit, under what is called the “Goga Plan.” The Goga Plan would have allowed plaintiffs to fill three acres of wetland, convert five acres of “upland” property to wetland, and develop the upland ring around the wetland. This permit application was also denied. At some point, both an office building for J.F.K. Investment Company and a Ram’s Horn Restaurant were built on upland portions of parcel one.
This matter was originally tried in December 1991, and the only issue before the trial court was whether the permit denials constituted a taking of plaintiffs’ property. The trial court held that only parcel one was relevant to its analysis of whether a taking had occurred and concluded that the permit denials had rendered the parcel, which was worth approximately $6 million before the permit denial, completely worthless after the denial. Having found a categorical taking, the trial court ordered the DEQ to compensate plaintiffs for this $6 million loss in value.
After the trial court’s ruling, the DEQ opted to mitigate the loss under MCL 324.30323, which requires a trial court to give the DEQ the option, once a taking has been found, to mitigate its damages by doing one of the following: compensate the property owner for the lost value, purchase the property, or “[m]odify its action or inaction with respect to the property so as to minimize the detrimental affect [sic] to the property’s value” (emphasis added). The DEQ chose to reverse its previous decision and issue the Goga permit. The trial court entered judgment in favor of plaintiffs against the DEQ for a “temporary taking” of the land that was subsequently allowed to be developed under the Goga Plan for the full value of the wetland on parcel one. The judgment was for approximately $450,000 plus interest for the alleged temporary taking, and approximately $3.25 million plus interest for the alleged wetland taking. At the original trial, the trial court took into account the mitigating effect of the DEQ’s issuance of the Goga permit when it calculated the amount of the judgment.
The DEQ appealed the trial court’s ruling to this Court. Another panel of this Court affirmed the trial court’s judgment and agreed with the trial court that plaintiffs had been denied all economically beneficial use of their land, which resulted in a categorical taking. Our Supreme Court reversed, and reasoned (1) that the trial court erred in only considering parcel one and in not including parcels two and four in its valuation of plaintiffs’ property, and (2) in considering parcels one, two, and four, “it is clear that there was not a categorical taking. . . .” The Court then remanded to the trial court, and instructed it to calculate the total value of the property using parcels one, two, and four, and to make a finding regarding whether parcel three should be considered part of the “denominator parcel.” Additionally, the Court held that, while the record was not clear regarding whether the trial court had failed to include the value of the two developed portions of parcel one in its valuation, there was no reason for the trial court not to do so. The Court then held that, once the trial court determined whether parcel three should also be included, and the total value including all relevant parcels (either parcels one, two, and four, or all four parcels) was calculated, the trial court was to apply the three-part balancing test from Penn Central to determine whether the DEQ’s administrative decision had constituted a regulatory taking. After plaintiffs’ unsuccessful petition for certiorari in the United States Supreme Court, the case returned to the trial court.
Unsurprisingly, during trial, plaintiffs and the DEQ offered conflicting deposition testimony relating to the value of the property. At the first trial, plaintiffs presented the testimony of Edward Cheyz, who is not a licensed real estate appraiser. He testified that parcél one was valued at approximately $5.94 million before the denial of the permit. The trial court accepted this figure while rejecting the testimony of the DEQ’s appraiser. As discussed previously, the trial court found the value of these parcels to be zero after the first trial. On remand, plaintiffs offered the deposition testimony of James Mawson, a licensed appraiser, who initially testified that the pre-denial value of $5.94 million calculated by Cheyz was correct. This figure apparently represented a figure of $1.50 per square foot used by Cheyz in calculating the total value. However, on cross-examination, Mawson testified that he did not believe that Cheyz would be correct in valuing wetland at $1.50 per square foot and that a more appropriate figure might be $0.05 per square foot of wetland.
On the other hand, the DEQ offered its own expert testimony and evidence in an attempt to show that the property’s “before” value had been overestimated and that its “after” value had been grossly underestimated. The DEQ also submitted evidence that, contrary to plaintiffs’ arguments that the non-wetland (upland) portion of parcel one was too shallow for development, other similar “shallow” lots had been developed in the area.
Regardless, the trial court, in its opinion and order issued after the second trial, stated incorrectly that, because our Supreme Court “did not disturb” its initial valuation of parcel one, it would reaffirm that value, and the trial court again concluded that parcel one had no value after the denial of the permit. The trial court did so despite the fact that our Supreme Court held that a categorical taking had not occurred. K&KII, supra at 585-587. Furthermore, the trial court reaffirmed its finding that parcel one had zero value despite the existence of the Ram’s Horn and the JFK office building, and despite the fact that our Supreme Court stated that it saw “no reason for [the office building and the Ram’s Horn] to be excluded from the taking analysis. They were both part of parcel one ... and neither was sold or developed before the enactment of the regulations in question.” K&KII, supra at 584 n 9. It further concluded that the value of parcels two and three, which totaled over $3 million, was not enough to offset this loss, and that the total value before the denial was just over $9 million, while the value after the denial was just over $3 million, representing a sixty-seven percent loss. The trial court then briefly addressed each of the three Penn Central factors before concluding again that the DEQ’s permit denial constituted a taking. The trial court’s opinion stated that it would reaffirm its previous award.
At a hearing on plaintiffs’ posttrial motion for entry of judgment, the trial court found that the DEQ’s issuance of the Goga permit had not been a valid or effective way of mitigating its damages as required by MCL 324.30323 and entered judgment in September 2002 against the DEQ in the amount of $16,486,228, which included compensation for a taking of plaintiffs’ property in the amount of $5.9 million, the value the trial court allocated to parcel one, together with interest, costs, and attorney fees. The judgment further imposed interest on the entire judgment, including fees and costs.
Plaintiffs moved the trial court to reconsider the judgment rate of interest. They argued that the statutory rate of interest was insufficient, because plaintiffs were experienced real estate developers who could easily earn several times greater returns on their investment. The trial court rejected this argument and denied plaintiffs’ motion for a greater rate of interest. Plaintiffs have filed a cross-appeal to challenge the denial of this motion.
2. DAMAGES AND THE GOGA PERMIT
After the first trial, the DEQ faced a judgment in excess of $6 million for what the trial court wrongly held to be a categorical taking of plaintiffs’ property. As permitted by statute, MCL 324.30323, the DEQ decided to mitigate these damages and opted to issue the Goga permit pursuant to the permit application submitted by plaintiffs. The trial court then issued a written opinion that acknowledged that the DEQ’s election of this option had reduced the amount of. the taking award to approximately $3.25 million. The trial court additionally awarded approximately $450,000 for the temporary taking of plaintiffs’ property up to the issuance of the Goga permit.
However, plaintiffs did not build on parcel one as they were entitled to do pursuant to the Goga permit. Instead, plaintiffs insisted that the DEQ’s appeal of the nearly $4 million judgment against it also constituted an appeal of the permit and that the DEQ intended to revoke the permit if it prevailed on appeal. The DEQ sent plaintiffs a letter in which it stated that it did not believe that there should have been a judgment entered against the DEQ, and, therefore, that there should not have been damages assessed that the DEQ needed to mitigate by issuing the Goga permit. More importantly, however, the DEQ stated that the permit was valid and could be used by plaintiffs to begin development of parcel one. Yet plaintiffs continued in their assertion that the permit was subject to revocation because of the DEQ’s appeal.
As stated above, after this Court heard this case, and after our Supreme Court reversed the decisions of the trial court and this Court, the case returned to the trial court after the United States Supreme Court denied a writ of certiorari. In the meantime, the Goga permit expired. After the case returned to the trial court in 1999, plaintiffs attempted to amend their complaint to raise claims in relation to the Goga permit and their claim that the permit was essentially an empty gesture. And the trial court originally, correctly, rejected plaintiffs’ argument and stated that plaintiffs could not raise new claims centered on the DEQ’s alleged failure to comply with the trial court’s judgment. The trial court said that, instead of waiting six years to try and bring new claims, plaintiffs should have gone before the trial court to address the alleged noncompliance.
Notwithstanding plaintiffs’ attempt to mischaracterize their rights and the DEQ’s conduct regarding the Goga permit, the DEQ reissued the expired Goga permit for five years. Nonetheless, plaintiffs continued to insist that the Goga permit was essentially worthless because the DEQ could revoke it if it prevailed on appeal. Plaintiffs made this assertion despite yet another letter from the DEQ in which it was stated that the DEQ had no intention of revoking the permit regardless of the outcome of the case. Instead of developing the land as they clearly could have under the newly reissued permit, plaintiffs continued to maintain that the Goga permit was an empty gesture. On the other hand, the DEQ maintains that plaintiffs’ actions are not motivated by a fear that the Goga permit might be revoked as much as they are by a desire to continue to accrue damages related to the alleged inability to develop their land.
After the second trial, the trial court reversed its initial decision and agreed with plaintiffs regarding the Goga permit. The trial court issued a brief opinion in which it stated that it essentially was reaffirming its first judgment. After the trial court issued its opinion, plaintiffs moved for the entry of an order of judgment that included an award for the full value of parcel one. During a hearing on the motion, the DEQ reminded the trial court of the reissuance of the Goga permit and asked the trial court to take this into account, pursuant to MCL 324.30323, when it entered judgment, as the court had done after the first trial. However, this time, the trial court erroneously refused to take the Goga permit into account. Indeed, during the hearing, the trial court stated, in response to the DEQ’s request, that it “[found] the state’s handling of the Goga permit personally offensive.”
Ultimately, the trial court entered judgment in the amount of the entire value of parcel one, approximately $5.94 million, plus interest, costs, and attorney fees, which resulted in a total judgment in excess of $16 million, with additional interest payable from the date of judgment at the statutory rate. On appeal, plaintiffs continue to assert that the Goga permit’s issuance by the DEQ was a hollow gesture that did not, in reality, mitigate any damages, while the DEQ insists that plaintiffs’ claims that the permit is ineffective constitute a pretense for an attempt to accrue further damages.
III. STANDARDS OF REVIEW
We review a trial court’s findings of fact for a clear error and disturb the trial court’s findings only where we are “left with the definite and firm conviction that a mistake has been made.” Essexville v Carrollton Concrete Mix, Inc, 259 Mich App 257, 265; 673 NW2d 815 (2003).
Whether the government has effected a taking of one’s property is a constitutional issue, US Const, Am V; Const 1963, art 10, § 2, which we review de novo. People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999).
IV ANALYSIS
A. TRIAL COURT’S COMPLIANCE WITH THE SUPREME COURT’S REMAND ORDER
The DEQ correctly asserts that the trial court disregarded the specific remand instructions of our Supreme Court. “ ‘The power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court.’ ” People v Fisher, 449 Mich 441, 446-447; 537 NW2d 577 (1995) (citations omitted); Waatti & Sons Electric Co v Dehko, 249 Mich App 641, 646; 644 NW2d 383 (2002). When an appellate court remands a case without instructions, a lower court has the “same power as if it made the ruling itself.” Fisher, supra at 447. However, when an appellate court gives clear instructions in its remand order, it is improper for a lower court to exceed the scope of the order. Waati & Sons, supra at 646. “It is the duty of the lower court or tribunal, on remand, to comply strictly with the mandate of the appellate court.” Rodriguez v Gen Motors Corp (On Remand), 204 Mich App 509, 514; 516 NW2d 105 (1994).
1. THE TRIAL COURT’S FINDINGS OF FACT ON REMAND REGARDING THE VALUE OF THE DENOMINATOR PARCEL
During the first trial, the trial court considered only the value of parcel one in making its decision whether the DEQ’s denial of a wetland permit constituted a taking. The trial court held that the DEQ’s action deprived parcel one of all its economic value and that the DEQ had taken plaintiffs’ property. Our Supreme Court, however, held, consistently with Lucas v South Carolina Coastal Council, 505 US 1003; 112 S Ct 2886; 120 L Ed 2d 798 (1992), that a categorical taking had not occurred. K & K II, supra at 585-587. The Court then remanded the case to the trial court and clearly directed the trial court to make a new finding of fact with respect to the value of plaintiffs’ property and to include parcel two with parcel one when doing so. Furthermore, the trial court was clearly directed to make a finding of fact regarding whether parcel three should also be included in its analysis. Id. at 588. After the trial court made these new findings of fact, the trial court was to apply the three Penn Central factors, as mandated by our Supreme Court, to determine whether the DEQ’s action here constituted a taking.
Unfortunately, on remand, the trial court failed to adhere to the Supreme Court’s mandates. The trial court did make a finding of fact that parcel three should be included in its analysis during the new trial. Furthermore, the trial court purportedly considered parcels one, two, and three together in its analysis, as our Supreme Court’s decision required. However, the court rationalized its ruling by contending that our Supreme Court had not specifically disturbed its valuation of plaintiffs’ property before and after the permit denial, simply reaffirmed its finding that the value of parcel one had diminished from nearly $6 million to zero. The court did this despite the fact that our Supreme Court essentially foreclosed any possibility of a finding that parcel one had a value of zero:
Even if we did limit our analysis to parcel one, the Court of Appeals conclusion that a categorical taking had occurred is not supported by the record. In its first opinion, the trial court stated: “While it is true that some financial value will remain, this Court finds that what little economic value remains is but a small fraction of the economic value the property would have had if all of it could be developed.” (Emphasis added.) Thus, while the regulations may have diminished the value of plaintiffs’ land, this diminution in value would not give rise to a categorical taking. ... [K & K II, supra at 587 n 13 (emphasis in the original).]
After a careful review of the trial proceedings, it is clear that the trial court failed to include the values of a Ram’s Horn Restaurant and plaintiff JFK’s office building, both located on upland portions of parcel one. Our Supreme Court stated that it saw “no reason for [the office building and the restaurant] to be excluded from the taking analysis. They were both part of parcel one as originally purchased, and neither was sold or developed before the enactment of the regulations in question.” Id. at 584 n 9. The evidence presented during the trial after remand shows that the Ram’s Horn and the JFK office building have a combined value of at least $1 million. Furthermore, our Supreme Court explicitly stated that “plaintiffs were not prohibited from developing the remaining upland on parcel one ....” K & K II, supra at 587. Were the trial court to have complied with our Supreme Court’s remand instructions, the trial court could not reasonably have reaffirmed its previous finding that the value of parcel one had been reduced to zero. For this reason alone, the trial court’s holding must be reversed.
Additionally, the trial court then found that parcels two and three had a value of approximately $3 million. The trial court reasoned that this value was not high enough to “offset” the diminution in value that the court ruled parcel one had sustained. While the trial court held that the value of the entire “denominator parcel,” consisting of parcels one, two, and three, had been diminished in value by sixty-seven percent, from approximately $9 million to just over $3 minion, the trial court’s analysis here centered on the value of parcel one. Rather than treating the three parcels as a single denominator parcel as our Supreme Court mandated, the trial court erroneously continued to treat parcel one as the relevant parcel, and only considered the values of parcels two and three to the extent that they might “offset” the diminution in the value of parcel one. This directly contradicts our Supreme Court’s holding that any taking analysis here must look beyond the value of parcel one, and include the value of the entire denominator parcel. Accordingly, we conclude that the trial court did not comply with our Supreme Court’s remand instructions with respect to determining the value of the denominator parcel. Because we so conclude, we hold that the trial court’s findings of fact with respect to the value of the denominator parcel are clearly erroneous, and its decision is reversed.
2. COMPLIANCE WITH THE SUPREME COURT’S ORDER TO APPLY THE FACTS TO PENN CENTRAL
The trial court’s Penn Central analysis also failed to comply with the Supreme Court’s remand instruc tions. A trial court must “comply strictly” with our Supreme Court’s mandate. Rodriguez, supra at 514. Here, the trial court, without an explanation of what the factors mean, and, indeed, without so much as a citation of Penn Central, devoted not much more than a page of its analysis to this difficult, crucial, and dispositive analysis that was clearly mandated by our Supreme Court’s remand order. Moreover, and dispositively, the trial court’s ruling simply failed to properly apply the law to the facts.
For these reasons and reasons we will discuss in greater detail below, we hold that the trial court did not comply with our Supreme Court’s remand instructions with respect to its purported Penn Central analysis.
3. THE GOGA PERMIT AND MITIGATION
As outlined above, our Legislature, following the lead of the United States Congress, passed comprehensive legislation to protect Michigan’s wetlands for the benefit of its citizens. This represents a clear public policy determination and statement of the importance to the citizens of this state, including property owners, of preserving wetlands for public welfare. MCL 324.30302. Moreover, the Michigan Constitution provides that “[t]he legislature shall provide for the protection of the air, water and other natural resources of this state ... .” Const 1963, art 4, § 52. In keeping with this mandate, the Legislature enacted the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq., which contains the WPA. The Legislature vests the DEQ with the responsibility for guarding our state’s valuable natural resources on behalf of the citizens of this state. MCL 324.501.
In keeping with this constitutional and statutory scheme, our Legislature also expressed its intent that the DEQ should act to preserve public funds as well as public resources by establishing a statutory framework to mitigate damages to the state should a court find that the DEQ “went too far” in implementing the wetland regulations in a particular case. MCL 324.30323(3) represents our Legislature’s well-considered plan to serve the dual purpose of having the DEQ protect the environment while also protecting the pocketbooks of our citizens by creating a mechanism to mitigate damages in those cases where courts find that the DEQ may have gone too far. Here, the DEQ, as our Legislature envisioned, acted properly under the statute to mitigate damages. The trial court should not have disregarded this legislative mandate where the DEQ, acting to preserve the citizens’ financial resources, agreed to an alternative use of the land, as proposed by plaintiffs, that would have allowed substantial development of the property at issue.
The courts of this state must recognize that our constitutionally and statutorily mandated agencies, like the DEQ, have a difficult duty in administering complex laws to preserve the environment for all citizens while respecting the important private property rights of those directly affected by the regulations. Our Legislature clearly saw the wisdom of anticipating that, in balancing these competing, important interests, the DEQ might err, at least in the judgment of a judge who is asked to review a specific application of the wetland regulations to a specific piece of property. And, when a judge rules against the DEQ, the state agency has the further task of again deciding how best to preserve taxpayer dollars and the environment by choosing the legislative options of purchasing the property, paying the amount of the lost economic value, or taking some other action, such as the issuance of an alternative permit that allows greater development, but with minimal damage to wetlands. Our courts should not ignore this complex, important statutory mitigation scheme. This legislative mandate is an important application of constitutional, statutory, and administrative law that must be respected and administered by our courts in the best interests of the public. This, the trial court simply failed to do. The statute does not allow a trial court to deny the state a chance to mitigate a regulatory taking judgment on the basis of the trial court’s views of the DEQ.
Moreover, we agree with the trial court’s original ruling with respect to the Goga permit, and further hold that plaintiffs waived this claim that the DEQ’s appeal rendered the Goga permit invalid. If plaintiffs truly believed that the DEQ disobeyed that portion of the trial court’s original order regarding the Goga permit, then plaintiffs should have sought the appropriate relief. Our review of the record reveals no attempt by plaintiffs to seek declaratory or other relief with respect to the Goga permit. Any claim that the DEQ’s appeal rendered the Goga permit invalid here was waived by plaintiffs’ own conduct. Lewis v LeGrow, 258 Mich App 175, 210; 670 NW2d 675 (2003) (“[E]rror requiring reversal may only be predicated on the trial court’s actions and not upon alleged error to which the aggrieved party contributed by plan or negligence.”).
B. THE PENN CENTRAL FACTORS AS APPLIED TO THIS CASE
In Penn Central, the United States Supreme Court noted that “[t]he question of what constitutes a ‘taking’ ... has proved to be a problem of considerable difficulty.” Penn Central, supra at 123. The constitutional requirement that the state provide just compensation for the taking of one’s property is “ ‘designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Id. at 123-124, quoting Armstrong v United States, 364 US 40, 49; 80 S Ct 1563; 4 L Ed 2d 1554 (1960). The Court stated that taking determinations are “essentially ad hoc, factual inquiries . . . .” Penn Central, supra at 124.
Since the United States Supreme Court’s decision in Penn Central, and, indeed, since our Supreme Court’s decision in K & KII, the United States Supreme Court has farther explained its holding in Penn Central. A governmental regulation that deprives a landowner of “all economically beneficial use” of his or her property is a categorical taking that requires compensation. Palazzolo v Rhode Island, 533 US 606, 615-616; 121 S Ct 2448; 150 L Ed 2d 592 (2001), citing Lucas, supra. Here, our Supreme Court rejected the trial court’s ruling that the DEQ had effected a categorical taking of plaintiffs’ property and remanded the case to the trial court with the instruction to determine, pursuant to Penn Central, whether a taking had occurred despite the fact that plaintiffs’ property had some, but because of the trial court’s error, a yet to be determined, remaining value. The United States Supreme Court in Penn Central identified three factors to be examined when a court makes such a determination:
[1] The economic impact of the regulation on the claimant and, particularly, [2] the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is [3] the character of the governmental action. A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good. [Penn Central, supra at 124 (citations omitted).]
As we will discuss in greater detail below, while no one of the three factors is dispositive in and of itself, a key factor in terms of wetland regulations is the third, the character of the government action. Where, as here, the regulation serves an important public interest and is widespread and ubiquitous, we conclude that, to sustain a regulatory taking claim, a plaintiff must prove that the economic impact and the extent to which the regulation has interfered with distinct investment-backed expectations are the functional equivalent of a physical invasion by the government of the property in question.
1. ECONOMIC IMPACT OF THE REGULATION
A reduction in the value of the regulated property is insufficient, standing alone, to establish a compensable regulatory taking. Penn Central, supra at 131. Indeed, the Supreme Court in Penn Central cited two of its previous opinions in which the Court refused to hold that there was a regulatory taking: Euclid v Ambler Realty Co, 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926), in which a zoning regulation resulted in a seventy-five percent diminution in value, and Hadacheck v Sebastian, 239 US 394; 36 S Ct 143; 60 L Ed 348 (1915), in which the regulation resulted in an 87.5 percent diminution.
Here, the DEQ’s initial refusal to grant the requested permit unquestionably caused some decrease in the value of the property. After the second trial, the trial court held, erroneously, that the value had declined from a value before the denial of the permit of approximately $8.94 million to a value after denial of approximately $3 million, which represents a diminution of value of approximately sixty-seven percent. Even under this incorrect, inflated “damage calculation,” plaintiffs failed to demonstrate a sufficient decrease in value to constitute a compensable regulatory taking under Penn Central, Euclid, and Hadacheck.
However, as we discussed above, the trial court not only failed to account for the substantial value of the land that could have been developed pursuant to the Goga permit, worth at least $2.8 million, as it had after the first trial, but it also did not include the approximate $1 million value of the Ram’s Horn and JFK office building. Accordingly, the proper value after denial for the denominator parcel would be approximately $5.8 to $6.8 million, which represents a decrease in value of approximately twenty-four to thirty-three percent. While this diminution of value is significant, we conclude that this figure most certainly does not weigh in favor of a finding that the DEQ’s actions constitute a compensable regulatory taking.
Moreover, as we discussed above, plaintiffs could have developed the land pursuant to the Goga permit, and could possibly have increased the value of the land, or, at the very least further mitigated any loss in value but for their unjustifiable inaction.
2. PLAINTIFFS’ DISTINCT INVESTMENT-BACKED EXPECTATIONS
A court must also examine the extent to which the regulation has interfered with the property owner’s “reasonable investment-backed expectations.” Palazzolo, supra at 618, citing Penn Central, supra at 124. A key factor is notice of the applicable regulatory regime, here wetland regulations. The Supreme Court in Palazzolo rejected the principle that the purchase of property after the enactment of a wetland regulation absolutely bars a taking claim. Palazzolo, supra at 626-630. However, notice of such regulations should nevertheless be taken into account. In her separate concurrence in Palazzolo, Justice O’Connor explained the importance of notice:
As the Court holds, the Rhode Island Supreme Court erred in effectively adopting the sweeping rule that the preacquisition enactment of the use restriction ipso facto defeats any takings claim based on that use restriction....
The more difficult question is what role the temporal relationship between regulatory enactment and title acquisition plays in a proper Penn Central analysis. Today’s holding does not mean that the timing of the regulation’s enactment relative to the acquisition of title is immaterial to the Penn Central analysis. Indeed, it would be just as much error to expunge this consideration from the takings inquiry as it would be to accord it exclusive significance. Our polestar instead remains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings. Under these cases, interference with investment-backed expectations is one of a number of factors that a court must examine. Further, the regulatory regime in place at the time the claimant acquires the property at issue helps to shape the reasonableness of those expectations. [Palazzolo, supra at 632-633 (O’Connor, J., concurring) (emphasis added).]
In other words, equity is no better served by ignoring a claimant’s knowledge of existing land-use regulations than it would be by holding that the claimant’s knowledge of those regulations absolutely barred recovery regardless of how inequitable those regulations might be.
[I]f existing regulations do nothing to inform the analysis, then some property owners may reap windfalls and an important indicium of fairness is lost. As I understand it, our decision today does not remove the regulatory backdrop against which an owner takes title to property from the purview of the Penn Central inquiry. It simply restores balance to that inquiry. [Id. at 635.]
The WPA was originally enacted as the GoemaereAnderson Wetland Protection Act in 1979. Here, plaintiffs acquired title to the property in 1986. And, as plaintiffs themselves point out, JFK and Kosik are experienced commercial land developers with extensive knowledge of land-use regulations. This knowledge and experience logically must be taken into account when determining what plaintiffs’ reasonable, investment-backed expectations were with respect to the denominator parcel and in determining the extent of the WPA’s effect on those expectations. Despite this admitted extensive commercial land development and legal expertise, plaintiffs nonetheless claim that they were unable to discover a twenty-seven-acre area of wetlands. Given the significant area of wetland on the denominator parcel and plaintiffs’ experience in commercial land development, together with their notice of wetland regulations, we conclude that a reasonable person with the extensive expertise that plaintiffs possess would have notice of the existence of both the wetlands and the WPA.
As Palazzolo teaches ,us, the mere fact that plaintiffs had notice of the WPA does not end the inquiry with respect to their reasonable, investment-backed expectations and the effect of the governmental regulation challenged here. However, as Justice O’Connor explained, plaintiffs’ notice of the WPA does help shape the analysis of whether plaintiffs’ expectations were reasonable. Plaintiffs’ alleged actual expectations involved building a forty-two-acre restaurant/sports complex on parcel one. However, with their experience, notice of the WPA, and the fact that twenty-seven acres of wetland existed on parcel one, this expectation was not reasonable. Looking at the denominator parcel as a whole, a reasonable expectation would be that plaintiffs would be able to develop the upland areas of the denominator parcel that are not wetlands. Indeed, there has been significant development on parcels two and three. On parcel one, there has been some development on the upland, including the construction of an office building and a restaurant. And the Goga permit allows plaintiffs to utilize the remaining upland, as well as some of the wetland acreage (contingent upon the conversion of other, non-wetland acreage to wetland). The fact that plaintiffs have chosen not to make use of the Goga permit is wholly irrelevant to our analysis. However, when we consider the actual development of the entire denominator parcel, together with the development potential afforded plaintiffs by the Goga permit, it is clear that there has not been a significant negative effect on plaintiffs’ reasonable investment-backed expectations.
Plaintiffs acquired the denominator parcel for the purpose of commercial development. On this parcel, they have constructed apartment homes, a restaurant, and an office building, with a total value of at least $5.8 million. Furthermore, the record shows that, while a significant portion of the parcel consists of wetland, there is nevertheless a significant area of upland that may be commercially developed. Plaintiffs claim, but failed to prove, that the DEQ’s refusal to allow plaintiffs to fill in the entire wetland portion of the denominator parcel has thwarted their reasonable, investment-backed expectations. This simply is not supported by the evidence.
Accordingly, we hold that the effect of the governmental regulation on plaintiffs’ reasonable, investment-backed expectations weighs against a conclusion that a taking has occurred.
3. CHARACTER OF THE GOVERNMENT ACTION
This factor requires a court to place the challenged regulatory action along a spectrum ranging from an actually physical taking on one extreme, to a far-reaching, ubiquitous governmental regulation that provides all property owners with an “average reciprocity of advantage” on the other. As the United States Supreme Court explained, “A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Central, supra at 124. Clearly, this case does not involve a physical taking. The relevant inquiries are whether the governmental regulation singles plaintiffs out to bear the burden for the public good and whether the regulatory act being challenged here is a comprehensive, broadly based regulatory scheme that burdens and benefits all citizens relatively equally. See Walcek v United States, 49 Fed Cl 248, 270 (2001); R & Y, Inc v Anchorage, 34 P3d 289, 298 (Alas, 2001). In Penn Central, the Supreme Court rejected the plaintiffs’ argument that the New York City law that designated certain property as historic, and thus restricted the use and development of that property, served to single out the plaintiffs to carry the burdens of the regulation:
[Appellants’ repeated suggestions that they are solely burdened and unbenefited is factually inaccurate. This contention overlooks the fact that the New York City law applies to vast numbers of structures in the city in addition to the Terminal — all the structures contained in the 31 historic districts and over 400 individual landmarks, many of which are close to the Terminal. Unless we are to reject the judgment of the New York City Council that the preservation of landmarks benefits all New York citizens and all structures, both economically and by improving the quality of life in the city as a whole — which we are unwilling to do — we cannot conclude that the owners of the Terminal have in no sense been benefited by the Landmarks Law. [Penn Central, supra at 134-135.]
Indeed, even the dissent in Penn Central noted in language equally applicable to this state’s wetland regulations, that regulation in and of itself does not constitute a taking if it applies to a widespread group of landowners:
[A] taking does not take place if the prohibition applies over a broad cross section of land and thereby “secure[s] an average reciprocity of advantage.” It is for this reason that zoning does not constitute a “taking.” While zoning at times reduces individual property values, the burden is shared relatively evenly and it is reasonable to conclude that on the whole an individual who is harmed by one aspect of the zoning will be benefited by another.
.. . For the reasons noted in the text, historic zoning, as has been undertaken by cities such as New Orleans, may well not require compensation under the Fifth Amendment. [Id., supra at 147 (Rehnquist, J., dissenting) (citations deleted; emphasis in the original).]
Michigan’s wetland regulations, like zoning regulations, are comprehensive and universal throughout this state. The federal government enacted the CWA, which permits the regulation of wetlands, and our Legislature enacted the WPA to protect wetlands in this state. Our Legislature made clear, within the very text of the WPA, that the regulation and protection of Michigan’s wetlands is intended to benefit the people of this state in a variety of ways. All property owners in this state share these benefits relatively equally, and all property owners and, all prospective owners are relatively equally subject to the burdens placed on much of the property in this state by the wetland regulations.
Applying a similar analysis, the Alaska Supreme Court held that the regulatory action being challenged in R & Y, Inc was a “wetlands preservation scheme which applies broadly to all landowners and which benefits both the public generally and the landowners in particular.” R & Y, Inc, supra at 298. The court then noted that, as in this state, “[scientists and legislators have recognized the unique ecological and economic value that wetlands provide in protecting water quality, regulating local hydrology, preventing flooding, and preventing erosion.” Id.
The United States Court of Claims has similarly stated that “Congress attempted to protect wetlands while dealing with the concerns of private individuals.” Brace v United States, 48 Fed Cl 272, 279 (2000). The court also explained that “the existence of the wetland regulations in question. . . indisputably serve an important public purpose — one which benefits plaintiffs as members of the public at large.” Walcek, supra at 270.
Similarly, plaintiffs here cannot establish that the WPA’s enforcement has the effect of singling out plaintiffs to bear the burden of a public benefit. What the federal Court of Claims said about federal wetland regulations is equally applicable to Michigan: “the [CWA] and the wetlands regulations issued thereunder are generally applicable to all similarly situated property owners and can in no way be viewed as being directed at plaintiffs.” Walcek, supra at 270.
Again, the Alaska Supreme Court’s reasoning in rejecting the plaintiffs taking claim in R & Y, Inc, applies here:
[T]he landowners were not singled out and made to suffer unduly burdensome economic loss. Instead, they incurred only relatively minor economic loss due to generally applicable wetlands restrictions which govern all land use ... and benefit all landowners, including these landowners, by preserving the ecologically and economically valuable functions of wetlands. [R & Y, Inc, supra at 300.]
Here, plaintiffs are simply not being singled out by the WPA. The WPA provides a regulatory framework that applies to all property owners in this state for the benefit of all landowners. Indeed, were we to uphold the trial court’s award, we would, in effect, single out plaintiffs to their benefit, because compensating plaintiffs for the loss of value of their property, especially when it has a significant amount of value and development potential remaining, would be tantamount to making the plaintiffs exempt from the regulation of wetlands, to the detriment of others who bear the burden of wetland regulations throughout the state.
Accordingly, we conclude that the character of the government action was a wide-reaching, regulatory action that seeks to protect the rights of the public and to provide an “average reciprocity of advantage,” and that this factor weighs heavily against finding that a compensable regulatory taking has occurred here.
V. CONCLUSION
Because the challenged land-use regulation here, like traditional zoning, is comprehensive and universal so that plaintiffs are relatively equally benefited and burdened by the challenged regulation as other similarly situated property owners, because plaintiffs purchased the land with knowledge of the regulatory scheme, and because plaintiffs have made and can make valuable use of their land despite the application of this regulation, we conclude that compensation is not required under Penn Central.
Therefore, we hold that plaintiffs have failed to establish that the DEQ’s regulatory action here constituted a compensable regulatory taking of their property. Consequently, we reverse the trial court’s judgment in favor of plaintiffs and enter judgment in favor of the DEQ. See MCR 7.216(A)(7).
Appendix
Summary of the Trial Court’s Damage Awards
Before Permit Denial Value, Parcel 1 After Permit Denial Value, Parcel 1 Before Permit Denial Value, Denominator Parcel After Permit Denial Value, Denominator Parcel Credit for Goga Permit Award to Plaintiffs
Trial 1 Approximately $5.94 million $0 Approximately . $5.94 million (Parcel 1 only) $0 Approximately $2.8 million Approximately $3.25 million (For taking of wetland) plus approximately $450,000 (temporary taking of entire parcel)
Trial 2 (after remand from our Supreme Court) Approximately $5.94 million $0 Approximately $9 million (Parcels 1, 2, and 3, pursuant to the Michigan Supreme Court’s remand order) Approximately $3 million $0 Approximately $5.94 million (plus over $10 million for interest, costs, and attorney fees)
US Const, Am V; see also Const 1963, art 10, § 2.
As the United States Supreme Court explained:
The clearest sort of taking occurs when the government encroaches upon or occupies private land for its own proposed use. Our cases establish that even a minimal “permanent physical occupation of real property” requires compensation under the Clause. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982). In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922), the Court recognized that there will be instances when government actions do not encroach upon or occupy the property yet still affect and limit its use to such an extent that a taking occurs. In Justice Holmes’ well-known, if less than self-defining, formulation, “while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking.” Id. at 415. [Palazzolo v Rhode Island, 533 US 606, 617; 121 S Ct 2448; 150 L Ed 2d 592 (2001).]
Land-use regulations, such as zoning, are necessary to protect private property rights and values. Zoning regulations can be used to prevent, for example, a mining operation or a factory from being built within a residential neighborhood. See, e.g., Euclid v Ambler Realty Co, 272 US 365, 385-389; 47 S Ct 114; 71 L Ed 303 (1926). Such a zoning regulation creates what Justice Holmes termed “an average reciprocity of advantage,” Mahon, supra at 415, which both burdens and benefits landowners relatively equally. Such regulations are not considered takings, and thus do not require compensation, in part because, as Justice Holmes stated, “[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Id. at 413. On the other hand, “if regulation goes too far it will be recognized as a taking.” Id. at 415. When the effect of a regulation goes as far as to deprive a property owner of all economically beneficial value of his or her land, it results in a “categorical taking.” See, e.g., Palazzolo, supra at 615-616, citing Lucas v South Carolina Coastal Council, 505 US 1003; 112 S Ct 2886; 120 L Ed 2d 798 (1992); see also Mahon, supra 413-416 (regulation forbade coal mining on land for which the plaintiff was the holder of mineral rights, thus"destroying the plaintiff’s entire interest in the land); see also Tahoe-Sierra Preservation Council, Inc v Tahoe Regional Planning Agency, 535 US 302, 324; 122 S Ct 1465; 152 L Ed 2d 517 (2002) (“Land-use regulations are ubiquitous and most of them impact property values in some tangential way — often in completely unanticipated ways. Treating them all as per se takings could transform government regulation into a luxury few governments could afford.”).
See K & K Constr, Inc v Dep’t of Natural Resources, 456 Mich 570, 587-588; 575 NW2d 531 (1998). Indeed, as we will discuss further below, our Supreme Court so instructed the trial court. However, the trial court, while acknowledging the Penn Central test and our Supreme Court’s mandate, faded to actually apply the Penn Central factors during the trial after remand.
See, e.g., Tahoe-Sierra, supra; Palazzolo, supra; Lucas, supra.
33 USC 1251 et seq.
MCL 324.30301 et seq.
The statute provides that the Legislature further found that:
(b) A loss of a wetland may deprive the people of the state of some or all of the following benefits to be derived from the wetland:
(i) Flood and storm control by the hydrologic absorption and storage capacity of the wetland.
(ii) Wildlife habitat by providing breeding, nesting, and feeding grounds and cover for many forms of wildlife, waterfowl, including migratory waterfowl, and rare, threatened, or endangered wildlife species.
(iii) Protection of subsurface water resources and provision of valuable watersheds and recharging ground water supplies.
(iv) Pollution treatment by serving as a biological and chemical oxidation basin.
(v) Erosion control by serving as a sedimentation area and filtering basin, absorbing silt and organic matter.
(vi) Sources of nutrients in water food cycles and nursery grounds and sanctuaries for fish.
(c) Wetlands are valuable as an agricultural resource for the production of food and fiber, including certain crops which may only be grown on sites developed from wetland. [MCL 324.30302(1)(b)-(1)(c).]
For the sake of consistency, though the Department of Environmental Quality was known as the Department of Natural Resources at the outset of this case, we will refer to defendant as “DEQ” throughout our opinion.
Joseph Kosik, Sr. (Kosik), and his wife Elaine acquired the land, which was originally farmland, in 1976. A series of often confusing real estate transactions ensued, as well as reorganizations of various business entities. The Kosiks quitclaimed the land in 1977 to Kosik and Leon Blachura as individual guarantors, and to Waterford Mall, a partnership consisting of the J.F.K. Company, a Michigan limited partnership consisting of their five sons; Alpine Valley Ski Area, Inc., a Michigan corporation; Alpine Valley Resort, Inc., a Wisconsin corporation; and the North Oakland Development Corporation. In 1983, Kosik; Alpine Valley Ski Area, Inc.; and Alpine Valley Resorts, Inc., conveyed their interests in the land to J.F.K. Company. In the meantime, litigation, through which the Kosiks and J.F.K. Company sought to quiet title to the land in their favor because of the North Oakland Development Corporation’s default on its obligations, was resolved in 1986 with a circuit court warranty deed conveying the entire interest in the land to the Kosiks and J.F.K. Company. Because of the Kosiks’ and Alpine Valley’s conveyances, J.F.K. Investment Company ultimately held title to the land.
While K & K Construction, Inc., does not own any interest in the land, it was under contract to develop a part of it. It appears that to date there is no dispute with respect to whether K & K is a proper party to this case. Yet, both K & K I and K & K II acknowledge that K & K Construction has no ownership interest in the land, and for reasons that remain unclear, K & K was permitted to continue as a party to this suit.
The letter stated, among other things, that the proposed development was “not wetland dependent,” that plaintiffs had “alternatives available in the avoidance of the wetland,” and that there had been no public need for the development demonstrated. The letter went on to note that DEQ representatives saw “drainage ditches present[,] which cut through the wetland area, as well as large amounts of sand fill deposited over much of the site,” and ordered plaintiffs to cease and desist from any further excavation of ditches and placement of sand fill in the wetland area.
Though we need not comment on plaintiffs’ failure to seek administrative relief, we note that the Legislature provided for an extensive administrative appeal process and for judicial review of the administrative appeal. See MCL 324.30307.
This alternative plan for development was apparently named for an engineer who devised the plan for plaintiffs. We will hereafter refer to this permit as the “Goga permit.”
Though pursuant to our Supreme Court’s holding in if & if II, we are to consider the entire denominator parcel, which consists of parcels one, two, and three, we find it necessary at times to refer to the constituent parcels individually. Nevertheless, our ultimate analysis under Penn Central is applied, as our Supreme Court has mandated, to the denominator parcel as a whole.
MCL 324.30323(3) provides:
If the court determines that an action of the department or a local unit of government pursuant to this part or an ordinance authorized pursuant to section 30307(4) constitutes a taking of the property of a person, then the court shall order the department or the local unit of government, at the department’s or the local unit of government’s option, as applicable, to do 1 or more of the following:
(a) Compensate the property owner for the full amount of the lost value.
(b) Purchase the property in the public interest as determined before its value was affected by this part or the local ordinance authorized under section 30307(4) or the action or inaction of the department pursuant to this part or the locad unit of government pursuant to its ordinance.
(c) Modify its action or inaction with respect to the property so as to minimize the detrimental affect [sic] to the property’s value.
We note that the United States Supreme Court rejected a “temporary taking” claim in Tahoe-Sierra, supra at 330-335. The Court reasoned that requiring a governmental agency to compensate a property owner for the loss of value while considering applications for permits and variances under a land-use regulatory scheme would either become cost-prohibitive or lead to governmental agencies making hasty, presumably haphazard, decisions. Id. at 334-335.
K & K II, supra at 578-582.
Id. at 586.
After remand, at the second trial, the parties stipulated that parcel four would not be considered in the trial court’s determination of the value of plaintiffs’ property, because that parcel was purchased after the denial of the permits.
Plaintiffs assert that throughout the pendency of this litigation, then-attempts to develop or sell parcel one have been thwarted by the DEQ’s appeal of this case. Of course the DEQ has the absolute right to appeal and, indeed, the duty to appeal an erroneous damage award because the DEQ is the appropriate state agency to protect both public funds and wetlands. Plaintiffs had the right to pursue development under the Goga permit that plaintiffs themselves proposed.
As we will discuss in greater detail later, when a governmental regulation deprives a landowner of “ ‘all economically beneficial use’ ” of his or her property, a categorical taking occurs, which requires compensation. Palazzolo, supra at 615-616, quoting Lucas, supra.
Interestingly, plaintiffs raised this argument for the first time on remand.
The appendix to our opinion is a chart that summarizes the trial court’s award of damages after both trials.
This amount reflects the trial court’s calculation of the value of the percentage of parcel one that constituted wetland based upon its valuation of the entire parcel at approximately $5.94 million, plus interest up to the time of the judgment.
The Ram’s Horn restaurant and the JFK office building were constructed on the non-wetland (upland) portion of parcel one; plaintiffs did not require the Goga permit to build these structures.
This letter stated, in relevant part, “As I have repeatedly expressed, it is not now and never was the intention of [the DEQ] to seek to revoke or otherwise limit the “Goga Plan” permit through appeal.”
The DEQ urges us to set aside the clearly erroneous standard in favor of a review de novo. The DEQ argues that the trial court’s findings are not entitled to deference because the trial court conducted the trial solely on the submission of de benne esse depositions, exhibits, and oral argument. However, the DEQ stipulated the entry of an order that specified exactly that procedure for trial. The DEQ cannot claim an error to which it contributed. Farm Credit Services of Michigan’s Heartland, PCA v Weldon, 232 Mich App 662, 683-684; 591 NW2d 438 (1998). Accordingly, we will not set aside the clearly erroneous standard here.
The trial court’s conclusions regarding the three factors read, in its entirety:
1. What is the Character of the Government Action in this Case?
In this case, the government activity, as noted, has taken the entire value of parcel one with the exception of two small areas that were developed prior to the wetland determination in this case. Thus the declaration of a wetland has taken, for all intents, the entire value of the parcel as previously found.
2. The Economic Effect of the Regulations.
This Court finds that the regulations in this case have deprived the Plaintiffs of the entire economic value of parcel one which is approximately two-thirds of the value of the entire denominator parcel.
3. The Interference with Investment-Backed Expectations.
Clearly, Plaintiffs intended to develop parcel one for economic gain. There is no question from the facts of this case that Plaintiffs have always intended to develop parcel one. They applied for zoning and dutifully paid commercial taxes on this parcel for many years. In addition, this property is not a characteristic wetland where an owner would likely be on notice of potential difficulties with development. The record showed an investment of several millions of dollars and the loss of a huge commercial development on parcel one. Applying the law to these facts demonstrates that the loss of parcel one far overshadows parcels two and three in area and in value.
Conclusion
This Court finds that applying the test as required to the entire parcel under consideration shows a taking. This Court reaffirms its award as previously entered for Plaintiff [sic] together with costs and attorney fees. Interest shall run in the proscribed [sic] manner from the date of taking.
We hold only that plaintiffs have waived any claim that the DEQ’s appeal rendered the Goga permit invalid. Nothing in our holding prevents plaintiffs from pursuing their right to seek issuance of a Goga-type permit in the future.
Indeed, in Lucas, the Court noted that it is quite possible for a landowner to suffer a ninety-five percent diminution in value as the result of a regulatory action and nevertheless be unable to establish a regulatory taking. Lucas, supra at 1019 n 8.
This conclusion is supported by the fact that far greater diminutions of value have been found not to give rise to taking claims. See Euclid, supra, and Hadacheck, supra; see also William C Haas & Co, Inc v City & Co of San Francisco, 605 F2d 1117, 1120 (CA 9, 1979) (ninety-five percent diminution in value). Moreover, the Supreme Court has held time and again that even a significant diminution in value is not enough on its own to establish a regulatory taking. See Penn Central, supra at 131; Concrete Pipe and Products of California, Inc v Constr Laborers Pension Trust, 508 US 602, 645; 113 S Ct 2264; 124 L Ed 2d 539 (1993).
Indeed, the Court stated, “A blanket rule that purchasers with notice have no compensation right when a claim becomes ripe is too blunt an instrument to accord with the duty to compensate for what is taken.” Id. at 628.
See Cordes, The Effect of Palazzolo v Rhode Island on Takings and Environmental Land Use Regulation, 43 Santa Clara L R 337, 376 (2003), citing the concurring opinion of Justice O’Connor in Palazzolo, supra at 635; Justice Stevens, dissenting in part and concurring in part, id. at 637-645; and Justice Ginsburg’s dissent, id. at 645 n 3.
The WPA was later reenacted as Part 303 of the Natural Resources and Environmental Protection Act of 1994.
Indeed, Kosik is a lawyer by training.
Plaintiffs claim that the wetland was “not characteristic” because it was sandy; however, there is evidence, in the form of the DEQ’s initial permit denial letter, that the wetland consisted of sand because “someone” had filled it in with sand. We also note that plaintiffs had begun attempting to develop the wetland area over an unspecified time before Waterford Township officials sent them a cease-and-desist letter.
We are not bound by the decisions of the courts of other states; however, we may look to these regulatory taking decisions as persuasive authority. See Farm Bureau Mut Ins Co v Buckallew, 246 Mich App 607, 614 n 6; 633 NW2d 473 (2001).
See K & K I, supra at 61 (“[T]he state has a legitimate interest in preserving and protecting wetlands.”), citing Attorney General ex rel Dep’t of Natural Resources v Huron Co Rd Comm, 212 Mich App 510, 516; 538 NW2d 68 (1995) (“ ‘[t]he primary purpose of the WPA is to ensure that wetland habitats are preserved and protected’ ”); Brace v United States, 48 Fed Cl 272, 278, 279 (2000) (noting that Congress passed the CWA in part to protect wetlands. The court noted that “[t]here is no question that the systemic destruction of the Nation’s wetlands is causing serious, permanent ecological damage.”).
It is worth noting that the Alaska Supreme Court held that the Alaska state constitution provides greater protections for property owners than the United States Constitution does under the Fifth Amendment. R & Y, Inc, supra at 293. Our Supreme Court has adopted the United States Supreme Court’s Penn Central test, signaling that our Supreme Court has decided that the Michigan Constitution provides no greater protection for property owners than that provided by the Fifth Amendment. Though Alaska’s constitution provides greater property protections than do the United States Constitution and the Michigan Constitution, the Alaska Supreme Court nevertheless held that enforcement of the challenged wetlands regulations did not effect a compensable taking of the plaintiffs property. Id. at 300.
41 Though the alleged economic effect in R & Y is less than the alleged economic effect here, the reasoning and analysis of R & Y are equally applicable here.
Indeed, we note that the historical district preservation regulations upheld in Penn Central were far less universal and ubiquitous, and much closer to singling out individual property owners, than the wetland regulations challenged here. The Supreme Court in Penn Central nevertheless held that the regulation benefited the public as a whole, which weighed heavily against finding that a taking had occurred. See Penn Central, supra at 134-135. | [
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Per Curiam.
Respondent appeals as of right a decision and direction of election issued on May 26,2004, by the Michigan Employment Relations Commission (MERC) granting petitioner the right to hold an election among respondent’s teaching staff to determine whether petitioner would serve as their collective bargaining representative. MERC’s orders are vacated and all the claims in the petition are dismissed.
I. FACTS
Respondent is a Roman Catholic high school for boys, “sponsored by the Congregation of Christian brothers.” While respondent is ultimately owned by the Catholic Church under canon law, the Archdiocese of Detroit does not provide financial support to the school. Respondent and its faculty follow the teachings of Brother Edmund Rice with the primary goals and focus of a Christian Brothers education having been distilled in the essential elements of a Christian Brothers education. Faculty members of respondent are expected to initiate and end class with a prayer and integrate into the curriculum the teachings of Brother Edmund Rice and “good Christian attitudes.” A daily religion class is part of the curriculum, and all students are required to attend, along with periodic school-wide liturgies. While not all students attending respondent are Catholic, they are expected to attend, if not participate in, ongoing religious instruction. Respondent’s faculty is primarily comprised of lay teachers, not all of whom are Catholic or Christian. Faculty members are to promote and identify “opportunities to encourage faith-building.” Members of the Congregation of Christian Brothers are lay individuals and not ordained as. priests, but the congregation is deemed a “religious organization.” The members are described as living “a consecrated life,” taking “vows of poverty, chastity and obedience.”
Before the initiation of this lawsuit, respondent’s lay faculty participated in an informal association for contract and labor negotiations. Petitioner filed a petition for election, seeking permission to have petitioner certified as the lay faculty’s exclusive bargaining representative. On July 22, 2003, an administrative hearing was conducted before a hearing referee in order to “prepare a full factual record.” Following stipulation by the parties that the proposed bargaining unit was comprised of all full-time and part-time teachers, excluding administrative staff, respondent objected that using Michigan’s labor mediation act (LMA), MCL 423.1 et seq., to regulate labor relations for a religious organization is restricted by the First Amendment of the United States Constitution and art 1, § 4, of the Michigan Constitution.
Following a review of the record, the parties’ respective briefs, and the exhibits, MERC issued a decision and direction of election. MERC determined that, pursuant to § 28 of the LMA, respondent’s identified faculty “will vote on whether or not they wish to be represented for the purposes of collective bargaining by the Michigan Education Association.” We granted a stay of the election and immediate consideration of the appeal.
II. STANDARD of review
We will set aside a legal ruling by MERC if it runs afoul of the law or is otherwise tainted by a serious legal error. Gogebic Community College Michigan Ed Support Personnel Ass’n v Gogebic Community College, 246 Mich App 342, 349; 632 NW2d 517 (2001). Legal rulings by MERC “ ‘are afforded a lesser degree of deference’ because review of legal questions remains de novo, even in MERC cases.” St Clair Co Ed Ass’n v St Clair Co Intermediate School Dist, 245 Mich App 498, 513; 630 NW2d 909 (2001), quoting Grand Rapids Employees Independent Union v Grand Rapids, 235 Mich App 398, 403; 597 NW2d 284 (1999).
III. ANALYSIS
Respondent asserts that MERC’s application of Michigan’s LMA is contrary to law and a violation of the religious liberty provisions of the First Amendment, US Const, Am I, and the Michigan Constitution, Const 1963, art 1, § 4. We do not reach this issue, except to say that the government’s intervention into a parochial school’s labor decisions has been held by the United States Supreme Court to raise substantial First Amendment concerns. NLRB v Catholic Bishop of Chicago, 440 US 490, 501-503; 99 S Ct 1313; 59 L Ed 2d 533 (1979). Respondent also asserts that the LMA is not applicable to it as a religiously affiliated school because the United States Supreme Court’s decision in Catholic Bishop applies and opposes MERC’s assumption of jurisdiction over this case. We agree. “The primary goal of statutory interpretation is to ascertain and give effect to the Legislature’s intent.” Ross v Michigan, 255 Mich App 51, 55; 662 NW2d 36 (2003).
In Catholic Bishop, the Supreme Court held that the National Labor Relations Act (NLRA), 29 USC 151 et seq., did not authorize the National Labor Relations Board (NLRB) to exercise jurisdiction over lay faculty at a church-operated school. While Catholic Bishop “was decided strictly on statutory interpretation grounds,” South Jersey Catholic School Teachers Org v St Teresa of the Infant Jesus Church Elementary School, 150 NJ 575, 584; 696 A2d 709 (1997), we agree with the approach the Court used in Catholic Bishop to determine the legislative intent behind the statutory grant of jurisdiction to the labor board. Therefore, our interpretation of Michigan’s statute conforms with the Supreme Court’s holding in Catholic Bishop.
The Court in Catholic Bishop specifically based its holding on the lack of congressional intent to grant the NLRB jurisdiction over parochial schools, but the reasoning underlying its holding is universal. The Court first analyzed the NLRA’s application to parochial schools to determine “whether the exercise of the Board’s jurisdiction presents a significant risk that the First Amendment will be infringed.” Catholic Bishop, supra at 502. After analyzing the potential questions the board might be required to resolve, the Court stated, “We see no escape from conflicts flowing from the Board’s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow.” Id. at 504. Therefore, the Court held that Congress would not grant the NLRB jurisdiction over an area that created such a risk of infringement without a “clear expression of an affirmative intention ... that teachers in church-operated schools should be covered by the Act.” Id.
In our case, the Michigan Legislature drafted the enabling legislation for MERC (and its predecessor, the Labor Mediation Board) against the backdrop of two constitutional provisions in our Michigan Constitution in addition to provisions contained in the United States Constitution. Const 1963, art 1, § 4, art 8, § 1. In art 8, § 1, our Constitution proclaims, “Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Art 1, § 4 states, “Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled ... to pay tithes, taxes, or other rates for the support of any . . . teacher of religion.” We find that MERC’s role in the negotiation of employment contracts would present more of a “significant risk” of entanglement proscribed by the Michigan Constitution than the risk found by the Supreme Court in Catholic Bishop. Accordingly, we will not find that the Legislature intended to enter this constitutionally sensitive area without first finding a “clear expression of affirmative intention . . ..” Catholic Bishop, supra.
The LMA is “intended to prevent strikes and lockouts and other forms of industrial strife for the good people of the State of Michigan.” Local Union No 876 v Labor Mediation Bd, 294 Mich 629, 633; 293 NW 809 (1940). However, nothing in the LMA expressly grants MERC jurisdiction over labor issues that arise in parochial schools. Although the Legislature has expressly subjected parochial schools to certain regulations found in the private schools act, MCL 388.551 et seq., the LMA does not specifically subject parochial schools to the authority of MERC. The United States Supreme Court in Catholic Bishop held that nearly identical language in the NLRA did not suffice to express Congress’s particular intention to subject parochial schools to the jurisdiction of the NLRB. Compare MCL 423.2 with 29 USC 152. Therefore, we follow the reasoning of the United States Supreme Court and hold that our Legislature did not intend to grant MERC jurisdiction over lay teachers in parochial schools. It follows that MERC’s orders are vacated and all the claims in the petition are dismissed. MCR 2.116(C)(4).
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Per Curiam.
Plaintiff Carol L. Hicks sued defendant EPI Printers, Inc., her former employer, claiming sexual harassment. The circuit court granted summary disposition in favor of defendant and dismissed plaintiffs action with prejudice, ruling that plaintiffs claims were barred by an agreement to arbitrate. Subsequently, the circuit court entertained plaintiffs motion for reconsideration and affirmed its original order. Plaintiff appeals as of right. We affirm.
Plaintiff began working for defendant as a temporary employee in 1990. She was hired as an at-will full-time employee on November 15, 1996. Plaintiff continued her employment until June 25,2001, when she resigned because of alleged sexual harassment at the workplace and defendant’s failure to respond to her complaints. The details of the harassment are irrelevant to the issues on appeal. What is relevant is language appearing in the employment manual plaintiff received when she became a full-time employee, as well as a receipt form she signed acknowledging that she received, read, and understood the manual.
The manual opens with a letter from defendant’s president, which provides in part:
This Employment Manual provides answers to most of the questions [sic]. It provides answers concerning [defendant’s] benefit programs, company policies and procedures, our responsibilities to you, and your responsibilities to [defendant]....
From time to time, the information included in our Employment Manual may change. Every effort will be made to keep you informed by appropriate means of communication. This may include postings on the company bulletin boards and/or notices sent directly to you in-house.
Under the heading “Purpose of this Employment Manual,” defendant reiterated that the manual may change:
[Defendant’s] policies, benefits, and rules, as explained in this Employment Manual, may be changed as business, employment legislation, and economic conditions dictate. If provisions are changed, you will be given replacement pages for those that have become outdated. A copy will also be placed on our bulletin boards.
Immediately under the above text and under the heading “Notice” appeared the following provision:
The policies in this employment manual are to be considered as guidelines. [Defendant] at its option, may change, delete, suspend, or discontinue any part or parts of the policies in this Employment Manual.... No one other than the President of [defendant] may alter or modify any of the policies in this Employment Manual.. . .
In the event that any provision in this Employment Manual is found unenforceable and invalid, the finding will not invalidate the entire Employment Manual, but only the subject provision.
Under “Employment Policies,” the manual urges new hires to carefully read the manual, which “is designed to answer many of your questions about the practices and policies of [defendant], what you can expect from [defendant], and what [defendant] can expect from you.” Defendant did not make any changes to the manual between when plaintiff signed it and when she resigned.
The manual contains a number of references in capital letters to employment “At Will.” All defendant’s employees are at will, which according to the manual means that the employee “can be terminated with or without cause, and with or without notice, any time, at the option of either [defendant] or [the employee], except as otherwise provided by law.”
Section 4.07 contained the following lengthy arbitration provision that appeared in bold and in capital letters as follows:
ANY DISPUTE, MATTER, OR CONTROVERSY INVOLVING CLAIMS FOR MONETARY DAMAGES AND/OR EMPLOYMENT RELATED MATTERS INCLUDING, BUT NOT LIMITED TO, ANY AND ALL CLAIMS RELATING TO TERMINATION OF EMPLOYMENT AND DISCRIMINATION SHALL BE ARBITRATED PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. EITHER PARTY MUST DEMAND ARBITRATION WITHIN ONE YEAR AFTER THE CONTROVERSY ARISES BY SENDING A NOTICE OF DEMAND TO ARBITRATE TO THE AMERICAN ARBITRATION ASSOCIATION ALONG WITH A COPY TO THE OTHER PARTY. THE DISPUTE SHALL THEN BE ARBITRATED BY AN ARBITRATOR PURSUANT TO THE EMPLOYMENT DISPUTE RESOLUTION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION SHALL TAKE PLACE AT THE OFFICE OF [DEFENDANT] IN BATTLE CREEK, MICHIGAN. IN THE DISPOSITION OF THE DISPUTE, THE ARBITRATOR SHALL BE GOVERNED BY THE EXPRESS TERMS OF THIS EMPLOYMENT MANUAL AND OTHERWISE BY THE LAWS OF THE STATE OF MICHIGAN WHICH SHALL GOVERN THE INTERPRETATION OF THE EMPLOYMENT MANUAL. THE DECISION OF THE ARBITRATOR SHALL BE FINAL AND SHALL BAR ANY SUIT, ACTION, OR PROCEEDING INSTITUTED IN ANY FEDERAL, STATE, OR BEFORE ANY ADMINISTRATIVE TRIBUNAL. JUDGMENT ON ANY AWARD BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
On November 15, 1996, plaintiffs date of hire as a permanent employee, she signed a one-page receipt form. The following text appeared at the top of the page:
This Employment Manual will serve as a guide; it is not always the final word. Individual circumstances may call for individual attention.
Because the general business atmosphere of [defendant] and economic conditions are always changing, the contents of this Employment Manual may change at any time at the discretion of [defendant]. No changes in any benefit, policy, or rule will be made without due consideration of the mutual advantages, disadvantages, benefits, and responsibilities on you as an employee and on [defendant] as an employer.
The receipt form then directs the employee to read six bullet-pointed statements. The first five concern receipt and understanding of the manual, at-will employment (two provisions), confidentiality, and that defendant may require new signatures if the manual has any changes. The sixth bullet point concerns arbitration and specifically provides, “I understand that any dispute, matter, or controversy as set forth in Section 4.07, shall be settled by arbitration.” The bottom of the form states, “The signed original copy of this agreement must be given to your supervisor to be filed in your personnel file.”
Plaintiff raised the following issues on appeal: (1) whether the parties entered an agreement to arbitrate, (2) whether the language of the agreement bars claims over a year old, and (3) whether by operation of law the shortened period of limitations is invalid. The second and third issues are relevant because plaintiff filed her claim after the one-year period under the arbitration agreement, but before the three-year statutory period for her civil rights claim under MCL 600.5805(10).
A trial court’s decision to grant or deny a motion for summary disposition under MCR 2.116(C)(7) is reviewed de novo. Watts v Polaczyk, 242 Mich App 600, 603; 619 NW2d 714 (2000). Whether an arbitration agreement exists and is enforceable is a question for the court that is also reviewed de novo. Id.
“[A]n arbitration provision is unenforceable if it is not a binding contract.” Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 413; 550 NW2d 243 (1996) (opinion by Cavanagh, J.). In Heurtebise, the Court held that the terms of the employment manual that the plaintiff signed, which included an arbitration provision, were unenforceable because the language of the manual demonstrated that defendant employer did not intend to be bound by the manual. Id. at 413-414. The opening statement of the manual in Heurtebise contained the following express disclaimer: “It is important to recognize and clarify that the policies specified herein do not create any employment or personal contract, express or implied . ...” Id. at 413 (emphasis deleted from Heurtebise). The plaintiff signed a form acknowledging receipt of the manual and that she agreed to have its terms and policies bind her. Id. at 409.
The manual in this case differs in some important respects from the one in Heurtebise. Importantly, the manual in the present case contains no express language stating that its terms are not intended to create an enforceable agreement. Although the manual states that it will not answer all questions, “[i]t provides answers concerning [defendant’s] benefit programs, company policies and procedures, our responsibilities to you, and your responsibilities to [defendant].” A fair reading of the manual leads to the conclusion that the responsibilities intended are contractual. Additional language about what to expect bolsters the conclusion. The manual encourages employees to carefully read the manual, which “is designed to answer many of your questions about the practices and policies of [defendant], what you can expect from [defendant], and what [defendant] can expect from you.”
The manual states that terms may change, but it notes measures to inform employees of the change, such as replacement pages and company postings. Furthermore, it never states that any changes made without notice will have retroactive effect. That silence, coupled with the manual’s repeated references to the at-will nature of employment, led plaintiff to believe that defendant did not intend a contract and could have refused arbitration if she were the one demanding it instead. Defendant disagrees with plaintiffs legal interpretation and, relying on Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), overruled on other grounds by Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118 (1999), contends that the manual was an enforceable agreement.
We agree with defendant that reliance on Rushton is proper in this case. The Court’s holding on the binding nature of the manual, unlike its holding invalidating the arbitration provision on public policy grounds, was not overturned by the conflict panel in Rembert and applies to future cases. See Rembert, supra. The Court in Rushton held that the employer’s reservation of the right to modify the manual and the at-will nature of employment did not render the manual unenforceable. Rushton, supra at 161-164. Specifically, this Court in Rushton provided:
By its clear terms, [plaintiff and defendant] are both bound by [the manual] unless and until the employer chooses to change it. Even then, the employer cannot retroactively escape from its requirements. Any change can only take effect prospectively.
***
The fact that [the employer] could later change the agreement does not vitiate the fact that, as things currently stand, these parties are contractually bound. [Id. at 162-163.]
The holding in Rushton requires the same outcome in this case.
In Rushton, as in this case, there is an at-will employment relationship, a manual with contractual terms that included mandatory arbitration and the employer’s exclusive right to prospectively alter the terms of the relationship, and the fact that the employer made no changes between the beginning and the end of the relationship. The parties in this case had a contract that included a detailed arbitration provision. The provision appeared in large bold-faced text. Finally, the manual’s severability clause reflects the understanding that the terms of the manual are meant to be enforceable: “In the event that any provision in this Employment Manual is found unenforceable and invalid, the finding will not invalidate the entire Employment Manual, but only the subject provision.” Underlying this language is the presumption that the manual contains enforceable terms. This provision seeks to protect as many of those terms as possible in the event that some terms are invalidated. For all these reasons, the parties intended the manual, including the arbitration provision, to contractually bind them to certain employment terms.
Even if the manual itself does not create binding arbitration, which we find it does, defendant prevails because plaintiff signed the receipt form, which included a specific provision for arbitration. Specifically, the receipt form provided, “I understand that any dispute, matter, or controversy as set forth in Section 4.07, shall be settled by arbitration.” (Emphasis added.) Admittedly, the top of the form refers to the manual as a guide that “is not always the final word,” but the next paragraph references the “mutual. . . responsibilities” of the parties. Furthermore, the bottom of the form states, “The signed original copy of this agreement must be given to your supervisor to be filed in your personnel file.” (Emphasis added.) While the manual and receipt form may leave some questions unanswered, arbitration is not one of them. The receipt form in plain and forceful language requires the settlement of all employment disputes by arbitration.
The circuit court in this case relied on McAlindon v Clio Golf Course, Inc, unpublished opinion per curiam of the Court of Appeals, issued November 9, 2001 (Docket No. 225236). McAlindon distinguished Heurtebise in the following manner:
[Although the arbitration clause and other provisions are contained within the body of the employee handbook, defendant created a separate document containing the provisions signed by plaintiff. The arbitration clause was made the subject of a specific agreement separate from the terms, conditions and policies of the handbook. This clearly indicates an intent by defendant to be bound by the arbitration provision, and plaintiff executed that agreement. [McAlindon, slip op at 2-3.]
There were three separate signature lines, one for each paragraph, on the form. Id. at 1. In contrast, there was only one signature line at the bottom of defendant’s form beneath the six bullet points. This difference should in no way dilute the separate agreement in this case. One signature may indicate assent to many terms. Otherwise the vast majority of the terms of all contracts are invalid. What matters is whether the parties intended an agreement, not how formalistic that agreement was.
The only relevant difference between this case and McAlindon is that in this case the separate agreement incorporates the arbitration provision of the manual by reference and not by directly spelling out all the terms. Again, this distinction should make no difference. The receipt form clearly states that arbitration will settle all disputes. Section 4.07 appears in the manual in large bold text. Nothing about how the agreement was presented to plaintiff was misleading or confusing. Plaintiff could have easily read the receipt form in conjunction with the employment manual. Both documents straightforwardly described what to expect in terms of dispute resolution by arbitration. Even without reading the two in tandem, the receipt form on its face is an agreement to arbitrate subject to the details appearing in the employment manual. For these reasons, the receipt form, when read together with the employment manual, is an independent agreement requiring arbitration.
On review de novo, we find that the circuit court did not err in finding that the parties entered into an agreement to arbitrate claims.
Plaintiff also challenges the apparent one-year period of limitations under the arbitration agreement, which would bar her claim. She argues that the language of § 4.07, the arbitration provision, allows her to bring suit after one year. Section 4.07 provides in relevant part:
ANY DISPUTE, MATTER, OR CONTROVERSY INVOLVING CLAIMS FOR MONETARY DAMAGES AND/OR EMPLOYMENT RELATED MATTERS INCLUDING, BUT NOT LIMITED TO, ANY AND ALL CLAIMS RELATING TO TERMINATION OF EMPLOYMENT AND DISCRIMINATION SHALL BE ARBITRATED PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. EITHER PARTY MUST DEMAND ARBITRATION WITHIN ONE YEAR AFTER THE CONTROVERSY ARISES .
Plaintiff argues that because the language above does not expressly prohibit filing suit after one year, she is free to do so. This interpretation is too strained. A reading of § 4.07 clearly leads to the conclusion that all claims must be arbitrated within a year: (1) all claims must be arbitrated; (2) parties must bring all arbitrations within a year; and, therefore, (3) parties must bring all claims within a year. Under the agreement, arbitration subsumes all claims; thus, the one year period of limitations for arbitration must apply to all claims. Therefore, plaintiff should have demanded arbitration within one year of the sexual harassment she alleged led her to resign.
Plaintiff argues in the alternative that a one-year period of limitations is unreasonable. Typically, the applicable period of limitations for her sexual harassment claim is three years. MCL 600.5805(10). Parties may contract for a period of limitations shorter than the default statutory period as long as the shorter period is reasonable. Timko v Oakwood Custom Coating, Inc, 244 Mich App 234, 239; 625 NW2d 101 (2001). “The period ‘is reasonable if (1) the claimant has sufficient opportunity to investigate and file an action, (2) the time is not so short as to work a practical abrogation of the right of action, and (3) the action is not barred before the loss or damage can be ascertained.’ ” Id. at 239-240 (citations omitted).
A one-year period of limitations for plaintiffs sexual harassment claim is reasonable. By its very nature, sexual harassment is a claim of which a plaintiff must be aware at an early stage. In this case, plaintiffs awareness of the alleged misconduct of her supervisor and the failure of management to respond to her complaints led her to resign. The basis of the allegations in her complaint required no further investigation. Her claim stands in contrast to, for example, a personal injury action hinging on whether an injury amounts to a serious impairment of a body function, which is often only known several months after the initial injury. See Rory v Continental Ins Co, 262 Mich App 679, 685-686; 687 NW2d 304 (2004) (distinguishing Timko). Plaintiff has not demonstrated that the one-year period of limitations would somehow impose a hardship on her ability to bring her claim.
Timko held that a six-month contractual period of limitations for an age. discrimination claim was reasonable. Timko, supra at 242 (stating that “no inherent unreasonableness accompanies a six-month period of limitation”). The Court noted that Michigan and federal laws have six-month or shorter periods of limitations for a variety of employment actions. Id. Plaintiff cites a federal case that Timko analyzed, which also found that a six-month period of limitations for an age discrimination claim or a handicapper claim is not unreasonable. Myers v Western-Southern Life Ins Co, 849 F2d 259, 262 (CA 6, 1988). Because this case involves a similar civil rights claim and a longer contractual period of limitations than Timko, we can find no reasons why the limitations period is unreasonable.
Waiver of a statutory period of limitations for a civil rights claim is subject to heightened judicial scrutiny that asks if the waiver was knowing, intelligent, and voluntary. Bobo v Thorn Apple Valley, Inc, 459 Mich 892 (1998); Herweyer v Clark Hwy Services, Inc, 455 Mich 14, 19-21; 564 NW2d 857 (1997); Myers, supra. In this case, the language of the arbitration provision in the employment manual was clear and it appeared boldfaced, in capital letters, and in a larger font. The provision clearly provided that all claims must be brought within a year. Plaintiff signed both the employment manual and the receipt referencing the employment manual section, § 4.07, containing the time limitation. For these reasons, we find, on review de novo, that plaintiff knowingly, intelligently, and voluntary waived the statutory three-year period of limitations in which to file a claim.
Affirmed.
We find McAlindon persuasive, but note that unpublished opinions are not binding under the rule of stare decisis. MCR 7.215(C)(1); see also Dyball v Lennox, 260 Mich App 698, 705 n 1; 680 NW2d 522 (2004). | [
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Per Curiam.
The Bureau of Worker’s and Unemployment Compensation (the bureau), now the Unemployment Insurance Agency, appeals by leave granted the circuit court opinion and order affirming the decision of the Employment Security Board of Review (the board), which in turn affirmed a hearing referee’s denial of unemployment benefits to the claimant, Dr. Marquetta Jones. We reverse.
I. FACTUAL AND PROCEDURAL HISTORY
After earning her medical degree, claimant participated in a postgraduate medical residency program under the auspices of appellee, the Detroit Medical Center (DMC), and Wayne State University (WSU). Pursuant to the residency agreement, she completed one year in transitional medicine and four years in psychiatry. As a medical resident, claimant was registered as a full-time student at WSU, and her participation in the residency program was governed by a residency agreement that was entered into annually. The program followed a formal curriculum, which included reading assignments and an annual examination. During her residency, claimant obtained and maintained a limited education medical license as required. Claimant was unable to bill patients directly for any services she provided, and she worked under the supervision of an attending physician. Claimant earned a salary of $39,387 a year and received benefits, including paid vacation and insurance for health, dental, life, and long-term disability.
Upon completing her residency in June 2000, claimant filed a claim for unemployment benefits. The DMC opposed the application and requested a determination whether claimant’s services constituted employment under the Michigan Employment Security Act (MESA), MCL 421.1 et seq. The bureau’s predecessor, the Unemployment Agency of the former Department of Consumer and Industry Services (the agency), issued a determination letter that relied on the United States Department of Labor (USDOL) Employment and Training Administration’s UIPL 30-96 and concluded that claimant’s services constituted covered employment under MESA. The DMC protested this determination, and the agency issued a redetermination affirming the initial determination. The DMC appealed. A hearing referee conducted a hearing and issued an opinion reversing the agency’s decision. The referee concluded that claimant’s services were excluded from employment under MCL 421.43(o)(v) and (q)(ii) and that her remuneration was excluded from wages under MCL 421.44. After claimant’s request for a rehearing was denied, she filed an appeal with the board. In a split decision, the board affirmed the referee’s decision. The bureau appealed the board’s decision, and the circuit court affirmed on the basis of MCL 421.43(o)(v) without addressing MCL 421.43(q)(ii). The bureau appeals the circuit court’s opinion and order.
The issue on appeal is whether claimant’s service in the DMC’s medical residency program constitutes employment under MESA.
II. STANDARD OF REVIEW
We have limited review of a trial court’s review of an agency determination. Dana v American Youth Foundation, 257 Mich App 208, 211; 668 NW2d 174 (2003). We must determine “ ‘whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.’ ” Id., quoting Boyd v Civil Service Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). We review for clear error a circuit court’s ruling concerning an administrative agency’s decision. Glennon v State Employees’ Retirement Bd, 259 Mich App 476, 478; 674 NW2d 728 (2003). Accordingly, we will overturn the circuit court’s decision only if we are left with the definite and firm conviction that a mistake has been made. Id.; see also Boyd, supra at 234-235. An agency’s legal rulings are entitled to “deference, provided they are consistent with the purpose and policies of the statute in question.” Adrian School Dist v Michigan Pub School Employees’ Retirement Sys, 458 Mich 326, 332; 582 NW2d 767 (1998); see also Dana, supra at 215. Thus, they will be set aside “if they violate the constitution or a statute or contain a substantial and material error of law.” Adrian School Dist, supra at 332; see also Dana, supra at 215.
However, we review de novo questions of statutory interpretation. Shinholster v Annapolis Hosp, 471 Mich 540, 548; 685 NW2d 275 (2004); Dana, supra at 211. The primary goal in statutory construction is to ascertain and give effect to the Legislature’s intent. Shinholster, supra at 548-549; Dana, supra at 212. We look first to the specific language of the statute, presuming that the Legislature intended the meaning it has plainly expressed. Dana, supra at 212. If the language is clear and unambiguous, judicial construction is neither required nor permitted, and the statute must be enforced as written. Shinholster, supra at 549; Dana, supra at 212.
III. MICHIGAN EMPLOYMENT SECURITY ACT
MESA is a remedial act that was designed to “ ‘safeguard the general welfare through the dispensation of benefits intended to ameliorate the disastrous effects of involuntary unemployment.’ ” Korzowski v Pollack Industries, 213 Mich App 223, 228-229; 539 NW2d 741 (1995), quoting Tomei v Gen Motors Corp, 194 Mich App 180, 184; 486 NW2d 100 (1992); see also MCL 421.2. MESA should be liberally construed to afford coverage and strictly construed to effect disqualification. Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 416; 565 NW2d 844 (1997).
For purposes of determining eligibility for unemployment benefits, MCL 421.42 defines the term “employment” in pertinent part as follows:
(1) “Employment” means service, including service in interstate commerce, performed for remuneration or under any contract of hire, written or oral, express or implied.
***
(5) Services performed by an individual for remuneration shall not be deemed to be employment subject to this act, unless the individual is under the employer’s control or direction as to the performance of the services both under a contract for hire and in fact. [Emphasis added.]
MCL 421.44(1) defines “remuneration” as “all compensation paid for personal services, including commissions and bonuses . . . .” Similarly, MCL 421.44(2) defines “wages” as “remuneration paid by employers for employment. . . .”
In the instant case, the parties stipulated that claimant was subject to the DMC’s direction and control during her residency. Further, she received remuneration, i.e., a stipend and benefits, for her services. Therefore, the services that she provided to the DMC constitute “employment” within the meaning of MESA unless otherwise excluded, regardless of whether the residency agreement can be considered a “contract for hire.”
A. UNEMPLOYMENT WORK-RELIEF OR WORK-TRAINING PROGRAM EXCLUSION
MCL 421.43 provides exclusions to the term “employment” in pertinent part as follows:
Except as otherwise provided in section 42(6), the term “employment” does not include:
***
(o) For purposes of section 42(8), (9), and (10), “employment” does not apply to service performed in any of the following situations:
***
(v) As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by a federal agency or an agency of a state or political subdivision of a state by an individual receiving the work relief or work training.
In Dana, supra at 209, 218, this Court considered MCL 421.43(o)(v) for the first time and concluded that a claimant’s service in the AmeriCorps program did not satisfy the unemployment work-relief or work-training program exclusion from employment. Because the Federal Unemployment Tax Act (FUTA), 26 USC 3301 et seq., contains a work-relief and work-training exclusion nearly identical to the exclusion contained in MCL 421.43(o)(v), interpretations of the FUTA provide highly persuasive, although not binding, authority. Dana, supra at 215; see also Sharp v City of Lansing, 464 Mich 792, 802-803; 629 NW2d 873 (2001). The Dana Court found guidance in UIPL 30-96, which provides interpretations of “work-relief” or “work-training” as used in the federal exclusion. Dana, supra at 215. This Court generally defers to the interpretation of a statute provided by the administrative agency responsible for administering it, unless that interpretation is clearly wrong. Id.
Quoting UIPL 30-96, the Dana Court noted that “[t]he USDOL construed ‘work-relief and ‘work-training’ programs as distinct exclusions . ...” Id. at 216. Specifically, UIPL 30-96 states:
Work-relief projects are primarily intended to alleviate the disadvantaged status of the individual by providing employment. For “work-training,” there is no requirement that the individual must be economically disadvantaged. Instead, work-training focuses on improving the individual’s employability. (This does not, however, preclude the possibility that some work-training programs be limited to the economically disadvantaged.) [61 Fed Reg at 57715; see also Dana, supra at 216.]
UIPL 30-96 further states:
A. Both of the following characteristics must be present in either work-relief or work-training:
(1) the employer-employee relationship is based more on the participants’ and communities’ needs than normal economic considerations such as increased demand or the filling of a bona fide job vacancy;
(2) the products or services are secondary to providing financial assistance, training, or work-experience to individuals to reheve them of their unemployment or poverty ór to reduce their dependence upon various measures of relief, even though the work may be meaningful or serve a useful public purpose.
B. A work-relief or work-training program must have one or more of the following characteristics:
(1) the wages, hours, and conditions of work are not commensurate with those prevailing in the locality for similar work;
(2) the johs did not, or rarely did, exist before the program began (other than under similar programs) and there is little likelihood they will he continued when the program is discontinued;
(3) the services furnished, if any, are in the public interest and are not otherwise provided by the employer or its contractors; and
(4) the jobs do not displace regularly employed workers or impair existing contracts for services.
C. The following characteristic must be present only for work-relief programs:
The qualifications for the jobs take into account as indispensable factors the economic status, i.e., the standing conferred by income and assets, of the applicants. [61 Fed Reg at 57715 (emphasis added); see also Dana, supra at 216-217.]
Although the claimant’s AmeriCorps service embodied several of the enumerated characteristics, including that the participant’s economic status be an indispensable job qualification, the Court concluded that the claimant’s service did not meet the requirements for an exclusion from the definition of “employment.” Specifically, the AmeriCorps program did not “satisfy a key element in order to be considered a work-relief or work-training program.” Dana, supra at 217-218 (emphasis added). The Dana Court found that it is a mandatory-characteristic of either a work-relief or a work-training program that “ ‘the products or services are secondary to providing financial assistance, training, or work-experience to individuals to relieve them of their unemployment or poverty or to reduce their dependence upon various measures of relief . .. .’ ” Id. at 218, quoting UIPL 30-96 (emphasis added). Because the stated purpose of the AmeriCorps program was to encourage community service, “not to provide job training or help alleviate poverty,” the Court concluded that the program could not be classified as a work-relief or work-training program and that the employer could not deny unemployment benefits to the claimant on that basis. Dana, supra at 218. Thus, while the program satisfied portions of UIPL 30-96, it was not excluded from the definition of “employment” under MCL 421.43(o)(v) because it did not satisfy all the mandatory requirements of UIPL 30-96. Dana, supra at 218.
The DMC’s vice president of graduate medical education admitted that residents are used for some staffing purposes. However, the basic purposes of the program are to teach residents how to practice their clinical specialty, by providing patient-care experience, and to prepare residents to take the board certification examination. Thus, the DMC’s relationship with its residents “is based more on the participants’. .. [educational] needs than normal economic considerations,” such as the DMC’s staffing needs. Accordingly, the residency program satisfies part A(1) of UIPL 30-96. The ultimate purpose of the residency program is to train residents to become eligible for the board certification examination and recognized’ as specialists in psychiatry. Completion of a residency program increases a doctor’s ability to become employed because virtually all hospitals require board certification.
Concerning part A(2) of UIPL 30-96, we agree that, because the purpose of the DMC’s medical residency program is to provide training and experience, as discussed earlier, “the products or services” provided by residents, while useful and meaningful, are secondary to providing training or work-experience. Read as a whole, however, part A(2) of UIPL 30-96 provides that, in order to exclude services provided through a work-training program,
the products or services [must be] secondary to providing financial assistance, training, or work-experience to individuals to relieve them, of their unemployment or poverty or to reduce their dependence upon various measures of relief even though the work may be meaningful or serve a useful public purpose. [61 Fed Reg at 57715 (emphasis added).]
Thus, not only must the program have the goals identified in the first portion of part A(2), but its purpose must be “to relieve [the participants] of their unemployment or poverty or to reduce their dependence upon various measures of relief. ...” The DMC’s medical residency program fails to satisfy that requirement. It is undisputed that the residency program does not seek to relieve unemployment, poverty, or dependence on relief. Claimant did not use any such criteria in selecting this residency program, and the DMC did not consider the economic status of applicants during its selection process.
While the DMC’s medical residency program satisfies most of the requirements of UIPL 30-96, it fails to satisfy the second half of part A(2). Accordingly, it cannot be considered an excluded work-training program, and the DMC could not oppose claimant’s claim for unemployment benefits on that basis. The hearing referee and the board committed a material error of law in finding otherwise. The circuit court’s decision affirming the board’s ruling is therefore clearly erroneous, and we therefore reverse.
We are also mindful of the fact that physicians who complete a postgraduate medical residency program are likely to remain encumbered with unpaid debt incurred during medical school. Providing unemployment compensation at the end of a residency while physicians are seeking employment or attempting self-employment promotes the policy of MESA.
Because we find that application of part A(2) of UIPL 30-96 is dispositive of the issues raised in this appeal, we need not consider parts B and C.
B. THE STUDENT EMPLOYMENT EXCLUSION
As its second basis for determining that claimant’s services did not constitute employment, the board relied on the student employment exclusion contained in MCL 421.43(q)(ii). Although this issue was raised and addressed by the hearing referee and the board, the circuit court failed to address it in its opinion and order affirming the board’s decision. We may, however, review it because it is a question of law and the facts necessary for resolution have been presented. Hickory Pointe Homeowners Ass’n v Smyk, 262 Mich App 512, 516; 686 NW2d 506 (2004).
MCL 421.43(q)(ii) provides in pertinent part that employment does not include the following:
(q) Service performed for an employing unit other than a governmental entity or nonprofit organization and which is any of the following:
***
(ii) Service performed by a college student of any age, but only when the student’s employment is a formal and accredited part of the regular curriculum of the school. [Emphasis added.]
Because it is undisputed that the DMC is a nonprofit organization, MCL 421.43(q)(ii) does not apply to exclude from coverage services performed pursuant to the medical residency program at issue. The hearing referee and the board therefore committed a material error of law in finding otherwise.
IV CONCLUSION
Reversed. We do not retain jurisdiction.
UIPL 30-96 is an unemployment insurance program letter, which is directed to state employment security agencies and provides them with an interpretation of federal law requirements.
The FUTA excludes from the definition of employment service performed “as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any Federal agency or an agency of a State or political subdivision thereof or of an Indian tribe, by an individual receiving such work relief or work training[.]” 26 USC 3309(b)(5).
The entire text of UIPL 30-96 is contained in the Federal Register. See 61 Fed Reg 57714 (November 7, 1996).
We note that the Dana Court’s construction of part A(2) also resolves any inconsistency that may exist between the UIPL’s statement that for work-training there is no requirement that an individual be economically disadvantaged and the requirement contained in part A(2) that services performed must be secondary to relieving individuals of their unemployment or poverty.
We also note that, although it oversimplifies the issue, it seems apparent that the term “unemployment” in the phrase “unemployment work-relief or work-training program” modifies “work-training” as well as "work-relief.” See MCL 421.43(o)(v). | [
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O’Connell, P.J.
Plaintiff appeals as of right the trial court’s order granting defendant summary disposition based on plaintiffs failure to bring suit within the one-year period provided in the statute of limitations, MCL 600.308a(3). Plaintiff Morgan is the representative of a proposed class of cable subscribers whom her cable company, Comcast, charged an additional rate to recoup “franchise fees” it paid to defendant pursuant to an agreement dated July 10, 2001. Defendant routed the fee revenues into its general operating fund, giving it nearly $1,425,000 of unallocated revenue in 2002. Defendant only spent about $600,000 in 2003 on local government television programming. Plaintiff claims that the difference between the income and expenditures constitutes an illegal tax contrary to the Headlee Amendment.
Plaintiff first argues that she paid the charge, so her claim accrued when she received her Comcast bill. We disagree. We review de novo a trial court’s decision to grant summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Comcast paid defendant a “franchise fee” consisting of five percent of its gross revenues. The five percent fee is specifically permitted by the federal Cable Communications Policy Act, 47 USC 521 et seg., which also allows cable providers to list separately in their billing statements the amount representing the subscriber’s portion of the franchise fee. 47 USC 542. However, the mere listing of the charge on a separate line does not render plaintiff the charge’s payer. Rather, plaintiff paid her entire bill according to her contractual obligation to Comcast, which paid the charge to defendant according to the franchise agreement. Defendant had no recourse against plaintiff for any unpaid portion of her bill, so this case is analogous to a sales tax scenario in which the seller passes on the sales tax obligation to the buyer but remains primarily liable to pay the tax. World Book, Inc v Dep’t of Treasury, 459 Mich 403, 407-408; 590 NW2d 293 (1999); Sims v Firestone Tire & Rubber Co, 397 Mich 469, 474; 245 NW2d 13 (1976). In those situations, courts have generally held that the sellers must challenge the illegal taxes directly, and the consumers have no standing to pursue tax relief unless the tax burden potentially interferes with a federal right. See Nat’l Bank of Detroit v Dep’t of Revenue, 334 Mich 132, 141-142; 54 NW2d 278 (1952), and the cases cited therein. In short, when the tax obligation falls primarily on the retailer, “retailers are considered to be the taxpayers.” Sims, supra at 474. In this case, Comcast, as the retailer, paid the charge and merely passed the charge’s burden onto plaintiffs shoulders.
In Taxpayers Allied for Constitutional Taxation [TACT] v Wayne Co, 450 Mich 119, 124-125 n 7; 537 NW2d 596 (1995), our Supreme Court held that individuals who do not pay a tax directly may still challenge whether the tax violates the Headlee Amendment. Const 1963, art 9, § 32. However, the Court noted that the one-year statute of limitations, MCL 600.308a(3), would apply to such a plaintiff and would begin running at the time the offending tax resolution was enacted. TACT, supra at 125 n 7. The Court reasoned that “the only wrong that could give rise to a cause of action is the enactment of the resolution — an action that is not continuing in nature.” Id. at 124-125 n 7.
Like the situation described in TACT, the starting point for the limitations period depends on when the defendant did the alleged wrong. Plaintiff points to the moment she received her bill as the moment of initiation, but the inclusion of the charge on the bill was Comcast’s action, not defendant’s. Similarly, defendant’s collection from Comcast would not initiate the period, because the collection would be a wrong against Comcast, not plaintiff. Following the example in TACT, plaintiffs Headlee claim accrued when defendant first imposed the “franchise fee” on Comcast — July 10,2001. Because plaintiff failed to bring her Headlee claim within one year from that date, the trial court correctly granted defendant’s motion for summary disposition.
Affirmed.
SCHUETTE, J., concurred
BORRELLO, J. I concur in the result only.
Plaintiff Mary Morgan was never granted class certification below, so the singular term “plaintiff” refers to her individually. Furthermore, because there is no class, our holding affects all the claims and disposes of the entire suit.
Specifically, plaintiff claims that the “franchise fee” defendant charges Comcast is a new local tax levied without voter approval contrary to a Headlee provision in the Michigan Constitution. Const 1963, art 9, § 31. | [
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Bashara, P.J.
Defendant Rita Shears appeals from a declaratory judgment holding that a household exclusionary clause in the automobile insurance policy of defendant Richard Shears released the plaintiff insurer from any duty to defend an action brought against Richard Shears by appellant or to satisfy any judgment arising therefrom.
On September 3, 1973, Mr. Shears struck and killed his three-year-old daughter while backing his truck out of the driveway. Following a divorce, Rita Shears brought an action against her ex-husband in her own name and as special administratrix of the estate of her daughter for damages arising from the accident.
The household exclusionary clause in question states in pertinent part:
"Coverage A — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay * * * because of * * * death * * * arising out of the ownership, maintenance or use of the automobile.
"This policy does not apply:
:(t) under Coverage A, to bodily injury to (1) the spouse or any parent, son or daughter of the insured, or (2) the named insured.”
The validity of similar household exclusionary clauses has been considered by numerous panels of this Court. In Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich App 513; 194 NW2d 193 (1971), a split panel upheld an exclusionary clause barring a named insured from recovery. The named insured had been a passenger in his own car which was being permissibly operated by another person when an accident occurred. This same result was reached in State Farm Fire & Casualty Co v Peckham, 74 Mich App 551; 254 NW2d 575 (1977), wherein the Court based its decision on the Weisberg precedent.
However, other panels of this Court have declined to follow the Weisberg rationale and found such clauses to be void as against public policy. Gurwin v Alcodray, 77 Mich App 97; 257 NW2d 665 (1977), Allstate Ins Co v DeFrain, 81 Mich App 503; 265 NW2d 392 (1978), State Farm Mutual Automobile Ins Co v Traycik (After Remand), 86 Mich App 285; 272 NW2d 629 (1978).
The Michigan Supreme Court addressed the issue of household exclusionary clauses in the recently released case of State Farm Mutual Automobile Ins Co v Sivey, 404 Mich 51; 272 NW2d 555 (1978). The Court held that an exclusion of a named insured in an automobile insurance policy contravened public policy. The Court specifically rejected the Weisberg majority opinion and adopted Judge (now Justice) Levin’s dissent.
Plaintiff argues that the Sivey case is applicable only to accidents occurring prior to the amendment of the Motor Vehicle Accident Claims Act and those occurring since the no-fault legislation. We cannot accept this argument. The reference to the financial responsibility act, MCL 257.520(b)(2); MSA 9.2220(b)(2), in the Motor Vehicle Accident Claims Act, MCL 257.1102(d); MSA 9.2802(d), was replaced with a reference to MCL 500.3009(2); MSA 24.13009(2).
The 1971 amendment has not been interpreted as working a change in the state’s public policy as set forth in the former statute. The amendment allows only a very narrow exclusion of liability coverage when a vehicle is operated by a named person. The household exclusion seeks to avoid liability when certain persons are injured. The statutory exclusion is clearly inapplicable in such a situation. Citizens Mutual Ins Co v Central National Ins Co of Omaha, 65 Mich App 349, 352-354; 237 NW2d 322 (1975), Detroit Automobile Inter-Ins Exchange v Van Slyke, 82 Mich App 237; 266 NW2d 771 (1978).
The exclusionary clause in question is invalid. It is neither authorized by statute nor in harmony with the legislative purpose of comprehensive liability coverage as interpreted by the judiciary.
Reversed.
A vigorous dissent was lodged in this case by Judge (now Justice) Levin.
MCL 257.1102(d); MSA 9.2802(d), prior to amendment, provided:
"(d) 'Uninsured motor vehicle’ means a motor vehicle as to which there is not in force a liability policy meeting the requirements of the motor vehicle responsibility law of this state, established pursuant to the provisions of chapter 5 of Act No. 300 of the Public Acts of 1949, as amended, being sections 257.501 to 257.532 of Compiled Laws of 1948, and which is not owned by a holder of self-insurance under this law.”
MCL 257.520(b)(2); MSA 9.2220(b)(2) provides:
"(b) Such owner’s policy of liability insurance:
"(2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: $20,000.00 because of bodily injury to or death of 1 person in any 1 accident and, subject to said limit for 1 person, $40,000.00 because of bodily injury to or death of 2 or more persons in any 1 accident, and $10,000.00 because of injury to or destruction of property of others in any 1 accident.”
After the 1971 amendment, MCL 257.1102(d); MSA 9.2802(d) provided:
"(d) 'Uninsured motor vehicle’ means a motor vehicle as to which there is not in force a liability policy meeting the requirements of section 3009 of Act 218 of the Public Acts of 1956, as added, being section 500.3009 of the Compiled Laws of 1948, and which is not owned by a holder of self-insurance as provided in section 531 of Act No. 300 of the Public Acts of 1949, as amended, being section 257. 531 of the Compiled Laws of 1948.”
MCL 500.3009(1); MSA 24.13009(1) provides:
"Sec. 3009. (1) An automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for property damage, bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall not be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless such liability coverage as is provided therein is subject to a limit, exclusive of interest and costs, of not less than $20,000.00 because of bodily injury to or death of 1 person in any one accident, and, subject to said limit for 1 person, to a limit of not less than $40,000.00 because of bodily injury to or death of 2 or more persons in any one accident, and to a limit of not less than $10,000.00 because of injury to or destruction of property of others in any accident.” | [
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ON REMAND
Before: SAAD, P.J., and TALBOT and FORT HOOD, JJ.
Talbot, J.
This original action returns on remand from our Supreme Court to explore the factual support for plaintiffs’ claim that the record-keeping obligations required of plaintiff school districts by MCL 388.1752 and Executive Order No. 2000-9 (EO) constitute new, unfunded mandates in violation of the second sentence of § 29 of the Headlee Amendment, Const 1963, art 9, § 29. Adair v Michigan, 470 Mich 105, 129-131, 133; 680 NW2d 386 (2004). The state seeks summary disposition pursuant to MCR 2.116(C)(10). We hold that plaintiffs have failed to present documentary support from which it can be inferred that either MCL 388.1752 or the EO mandates the school districts to actively participate in the maintenance of data that the state requires for its own purposes. Accordingly, we grant summary disposition in favor of defendants and dismiss plaintiffs’ remaining claims with prejudice.
i
This action is brought pursuant to the second sentence of Const 1963, art 9, § 29, which is commonly referred to as the “prohibition on unfunded mandates” (POUM) provision. Adair II, supra at 111. Under the POUM provision, a plaintiff “must show that the state-mandated local activity was originated without sufficient state funding after the Headlee Amendment was adopted or, if properly funded initially, that the mandated local role was increased by the state without state funding for the necessary increased costs.” Id. This does not mean, however, that, under a POUM analysis, every required change in school activities requires state funding under the Headlee Amendment. Id. at 112; Judicial Attorneys Ass’n v Michigan, 460 Mich 590, 603; 597 NW2d 113 (1999). “Headlee, at its core, is intended to prevent attempts by the Legislature ‘to shift responsibility for services to the local government... in order to save the money it would have had to use to provide the services itself.’ ” Adair II, supra at 112, quoting Judicial Attorneys Ass’n, supra at 602-603.
Plaintiffs are school districts and taxpayers seeking a declaratory judgment that the state has failed to honor its obligation to reimburse the school districts for the necessary costs of maintaining certain records on behalf of the state. In their original complaint, plaintiffs alleged, among other claims, that the state required school districts to collect and maintain certain data regarding students, programming, and facilities and to transmit those data over the Internet to the state’s Center for Educational Performance and Information (CEPI). Plaintiffs further alleged that those record-keeping obligations required the districts to actively maintain data that the state required for its own purposes. The state’s failure to fund the districts’ costs in carrying out those obligations, according to plaintiffs, violates the POUM provision of the Headlee Amendment.
The state moved for summary disposition on the ground that plaintiffs failed to state a claim for a violation of the POUM provision. The state asserted that the record-keeping functions required by MCL 388.1752 and the EO existed at the time the Headlee Amendment was ratified. As support for this assertion, the state relied on MCL 388.1552, as enacted by 1977 PA 90 and repealed by 1979 PA 94. This statutory provision required school districts to “furnish to the department [of education] those reports as the department considers necessary for the determination of the allotment of funds” under the State School Aid Act. Because it possessed broad powers to require school districts to collect and provide data under MCL 388.1552, the state asserted that the record-keeping functions required by MCL 388.1752 and the EO do not increase the level of an activity or service beyond that required in 1978. In the alternative, the state argued that the record-keeping functions required by MCL 388.1752 and the EO are not activities or services within the meaning of the POUM provision.
We had previously granted summary disposition in favor of the state, in a two-to-one decision, on the ground that “neither MCL 388.1752 nor Executive Order 2000-6, separately or in combination, mandate[s] a new activity or increased] the level of a state-mandated activity within the meaning of the POUM clause.” Adair v Michigan, 250 Mich App 691, 711; 651 NW2d 393 (2002). The majority observed that the record-keeping obligations existed by statute before the ratification of the Headlee Amendment. MCL 388.1752 merely clarified the scope of the preexisting record-keeping obligations, without substantively changing the nature of the obligations. Adair I, supra at 712. Citing MCL 21.233(7), the majority ruled, “Clarifying nonsubstantive changes in an earlier, existing state law does not constitute a new activity or service or increase in the level of an existing activity or service.” Adair I, supra at 712.
With regard to the effects of the EO, the majority opined that the order mandated no new activity within the meaning of the POUM provision:
The data addressed by the executive order [are] already in the possession of plaintiff districts and agencies in various forms as a by-product or necessary consequence of general school operations. Plaintiff school districts and agencies are already under a broad duty to report a variety of data pursuant to MCL 388.1752. To the extent that plaintiff districts and agencies are now required to report the information in a uniform manner through the Internet, we believe that such activity does not implicate art 9, § 29, because the state may require local units of government to take advantage of improved technology to streamline and increase the efficiencies of a process by which the public is served without running afoul of the goals of the Headlee Amendment. Judicial Attorneys Ass’n, supra at 605.
Further, the gathering of this data and [their] transfer to a central location for use in evaluating the efficiency and effectiveness of the educational delivery process and in developing improved methods of providing elementary and secondary education are administrative functions that constitute the essence of the state’s constitutional obligation to “maintain and support a system of free public elementary and secondary schools ....” Const 1963, art 8, § 2. In effect, the executive order executes a constitutional mandate. Accordingly, the activities required by the order fall outside the ambit of the restrictions imposed by the Head-lee Amendment. Durant [a State Bd of Ed, 424 Mich 364, 387-388; 381 NW2d 662 (1985).] As observed by a panel of this Court in Durant [v Dep’t of Ed (On Remand), 129 Mich App 517, 524; 342 NW2d 591 (1983)], not all functions performed by a school district are required by state law within the meaning of the Headlee Amendment. For these reasons, we grant summary disposition in favor of the state pursuant to MCR 2.116(0(10) with regard to ¶ 22K of count III of the second amended complaint. [Adair I, supra at 713-715.]
Our Supreme Court vacated this Court’s grant of summary disposition, finding that we “erred in concluding that the statute and the order do not mandate new activities within the meaning of the Headlee Amendment.” Adair II, supra at 129. In doing so, the Court acknowledged that plaintiff school districts were under a broad statutory obligation to report to the state whatever information the statute required that predated the ratification of the Headlee Amendment. Id. It further acknowledged that “[t]he Headlee Amendment is not necessarily implicated when the state increases or changes what information it requires because the schools’ obligation to provide that information has existed since before the time Headlee was effective.” Id.
After these acknowledgements, however, the Court pointed out that plaintiffs had not only alleged that MCL 388.1752 and the EO required different data from the school districts, but also had alleged that the statute and the EO required plaintiffs to “actively participate in maintaining data that the state requires for its own purposes.” Id. at 129-130. More simply stated, “plaintiffs here alleged new requirements that were not funded at all.” Id. at 130. The Supreme Court reminded this Court that “[a]n off-loading of state funding responsibilities onto local units of government without the provision of funds presents a colorable claim under Headlee.” Id. The Court then opined that plaintiffs had stated a claim on which relief could be granted with regard to the record-keeping activity. It remanded the matter to this Court to allow the parties to “explore the factual support” for plaintiffs’ allegations that the record-keeping activities “constitute[] a new, unfunded mandate in violation of the Headlee Amendment.” Id. at 130-131.
On remand, plaintiffs filed their third amended complaint, at which point plaintiffs pleaded the nature of their record-keeping claim with more specificity. Plaintiffs alleged that Michigan’s Governor established the CEPI on September 28, 2000, through EO 2000-9. According to plaintiffs, the CEPI implemented and administers the Michigan Education Information System. School districts use the information system to collect, maintain, update, and electronically transmit data pursuant to instructions prescribed by the CEPI. Plaintiffs represent that the data are generated for inclusion in six core data sets. Plaintiffs further allege that:
17. Prior to each required submission cycle, CEPI reviews, and often modifies the manner in which data is [sic] required to be reported by local school districts by updating the specifications for each of the hundreds of data fields, . including adding, editing and eliminating data fields, and changing definitions and instructions for reporting.
18. In order to satisfy the CEPI requirements, plaintiff school districts are required, on an on-going basis, to expend significant amounts of time, at very considerable expense, in planning, preparing, training staff members and consulting with CEPI personnel, due to frequent changes in definition, data fields, and coding schemes and changes in directions as to how the information is to be reported and submitted.
After setting forth certain allegations regarding the nature of the information the school districts are required to collect and report to the CEPI, plaintiffs alleged that these mandated activities and services were first required of the school districts after Durant v Michigan, 456 Mich 175; 566 NW2d 272 (1997), was issued. Also according to plaintiffs, the state has failed to pay the school districts for the necessary increased costs of providing the required data to the state.
The state again seeks summary disposition. The state argues that it is entitled to summary disposition under MCR 2.116(0(10) because the data collection and reporting activities are not post -Durant I activities, and our Supreme Court has already expressly ruled in this case that the state may increase or change the data that school districts must collect and maintain without implicating the Headlee Amendment. Further, the data at issue exist at the individual school district level and are already in the possession of each school district as a by-product or necessary consequence of general school operations.
The state also argues that it is entitled to summary disposition because (1) the limitations of the Headlee Amendment are only implicated when the state shifts its fiscal responsibility for school operations to local units of government, (2) plaintiffs cannot show any such shifting of responsibility, (3) the recording-keeping functions plaintiffs identify merely continue the local school districts’ existing obligations to collect, maintain, update, and transmit data to the state, as required by state and federal law, (4) the requirement that school districts electronically transmit data in a particular format and according to certain specifications is an instance of the state mandating higher standards for existing obligations, which it can do without implicating or violating the Headlee Amendment, and (5) the changes made to the manner in which the school districts transmit data to the state are required to improve efficiencies of data reporting through the use of current, advanced technologies and eliminate outdated, paper-based reporting and the inefficient Education Data Network, rather than off-load fiscal responsibility for school operations. The state maintains that any increased spending attributable to causes other than the off-loading of state funding responsibilities does not implicate the Headlee Amendment.
Plaintiffs respond that (1) the amount of data school districts are required to collect and transmit to the CEPI reflects a dramatic increase in the types of information that school districts must compile, maintain, and report, (2) the reporting requirements are extremely burdensome and extremely technical and have forced school districts to purchase additional equipment and devote significant amounts of staff time to comply with them, (3) although some of the information was previously reported to the state by the school districts, other information is being reported for the first time, and (4) the school districts are now required to continually update, aggregate, or disaggregate the data, which is a newly imposed obligation. Under these circumstances, plaintiffs contend, genuine issues of material fact exist with regard to whether the state has offloaded state funding responsibilities onto local school districts.
Finally, plaintiffs assert that the Supreme Court, in its opinion in this case, rejected the state’s argument that the changes made by the CEPI do not constitute new or increased levels of activities or services for purposes of the Headlee Amendment.
II
A motion brought pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). We review the pleadings, affidavits, and other documentary evidence submitted, make all reasonable inferences therefrom, and determine whether a genuine issue of material facts exists. Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995). A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds could differ. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
The movant must specifically identify the matters that have no disputed factual issues, MCR 2.116(G)(4); Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999), and has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence, Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999). To survive a motion for summary disposition, the nonmoving party must then produce evidence showing a material dispute of fact left for trial. Dimondale v Grable, 240 Mich App 553, 566; 618 NW2d 23 (2000). When the burden of proof at trial would rest on the nonmoving party, the nonmovant may not rely upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue of material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
III
In this Court’s previous decision, we found that the state was entitled to summary disposition with regard to the claims advanced by plaintiffs under both the “new activity or service” prong and the “increased level of an activity or service” prong of the POUM provision. Adair I, supra at 693, 711. Our Supreme Court, how ever, focused solely on the “new activity or service” prong of the POUM provision. Adair II, supra at 130-131. The more narrow focus of the Supreme Court’s decision indicates an implicit rejection by the Court of plaintiffs’ claim that MCL 388.1752 and the EO resulted in an unconstitutional increase in the level of an existing activity or service. Accordingly, on remand, the parties are limited solely to the question whether factual support exists for plaintiffs’ claim that the record-keeping function required by the statute and the EO constitutes a mandated new activity for which the state has shifted its funding responsibility to the school districts by requiring the school districts to actively participate in maintaining data that the state requires for its own purposes. Stated another way, in order to survive summary disposition, plaintiffs must show that a genuine question of material fact exists with regard to whether the statute and the EO require the districts to collect and maintain data for which they have no use and would not collect and maintain but for the dictates of the CEPI and the state’s need of the information for its own purposes.
The state supports its motion with the affidavits of Dr. Margaret Merlyn Ropp, the Director of the CEPI; Oren Christmas, the Manager of the Data Analysis and Reporting Services for the CEPI; Glenda Rader, the Deputy Director of State School Aid and Finance in the Department of Education; and Lynne Erickson, an education consultant for the CEPI, as well as certain technical documents. This documentation supports the state’s position that the challenged record-keeping mandate requires school districts to produce data that the state required the districts to produce before the issuance of the EO, with the exception of certain data the districts are required to maintain and transmit to the Registry of Educational Personnel (REP). This documentation also supports the conclusion that the reporting process created by the CEPI is more efficient, more secure, and more user-friendly than the prior reporting methods dictated by the state and employed by the districts.
Plaintiffs submit the affidavits of Tamra Arens, an operational assistant for the Birmingham Public Schools; Jane Holloway, a record support system analyst for the Birmingham Public Schools; Renee Koehn, a second operational assistant for the Birmingham Public Schools; Estralee Michaelson, the Director of Safe Schools and Student Services for the Farmington Public School District; and Mary Reynolds, the Executive Director of Business for the Farmington Public School District. Plaintiffs devote a significant portion of each affidavit to establishing the degree to which the record-keeping requirements of the CEPI have substantially increased the workload, and the associated labor and equipment costs, of the school districts and, thus, the level of state-mandated activities required of them. The remaining averments contained in the affidavits support plaintiffs’ claim that the CEPI has mandated that school districts collect and maintain some new data to be transmitted to the RER as well as the Single Record Student Database (SRSD) and the School Infrastructure Database (SID).
Plaintiffs well document that the mandates of MCL 388.1752 and the EO have resulted in the school districts acquiring new equipment; devoting increased staff time to collecting, maintaining, and transmitting the mandated data; and incurring the costs associated with equipment acquisition and labor reallocation. Such documentation is relevant only to a determination of whether the mandates violate the “increased level of service” prong of the POUM provision. As we have already observed, however, our Supreme Court rejected plaintiffs’ claim that MCL 388.1752 and the EO resulted in an unconstitutional increase in the level of an existing activity or service. Accordingly, the documentation is not relevant to this proceeding on remand, which is concerned with proof of an alleged violation of the “new activity or service” prong of the POUM.
This is not to say, however, that plaintiffs have failed to provide any documentation pertaining to the purported violation of the “new activity or service” prong. Indeed, plaintiffs provide affidavits containing factual averments from which it could be concluded that the school districts are required by the CEPI to collect and maintain some new data that they were not required to collect and maintain before 1997 with regard to the REI] the SID, and the SRSD. These affidavits, when juxtaposed against the documentation supplied by the state, create factual questions with regard to the nature and extent that the CEPI mandates the collection and maintenance of new information. These factual questions are not material, however, to the resolution of the question before us. As our Supreme Court indicated, the Headlee Amendment is directed at preventing the state from off-loading its obligations to avoid its funding responsibilities. Adair II, supra at 112, 130. The affidavits offered by plaintiffs are deficient in this latter regard. They contain no express factual averments indicating, or even supporting an inference, that the new data they are now required to collect and maintain are data for which the districts have no use and would not otherwise collect and maintain but for the dictates of the CEPI. Similarly, the affidavits offered by plaintiffs contain no express factual averments that these new data are used only by the state for its own purposes.
Accordingly, we find that plaintiffs’ record-keeping claim cannot survive summary disposition in the absence of any factual support, either express or inferential, demonstrating that a genuine issue of material fact exists with regard to whether the dictates of MCL 388.1752 and the EO impermissibly shift a state obligation to the school districts to avoid the costs of the obligation. We grant summary disposition in favor of the state and dismiss plaintiffs’ remaining claim with prejudice.
For ease of reference, this case will be referred to as Adair II in subsequent citations.
The motion for summary disposition is being decided without oral argument. MCR 2.119(E)(3), 7.206(D)(3).
For ease of reference, this case will be referred to as Adair I in subsequent citations.
For ease of reference, this case will be referred to as Durant I. | [
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Meter, J.
Plaintiff appeals as of right an order of the Court of Claims granting summary disposition to defendant under MCR 2.116(C)(4) (lack of subject-matter jurisdiction). The court concluded that plaintiff should have filed her lawsuit in the circuit court as opposed to the Court of Claims. We disagree and, therefore, reverse.
On June 10, 2004, plaintiff, a former state employee, filed a complaint alleging that she was enrolled in the long-term disability (LTD) and income protection plan for state of Michigan employees. Plaintiff claimed that she became disabled and that defendant paid her LTD benefits from 2001 until approximately May 12, 2003. She claimed that defendant, in a decision by the Office of the State Employer (OSE), erroneously stopped paying her the benefits in May 2003 and that she was entitled to “disability benefits from and after May 12, 2003, unless and until [pjlaintiffs eligibility otherwise ceases or expires.”
On July 22, 2004, plaintiff filed a first amended complaint, mainly reiterating the information and claims in her original complaint but adding that (1) defendant’s decision to deny LTD benefits to plaintiff was not subject to review by the Michigan Civil Rights Commission or any other state agency, (2) “[defendant’s decision to deny disability benefits to [plaintiff was made without an evidentiary hearing,” and no such hearing was in fact required by law, and (3) defendant broke a contract in denying plaintiff LTD benefits.
On January 26, 2005, defendant filed a motion for summary disposition under MCR 2.116(C)(4). Defendant argued that, under Preserve the Dunes, Inc v Dep’t of Environmental Quality, 471 Mich 508, 519; 684 NW2d 847 (2004), judicial review of an administrative decision is available by way of (1) the process set forth in the statute applicable to the agency in question; (2) an appeal to the circuit court under various Michigan court rules and under MCL 600.631, a provision of the Revised Judicature Act (RJA), MCL 600.101 et seq.; or (3) the review process provided in the Administrative Procedures Act (APA), MCL 24.201 et seq.
Defendant claimed that the first option from Dunes was unavailable because there is no statutory review process applicable to the OSE. Defendant also claimed that the third option was unavailable because the OSE is not actually considered an “agency” under the APA and because no “contested case” had been in existence. Defendant claimed that only the second option was available and that, in accordance with MCL 600.631, plaintiff should have filed her lawsuit in the circuit court in her county of residence or in the Ingham Circuit Court. Defendant argued that the applicable standard of review was set forth in Const 1963, art 6, § 28, and that the reviewing court was therefore limited to determining whether the OSE’s decision was “authorized by law.”
Defendant additionally moved for summary disposition under MCR 2.116(C)(8). Defendant argued that plaintiff was a “classified” employee and that classified employees have no express or implied employment contracts. Defendant stated that “no classified employee can reasonably expect that she would be entitled to LTD benefits if she is no longer totally disabled” (Emphasis supplied by defendant.)
Plaintiff filed a responsive brief on February 11, 2005. She argued that the Court of Claims had jurisdiction over her lawsuit because, under MCL 600.6419(1)(a), the Court of Claims has jurisdiction to hear all contractual claims against the state. She further argued that defendant’s reliance on MCL 600.631 was misplaced because that statute applies only to a state agency “authorized... to promulgate rules.” Plaintiff contended that the OSE is not in fact authorized to promulgate rules.
Plaintiff additionally argued that she clearly entered into a contract with defendant because she agreed to pay money, and did pay money, for long-term disability coverage. Plaintiff took issue with defendant’s allegation that classified employees do not have express or implied employment contracts, emphasizing that her claim was not one for job reinstatement and was “not against the [defendant as her employer [but] ... against the [defendant [as a] self-funded insurer ... Plaintiff stated that defendant breached a contract by denying her benefits and that she was entitled to rectify the breach in the Court of Claims.
The court granted defendant’s motion for summary disposition on February 16, 2005, evidently concluding that the Court of Claims lacked subject-matter jurisdiction over the case.
On appeal, plaintiff argues that the Court of Claims did in fact have subject-matter jurisdiction over her case. We review de novo a trial court’s grant or denial of a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “Jurisdictional questions under MCR 2.116(C)(4) are questions of law that are also reviewed de novo” on appeal. Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d 733 (2001).
In Dunes, supra at 519, the Court stated:
In general, judicial review of an administrative decision is available under the following statutory schemes: (1) the review process prescribed in the statute applicable to the particular agency, (2) an appeal to circuit court pursuant to the Revised Judicature Act (RJA), MCL 600.631, and Michigan Court Rules 7.104(A), 7.101, and 7.103, or (3) the review provided in the Administrative Procedures Act (APA), MCL 24.201 et seq.
The first option mentioned in Dunes is not available here because there is no “review process prescribed in [a] statute applicable” to the OSE. Both parties agree with this conclusion. With regard to the third option, both parties contend that, because the OSE was created by an executive order, it is derived from gubernatorial authority and is not considered an “agency” under the APA. See MCL 24.203(2) (“[a]gency does not include an agency in the legislative or judicial branch of state government [or] the governor”). We conclude that we need not decide whether the OSE is an “agency” within the meaning of the APA. Indeed, even if the OSE were considered an “agency” under the APA, the APA procedures apply to “contested cases.” MCL 24.301. There was no “contested case” here, because there was no requirement that the OSE provide the opportunity for an evidentiary hearing to individuals being denied benefits. See MCL 24.203(3) (defining the phrase “contested case”). Accordingly, the third option is unavailable. The present dispute centers on the second option. Defendant claims that it applies, while plaintiff claims that it does not.
MCL 600.631, the statute central to the second option from Dunes, states:
An appeal shall lie from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham county, which court shall have and exercise jurisdiction with respect thereto as in nonjury cases. Such appeals shall be made in accordance with the rules of the supreme court.
Plaintiff claims that because the OSE is not authorized to promulgate rules, MCL 600.631 cannot govern the question of jurisdiction in this case. Plaintiff argues that jurisdiction is instead governed by MCL 600.6419(1)(a), which states that the Court of Claims may “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.”
In making her argument that the Court of Claims has jurisdiction over her lawsuit, plaintiff relies in part on Parkwood Ltd Dividend Housing Ass’n v State Housing Dev Auth, 468 Mich 763; 664 NW2d 185 (2003). In Parkwood, supra at 765, the plaintiff received a mortgage from the defendant to finance the construction of an apartment complex. After the defendant indicated its intention to retain, after the payoff of the mortgage, certain funds that had been placed in escrow, the plaintiff filed a contract-based action for declaratory relief in the circuit court, seeking a declaration that the money in escrow belonged to the plaintiff. Id. at 764-765. The circuit court concluded that the Court of Claims had exclusive jurisdiction over the case and therefore dismissed it. Id. at 766. The plaintiff appealed the order of dismissal and also refiled its complaint in the Court of Claims, which then granted summary disposition to the defendant. Id. The plaintiff also appealed from the order granting summary disposition to the defendant. Id. The appeals were consolidated, and the Court of Appeals determined that the Court of Claims did not have jurisdiction over the case because that court “only has jurisdiction over claims for monetary damages,” and the plaintiff was seeking merely declaratory relief. Id.
The Supreme Court in Parkwood concluded that the plaintiff was indeed seeking declaratory relief, stating that the plaintiff was “seeking a declaration regarding its entitlement to money in certain accounts, at such time that it prepays the mortgage.” Id. at 771. The Supreme Court further concluded that the Court of Claims had jurisdiction, emphasizing that “[t]he plain language of [MCL 600.6419(1)(a)], the primary source of jurisdiction for the Court of Claims, does not refer to claims for money damages or to claims for monetary relief.” Parkwood, supra at 772. The Court stated, “Because the present case involves a contract-based claim for declaratory relief against a state agency, we conclude that it falls within the exclusive jurisdiction of the Court of Claims under the plain language of [MCL 600.6419(1)(a)].” Parkwood, supra at 772 (emphasis added). The Court indicated that the jurisdiction of the Court of Claims was limited to claims involving contract or tort, unless ancillary jurisdiction over noncontract, nontort claims was invoked under MCL 600.6419a. Parkwood, supra at 772 n 7, 773.
The Parkwood Court’s emphasis on the plain language of MCL 600.6419(1)(a) does indeed provide support for plaintiffs position in the instant case, given that plaintiff did enter into a contract with defendant that provided for LTD benefits in the event she became disabled and given that she now seeks redress for the breach of that contract. Defendant argues that plaintiff did not in fact enter into a contract with defendant because “ [classified employees do not have contracts governing the terms of their employment that are either express or implied.” The cases defendant cites, however, do not support this sweeping statement. For example, in Matulewicz v Governor, 174 Mich App 295, 304; 435 NW2d 785 (1989), the Court stated that a state employee has no contractual right to keep his job, but, instead, has something akin to a “property right” in his job. Here, plaintiff is not seeking reinstatement in her job, but instead is attempting to enforce a contract of insurance. Moreover, in two additional cases cited by defendant, Engquist v Livingston Co, 139 Mich App 280, 283-284; 361 NW2d 794 (1984), and Dyer v Dep’t of State Police, 119 Mich App 121, 125-126; 326 NW2d 447 (1982), panels of this Court distinguished Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), and concluded that state employees had no contractual rights based on long-term policies or practices that their employers had earlier followed. In the present case, plaintiff is not claiming a breach of contract based on a longstanding policy or practice but is focusing on a specific insurance policy for which she gave consideration in the form of premium payments.
We conclude that Parkwood and the plain language of MCL 600.6419(1)(a) support plaintiffs position on appeal, despite defendant’s attempts to characterize plaintiffs claim as something other than contractual.
Plaintiff also cites Guiles v Univ of Michigan Bd of Regents, 193 Mich App 39; 483 NW2d 637 (1992), in support of her position. In Guiles, supra at 40-41, the defendant denied LTD benefits to the plaintiff, a University of Michigan employee. The plaintiff sued the defendant in the Court of Claims, which granted the defendant’s motion for summary disposition, concluding, in part, that the “arbitrary and capricious” standard of review applied to the plaintiffs lawsuit. Id. at 41-43. The plaintiff appealed, arguing, in part, that “the Court of Claims should have reviewed the matter de novo with the appropriate inquiry being simply whether plaintiff was disabled within the meaning of the disability policy.” Id. at 43. This Court agreed, indicating that a de novo standard of review applied because the employer did not make it explicitly clear that it had “the last word on entitlement to benefits” but merely required that a claimant submit “satisfactory proof” of loss. Id. at 43-47, 47 n 4. Essentially, the Court, relying on Firestone Tire & Rubber Co v Bruch, 489 US 101, 115; 109 S Ct 948; 103 L Ed 2d 80 (1989), concluded that a de novo standard of review applied in cases involving the denial of benefits unless “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Guiles, supra at 44, 46-47.
Guiles provides guidance to us with respect to the instant case. Specifically, we find it significant that the plaintiff in Guiles filed her lawsuit in the Court of Claims, and this Court did not indicate that the Court of Claims lacked subject-matter jurisdiction over the lawsuit. Admittedly, the issue of subject-matter jurisdiction as it is framed by the parties in the instant case was not raised by the parties in Guiles, but it is significant that in Guiles, both parties, the Court of Claims, and the Court of Appeals simply assumed that the Court of Claims had subject-matter jurisdiction. We discern no reason why the instant case should be treated differently. Indeed, we discern no reason why a denial of LTD benefits by the University of Michigan Board of Regents, a state entity, should be treated differently from a denial of LTD benefits by the OSE, when both entities were responsible for benefits determinations and neither entity had provisions in place for evidentiary hearings should an employee contest a denial of benefits.
Defendant claims that this case is governed by MCL 600.631, which, as noted earlier, states:
An appeal shall lie from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham county, which court shall have and exercise jurisdiction with respect thereto as in nonjury cases. Such appeals shall be made in accordance with the rules of the supreme court.
Defendant contends that review of OSE decisions must take place in the circuit court because of this statute and it asserts that the OSE is authorized to promulgate rules by way of Executive Order No. 2002-18. Presumably, defendant is referring to the language in EO 2002-18 stating that the director of the OSE “shall formulate, execute, and administer labor-management relations policies for classified employees” and shall, among other things,
develop and administer the statewide drug and alcohol testing program, statewide safety and health system, long-term disability plan, disability management programs, and the workers’ compensation program for active state employees of the executive branch.
We question whether the duties of the OSE include the “promulgation] [of] ‘rules’ within the meaning of MCL 600.631. Nevertheless, we need not decide this issue today, because another phrase from MCL 600.631 is dispositive. MCL 600.631 states that “[a]n appeal shall he from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law ... .” We conclude that an individual, such as plaintiff, who is enrolled in defendant’s LTD insurance program and contends that defendant has erroneously denied benefits does indeed have an opportunity for judicial review of that denial — she can bring suit in the Court of Claims. The contractual nature of the claim, the plain language of MCL 600.6419(1)(a), and the cases of Parkwood and Guiles support this conclusion. Accordingly, an appeal under MCL 600.631 is not available. The Court of Claims erred in granting defendant’s motion for summary disposition because the Court of Claims did, indeed, have subject-matter jurisdiction over plaintiffs lawsuit.
Reversed and remanded. We do not retain jurisdiction.
Defendant had filed an earlier motion for summary disposition in which it argued that the APA procedures applied to plaintiffs lawsuit. Defendant withdrew this motion on August 11, 2004, apparently realizing that the APA procedures did not, in fact, apply.
Const 1963, art 6, § 28 states in part:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
The precise rationale for the ruling by the Court of Claims is not apparent from the record because the court’s written order refers to “the reasons stated on the record,” and the transcript of the summary disposition hearing has not been filed in this Court. Given plaintiff’s focus on the jurisdictional issue, we assume the court concluded that it lacked subject-matter jurisdiction and therefore dismissed the case wider MCR 2.116(C)(4).
4 MCR 7.104(A) states that “[a]n appeal in the circuit court under MCL 600.631 is governed by MCR 7.101 and 7.103, except that the bond requirements do not apply.” MCR 7.101 and 7.103 deal with general procedwal rules applicable to the circuit courts of this state.
Defendant admits that the OSE is not required to grant an evidentiary hearing to individuals contesting a denial of benefits. In Guiles, supra at 47-48, the Court noted that there appeared to be no procedure in that case for an individual contesting a denial of benefits to seek redress within the governmental subunit, i.e., the University of Michigan.
The OSE’s duties do not include the “promulgation of rules” within the meaning of the APA. See MCL 24.205(9) and MCL 24.207(g). However, it is unclear whether the definitions from the APA should be applied to the RJA. See, generally, Viculin v Dep’t of Civil Service, 386 Mich 375, 395 n 19; 192 NW2d 449 (1971).
We note that in Living Alternatives for the Developmentally Disabled, Inc v Dep’t of Mental Health, 207 Mich App 482, 484, 525 NW2d 466 (1994), the Court of Claims had determined that the plaintiff’s breach of contract claim should have been filed in the circuit court because “the contracts between the parties limited plaintiffs avenue of relief to an appeal of the administrative decision.” The Court of Appeals held that an appeal in the circuit court was proper under MCL 600.631. Living Alternatives, supra at 484-485. We do not find Living Alternatives dispositive in the instant appeal, however, because (1) Parkwood, a Supreme Court case, takes precedence over Living Alternatives; and (2) the language of MCL 600.6419(1)(a) was not even discussed by the Court in Living Alternatives.
We do not address the standard of review that the Court of Claims must employ on remand. The Court of Claims, instead, shall make that determination after a review of the applicable facts and law, including the law set forth in Guiles, supra at 44, 46-47. Additionally, we note that it is possible that the Court of Claims accepted defendant’s argument that plaintiff actually had no contract for insurance and that summary disposition under MCR 2.116(C)(8) was therefore appropriate. As noted earlier, we do not know, with certainty, the precise basis for the trial court’s ruling. Given our finding that a contract did exist, the Court of Claims erred if it did partly base its ruling on MCR 2.116(C)(8). | [
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D. C. Riley, P.J.
This is an appeal from a probation revocation. Phyllis Hooks pled guilty to issuing a check without account or credit, MCL 750.131a; MSA 28.326(1), in February of 1972. She was sentenced to a term of 3 years probation, the first 6 months to be served in the Detroit House of Correction. On September 13, 1976, a notice of probation violation was filed, charging that during probation, defendant had three times been convicted of larceny under $100, MCL 750.356; MSA 28.588, and further had not reported to her probation officer since April 20, 1976. Apparently no appeals have been taken from the larceny convictions.
Defendant’s probation violation notice included the following provision:
"Wherefore this Court is requested to issue a warrant for probationer’s apprehension and detention pending a hearing and to set a date for a hearing on said alleged violation.
"Defendant to be notified by a service of a copy of the petition and of this order, to present witnesses if he desires.”
At a later hearing before the court the ensuing colloquy occurred:
"THE COURT: * * * Now, have you — do you have a copy of that notice of probation violation?
"MS. HOOKS: Yes.
"THE COURT: And you’ve seen this thing and the Court appointed Mr. Arduin as your attorney in the case. Are you satisfied with his representation?
"MS. HOOKS: Yes.
"THE COURT: All right. How does she plead as to — .
"MR. ARDUIN: She pleads guilty, your Honor, to the charge of violation of probation and she has extenuating circumstances and places herself upon the mercy of the Court.
"THE COURT: What extenuating circumstances are there for having criminal convictions while she’s on probation?
"MR. ARDUIN: Oh, that, your Honor, she does not deny but she has served the first six months as your Honor has ordered. * * *”
Defendant’s probation was revoked and sentence was imposed of 1 year 11 months to 2 years.
Defendant initially alleges on appeal that she was not advised of her right to a probation violation hearing. There is no doubt that a defendant charged with breaching the terms of probation is afforded certain minimal procedural due process rights, including a contested hearing on the charge. MCL 771.4; MSA 28.1134, People v Michael Brown, 72 Mich App 7, 10-12; 248 NW2d 695 (1976). This Court has frequently held that a probationer must be advised of that right before a guilty plea can be accepted, and if so informed, defendant waives the right by the subsequent plea. People v Michael Brown, supra, People v Allen, 71 Mich App 465; 248 NW2d 588 (1976), People v Hardin, 70 Mich App 204; 245 NW2d 566 (1976).
Defendant relies on People v Radney, 81 Mich App 303; 265 NW2d 128 (1978), and People v Michael Brown, supra. In Radney defendant appeared before the court for arraignment without an attorney present, and in response to the court’s questioning stated that he had no answer to the charges. It was held that neither the form language on the notice of violations nor the trial judge’s mention of the word "hearing” in his eolio quy with defendant was sufficient to inform the defendant of his right to rebut the charges. Significantly, however, the Court noted that the record did not show that defendant had, in fact, admitted the charged violations.
In Brown, defendant was served with written copies of charges of probation violation. Defendant appeared at the hearing, rejected the trial judge’s offer of appointed counsel and admitted the probation violations. The Court reversed the revocation of defendant’s probation because "defendant was not informed on the record of the possibility of a hearing”, 72 Mich App at 14, and because the Court could not find anything in the record before it which indicated that defendant was aware of the availability of a hearing.
The prosecution argues that both Radney and Brown are distinguishable from the instant case. We see merit in this contention. Here defendant was given sufficient notice of probation violation. Defendant was fully represented by counsel and clearly admitted her probation violations to the court. In People v Darrell, 72 Mich App 710, 713-714; 250 NW2d 751 (1976), a bench warrant was served on the defendant, notifying him of the charges and containing language similar to the present case:
"Wherefore, Your Petitioner Prays that a Bench Warrant be issued for the apprehension and detention of said probationer pending violation hearing by this court to determine whether or not said probation order shall be revoked.”
As defendant was represented by counsel and also admitted the probation violation, the Darrell Court concluded that, under the totality of the circumstances, defendant’s due process procedural rights were adequately safeguarded, despite the fact that the defendant had not been told on the record by the trial judge of his right to a contested hearing.
Although we note the existence of a disavowed intent to impose a "checklist format” on trial judges, see People v Gaudett, 77 Mich App 496, 501-502; 258 NW2d 535 (1977), we affirm our concern for close adherence to those due process rights given defendants involving probation revocation. Nevertheless, under the present facts, any error was, as a practical matter, non-prejudicial inasmuch as the violations forming the basis for probation revocation consisted in part of three convictions from which no appeal was taken. See People v Darrell, supra at 713. Unlike situations where the grounds for revocation are subject to refutation, convictions leave a defendant little room for polemics. The record also suggests that defendant pled guilty while aware of her opportunity to present extenuating circumstances to be considered in sentencing.
Defendant next alleges that her sentence of 1 year, 11 months to 2 years contravenes the provisions of the indeterminate sentencing act, MCL 769.8; MSA 28.1080, and therefore runs afoul of the rule promulgated in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The statute provides that:
"When any person shall hereafter be convicted for the first time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the state prison at Jackson, the Michigan reformatory at Ionia, the state house of correction and branch of the state prison in the upper peninsula, the Detroit house of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. * * *”
Tanner held that a sentence which exceeds two-thirds of the maximum does not comply with the act. Thus, if the indeterminate sentencing act applies to the instant case, the trial judge’s imposition of sentence was erroneous.
The prosecution maintains that reference to MCL 769.8; MSA 28.1080 is inappropriate since defendant had been convicted of misdemeanors antecedent to the offense at bar. It argues that misdemeanors are crimes and that the punishment for some misdemeanors includes imprisonment in the Detroit House of Correction (hereinafter referred to as DeHoCo).
The act applies "[w]hen any person [is] convicted for the first time of crime” punishable by terms of imprisonment in the enumerated facilities. All the facilities are state prisons with the exception of DeHoCo.
DeHoCo plays a unique and dual role in the state’s corrections system. It operates as an equivalent to a state prison when, pursuant to MCL 802.51; MSA 28.1841, it receives women prisoners convicted of crimes or offenses punishable by imprisonment in a state prison. However, DeHoCo is classified as an equivalent to a county jail by MCL 769.28; MSA 28.1097(1). That section provides that persons convicted of crimes punishable by imprisonment for a maximum of one year or less shall be sentenced to a county jail or to DeHoCo and not to the state penal institution.
This Court has held that the indeterminate sentencing act is inapplicable to any jail sentence imposed pursuant to MCL 769.28; MSA 28.1097(1). People v Lyles, 76 Mich App 688; 257 NW2d 220 (1977), People v Leonard, 51 Mich App 368; 214 NW2d 888 (1974), lv den 391 Mich 827 (1974). These cases would suggest that the act applies only to DeHoCo’s role as a state prison.
The record fails to disclose the circumstances surrounding defendant’s previous misdemeanor convictions. Nevertheless, it is unnecessary to remand this case to determine whether defendant’s prior convictions were punishable by more than one year in prison, for the result in either situation requires modification of the present sentence.
If defendant’s misdemeanors were punishable by less than one-year imprisonment, defendant’s present felony conviction, for the reasons cited above, would be governed by the indeterminate sentencing act and Tanner would therefore apply. At the same time, however, the definitional section of the Code of Criminal Procedure, MCL 760.1 et seq.; MSA 28.841 et seq., of which the indeterminate sentencing act is a part, interprets a felony as "an offense for which the offender, upon conviction, may be punished by death or by imprisonment for more than 1 year or an offense expressly designated by law to be a felony”. MCL 761.1(g); MSA 28.843(g).
If defendant’s previous convictions were punishable by more than one year, even though qualifying as misdemeanors under other statutory provisions outside the Code of Criminal Procedure, they would be treated as felonies for purposes of those laws contained in the code, which laws include the indeterminate sentencing act.
In Brinson v Genesee Circuit Judge, 403 Mich 676; 272 NW2d 513 (1978), the Michigan Supreme Court held that defendants, chargeable under the Code of Criminal Procedure as habitual offenders, MCL 769.10-769.12; MSA 28.1082-28.1084 (because of previous felony convictions), against whom no supplemental proceedings were instituted are to be afforded the protection of the act and the concurrent benefit of Tanner.
Thus, according to either possibility, defendant’s sentence for issuing a check without account or credit is modified to 1 year 4 months to 2 years.
Affirmed in part, modified in part.
T. Gillespie, J., concurred.
MCL 771.4; MSA 28.1134 provides that if probation is terminated or revoked, the trial court may sentence a probationer in the same manner and to the same penalty as it might have done if the probation order had never been made. The maximum jail term upon conviction of issuing a check without account or credit in violation of MCL 750.131a; MSA 28.326(1) is 2 years.
This result is also necessary to avoid a constitutional problem with the indeterminate sentencing act. It appears that the only way a person can be sent to DeHoCo under MCL 769.28; MSA 28.1097(1) is if the county board of supervisors of the county in which a defendant was convicted has an agreement with DeHoCo that the county could send its prisoners there. MCL 802.8; MSA 28.1818. If the indeterminate sentencing act were to apply to DeHoCo’s role as a county jail, it would present serious equal protection problems since the statute would distinguish between prisoners sentenced from a county which has an agreement with DeHoCo and those sentenced from counties which had no such agreement. .
See, e.g., MCL 750.324; MSA 28.556, which defines negligent homicide as a misdemeanor, punishable by imprisonment in the state prison for not more than 2 years or by a fine of not more than $2,000, or by both such fine and imprisonment.
MCL 761.1(g); MSA 28.843(g) was amended in 1974 by 1974 PA 63, § 1. The previous definition of felony was "an offense for which the offender, on conviction may be punished by death, or by imprisonment in state prison”. Assuming any of defendant’s previous convictions predate the amendment, the result would remain the same by virtue of MCL 769.28; MSA 28.1097(1) which requires that persons convicted of crimes punishable by imprisonment for one year or less shall not be sentenced to the state penal institution. | [
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Danhof, C.J.
This is an action by a subcontractor against a surety for payment pursuant to a private labor and materials payment bond. On April 8, 1973, Priestly Contracting, Inc., the general contractor for a private construction project, and defendant surety signed the bond in question. Priestly Contracting thereafter subcontracted work to plaintiff. However, Priestly Contracting permanently ceased work on the construction project in April, 1974, leaving sums still owing to plaintiff.
Plaintiff filed a complaint against defendant surety on August 26, 1976. Defendant filed a motion for accelerated judgment, alleging that plaintiff’s claim was time barred by the following provision of the bond:
"No suit or action shall be commenced hereunder by any claimant:
* * *
"After the expiration of one (1) year following the date on which Principal ceased work on said Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.”
The trial court ruled that the language of the above provision was ambiguous, and that it could be construed to require interpolation of the general statutory six-year period of limitations for contract actions. MCL 600.5807(8); MSA 27A.5807(8),MCL 600.5813; MSA 27A.5813. Commenting further that shorter limitations on contractual actions are not to be favorably regarded, the trial court denied defendant’s motion. Plaintiff was ultimately granted summary judgment under GCR 1963, 117.2(3) on its claim for payment pursuant to the bond. Defendant appeals from both dispositions.
We conclude that the trial court erred in ruling that the wording of the disputed contractual limitation clause is ambiguous. On the contrary, the bond clearly provides that suits thereunder must be brought within one year of the date on which the principal ceases work on the project covered, unless the controlling state law prohibits such a contractual limitation on suits pursuant to a private construction bond. Michigan statutory law contains no such express prohibition.
Furthermore, Michigan precedent has condoned such contractual limitations on claims against private sureties, holding them to be valid, enforceable, and in accord with public policy. As the Michigan Supreme Court stated in Commissioner of Insurance v Central West Casualty Co, 301 Mich 427, 432; 3 NW2d 830 (1942):
"A statutory bond is one commanded or provided by statute. In such a bond, the existing law becomes a part of the bond, omitted conditions required by law are read into the bond and conditions contrary to the law are read out of it. The doctrine of 'what is omitted will be read in and what is in conflict will be read out’ applies only to bonds required by statute. In such a bond the general statute of limitations becomes a part of the bond. In a common-law bond the parties may provide for a shorter time for bringing suit than is provided by the statute of limitations and, in general, are bound by their agreement. ” (Emphasis supplied.)
Forest Twp v American Bonding Co of Baltimore, 187 Mich 657; 154 NW 26 (1915), Ladies of the Modern Maccabees v Illinois Surety Co, 196 Mich 27; 163 NW 7 (1917). See also more generally, Bashans v Metro Mutual Ins Co, 369 Mich 141; 119 NW2d 622 (1963), Board of Governors of Wayne State University v Building Systems Housing Corp, 62 Mich App 77, 85; 233 NW2d 195 (1975), Fulton v Citizens Mutual Ins Co, 62 Mich App 600; 233 NW2d 820 (1975).
Thus, unless defendant is for some reason estop ped from asserting the one-year limitation on plaintiffs suit pursuant to the bond or unless plaintiff can show that Priestly Contracting did not cease work on the project in April, 1974, plaintiffs claim is time barred.
But plaintiff insists that a distinction must be made between the immediate parties to a contract, who should be bound by any limiting contractual provisions to which they agreed, and third parties seeking recovery under the surety contract, against whom it would be unreasonable to enforce the contractual limitation. We find the distinction unpersuasive in the context of this private construction bond. There is nothing unreasonable about requiring a subcontractor to investigate its right to payment within one year after the general contractor has abandoned the project. It would furthermore be totally incongruous to hold that plaintiff herein has six years within which to commence suit on a private bond, when other claimants must by statute press their suits pursuant to a required public bond within one year of the completion and acceptance of a public works project. MCL 570.104; MSA 26.324.
The trial court erred in holding that the contractual limitation on bringing suit pursuant to the bond was ambiguous, and in granting plaintiff’s motion for summary judgment on the grounds of that erroneous ruling.
Reversed and remanded for proceedings not inconsistent with this opinion.
Plaintiff also filed a suit for payment against the general contractor, and obtained a default judgment for $18,848 with costs and interest on July 6,1977, which has not been paid.
See 21 Michigan Law & Practice, Suretyship, § 44, p 230.
By contrast, MCL 570.104; MSA 26.324 specifically provides that a suit pursuant to a public works bond must be brought within one year after the completion and acceptance of the project.
Accord, e.g., Gossen v Indemnity Ins Co of North America, 234 F2d 463 (CA 6, 1956); 12 Am Jur 2d, Bonds, § 37, p 503.
The trial judge recognized that a private surety may limit its contractual liability to claimants to a period shorter than the otherwise applicable statute of limitations, but concluded that such foreshortening of liability was to be unfavorably viewed. The cited Michigan cases do not support this conclusion. If the parties to a private surety or insurance contract clearly agree to a time restriction on the commencement of actions, the courts generally enforce it without reluctance.
To this end, plaintiff also asks us to examine precedent from other states. However, as one of the cases relied upon by plaintiff concludes:
"The cases from other states are in hopeless conflict. Some hold that such contractual provisions are binding on the insured third person, while others hold that they are not. Some of them turn upon the wording of particular statutes or policies. No useful purpose would be served by citing or discussing these cases.” Olds v General Accident Fire & Life Assurance Corp, 67 Cal App 2d 812; 155 P2d 676, 683 (1945). | [
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] |
V. J. Brennan, P.J.
Defendant, Keith D. Albert, was charged with the armed robbery of Edward Nicholas, Jr., in violation of MCL 750.529; MSA 28.797. On August 18, 1977, following a jury trial defendant was found guilty as charged. On September 9, 1977, defendant was sentenced to 15 months to 5 years in prison, with credit for 27 days already spent in jail. Defendant appeals as of right.
Defendant raises four issues — the first of which warrants reversal.
The case involved misconduct by a police officer in destroying a tape-recorded statement of a prosecution witness, which admittedly was beneficial to the defendant. It was the prosecution’s theory that the armed robbery which occurred at Putnam Hall on the Eastern Michigan University campus was perpetrated by Thornton Logan, Willy Franks and Christopher Hayes. The defendant, being an accomplice, drove the perpetrators to the building, showed an escape route and drove the get-away car.
The defendant testified that he took the various individuals to the Putnam dormitory in order to buy marijuana so as to keep Logan’s mind off criminal activity.
Logan testified on behalf of the prosecution as part of a plea bargain wherein he was allowed to plead guilty to the lesser charge of assault with intent to commit robbery while armed. Logan testified to defendant’s direct involvement in the crime.
During Logan’s cross-examination it was disclosed that on February 3, 1976, 2-1/2 weeks after the robbery, he was arrested and made a taped confession to Sergeant Garland of the Eastern Michigan University Police Department. This statement described the events of the evening in question but did not implicate defendant as a participant in the robbery. On February 5, 1976, a second statement was made by Logan and taped by Sergeant Garland wherein the defendant was implicated.
The first tape-recorded confession was "discarded” by Sergeant Garland. It is the destruction of this statement and its unavailability at trial which defendant claims warrant reversal.
This Court in People v Amison, 70 Mich App 70; 245 NW2d 405 (1976), detailed the impact of loss of evidence through actions of the police or prosecutor. The following quote from People v Amison, supra, pp 79-80, represents a concise articulation of Michigan law on point:
"This Court has uniformly held that, absent intentional suppression or a showing of bad faith, the loss of evidence which occurs before a defense request for it does not mandate reversal. People v Eddington [53 Mich App 200; 218 NW2d 831 (1974)], People v Bendix, 58 Mich App 276; 227 NW2d 316 (1975), People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975). This Court has also held that the * * * [destruction of taped police broadcasts regarding a defendant’s description under the routine departmental policy of erasing broadcast tapes 30 days after their making] where the purpose is not to destroy evidence for a forthcoming trial, does not mandate reversal. People v Hardaway, 67 Mich App 82; 240 NW2d 276 (1976). It is only where this Court has found that there was no effort made to preserve the evidence initially, People v Anderson, 42 Mich App 10; 201 NW2d 299 (1972), remanded on other grounds, 391 Mich 419; 216 NW2d 780 (1974), or where there was the possibility that certain test results may have been actually suppressed, People v Drake [64 Mich App 671; 236 NW2d 537 (1975)], that this Court has found possible suppression mandating reversal.”
The pertinent inquiry in the present case is whether the action of Sergeant Garland in "discarding” the tape-recorded confession was performed in bad faith or for the purpose of destroying evidence for a forthcoming trial. People v Kelson, 71 Mich App 410; 248 NW2d 564 (1976); People v Hardaway, supra. Our inquiry need go no further than the following colloquy between the defense attorney and Sergeant Garland:
Mr. Pitts: "Q: Sure. He [Logan] indicated something about a previous tape or previous statement, correct?
Sgt. Garland: "A: Correct.
"Q: Where is that?
"A: It was discarded.
"Q: Why did you discard it?
"A: Because it had no relevancy. He wanted to change his testimony.
"Q: That was an opinion that you made and a decision that you acted upon, correct?
"A: It was at his request that I—
"Q: To throw it away?
"A: To discard anything that he had said.
"Q: But you don’t always do what a person tells you to do, certainly not a suspect, do you?
"A: It wasn’t anything that I wanted to hear.
"Q: It wasn’t anything you wanted to hear?
"A: No.
"Q: Do you know whether or not someone else wanted to hear it?
"A: Probably you.
"Q: Now, it becomes important to me to hear, right?
"A: Right.
"Q: All right. You no longer have it. We don’t know what he said, right?
"A: Correct.”
From the above we can only conclude that the intentional destruction of the evidence occurred with knowledge of its importance to the defendant herein. Bad faith has therefore been shown. Such conduct on the part of investigating officers cannot be tolerated and reversal of defendant’s conviction is mandated.
The present case presents a unique problem on remand. In most cases the proper remedy is retrial allowing the introduction of the suppressed evidence. Here that evidence has been destroyed.
The significance of this destroyed evidence is that the defendant is deprived of a powerful tool ino cross-examining and impeaching the key prosecution witness. In our judicial system the right of cross-examination is more than a desirable rule of trial procedure. "It is implicit in the constitutional right of confrontation, and helps assure the 'accuracy of the truth-determining process’.” Chambers v Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297 (1973).
Since the prior statement of the witness was destroyed with details of its contents unknown it cannot be used to impeach the witness. The defendant’s constitutional right to confront is seriously impaired. Accordingly, in order to fully afford defendant his right to confront and cross-examine witnesses against him, on retrial the testimony of Thornton Logan is to be suppressed. This remedy is severe, however, the reprehensible conduct of the police officer in the case at bar warrants such action.
The three other issues raised by defendant are without merit and do not warrant discussion here.
Reversed. | [
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D. E. Holbrook, Jr., J.
Plaintiff is a labor organization and is the recognized collective bargaining representative of all employees of the fire department of the City of Warren, except the Fire Commissioner and civilian employees. Pursuant to this relationship, plaintiff and defendant City of Warren executed a collective bargaining agreement covering wages, hours and conditions of employment for those members of the fire department of the City of Warren represented by plaintiff. This contract provided in part as follows:
"Article 12 — Seniority
"(a) Seniority and its application shall be governed by the provision of Act 78, Public Acts of 1935, except as provided in Section (b) below.
"(b) It is agreed that the promotional system for employees in the Local 1383 bargaining unit shall provide for promotions based upon seniority and reasonable qualifications as may be determined by the Fire Department after consultation with the union.”
Pursuant to this agreement the Fire Commissioner advised the Police and Fire Civil Service Commission for the City of Warren that he was in the process of qualifying men for the next higher position and would submit a list of names to the Civil Service Commission from which he would make promotions. The Civil Service Commission responded by advising the Fire Commissioner that under 1935 PA 78, as amended, MCL 38.501 et seq.; MSA 5.3351 et seq., the Police and Fire Civil Service Commission ascertains through competitive examinations the qualifications and fitness for promotions for any paid members of the fire department. Further the Commission indicated it was unaware of any election in which the electors of the City of Warren had voted to rescind or repeal the act’s effectiveness within the City of Warren. Plaintiff then filed an action for declaratory judgment claiming that the terms of the collective bargaining agreement prevailed over any contrary provisions of 1935 PA 78, as amended, and/or any rules or regulations adopted pursuant to the act. Both parties filed motions for summary judgment. The trial court granted summary judgment to defendants finding that art 12, § (b) of the agreement between the parties was void and of no effect because of its conflict with 1935 PA 78 and the Warren charter. From this order plaintiff appeals as of right.
On appeal plaintiff argues that promotional criteria for firemen is a mandatory subject of bargaining under PERA, MCL 423.201 et seq.; MSA 17.455(1) et seq., thus making it proper to include a provision concerning promotional criteria within the collective bargaining agreement. Plaintiff further contends that the provision concerning promotions contained in the collective bargaining agreement, which was entered into under the authority of PERA, controls over contrary provisions of the firemen and policemen civil service act which was incorporated by reference in the charter of the City of Warren. We disagree with the plaintiff and affirm the trial court.
The firemen and policemen civil service act, 1935 PA 78, MCL 38.501 et seq.; MSA 5.3351 et seq., establishes a merit promotional system for policemen and firemen. The statute provides specifically that,
"On or after the date this act takes effect, appointments to and promotions in all paid fire and/or police departments of cities, villages or municipalities of any population whatsoever shall be made only according to qualifications and fitness to be ascertained by examinations, which shall be competitive, and no person shall be appointed, reinstated, promoted or discharged as a paid member of said departments regardless of rank or position, in any fire or police department of any city, village or municipality in the state of Michigan, in any manner or by any means other than those prescribed in this act.” MCL 38.507; MSA 5.3357.
Section 12 of the act specifies the procedure to be followed to accomplish any promotion. In order to establish an Act 78 civil service system a vote of the public is required. Once Act 78 has been adopted by a city, the act itself is explicit concerning the method of rescinding or repealing the established civil service system. The act states:
"The foregoing provisions of this act shall continue in full force and effect in any city, village or municipality at which it has been properly adopted until rescinded and repealed by a majority of the electors voting thereon at an election at which the question of rescission and repeal of this act for that city, village or municipality is properly submitted.” MCL 38.518; MSA 5.3369(1).
In 1956 a proposed charter for the City of Warren, which incorporated by reference Act 78, was adopted by the electors. The Police and Fire Civil Service Commission for the City of Warren created by this voter approval has continued in existence since there has been no repeal or rescission of the commission by a vote of the electors as required by MCL 38.518; MSA 5.3369(1).
Pursuant to the authority granted to the Legislature by Const 1963, art 4, § 48, the Legislature enacted the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq. Section 15 of PERA sets forth the collective bargaining responsibilities of the public employer and the representative of the employees. Under this section the standards and criteria for promotion are "terms and conditions of employment” and the mandatory subject of collective bargaining. Detroit Police Officers Ass’n v Detroit, 61 Mich App 487, 494; 233 NW2d 49, lv den, 395 Mich 756 (1975), reh den, 396 Mich 989 (1976). Pursuant to this obligation to bargain, the City of Warren and Local 1383 concluded a contract which included the contested Article 12. The provisions of this article, if implemented, would modify the existing Act 78 civil service system without a vote of the electors of the City of Warren as required by MCL 38.518; MSA 5.3369(1).
Implementation of Article 12 of the collective bargaining agreement would also conflict with Const 1963, art 11, § 6, which states that:
"By ordinance or resolution of its governing body which shall not take effect until approved by a majority of the electors voting thereon, unless otherwise provided by charter, each county, township, city, village, school district and other governmental unit or authority may establish, modify or discontinue a merit system for its employees other than teachers under contract or tenure. The state civil service commission may on request furnish technical services to any such unit on a reimbursable basis.”
The intent of this constitutional provision was to insure that no merit system for public employees would be modified without a vote of the electorate of the political entity involved.
While the Michigan Supreme Court has construed PERA to be the dominant law regulating public employee relations, Rockwell v Crestwood School Dist, 393 Mich 616, 629; 227 NW2d 736 (1975), it has held that the statutory provisions of PERA do not control over conflicting constitutional provisions. In Regents of the University of Michigan v Employment Relations Comm, 389 Mich 96, 109; 204 NW2d 218 (1973), the Court stated that some conditions of employment normally the subject of collective bargaining under PERA could not be a subject of bargaining because there would be a violation of Const 1963, art 8, § 5. Were the instant conflicts solely between the statutory provisions of PERA and Act 78, we would probably find Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974), controlling so as to require a finding that the provisions of the collective bargaining agreement prevailed over conflicting Civil Service Commission promotional guidelines. However, in the face of conflict with Const 1963, art 11, § 6, we hold that the provisions of the collective bargaining agreement cannot modify or alter an existing civil service system.
Holding as we do concerning the conflict between PERA and the Const 1963, art 11, § 6, we affirm the decision of the trial court that Article 12 of the collective bargaining agreement is void. Implementation of this article would violate the mandate of Const 1963, art 11, § 6. While the parties involved in collective bargaining are permitted wide latitude in their own contractual agreement, the agreement reached may not disregard other laws. United Mine Workers of America v Pennington, 381 US 657; 85 S Ct 1585; 14 L Ed 2d 626 (1965). Where, as in this instance, part of the agreement reached does violate another applicable legal standard, the contract provision is unenforceable. Detroit Police Officers Ass’n v Detroit, supra at 54, fn 6.
Affirmed. No costs, a public question being involved.
MCL 38.512; MSA 5.3362.
MCL 38.517a; MSA 5.3368 states:
"The foregoing provisions of this act shall not take effect in any city, village or municipality until approved by a majority of the electors voting thereon at an election at which the question of adoption of this act for that city, village or municipality is properly submitted.”
MCL 423.215; MSA 17.455(15) states:
"A public employer shall bargain collectively with the representatives of its employees as defined in section 1Í and is authorized to make and enter into collective bargaining agreements with such representatives. For the purpose of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times to confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.”
The debate concerning intent behind Const 1963, art 11, § 6, is found at 2 Official Record, Constitutional Convention 1961, pp 2796-2797:
"Mr. Allen: Mr. President, may I ask a question of Mr. Martin?
"President Nisbet: Mr. Martin.
"Mr. Allen: I wonder how this would be interpreted. I know the intent here is to broaden civil service opportunities for local units of government but I wonder if, inadvertently, there may not be some narrowing of it in this sort of situation. The city charters of some of our cities provide that the local governing body may put in a civil service plan. This is done by ordinance and it is not referred to a vote of the people. However, when the charter was adopted, the people voted on the charter. Now, I am wondering, under the language which is offered here, whether or not a city which has a charter which authorizes the city council to put in a civil service plan without a vote of the people would be permitted to do so.
"Mr. Martin: Mr. President, Mr. Allen, I think it would. I think that the provisions of the charter would, in that case, control the rights of the people in that particular community, that charter having been adopted under the home rule provisions.
"Mr. Allen: The language, Mr. Martin, if literally read, seems to say that the ordinance and resolution must be approved by a vote of the people.
“President Nisbet: Mr. Martin.
“Mr. Martin: Mr. Allen, if you wanted to make it clear by an amendment that the provisions of home rule charter shall in any event prevail, I would see no objection to that. The committee certainly would not object, I’m sure.
"Mr. Allen: Could I ask another question in connection with the same thing? We have also a number of cities which in their charter have provided, or even by an ordinance which had been referred to a vote of the people, have set up a civil service plan, but then they want to abolish it or they want to modify it in some way. Would your amendment require, in case civil service was to be given up, a vote of the people, even though the city charter provided that the city counsel could do it on its own vote?
"Mr. Martin: Mr. President, I think not. I think the local governing body would have authority in that situation without a further vote of the people. The vote of the people refers to — let’s see, reading it here —refers to 'establish, modify or discontinue.’ I’m sorry, I’ll change my answer. I think a vote of the people would be required to modify or discontinue.
"Mr. Allen: Despite what the charter said?
"Mr. Martin. No. I am proposing that we add a sentence to the effect that no part of this proviso or this proposal, section, shall in any way abrogate the provisions of existing charters.
"Mr. Allen: Mr. President, I don’t have such an amendment ready; because this language having just come in, there hasn’t been the opportunity. I would be willing to have style and drafting do this.
"Mr. Martin: We have no objection to that, Mr. Allen.
"Mr. Allen: As long as our intent is clearly understood.
"Mr. Martin: It is clearly understood.
"Mr. Allen: That will be satisfactory. Thank you.”
Our decision should not be read as prohibiting bargaining on this subject. In this instance it is not the actual bargaining that violates the Constitution of 1963, art 11, § 6, but rather the effect of the implementation of the agreement reached. | [
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M. B. Breighner, J.
Defendant was charged with seven violations of the Michigan Uniform Securities Act, MCL 451.501 et seq.; MSA 19.776(101) et seq. The information also charged one count of obtaining money under false pretenses, MCL 750.218; MSA 28.415. After a bench trial, defendant was convicted of the false pretenses charge and two of the securities charges. The court sentenced him to 23 days incarceration and fined bim $4,750. Defendant appeals as of right. We affirm in part and reverse in part.
The three guilty verdicts involved a bond transaction between defendant and Winifred G. La-Fever. The bond transaction was one in a series of business transactions between defendant and Mrs. LaFever during a period from May to September, 1974.
Prior to 1974, defendant had been a registered stockbroker in this state. From 1963 to 1969, he acted as a stockbroker for Mrs. LaFever and her husband. After the death of her husband in 1969, Mrs. LaFever continued to contact defendant regarding her investments. She relied on his advice in buying and selling shares of stock.
In 1973, defendant moved to Arizona and incorporated an investment firm dealing in precious metals. Before leaving Michigan, he notified Mrs. LaFever he would no longer manage her portfolio.
In late 1973 or early 1974, defendant began to solicit Mrs. LaFever to purchase gold and silver. The first conversation with her was mostly social. In subsequent conversations, defendant suggested the purchase of gold and silver coins to hedge against loss of security value. To finance the purchase of coins he discussed sale of shares of stock held by Mrs. LaFever.
Mrs. LaFever decided to liquidate some of her investments and purchase coins from defendant. Following defendant’s instructions, stock certificates, secured from her New York stockbroker, were forwarded to defendant with authority to sell. Proceeds of sale went into Mrs. LaFever’s account with defendant and were used to purchase foreign coins at a high markup.
As more coins were purchased from stock sales, Mrs. LaFever told defendant she needed to earn some income from her assets. Defendant offered to explore the acquisition of an appropriate municipal bond. Subsequently, defendant recommended purchase of a $5,000 Puerto Rican Telephone Authority bond. Mrs. LaFever agreed to the purchase.
Defendant purchased five Puerto Rican municipal bonds in his firm’s name. The combined face value of the bonds was $5,000. Their cost to defendant was $5,192. Defendant billed Mrs. LaFever $5,750.
Upon receiving the price statement Mrs. La-Fever called defendant and asked why it cost her $5,750 for a $5,000 bond. "He assured”, she testified, "that there was a lot of paperwork and it was hard to get”. She also stated defendant did not tell her what part of the total price was his "fee”, but he "probably” characterized the "size of the fee” as " 'a percent’ or 'a small amount’ Defendant disclaimed representations as to commissions on the bond transaction. He testified the bonds were sold on a dealer-principal basis.
Defendant’s percentage markup on bonds sold Mrs. LaFever was 10.7. The state’s expert testified a normal markup on such bonds was less than five percent, but industry rules did not require markup disclosure. Defendant’s expert said a markup of even 11 percent could not be considered excessive without knowledge of other factors attending the transaction, especially an isolated transaction.
Defendant testified he bought the bonds "short” and the markup reflected his risk. The state’s expert testified the price of the subject bonds fluctuated in a narrow range during the month in question. In his argument to the court, the prosecutor pointed out defendant charged the same price for bonds held for 12 or 13 days as for bonds held two days.
Regarding the difficulty in obtaining the bonds, evidence showed they were obtainable from a broker with whom Mrs. LaFever had an account.
One count of the information against defendant charged wilfull failure to disclose material facts and engaging in a course of business which operated as a fraud "in connection with the offer to sell and sale by him of a security”. Another count charged him with wilfull fraud as an investment advisor. A third count charged that defendant, with intent to defraud, falsely represented he was a licensed securities agent in Michigan; that he would locate an appropriate bond for Mrs. LaFever and sell it to her at the current market price plus a small commission; and that the purchase price of the bond was based on difficulty in acquiring it.
Defendant was found guilty on these three counts. He was acquitted on five others charging fraud and deceit in connection with the coin sales and violations of certain registration requirements.
The trial court’s findings are conclusory. With regard to the securities counts, the court stated it found each ultimate fact necessary to sustain a conviction. It did not reveal the basis for each finding. With regard to the false pretenses count, the court stated its findings with more specificity by repeating language of the information. The court found defendant had "falsely represented and pretended that he was a securities agent authorized in Michigan * * * [and] that he would locate * * * an appropriate municipal bond for said Winifred G. LaFever to purchase at the then existing current market price plus a small commission”.
Defendant’s appeal raises an issue as to the sufficiency of the trial court’s findings of fact. It also presents questions concerning the validity of the trial court’s findings of fact and conclusions of law with respect to each of the defendant’s three convictions.
Sufficiency of the Findings of Fact
Rule 517.1 of the Michigan Court Rules imposes two distinct duties upon a trial court sitting without a jury. The court must make a sufficient statement of its findings of fact and must not make findings of fact that are clearly erroneous. Failure to satisfy the first obligation necessitates remand for further findings. Any finding of fact that is clearly erroneous may be set aside on appeal. As stated above, the present appeal challenges both the sufficiency of the lower court’s fact findings and the validity of certain findings made. This part of the opinion discusses the sufficiency issue only.
Defendant claims his case must be remanded because the trial court’s conclusory statement of facts fails to disclose key factual determinations which caused the court to convict. We agree the court’s findings on their face are conclusory. There is, however, no need to remand for a more detailed statement.
The purpose of requiring a trial court to "find the facts specially” is to facilitate appellate review. People v Jackson, 390 Mich 621; 212 NW2d 918 (1973). "Findings of fact in a nonjury case serve a function paralleling the judge’s charge in a jury case, that of revealing the law applied by the fact finder.” Id., 627. A case will not be remanded for further findings of fact unless a remand would serve the purposes of the court rule. People v Jackson, 81 Mich App 18; 264 NW2d 101 (1978).
It follows that findings of fact cannot be judged sufficient or insufficient on their face. But see, 2 Honigman & Hawkins, Michigan Court Rules Annotated, pp 593-595. They must be judged in the context of specific legal and factual issues raised by the parties and the evidence. See People v Jackson, supra at 627, fn 3. Compare, e.g., People v Green, 32 Mich App 482; 189 NW2d 122 (1971), and People v George Scott, 21 Mich App 217; 175 NW2d 312 (1970), with People v Bedford, 78 Mich App 696; 260 NW2d 864 (1977), and People v Stanford, 68 Mich App 168; 242 NW2d 56 (1976). In that context this Court has even upheld a general verdict of guilty by a court sitting without a jury. People v Jackson, supra.
There is no purpose in remanding this case for further findings of fact. Some of the arguments made by defendant have no evidentiary predicate. In reviewing the other issues raised by defendant which are supported by the evidence, we have not reached a point in our analysis where there is considerable doubt about the law applied by the trial court.
Defendant’s Conviction for Securities Fraud in Connection with the Offer and Sale of a Security
The Michigan Uniform Securities Act is based upon the Uniform Securities Act. Section 101 of the statute provides in pertinent part:
"It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly:
"(2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.
"(3) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.” MCL 451.501; MSA 19.776(101).
Section 409 of the act makes criminal any wilfull violation of §101. See MCL 451.809; MSA 19.776(409).
Defendant claims his conviction under § 101 must be reversed for two reasons. First, he argues there was no duty to disclose the markup on Puerto Rican bonds sold Mrs. LaFever. He further contends that the trial court’s conclusory findings do not disclose a finding of specific intent to defraud, which is necessary to a finding of "wilfull ness”. We find no reversible error on either ground.
Duty
Section 101 of the securities act imposes a duty of full disclosure and fair dealing in the context of security transactions. Cf., Mathews & Sullivan, Criminal Liability for Violations of the Federal Securities Laws: The National Commission’s Proposed Federal Criminal Code, S. 1 and S. 1400, 11 American Criminal L Rev 883, 894-895 (1973), quoting, H R Rep, No 85, 73d Cong, First Sess, p 2 (1933) (purpose of analogous Federal securities regulations). The act should be construed liberally to effectuate this purpose. People v Dempster, 396 Mich 700; 242 NW2d 381 (1976).
The duties imposed by § 101 are analogous to duties imposed by Rule 10b-5 of the Federal securities regulations. 17 CFR, § 240.10b-5. Some Federal courts have held that the "scope” of the duty imposed by rule 10b-5 depends on the relationship between the victim and the defendant, their relative access to information, the benefit the defendant derives from the transaction, and the activity of the defendant in encouraging the transaction. See e.g., First Virginia Bankshares v Benson, 559 F2d 1307, 1314 (CA 5, 1977), White v Abrams, 495 F2d 724, 731 (CA 9, 1974). Under this so-called duty analysis approach, the appropriate duty imposed varies as a matter of law from case to case. White v Abrams, supra at 734.
As we read § 101 of the Michigan act, the duties imposed arise "in connection with the offer, sale or purchase of any security” and remain constant. Subsection 101(2) imposes a duty to disclose all material facts necessary to make other statements not misleading under the circumstances. Subsec tion 101(3) imposes a duty to refrain from any act, practice, or course of business which operates or would operate as a fraud. The determination that a particular omission is material and misleading and that a particular course of conduct operates as a fraud will vary from case to case. These are questions of fact to be determined in the first instance at trial. As stated previously, nonjury findings of fact cannot be set aside on appeal unless they are clearly erroneous. GCR 1963, 517.1.
The legal or "duty” question involved in any prosecution under § 101 is whether the defendant should have to refrain from the particular omission found to be material and misleading under subsection 101(2) or to refrain from the course of conduct found to operate as a fraud under 101(3). That question has been resolved by our Legislature.
It is unquestionable that the complained-of conduct of the present defendant arose "in connection with the offer, sale or purchase of any security”.
The essential omission alleged was defendant’s failure to disclose the market price of the bonds and his markup. The trial court did not clearly err in finding the alleged omission to be "material”. A material fact is one that a reasonable investor might have considered important to his investment decision. Mills v Electric Auto-Lite Co, 396 US 375, 384; 90 S Ct 616; 24 L Ed 2d 593 (1970). Mrs. LaFever, as a reasonable bond purchaser, might have considered it important that her seller was charging far in excess of what others were charging for the same bond.
Further, the court did not clearly err in finding the alleged omission to be misleading under the circumstances. There is some evidence defendant characterized the size of his fee to be a small amount. Mrs. LaFever testified defendant told her the $750 difference between face value and purchase price of the bond was based on paper work and difficulty in obtaining the bond. Experts testified the markup was excessive and arbitrary. Mrs. LaFever was not a sophisticated buyer. There is evidence to support a finding defendant had gained her confidence and she relied on his special knowledge. Under analogous Federal securities provisions, the United States Court of Appeals has found failure to reveal the markup on securities to be material and misleading. See Charles Hughes & Co, Inc v Securities & Exchange Comm, 139 F2d 434 (CA 2, 1943) (failure to disclose under § 17[a] of Federal securities law).
Finally, on this record the trial court did not clearly err in finding defendant’s conduct operated as a fraud. Cf., id.
In support of his contention that he owed no duty in this case, defendant cites Hafner v Forest Laboratories, Inc, 345 F2d 167 (CA 2, 1975), and Arber v Essex Wire Corp, 490 F2d 414 (CA 6, 1974). The Court in Hafner held a corporation breached no duty under Rule 10b-5 by failing to give the current market price of its securities upon request by a buyer. The Court reasoned the information was equally available to both parties in daily national quotation sheets and no fiduciary relationship existed between the parties. Arber held a buyer (insider) has no duty to direct its seller’s (outsider) attention to routine data commonly found in a company’s books, at least when the information is readily available and the outsider knows it is available and makes no inquiry.
Both cases are distinguishable from this case. These cases present a situation where the omission subject to complaint was not misleading or where reliance was not reasonable.
Scienter
"Wilfullness” is a word of many meanings, depending upon the context in which it is used. Zimberg v United States, 142 F2d 132, 137-138 (CA 1, 1944). A review of the case law does not reveal a clearly consistent use of the word in the context of securities fraud. See Anno: Element of Scienter as Affecting Criminal Prosecutions for Violation of Federal Securities Law, 20 ALR Fed 227. We find the term wilfullness as used in the Michigan act differs essentially from negligence.
To wilfully violate subsection 101(2) this defendant must have intended the omission which was found to be material and misleading. To wilfully offend subsection 101(3) he must have intended to engage in the course of conduct found to operate as a fraud. In addition, this defendant must have known or recklessly failed to discover facts that rendered his conduct violative of those subsections. It is insufficient that he could have discovered the facts by due care. On the other hand, he need not have acted with the conscious purpose to mislead or defraud. It is also unnecessary that he know his conduct violated the law. Like any element of a crime, knowledge and intent can be inferred.
The trial court’s finding of wilfullness in this case is not clearly erroneous. Defendant’s knowledge and intent can be inferred from the entire evidence. Nothing in the record suggests the trial court applied a negligence standard.
Defendant’s Conviction for Securities Fraud as an Investment Advisor
Relevant to this case, subsection 102(a) of the Michigan Uniform Securities Act provides:
"(a) It is unlawful for any person who receives any consideration from another person primarily for advising the other person as to the value of securities or their purchase or sale, whether through the issuance of analyses or reports or otherwise:
"(1) To employ any device, scheme or artifice to defraud the other person.
"(2) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon the other person.” MCL 451.502(a); MSA 19.776(102)(a).
Defendant’s conviction under this antifraud provision cannot stand. The trial court clearly erred in finding defendant received consideration primarily for advising Mrs. LaFever as to the value of securities or their purchase or sale.
Subsection 102(a) was intended to reach persons who are specially compensated for rendition of investment advice. "The essential distinction to be borne in mind in [applying this provision to] borderline cases * * * is the distinction between compensation for advice itself and compensation for services of another character to which advice is merely incidental.” Uniform Securities Act, § 401(f), Official Comment, reprinted in Loss & Cowett, Blue Sky Law, p 339.
It is undisputed that defendant advised Mrs. LaFever to liquidate a portion of her stock portfolio and purchase a Puerto Rican municipal bond. As a result, she bought five Puerto Rican municipal bonds from defendant for $5,750. It does not follow, because defendant received consideration "as a result of’ investment advice, that he received consideration "primarily for” the advice.
There is no direct evidence defendant received consideration primarily for investment counsel. He never billed Mrs. LaFever for advice, and she did not earmark any part of the $5,750 purchase price as payment for advice. There was no testimony that any part of the payment was for advice. Defendant’s expert said none of defendant’s conduct brought him within the category of an investment advisor.
Although it might be inferred that some part of the excessive markup was primarily for investment advice, we are not obliged under the "clearly erroneous” standard to uphold any finding of fact supported by some evidence. " 'A finding is "clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the firm and definite conviction that a mistake has been committed.’ ” 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 597, quoting United States v United States Gypsum Co, 333 US 364, 395; 68 S Ct 525; 92 L Ed 746 (1948). Here, the direct evidence and inferences that defendant did not receive any compensation for investment advice itself clearly preponderate over the contrary inference that might be drawn from the size of the markup.
Defendant’s Conviction for Obtaining Money Under False Pretenses
In attacking his conviction for obtaining money under false pretenses, defendant claims trial court error in holding his conduct constituted a false pretense. Defendant contends the essence of the claim against him is the charging of an excessive markup, and this is not a "false pretense”. We disagree.
In determining what constitutes a false pretense, this Court has drawn a distinction between false statements of opinion and false statements of fact. Compare People v Marks, 12 Mich App 690; 163 NW2d 506 (1968), with People v Wilde, 42 Mich App 514; 202 NW2d 542 (1972). In People v Wilde, we stated a false opinion is not a false pretense within the meaning of the statute because persons can be expected to protect themselves from false opinions. They know such statements are subject to distortion and deceit. The Legislature only intended to provide criminal sanctions for misrepresentations of fact. Overcharges, even gross and indefensible overcharges, fall into the category of false opinion. They are inflated opinions of value.
Notwithstanding the general distinction between opinion and fact in this area of criminal law, a dishonest statement of opinion may be a false pretense if the relationship between defendant and the victim is such that the victim cannot be expected to protect himself. Thus, "a dishonest expression of opinion may be a misrepresentation of fact suitable for false pretenses, especially where the opinion relates to a matter peculiarly within the knowledge of the one who expresses the opinion”. LaFave & Scott, Criminal Law, § 90, pp 658-659. Regarding opinions of value specifically, Judge Learned Hand has spoken:
"True, the law still recognizes that in bargaining parties will puff their wares in terms which neither side means seriously, and which either so takes at his peril (Vulcan Co. v. Simmons, 248 F. 853 [C.C.A. 2]); but it is no longer law that declarations of value can never be a fraud. Like other words, they get their color from their setting, and mean one thing when exchanged between traders, and another when uttered by a broker to his customer. Values are facts as much as anything else; they forecast the present opinions of possible buyers and sellers, and concern existing, though inaccessible, facts. Such latitude as the law accords utterances about them, depends upon the hearer’s knowledge that the utterer expects him to use his own wits * * United States v Rowe, 56 F2d 747, 749 (CA 2, 1932).
Even though defendant and Mrs. LaFever dealt in form as dealer and principal, their relationship was such that she could not be expected to protect herself from defendant’s misrepresentations and omissions regarding the excessive and arbitrary nature of his markup.
Affirmed in part, reversed in part. Remanded for resentencing.
The witness was Richard W. Hamilton, Vice President and National Manager of Harris-Upham’s Municipal Bond Department during the period July through August, 1974. He testified Harris-Up-ham’s "markup” on such bonds was one-half to two percent and the National Association of Securities Dealers guideline for markups was five percent.
Reference here is to guidelines established by the National Association of Securities Dealers. See also note 1, supra.
The court stated:
"As to count 3 [the charge under § 101], the Court finds that the People have proven beyond a reasonable doubt that C. Eugene Cook named in said count is one and the same as the defendant in this case; that from on or about the last week of July, 1974, to the first week of August, 1974, in the City of South Haven, County of Van Burén, and State of Michigan, that the defendant did directly and indirectly in connection with the offer to sell and the sale by him of securities, a Puerto Rican Telephone Authority bond, A-8075, to one Winifred G. LaFever; that he did wilfully, knowingly engage in a practice and course of business which would and did operate as a fraud and a deceit upon said Winifred G. LaFever. Further, that the defendant did knowingly and wilfully omit to state certain material facts necessary in order to make the statement made in the light of the circumstances under which they were made not misleading; that the defendant did as a result of said unlawful conduct unlawfully obtain money upon the property from said Winifred G. LaFever in connection with said sale of said bond; that this is contrary to the provisions of M.S.A. 19.776(101) as charged by the People in this court. It is the verdict of the Court that the defendant C. Eugene Cook is guilty beyond a reasonable doubt of the crime as charged in count 3, and this verdict is ordered to be entered upon the record of this Court.”
"As to count 7, the Court finds that the People have proven beyond a reasonable doubt that the C. Eugene Cook named in this count is one and the same as the defendant in this case; that from on or about the last week of July, 1974, to the first week of August, 1974, in the City of South Haven, County of Van Burén, State of Michigan, that the said defendant received consideration from one Winifred G. LaFever primarily for advising her as to the purchase of a security, a Puerto Rican Telephone Authority bond, number A-8075, later selling the same to her, he acting as an investment advisor; and the said defendant did unlawfully, knowingly, and wilfully and intentionally engage in transaction practices and a course of business which would and did operate as a fraud and a deceit upon said Winifred G. LaFever, causing her to unlawfully pay monies in connection with said bond transaction as charged by the People in this Court; and that in connection with this count, the conduct of the defendant is contrary to the provisions of M.S.A. 19.776(102) as charged. It is the verdict of the Court that the defendant C. Eugene Cook is guilty beyond a reasonable doubt of the crime as charged in count 7, and this verdict is ordered to be entered upon the record of. this Court.”
The Zimberg Court noted a distinction generally between use of the word wilfull as it applies to acts bad in themselves, in which context it connotes evil purpose, and as it applies to acts not involving moral turpitude, in which context the word has no such connotation.
In comparison, to be criminally liable for a violation of §404 of the securities act, which proscribes false and misleading statements in documents filed and proceedings brought under the act, the defendant must wilfully violate the section, "knowing the statement made to be false or misleading in any material respect”. MCL 451.809; MSA 19.776(409); see United States v Peltz, 433 F2d 48, 54-55 (CA 2, 1970).
Subsection 401(f) of the act defines "investment advisor”. The term "investment advisor” does not appear in subsection 102(a). Nevertheless, the official comment to subsection 401(f) is persuasive authority for interpreting the "consideration principally for investment advice” language of subsection 102(a). The general description of an investment advisor in subsection 401(f) is substantially the same as the description of persons to be reached by subsection 102(a). The term "investment advisor” does not appear in subsection 102(a) because its formal definition also includes several express exceptions, which the drafters did not wish to incorporate into the antifraud provision. See Uniform Securities Act, § 102(a), Official Comment, reprinted in Loss & Cowett, Blue Sky Law, p 252.
"It seems sound too, that where the finding is based upon inferences drawn from admitted facts or uncontradicted evidence, the appellate court is free to draw its own inferences. But this proposition has been subject to considerable dispute. See Barron and Holtzoff, Federal Practice and Procedure § 1132.” 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 597. | [
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] |
D. E. Holbrook, Jr., J.
Plaintiffs are the owners of 200 acres of land and the attendant mineral rights located in St. Clair County. Plaintiffs Koziara own two 20-acre tracts (Tracts 1 & 2) and one 40-acre tract (Tract 6). Plaintiffs Wronski own an 80-acre tract (Tract 7) and a 40-acre tract (Tract 13). These properties overlie the Columbus Section 3 Saline-Niagaran Formation Pool, and Tracts 2, 6 and 7 have producing oil wells. Tracts 6 and 7 are under lease to defendant Sun Oil Company.
The Supervisor of Wells, Michigan Department of Natural Resources, pursuant to the authority granted him by 1939 PA 61, as amended, established 20-acre drilling units for the Columbus 3 pool, and provided for a uniform well spacing pattern. The purpose of this order was to "prevent waste, protect correlative rights and provide for orderly development of the pool”. The supervisor, by a proration order effective February 1, 1970, further limited production in the Columbus 3 pool to a maximum of 75 barrels of oil per day per well. This order remained in effect until June 30, 1974, when Columbus 3 was unitized.
Defendant Sun Oil leases property from H. H. Winn (Tract 9) and from H. H. Winn, et al (Tract 12). Sun Oil has drilled several wells on these tracts in compliance with the uniform well spacing pattern, including well 1-C on Tract 9 and wells 3 and 6 on Tract 12. These three wells were operating during the effective date of the proration order and were subject to its terms. Plaintiffs contend that Sun Oil illegally overproduced more than 180,000 barrels of oil from these three wells, and that the illegally overproduced oil was drained from beneath plaintiffs’ lands. They sought rescission ab initio of their oil and gas leases with Sun Oil coupled with an accounting, or in the alternative both compensatory and exemplary damages.
After a bench trial the court found that Sun Oil had intentionally and illegally overproduced 150,-000 barrels of oil, and that 50,000 barrels of this oil had been drained from plaintiffs’ property. The court held that this overproduction and drainage constituted tortious breaches of Sun Oil’s contractual obligations under the oil and gas leases entered into with plaintiffs, as well as violating plaintiffs’ common-law rights to the oil beneath their property. The court refused to rescind the leases, but awarded compensatory and exemplary damages. Sun Oil appeals contending that the findings of the court are contrary to the great preponderance of the evidence, that an improper formula for compensatory damages was applied, that the award of exemplary damages was contrary to law and that the court lacked jurisdiction. Plaintiffs cross-appeal contending that rescission should have been granted, that an improper formula for compensatory damage was applied and that the exemplary damages awarded were inadequate.
Sun Oil contends that the Supervisor of Wells has exclusive jurisdiction over violations of rules and regulations issued pursuant to 1939 PA 61. This suit arose out of a claimed tortious violation of the proration order issued by the Supervisor of Wells. Jurisdiction for tortious causes of action based upon violation of rules or regulations issued by a state agency lies with a court of general jurisdiction, even when that agency has exclusive regulatory powers. Valentine v Michigan Bell Telephone Co, 388 Mich 19; 199 NW2d 182 (1972), Muskegon Agency, Inc v General Telephone Co of Michigan, 340 Mich 472; 65 NW2d 748 (1954). A fair reading of 1939 PA 61, as amended, does not indicate that the trial court’s inherent jurisdiction has been transferred to the Supervisor of Wells.
Sun Oil further contends that the doctrine of primary jurisdiction enunciated in White Lake Improvement Ass’n v City of Whitehall, 22 Mich App 262; 177 NW2d 473 (1970), is applicable and that the trial court abused its discretion in not deferring decision in this matter to the Supervisor of Wells. The supervisor’s function is to "protect the interests of its citizens and landowners from unwarranted waste of gas and oil and foster the development of the industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of these natural products”. MCL 319.1; MSA 13.139(1).
In order to carry out this function the supervisor is empowered:
"To make and enforce rules subject to the approval of the commission, issue orders and instructions necessary to enforce such rules and to do whatever may be necessary with respect to the subject matter stated herein to carry out the purposes of this act, whether or not indicated, specified, or enumerated in this or any other section hereof.” MCL 319.6(a); MSA 13.139(6)(a). (Emphasis supplied.)
The act is forward looking with a purpose to prevent waste from occurring and is not intended to provide a forum for individuals alleging injury caused by waste in violation of its established procedures. The absence of authority by the Supervisor of Wells to decide the issue heard by the trial court makes the doctrine of primary jurisdiction inapplicable in this instance.
The findings of fact made by the trial court are challenged as against the great weight of the evidence. This case involves an action sounding in equity and was tried by the court without a jury. The court made extensive findings of fact as required by GCR 1963, 517.1. The findings of fact made by the trial court will not be set aside unless clearly erroneous. GCR 1963, 517.1, Rencsok v Rencsok, 46 Mich App 250; 207 NW2d 910 (1973). Review of the record discloses sufficient facts upon which the trial court could find that Sun Oil systematically, intentionally and illegally produced the H. H. Winn, et al, No. 3 and No. 6 wells, and the H. H. Winn C-1 well in an amount of 150,000 barrels over that allowed by the proration order. The record also supports the finding that one-third of this illegally produced oil was drained from the property of the plaintiffs. We are not convinced that had this Court been the trier of fact that we would have come to a different result, and do not reverse or modify these findings. Norton Shores v Carr, 81 Mich App 715, 720; 265 NW2d 802 (1978).
The trial court found that Sun Oil’s actions were intentional tortious breaches of its contractual obligation to both plaintiffs under their respective oil and gas leases. It found breaches of the implied convenant to prevent drainage as well as a failure to comply with the orders of the Supervisor of Wells as required by the provisions of the lease. It also found that:
"Sun Oil Company has violated the common law rights of Plaintiffs Wronski and Koziara by illegally, unlawfully and secretly draining valuable oil from beneath their properties.”
The nature of Sun Oil’s violation, while not clearly stated by the trial court, was a claim for the conversion of oil.
" 'Conversion is any distinct act of dominion wrong fully exerted over another’s personal property in denial of or inconsistent with his rights therein.’ ” Thoma v Tracy Motor Sales Inc, 360 Mich 434, 438; 104 NW2d 360 (1960), quoting Nelson & Witt v Texas Co, 256 Mich 65, 70; 239 NW 289 (1931).
We only address the finding regarding conversion as it is dispositive of the questions in this appeal.
In Michigan we adhere to the ownership-in-place theory. Attorney General v Pere Marquette R Co, 263 Mich 431; 248 NW 860 (1933). Under this theory "the nature of the interest of the landowner in oil and gas contained in his land is the same as his interest in solid minerals”. William and Meyers, Oil and Gas Law, § 203.3, p 44. Solid minerals are a part of the land in or beneath which they are located, Mark v Bradford, 315 Mich 50; 23 NW2d 201 (1946), and as a consequence the owner of land is also the owner of the oil and gas in or beneath it.
Oil and gas, unlike other minerals, do not remain constantly in place in the ground, but may migrate across property lines. Because of this migratory tendency the rule of capture evolved. This rule provides:
" 'The owner of a tract of land acquires title to the oil and gas which he produces from wells drilled thereon, though it may be proved that part of such oil or gas migrated from adjoining lands. Under this rule, absent some state regulation of drilling practices, a landowner * * * is not liable to adjacent landowners whose lands are drained as a result of such operations * * *. The remedy of the injured landowner under such circumstances has generally been said to be that of self-help— "go and do likewise”.’ ” William and Meyers, supra, § 204.4, pp 55-57. (Emphasis supplied.)
This rule of capture was a harsh rule that could work to deprive an owner of oil and gas underneath his land. To mitigate the harshness of this rule and to protect the landowner’s property rights in the oil and gas beneath his land, the "fair share” principle emerged.
"As early as 1931, the Board of Directors of the American Petroleum Institute expressed this principle by declaring a policy:
"that it endorses, and believes the petroleum industry endorses the principle that each owner of the surface is entitled only to his equitable and ratable share of the recoverable oil and gas energy in the common pool in the proportion which the recoverable reserves underlying his land bears to the recoverable reserves in the pool.” Graham, Fair Share or Fair Game? Great Principle, Good Technology — But Pitfalls in Practice, 8 Nat Res Law 61, 64-65 (1975).
The API clarified the principle in 1942 by saying:
"Within reasonable limits, each operator should have an opportunity equal to that afforded other operators to recover the equivalent of the amount of recoverable oil [and gas] underlying his property. The aim should be to prevent reasonably avoidable drainage of oil and gas across property lines that is not offset by counter drainage.” Id. at 65.
This fair-share rule does not do away with the rule of capture, but rather acts to place limits on its proper application.
Texas has adopted both the ownership-in-place doctrine and the fair-share principle. Its courts have addressed the interrelationship between these two principles and the rule of capture.
"It must be conceded that under the law of capture there is no liability for reasonable and legitimate drainage from the common pool. The landowner is privileged to sink as many wells as he desires upon his tract of land and extract therefrom and appropriate all the oil and gas that he may produce, so long as he operates within the spirit and purpose of conservation statutes and orders of the Railroad Commission. These laws and regulations are designed to afford each owner a reasonable opportunity to produce his proportionate part of the oil and gas from the entire pool and to prevent operating practices injurious to the common reservoir. In this manner, if all operators exercise the same degree of skill and diligence, each owner will recover in most instances his fair share of the oil and gas. This reasonable opportunity to produce his fair share of the oil and gas is the landowner’s common law right under our theory of absolute ownership of the minerals in place. But from the very nature of this theory the right of each land holder is qualified, and is limited to legitimate operations.” Elliff v Texon Drilling Co, 146 Tex 575, 582; 210 SW2d 558 (1948). (Emphasis supplied.)
The rule of capture is thus modified to exclude operations that are in violation of valid conservation orders.
Michigan recognizes the fair-share principle and its subsequent modifications of the rule of capture. When an adjacent landowner drilled an oil well too close to a property line the Supreme Court said that this:
"[D]eprived plaintiff of the opportunity of claiming and taking the oil that was rightfully hers; and defendants must respond in damages for such conversion.” Ross v Damm, 278 Mich 388, 396; 270 NW 722 (1936).
The supervisor of wells act also incorporated the' fair-share principle into § 13. This section concerns proration orders and states in part that:
"The rules, regulations, or orders of the supervisor shall, so far as it is practicable to do so, afford the owner of each property in a pool the opportunity to produce his just and equitable share of the oil and gas in the pool, being an amount, so far as can be practicably determined and obtained without waste, and without reducing the bottom hole pressure materially below the average for the pool, substantially in the proportion that the quantity of the recoverable oil and gas under such property bears to the total recoverable oil and gas in the pool, and for this purpose to use his just and equitable share of the reservoir energy.” MCL 319.13; MSA 13.139(13). (Emphasis supplied.)
This right to have a reasonable opportunity to produce one’s just and equitable share of oil in a pool is the common-law right that the trial court found Sun Oil violated. Under the authority of Ross v Damm, supra, if it can be said that Sun Oil’s overproduction deprived plaintiffs of the opportunity to claim and take the oil under their respective properties, then Sun Oil will be liable for a conversion.
Production in the Columbus 3 field was restricted to 75 barrels of oil per well per day. Compulsory pooling was also in effect, limiting the number of oil wells to one per 20 acres, and specifying their location. The purpose behind pro-ration is that the order itself, if obeyed, will protect landowners from drainage and allow each to produce their fair share. A violation of the proration order, especially a secret violation, allows the violator to take more than his fair share and leaves the other landowners unable to protect their rights unless they also violate the proration order. We therefore hold that any violation of a proration order constitutes conversion of oil from the pool, and subjects the violator to liability to all the owners of interests in the pool for conversion of the illegally-obtained oil. See Bolton v Coats, 533 SW2d 914 (Tex, 1975), Ortiz Oil Co v Geyer, 138 Tex 373; 159 SW2d 494 (1942). The trial court found that Sun Oil produced 150,000 barrels of oil from the Columbus 3 pool in contravention of the order of the Supervisor of Wells, and that 50,000 barrels of this oil had been drained from the lands of plaintiffs, which the trial court identified as a violation of the plaintiffs’ common-law rights. The finding that Sun Oil is liable to plaintiffs for the conversion of 50,000 barrels of oil is affirmed.
The rule as to the amount of damages for a conversion of oil was established in Michigan in Robinson v Gordon Oil Co, 266 Mich 65, 253 NW 218 (1934). The Court stated:
"The general rule in the United States in actions for the conversion of oil, as in the case of conversion of minerals and other natural products of the soil is that, although a wilful trespasser is liable for the enhanced value of the oil at the time of conversion without deduction for expenses or for improvements by labor, an innocent trespasser is liable only for the value of the oil undisturbed; that is, he is entitled to set off the reasonable cost of production.” (Citations omitted.) Robinson, supra, at 69. (Emphasis supplied.)
This rule sets the liability of the convertor as the enhanced value of the oil at the time of conversion, but then subdivides this liability into two subrules depending upon the nature of the conversion. These two subrules are a "mild” rule which applies to innocent or nonwilful conversion and a "harsh” rule which applies to bad faith or wilful conversions.
Both the mild rule and the harsh rule are discussed in Anno: Right of trespasser to credit for expenditures in producing, as against his liability for value of, oil or minerals, 21 ALR2d 380. It indicates that:
"The 'mild’ rule is applied where the trespass is inadvertent or not wilful or not in bad faith, and fixes the damages as the value of the minerals in situ. Where such value can be ascertained, the question of allowance or disallowance of credit to the trespasser for his expenditures in producing the minerals is not reached. Where evidence of value in situ cannot be obtained, two methods are used to establish the equivalent of such value: (1) the royalty method, whereby the injured party is allowed the amount for which the privilege of mining and removing the minerals under the customary lease or conveyance of the mineral rights could be sold, and (2) the value of the minerals after extraction less the production costs.” 21 ALR2d at 382.
Both methods of determining the value of the minerals in situ have been applied in Michigan, the royalty method in Ross v Damm, supra, and the value of minerals after extraction less production costs method in Eagle Oil Corp v Cohassett Oil Corp, 263 Mich 371; 248 NW 840 (1933). The annotation further indicates that:
"The 'harsh’ rule is applied where trespass is wilful or in bad faith, and allows the injured party the enhanced value of the product when and where it is finally converted without any credit to the trespasser for his expenses in producing it or for any value he might have added to the minerals by his labor. The award of enhanced value as damages without any credit to the trespasser for his expenditures in production is actually an award of compensatory damages plus punitive damages because of the wilfulness or bad faith of the trespass.” 21 ALR2d at 382. (Emphasis supplied.)
While there are no reported cases applying this harsh rule in Michigan, Robinson v Gordon Oil Co, supra, clearly indicates that it is the law within this state.
The trial court applied the "mild” rule with a royalty method of determining the value in situ and added exemplary damages. This method was improper since the court specifically found that Sun Oil was an intentional and wilful convertor and that the oil was produced in violation of the leases. The "harsh” rule should have been applied in this instance, and plaintiffs awarded the value of the oil at the time of conversion. The addition of exemplary damages was also improper.
In Michigan the categories of punitive and exemplary damages are often incorrectly interchanged. Punitive damages are damages awarded solely to punish. Kewin v Massachusetts Mutual Life Ins Co, 79 Mich App 639; 263 NW2d 258 (1977). Exemplary damages are compensatory in nature and not punitive, since they are properly an element of actual damages. Ray v Detroit, 67 Mich App 702; 242 NW2d 494 (1976). The trial court assessed what it called exemplary damages.
"The Court finds the primary purpose of exemplary damages in Michigan to be an assessment of damages against a defendant that will discourage the defendant from continuing with intentional, wilful and illegal acts and to encourage a defendant to adopt practices and procedures that will prevent damages and losses to plaintiffs as well as to parties similarly situated to plaintiffs.”
It is clear that the exemplary damages awarded were actually punitive damages. Application of the "harsh” rule of damages includes an amount for punitive damages and they may not be assessed twice.
As indicated in Robinson v Gordon Oil Co, supra, the measure of damages is the value of the oil at the time of the conversion. This is in keeping with the general rule in conversion actions that the measure of damages is the market value at the time of the conversion plus interest. Baxter v Woodward, 191 Mich 379; 158 NW 137 (1916), Bowen v Detroit United R Co, 212 Mich 432; 180 NW 495 (1920), Ross v Damm, supra, Embrey v Weissman, 74 Mich App 138; 253 NW2d 687 (1977). The evidence at trial indicated that the selling price for oil from the Columbus 3 field during the period of conversion was from $3.17 to $5.02 per barrel, with a weighted average price of $3.65 per barrel. The price fluctuated from $13.35 to $5.15 per barrel, with a weighted average of $10.34 per barrel, in the period after the conversion ended and up to the time of trial. The trial court utilized $12.50 per barrel as an average price upon which to calculate damages. This figure was clearly erroneous because it does not reflect the value of the converted property at the time of conversion. There is a doctrine that the measure of damages for conversion of goods that fluctuate in value is the highest value between conversion and judgment, but this has never been applied in Michigan. See Anno: Allowance as damages for conversion of commodities or chattels of ñuctuating value, of increase in market value after the time of conversion, 40 ALR 1282; 87 ALR 817. We do not choose to apply this doctrine in this instance.
Sun Oil’s conversionary actions occurred from February 1970 through June 1974. When a conversion occurs over such an extended period of time it is difficult to fix a market price. A weighted average might effectively compensate the plaintiffs, or it might understate the total damages. Since it is impossible to accurately determine the proper price, the highest price during the period, $5.02 per barrel, should be utilized. This will insure that the innocent party will receive adequate compensation for the injury suffered.
Plaintiffs requested that the leases with Sun Oil be rescinded ab initio, but this remedy was refused by the trial court. The grant or denial of rescission is not a matter of right, but rather lies within the discretion of the trial court. Bechard v Bolton, 316 Mich 1; 24 NW2d 422 (1946). Plaintiffs have been adequately compensated by the damage award. We agree with the trial court that rescission would not be appropriate in this instance.
Affirmed in part. Reversed in part. Remanded for entry of a judgment not inconsistent with this opinion. No costs, neither party having prevailed in full._
Supervisor of wells act, MCL 319.1 et seq.; MSA 13.139(1) et seq.
The Supervisor of Wells Order of May 22, 1969, established:
"(B) DRILLING UNIT
The drilling unit for wells drilled for oil and gas in the pool defined in (A) above shall be a tract of approximately 20 acres, rectangular in shape, formed by dividing a governmental surveyed quarter-quarter section of land into an east half and a west half thereof.
"(C) WELL SPACING PATTERN
Permits shall be granted for the drilling of wells for oil and gas in the pool defined in (A) above provided the wells are located in the center of the northeast one-quarter (NE1/4) or the center of the southwest one-quarter (SE1/4) of a governmental surveyed quarter-quarter section of land.”
Supervisor of Wells Order of May 22, 1969.
The trial court awarded damages as follows:
"The Court finds that the 50,000 barrels of oil illegally drained from beneath the Wronski and Koziara tracts are to be valued at the rate of $12.50 per barrel, are to be allocated in accordance with their relative allocation factors based on the participation percentages set forth in PlaintiiFs Exhibit No. 7 and reduced by the percentage royalty ownership of the respective Plaintiffs in each tract. The Court finds Koziara Tract No. 1 to have an allocation factor of .405% and a royalty ownership of 100%; Koziara Tract No. 2 to have an allocation factor of 13.212% and a royalty ownership of 20.83%; Koziara Tract No. 6 to have an allocation factor of 59.218% and a royalty ownership of 18.75%. The Court finds compensatory damages to be awarded the Plaintiffs Koziara against Defendant Sun Oil Company in the total amount of Eighty-Nine Thousand One Hundred Twenty-Seven and 00/000 ($89,127.00) Dollars.
"The Court finds the Wronski Tract No. 7 to have an allocation factor of 26.421% and a royalty percentage of 12.5%; the Wronski Tract No. 13 to have an allocation factor of .743% and a royalty interest of 100%. The Court finds compensatory damages to be awarded the Plaintiffs Wronski in the amount of Twenty-Five Thousand Two Hundred Eighty-Four and 00/100 ($25,284.00) Dollars and assessed against the Defendant Sun Oil Company.
"The Court determines on the basis of all the testimony and evidence in this case and after considering the matters stated above, that it would be reasonable and proper to assess exemplary damages against Defendant Sun Oil Company in the amount of Fifty (50%) per cent of the compensatory damages previously awarded to the Plaintiffs. The Court finds exemplary damages to be assessed against Defendant Sun Oil Company in the amount of Forty-Four Thousand Five Hundred Sixty-Three and 50/100 ($44,563.50) Dollars and awarded to plaintiffs Eugene H. Koziara and Aniela Koziara. The Court finds exemplary damages to be assessed against Defendant Sun Oil Company in the amount of Twelve Thousand Six Hundred Forty-Two ($12,642.00) Dollars and awarded to Plaintiffs Walter F. Wronski and Eleanor J. Wronski.” Trial court opinion at 15-19.
The act provides for criminal sanction under §§ 18 (b) and 19, MCL 319.18b; MSA 13.139(18b), MCL 319.19; MSA 13.139(19), and civil penalties under § 20, MCL 319.20; MSA 13.139(20), for violations of any rule, regulation or order issued in furtherances of the act. Specifically absent is any authority to award damages to any individual injured by violation of rules or orders issued by the supervisor.
Trial court opinion at 14.
When there is conversion from a common pool all those having an interest therein are harmed. It would be advisable to join all such parties, but we do not require such joinder.
Illegal oil is any oil produced in violation of a rule or regulation of the supervisor. MCL 319.2(m); MSA 13.139(2)(m). It is subject to confiscation and sale by the supervisor. MCL 319.21; MSA 13.139(21);
Trial court opinion at 17.
The total damages awardable in this case is $251,000 based upon the conversion of 50,000 barrels of oil valued at $5.02 per barrel. Plaintiffs Koziara are entitled to $187,815.85 due to their ownership of 72.835% of the converted oil. Plaintiffs Wronski are entitled to $68,189.15 due to their ownership of 27.165% of the converted oil. | [
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Per Curiam.
Defendant appeals from a verdict by a jury in Wayne County Circuit Court convicting him of felonious assault, in violation of MCLA 750.82; MSA 28.277. Counsel for the defendant have strongly contended in this appeal that the case has numerous errors entitling defendant to reversal. We are of the view that one issue is dispositive and, therefore, reverse.
Though we reverse, our disposition herein cannot be satisfactorily understood without reference to the posture of events below. Defendant has now faced trial on this same charge on four occasions. All four trials occurred during a three-month period. The first three trials resulted in hung juries. In the instant trial, the jury deliberated four days before rendering its verdict.
Throughout the course of these proceedings, de fendant has been represented by the Legal Defenders Office. At the time of the fourth trial, the attorney who had represented defendant in the first three trials was unable to participate. An adjournment was requested to allow time for the original attorney to handle the fourth trial. The motion was denied. As a result, new counsel from the defender’s office was brought in to handle the trial.
Prior to the fourth trial, defendant’s new counsel requested the trial transcripts of the first and third trials. This was sought despite the fact that the defendant had been previously provided with copies of the- preliminary examination and second trial transcript. His request was premised upon People v Glass, 38 Mich App 735; 197 NW2d 140 (1972). At the time of this request he stated:
"I would submit to the Court that perhaps discovery is not the main thrust in this motion, it is impeachment. You have a situation where you have two eye witnesses, and at the time of the trial they decide to bring in the second eye witness, considering the witness was going to testify to the modus operandi of my client. I submit the impeachment is of the utmost importance. That is what the case is all about, eye witness testimony. If ever there was a situation where impeachment possibility is available, it should be made available. You have a long trial, and you get mixed up with a secondary issue, and in this case eye witness identification. That is what we need it for.”
The trial judge reached a result contrary to defendant’s position on the basis of essentially the following facts:
"This case was a short trial. It was a comparatively simple trial. We have the examination testimony, you have the complete transcript of the second triaí, re quested by the defendant, and adjournment was granted for that purpose. The third trial again repeated that which was in the second trial.”
Again, as in the court below, defendant contends that the trial judge’s denial of the transcripts was error. We agree.
In Glass, the Court held that an indigent criminal defendant was entitled to a transcript of his first trial at state expense prior to a new trial, even though he was represented by the same lawyer at both trials. In reaching this result, Judge, now Justice, Levin quoted approvingly the following language from Britt v North Carolina, 404 US 226, 228; 92 S Ct 431; 30 L Ed 2d 400 (1971):
" 'We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner’s failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case. As Mr. Justice Douglas makes clear, even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.’ * * * (Emphasis supplied.)” 38 Mich App at 738.
We think Glass governs our result here. It is, of course, true that the instant case differs from Glass in that all of the trials occurred within a three-month period. Moreover, defendant was given copies of the second trial and the preliminary examination transcripts prior to the third trial. But, by the same token, there are dissimilari ties which suggest that the need was even greater than in Glass.
In the instant case, defendant was now being represented by different counsel. We do not overlook or minimize the consideration that he was from the same office as original counsel. But this hardly suffices to let him delve into the inconsistencies in a witness’s prior testimony. He was not dealing with a faulty memory of earlier trials but, rather, he was dealing without the benefit of any recollection.
The transcripts provided did not rectify this deficiency. This attorney employed a strategy quite different from that of his predecessor. For example, this was the first time defendant testified in his own behalf. Thus, based upon this alteration of trial tactics, various aspects of earlier testimony on the part of the witnesses could become crucial to defendant’s defense. Obviously, without the benefit of the other transcripts, the defendant would be unable to discern the inconsistencies in the prior testimony of the witnesses.
Finally, it is also urged by the prosecutor that this was a relatively simple case and the transcript was unnecessary to defendant’s defense. The record belies this assertion. We have a voluminous transcript in the instant case. As was noted previously, there were three prior hung juries. The fourth jury deliberated four days before reaching a verdict. As the trial judge stated in rejecting defendant’s assertion that four days of deliberation amounted to coercion to reach a verdict:
"It has been a very lengthy trial, the evidence is voluminous, extensive cross examination; and in actual ity the time used by the jury to this point, relatively speaking, has not been a long time to deliberate on everything that has gone into this record.”
For the above-stated reasons, we reverse and remand.
We note that the defendant testified because the trial judge suppressed any references to his prior criminal record. See People v Jackson, 390 Mich 621; 212 NW2d 918 (1973). | [
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T. M. Burns, J.
The special prosecutor brings this appeal to review three orders entered by the circuit court on May 26, 1978. The net effect of these orders was to prevent further prosecution of defendant, a former sheriff and undersheriff of Eaton County, for any alleged misconduct while he held those positions.
A citizens grand jury formed to investigate police misconduct in a murder prosecution returned a nine-count indictment against defendant. At the preliminary examination, defendant was bound over for trial on three counts. The amended information, set forth as an appendix to this opinion, charged defendant with one count of obstruction of justice, MCL 750.505; MSA 28.773, one count of perjury in a "capital” case, MCL 750.422; MSA 28.664, and one count of wilful neglect of duty, MCL 750.478; MSA 28.746.
It would be of little value to detail the many motions, at least 22, and attempted appeals which have preceded our consideration of this case. It is sufficient to outline the action below which precipitated this appeal. One of the orders entered on May 26 dismissed Counts II and III of the information on double jeopardy grounds. Defendant’s double jeopardy claim arose from the following sequence of events.
The people intended to prosecute all three counts in the single trial. Claiming the acts upon which Count I were based were not part of the same transaction as those described in Counts II and III and that a single trial on all three counts would deprive him of a fair trial, defendant moved to sever the trial on Count I from the remaining counts. After extended, and at times heated argument, the motion was granted. Further argument was heard, at which point the trial court stated:
"The defendant in this particular case had made a motion, that I have just ruled on, to sever and in the arguments for the granting of such motion has indicated that he doesn’t like the position he places himself in because the prosecutor, to put it bluntly, gets more than one crack at it; and that it seems to me, and my ruling is, that the defendant, by making the motion, well knowing what jeopardy he may be putting himself into, or inconvenience he may be putting himself into, has waived any defense, if it is waiveable, of collateral estoppel.”
After the prosecutor’s efforts to rejoin the three counts were rejected the parties proceeded to trial on Count I. Because of certain evidentiary rulings by the trial court, but before the people’s case had been completed, the prosecutor asked for a mistrial. When defendant refused to consent to the mistrial, the prosecutor moved to dismiss Count I and the jury was discharged. Defendant joined in the motion to dismiss. The prosecutor’s attempt to appeal the evidentiary questions to this Court after the dismissal of Count I was rejected on double jeopardy grounds. When this Court denied the prosecutor’s appeal following the dismissal of Count I, defendant moved to dismiss Counts II and III on the basis of double jeopardy. In an apparent reversal of its previous position, the circuit court found that further prosecution on Counts II and III was barred by the double jeopardy clause.
The problem raised by these facts involves the double jeopardy bar against successive prosecutions. We assume, without deciding, the trial on all three counts should have been had in a single proceeding under the rule of People v White, 390 Mich 245; 212 NW2d 222 (1973). But, that is not the issue here. Our question is whether defendant waived his right to a single trial by seeking severance. We conclude that he did.
The double jeopardy problem was specifically raised at the time severance was granted. The trial court at that time indicated defendant was waiving the right. The fact that the first trial ended in a dismissal does not effect the waiver which had preceded it. This conclusion can be inferred from prior decisions of this Court. See, People v Fick, 45 Mich App 435; 206 NW2d 739 (1973), People v Galdoni, 81 Mich App 606; 266 NW2d 47 (1978). Other courts have found a waiver of double jeopardy rights when the defendant seeks severance or opposes consolidation. In the Matter of ALS, 377 A2d 1149 (DC App, 1977), State v Brissette, 31 Or App 1243; 572 P2d 1068 (1977), Commonwealth v Holmes, 480 Pa 536; 391 A2d 1015 (1978). In a case such as this, where defendant has done everything he can to avoid having all offenses tried in a single proceeding, we cannot hold that the double jeopardy clause bars a second trial. Cf. Jeffers v United States, 432 US 137, 152; 97 S Ct 2207; 53 L Ed 2d 168 (1977) (opinion of Blackmun, J.). The right has been waived.
As an alternative basis for dismissing Count II, the perjury count, the trial court held that the question and answer upon which that count was based could not constitute perjury as a matter of law. In effect, the trial court ruled that the examining magistrate erred in his findings regarding materiality, falsity and wilfulness.
The standard to be applied by a trial court in determining whether probable cause was established by sufficient evidence at the preliminary exam is the abuse of discretion standard. The trial court is not to substitute its judgment for that of the magistrate unless the evidence is totally wanting on a material point. People v Gould, 61 Mich App 614; 233 NW2d 109 (1975).
Perjury is defined in the statute as:
"Any person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, * * MCL 750.423; MSA 28.665.
"In order to constitute perjury under the statute, three things are necessary:
"First: Administration to the respondent of an oath authorized by law, by competent authority;
"Second: An issue or cause to which facts sworn to are material, and;
"Third: Wilful false statements or testimony by the respondent regarding such facts.” 4 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 2000, p 2281.
The specific question and answer upon which the perjury count is based is set forth in the footnote along with several questions preceding and following it. This testimony was given by Hoag at the second Morris trial during cross-examination by Morris’s attorney. Hoag had previously admitted meeting with the prosecutor prior to this second trial. There is no question that the magistrate had sufficient evidence to find that Hoag was under oath and that the oath was properly administered. The problem lies with the other elements of the offense.
We have concluded that the question and answer were material to an issue being tried in the Morris case. The origin of the blanket, whether it was found in Morris’s car by the Michigan State Police or had been placed there by Hoag, was a crucial fact. If the blanket could be tied to Morris or his car, it was a vital piece of evidence in the people’s case. By his cross-examination, Morris’s attorney was trying to prove that Hoag had placed the blanket in Morris’s car and that he had discussed that fact with the prosecutor only a short time before the second trial. At the very least, the question was material to Hoag’s credibility. Credibility is a sufficiently material issue to support a prosecution for perjury. See, 60 Am Jur 2d, Perjury, § 11, p 973.
We turn next to the magistrate’s finding of falsity. Accepting for the moment that a "literal truth”, even if unresponsive, cannot support a perjury prosecution under our statute, Bronston v United States, 409 US 352; 93 S Ct 595; 34 L Ed 2d 568 (1973) (construing the Federal perjury statute), that concept has no application here. The Bronston holding is limited to answers which are indisputably true. It is improper to accept, as a matter of law, that an answer is arguably true under a defendant’s interpretation of the question. See, United States v Haldeman, 181 US App DC 254; 559 F2d 31 (1976). Under the facts presented to the magistrate, whether the statement was false is a question of fact to be resolved by the trier of fact. There was sufficient indication of falsity to bind defendant over for trial.
The question of wilfulness may be resolved in the same manner. If the answer was not intentionally false, the jury must acquit. But, where there is some question as to what the defendant meant by his answer or some question as to how he interpreted the question, the issue is for the jury. People v German, 110 Mich 244; 68 NW 150 (1896). The evidence before the magistrate, including the testimony quoted in footnote 4, was sufficient to support a finding of wilfulness and to show that defendant did not have a problem interpreting the question.
The trial court erred by substituting its view of the evidence for that of the examining magistrate and in dismissing Count II of the information on the evidence there presented.
The final issue comes to us in a most unusual way. During the trial on Count I the Court struck the testimony of Ray James, a reporter who had questioned Hoag shortly after he, Hoag, had testified in the second Morris trial. The basis of the action was James’s refusal to name the source of certain information he had used in formulating questions put to Hoag. The information consisted of quotes from Hoag’s testimony at the Morris trial. James had asked Hoag if he had testified in that way and if that testimony was true. The trial court entered an order on May 26, 1978, stating that it would treat Mr. James’s testimony in exactly the same manner in any subsequent trial or trials ordered by this Court. In effect, the court held that if James did not reveal who gave him Hoag’s testimony in the Morris trial he could not testify in the perjury prosecution.
We do not perceive this problem as involving the scope of the reporter’s privilege to protect confidential sources under MCL 767.5a; MSA 28.945(1). As we see it, the question is whether the source of the information used by James to formulate his questions was relevant or material. Stated another way, was it a proper topic of inquiry? Under the circumstances of this case we hold that it is not. James testified that Hoag admitted that he testified as James suggested he had. Thus, where James got his information is not material. It has no relation to any fact at issue. We fail to see how revealing the source could affect James’s credibility.
Subject to the other rules of evidence, James’s testimony is admissible and should not be excluded solely because he does not reveal who supplied him information which later became the basis of questions to Hoag and was a matter of public record.
Reversed and remanded for further proceedings.
APPENDIX
State of Michigan
In the Circuit Court for the County of Eaton
People of the State of Michigan,
Plaintiff,
vs.
Alonzo Eugene Hoag,
Defendant.
Amended Information
File No. 76-214-FY
State of Michigan )
) ss.
County of Eaton )
In the Name of the People of the State of Michigan, Now comes the Special Prosecutor in and for the said County, State of Michigan, who prosecutes for and on behalf of the People of the State of Michigan, in said Court in the current term thereof, and gives the said Court to understand and be informed that the above-named Defendant heretofore on or about the date of offense set forth at the Location set forth, in the said County of Eaton, State of Michigan.
Count I
That on or about the twenty-third day of June, 1971, and continuing to the ninth day of January, 1976, A. Eugene Hoag, being obligated by oath and by law to investigate, report and disclose the results of his investigation into the death of one Gary Herrero did, in breach of said duty, willfully and deliberately suppress, conceal, and distort facts known to him concerning said investigation, to-wit:
A. Failing to inform State Police Investigators conducting a search of the vehicle of Richard Morris, then a suspect in the murder of Gary Herrero, that there was no blanket in said vehicle at the time the vehicle was first searched and seized by A. Eugene Hoag.
B. Failing to itemize on the return of the executed search warrant, the seizure of a blanket.
C. Failing to disclose to the prosecution that the blood stained blanket, offered and introduced as Plaintiffs Exhibit, during the Preliminary Examination of the accused Richard Morris, was not located in the vehicle of Richard Morris when it was first secured and searched by A. Eugene Hoag.
D. Failing to disclose to the prosecution that the aforementioned blood stained blanket was false evidence against the accused, Richard Morris, contrary to the laboratory analysis reports from the Michigan State Police submitted on or after August 6, 1971.
E. Failing to disclose during his testimony at the time of the first trial of Richard Morris, that the blood stained blanket was false evidence against the accused, Richard Morris.
F. Failing to disclose to the prosecution at a meeting on December 19, 1975, in the offices of the Eaton County Prosecutor that the aforementioned blood stained blanket was false evidence against the accused, Richard Morris.
G. Failing to disclose to the jury during his testimony at the second trial of Richard Morris on or about January 6, 1976, that the aforementioned blood stained blanket was discussed at the meeting conducted on December 19, 1975.
H. Intentionally misleading both defense counsel and the jury during his testimony at the second trial of Richard Morris on or about January 6, 1976, regarding a discussion as to the origin of the blanket as an Exhibit, said discussion having occurred at the offices of the Eaton County Prosecutor on December 19, 1975.
And that in each of the aforementioned acts or omissions A. Eugene Hoag did obstruct justice, willfully distorting and impeding the administration of the criminal law contrary to (MCLA 750.505; MSA 28.773) (Maximum penalty—five years imprisonment).
Count II
On or about the sixth day of January, A.D., 1976, A. Eugene Hoag, upon his oath, before the Honorable Richard Robinson, Eaton County Circuit Court Judge in the trial of the People of the State of Michigan v Richard Morris, No. 112-71C, on the charge of murder in the second degree, a capital crime, did falsely swear, in that he stated and answered "No” to the following question asked him: "Now did you make any mention, or mention or discuss questions of this blanket?”, whereas in truth and in fact the said A. Eugene Hoag on or about the nineteenth day of December, 1975, did discuss with Paul Berger, in the presence of Larry Hamilton, the origin of the blanket and the intended testimony of A. Eugene Hoag regarding said blanket, that said statements being made at the office of the Eaton County Prosecutor, located in the City of Charlotte, Eaton County, Michigan, that the foregoing false statement was made willfully and corruptly and that the false statement was material to the proceedings at which it was tendered. Contrary to P.A. 1931, No. 328, S 422 (MCLA 750.422; MSA 28.664) (Maximum penalty—life imprisonment).
Count III
On or about the sixth day of January, A.D., 1976, A. Eugene Hoag, upon his oath before the Honorable Richard Robinson, Eaton County Circuit Judge in the trial of the People of the State of Michigan v Richard Morris, No. 112-71C, on the charge of murder in the second degree, a capital crime, did falsely swear, in that he stated and answered "No” to the following question asked him: "Now did you make any mention, or mention or discuss questions of this blanket?”, whereas in truth and in fact the said A. Eugene Hoag on or about the nineteenth day of December, 1975, did discuss with Paul Berger, in the presence of Larry Hamilton the origin of the blanket and the intended testimony of A. Eugene Hoag regarding said blanket, that said statements being made at the office of the Eaton County Prosecutor, located in the City of Charlotte, Eaton County, Michigan, that the foregoing false statement was made willfully and corruptly in willful neglect of his duty as an officer sworn to uphold the law contrary to (MCLA 750.478; MSA 28.746) (Maximum penalty-one year and/or $500).
All of said conduct being against the peace and dignity of the People of the State of Michigan.
Witnesses
William Degraaf; Helen Clegg; Ray James; Larry Hamilton; Frank Combs; James Kirkpatrick; Dennis Armstrong; Robert Kowalski; Donald Schuiteman; Robert Deitrick; Donald Zimmer; Sharon Martin; Curtis Oglesby; Paul Berger; The Honorable Richard Robinson; Thomas Shirts; I. Goodman Cohen; Richard Bisbing; Joseph Krease; Elwin Smith; David Smith.
/s/ Joseph D. Reid
Joseph D. Reid
Special Prosecutor for Eaton County
Reid & Reid, P.C.
530 South Capitol Avenue
Lansing, Michigan 48933
/s/ Lawrence J. Emery
Lawrence J. Emery
Assistant Special Prosecutor for Eaton
County
Reid & Reid, P.C.
530 South Capitol Avenue Lansing, Michigan 48933
Dated: April 27, 1977
Richard Morris was prosecuted for the murder of Gary Herrero. The first trial ended in a conviction which this Court reversed in an unpublished per curiam opinion (Docket No. 14273, issued on December 4, 1974). The retrial of Morris ended in a mistrial. Subsequently, a three-judge panel dismissed the Morris prosecution because of alleged police misconduct. This Court affirmed the dismissal, People v Morris, 77 Mich App 561; 258 NW2d 559 (1977), and the Supreme Court denied leave. 402 Mich 844 (1977).
Defendant Hoag was not a party to those proceedings, nor was he represented by counsel. The factual findings of the circuit panel, which this Court affirmed on appeal, are, therefore, not binding in this prosecution.
Defendant takes the opposite view in this appeal.
The White majority specifically stated that the rule adopted did not affect the law relating to a defendant’s request for the severance of related offenses. 390 Mich at 258, fn 8.
"Q. Well, did you remind him and say, How about going over the matter of the car?
"A. No.
"Q. You didn’t mention that?
"A. No.
"Q. Now did you make any mention, or mention or discuss questions of this blanket?
"A. No.
"Q. Not at all?
"A. No.
"Q. No question came up about whether you used a blanket or not to examine the car?
"A. No.
"Q. I’m assuming when you say No, without any hesitancy, you mean, No. It’s not, you don’t remember or you are not certain, it means No?
"A. Yes.”
The other evidence shows that the blanket was mentioned or discussed at Hoag’s meeting with the prosecutor. It also showed that Hoag told others he intentionally gave defense counsel misleading answers during the second Morris trial.
The testimony of William DeGraaf should be treated in the same manner. | [
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] |
T. M. Burns, P.J.
This case raises an important question under the no-fault automobile insurance chapter concerning the extent to which § 3135(1) retains traditional tort liability for injuries which are emotionally or mentally based.
The car plaintiff Donna Luce was driving was struck head-on when the vehicle defendant Fred Gerow was driving crossed the center lane of a five-lane highway. Plaintiff received no serious physical injuries in the accident but her husband, who was riding in the passenger seat, sustained serious head injuries which are permanent in nature. Mrs. Luce claims that she suffered an emotional shock which has resulted in physical symptoms from seeing her husband at the time of the crash and as a reaction to his continuing poor condition.
The Luces brought suit to recover for the husband’s physical injuries, Mrs. Luce’s loss of consortium, and an independent claim of negligent infliction of emotional disturbance on behalf of Mrs. Luce. The husband’s claim and Mrs. Luce’s claim for consortium were settled. Mrs. Luce’s claim for "mental” injury was dismissed at the conclusion of her opening statement at trial, under GCR 1963, 117.2(1) (failure to state a claim upon which relief may be granted), because the trial court was of the view that a "mental injury” could not be impairment of a "body” function as that term is used in § 3135(1).
We begin our analysis by concluding that plaintiff has stated a cause of action which the courts of this state would have recognized before passage of the no-fault act. She claims that she witnessed a grievous injury inflicted on her husband which caused a mental injury which resulted in definite and objective physical symptoms. Daley v LaCroix, 384 Mich 4; 179 NW2d 390 (1970), Toms v McConnell, 45 Mich App 647; 207 NW2d 140 (1973), 2 Restatement Torts, 2d, § 436. Indeed, defendant seems to have conceded as much at oral argument.
The section of the no-fault chapter involved, MCL 500.3135(1); MSA 24.13135(1), retains traditional tort liability if certain threshold requirements are met. It provides:
"A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.”
Defendant urged, both in the brief and at oral argument, that the Legislature did not intend to retain liability for mental injuries, even those resulting in physical symptoms, which had been previously recognized. The conclusion is supposedly drawn from the plain language of the statute and we are asked to focus particularly on the phrases "injured person” and "serious impairment of body function”. The circuit court focused on the word "body” and found that this was to mean physical injury as opposed to mental injury.
The statutory phrase requiring a threshold showing of serious impairment of body function has not been definitively defined either in another section of the act or by the courts. See, Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 447-478; 208 NW2d 469 (1973). Most of the decisions construing the phrase deal with whether a particular physical injury was in fact "serious” or review a circuit court’s attempt to define the phrase for a jury. Cassidy v McGovern, 86 Mich App 321; 272 NW2d 644 (1978), Stevens v Hogue, 85 Mich App 185; 270 NW2d 735 (1978), lv den 404 Mich 828 (1979), Vitale v Danylak, 74 Mich App 615; 254 NW2d 593 (1977), McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976).
The question in this case is different than that faced in the earlier cases. We must decide whether the Legislature intended to exclude an entire class of injured persons, not because of the seriousness of their injury, but because of the type of injury sustained.
We reject defendant’s contention that the section retaining tort liability on a showing of a certain threshold is limited to physical injuries. An injury to mental well being can be as much an injury to a "body function” as an injury to an arm or a leg. Once it is accepted that mental injuries, with physical consequences, are "real” injuries, defendant’s position becomes unsupportable either in law or in logic. It is clear that under present medical and legal theory, mental injuries are considered just as real as physical injuries. We therefore hold, as a matter of law, that the Legislature did not intend to exclude the possibility of recovering for mental injuries resulting in physical symptoms by using the term "body function” in § 3135(1).
This category of injuries may be compensable. Whether a particular plaintiff has sustained a mental or emotional injury which impairs a body function and whether that impairment is serious remain questions for the jury under the cases cited above. The trial court erred in dismissing plaintiff’s suit on this basis.
Defendant also claims that plaintiff cannot recover for her injuries because she was not the "injured person” contemplated by § 3135(1). Under this view, the husband is the injured person and plaintiffs condition is merely a reaction to his injuries.
Much of what was said above applies here. The apparent assumption underlying defendant’s argument is that plaintiff’s injury is somehow less real, and therefore, not worthy of being compensated for, because none of her bones were broken. We cannot accept this proposition. If plaintiffs allegations are proved and accepted by the jury, it is apparent that she was "injured” in the accident. Compare Toms v McConnell, supra. Just as the jury should have been allowed to find that the mother was injured by watching her child being run over in Toms, the jury should be allowed to find that Mrs. Luce was injured, in her own right, by invasion of a protected property interest in mental well being, by witnessing and dealing with her husband’s condition in this case.
Reversed and remanded for proceedings consistent with this opinion. No costs, construction of a statute being involved.
MCL 500.3135(1); MSA 24.13135(1).
Many of the concepts and most of the theory upon which our no-fault act are built come from the Uniform Motor Vehicle Accident Reparations Act (UMVARA), 13 ULA (Master ed), p 349 et seq. See, Pries v Travelers Ins Co, 86 Mich App 221; 272 NW2d 247 (1978).
One of the thresholds for retained tort liability in the Uniform Act is "significant permanent injury”. UMVARA § 5(a)(7). Injury is defined in § 1(a)(4) of the Uniform Act to include "bodily harm, sickness, disease, or death”. The commissioner’s comment to this section states: "This definition is taken from tort liability policy forms and is used throughout the Act to distinguish personal injury from harm to property. These terms do not distinguish between 'mental’ and 'physical’ illness.”
Like the Uniform Act, our act should not be interpreted to distinguish between results of a physical injury and results of a mental injury. Both should be compensable once the threshold of "serious impairment of body function” is met.
Defendant conceded at oral argument that plaintiff’s allegations and intended proofs are sufficient to avoid summary judgment under GCR 1963, 117.2(3) (no issue of fact) if we hold that such injuries are not excluded from retained liability under the act. | [
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Bashara, J.
Defendant appeals from a plea-based conviction of breaking and entering a motor vehicle with the intent to steal property valued over five dollars, MCL 750.356(a); MSA 28.588(1), and his subsequent conviction as an habitual offender, MCL 769.12; MSA 28.1084.
The court found at the habitual offender hearing that the defendant had been previously convicted of armed robbery, attempted breaking and entering of a motor vehicle, and two attempted larcenies in a building.
A question of identity arose during cross-examination, since two of the files were under the name of Esau Davis, and two in the name of Esau Davis, Jr., with none of the files listing a specific date of birth.
A Detroit fingerprint identification officer was called to testify regarding fingerprints in the aforementioned files. The prosecutor requested that defendant’s thumbprints be taken as a basis for comparison. Defendant objected to this action, asserting self-incrimination and claiming such a procedure should have been undertaken at an earlier stage of the proceeding.
The court overruled defendant’s objection after a recess, and ordered the fingerprints taken. These prints and the earlier prints were identified as belonging to the same person.
Defendant first claims that the guilty plea must be reversed because the trial court failed to inform him specifically of his right to court appointed counsel throughout the entire criminal proceedings in the event of his indigency.
GCR 1963, 785.4(2) requires the court to affirmatively advise defendant of his right to counsel at each proceeding after the arraignment only if the defendant actually appears without counsel.
In this case, counsel appeared with defendant when he waived his right to a formal arraignment and at the guilty plea proceeding. Counsel also indicated to the court that he had advised defendant of his constitutional rights. Therefore, this claim is without merit.
Defendant’s second contention is that the in-court fingerprinting constituted unfair surprise and did not allow his counsel adequate time to prepare for cross-examination.
Fingerprinting is a matter of identification and not incrimination. People v Davis (App for Reh), 17 Mich App 615; 170 NW2d 274 (1969), Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966).
Permitting an in-court fingerprinting is within the discretion of the trial judge when the procedure is relevant to an issue at hand. People v Chimovitz, 237 Mich 247, 251; 211 NW 650 (1927), People v Auerbach, 176 Mich 23, 45; 141 NW 869 (1913). As stated by the Michigan Supreme Court in People v Les, 267 Mich 648, 652; 255 NW 407 (1934):
"Practically all the decisions in which the question has been considered have held that evidence as to the correspondence of fingerprints is admissible to prove identity. See Powell v State, 50 Tex. Cr. R. 592 (99 S.W. 1005); Brown v State, 76 Tex. Cr. R. 316 (174 S.W. 360); and State v Miller, 71 N.J. Law, 527 (60 Atl. 202).”
A question of identity being raised, the fingerprinting was a relevant procedure. Moreover, the record indicates the proceeding was delayed after the request to fingerprint was made, mitigating any claim of surprise. If anything, defendant’s rights were protected by insuring that a proper identification was made.
Defendant’s final contention is that it was error to allow the two convictions for attempted larceny in a building to be considered as prior felony convictions, since they are misdemeanors.
The habitual offender statute, MCL 769.12; MSA 28.1084, states:
"A person who after having been 3 times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country which if committed within this state would be felonious, commits any felony within this state is punishable upon conviction.”
The statute dealing with attempts, MCL 750.92; MSA 28.287, provides in part:
"If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than five years or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor.”
Larceny in a building is a felony punishable by a prison term not to exceed four years, MCL 750.360; MSA 28.592, MCL 750.503; MSA 28.771. Thus attempted larceny is punished as a misdemeanor.
It is well settled that when construing statutes every legislative act is presumed to be constitutional and the purpose of the legislation a factor for consideration. Thomas v Consumers Power Co, 58 Mich App 486, 495; 228 NW2d 786 (1975), Wayne County Republican Committee v Wayne County Board of Comm’rs, 70 Mich App 620, 625; 247 NW2d 571 (1976).
The purpose of the habitual offender statute is to punish recidivists, the focus being on the status of the defendant. The substance of the offense, not the punishment prescribed, is the primary consideration. Cf. Salgado v United States, 277 F2d 653 (CA 1, 1960), Taylor v United States, 333 F Supp 1067 (ED Miss, 1971).
MCL 769.12 expresses no requirement that prior convictions for "attempts to commit felonies” must in themselves constitute felonies. Therefore, a prior misdemeanor conviction for attempt to commit larceny in a building may be the basis for an information under MCL 769.12 et seq.; MSA 28.1084 et seq.
Defendant claims such a statutory construction violates equal protection. He argues that an attempted felony committed in a foreign jurisdiction where the crime was deemed by law to be a misdemeanor would not be counted as a prior offense under the Michigan statute.
The statute, in considering crimes committed in another jurisdiction, does not take into account the label affixed to the crime but whether the act was "felonious”. The term "felonious” connotes intent. Therefore, attempts to commit felonies, while they may be punishable as misdemeanors, would apply to the act because an attempt to commit a felony requires the same intent as the commission of the felony itself.
Affirmed. | [
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] |
V. J. Brennan, P.J.
In October of 1974, plaintiff Helen Koenig brought suit in Oakland County Circuit Court to have a warranty deed executed by her to defendants Van Reken declared an equitable mortgage. The original complaint was later supplemented to add a count against the defendants for unjust enrichment. The defendants moved for a summary judgment under GCR 1963, 117.2(1) claiming that the plaintiff failed to state a claim upon which relief could be granted. The plaintiff appeals by right the lower court’s granting of the defendants’ motion, but contests only the dismissal of the equitable mortgage count. Our review is thus limited to the question of whether the trial court under GCR 1963, 117.2(1) properly dismissed the action regarding the imposition of an equitable mortgage.
A motion based on GCR 1963, 117.2(1) challenges the legal sufficiency of a plaintiffs complaint and is to be considered by an examination of the pleadings alone. It is the duty of the reviewing court to accept as true the well-pleaded facts in the plaintiffs complaint and determine whether those claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Merit Electric Co, Inc v J Boyle, Inc, 77 Mich App 503; 258 NW2d 539 (1977), Three Lakes Ass’n v Whiting, 75 Mich App 564; 255 NW2d 686 (1977), Stewart v Troutt, 73 Mich App 378; 251 NW2d 594 (1977).
Accordingly, the factual situation comprising the subject matter of the present appeal is derived from the various allegations in the plaintiffs complaint.
In 1970, plaintiff owned a home in Oakland County with a market value of $60,000 that was encumbered by three mortgages totaling $25,933.26. The real estate taxes on plaintiffs home had become delinquent and foreclosure proceedings had begun on one of the mortgages. Plaintiff was then approached by defendant, Stanley Van Reken, who proposed that for a fee of 10% he would "service” the mortgages and pay the delinquent taxes. Subsequently, on June 16, 1970, plaintiff and defendant Stanley Van Reken executed three documents that form the basis of this action.
The first of these documents, entitled "AGREEMENT”, stated that plaintiff desired to prevent the loss of her home and provided that defendant Stanley Van Reken purchase the property, redeem it from tax sale and mortgage foreclosure, and give plaintiff an exclusive right to repurchase according to the terms of a lease-option agreement that was also executed between the parties.
The second document was a warranty deed which conveyed the property from plaintiff to defendants for a stated consideration of $28,600. Plaintiff alleges that the deed was silent as to consideration when she signed it, that the figure of $28,600 was added subsequently, and that she never received any such consideration.
The third document provided that Stanley Van Reken was to lease the premises to plaintiff for a 3-year period at a fixed monthly rent of $300. Plaintiff was also to receive an exclusive option to repurchase the premises during the term of the lease for a price of $32,318.79, with a downpayment of $3,500 and monthly payments of $300 which were to include taxes, insurance, principal and interest.
At no time during the negotiations that led to the execution of these documents was plaintiff represented by an attorney, and all three documents were prepared by Stanley Van Reken.
The parties operated under the lease from June 16, 1970, to February, 1972, and during this time plaintiff made total payments of $5,800. In February, 1972, plaintiff defaulted in a monthly rental payment. Plaintiff was thereupon evicted from the home.
The defendants argue on appeal that the subject transaction cannot be deemed to create an equitable mortgage since it has not been alleged that the deed was given to secure an obligation owed by the plaintiff to the defendants. The defendants contend that the "obligation owed” is a necessary requisite to establish an equitable mortgage "as a matter of law”.
The defendants’ argument not only shows a lack of understanding of the nature and purpose of equitable relief but overlooks well-established Michigan case law on point. The court of equity protects the necessitous by looking through form to the substance of the transaction. Although no set criterion has been established, the controlling factor in determining whether a deed absolute on its face should be deemed a mortgage is the intention of the parties. Sheets v Huben, 354 Mich 536; 93 NW2d 168 (1958), Miskinis v Bement, 301 Mich 365; 3 NW2d 307 (1942). Such intention may be gathered from the circumstances attending the transaction including the conduct and relative economic positions of the parties and the value of the property in relation to the price fixed in the alleged sale. 59 CJS, Mortgages, §§ 35, 36, pp 69-73. Under Michigan law, it is well settled that the adverse financial condition of the grantor, coupled with the inadequacy of the purchase price for the property, is sufficient to establish a deed absolute on its face to be a mortgage. Ellis v Wayne Real Estate Co, 357 Mich 115; 97 NW2d 758 (1959), McLaughlen v Majestic Development Corp, 247 Mich 498; 226 NW 256 (1929).
In Ellis, supra, the plaintiffs initially sought a loan from defendant to save their home from forfeiture. After hurried negotiations, the plaintiffs executed a quit claim deed to defendant and simultaneously entered into a land contract under which the plaintiffs were to repurchase the property. The defendant then satisfied a default and paid the delinquent taxes. In noting the discrepancy between the price paid by the defendant and the value of the property, the Court held that the transaction constituted a loan by defendant secured by a mortgage on the property.
In taking the plaintiffs well-pleaded facts in the present case as true, there is a close parallel with Ellis, supra. Here the plaintiff, while in financial distress, sought help from the defendants in saving her home from foreclosure. Although plaintiff was not desirous of selling her home, she entered into a transaction which conveyed her equity worth over $30,000 for less than $4,000. While financial embarrassment of the grantor and inadequacy of consideration do not provide an infallible test, they are an indication that the parties did not consider the conveyance to be absolute. Grant v Van Reken, 71 Mich App 121; 246 NW2d 348 (1976). We note that the lease-back arrangement entered into by the parties effectively circumvented the right to redeem, which is designed to protect purchasers such as plaintiff in times of financial crisis. In applying these facts to the aforementioned case law, it could be found without difficulty that the subject transaction constituted a mortgage to secure a loan in the amount of defendants’ initial expenditure.
We reverse the order granting summary judgment in favor of the defendant on the equitable mortgage count and remand for trial on this issue.
In Grant (a case involving Stanley Van Reken, the same defendant herein), the Court found an equitable mortgage based on a transaction strikingly similar to the one presented in the case ac bar. | [
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] |
M. F. Cavanagh, J.
Defendant, Buckeye Union Insurance Company, appeals from the trial court’s denial of its motion for summary judgment under GCR 1963, 117.2(1).
The parties have stipulated to the underlying facts. Plaintiff was injured in an automobile accident on October 1, 1973, while she was driving her father’s car with his permission. In September, 1975, she filed suit against the driver of the other car. Plaintiff later amended her complaint to join the defendant-appellant, her father’s no-fault insurer, for failure to pay work-loss benefits owing under his policy. As the basis for her claim for work-loss benefits from the defendant, pursuant to MCL 500.3107; MSA 24.13107, plaintiff alleged that she had been a full-time student enrolled in Wayne State University’s registered nursing program at the time of the accident. As the result of her injuries, plaintiff claimed she had to delay her studies one year and "lost approximately $13,500 in income and fringe benefits * * * she would have earned as a registered nurse within 3 years” following the accident. Defendant asserts that it has no duty to pay work-loss benefits to plaintiff on the grounds that MCL 500.3107a; MSA 24.13107(1) retroactively amended the no-fault act to require payment only to those persons who were employed or had been employed at the time of the accident. Because plaintiff did not allege actual employment, defendant argues that her complaint fails to state a cause of action. Therefore, defendant contends that the trial court erred in denying its motion for summary judgment.
In framing the issues on appeal, the parties have focused on whether MCL 500.3107a; MSA 24.13107(1), enacted in 1975, is retroactive to the original effective date of the no-fault act, thereby amending the original work-loss provision, MCL 500.3107; MSA 24.13107. Defendant argues that the amendment constitutes only a procedural change in the law regarding the manner in which work-loss benefits are to be computed, and as such, is retroactive. Plaintiff asserts that MCL 500.3107a; MSA 24.13107(1) works a substantive change in the no-fault act, and should therefore be applied prospectively.
The nature of the relationship between MCL 500.3107; MSA 24.13107, the original work-loss provision of the no-fault act, and MCL 500.3107a; MSA 24.13107(1) which supplemented it, appears to have been settled. First, two recent decisions of this Court, Struble v Detroit Automobile Inter-Insurance Exchange, 86 Mich App 245; 272 NW2d 617 (1978), and Nawrocki v Hawkeye Security Ins Co, 83 Mich App 135; 268 NW2d 317 (1978), have relied upon the legislative history of MCL 500.3107a; MSA 24.13107(1) to construe the term "work loss” as used in the original work-loss provision. These decisions concluded that the Legislature intended to provide work-loss benefits for actual loss, but excluded recovery for loss of earning capacity. In addition to illuminating the legislative intent regarding work-loss recovery in gen eral, MCL 500.3107a; MSA 24.13107(1) also provided a method to compute work-loss benefits for workers unemployed at the time of their injury. By adopting actual past wages as the appropriate standard for unemployed workers, the Legislature merely emphasized that the thrust of the work-loss provision in all cases was to calculate loss based on actual earnings, not on future possibilities. Kennedy v Auto-Owners Ins Co, 87 Mich App 93; 273 NW2d 599 (1978). This interpretation is consistent with the purpose of the no-fault act to insure prompt compensation for economic loss incurred by persons injured in automobile accidents, Shavers v Attorney General, 402 Mich 554, 622-623; 267 NW2d 72 (1978). It facilitates resolution of claims against an insurer through use of a quantifiable standard of loss to avoid the delays inherent under the former "fault” system.
Secondly, the Court in Harper v Progressive Casualty Ins Co, 79 Mich App 764; 263 NW2d 1 (1977), has concluded that MCL 500.3107a; MSA 24.13107(1) is retroactive to the effective date of the no-fault act. There, the reviewing Court also examined the legislative history of the amendment to determine that the purpose of this section was to rectify an oversight in the original work-loss provision. The opinion pointed to the prompt legislative response to the dilemma of unemployed workers who appeared to be outside the scope of MCL 500.3107; MSA 24.13107 because they could show no actual wages lost due to injury. The Harper Court concluded that the amendment may be viewed "as a legislative interpretation of the original act rather than as a substantial change of it” and was to be applied retroactively. Harper, supra, at 769.
Therefore, under either analysis, plaintiff must allege an actual loss of income that she would have earned but for the accident. At the time of her injury the plaintiff still had one year remaining before completion of her nursing studies. Obviously, plaintiff would not have been able to work as a registered nurse prior to her accident; she thus has no previous earnings as a nurse upon which work loss may be calculated. Neither can plaintiff demonstrate that during the year lost as a result of the accident, she would have received income working as a registered nurse. Presumably, plaintiff would have spent that year completing the necessary academic requirements.
A fair reading of the complaint reveals that the plaintiff is in fact alleging a loss of wages she could have earned in the future as a registered nurse, but for the delay in her studies. As pointed out in Nawrocki, supra, such an allegation states a claim for recovery of loss of earning capacity, a tort recovery eliminated by the no-fault act.
We therefore find that the trial court erred in denying defendant’s motion for summary judgment and reverse.
The parties have stipulated as to the dismissal of the complaint as to the defendant driver. | [
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Per Curiam.
The plaintiff was injured in a collision between the car she was driving and a train operated by defendant Consolidated Rail Corporation (Conrail). She sued the railroad, claiming that its warning gates and lights were not functioning properly. The circuit court granted summary disposition for the defendant under MCR 2.116(C)(10), finding no genuine issue of material fact and that the railroad was entitled to judgment as a matter of law. However, the Court of Appeals reversed.
We conclude that the plaintiff did not come forward with evidence sufficient to defeat the motion for summary disposition. Thus, we reverse the judgment of the Court of Appeals and reinstate the circuit court’s judgment.
i
At the time of the accident, the plaintiff was traveling eastbound on Visger Road in Ecorse. A total of eight sets of railroad tracks cross the road at that location. In order as the plaintiff would have approached them were a Grand Trunk Western (gtw) yard track, two gtw tracks for through traffic, two Conrail tracks for through traffic, and three Conrail yard tracks. The Conrail train with which plaintiff collided was northbound on the easterly of the two Conrail main-line tracks, i.e., the fifth set of tracks that the plaintiff would have encountered. The two Conrail main-line tracks (including the one involved in this accident) are guarded by warning lights and gates. There is another set of lights and gates guard ing the entire array of tracks (except the gtw yard track, which lies outside the first set of lights). Thus, as plaintiff approached the track at which she collided with the train, plaintiff passed two sets of lights and gates.
The key question on Conrail’s motion for summary disposition was whether the warning lights and gates were in fact working. In support of the motion, Conrail presented evidence that the railroad signal system at the crossing was electronically activated when a northbound Conrail train reached a point on the track 2,453 feet south of the crossing. The flashing signal lights, bells, and gates at the crossing are interconnected, so that when a train is located on any one of the tracks, except the first gtw track, the signals are automatically activated. On the basis of the twenty-nine-mile-per-hour speed of the Conrail train, the signal system at the Visger Road crossing had begun to operate approximately fifty-seven seconds before plaintiffs accident.
Under federal regulations, Conrail conducts monthly inspections of all its railroad crossings. On February 4, 1992, the day before the accident, such an inspection of the signal lights, bells, and gates at the Visger Road crossing took place. That inspection, like those for the previous six months, found that the signal system at the crossing was functioning properly.
The deposition testimony of several witnesses was that the Visger Road railroad signal system was operating properly on the day of the accident. During the several hours before plaintiffs accident, a Conrail locomotive engineer had been operating his engine across the Visger Road crossing. He testified that the signal system was operating correctly.
The three members of the Conrail train crew operating the train involved in this accident testified that as their train approached the crossing they observed that the flashing signal lights were in operation and that the gates were lowered as their train crossed over Saliotte Street, one-half mile south of Visger Road. The train crew indicated that they observed plaintiffs vehicle drive around the first lowered gate outside what would be the second track at the crossing and then drive around the second lowered gate outside what would be the fourth track at the crossing. Plaintiffs vehicle continued the final forty-one feet to the location of the fifth track where the accident occurred. The crew testified that because of the slow speed of plaintiffs vehicle, they believed she intended to stop within the forty-one feet available between the fourth and fifth track.
Following the accident, the signal system at the crossing was still in operation when the police arrived. In fact, the lowered railroad gate on the opposite or northeast side of the fifth track was lying on the ground after being struck by plaintiffs vehicle.
In addition, the entire Visger Road railroad signal system was the subject of extensive inspection and testing immediately after the accident and the signal lights, bells, and gates were again all found to be operating correctly. Similarly, an inspection of the entire system on February 6, 1992, the day after the plaintiffs accident, continued to show the signal system was working properly.
In opposition to the motion, the plaintiff relied on the deposition testimony of Barbara Jones, who testi fied that she was stopped at the eastern most warning gate and had traveled that road many times. She testified as follows:
Q. Let’s talk about really, about a year before February 5th of ’92, did you become aware of anything unusual about the operation of the gates and flashing lights at that railroad intersection of Visger?
A. The lights don’t work.
Q. How do you mean?
A. You know, they blink, they’re in an up position most of the time.
Q. What’s in an up position?
A. The lights—the poles aren’t down.
Q. The wooden gates?
A. The wooden gates, right, they’re up and they’re blinking most of the time. They haven’t worked since they took the lady—there’s a lady that used to do those gates . . .
Q. Right.
A. .. . She would monitor them. Once they took her down, it’s like the system never worked. Sometimes the gates are broken and they’re just down, and you have to go around them. Situations like that have occurred, and it’s not just in the last year be [sic] prior to the incident, this has been for quite a few years.
Q. Have you ever seen a situation where the lights have been flashing, but the gates don’t come down?
A. Oh, yes.
Q. Several times?
A. Yes.
Q. Before February 5th of ’92?
A. Way before.
Q. Have you ever seen situations where trains have crossed that intersection at Visger, and no lights have been on and no gates have been down?
A. Well, my daughter and I experienced that, yes.
Q. Let me ask you this, have you seen situations at that railroad intersection at Visger where people would be crossing the tracks before gates would come down?
A. Yes, often.
Q. Arid then gates would come down?
A. While you’re in it, it’s happened to myself, quite a few cars have been in and the gates have just come down, because the train is just coming.
Q. When you say, people have been in it, do you mean between the two outer gates they’ve been . . .
A. It’s like you’re—you’ve started in on crossing the track, and then the gates come down and you’re like caught . . .
Q.' In the middle?
A. .. . Yeah, and then, you do have to go around the center lines, and then back, you know, on out.
The circuit court granted defendant’s motion for summary disposition. It explained:
The court reviewed the deposition of Barbara Jones and the statement of Barbara Jones taken on February 2, 1992 and is not satisfied that her deposition raises a question of fact It’s clear to this court that had the plaintiff not weaved her way around the gates, ignoring flashers, bells and the trains [sic] hom, the accident would not have occurred.
After reviewing the entire record, it’s clear to this court that there is no clear issue of material fact that must be decided by the tryer [sic] of fact. The defendant had complied with all mdot requirements and no authority requires more to avert a finding of negligence. .
II
The Court of Appeals said that the trial court correctly held that the defendant was under no duty to install additional or different warning systems at the crossing where plaintiff was injured, citing MCL 257.668(2); MSA 9.2386(2), and Turner v CSX Transportation, Inc, 198 Mich App 254, 256; 497 NW2d 571 (1993). However, it said the focus of the plaintiffs complaint was the failure of defendant to maintain the required warning systems and devices in proper working order and that defendant had notice of the defect. The Court found summary disposition under MCR 2.116(C)(10) to be improper, explaining:
We also conclude that summary disposition was improper under MCR 2.116(C)(10). Although defendant presented evidence that the crossing was inspected both the day before and the day after the accident, at which time all warning devices were determined to be in proper working order, the testimony of Barbara Jones, an eyewitness to the accident, viewed most favorably to plaintiff, was sufficient to establish a genuine issue of material fact as to whether the crossing gates were working properly at the time of the accident. Moreover, Jones’ testimony concerning a possible malfunc tion at the time of the subject accident, viewed in conjunction with her testimony of a history of malfunctions at the same location, was sufficient to establish a genuine issue of material fact with regard to whether defendant had notice of the allegedly dangerous condition. Wheeler [v Grand Trunk W R Co, 161 Mich App 759; 411 NW2d 853 (1987)]; see also O’Loughlin v Detroit & Mackinac R Co, 22 Mich App 146, 154, n 9; 177 NW2d 430 (1970). The weight and credibility of Jones’ testimony was for the trier of fact to resolve. Williams v Grand Trunk W R Co, 344 Mich 84, 88-89; 73 NW2d 455 (1955).
HI
We agree with the circuit court that the plaintiff failed to come forward with evidence to defeat the motion for summary disposition. Ms. Jones’ testimony failed to establish a genuine issue of material fact on the question whether Conrail had notice of any alleged dangerous condition. The cases cited by the Court of Appeals are inapplicable. In Wheeler, supra, there was testimony by the railroad’s signal supervisor that the railroad was aware before the accident that there had been prior malfunctions of the signals. In addition, other witnesses, including a police officer, testified about having reported malfunctions to the railroad. Similarly, in O’Loughlin v Detroit & Mackinac R Co, supra, evidence was presented that the railroad had been contacted before the incident on several occasions to send an employee out to turn off the signals at the crossing that had been on for hours with no train in sight. Further, there was testimony that the union representing the railroad’s train crews had registered complaints with the railroad before the accident, stating that the flashers were not working properly at the subject crossing.
Plaintiff’s assertion that Ms. Jones’ testimony permits an inference that Conrail had notice of malfunctioning of the signal system constitutes mere speculation or, at most, nothing more than a promise to offer factual support for a claim at trial, which is insufficient. See Smith v Globe Life Ins Co, 460 Mich 446, 455, n 2; 597 NW2d 28 (1999). Similarly, any claim that Conrail was on notice of the defect must fail because Conrail inspected the signal system the day before the accident and found it to be working properly. See Beach v St Joseph, 192 Mich 296, 307; 158 NW 1045 (1916); Freed v Simon, 370 Mich 473, 475; 122 NW2d 813 (1963).
On the record before the circuit court, summary disposition was appropriate, and the Court of Appeals erred in reversing the circuit court’s judgment. Accordingly, the judgment of the Court of Appeals is reversed, and the summary disposition for the defendant is reinstated.
Weaver, C.J., and Cavanagh, Kelly, Taylor, Corrigan, Young, and Markman, JJ., concurred.
Plaintiff’s amended complaint also named the engineer who was operating the train involved in the collision. For convenience, we will simply refer to Conrail as the “defendant.”
Unpublished opinion per curiam issued March 30, 1999 (Docket No. 201091).
In addition, shortly after the accident, Ms. Jones gave a statement to Conrail personnel, which said in part:
Q. You saw, you saw, when you first came up to the crossing you saw the lights flashing, now you didn’t notice the headlight or the whistle of the train?
A. No.
Q. You didn’t notice any train whistle?
A. No. Because I was like thinking that if it was one of those times when we can come up to the railway and it’s not working, everything, the signals, they’re just going and they go all day without being repaired, then we go around those days. Those are the days when we do cross the railroad tracks with the lights blinking, the rails down because Jefferson, when I turn off of Jefferson on the Visgar [sic] that was, on the clock at work it was 11:48. That clock is four minutes fast and lights were blinking then by a train. And then I would go up there half the time because sometimes it is a quick train or train or that’s going real fast, and uh, in fact I couldn’t even hear the whistles. Usually you listen for the sound of the whistle, you know. But then as I got there and the gate went down, there he was. It couldn’t have been more that [sic] 1500 feet. Well see, with not giving a passenger enough time to clear that area, well it’s uh . . . | [
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Per Curiam.
A jury convicted the defendant of assault with intent to murder and felony-firearm. The Court of Appeals affirmed, over the dissent of a judge who believed that the circuit court erred in excluding impeachment testimony. We agree with the dissenting judge in the Court of Appeals, and therefore reverse and remand this case to the circuit court for a new trial.
i
Defendant William D. Snyder shot a woman on November 13, 1994. She testified that they had argued, and that the defendant had threatened to kill her. The defendant called several witnesses at trial, but did not himself testify.
During cross-examination, the complainant denied that she told a man named Daniel Rambadt that the shooting had been an accident. If he were to testify in that manner, she said, it would be a lie.
Defense counsel then called Mr. Rambadt, and this exchange followed:
Q. What did she tell you?
[Assistant Prosecutor]: Objection; hearsay.
The Court-. Objection sustained.
A. She told me it was . . .
[Assistant Prosecutor]: Objection.
• Q. Hold on.
The Court: Do not answer the question.
A. OK.
The Court: The objection’s been sustained.
A. OK.
[Defense Counsel] continues:
Q. Did she indicate to you that this had been an accident?
[Assistant Prosecutor]: Objection; hearsay.
The Court: Objection sustained.
[Defense Counsel]: I’m offering it to impeach the testimony of the previous witness where she indicated that she told Mr. Rambadt . . .
The Court: You cannot ask a hearsay question. The jury will disregard the remarks of counsel with regard to that.
At the conclusion of the trial, the jury convicted the defendant, as charged, of assault with intent to murder and possession of a firearm during the commission of a felony. MCL 750.83, 750.227b; MSA 28.278, 28.424(2).
The defendant had several prior felony convictions, and so the circuit court imposed an enhanced sentence. MCL 769.12; MSA 28.1084. He had also been on parole at the time of the shooting, so his 25- to 50-year sentence for assault was consecutive to the remaining portion of the sentence for his earlier offense. The defendant also received the consecutive two-year sentence for felony-firearm.
The Court of Appeals affirmed, over the dissent of the late Judge WAHLS.
The defendant applied to this Court for leave to appeal, and we remanded the case to circuit court “for an evidentiary hearing at which defense counsel can ask witness Rambadt the questions that were foreclosed by the disputed ruling of the circuit court . . . ,” We retained jurisdiction.
On remand, Mr. Rambadt testified as follows:
Q. All right. Did she say that was an accident?
A. Yeah, she did. She told me right out it was an accident.
Q. Did she say anything to indicate to you—and we’re just talking a couple of months after this incident supposedly occurred, right? Shortly after the incident occurred?
A. Yeah, it was shortly after.
Q. Did she say anything or act in any way that would lead you to believe that she was upset in any manner with BUI Snyder?
A. No.
Q. Did she say or do anything that would have led you to beUeve that she thought BiU had done something to intentionally cause her injury?
A. No.
Q. She said it was an accident?
A. She said it was an accident.
[Prosecuting Attorney]: Asked and answered, your Honor.
The Court: Sustained.
By [Defense Counsel]:
[Q.] She said it was her fault?
[Prosecuting Attorney]: Asked and answered.
The Court: Overruled.
The Witness: She said it was an accident, you know, I mean, an accident.
This Court’s remand order permitted the prosecuting attorney to cross-examine Mr. Rambadt, but he did not alter his testimony regarding the victim’s statement to him.
n
Among the issues that the defendant raised in the Court of Appeals was a claim that the circuit court erred in excluding the testimony in which Mr. Rambadt would have testified that the victim told him that the shooting was accidental. The Court of Appeals said that the defendant “did not preserve an objection to the excluded evidence either by arguing the nonhearsay nature of the evidence or by making an offer of proof to the trial court.” It indicated that such an offer was necessary because “[t]he substance of the evidence sought to be admitted was not ‘apparent from the context within which the questions were asked.’ MRE 103(a)(2).”
The Court then went on to explain its conclusion that “the error, if any, was harmless.”
In dissent, Judge Wahls disagreed with the majority’s conclusions that the issue was not preserved and that any error was harmless. He wrote:
An offer of proof is not necessary to preserve an evidentiary issue for review if “the substance of the evi dence . . . was apparent from the context within which questions were asked.” MRE 103(a)(2). Here, defense counsel asked defense witness Daniel Rambadt “Did [the complainant] indicate to you that this had been an accident?” The prosecutor then objected on hearsay grounds, and the trial court sustained the objection. In my opinion, the substance of Rambadt’s testimony on this point is readily apparent from the context of defense counsel’s yes-or-no question. After all, Rambadt was a defense witness who was called solely for the purpose of impeaching the complainant’s credibility. I cannot imagine a question that would make the substance of any evidence more apparent than a simple yes-or-no question. Thus, I would conclude that this issue was preserved. See People v Morton, 213 Mich App 331, 335; 539 NW2d 771 (1995).
Even if this issue were not properly preserved, I would conclude that the trial court’s error in excluding this testimony was plain error requiring reversal. The prosecution’s case rested almost entirely on the testimony of the complainant. The complainant’s prior inconsistent statement on an essential issue would have called into question the veracity of all of her testimony. Under these circumstances, I cannot conclude that the trial court’s error was harmless. See People v Adamski, 198 Mich App 133, 140-141; 497 NW2d 546 (1993). Therefore, I would reverse defendant’s convictions and remand for a new trial.
HI
A
We agree with Judge Wahls that defense counsel adequately presented and preserved this issue in the circuit court. The leading question contained its own presumptive answer, and counsel had laid the groundwork by earlier obtaining a corresponding denial from the complainant. In this respect, the testimony provided on remand was in accord with what one rea sonably would anticipate after reviewing the previously existing record. Further, counsel was attempting to explain the nature and content of the proposed impeachment when he was cut off by the circuit court.
B
We further agree with Judge Wahls that exclusion of this impeachment evidence was error. As he observed, the prosecution’s case rested almost entirely on the testimony of the complainant. Her credibility, and that of the defendant, were central concerns as the jury found the facts in this case. Testimony that the complainant later characterized the shooting as an accident would have significantly aided the jury in assessing the complainant’s credibility. As we said in People v Brooks, 453 Mich 511, 520; 557 NW2d 106 (1996), it is not our task to determine who is telling the truth. Rather, our task is to determine whether the jury was given the opportunity to hear the admissible evidence it needed to make its decision.
c
Having determined that the circuit court erred in excluding Mr. Rambadt’s testimony, we must next determine whether this properly preserved error was harmless. In the ordinary case, the applicable stan dard of review depends on whether the error in question was nonconstitutional or constitutional in nature. See People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). Here, however, we need not determine whether the error in question was of constitutional magnitude because reversal is required even under the standard set forth in People v Lukity, 460 Mich 484, 493-496; 596 NW2d 607 (1999), for assessing preserved, nonconstitutional error. Under Lukity, a defendant has the burden of establishing that it is more probable than not that the error in question “undermine[d] the reliability of the verdict,” thereby making the error “outcome determinative.” Id. at 495-496. In this case, there is no question that the error was outcome determinative under Lukity.
This conclusion is based upon “an examination of the entire cause,” as required by MCL 769.26; MSA 28.1096. In this regard, we note that the assistant prosecutor took advantage of the circuit court’s erroneous ruling during her closing argument. She told the jury “there has been no testimony offered to suggest anything other than an intentional cold bloodied [sic] act by the defendant.” During rebuttal argument, she criticized defense counsel for asking the jury to believe things for which there was “no proof, no testimony, no hard evidence.” She characterized the theory of accident as “sheer theory, sheer speculation.” With the defendant having been denied the opportunity to present impeachment evidence that the complainant herself told someone that the shooting was accidental, it is significant that the rebuttal argument also included this:
He wants to say that the gun accidentally discharged. Says who? [The complainant] told you there wasn’t any thing accidental about him picking the gun, pointing at her head, and pulling the trigger. Nothing accidentally could even be inferred from that. And there was no other testimony to support an accidental discharge of that weapon: no other testimony.
There are other evidentiary bases for our conclusion that the error is not harmless. The complainant’s own son characterized her reputation for truthfulness as “[s]haky sometimes.” Asked to elaborate, he said, “Well, like any other person, you know, you bend the truth for your will, but she’s told some lies.” There was also testimony that the complainant and the defendant were seen apparently enjoying each other’s company in a tavern after the shooting.
Therefore, we are satisfied that the evidentiary error in this case was not harmless under the Lukity standard for assessing preserved, nonconstitutional error. In light of that fact, there is no need to determine whether the evidentiary error was constitutional in nature.
D
For these reasons, we reverse the judgments of the Court of Appeals and the circuit court, and we remand this case to the circuit court for a new trial. MCR 7.302(F)(1).
Weaver, C.J., and Cavanagh, Kelly, Taylor, Corrigan, Young, and Markman, JJ., concurred.
The defendant was later convicted of a separate count of being a felon in possession of a firearm. MCL 750.224Í; MSA 28.421(6). This conviction was affirmed by the Court of Appeals. Unpublished opinion per curiam of the Court of Appeals, issued March 9, 1999, reh den May 10, 1999 (Docket No. 200325).
MCL 768.7a(2); MSA 28.1030(1)(2).
Unpublished opinion per curiam of the Court of Appeals, issued March 31, 1998 (Docket No. 195666).
Unpublished order of the Supreme Court, entered November 30, 1999 (Docket No. 111960).
The standard of appellate review for determining whether an evidentiary ruling is error is set forth in People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). There, we both explained the general standard (abuse of discretion) and cautioned that some evidentiary issues include questions of law (to be determined de novo). | [
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Cavanagh, J.
In this case, we are asked to decide whether plaintiffs intentional tort claims arising from church discipline are barred by the religion clauses of the federal constitution. Even if those constitutional provisions do not provide any defense to plaintiffs claims, however, plaintiff cannot prevail in this action. Through his words and deeds, plaintiff consented to the religious discipline imposed on him, so his claims fail as a matter of tort law. Accordingly, we reverse the judgment of the Court of Appeals, and reinstate the trial court’s grant of summary disposition under MCR 2.116(C)(10) for the defendants.
i
Plaintiff began attending Calvary Christian Church, a small, independent church, in August 1985. He formally became a church member in early 1986. When he became a member, plaintiff specifically consented not to cause division within the church, to be faithful to Matthew 18:15-17, and to accept discipline imposed by the church.
Shortly after he began to attend the church, plaintiff requested a meeting with the church’s pastor, Mark Byers. At that meeting, plaintiff disclosed that he previously had frequented prostitutes. Plaintiff apparently believed that this disclosure would be kept confidential.
Later, in 1991, plaintiff was formally removed from the church’s membership. He was removed not because of his disclosure, but rather because he was causing division within the church by challenging church leaders over religious doctrine. Plaintiff requested that he be reinstated, but the pastor advised that before plaintiff could be reinstated, he had to confess his sins, including his past indiscretions with prostitutes, to the church board and to plaintiff’s wife. Plaintiff complied and was reinstated, but the board warned him that if he did not end his divisive conduct, he would again be subject to discipline.
Despite this warning, plaintiff continued to cause division within the church. Therefore, the church decided to “mark” plaintiff according to Matthew 18:15-17, which involves singling out a person who is involved in sin and causing division within the church, and detailing the person’s sins before the church congregation. The pastor advised plaintiff’s wife and family that plaintiff would be marked on December 8, 1996, and cautioned them against attending services that day. By that time, plaintiff had submitted a letter withdrawing his formal membership in the church; however, he remained involved with the church, and was present at the church on the day chosen for his marking, apparently entering the church to dispute the pastor over religious doctrine. Later in the service, the pastor announced to the congregation that plaintiff had formerly visited prostitutes.
On the basis of this revelation, plaintiff filed suit, alleging several causes of action. First, he asserted that his disclosure was confidential, and that the pastor repeating it to the congregation violated MCL 600.2156; MSA 27A.2156. He further asserted claims for breach of contract, invasion of privacy, and intentional infliction of emotional distress, and contended that the disclosure was not motivated by religious doctrine, but by the pastor’s personal spite and his intent to humiliate plaintiff and cause dissension in his family.
After a hearing, the trial court granted summary disposition for the defendants on all counts. The court held that the statute was a rule of evidence and did not create a cause of action for the disclosure of private or privileged communications. It also held that plaintiff could not prove the elements of a breach of contract because there was no agreement that plaintiff’s disclosure would be kept confidential. Finally, the trial court held that plaintiff had not adequately pleaded his tort claims, but added that even if he had, whether clergy must keep confidential a personal disclosure is a matter of religious doctrine that a civil court cannot decide.
The Court of Appeals affirmed on the statutory and contract claims, but reversed and remanded the tort claims. After reviewing cases discussing the First Amendment Free Exercise Clause in the context of religious discipline, doctrine, and polity, the Court remanded for a determination of whether plaintiff was a member of the church when he was marked. The Court reasoned that if plaintiff was a member, then judicial examination of the marking process would be barred by the Free Exercise Clause; however, if he was not a member, the Court reasoned that the church would have had no power to discipline plaintiff, and his tort claims may have been viable. 233 Mich App 96; 592 NW2d 713 (1998). Defendant appealed the remand order, and this Court granted leave. 461 Mich 947 (2000).
n
Throughout this case, the defendants have argued that plaintiff’s claims are barred by the First Amend ment religion clauses. Briefly, the defendants’ first argument is that this Court cannot decide plaintiff’s claims without deciding matters of defendants’ religious doctrine. Under the ecclesiastical abstention doctrine, apparently derived from both First Amendment religion clauses, “civil courts may not redetermine the correctness of an interpretation of canonical text or some decision relating to government of the religious polity.” Paul v Watchtower Bible & Tract Society, 819 F2d 875, 878, n 1 (CA 9, 1987). See also Watson v Jones, 80 US (13 Wall) 679, 729; 20 L Ed 666 (1871) (an ecclesiastical body’s “decisions should be binding in all cases of ecclesiastical cognizance”); Serbian Eastern Orthodox Diocese v Milivojevich, 426 US 696, 709; 96 S Ct 2372; 49 L Ed 2d 151 (1976) (when disputes require inquiry into religious law and polity, civil courts shall not disturb the ecclesiastical body’s decision); Berry v Bruce, 317 Mich 490, 499; 27 NW2d 67 (1947). Second, defendants argue that under the Free Exercise Clause, this Court cannot impose liability on them unless their actions in this case posed a threat to the public safety, peace, or order. See Sher bert v Verner, 374 US 398, 402-403; 83 S Ct 1790; 10 L Ed 2d 965 (1963). Accordingly, defendants argue that their actions did not pose such a threat.
Plaintiff, of course, disputes these defenses. He argues that his claims do not involve any question of religious polity or doctrine, avoiding the ecclesiastical abstention doctrine. Further, he argues that because Michigan tort law is valid, neutral, and of general applicability, defendants do not have a free exercise defense. See Employment Div, Oregon Dep’t of Human Resources v Smith, 494 US 872, 879; 110 S Ct 1595; 108 L Ed 2d 876 (1990).
A
Although these competing claims present interesting and complex constitutional issues, we do not believe that resolving them is necessary to decide this case. Instead, we can simply assume without deciding that plaintiff is correct that these constitutional defenses do not apply. Similarly, because the defendants expressly waived any reliance on the Michigan Constitution, we need not decide whether its protections of religious freedom offer the defendants any shelter. Under the assumption that no constitutional defenses apply, plaintiff’s claims fail as a matter of tort law.
B
Plaintiff alleges that the defendants committed the torts of invasion of privacy and intentional infliction of emotional distress. However, the extent of plain tiffs actions do not leave a genuine issue of material fact whether he consented to the defendants’ allegedly tortious acts. Because plaintiff had consented to the church’s practices, his claims fail as a matter of law and defendants are entitled to judgment under MCR 2.116(C)(10).
Plaintiff manifested his consent to the church’s practices in several ways. First, he became actively engaged in the church in' 1985, and shortly after, he explicitly consented in writing to obey the church’s law, and to accept the church’s discipline “with a free, humble, and thankful heart.” Thus, plaintiff can be taken to have impliedly consented by his active engagement and participation in the church, or to have expressly consented through his writing. 4 Restatement Torts, 2d, § 892, p 362. Any doubt whether plaintiff appreciated the scope of his consent by his active engagement is certainly resolved by the explicit writing. Further, as the Supreme Court stated over 130 years ago, “[a] 11 who unite themselves to such a body do so with an implied consent to this [church] government, and are bound to submit to it.” Watson, supra at 729.
However, plaintiff argues, relying on the Oklahoma court’s decision in Guinn v Church of Christ, 775 P2d 766 (Okla, 1989), that he revoked consent when he resigned his church membership. In Guinn, the plaintiff’s perceived misdeeds subjected her to the same marking process as the instant plaintiff. She resigned her church membership and disassociated herself from the church, but the church marked her anyway. Considering her intentional infliction of emotional distress claim, the Guinn court held that when a church member “removed herself from membership, [she] withdrew her consent, depriving the Church of the power actively to monitor her spiritual life through overt disciplinary acts.” Id. at 779. The instant plaintiff claims that because he too revoked his membership in the defendant church, he revoked his consent to the defendants’ practices.
We disagree with plaintiff’s argument because church membership alone is not dispositive of whether plaintiff consented to the church’s practices. For example, a person may be a full participant in a church, fully aware of and actively engaged in all of its practices, without ever having become a formal church member. Through knowledge and actions, a person so engaged with the church would indicate consent to the church’s practices although the person never became a church “member.” Further, “membership” is an amorphous concept. Indeed, many faiths do not include a concept of “membership” at all, and do not require membership for adherents to participate in the faith’s formalities and customs. Therefore, we reject the proposition that whether a person is a member of the church or religious organization that allegedly invaded the person’s rights is alone determinative of whether the person may bring an intentional tort claim against the alleged tortfeasor.
Instead, consent is the relevant consideration. As discussed, plaintiff consented to the church’s practices, and specifically consented to accept discipline. His claim that he revoked consent by terminating membership is belied by his continued involvement with the church. Even after the plaintiff resigned his formal church membership, he remained actively engaged in the church. Particularly, he was present and participating in a doctrinal dispute in the church on the day he was marked. In the same vein, plaintiff is in a different position than the plaintiff in Guinn. There, the plaintiff not only resigned her church membership, but she “expressed no interest in continuing her association with the [church].” Further, she “posed no threat of continued adverse influence on any [church] congregation.” Id. at 782. Although the instant plaintiff did resign his formal church membership, he continued an active association with the church, and specifically attempted to influence the church’s congregation, even on the very day he was being marked.
Under tort law principles, a person who consents to another’s conduct cannot bring a tort claim for the harm that follows from that conduct. Restatement, § 892A(1). This is because no wrong is done to one who consents. Id., comment a. Without a wrong, plaintiff has no compensable claim. Had the church taken its action toward a person more comparable to the plaintiff in Guinn, a more difficult question would be presented. Similarly, a more difficult question would be presented if the circumstances of the discipline were different, for example, if the discipline was in violation of the Michigan Penal Code. However, because plaintiff consented to the church’s practices, and his active engagement with the church indicated his continuing consent, the church’s actions disciplining plaintiff were not tortious.
m
In conclusion, we hold that because reasonable minds cannot disagree that plaintiff consented to the church’s practices, and manifested his continuing consent by remaining actively engaged with the church, his intentional tort claims against the defendants fail as a matter of tort law. Because tort law disposes of the plaintiff’s claims, we need not consider the constitutional defenses the defendants presented. The judgment of the Court of Appeals is reversed, and summary disposition for the defendants is reinstated.
Kelly, Taylor, Corrigan, Young, and Markman, JJ., concurred with Cavanagh, J.
This passage provides:
Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone; if he shall hear thee, thou has gained thy brother.
But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established.
And if he shall neglect to hear them, tell it unto the church; but if he neglect to hear the church, let him be unto thee as an heathen man and a publican. [The Holy Bible, Matthew 18:15-17 (King James Version).]
This section is in chapter 21 of the Revised Judicature Act, which concerns evidence. The section provides:
No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.
Plaintiff named both the church itself and the pastor individually as defendants.
The religion clauses of the First Amendment state:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .... [US Const, Am I.]
These provisions apply to the states through the Fourteenth Amendment. Cantwell v Connecticut, 310 US 296, 303; 60 S Ct 900; 84 L Ed 1213 (1940).
The United States Supreme Court has not stated whether this doctrine is derived from the Establishment Clause or the Free Exercise Clause, but has simply spoken in terms of the First Amendment. See Serbian Eastern Orthodox Diocese v Milivojevich, 426 US 696, 708-720; 96 S Ct 2372; 49 L Ed 2d 151 (1976). Perhaps this is because the doctrine has roots in both clauses; declaring a religious decision’s correctness would simultaneously establish that decision and inhibit the free exercise of an opposing belief. See 5 Nowak & Rotunda, Constitutional Law (3d ed), § 21.12, p 572.
Const 1963, art 1, § 4 provides protections for religious freedom.
We have not been asked to, and do not, consider whether the tort of intentional infliction of emotional distress exists in Michigan. In this case, plaintiff cannot prevail regardless of the tort’s existence.
See Bradley, Churches and Church Membership in the United States 1990 (Atlanta: Glenmary Research Center, 1990), p xiv. The authors list defining membership as the most critical methodological problem in calculating church membership. They also note that persons associated with churches could be classified as regular church members with full membership status, regular participants in churches who partake in all of the churches’ formalities and custom yet are not members with full membership status, or simple adherents to the church’s religious beliefs. An additional problem is that “membership” has varying meanings for different faiths. See, e.g., 12 New Catholic Encyclopedia, p 997 (describing the different levels of membership in the Catholic Church).
See, generally, Eliade, Bites and Symbols of Initiation (New York: Harper & Row, 1965), p ix.
See, e.g., Zollman, American Church Law, § 328, p 312 (“It is perfectly clear that, whatever church relationship is maintained in the United States, is not a matter of status. It is based ... on voluntary consent”).
We recognize, but need not decide, another issue in this case. That issue is whether religious discipline imposed on a person who is not a member of the disciplining religious body, or who is not consenting to the body’s authority when the discipline is imposed, nevertheless arose out of events that occurred during the person’s period of membership or consent. Allowing a person who was a member of a religious body or consented to such a body’s practices to escape discipline for actions that occurred during the period of membership or consent by severing ties to that body could undermine the efficacy of the body’s disciplinary practices toward its remaining members. | [
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] |
Per Curiam.
Defendant Ronald C. Drain pled guilty and was convicted of assault with intent to commit robbery, being armed, contrary to MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). Subsequently, defendant appealed his conviction to this Court seeking the granting of a motion to remand cause to the trial court for an evidentiary hearing, which was granted. After an evidentiary hearing, the trial court denied defendant’s motion to set aside the guilty plea.
On appeal, defendant contends that his plea of guilty was induced by promises of leniency emanating from his trial counsel. The appellee has filed a motion to affirm the conviction pursuant to GCR 1963, 817.5(3).
Our review of the plea transcript and the evidentiary hearing reveals that no prejudicial error was committed by the trial court and that the requirements of GCR 1963, 785.3(2) and MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058) were satisfied.
The trial court fully advised defendant of the consequences of his plea and queried defendant concerning any promises of leniency. Defendant stated unqualifiedly that he had not been promised leniency by anyone. Later allegations of leniency by defendant therefore, are without merit. People v. Shaffer (1966), 4 Mich App 192, 195; People v. Gant (1966), 4 Mich App 671, 675.
It is well settled that withdrawal of a guilty plea after sentence has been imposed rests within the sound discretion of the trial court. People v. Walls (1966), 3 Mich App 279, 283. Moreover, it is the trial court who is best equipped to rule on whether or not a plea of guilty was induced by promises of leniency claimed to have been made to the defendant, when the trial court has held an evidentiary hearing on the matter and has had an opportunity to observe the demeanor of the conflicting witnesses and determined their credibility. People v. Barnes (1968), 11 Mich App 455, 460. We find no abuse of discretion in the instant case. The question presented here on appeal is unsubstantial and requires no argument or formal submission.
The motion to affirm the defendant’s conviction is granted. | [
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-3,
-11,
34,
-17,
-53,
-9,
-17,
28,
-15,
25,
-15,
-15,
-25,
26,
-36,
-34,
-20,
9,
11,
-4,
-10,
-31,
-59,
56,
-17,
30,
39,
-21,
5,
-20,
-40,
-11,
-8,
-18,
19,
5,
12,
-8,
-14,
6,
4,
-3,
22,
-12,
23,
37,
-23,
-29,
-1,
-9,
-18,
-50,
-10,
-22,
18,
-54,
19
] |
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