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On order of the Court, the application for leave to appeal the November 1, 2017 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). The motions to adjourn and to remand are DENIED. | [
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On order of the Court, the application for leave to appeal the March 20, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 19, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to compel is DENIED. | [
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Riordan, P.J.
This case returns to us on remand from our Supreme Court. When we originally heard this case, we dismissed the appeal for mootness. TM v MZ , unpublished per curiam opinion of the Court of Appeals, issued January 19, 2017 (Docket No. 329190). The Supreme Court reversed, reasoning that "the mere fact that the instant [personal protection order (PPO) ] expired during the pendency of this appeal does not render this appeal moot," and remanded the case to us "for consideration on the merits." T.M. v. M.Z. , 501 Mich. 312, 320, 916 N.W.2d 473 (2018). Because the amended PPO was issued on the basis of respondent's constitutionally protected speech and amounted to an unconstitutional prior restraint on his speech, we reverse the trial court. I. BACKGROUND FACTS AND PROCEDURAL HISTORY
Petitioner, TM, and respondent, MZ, are neighbors in Cottrellville Township, Michigan. Respondent is a former trustee of Cottrellville Township and petitioner also has had some involvement in local politics, presently as a member of the township's Parks and Recreation Committee. She also has participated in successful recalls of respondent and the supervisor of Cottrellville Township.
Petitioner and respondent have an acrimonious past. Notably, respondent's mother (with whom respondent lived) obtained a PPO against petitioner's husband after he allegedly assaulted her. The impetus for this case was the highly inflammatory and negative series of comments respondent posted online about petitioner and her family. Respondent had posted negative comments about petitioner on Facebook and through private messaging applications as far back as 2014, but when the nature of these postings, in petitioner's words, "escalated," she petitioned the trial court on July 27, 2015, for a PPO. In an attachment to the petition, petitioner identified eight dates on which respondent allegedly made derogatory comments about her and her family by way of posts on his own Facebook page, on public Facebook pages, or in private messages to undisclosed recipients. Specifically, the attachment stated:
Below are some of the instances where Respondent used the internet or a computer or other electronic medium to post both public and private messages for the purpose of terrorizing, frightening, intimidating, threatening, or harassing me.
July 6, 2015
Respondent made several comments on a post in the St. Clair County, Michigan page on Facebook, including but not limited to[:] calling me a criminal, accusing me of hiding criminals, having illegal trailers on my property, posting pictures of my yard, [stating] that I meet the requirements of "hurting someone" and that I'm a criminal.
July 6, 2015
Respondent sent a private Facebook message to multiple people, with regards to the above mentioned comments made on the St. Clair County, Michigan page, saying that I am criminal, I hide criminals, and saying things about the death of my son, which were not only derogatory and disgusting, but were complete lies, and how it was because of my parenting. These comments were in addition to other things.
May 4, 2015
Respondent posted on his Facebook page a picture of a car and a letter with a heading of "Attempted abduction in St. Clair Count [sic], Please share this Info!" Respondent then commented on the post that if there were any questions about the vehicle to join the St. Clair County, Michigan Facebook group.
Respondent also commented on this post that the driver of the vehicle "was involved in a form of attempted abduction of a child" and further down respondent commented "I actually saw a similar vehicle at [TM's address], where it was there only a couple of minutes." This is my address.
Respondent also made a comment on the post about the car on the St. Clair County, Michigan Facebook page wherein he stated "a vehicle just like that was at [petitioner's address] today ... It watched my home, and then pulled into [petitioners's address]-an address notorious for everything from crime to severe ordinance violations that never go away. It was only there for a few minutes."
April 22, 2015 Respondent made a comment on a post about a stolen bbq to "Go look at [petitioner's address] ... It is a virtual junk yard of items picked up from the garbage of other[s]".
September 7, 2014
Respondent commented on a post in the St. Clair County, Michigan Facebook page about motorcycles stolen out of Auburn Hills, "... my neighbor is at [petitioner's address]. ... I saw them burning parts and burying them illegally in the ground before. I will be on the lookout for you."
August 10, 2014
Respondent wrote a post on the Facebook Cottrellville Township, Michigan page that included stating we had a "junkyard" and "two illegal commercial trailers".
Respondent then made a comment on his post stating "... Bob confirmed there is [sic] severe blight and health violations at [petitioner's address] ..."
Respondent later puts a comment on his post with a Court Case [identification] number to look me up in the court docket.
Respondent later comments on his post that I was taken to court and at one time had 12 vehicles in my front yard.
June 2, 2014
Respondent commented on a post on the St. Clair County, Michigan Facebook page saying that my yard is used as an "illegal junkyard" and posts the link to a video.
July 24, 2014
Respondent sent a message to a private citizen making derogatory comments including that "that family is into drugs."
Further, in a Facebook message to an undisclosed recipient on July 6, 2015, respondent shared his comments and opinions on petitioner's parenting abilities, specifically accusing petitioner of allowing her children to partake of illegal drugs, and also discussed the alleged circumstances of her son's death.
On July 28, 2015, the trial court granted petitioner's petition and entered a PPO against respondent. The PPO prohibited respondent from "stalking [petitioner] as defined under MCL 750.411h and MCL 750.411i," and prohibited him from "posting a message [about petitioner] through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s" On August 3, 2015, respondent moved to terminate the PPO, arguing that petitioner merely was annoyed with his comments and that because there were no allegations of actual, threatened, or attempted violence, her proper remedy was a lawsuit for defamation. At the August 20, 2015 hearing on respondent's motion, the trial court placed both parties under oath. Petitioner stated that, other than being his neighbor, she had no relationship with respondent, and she noted that in the online postings respondent said he was using binoculars to see what was going on in her yard, as well as taking pictures of her and her property, which made her fearful "as to why he is doing this." Petitioner stated that she found respondent's conduct harassing and that she just wanted him to leave her and her family alone. Noting that respondent's comments were personal attacks against her and her family, petitioner stated that respondent's actions put her "in fear of what [respondent] is going to do next" because of the escalation of the nature of the postings. Petitioner noted that respondent owned a firearm, and that she was in fear for her children and her grandchild.
Respondent's counsel argued that respondent's conduct consisted only of speech, "not actions, not threats, not anything."
Respondent's counsel reiterated that petitioner's remedy was a defamation claim, not a PPO, and that the court-imposed prohibitions related to stalking were inappropriate. According to respondent's counsel, the PPO was a restraint on respondent's speech that impermissibly infringed his First Amendment rights. While respondent's counsel characterized petitioner as actively involved in local politics, petitioner testified that she did not file the petition to recall respondent as a township trustee but that she did participate in circulating the recall petition. After hearing oral argument, the trial court modified the PPO so that respondent only was prohibited from posting messages "pursuant to MCL 750.411(s)." The trial court subsequently entered an amended order modifying the PPO. The amended PPO provides that respondent is prohibited from "posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s," and that the order remained in effect until January 28, 2016. There is no indication that the trial court renewed this amended PPO, and it expired while the appeal in this Court was pending.
We do not disagree with petitioner or the trial court that respondent's statements often were inappropriate, at times crude, and even sometimes, with respect to the death of petitioner's son, offensive. Inappropriate, crude, and offensive language, however, is not necessarily excepted from constitutional protection. For that reason, we cannot adopt the trial court's preference to treat a PPO, which in this case is a prior restraint on respondent's speech, as a means "to help supplement the rules that we all live in society by." The First Amendment of the United States Constitution demands that we not treat such speech-based injunctions so lightly.
II. CONSTITUTIONALLY PROTECTED SPEECH
Respondent argues that the trial court abused its discretion by issuing the PPO solely on the basis of speech that was entitled to constitutional protection. We agree.
A. STANDARD OF REVIEW
"We review for an abuse of discretion a trial court's determination whether to issue a PPO because it is an injunctive order." Hayford v. Hayford , 279 Mich. App. 324, 325, 760 N.W.2d 503 (2008). " '[A]n abuse of discretion occurs only when the trial court's decision is outside the range of reasonable and principled outcomes.' " Sanders v. McLaren-Macomb , 323 Mich. App. 254, 264, 916 N.W.2d 305 (2018), quoting Saffian v. Simmons , 477 Mich. 8, 12, 727 N.W.2d 132 (2007) (alteration in Sanders ). "A trial court ... necessarily abuses its discretion when it makes an error of law." Kostadinovski v. Harrington , 321 Mich. App. 736, 743, 909 N.W.2d 907 (2017) (quotation marks and citation omitted). Constitutional issues, as questions of law, are reviewed de novo. Winkler v. Marist Fathers of Detroit, Inc., 500 Mich. 327, 333, 901 N.W.2d 566 (2017). Similarly, questions of statutory interpretation also are reviewed de novo. Millar v. Constr. Code Auth. , 501 Mich. 233, 237, 912 N.W.2d 521 (2018).
B. APPLICABLE LAW
In this case, petitioner sought a PPO pursuant to MCL 600.2950a(1), which allows for "an independent action to obtain ... a [PPO] to restrain or enjoin an individual from engaging in conduct that is prohibited under ... MCL 750.411h, 750.441i, and 750.411s." In order to warrant a PPO pursuant to MCL 600.2950a(1), the petition must "allege[ ] facts that constitute stalking as defined in section 411h or 411i, or conduct that is prohibited under section 411s, of the Michigan penal code ...." "[T]he petitioner [has] the burden of persuasion in a hearing held on a motion to terminate or modify an ex parte PPO." Pickering v. Pickering , 253 Mich. App. 694, 699, 659 N.W.2d 649 (2002). Accordingly, petitioner had to present sufficient evidence of conduct prohibited by MCL 750.411s to "justify continuation of the PPO." Pickering , 253 Mich. App. at 699, 659 N.W.2d 649 (quotation marks omitted); MCL 600.2950a(1).
Conduct prohibited by MCL 750.411s includes posting "a message through the use of any medium of communication ... without the victim's consent, if ... [t]he person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim,"
MCL 750.411s(1)(a), and by posting the message, the person "intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested." MCL 750.411s(1)(b). The statute also requires proof that conduct arising from posting the message would cause a reasonable person, MCL 750.411s(1)(c), and did cause the victim, MCL 750.411s(1)(d), to "suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested." However, MCL 750.411s"does not prohibit constitutionally protected speech or activity." MCL 750.411s(6). Therefore, in order to warrant a PPO pursuant to MCL 600.2950a(1), the trial court had to find that respondent's postings-his speech-were not constitutionally protected. MCL 750.411s(6).
"The First Amendment, applicable to the States through the Fourteenth Amendment, provides that 'Congress shall make no law ... abridging the freedom of speech.' " Virginia v. Black , 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), quoting U.S. Const., Am. I. "The United States Supreme Court has held that the federal constitution protects speech over the Internet to the same extent as speech over other media." Thomas M Cooley Law Sch. v. Doe 1 , 300 Mich. App. 245, 256, 833 N.W.2d 331 (2013), citing Reno v. American Civil Liberties Union , 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). However, the "right to speak freely is not absolute." Cooley , 300 Mich. App. at 256, 833 N.W.2d 331, citing Chaplinsky v. New Hampshire , 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). For example, "[l]ibelous utterances [are] not ... within the area of constitutionally protected speech," and a state may therefore enact laws punishing them. Beauharnais v. Illinois , 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919 (1952).
Prohibitions relating to content, however, are few, because of the First Amendment's "bedrock principle" that an idea cannot be prohibited "simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson , 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). "The government may not regulate [speech] based on hostility-or favoritism-towards the underlying message expressed." R. A. V. v. City of Saint Paul, Minnesota , 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). "The First Amendment permits restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Black , 538 U.S. at 358-359 (quotation marks and citation omitted). Thus, the First Amendment does not protect obscenity or defamation, within certain limits. R.
A. V., 505 U.S. at 383, 112 S.Ct. 2538. "[A] State may punish those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace," including "fighting words," "inciting or producing imminent lawless action," and "true threat[s]." Black , 538 U.S. at 359, 123 S.Ct. 1536 (quotation marks and citation omitted).
C. ANALYSIS
The trial court abused its discretion by refusing to terminate the PPO. Respondent's Facebook posts and messages, quite clearly, were not "fighting words," did not "incit[e] or produc[e] imminent lawless action," and were not "true threat[s]." Id. Fighting words include " 'those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction ....' " Id ., quoting Cohen v. California , 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). There is nothing in the record to support that when respondent made any of the foregoing statements, he did so in a situation in which it was "inherently likely to provoke violent reaction," considering he made the statements on the Internet, in a public forum, far removed from any potential violence. See Black , 538 U.S. at 359 A "true threat," meanwhile, "encompass[es] those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Id. , 123 S.Ct. 1536. While respondent's posts were undoubtedly in poor taste and offensive, they did not reach the level of intending the commission of an unlawful act of violence. See id.
Further, respondent's statements did not "incit[e] or produc[e] imminent lawless action ...." Id. The closest that respondent's speech came to that standard was his assertion that someone should "[g]o look at" petitioner's address in search of a stolen grill. That statement was not likely to incite illegal activities, because "looking at" an individual's house, yard, or property is not illegal. Had respondent urged the individual to break into petitioner's house or to otherwise trespass on her property, there would be a legitimate question regarding whether his speech was protected. As the record stands, there was no such suggestion by respondent. See Id.
The trial court noted that respondent's statements regarding petitioner's alleged illegal activities, the most serious of which concerned involvement in a kidnapping, likely would have produced unconsented contact from the community. Regardless of the veracity of that assertion by the trial court, the United States Supreme Court has determined in similar cases that the respondent's speech still was protected. See Org. for a Better Austin v. Keefe , 402 U.S. 415, 417-419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (holding that First Amendment protection applied to the distribution of leaflets even when those leaflets accused an individual of racism, provided personal information about the person including his telephone number, and urged the recipients of the leaflets to contact him); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 909-910, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (holding that "[s]peech does not lose its protected character," even when the speech involved publicly listing the names of individuals that did not participate in a boycott, which undoubtedly was meant to lead to unconsented contact with those individuals, so as to "persuade [them] to join the boycott through social pressure and the 'threat' of social ostracism"). At its very base, the exception to the First Amendment for incitement of imminent lawless action requires that the incitement be for actually illegal actions, not just inconvenient or aggravating ones. See id. at 908-910."There is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v. State College Area Sch. Dist. , 240 F.3d 200, 204 (C.A.3 2001) In this case, the record does not support that respondent's statements were intended to incite imminent lawless action. See Keefe , 402 U.S. at 417-420, 91 S.Ct. 1575.
Considering that these exceptions to constitutionally protected speech do not apply in the instant case, the only remaining category of content-based prohibitions that might be applicable is defamation. Defamatory speech is not protected by the United States Constitution. See Beauharnais , 343 U.S. at 266, 72 S.Ct. 725. "A defamatory communication is one that tends to harm the reputation of a person so as to lower him in the estimation of the community or deter others from associating or dealing with him." Lawrence v. Burdi , 314 Mich. App. 203, 214, 886 N.W.2d 748 (2016) (quotation marks and citation omitted). A defamatory statement, by its very definition, is one that is false. Edwards v. Detroit News, Inc., 322 Mich. App. 1, 12, 910 N.W.2d 394 (2017). "To be considered defamatory, statements must assert facts that are 'provable as false.' " Ghanam v. Does, 303 Mich. App. 522, 545, 845 N.W.2d 128 (2014), quoting Milkovich v. Lorain Journal Co. , 497 U.S. 1, 19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Generally, "[a]ccusations of criminal activity are considered 'defamation per se' under the law and so do not require proof of damage to the plaintiff's reputation." Ghanam , 303 Mich. App. at 545, 845 N.W.2d 128.
As an initial step, a trial court must determine whether respondent's statements were "provable as false" and therefore capable of defamatory meaning, Milkovich , 497 U.S. at 19, 110 S.Ct. 2695, because "[w]hether a statement is actually capable of defamatory meaning is a preliminary question of law for the court to decide." Sarkar v. Doe, 318 Mich. App. 156, 179, 897 N.W.2d 207 (2016) (quotation marks omitted). However, while determining whether a statement is capable of defamatory meaning is a question of law for courts to decide, whether the statements actually were false and defamatory is not. See id . ; see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 521, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (holding that falsity is a question of fact for a fact-finder to determine when differing evidence is presented).
Here, the trial court never made a determination whether the accusations made by respondent were false. When respondent stated that he could offer proof that his statements were true, the trial court refused to consider the evidence or to hold an evidentiary hearing. The trial court reasoned that an inquiry regarding falsity was unnecessary because, in the court's own words, "I don't believe because of [petitioner's] status that truth is an absolute defense to this, and so I'm going to deny your request for an evidentiary hearing because I don't think there's any need to do that." The trial court also stated, when discussing respondent's accusation that petitioner had assisted in a kidnapping, "whether or not that actually happened, I don't think that's the standard."
The trial court was incorrect. "Truth is an absolute defense to a defamation claim." Wilson v. Sparrow Health Sys. , 290 Mich. App. 149, 155, 799 N.W.2d 224 (2010). The rule applies even when the person who allegedly has been defamed is a private citizen and the alleged defamer is not a member of the media. Hawkins v. Mercy Health Servs., Inc., 230 Mich. App. 315, 333, 583 N.W.2d 725 (1998). Accordingly, in order for respondent's statements to have been considered defamatory they must have been false, but the trial court, determining that such an inquiry was unnecessary, refused to accept evidence on the issue or to even make the determination. Consequently, we have not been provided with a record that would allow for us to make a determination whether respondent's statements were defamatory. See id.
In sum, the trial court entered the PPO pursuant to MCL 600.2950a, finding a violation of MCL 750.411s. The trial court determined that respondent had violated MCL 750.411s by posting certain messages on Facebook. Pursuant to MCL 750.411s(6), however, the statute "does not prohibit constitutionally protected speech or activity." Speech over the Internet is entitled to First Amendment protection in the same manner as traditional speech. Cooley , 300 Mich. App. at 256, 833 N.W.2d 331, citing Reno , 521 U.S. at 870, 117 S.Ct. 2329. Constitutionally protected speech includes all speech, except that falling into certain categories, including defamation, fighting words, words inciting imminent lawless action, and true threats. Black , 538 U.S. at 359, 123 S.Ct. 1536 ; Beauharnais , 343 U.S. at 266, 72 S.Ct. 725. Respondent's speech did not amount to fighting words, words inciting imminent lawless action, or true threats. Black , 538 U.S. at 359, 123 S.Ct. 1536 ; Beauharnais , 343 U.S. at 256, 266, 72 S.Ct. 725. It was not enough to show that respondent's words amounted to harassment or obnoxiousness. Saxe , 240 F.3d at 204. Therefore, the only possible category remaining to the trial court that would not be considered constitutionally protected speech was defamation. See Beauharnais , 343 U.S. at 256, 266, 72 S.Ct. 725. The trial court's failure to assess whether respondent's statements were true or false, or to accept evidence on the issue, renders review of that issue impossible. For that reason, respondent cannot be said to have defamed petitioner, nor is there anything in the record to support a finding that MCL 750.41 Is was violated. MCL 750.411s(6). Absent a violation of MCL 750.411s, there were no grounds on which to enter the PPO. MCL 600.2950a. Consequently, the trial court's decision to the contrary was an error of law and, therefore, an abuse of discretion. See Kostadinovski , 321 Mich. App. at 743, 909 N.W.2d 907.
Because we conclude "that the trial court should never have issued the PPO, respondent [is] entitled to have LEIN[ ] reflect that fact." T.M., 501 Mich. at 319, 916 N.W.2d 473.
III. PRIOR RESTRAINT ON SPEECH
Respondent also argues that the trial court abused its discretion by issuing the PPO because it was an unconstitutional prior restraint on his speech. We agree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
Constitutional issues, as questions of law, are reviewed de novo. Winkler , 500 Mich. at 333, 901 N.W.2d 566. "We review for an abuse of discretion a trial court's determination whether to issue a PPO because it is an injunctive order." Hayford, 279 Mich. App. at 325, 760 N.W.2d 503. "The term 'prior restraint' is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur. Temporary restraining orders and permanent injunctions-i.e., court orders that actually forbid speech activities-are classic examples of prior restraints."
Alexander v. United States , 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (quotation marks and citation omitted). Such restrictions are distinguishable from punishment arising from past speech that has been adjudicated as criminal. Id. at 550-551, 113 S.Ct. 2766. Because injunctions "carry greater risks of censorship and discriminatory application than do general ordinances," they "require a somewhat more stringent application of general First Amendment principles." Madsen v. Women's Health Center, Inc., 512 U.S. 753, 764-765, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). Any prior restraint of expression bears "a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963).
B. ANALYSIS
The PPO in this case was an unconstitutional prior restraint on respondent's freedom of speech. Whether and under what circumstances a court in Michigan is permitted to enjoin defamation has not been considered by this Court in a published decision since 1966, in McFadden v. Detroit Bar Ass'n , 4 Mich. App. 554, 145 N.W.2d 285 (1966). In that case, a panel of this Court held that "it is a familiar and well-settled rule of American jurisprudence that equity will not enjoin a defamation, absent a showing of economic injury ...." Id. at 558, 145 N.W.2d 285. The McFadden Court stated that the primary reason for refusing to do so was "an abhorrence of previous restraints on freedom of speech," but acknowledged other reasons, including that there is "an adequate remedy at law, i.e., an action for damages, and that the defendant in a defamation action has the right to a jury trial which would be precluded by granting of an injunction." Id.
Contrary to McFadden , there is a modern trend toward allowing injunctions of defamatory speech. That modern trend, though, first requires a determination by a fact-finder that the statements were definitively false and then specifically limits any injunction to the adjudicated speech. As discussed, the trial court failed to make such a determination in this case. Therefore, regardless of whether the modern trend or the rule announced in McFadden , 4 Mich. App. at 558, 145 N.W.2d 285, is adopted, the issuance of the PPO here, because of the trial court's failure to determine that the speech actually was false, fails to overcome the "heavy presumption against its constitutional validity." Bantam Books , 372 U.S. at 70, 83 S.Ct. 631.
In sum, because the trial court never determined what statements by respondent, if any, actually were false, there simply were no constitutionally permissible grounds, even considering the modern trend, on which to issue the PPO. See id. .
IV. CONCLUSION
We reverse the trial court order, vacate the PPO, and remand with instruction that the "PPO should be updated in LEIN as rescinded ...." T.M. , 501 Mich. at 320, 916 N.W.2d 473. We do not retain jurisdiction.
Fort Hood and Servitto, JJ., concurred with Riordan, P.J.
Although this case was initially captioned using the parties' names, on remand we have chosen to use the parties' initials in conformity with the Supreme Court's case caption. See TM v. MZ , 501 Mich. 312, 314 n. 1, 916 N.W.2d 473 (2018).
Although ultimately irrelevant, considering that respondent also specifically accused petitioner and her family of committing a crime, which was provable as false, we question whether respondent's statements regarding petitioner's parenting were capable of defamatory meaning. See Ireland v. Edwards, 230 Mich. App. 607, 620, 584 N.W.2d 632 (1998) (stating that the questions "whether someone is a fit mother, or whether someone is abysmally ignorant, can only be answered subjectively"). Because defendant's statements regarding plaintiff's fitness as a mother are statements of opinion, they are not actionable.
Because the trial court failed to make the inquiry into falsity, the PPO must be vacated. Therefore, it would be unnecessary to consider whether, pursuant to Const. 1963, art. 1, § 19, the trial court is permitted to make such a determination when deciding whether to grant a PPO. That constitutional provision provides that "[i]n all prosecutions for libels the truth may be given in evidence to the jury ...." Id. This Court and the Michigan Supreme Court previously have indicated that Const. 1963, art. 1, § 19, could apply in civil cases. See Howe v. Detroit Free Press, Inc., 440 Mich. 203, 225, 487 N.W.2d 374 (1992) (holding that the defendant's "constitutional right is implicated" in the civil case for libel); see also Royal Palace Homes, Inc. v. Channel 7 of Detroit, Inc. , 197 Mich. App. 48, 56, 495 N.W.2d 392 (1992) (citing Const. 1963, art. 1, § 9, for the "basic principle of libel law that truth is a defense to an action for defamation"). Whether the constitutional provision at issue would apply in a PPO case is a determination for another day.
LEIN stands for the Law Enforcement Information Network.
This case is not binding because it was decided before November 1, 1990. MCR 7.215(J)(1).
Numerous courts, both federal and state, have held that a trial court may enjoin a defendant from making defamatory speech after there has been a determination that the speech was, in fact, false. See Hill v. Petrotech Resources Corp. , 325 S.W.3d 302, 308-309 (Ky. 2010) ; San Antonio Community Hosp. v. Southern California Dist. Council of Carpenters , 125 F.3d 1230, 1239 (C.A.9 1997) ; Lothschuetz v. Carpenter , 898 F.2d 1200, 1208-1209 (C.A.6 1990) (Wellford, J., concurring in part and dissenting in part); id . at 1209 (Hull, J., concurring in part and dissenting in part); Balboa Island Village Inn, Inc. v. Lemen , 40 Cal. 4th 1141, 1155-1156, 57 Cal.Rptr.3d 320, 156 P.3d 339 (2007) ; Retail Credit Co. v. Russell , 234 Ga. 765, 777-779, 218 S.E.2d 54 (1975) ; Advanced Training Sys., Inc. v. Caswell Equip. Co., Inc., 352 N.W.2d 1, 11 (Minn. 1984) ; Sid Dillon Chevrolet-Oldsmobile-Pontiac, Inc. v. Sullivan , 251 Neb. 722, 732, 559 N.W.2d 740 (1997) ; Organovo Holdings, Inc. v. Dimitrov , 162 A.3d 102, 123-126 (Del. Ch. 2017). Cf. Kinney v. Barnes , 443 S.W.3d 87, 94-99 (Tex. 2014). | [
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Murphy, P.J.
The trial court terminated the parental rights of respondent-mother and respondent-father to the two minor children, TB and OL, under MCL 712A.19b(3)(c)(i ) (conditions of adjudication continue to exist)
and (g) (failure to provide proper care or custody). The proceedings were driven by respondents' severe drug addictions, primarily involving the abuse of opiates. In these consolidated appeals, respondent-father appeals as of right the termination of his parental rights to TB in Docket No. 341100; he expressly declines to challenge the termination order as it pertains to OL. And in Docket No. 341101, respondent-mother appeals as of right the termination of her parental rights to both minor children. Respondent-mother is a member of the Cheyenne River Sioux Tribe of South Dakota (the tribe), and there is no dispute that TB and OL are Indian children for purposes of the federal Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq ., the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq ., and MCR 3.977(G). ICWA and MIFPA, along with MCR 3.977(G), set forth various procedural and substantive protections, mostly duplicative of each other, which are triggered when an Indian child is the subject of a child protective proceeding. These protections go beyond the burdens generally applicable to child protective proceedings. The trial court applied the appropriate heightened standards or burdens when terminating respondent-mother's parental rights, but it failed to apply them when terminating the parental rights of respondent-father, ostensibly because the Indian heritage of the children is solely through their mother's bloodline.
Respondent-father argues that ICWA and MIFPA standards govern the termination of his parental rights, considering that TB is his biological child and an Indian child, regardless of respondent-father's personal heritage. We agree and conditionally reverse the termination of respondent-father's parental rights to TB and remand for proceedings consistent with ICWA and MIFPA, as well as MCR 3.977(G).
Respondent-mother contends that the trial court erred by terminating her parental rights because petitioner, the Department of Health and Human Services (DHHS), and the tribe failed to make the required "active efforts" at preventing the breakup of her family and because the evidence did not establish beyond a reasonable doubt that her continued custody of TB and OL was likely to result in serious emotional or physical damage to the children. We disagree and affirm the trial court's ruling terminating respondent-mother's parental rights to the children.
I. TERMINATION OF PARENTAL RIGHTS-MICHIGAN LAW
A. GENERAL PRINCIPLES
Under Michigan law, if a trial court finds that a single statutory ground for termination of parental rights has been established by clear and convincing evidence and that it has also been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, the court is required to terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5) ; In re Beck , 488 Mich. 6, 10-11, 793 N.W.2d 562 (2010) ; In re Moss, 301 Mich. App. 76, 90, 836 N.W.2d 182 (2013) ; In re Ellis , 294 Mich. App. 30, 32-33, 817 N.W.2d 111 (2011). The two statutory grounds implicated in this case are MCL 712A.19b(3)(c)(i ) and (g), which provide for termination under the following circumstances:
(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.
* * *
(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.[ ]
B. MIFPA AND THE MICHIGAN COURT RULE
In 2012, the Legislature enacted MIFPA, which was made effective January 2, 2013. See 2012 PA 565. "[T]he Legislature adopted MIFPA to establish state law standards for child welfare and adoption proceedings involving Indian children." In re Williams , 501 Mich. 289, 298, 915 N.W.2d 328 (2018). MIFPA was designed to protect the best interests of Indian children, to promote the security and stability of Indian tribes and families, and to ensure that the DHHS employs practices that are in accord with ICWA, MIFPA itself, and other applicable law, the goal of which is to prevent removal of Indian children or, if removal is necessary, to place an Indian child in an environment that reflects the unique values of the child's tribal culture. MCL 712B.5(a) and (b) ; Williams , 501 Mich. at 298, 915 N.W.2d 328. In child custody proceedings, and in consultation with an Indian child's tribe, these policy directives or goals must be considered when determining the best interests of the Indian child. MCL 712B.5. As part of MIFPA, MCL 712B.15 provides, in pertinent part:
(3) A party seeking a termination of parental rights to an Indian child under state law must demonstrate to the court's satisfaction that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that the active efforts were unsuccessful.
(4) No termination of parental rights may be ordered in a proceeding described in this section without a determination, supported by evidence beyond a reasonable doubt, including testimony of at least 1 qualified expert witness as described in section 17, that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child.[ ][Emphasis added.]
Respondent-father is alleging a violation of MCL 712B.15(3) and (4). And MIFPA defines "parent" as "any biological parent ... of an Indian child or any person who has lawfully adopted an Indian child ...." MCL 712B.3(s) (emphasis added). But "parent" "does not include the putative father if paternity has not been acknowledged or established." Id. With respect to TB, an Indian child, there is no dispute that respondent-father is a biological parent-he signed the affidavit of parentage regarding TB. See MCL 722.1003(1) ("If a child is born out of wedlock, a man is considered to be the natural father of that child if the man joins with the mother of the child and acknowledges that child as his child by completing a form that is an acknowledgment of parentage."). As reflected in the definition of "parent," even adoptive parents of an Indian child, regardless of the parents' heritage, enjoy the benefits of the heightened burdens that seek to protect Indian children from family disruptions.
The fact that a parent, as defined in MCL 712B.3(s), is afforded protection under MIFPA is further spelled out in MCL 712B.39, which provides
Any Indian child who is the subject of an action for foster care placement or termination of parental rights under state law, any parent or Indian custodian from whose custody an Indian child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate the action upon a showing that the action violated any provision of sections 7, 9, 11, 13, 15, 21, 23, 25, 27, and 29 of this chapter. [Emphasis added.]
As indicated earlier, respondent-father is alleging a violation of Subsections (3) and (4) of § 15 of MIFPA.
In addition to MIFPA, MCR 3.977, which is the court rule addressing the termination of parental rights, provides in Subrule (G):
In addition the required findings in this rule, the parental rights of a parent of an Indian child must not be terminated unless :
(1) the court is satisfied that active efforts as defined in MCR 3.002 have been made to provide remedial service and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful, and
(2) the court finds evidence beyond a reasonable doubt, including testimony of at least one qualified expert witness as described in MCL 712B.17, that parental rights should be terminated because continued custody of the child by the parent or Indian custodian will likely result in serious emotional or physical damage to the child. [Emphasis added.]
MCR 3.002 includes, in part, the definitions taken from MCL 712B.3, thereby reiterating that a "parent" is "any biological parent ... of an Indian child...." MCR 3.002(20).
The "active efforts" referred to in MIFPA and MCR 3.977(G)(1) must be proved by clear and convincing evidence. In re England , 314 Mich. App. 245, 258-259, 887 N.W.2d 10 (2016). "Active efforts" are defined as "actions to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and to reunify the Indian child with the Indian family." MCL 712B.3(a) ; see also MCR 3.002(1). MIFPA and the court rule provide an extensive list of actions and efforts that must be undertaken by the state in order to satisfy the "active efforts" requirement. MCL 712B.3(a)(i ) to (xii ) ; MCR 3.002(1)(a) to (l ). We also note that MIFPA requirements are in addition to the mandate that petitioner prove a statutory ground for termination by clear and convincing evidence. England , 314 Mich. App. at 253, 887 N.W.2d 10 ; see also MCR 3.977(G) ("In addition to the required findings in this rule, the parental rights of a parent of an Indian child must not be terminated unless ....") (emphasis added).
II. TERMINATION OF PARENTAL RIGHTS-FEDERAL LAW-ICWA
"In 1978, Congress enacted ICWA in response to growing concerns over 'abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.' " In re Morris , 491 Mich. 81, 97-98, 815 N.W.2d 62 (2012), quoting Mississippi Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). The United States Congress, in 25 U.S.C. 1902, stated:
The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.
Section 1912(d) of ICWA provides that "[a]ny party seeking ... termination of parental rights to an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S.C. 1912(d) (comma omitted). As with "active efforts" under MIFPA, "active efforts" for purposes of ICWA must also be proved by clear and convincing evidence. England , 314 Mich. App. at 258-259, 887 N.W.2d 10. Next, 25 U.S.C. 1912(f) provides that "[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Comparable to the definition of "parent" found in MCR 3.002(20) and § 3(s) of MIFPA, 25 U.S.C. 1903(9) defines "parent" as "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom."
ICWA also has a provision similar to § 39 of MIFPA in 25 U.S.C. 1914 :
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title. [Emphasis added.]
Finally, "in addition to finding that at least one state statutory ground for termination was proven by clear and convincing evidence, the trial court must also make findings in compliance with ICWA before terminating parental rights." In re Payne/Pumphrey/Fortson , 311 Mich. App. 49, 58, 874 N.W.2d 205 (2015).
III. TERMINATION OF RESPONDENT-FATHER'S PARENTAL RIGHTS
At the close of the termination hearing, which respondent-father did not attend, the trial court began its ruling from the bench by indicating that because the children are Indian children, it was required to apply a beyond-a-reasonable-doubt standard "to terminate the parental rights as to the mother." The court then noted that respondent-father "does not have any Native American heritage[.]" The trial court found that respondent-father had done nothing to perfect paternity with regard to OL, but the court did recognize him as TB's "legal father." The trial court further found, as to respondent-father, that his housing situation was "totally unknown," that his last visitation with TB was approximately 10 months earlier, that he had done nothing to address his emotional instability, that he would disappear for long periods, that he had not participated in services, and that he had not progressed with regard to his substance abuse issues. Accordingly, the trial court determined that petitioner had established MCL 712A.19b(3)(c)(i ) and (g) by clear and convincing evidence. The trial court then reviewed various best-interest factors and concluded that termination of respondent-father's parental rights was in the children's best interests. The court did not apply any of the protections, burdens, or standards set forth in ICWA, MIFPA, and MCR 3.977(G).
The trial court entered an order terminating the parental rights of both respondents to the two children. The order, on a standard court form, had boxes checked indicating that the children were Indian children, that there existed clear and convincing evidence of a statutory basis for termination, and that termination of parental rights was in the best interests of the children. Another checked box on the order provided:
Active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. These efforts have proved unsuccessful and there is evidence beyond a reasonable doubt, including qualified expert witness testimony, that continued custody of the child(ren) by the parent(s) or Indian custodian will likely result in serious emotional or physical damage to the child(ren).
The trial court made no such ruling from the bench in relation to respondent-father, and it is clear that this provision in the order applied solely to respondent-mother, especially considering that the court had also checked the box regarding the generally applicable "reasonable efforts" language, presumably in reference to respondent-father.
On appeal, respondent-father argues that the trial court erred by failing to apply MIFPA and ICWA standards when assessing whether to terminate his parental rights to TB. More specifically, respondent-father claims a violation of the "active efforts" and "beyond a reasonable doubt" provisions of MIFPA, respectively MCL 712B.15(3) and (4), and those same provisions in ICWA, respectively 25 U.S.C. 1912(d) and (f). Petitioner concedes that the trial court was required to apply MIFPA and ICWA burdens and protections with respect to respondent-father and failed to do so. Petitioner, however, urges us to affirm the termination of respondent-father's parental rights under plain-error review. Petitioner contends that respondent-father's argument is "nothing more than an appellate after-thought" and "[a] means to raise a technical violation in an attempt to obtain a result that [respondent-father] has done nothing to earn." Petitioner further maintains that even if the trial court had considered respondent-father's efforts, which were essentially nonexistent, under the enhanced ICWA and MIFPA burdens, his "parental rights still would have been properly terminated." While we are somewhat sympathetic to petitioner's sentiments, considering the record of respondent-father's noninvolvement, we cannot oblige petitioner.
Because TB is an Indian child and respondent-father is TB's biological parent, we hold that respondent-father's parental rights should not have been terminated absent compliance with MIFPA, ICWA, and MCR 3.977(G), even though respondent-father himself is not of Indian descent. 25 U.S.C. 1903(9) ; 25 U.S.C. 1912(d) and (f) ; MCL 712B.3(s) ; MCL 712B.15(3) and (4) ; MCR 3.002(20) ; MCR 3.977(G).
Accordingly, the trial court erred by terminating respondent-father's parental rights to TB. However, before addressing petitioner's plain-error argument and the proper remedy for the error, it is incumbent on us to address an issue not raised by the parties.
When respondents signed the affidavit of parentage, respondent-mother, by operation of MCL 722.1006, received legal and physical custody of TB. Sims v. Verbrugge , 322 Mich. App. 205, 214, 911 N.W.2d 233 (2017). MCL 722.1006 provides:
After a mother and father sign an acknowledgment of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court.
This grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.
TB was born on August 14, 2015, and respondents executed the affidavit of parentage on August 15th. TB remained in the hospital until August 24th, the day on which the DHHS filed its petition requesting that the court take jurisdiction of TB, although it was "recommended that the child remain in the home with [his] parents" and the court followed the recommendation. With petitioner providing a variety of services, respondent-mother, respondent-father, and TB lived together as a family unit. The trial court authorized TB's removal from the home on November 13, 2015. Subsequent hearings in November and December 2015, as well as in January 2016, revealed that respondents still resided together and were a couple. Because no court proceedings regarding custody had been initiated between respondent-father and respondent-mother, following TB's birth and the execution of the affidavit of parentage, respondent-mother was treated under the law as having sole physical and legal custody of TB. Respondent-father had no custodial rights, despite physically residing with the child for approximately three months.
As indicated earlier, 25 U.S.C. 1912(f) provides that
[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. [Emphasis added.]
MIFPA, specifically MCL 712B.15(4), and MCR 3.977(G)(2) have the same "continued custody" language. The question that we raise sua sponte is whether the heightened standards of ICWA, MIFPA, and MCR 3.977(G) should apply to the termination of respondent-father's parental rights when he never had legal or physical custody rights with regard to TB.
In Adoptive Couple v. Baby Girl , 570 U.S. 637, 133 S.Ct. 2552, 186 L.Ed.2d 729 (2013), the United States Supreme Court addressed a situation in which a child was conceived by an unwed couple, and the father was of Indian heritage. The couple separated before the child's birth, and the mother decided before the birth to place the child up for adoption. Id . at 643, 133 S.Ct. 2552. A prospective adoptive couple emotionally and financially supported the mother during her pregnancy, and the father did not provide any support. Id . at 644, 133 S.Ct. 2552. Four months after the child's birth, the prospective adoptive couple served the father with notice of the pending adoption, and the father executed papers indicating that he would not contest the adoption, although he later claimed that he believed that he was relinquishing his rights in favor of the mother, not the prospective adoptive couple. Id . at 644-645, 133 S.Ct. 2552. During the adoption proceedings, the father, whose paternity had been confirmed by biological testing, challenged the adoption and sought custody of the child. Id . at 645, 133 S.Ct. 2552. The family court in South Carolina determined that the prospective adoptive couple did not satisfy the heightened burden under 25 U.S.C. 1912(f) of establishing beyond a reasonable doubt that the child would suffer serious emotional or physical damage if the father were given custody. Id . The adoption petition was denied, the father was awarded custody and, at the age of 27 months, the child was handed over to the father, whom the child had never met. Id. The case made its way to the United States Supreme Court, which held that neither 25 U.S.C. 1912(f) nor 25 USC 1912(d) (active efforts) barred termination of the father's parental rights. Id. at 656, 133 S.Ct. 2552.
The Court ruled that the phrase "continued custody" necessarily envisions a situation in which a parent, who is a party to child protective proceedings, has custody of an Indian child or had custody of an Indian child at some point before the proceedings were initiated. Id. at 648, 133 S.Ct. 2552. According to the Court, § 1912(f) is not applicable when a parent never had custody of an Indian child because there is no custody to continue. Id. The Court held that "when, as here, the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights , the ICWA's primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated." Id. at 649, 133 S.Ct. 2552 (emphasis added). Moving on to the "active efforts" provision, § 1912(d), the Court held:
Consistent with the statutory text, we hold that § 1912(d) applies only in cases where an Indian family's "breakup" would be precipitated by the termination of the parent's rights. The term "breakup" refers in this context to the discontinuance of a relationship .... or an ending as an effective entity .... But when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent's legal or physical custody, there is no "relationship" that would be discontinued-and no effective entity that would be ended-by the termination of the Indian parent's rights. In such a situation, the "breakup of the Indian family" has long since occurred, and § 1912(d) is inapplicable. [ Adoptive Couple , 570 U.S. at 651-652, 133 S.Ct. 2552 (some quotation marks, citations, and brackets omitted).]
The Court observed that the various provisions in § 1912"strongly suggest[ ] that the phrase 'breakup of the Indian family' should be read in harmony with the 'continued custody' requirement." Id. at 652, 133 S.Ct. 2552.
Justice Alito wrote the majority opinion, and he was joined by two justices who wrote separate concurrences and two justices who wrote separate concurrences and two justices who did not write separately; there were four dissenting justices. Justice Thomas concurred in "the Court's opinion in full but wr[o]te separately to explain why constitutional avoidance compels [the] outcome." Id. at 656, 133 S.Ct. 2552 (Thomas, J., concurring). He opined that "the Constitution does not grant Congress power to override state law whenever that law happens to be applied to Indians"; therefore, "application of the ICWA to these child custody proceedings would be unconstitutional." Id. at 666, 133 S.Ct. 2552. But Justice Thomas concurred with the outcome "[b]ecause the Court's plausible interpretation of the relevant sections of the ICWA avoids these constitutional problems." The other concurrence, by Justice Breyer, provided, in full, as follows:
I join the Court's opinion with three observations. First, the statute does not directly explain how to treat an absentee Indian father who had next-to-no involvement with his child in the first few months of her life. That category of fathers may include some who would prove highly unsuitable parents, some who would be suitable, and a range of others in between. Most of those who fall within that category seem to fall outside the scope of the language of 25 U.S.C. §§ 1912(d) and (f). Thus, while I agree that the better reading of the statute is, as the majority concludes, to exclude most of those fathers, I also understand the risk that, from a policy perspective, the Court's interpretation could prove to exclude too many.
Second, we should decide here no more than is necessary. Thus, this case does not involve a father with visitation rights or a father who has paid all of his child support obligations. Neither does it involve special circumstances such as a father who was deceived about the existence of the child or a father who was prevented from supporting his child. The Court need not, and in my view does not, now decide whether or how §§ 1912(d) and (f) apply where those circumstances are present.
Third, other statutory provisions not now before us may nonetheless prove relevant in cases of this kind. Section 1915(a) grants an adoptive "preference" to "(1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families ... in the absence of good cause to the contrary." Further, § 1915(c) allows the "Indian child's tribe" to "establish a different order of preference by resolution." Could these provisions allow an absentee father to reenter the special statutory order of preference with support from the tribe, and subject to a court's consideration of "good cause"? I raise, but do not here try to answer, the question. [ Adoptive Couple , 570 U.S. at 666-667, 133 S.Ct. 2552 (Breyer, J., concurring) (some quotation marks omitted; citations omitted).]
This concurrence essentially indicates that, for purposes of the case then before the Court, the "continuing custody" analysis by Justice Alito was fine, but there may be other cases in which it would not be.
Given the equivocal nature of Justice Breyer's concurrence, it cannot truly be said that a majority of the United States Supreme Court created an inflexible rule for purposes of the "continuing custody" analysis under § 1912(f), as well as the analysis under § 1912(d). And even assuming the contrary, it certainly is not clear whether the Supreme Court would impose the rule based solely on whether a parent had physical custody, in the strictest sense of the term under the law, where a custodial-like environment existed on a practical level absent any technical custodial rights. The father in Adoptive Couple did not have legal or physical custody of the child; the mother had sole legal and physical custody, and the father had never spent any time with, cared for, or resided with the child. The Court found that the father "never had physical custody of" the child. Adoptive Couple , 570 U.S. at 650, 133 S.Ct. 2552. Nor did the father have "legal custody," given that South Carolina law provided, " 'Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother ....' " Id. , quoting S.C. Code Ann. § 63-17-20(B) (2010). The Court's reference to "physical" custody did not suggest that the Court equated physical custody only to custody that arises by operation of law or court order, as opposed to a scenario in which a parent simply provides a custodial environment for a child.
We hold that under the particular facts of the instant case-which are entirely dissimilar to those in Adoptive Couple , in which the father effectively abandoned the child from birth and even in utero-the beyond-a-reasonable-doubt standard applied to the termination of respondent-father's parental rights, although he never had legal or physical custody rights as those terms are legally employed. When DHHS's petition was filed in August 2015 and for a period thereafter, respondent-father, respondent-mother, and TB lived together as a family unit and respondent-father provided some care for and shared custody of TB. And petitioner was providing reunification services. The family unit dissolved only when TB was removed by court order, although respondents remained together. The removal of TB discontinued the custodial arrangement that had existed with respect to both respondents and TB-if not in law, in practice.
We also note that, as alluded to earlier, MCL 722.1006 provides that "[a]fter a mother and father sign an acknowledgment of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights ...." (Emphasis added.) Allowing the operation of MCL 722.1006 to negate the protections of ICWA, MIFPA, and MCR 3.977(G) in cases in which the father of an Indian child is providing or has provided care and custody for the Indian child, absent legally recognized custodial rights, could certainly be viewed as being prejudicial to the father's custodial rights.
In assessing the impact of Adoptive Couple , our reasoning in rejecting application of the Supreme Court's "continuing custody" analysis to the particular facts of this case applies equally to the state and federal "active efforts" provisions. There was an existing intact Indian family and an existing relationship between respondent-father and TB when petitioner intervened for the protection of TB, began providing services, and then removed TB by court order. The breakup of the Indian family had not yet occurred when the petition was filed and TB was removed. But we must go one step further and examine this Court's opinion in In re SD , 236 Mich. App. 240, 599 N.W.2d 772 (1999). There, this Court addressed a situation in which the non-Indian father and the Indian mother of the Indian children had separated, the children were residing with their mother, the father was not involved in the children's lives, and he had sexually abused one child. The mother was not the subject of any DHHS petition. This Court accepted that the state had to prove beyond a reasonable doubt that custody of the children by the father would likely result in damage to the children, and it also determined that active efforts to provide services to the father to prevent the breakup of the Indian family under ICWA were unnecessary. Id. at 244-246, 599 N.W.2d 772.
The panel reasoned that "the family had already broken up by the time the termination proceedings were initiated" and that an "Indian family" was not being broken up because the children's mother was the parent with the Indian heritage, and she remained with the children. Id. at 244-245, 599 N.W.2d 772. As with Adoptive Couple , we conclude that In re SD is factually distinguishable from the instant case. Here, a petition for jurisdiction had been authorized, and the DHHS commenced providing reunification services while respondents and TB were living together as an Indian family, which ended only when TB was removed from the home at petitioner's behest. Both respondents were subject to parallel protective proceedings, their parental rights were terminated at the same time, and respondent-mother did not remain with TB as an intact Indian family. Thus, In re SD is inapplicable. We now address petitioner's plain-error argument and the issue of the proper remedy. Generally speaking, in termination proceedings, we review unpreserved claims under the plain-error rule. In re VanDalen , 293 Mich. App. 120, 135, 809 N.W.2d 412 (2011) ; In re Utrera , 281 Mich. App. 1, 8-9, 761 N.W.2d 253 (2008). To avoid forfeiture under the plain-error rule, the proponent must establish that a clear or obvious error occurred and that the error affected substantial rights. VanDalen , 293 Mich. App. at 135, 809 N.W.2d 412. "[A]n error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Utrera , 281 Mich. App. at 9, 761 N.W.2d 253. The fatal flaw in petitioner's plain-error argument is that respondent-father was not required to object to or otherwise challenge the trial court's ruling from the bench in order to preserve the issues for appeal. See MCR 2.517(A)(7) (addressing findings in a bench trial and stating that "[n]o exception need be taken to a finding or decision"). Moreover, were we to apply a plain-error analysis, we would effectively have to conclude that active efforts at reunification were demonstrated relative to respondent-father and that there was evidence beyond a reasonable doubt that respondent-father's custody of TB would likely result in serious emotional or physical damage to TB. 25 U.S.C. 1912(d) and (f) ; MCL 712B.15(3) and (4) ; MCR 3.977(G). These criteria were not examined and the standards were not employed by the trial court, and we would be in danger of engaging in improper appellate fact-finding if we attempted to decide the matters on the basis of the existing record. See People v. Thompson , 314 Mich. App. 703, 712 n. 5, 887 N.W.2d 650 (2016). Respondent-father seeks reversal of the trial court's termination order and remand of the case for entry of an order releasing TB to respondent-father, or at least awarding respondent-father parenting time and additional services. We hold that the proper remedy in this case is to conditionally reverse the order terminating respondent-father's parental rights to TB and remand the case for the trial court to address and resolve the issues regarding active efforts and the potential of serious emotional or physical damage to TB if custody continued with respondent-father, as analyzed under the beyond-a-reasonable-doubt standard. See In re McCarrick/Lamoreaux , 307 Mich. App. 436, 469, 861 N.W.2d 303 (2014) ("We conditionally reverse and remand for the trial court to determine whether McCarrick's continued custody would result in serious emotional or physical damage to the children."). Stated otherwise, we reverse and remand to the trial court for compliance with 25 U.S.C. 1912(d) and (f), MCL 712B.15(3) and (4), and MCR 3.977(G). Given the record regarding respondent-father, there clearly could be a risk of harm or danger to TB were we to order the trial court to release TB to respondent-father. See McCarrick/Lamoreaux , 307 Mich. App. at 469, 861 N.W.2d 303 ("[W]e decline to automatically reverse the trial court's order in this case because doing so could place the child in danger ...."). The trial court is of course free to enter any interim orders pending the trial court's compliance with this opinion.
IV. TERMINATION OF RESPONDENT-MOTHER'S PARENTAL RIGHTS
Respondent-mother argues that petitioner failed to present clear and convincing evidence that active efforts were made to provide services designed to prevent the breakup of her Indian family. She contends that petitioner did not utilize resources available through the tribe or otherwise engage the tribe in the case until 15 months after the original petition was filed. Respondent-mother complains that the tribe took a passive role in the proceedings. She further maintains that petitioner failed to provide "active efforts" under the definitional requirements set forth in MCL 712B.3(a)(i ), (iv ), (vi ), and (ix ). Respondent-mother argues that there was no evidence that petitioner did anything more than make "reasonable efforts" at reunification, thereby failing to satisfy the heightened "active efforts" burden. For purposes of ICWA and MIFPA, active efforts must be proved by clear and convincing evidence. England , 314 Mich. App. at 258-259, 887 N.W.2d 10. The factual findings by the trial court are reviewed for clear error, and any issue regarding the interpretation and application of the relevant federal and state statutory provisions is reviewed de novo. In re Johnson , 305 Mich. App. 328, 331, 852 N.W.2d 224 (2014). As observed earlier, "active efforts" are defined as "actions to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and to reunify the Indian child with the Indian family." MCL 712B.3(a) ; see also MCR 3.002(1). "Active efforts" require affirmative, as opposed to passive, efforts, and "active efforts" require more than the standard "reasonable efforts" approach. In re JL , 483 Mich. 300, 321, 770 N.W.2d 853 (2009). "Active efforts require more than a referral to a service without actively engaging the Indian child and family." MCL 712B.3(a) ; MCR 3.002(1). "Active efforts" involve a caseworker who takes a client through the steps of a treatment plan rather than requiring the client to perform the plan on his or her own. In re JL , 483 Mich. at 321, 770 N.W.2d 853.
Respondent-mother acknowledges that petitioner mailed notices of all hearings to the tribe, but she argues that there is no evidence that petitioner made meaningful efforts to involve the tribe. There is no dispute that petitioner provided proper notice to the tribe and that the tribe did not initially confirm or deny tribal membership. Nonetheless, notices of every hearing and copies of the petitions and reports were provided to the tribe. A Michigan caseworker assigned to respondent-mother's case testified that she made phone contact with tribal caseworkers, but they initially seemed uninterested. However, once the tribe expressed its intent to intervene, petitioner withdrew the termination petition, and the tribe participated in all subsequent hearings by telephone. Evidence was presented that petitioner offered or provided respondent-mother with assessments, treatment, counseling, drug screens, and services related to her substance abuse issues. Psychological evaluations, therapy, parenting time, in-home services, and various family programs were also offered or provided. Family team meetings were held to address respondent-mother's barriers to reunification and to assist her in complying with court orders. The qualified expert witness from the tribe who was assigned to the case testified that she had received reports and updates from petitioner, that she had been included in treatment plans, that she had been able to provide input for services, and that she had participated in family team meetings. The tribal expert additionally testified that while the tribe itself did not have many services available, those services appropriate to the situation were offered to respondent-mother, but she failed to contact the tribe to take advantage of the services. The record reveals that respondent-mother was resistant to petitioner's efforts and did not cooperate or benefit from the services that were provided to her. She refused to acknowledge that she had a drug problem. The tribal expert testified that she could not think of any relevant service that had not been offered to respondent-mother and, in the expert's opinion, "active efforts" had been made to reunite respondent-mother with her children.
In light of this evidence, respondent-mother's argument that petitioner failed to make the requisite active efforts is unavailing. The trial court did not clearly err by finding that there was clear and convincing evidence that active efforts were made to prevent the breakup of the Indian family and that the efforts were unsuccessful.
Respondent-mother next argues that the trial court erred by terminating her parental rights when the evidence did not support a finding beyond a reasonable doubt that her custody of the children would likely result in serious emotional or physical damage to them. On the basis of her previous argument that petitioner failed to make "active efforts" to prevent the breakup of the family, respondent-mother contends that the evidence presented by petitioner did not amount to proof beyond a reasonable doubt. Her appellate brief again discusses the purported lack of services provided to her. As already held, the "active efforts" argument lacks merit. Respondent-mother further maintains that the evidence was insufficient to meet the high evidentiary burden because her current counselor testified at the termination hearing that respondent-mother was actively engaged in therapy and was working through her communication issues and because respondent-mother had been off of heroin for about a year.
The trial court concluded that the evidence, which included the testimony of the tribal expert, established beyond a reasonable doubt that continued custody of the children with respondent-mother would likely result in serious emotional or physical damage to the children. The trial court explained:
[F]rom the things that I've summarized in this case, based on emotional stability and substance abuse factors, that the efforts that have been provided and offered have not made any appreciable change other than some changes regarding employment, which has been great, and housing, which has been great, but as far [as] underlying issues, which are substance abuse and emotional stability, those just have not changed to any great degree.
The factors considered by the trial court included (1) respondent-mother's failure to cooperate with and benefit from services designed to address her substance abuse, (2) her failure to acknowledge that she had a substance abuse problem, (3) her resistance to therapy and the need for another 18 to 24 months of intensive therapy to address her emotional instability, (4) her failure to take personal responsibility for her children being in care, and (5) her missed parenting times. The trial court also considered the tribal expert's testimony that the tribe's board of directors believed that it was in the best interests of the children to terminate respondent-mother's parental rights. In light of the tribal expert's testimony and the other evidence presented at the hearing, we cannot conclude that the trial court clearly erred by finding beyond a reasonable doubt that custody of the children by respondent-mother would likely result in serious emotional or physical damage to them. 25 U.S.C. 1912(f) ; MCL 712B.15(4) ; MCR 3.977(G)(2).
V. CONCLUSION
In summary, in Docket No. 341100, respondent-father argues that ICWA and MIFPA standards govern the termination of his parental rights considering that TB is his biological child and is an Indian child, regardless of respondent-father's personal heritage. We agree. Therefore, we conditionally reverse the termination of respondent-father's parental rights to TB and remand for proceedings consistent with ICWA and MIFPA, as well as MCR 3.977(G). In Docket No. 341101, respondent-mother contends that the trial court erred by terminating her parental rights because petitioner and the tribe failed to make the required active efforts at preventing the breakup of her family. Respondent-mother also asserts that the evidence did not establish beyond a reasonable doubt that her continued custody of TB and OL was likely to result in serious emotional or physical damage to the children. We disagree. Therefore, we affirm the trial court's ruling terminating respondent-mother's parental rights to the children.
Docket No. 341101 affirmed, and Docket No. 341100 conditionally reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Gleicher and Letica, JJ., concurred with Murphy, P.J.
Respondents were not married and, with respect to OL, respondent-father did not execute an affidavit of parentage, so the case proceeded against him as OL's putative father. Respondent-father did sign an affidavit of parentage with regard to TB.
Pursuant to 2018 PA 58, effective June 12, 2018, Subsection (3)(g) now provides as follows:
The parent, although, in the court's discretion, financially able to do so, 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.
In Williams , 501 Mich. at 300-302, 915 N.W.2d 328, our Supreme Court, citing MCL 712B.15(1) to (4), provided a summary of the heightened evidentiary and procedural burdens required of the state under MIFPA, observing:
For example: (1) the state must give notice of the pending proceeding to the Indian tribe; (2) before removal or to continue removal, the state must prove by clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, that the active efforts were unsuccessful, and that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child; (3) when seeking termination, the state must demonstrate that active efforts were made to prevent the breakup of the Indian family and that the efforts were unsuccessful; and (4) any termination of parental rights must be supported by evidence beyond a reasonable doubt and by the testimony of at least one qualified expert who knows about the child-rearing practices of the Indian child's tribe.
"We review de novo issues involving the interpretation and application of MIFPA." In re Detmer , 321 Mich. App. 49, 59, 910 N.W.2d 318 (2017). When construing a statute, our goal is to discern the intent of the Legislature, looking first to the language of the statute, and if the statutory language is clear and unambiguous, we must enforce it as written. Id. at 59-60, 910 N.W.2d 318.
Respondent-father was, however, represented by counsel at the termination hearing and throughout the lower court proceedings. Respondent-father's attorney informed the court at the termination hearing that he last had "face-to-face contact" with respondent-father approximately a year before the hearing.
Respondent-father does not argue that the trial court erred by finding that clear and convincing evidence established the statutory grounds for termination under MCL 712A.19b(3)(c)(i ) and (g). We also note that respondent-father does not raise an issue concerning the adjudicative phase of the proceedings, when in December 2015 he entered a plea of admission to the allegations in the DHHS's petition.
We are not aware of any published opinion that has expressly held that the demands of ICWA, MIFPA, and MCR 3.977(G) govern termination of the parental rights of a non-Indian, biological parent of an Indian child. However, the principle can be implied from the existing caselaw. See, e.g., In re Jones , 316 Mich. App. 110, 894 N.W.2d 54 (2016) (conditionally reversing termination as to the mother because of the failure to notify the tribe to which the child might belong, even though the possible Indian heritage was through the father alone).
For example, if the father and mother of an Indian child were unwed but lived together for years as a family despite the mother having sole legal and physical custody of the child by operation of law or court order, we cannot imagine the Supreme Court holding that the father, especially if he had Indian heritage, could have his parental rights terminated without application of heightened burdens merely because he did not have legal or physical custody rights under the law.
Under MCL 712B.3(a), "active efforts" include the following:
(i ) Engaging the Indian child, child's parents, tribe, extended family members, and individual Indian caregivers through the utilization of culturally appropriate services and in collaboration with the parent or child's Indian tribes and Indian social services agencies.
* * *
(iv ) Requesting representatives designated by the Indian child's tribe with substantial knowledge of the prevailing social and cultural standards and child rearing practice within the tribal community to evaluate the circumstances of the Indian child's family and to assist in developing a case plan that uses the resources of the Indian tribe and Indian community, including traditional and customary support, actions, and services, to address those circumstances.
* * *
(vi ) Identifying, notifying, and inviting representatives of the Indian child's tribe to participate in all aspects of the Indian child custody proceeding at the earliest possible point in the proceeding and actively soliciting the tribe's advice throughout the proceeding.
* * *
(ix ) Offering and employing all available family preservation strategies and requesting the involvement of the Indian child's tribe to identify those strategies and to ensure that those strategies are culturally appropriate to the Indian child's tribe.
TB had tested positive for various opiates and benzodiazepines at birth.
The counselor had met with respondent-mother for seven sessions. | [
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Borrello, P.J.
The prosecution appeals by leave granted the trial court's opinion and order, following remand from the Michigan Supreme Court, which granted defendant's motion to suppress statements made during a custodial interrogation without being advised of his Miranda rights. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
This case arises out of the death of Amy Wienski, defendant's alleged girlfriend. This matter was initially before this Court when the prosecution filed an interlocutory appeal of the trial court's decision to grant defendant's motion to suppress his statements, and this Court affirmed on different grounds. People v. Barritt , 318 Mich. App. 662, 671, 899 N.W.2d 437 (2017), vacated in part 501 Mich. 872, 901 N.W.2d 859 (2017). The prosecution filed an application for leave to appeal this Court's prior decision in the Michigan Supreme Court, and in lieu of granting leave to appeal, the Michigan Supreme Court vacated the holding of this Court that defendant was "in custody." People v. Barritt , 501 Mich. 872, 901 N.W.2d 859 (2017). The Michigan Supreme Court determined that this Court had properly concluded that when deciding whether defendant was in custody, the trial court had applied the wrong legal standards. Our Supreme Court remanded the matter to the trial court for application of the correct standards, directing the trial court
to determine, in light of all of the objective circumstances surrounding the interrogation: (1) whether a reasonable person would have felt that he was not at liberty to terminate the interrogation and leave; and (2) whether the environment presented the same inherently coercive pressures as the type of station house questioning involved in [ Miranda ]. See Howes v. Fields , 565 U.S. 499, 509, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012) ; Yarborough v. Alvarado , 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ; People v. Elliott , 494 Mich. 292, 308[, 833 N.W.2d 284] (2013). [ Barritt , 501 Mich at 872. ]
On remand, the trial court granted defendant's motion to exclude his statements and suppressed the evidence, finding that defendant was in custody for purposes of Miranda under the standards set forth in the Michigan Supreme Court order. This interlocutory appeal by the prosecution followed.
On appeal, the prosecution argues that the trial court erred when it granted defendant's motion to suppress because defendant was not in custody for purposes of Miranda when he made the statements and that, therefore, what the prosecution describes as his voluntary, uncoerced, and noncustodial statements are admissible at trial. The prosecution argues that defendant was not in custody for Miranda purposes because he voluntarily agreed to accompany the police in a marked vehicle to the station, he voluntarily provided information about the victim, the room where defendant was interviewed was unlocked with people coming and going, the interview only lasted 90 minutes, and defendant continued to speak after he was told he could stop the interview.
II. ANALYSIS
" 'The ultimate question whether a person was "in custody" for purposes of Miranda warnings is a mixed question of fact and law, which must be answered independently by the reviewing court after review de novo of the record.' " People v. Coomer , 245 Mich. App. 206, 219, 627 N.W.2d 612 (2001) (citations omitted). This Court reviews for clear error the trial court's factual findings concerning the circumstances surrounding statements to the police. Id ."A finding is clearly erroneous if, after reviewing the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made." Id .
Every person has a constitutional right against self-incrimination. U.S. Const., Am. V ; Const. 1963, art 1, § 17. To effectuate this right, the police must warn a defendant of his or her constitutional rights if the defendant is taken into custody for interrogation. People v. Cortez (On Remand) , 299 Mich. App. 679, 691, 832 N.W.2d 1 (2013) (opinion by METER , J.). Statements made by a defendant to the police during a custodial interrogation are not admissible unless the defendant voluntarily, knowingly, and intelligently waives the constitutional right against self-incrimination. People v. Tierney , 266 Mich. App. 687, 707, 703 N.W.2d 204 (2005).
It is undisputed that defendant was not advised of his Miranda rights when he was questioned by the detectives. The issue now before this Court is whether defendant was in custody for Miranda purposes and whether the statements he made to police are, therefore, inadmissible given the lack of Miranda warnings.
A. FREEDOM OF MOVEMENT
The Supreme Court has stated that "custody" is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of "the objective circumstances of the interrogation," Stansbury v. California , 511 U.S. 318, 322, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994), a "reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave," Thompson v. Keohane , 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) ; Fields , 565 U.S. at 509, 132 S.Ct. 1181. Further, we have been instructed by the Supreme Court that in order to determine how a suspect would have "gauge[d]" his or her "freedom of movement," courts must examine "all of the circumstances surrounding the interrogation...." Stansbury , 511 U.S. at 322, 325, 114 S.Ct. 1526. The relevant circumstances are as follows: (1) the location of the questioning, see Maryland v. Shatzer , 559 U.S. 98, 105-107, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010) ; (2) the duration of the questioning, Berkemer v. McCarty , 468 U.S. 420, 437-438, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) ; (3) statements made during the interview, Oregon v. Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) ; Yarborough v. Alvarado , 541 U.S. 652, 665, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ; Stansbury , 511 U.S. at 325, 114 S.Ct. 1526 ; (4) the presence or absence of physical restraints during the questioning, New York v. Quarles , 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) ; and (5) the release of the interviewee at the end of the questioning, California v. Beheler , 463 U.S. 1121, 1122-1123, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (as quoted in Fields , 565 U.S. at 509, 132 S.Ct. 1181 ). These cases stress that no one circumstance is controlling; rather a reviewing Court must consider the totality of the circumstances when deciding whether an individual was subjected to custodial interrogation under Miranda . Fields , 565 U.S. at 517, 132 S.Ct. 1181. Hence, we begin our analysis by going through each of the circumstances set forth in Supreme Court caselaw to determine whether defendant was subjected to custodial interrogation. Fields , 565 U.S. at 509, 132 S.Ct. 1181.
1. LOCATION
In this case, the trial court found, and the parties agreed, that defendant was questioned at a police station. From the descriptions provided by the questioning officers and from what can be gleaned from the taped interview, defendant was questioned in a small police office located within a larger governmental building in Homer, MI. The trial court described it as a "satellite office of the Calhoun County Sheriff's Department...." A police station is a "police-dominated atmosphere" as contemplated by Miranda . Miranda , 384 U.S. at 445, 86 S.Ct. 1602. However, in Mathiason , 429 U.S. 492, 494-496, 97 S.Ct. 711, the Supreme Court reversed the Oregon Supreme Court's conclusion that because defendant's questioning had taken place in a police station, the interrogation took place in a coercive environment and that defendant was therefore subjected to custodial interrogation. In Mathiason , the defendant was a suspect in a burglary. Id . At 493. An officer attempted to make contact with the defendant, eventually leaving his card at the defendant's apartment and requesting that the defendant call him, which the defendant did. Id . When the defendant called, the officer asked where the defendant would like to meet, and after the defendant offered no preference, the officer suggested the state patrol office. Id . The defendant met there with the officer who, on arrival, told the defendant that he was not under arrest but that he should be truthful. Id . The defendant confessed after being (wrongfully) told by the officer that his fingerprints were found at the scene. Id . In reversing the Oregon Supreme Court's conclusion that the defendant was subjected to custodial interrogation, the United States Supreme Court held:
In the present case, however, there is no indication that the questioning took place in a context where respondent's freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a 1/2-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody "or otherwise deprived of his freedom of action in any significant way."
Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a "coercive environment." Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited. [ Id. at 495, 97 S.Ct. 711.]
In this case, the trial court acknowledged that in light of Mathiason , the fact that interrogation occurred at a police station was not dispositive. However, the court also stated:
Still, the location of the questioning in the instant case weighs in favor of a finding that Defendant was in custody. Police officers have an inherent authority that generally elicits respect from the public. The average person that is summoned to a police station to talk with a detective would not feel comfortable leaving the station until the discussion was terminated by that detective. In this case, Defendant was taken to the station house in the back of a police car. He was not allowed to travel to the station with [Ron] Greenway, the person Defendant had ridden with to Wienski's house despite the fact that Greenway too was driving to the station. Defendant was removed from the car and escorted into the station by armed officers. He was then placed in a room for questioning with only police present and a police dog in close proximity. A reasonable person in that situation would not have felt comfortable leaving the station without clear permission from an officer, permission that Defendant never received.
This Court has recognized that "[a] person who is 'cut off from his normal life and companions,' and abruptly transported from the street into a 'police-dominated atmosphere,' may feel coerced into answering questions." Cortez , 299 Mich. App. at 695, 832 N.W.2d 1 (quotation marks and citations omitted). In Yarborough , the United States Supreme Court concluded that the state court had reasonably determined that the defendant was not in custody for Miranda purposes, because the defendant was not transported to the station house by police.
Contrary to the facts set forth in Yarborough , here, defendant was transported to the police station by armed police officers, a fact on which the trial court placed a great deal of emphasis. The prosecution argues that this factor does not weigh in favor of finding that defendant was in custody because defendant agreed to speak with the police officers at a location different from Wienski's house. According to the prosecution, defendant arrived at Wienski's house as the passenger in a vehicle driven by another individual, identified as Ron. Defendant asserted that he met Ron the day before and that Ron drove defendant home in exchange for a generator. According to the prosecution, Detective Bryan Gandy asked defendant if he would go to the police station to talk in a "better area" than on the lawn at Wienski's home, and defendant agreed. Deputy Kevin Mahan then "had defendant take a seat" in the back of his patrol vehicle to transport defendant to the satellite office. Mahan did not force defendant into the car or place defendant under arrest. Defendant was not handcuffed during the ride. However, as noted by the trial court, defendant was not offered the opportunity to ride with Ron to the police station. According to the prosecution, the detectives offered defendant a ride "out of convenience," and defendant accepted. The prosecution further argues that despite questioning occurring at the police station, the doors to the office where the questioning took place remained unlocked, which also weighs against a finding of custody. Gandy testified that the office doors locked from the outside, "like a school," so an individual could exit the office freely but that entrance into the office was restricted. During the interrogation video, a knock is heard on the door behind defendant, and one of the detectives stood up, opened the door, and was seemingly handed the drink that defendant was offered. Gandy did not lock the doors once defendant was inside the office. Other people entered and exited the room freely. Defendant is seen in the video watching people enter and exit through the door located behind him. There are sounds of doors being opened and closed in the background of the interrogation video. There were two doors in the office that exited the room and another door to an attached office. Gandy testified that defendant sat next to a door that exited the office. A door is visible in the interrogation video behind defendant and to his right, but the actual door knob is not within the camera's frame for the entirety of the video. At one point, Gandy said that he needed to step out for a minute. In the interrogation video, a uniformed individual left through the door behind defendant, but only the back of his body from the shoulders down is visible. Presumably, this was Gandy. From the background sound of the video, it did not sound like Gandy had to use a key or badge to open the door behind defendant. Gandy returned to the interrogation room, and then Detective Steve Hinkley stepped out.
Although there is evidence that the office doors were unlocked, this does not outweigh the fact that questioning occurred in an office at the police station, in the constant presence of armed police officers, or that defendant was escorted into the room by armed police officers after being transported in a marked police car. It is unlikely that a reasonable person would believe that they were free to terminate the interview and leave after being transported to the station in a marked vehicle, escorted into the building by armed police officers, and questioned by armed police officers who used an increasingly hostile tone. Additionally, the fact that the police knew that defendant did not have his own vehicle and insisted that he be driven in a police vehicle supports the trial court's finding that the police took defendant into custody off his front lawn.
We recognize that the facts presented in this case are certainly subject to interpretation. However, the prosecution seems to place too great an emphasis on the subjective intent of the officers and defendant in asking us to find that the trial court clearly erred by finding that the evidence favored a finding that defendant was in custody relative to the issue of where the questioning took place. However, caselaw dictates that "the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury , 511 U.S. at 323, 114 S.Ct. 1526. This Court has made similar legal pronouncements. In People v. Zahn , 234 Mich. App. 438, 449, 594 N.W.2d 120 (1999), we wrote, "The determination of custody depends on the objective circumstances of the interrogation rather than the subjective views harbored by either the interrogating officers or the person being questioned." See also, Coomer , 245 Mich. App. at 219-220, 627 N.W.2d 612. Applying that standard, we cannot conclude that the trial court clearly erred when it found that the totality of the factors regarding the location of the questioning weighed in favor of a finding that defendant was in custody.
2. DURATION
Gandy testified that the interview lasted approximately 90 minutes, the same amount of time as the interrogation video. The trial court determined that this was a neutral factor in making a custody determination, a finding in which we concur. The Yarborough Court determined that a two-hour interview weighed in favor of a finding of custody. Yarborough , 541 U.S. at 665, 124 S.Ct. 2140. Conversely, in Mathiason , the United States Supreme Court determined that a half-hour long interview did not constitute a custodial interrogation. Mathiason , 429 U.S. at 495, 97 S.Ct. 711. In People v. Mendez , 225 Mich. App. 381, 383, 571 N.W.2d 528 (1997), the defendant was also interviewed for 90 minutes. This Court concluded that the defendant was not in custody for Miranda purposes, likening the facts of the case to Mathiason because the defendant voluntarily went to the police station, was informed that he was not under arrest, and was permitted to leave at the end of the interview. Id . Lastly, in Fields , the defendant was questioned for five to seven hours; the Supreme Court-while stating that the interrogation length lent some support to the defendant's argument that the interrogation was custodial-nonetheless, ultimately concluded that the interrogation length was not controlling as to whether the defendant was subjected to custodial interrogation. Fields , 565 U.S. at 515, 132 S.Ct. 1181.
3. STATEMENTS
In Yarborough , 541 U.S. at 665, 124 S.Ct. 2140, the Supreme Court held that failure to tell a suspect that he or she is free to leave is one factor that can contribute to a finding that a suspect was in custody. The Court stated, "Unlike the officer in Mathiason , [the officer] did not tell [defendant] that he was free to leave.... These facts weigh in favor of the view that [defendant] was in custody." Id . This factor has also been acknowledged by Justice MARKMAN , when he wrote for the majority in Elliott , 494 Mich. at 309, 833 N.W.2d 284 ; however he concluded that the lack of a similar statement was not pertinent to the defendant because he was already incarcerated. Unlike the facts presented to our Supreme Court in Elliott , here, defendant was taken from his front lawn to the back of a patrol car and ultimately to a police station. Hence we find the issue of whether defendant was told he was free to leave relevant in our determination of whether defendant was subjected to custodial interrogation.
Gandy did not recall telling defendant that he was free to leave. He believed that he told defendant that they could finish the interview at any time. However, it was not until the end of the interview and after defendant stated that he needed a lawyer that Hinkley told defendant that he was not under arrest and could finish any time. This weighs in favor of a finding of custody. Id .
In addition to finding that the police did not initially tell defendant that he was not under arrest or that he could leave at any time, the trial court also found that the increasingly accusatory nature of the interview weighed in favor of a finding of custody. See Tankleff v. Senkowski , 135 F.3d 235, 244 (C.A. 2, 1998) (holding that the officers' increasingly hostile questioning transformed an interrogation into custodial interrogation before the defendant was advised of his Miranda rights). And, as we noted earlier in this opinion, "the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury , 511 U.S. at 323, 114 S.Ct. 1526. However, "an officer's views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody," if the officer's views were "somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave." Id. at 325, 114 S.Ct. 1526.
Gandy described the interview as relaxed, and certainly in the beginning phases of the interview that appears to be an accurate description. Again, however, we note that while the subjective understandings of the police and suspect can be relevant, they are not controlling. Later in the interview, Gandy testified that there was a point when he started to feel like defendant was not telling the detectives everything that defendant knew. Hinkley asked defendant if he told them everything that he could think of, and defendant said that he did and that "[i]f there's anything else you can think of, please ask." Gandy remembered Hinkley saying, "no bull****," to defendant, but asserted that this was not confrontational. The change in tone of the detectives occurred about 53 minutes into the interview. At that point, Hinkley told defendant that he thought that defendant loved Wienski, but he did not want defendant to "bull****," and that he thought something else had happened. Although Hinkley did not raise his voice, he became increasingly more aggressive toward defendant:
Detective Hinkley : So, here's the deal. Whatever petty bull****, and it's probably petty bull****, we don't care, but you got to be up front with me, man.
* * *
Detective Hinkley : And let me be honest with ya. You know that I know a lot more than what I'm saying. Okay? I do. All right? I ain't gonna bull**** ya.... I don't think you did anything to her. But, dude, there's some things that you're not telling me or there's some things you're not telling me accurate. All I ask of you is be straight up with me. If it's petty bull****, I don't give a f*** about it. It can go in the wind. It can go in the wind. I don't give a s***.
Hinkley asserted that the police knew that defendant had been driving Wienski's car over the past few days, but defendant denied it. Hinkley said that he did not believe defendant, and the detectives had "been around the block 100 times." Hinkley also said that defendant had "been around the block" because he had been "in the system," referring to defendant's criminal history. The detectives continued to assert that defendant was being untruthful, even though he said he was "being straight up."
[Defendant ]: I don't have anything on my chest. That's just it. That's why I'm saying how can I help you? It's like you're trying to tell me I'm doing something or did something or know something. I don't want to do nothin' but try to help to get her back.
The detectives continued to disbelieve defendant and asked if defendant would pass a lie detector test. Defendant said that he would pass but that he would not take one because the detectives were "pointing fingers" at him. After approximately 1 hour and 14 minutes of questioning, defendant said, "Well, I think I need a lawyer now." Hinkley replied that defendant was not under arrest.
[Defendant ]: So, if that's the case, we can finish then?
Detective Hinkley : We can finish any time. But, what I'm saying to you is, here's the thing, you can finish any time you want. But, what I'm saying to you is ...
[Defendant ]: I don't want to not finish if it's going to hurt her, but I'm not gonna continue down this path.
At this point, Hinkley accused defendant of lying several times and told defendant to "man up." After an hour and 17 minutes, defendant said:
I don't like where this is going, with-it looks like I'm going to have to get a lawyer, because you guys are trying to put something on me and I'm not gonna say anything that would incriminate me for anything.
We concur with the trial court's conclusion that the accusatory nature of the questioning of defendant weighs in favor of a finding of custody. Tankleff , 135 F.3d at 244. The detectives interrogated defendant by asking questions and making statements that they knew were reasonably likely to elicit an incriminating response. See People v. White , 493 Mich. 187, 195, 828 N.W.2d 329 (2013). Defendant's statements make it clear that he did not think that he was at liberty to leave. He initially asked how he could help, but after defendant believed that the detectives were accusing him, he asked if they could finish. Seemingly, defendant asked the detectives if they were finished so he would get their permission to leave.
Clearly, Gandy considered defendant a suspect before meeting with him. Although not used as a basis for the trial court's findings, when the police first came upon defendant, they were searching Wienski's home, where defendant stated he resided, pursuant to a search warrant. Although the record is somewhat vague as to the time outline, it does appear that before defendant arrived at the home, Gandy had procured a search warrant of Wienski's home, in part, by naming defendant as a suspect who burned her car. Hence, before Gandy met defendant, he had already identified defendant as a suspect, a fact that may explain the nature and tenor of the questioning. While we acknowledge that Gandy's beliefs are relevant "only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her 'freedom of action,' " Stansbury , 511 U.S. at 325, 114 S.Ct. 1526, we conclude that the accusatory tone of the questioning would lead a reasonable person to perceive that they were not free to leave until the police approved their departure from the interview. Again, while recognizing that the subjective opinions of the officers do not bear on our determination of whether defendant was in custody, if the officers' views were "somehow manifested to the individual under interrogation[, those views] would have affected how a reasonable person in that position would perceive his or her freedom to leave." Id.
After reviewing the facts surrounding the statements by the police and defendant in their totality, we are not left with a definite and firm conviction that a mistake was made by the trial court's finding that a reasonable person would not believe they were at liberty to terminate the interview without incident, therefore, reasonably and objectively believing themselves to be in police custody. Coomer , 245 Mich. App. at 219, 627 N.W.2d 612.
4. PHYSICAL RESTRAINTS
There is no dispute that defendant was not initially handcuffed during the interview, and there is no dispute that he was handcuffed at minute 88 of the 90-minute interview for transport from the Calhoun County Sheriff's Department satellite office to the Mount Morris Township Police Department. Before he was handcuffed, defendant had not been formally placed under arrest by the Calhoun County detectives. Generally, the lack of handcuffs weighs against a finding of custody. See Mathiason , 429 U.S. at 495, 97 S.Ct. 711 ; Yarborough , 541 U.S. at 664, 124 S.Ct. 2140, and the trial court so found. However, after making this finding, the trial court found that there were other restraints present in this case. The trial court noted that defendant's having to ride to the police station in the back of a patrol car and being escorted into the police station by armed police officers were forms of restraint. Additionally, the trial court noted that defendant appeared to be in the presence of at least one armed police officer at all times. Finally, the trial court noted that after the tone of the interview became more heated, another officer told defendant that his police dog, which was present in the room, could "blow you right off your feet" if the officer "sen[t]" him. We examine each of these findings in order.
It is undisputed that defendant was driven to the satellite office in a police vehicle. As found by the trial court, this mode of transportation implies a physical restraint regardless of whether the prosecution's assertion that defendant voluntarily accepted the ride is accurate. No one unambiguously testified that defendant was "escorted" into the station. However, Mahan testified that he let defendant out of the backseat of his car at the station and that defendant "went inside the office with [the] detectives." Gandy testified that he and Hinkley brought defendant inside. There is no indication in the record that the detectives threatened defendant or brandished any weapons during the interview; however, Gandy testified that he and Hinkley were armed during the interview. In viewing the totality of the circumstances, riding to a police station in a marked vehicle, being walked in by armed detectives, and then being interviewed by armed police officers constituted physical restraints on defendant's freedom of movement, and a reasonable person would not feel at liberty to terminate the conversation and leave under such circumstances.
The prosecution asserts that the presence of the canine officer and police dog did not present any restraints on defendant's movement. Seemingly, Hinkley asked Sergeant Brad Hall to enter the office so that he could step out to speak to Gandy. Hinkley asked defendant if he cared about the police dog entering the room, and defendant responded, "No. I like dogs." Hall entered the room with the police dog. Defendant engaged in casual conversation with Hall regarding the police dog:
Sergeant [Hall ]: He's a good boy. He's pretty friendly.
[Defendant ]: I bet he has his moments where he isn't.
Sergeant [Hall ]: Oh, he'll blow you right off your feet if I send him.
[Defendant ]: Right. I bet.
Sergeant [Hall ]: Yeah. But, no, he's a good boy.
They continued to talk about the dog's toy, and how Hall used the dog for tracking. However, Hall then told defendant how important it was for defendant to tell the truth:
Sergeant [Hall ]: So, that's why it's really important. Sometimes people go all hardcore and whatever, and they-they wait until the very last second and it kind of makes 'em look really bad. So, it's best to-best to-to, I don't know, I guess you just want to make sure that-you seem like a really nice guy. You want to make sure that you're as truthful as possible because-because you know, it's going to be rough otherwise. You see what I mean?
[Defendant ]: Um-hum.
Sergeant [Hall ]: So, I don't know, that's just the only advice that I can give ya. It's always, always, no matter what situation you're in, it's always best to tell the truth. It's hard to stick with a lie.
After Gandy returned to the office and said that the Mount Morris Township Police Department wished to speak with defendant, Hall asked defendant if there was anything else that he wanted to say after their conversation. Hall said, "I know you got something else there. I can see it written all over your face." And he told defendant: "Just got to say-say the truth. Say what happened."
Some context to the conversation is important to note. The statement regarding the dog being able to "blow defendant off his feet" was made in response to a statement by defendant that the dog could really do some harm. After defendant made that statement, Hall told defendant that the dog would only do what he, Hall, told the dog to do. We cannot find anything from the tape or the transcripts which would lead us to conclude that the dog was placed in the room as a means of physical control over defendant. Additionally, under these limited facts, we cannot conclude that a reasonable person would believe that the dog was present in the room as a means of physical control. Accordingly, we reject the trial court's finding that the presence of the police dog imposed a physical restraint on defendant's freedom to move. Even if we were to conclude, as suggested by defendant's counsel, that the police brought the dog into the room because defendant was "soft on dogs," we cannot conclude that the dog in any manner imposed a restraint on defendant's freedom. However, we do conclude that the trial court did not clearly err by finding that other physical restraints were placed on defendant, the degree to which favors a finding that defendant was in custody.
5. RELEASE
In Mathiason , 429 U.S. at 495, 97 S.Ct. 711, the Supreme Court used the fact that the defendant was allowed to leave the police station at the end of the interview as one of the circumstances that led them to conclude that the defendant had not been in custody. In this case, at the end of defendant's interview, Gandy said that the Mount Morris Township Police Department wanted to talk to defendant, so at that time, Mahan handcuffed defendant and returned defendant to Mahan's patrol car for transport. After that, the following colloquy took place:
[Defendant ]: Am I under arrest?
Detective Gandy : We're transporting you to another department and that's going to be up to them. But, we can't transport you without being restrained, for safety reasons.
[Defendant ]: He said yeah, so I am being arrested?
Unidentified Speaker : I didn't say yeah.
[Defendant ]: I thought you said yeah.
Unidentified Speaker : I didn't say nothin' .
The prosecution argues that this factor weighs against a finding of custody because defendant was not arrested by the sheriff's department that conducted the interview. However, the prosecution also asserts that at the time of the handcuffs were placed on defendant, he was in custody for purposes of Miranda . Defendant was not released upon termination of the questioning but, rather, was placed in handcuffs and transported to another police department. Because defendant was not released at the end of questioning, this factor weighs in favor of a finding of custody. Yarborough , 541 U.S. at 664-665, 124 S.Ct. 2140 ; Mathiason , 429 U.S. at 495, 97 S.Ct. 711.
Given the totality of the circumstances surrounding these factors and this Court's review for clear error of the trial court's factual findings concerning the circumstances surrounding statements to the police, we are not left with a definite and firm conviction that a mistake has been made relative to the trial court's factual findings. Coomer , 245 Mich. App. at 219, 627 N.W.2d 612. Further, with regard to the issue of whether defendant was in custody at the time of his interrogation, based on our review of the totality of the circumstances, we concur with the trial court that a reasonable person in defendant's position would not have felt free to terminate the interview and leave. Fields , 565 U.S. at 509, 132 S.Ct. 1181 ; Cortez , 299 Mich. App. at 692, 832 N.W.2d 1. Accordingly, defendant was in "custody" at the time of his interrogation.
B. COERCIVE ENVIRONMENT
As our Supreme Court and the United States Supreme Court have stated, determining whether an individual's freedom of movement was curtailed is the first step in the analysis, not the last. Elliott , 494 Mich at 308, 833 N.W.2d 284 ; Fields , 565 U.S. at 509, 132 S.Ct. 1181. This point is best illustrated by the Supreme Court's ruling in Berkemer , 468 US 420. In Berkemer , the Supreme Court held that the roadside questioning of a motorist who was pulled over in a routine traffic stop did not constitute custodial interrogation.
Id . at 423, 441-442, 104 S.Ct. 3138. The Supreme Court held "that 'a traffic stop significantly curtails the "freedom of action" of the driver and the passengers,' and that it is generally 'a crime either to ignore a policeman's signal to stop one's car or, once having stopped, to drive away without permission.' " Fields , 565 U.S. at 510, 132 S.Ct. 1181, quoting Berkemer , 468 US at 436. "[F]ew motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so." Berkemer , 468 US at 436, 104 S.Ct. 3138. Nevertheless, the Supreme Court held that a person detained as a result of a traffic stop is not in Miranda custody because such detention does not "sufficiently impair [the detained person's] free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." Id . at 437, 104 S.Ct. 3138. Hence, the temporary and what the Supreme Court characterized as "relatively nonthreatening"
detention that follows a Terry stop was insufficient for a finding of custody under Miranda . Id. What follows then is the idea that not all restraints on an individual's freedom of movement are tantamount to custody for purposes of deciding whether a person has been subjected to custodial interrogation under Miranda . The often-quoted statement from Berkemer makes the point: "[The Supreme Court] ha[s] decline[d] to accord talismanic power" to the freedom-of-movement inquiry. Id. at 437, 104 S.Ct. 3138. In all such cases, a reviewing Court must ask the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda . Fields , 565 U.S. at 509, 132 S.Ct. 1181.
On Supreme Court remanded this case, instructing the trial court to consider its decision in Elliott , 494 Mich. 292, 833 N.W.2d 284 ; Barritt , 501 Mich. 872, 901 N.W.2d 859. In Elliott , Justice MARKMAN , writing for the majority, concluded that the defendant was not "in custody" for Miranda purposes. Elliott , 494 Mich. at 295-296, 833 N.W.2d 284. The defendant was incarcerated for a parole violation, and he was taken to the jail library by a deputy where he was questioned by a parole officer for 15 to 25 minutes. Id . at 299, 308, 833 N.W.2d 284. The defendant was not physically restrained, but he was never told that he was free to leave the meeting and return to his jail cell. Id . at 308, 309, 833 N.W.2d 284. On the basis of these facts, as well as other considerations, Justice MARKMAN concluded that the inherently coercive pressures present in Miranda were not present in Elliott . Id . at 311. The defendant was not questioned for an extended time by armed police officers using a sharp tone and profanity; rather, the parole officer visited the defendant as part of her job. Id . at 311-312. The defendant did not indicate that he did not want to speak to the parole officer. Id . at 312. Justice MARKMAN concluded that these circumstances were "hardly the sort of incommunicado, police-dominated atmosphere involving custodial interrogation and the 'overbearing' of the subject's will toward which Miranda was directed." Id . at 313, 833 N.W.2d 284.
We acknowledge that Gandy testified that, in his opinion, the police did not coerce defendant to talk. In fact, throughout the beginning of the interrogation video, defendant maintains a relaxed tone and posture, often laughing throughout the conversation. He lightheartedly told a story about Wienski's mom thinking that he had stolen one of her spoons on Thanksgiving. Defendant was asked what he wanted to drink, and he jokingly responded, "Beer. Coke." However, the subjective opinions of the officer aside, the facts as a whole demonstrate that the environment presented what the trial court correctly labeled as "the same inherently coercive pressures as the type of station house questioning at issue in Miranda ." Unlike the defendant in Elliott who was incarcerated, from the time the officers saw defendant at Wienski's home, he was always in the company of at least one armed officer. Defendant was on his front lawn when he was told by the police to get into the back of a police car. Defendant's dog had been forcibly removed from the home by animal-control officers, and he had no idea where the dog had been taken or how he would be able to secure the dog's return. He was not able to drive to the police station in the same car that brought him to the house, despite the fact that the police had told defendant's driver to drive to the very same police station. When the police car stopped, testimony indicated that armed detectives led defendant from the police car into the police station. Also, from the testimony of the officers and review of the video, we conclude that there was never a time when defendant was not being watched by an armed police officer. Defendant did not get to arrange the time of the interview, the place of the interview, or when the interview would conclude. Rather, defendant was told when he was being interviewed, where he was being interviewed, and the tenor of the interview. At the end of the interview defendant was handcuffed and placed in another police vehicle. In sum, defendant was never "free" to any significant degree. Rather, his freedom of movement, along with his choices, had been taken from him by police officers from the time he was told to get into the back of the patrol vehicle.
Hence, this is not a case in which defendant was already in police custody or incarcerated or one in which the defendant was allowed by the police to schedule a time or place for the interview or even select the mode of transportation to the interview. As alluded to in Elliott , it is difficult to imagine a setting other than prison in which an individual's freedom of movement is more controlled by outside factors. Defendant was not initially told he could leave or terminate the interview. Within a short time of being told he could end the interview at any time, defendant was handcuffed and placed inside another police vehicle for transportation to a different police station. The interview became increasingly accusatory as the detectives asserted that defendant was lying and that he did not tell them everything that he knew. The detectives asked defendant if he would pass a lie detector test, a statement indicative of psychological intimidation. An additional canine officer entered the room, again appealed to defendant's sense of honesty, and encouraged him to tell the truth. Taken together, these facts indicate a coercive environment. "Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated." Berkemer , 468 U.S. at 437, 104 S.Ct. 3138. Ultimately, it becomes apparent that this case is the type of situation that compels Miranda warnings be given.
Accordingly, we conclude that the trial court did not clearly err by finding that a reasonable person in defendant's position would have felt that he was not at liberty to terminate the interrogation and leave, and the environment presented the same coercive pressures as the type of station house questioning in Miranda . Therefore, defendant was "in custody," and his Fifth Amendment rights were violated when he was not advised of his Miranda rights.
Affirmed.
M. J. Kelly, J., concurred with Borrello, P.J.
People v. Barritt , unpublished order of the Court of Appeals, entered February 22, 2018 (Docket No. 341984).
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Although not specifically stated, it appears that Ron is referred to in the trial court's opinion by his last name, Greenway.
In reaching this conclusion, we reject the trial court's assertion that "[t]he average person that is summoned to a police station to talk with a detective would not feel comfortable leaving the station until the discussion was terminated by that detective." In this case, the trial court seems to infer that questioning a suspect in a police station, by itself, can provide a legal basis for a finding that a person is in custody. That conclusion runs afoul of Mathiason , and we therefore reject that portion of the trial court's analysis. Mathiason , 429 U.S. at 494, 97 S.Ct. 711.
Defendant told the detectives that he had been to court that day on a charge of possession of stolen property.
Although referred to as "Sergeant Brad" in the interview transcript, Mahan identified the canine officer as Brad Hall at the evidentiary hearing.
Our review of the audio recording leads us to believe that someone said "yeah" in response to defendant's question of whether he was under arrest.
Presuming an issue exists relative to whether defendant invoked his right to counsel, that issue was outside the scope of remand and was not considered by the trial court. Consequently, there is no record that would permit our review of the issue. Accordingly, we express no opinion as to whether, or when, defendant exercised his right for the presence of counsel.
Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). | [
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Per Curiam.
Defendant, Anthony Ray McFarlane, Jr., appeals by right his jury conviction of first-degree child abuse involving his then nine-week-old infant, KM. See MCL 750.136b(2). The trial court sentenced defendant to serve 15 to 25 years in prison for his conviction. On appeal, defendant raises several claims of error that he argues warrant a new trial or resentencing. For the reasons explained below, we affirm defendant's conviction but remand for resentencing.
I. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
Defendant first argues that the prosecution presented insufficient evidence to support his conviction of first-degree child abuse. This Court reviews a challenge to the sufficiency of the evidence by examining the "record evidence de novo in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v. Roper , 286 Mich. App. 77, 83, 777 N.W.2d 483 (2009). This Court must resolve all conflicts in the evidence in favor of the prosecution. See People v. Wilkens , 267 Mich. App. 728, 738, 705 N.W.2d 728 (2005).
B. ANALYSIS
To establish the elements of first-degree child abuse, the prosecution had to prove-in relevant part-that defendant "knowingly or intentionally cause[d] serious physical ... harm" to KM. MCL 750.136b(2). Serious physical harm means "any physical injury to a child that seriously impairs the child's health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut." MCL 750.136b(1)(f). Because the Legislature provided that the perpetrator must "knowingly or intentionally" cause the serious physical harm, it is not sufficient for the prosecution to prove that a defendant intended to commit the act that caused the physical harm; the prosecution must prove that the "defendant intended to cause serious physical harm or knew that serious physical harm would be caused by [his or] her act." People v. Maynor , 470 Mich. 289, 291, 683 N.W.2d 565 (2004).
In this case, the prosecution presented evidence that tended to suggest that defendant injured KM at some point on December 6, 2013, or early in the day on December 7, 2013.
KM's half-sister, KD, who was five years old on the day at issue, testified that she wanted defendant to play with her, but he wanted to play video games. After she began to cry, defendant became angry with her, punished her, and eventually spanked her. She said she went to her room but peeked into the living room when she heard KM crying. She saw defendant shaking KM.
Defendant suggests that KD's testimony was improbable because her timing was off and she failed to earlier disclose the shaking incident. When reviewing challenges to the sufficiency of the evidence, this Court must not interfere with the fact-finder's role in deciding the weight and credibility to give to a witness's testimony-"no matter how inconsistent or vague that testimony might be." People v. Mehall , 454 Mich. 1, 6, 557 N.W.2d 110 (1997) ; see also People v. Lemmon , 456 Mich. 625, 646-647, 576 N.W.2d 129 (1998). Rather, this Court must view the evidence in the light most favorable to the prosecution and uphold the verdict if a reasonable finder of fact could have found that the elements were proved beyond a reasonable doubt. See People v. Wolfe , 440 Mich. 508, 514-515, 489 N.W.2d 748 (1992), amended 441 Mich 1201 (1992). Therefore, we cannot disregard KD's testimony; instead, we must make every reasonable inference from her testimony in favor of the verdict. See id.
KD's testimony about the timing was not entirely clear. She did at first imply that the shaking incident occurred sometime immediately before defendant took her to his mother's house, which would have been early on Saturday, December 7, 2013. The children's mother, Dakota Chitwood, testified that KM was already showing signs of fussiness and pain by that time, and Chitwood was home and would likely have been in a position to witness the discipline had it occurred Saturday morning. However, KD later testified that the discipline occurred after she got home from school and before her mother got home from work. From KD's testimony a reasonable finder of fact could infer that the shaking incident occurred on Friday.
The prosecution also presented expert testimony that KM had several injuries. Sarah Brown, D.O., a child abuse pediatrician, testified that KM had blood in the "space between her brain and her skull"-the "subdural space." The bleeding was "all over both sides of her brain." She also had a suspected tibia fracture, and Brown stated that an ophthalmologist observed bleeding in the back of KM's eye, which was referred to as retinal hemorrhages. Brown stated that KM's injuries could have been caused by someone violently shaking KM or by throwing her onto a couch or other soft surface. Brown acknowledged that KM had had a prenatal stroke, which caused the left hemisphere of KM's brain to shrink substantially. But she opined that KM's subdural hematomas and retinal hemorrhages were not attributable to her stroke. There was also testimony that the latter injuries arose during the time frame set forth in KD's testimony. Thus, when Brown's testimony is considered with KD's testimony that she saw defendant shake KM, a jury could reasonably, infer that defendant violently shook KM and that his acts caused her to suffer the identified injuries.
Further, it does not matter that the finder of fact must make multiple inferences to establish these elements.
When considering the sufficiency of the evidence, this Court must consider the inferences that can be fairly drawn from the evidence, and "it does not matter that the evidence gives rise to multiple inferences or that an inference gives rise to further inferences." People v. Hardiman , 466 Mich. 417, 428, 646 N.W.2d 158 (2002). Finally, the Legislature specifically defined serious physical harm to include subdural hematoma. See MCL 750.136b(1)(f). Therefore, the prosecution presented sufficient evidence to establish defendant's identity as the person who inflicted an act that caused a serious physical injury to KM. See People v. Yost , 278 Mich. App. 341, 356, 749 N.W.2d 753 (2008) (noting that "identity is an element of every offense"). The only remaining issue is whether the prosecution presented sufficient evidence to establish that defendant intended to cause serious physical harm or knew that serious physical harm would result. See Maynor , 470 Mich. at 291, 295, 683 N.W.2d 565.
Because it is difficult to prove an actor's state of mind, the prosecution may rely on minimal circumstantial evidence to prove that the defendant had the required mental state. See People v. Unger , 278 Mich. App. 210, 223, 749 N.W.2d 272 (2008). The evidence that defendant shook KM and that his shaking caused her injuries was sufficient to establish that defendant acted intentionally and caused her serious physical harm. Brown further opined that the acts that caused KM's injuries had to be violent. There was expert opinion to the contrary, but this Court must resolve that dispute in the prosecution's favor. Wilkens , 267 Mich. App. at 738, 705 N.W.2d 728. A reasonable finder of fact could find Brown's testimony credible and find that defendant shook KM violently. It could then further infer from the violence of the act that he either intended to cause her serious injury or knew that it was likely to do so. See Unger , 278 Mich. App. at 223, 749 N.W.2d 272.
The prosecution presented sufficient evidence to permit a rational trier of fact to find that each element of first-degree child abuse had been proved beyond a reasonable doubt. See Roper , 286 Mich. App. at 83, 777 N.W.2d 483.
II. INVADING THE PROVINCE OF THE JURY
A. STANDARD OF REVIEW
Defendant next argues that the trial court erred when it allowed Brown to testify that she diagnosed KM with "definite pediatric physical abuse." He maintains that Brown's testimony amounted to an opinion that he was guilty. This Court generally reviews a trial court's decision to allow the admission of testimony for an abuse of discretion. See Roper , 286 Mich. App. at 90, 777 N.W.2d 483. However, it is an abuse of discretion to allow testimony that is inadmissible as a matter of law. See People v. Bynum , 496 Mich. 610, 623, 852 N.W.2d 570 (2014).
This Court reviews de novo whether the trial court properly interpreted and applied the rules of evidence. See People v. Duncan , 494 Mich. 713, 723, 835 N.W.2d 399 (2013). This Court also reviews de novo constitutional questions, People v Shafier , 483 Mich 205, 211; 768 NW2d 305 (2009), such as whether the trial court improperly allowed a witness to invade the province of the jury. Because defendant did not object to Brown's testimony on this basis before the trial court, this Court's review is limited to determining whether there was a plain error that affected defendant's substantial rights. See People v. Carines , 460 Mich. 750, 763, 597 N.W.2d 130 (1999). To establish plain error that warrants relief, the defendant must show that the error was plain or obvious and affected the outcome of the lower court proceedings. Id.
B. ANALYSIS
A trial court may permit testimony by a "witness qualified as an expert by knowledge, skill, experience, training, or education" if the court determines that "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue...." MRE 702. An expert may offer an opinion at trial if his or her testimony "is based on sufficient facts or data" if the testimony "is the product of reliable principles and methods," and if the witness "has applied the principles and methods reliably to the facts of the case." MRE 702. The trial court must also ensure that the expert's testimony is relevant. Bynum , 496 Mich. at 624, 852 N.W.2d 570. Even when an expert's testimony is relevant, it remains subject to the limits imposed by MRE 403. Id. at 635 n. 43, 852 N.W.2d 570.
This case required expert medical testimony because it was beyond the ken of ordinary persons to evaluate the medical evidence and assess the nature and extent of KM's injuries, the timing of those injuries, and the possible mechanisms of injury implicated by the medical evidence. See People v. Kowalski , 492 Mich. 106, 121-122, 821 N.W.2d 14 (2012) (opinion by MARY BETH KELLY , J.); id. at 152 ( MARKMAN , J., concurring in part and dissenting in part) (agreeing that proposed expert testimony must involve a matter beyond common understanding to be admissible under MRE 702 ). Moreover, if an expert's opinion is otherwise admissible, it does not become objectionable merely because "it embraces an ultimate issue to be decided by the trier of fact." MRE 704 ; see also People v. Smith , 425 Mich. 98, 106, 387 N.W.2d 814 (1986). Nevertheless, there are limits on an expert's authority to offer an opinion that embraces an ultimate issue:
Although the ultimate issue rule no longer stands in the way of expert testimony stating opinions on crucial questions to be decided by the trier of fact, it is important that the expert witness not be permitted to testify about the requirements of law which apply to the particular facts in the case or to phrase his opinion in terms of a legal conclusion. In the former case, the claim is that the province of the judge is invaded, while in the latter, the contention is that the province of the jury is invaded. [ People v. Drossart , 99 Mich. App. 66, 75, 297 N.W.2d 863 (1980).]
As our Supreme Court explained in People v. Peterson , 450 Mich. 349, 374, 537 N.W.2d 857 (1995), amended 450 Mich 1212 (1995), quoting People v. Beckley , 434 Mich. 691, 721-722, 456 N.W.2d 391 (1990) (opinion by BRICKLEY , J.), when a jury has been confronted with one of society's most heinous offenses, there is a significant danger that the jury will give extra weight to an expert's testimony:
"The use of expert testimony in the prosecution of criminal sexual conduct cases is not an ordinary situation. Given the nature of the offense and the terrible consequences of a miscalculation-the consequences when an individual, on many occasions a family member, is falsely accused of one of society's most heinous offenses, or, conversely, when one who commits such a crime would go unpunished and a possible reoccurrence of the act would go unprevented-appropriate safeguards are necessary. To a jury recognizing the awesome dilemma of whom to believe, an expert will often represent the only seemingly objective source, offering it a much sought-after hook on which to hang its hat ." [Emphasis added by Peterson .]
This case involved whether defendant intentionally injured KM by inflicting trauma to her brain. Because there was no external evidence of injury, her injuries involved a classic diagnosis of shaken-baby syndrome or abusive head trauma. See Sissoko v. State , 236 Md.App. 676, 717-725; 182 A.3d 874 (2018) (tracing the history of the "shaken baby" and "abusive head trauma" diagnoses from 1860 to the present and discussing at length the modern controversy surrounding the diagnoses). The American Academy of Pediatrics adopted the term "abusive head trauma" in 2009 and defined it to mean the "constellations of injuries that are caused by the directed application of force to an infant or young child, resulting in physical injury to the head and/or its contents." Id. at 720, 182 A.3d 874 (quotation marks and citations omitted). Thus, by definition, the diagnosis involves trauma caused by human agency, which the American Academy of Pediatrics labels abusive.
It remains the prevailing view in the medical community that there are "some internal findings that are highly correlated with abusive head trauma...." Id. at 722. In keeping with this view, a physician may employ a differential diagnosis and conclude that the child's injuries were the result of abusive head trauma :
[T]he consensus is that no single finding or combination of findings is pathognomonic for abusive head trauma. Rather, a differential diagnosis must be made based upon the totality of the circumstances in each individual case. A congruence of multiple findings, each of which independently correlates with abusive head trauma, narrows the field of potential diagnoses significantly, however, and absent a clinical history of accidental trauma or evidence of a disease process consistent with those findings, a diagnosis of abusive head trauma may be made. [ Id. at 723, 182 A.3d 874.]
A minority of physicians and other scientists have identified changes in the understanding of the biomechanics of shaking and evidence that subdural hematomas, retinal hemorrhages, and brain swelling are not unique to head trauma caused by human agency. For that reason, those physicians and scientists believe it is impossible to reliably conclude that a particular child's injuries were the result of inflicted trauma. Id. at 725, 182 A.3d 874. Although there is a debate about the reliability of such a diagnosis, courts continue to allow experts to offer the diagnosis on the ground that it is accepted and reliable. Id. at 726-728, 182 A.3d 874 (collecting cases that have generally upheld the admissibility of expert testimony opining that injuries of this nature were inflicted by human agency).
Our Supreme Court has recognized the debate within the medical community about the reliability of a diagnosis of shaken-baby syndrome or abusive head trauma. People v. Ackley , 497 Mich. 381, 391-392, 870 N.W.2d 858 (2015). It has not, however, considered whether there are any limits on an expert's ability to diagnose abusive head trauma. Still, it has provided general guidance on the limits of expert testimony in analogous circumstances.
As a result of the danger that a jury might give too much weight to an expert's opinion on a matter involving an ultimate issue, our Supreme Court has imposed strict limits on expert testimony that "comes too close" to findings that are left exclusively to the jury. Peterson , 450 Mich. at 374, 537 N.W.2d 857. For example, in cases involving criminal sexual conduct, an expert may not offer an opinion that the alleged victim had in fact been sexually abused, may not offer testimony that vouches for the victim's veracity, and may not offer an opinion that the defendant is guilty. See id. at 352, 537 N.W.2d 857. The same is true for expert testimony on "battered woman syndrome": the expert may not opine that the complainant was in fact a battered woman, may not testify that the defendant is guilty, and may not comment on the complainant's veracity. See People v. Christel , 449 Mich. 578, 580, 537 N.W.2d 194 (1995). Although an expert may be necessary to explain characteristics of gang culture, the expert may not offer an opinion that a particular gang member acted in conformity with character traits commonly associated with gang members and may not offer an opinion on the defendant's intent when he acted. See Bynum , 496 Mich. at 630-634, 852 N.W.2d 570.
It is necessary for an expert to testify about the types of injuries typically observed with head trauma in children and to describe the possible mechanisms of injury involved. See Kowalski , 492 Mich. at 121-122, 821 N.W.2d 14 (opinion by MARY BETH KELLY , J.); id . at 152 ( MARKMAN , J., concurring in part and dissenting in part). Further, unlike the case with a diagnosis of sexual assault based on the emotional state and statements of the complainant, see Smith , 425 Mich. at 112, 387 N.W.2d 814, a diagnosis that a child's head injuries were not accidental may be made on the basis of physical examination and scientific evidence rather than solely on the history provided by the complainant, see Sissoko , 236 Md. App. at 723, 182 A.3d 874. Accordingly, contrary to defendant's contention on appeal, a physician may properly offer an opinion that, when the medical evidence is considered along with the child's history, the child's injuries were inflicted rather than caused by accident or disease because a jury is unlikely to be able to assess the medical evidence. See Smith , 425 Mich. at 106, 387 N.W.2d 814 (recognizing that whether an expert is needed depends on whether an untrained layman would be qualified to determine the issue without the aid of an expert); Drossart , 99 Mich. App. at 79-82, 297 N.W.2d 863 (stating that the expert may not tell the jury how to decide the case, but may offer an opinion on an ultimate issue if the expert's experience and training is in an area that is largely unfamiliar to the jury). Expressing an opinion that the trauma was inflicted or not accidental does not impermissibly invade the province of the jury because the expert is not expressing an opinion regarding the defendant's guilt or whether the defendant had a culpable state of mind, which the expert may not do. See Bynum , 496 Mich. at 630-633, 852 N.W.2d 570 ; Peterson , 450 Mich. at 374, 537 N.W.2d 857 ; Christel , 449 Mich. at 580, 537 N.W.2d 194. Instead, the expert is interpreting the medical evidence and offering the opinion that the trauma was caused by human agency, and the jury is free to reject that opinion on the basis of the evidence adduced at trial, including a contrary opinion by another expert. See Drossart , 99 Mich. App. at 81, 297 N.W.2d 863.
Notwithstanding the propriety of a diagnosis of inflicted trauma, we conclude that in cases involving allegations of abuse, an expert goes too far when he or she diagnoses the injury as "abusive head trauma" or opines that the inflicted trauma amounted to child abuse. The ordinary understanding of the term "abuse"-as opposed to neglect or carelessness-implies a level of willfulness and moral culpability that implicates the defendant's intent or knowledge when performing the act that caused the head trauma. An expert may not offer an opinion on the intent or criminal responsibility of the accused. Bynum , 496 Mich. at 630-633, 852 N.W.2d 570.
Brown-who was admitted as an expert in child abuse pediatrics-testified generally about the nature of KM's condition and injuries. She described the possible mechanisms that could cause the injuries and then stated that KM's injuries were inflicted rather than accidental or the result of her preexisting condition. Brown did not limit her diagnosis to her belief that KM's injuries were best explained as inflicted or not accidental; she opined that this case involved a "definite case of abusive head trauma." It was also evident from her testimony that "abusive head trauma" meant child abuse. She repeatedly told the jury that KM's injuries were "caused by definite pediatric physical abuse," and she stated that "we know that abusive head trauma" causes these injuries because people confess to hospital staff and investigators or other family members after inflicting the injuries. She also agreed that KM had suffered previous abuse even though she was only nine weeks old. She further told the prosecutor that she was correct when the prosecutor noted that Brown looked at the totality of the circumstances before concluding that this case involved "child abuse."
Brown's testimony that KM's injuries were caused by "abusive head trauma" or otherwise amounted to "child abuse" strongly suggested that it was her opinion that whoever inflicted the injuries on KM did so with culpable state of mind; that is, her testimony plainly implicated whether defendant "knowingly or intentionally" caused serious physical harm to KM within the meaning of MCL 750.136b(2). Because Brown was in no better position than the jury to assess the intent that defendant had when he acted, her belief that his actions were abusive or amounted to child abuse were irrelevant and inadmissible as a matter of law. See Drossart , 99 Mich. App. at 79-80, 297 N.W.2d 863. Consequently, the trial court plainly erred to the extent that it allowed Brown to use the phrase "abusive head trauma" to label her diagnosis rather than a less prejudicial label, such as inflicted or nonaccidental head trauma, and erred by allowing her to agree that KM's injuries amounted to "child abuse." See Carines , 460 Mich. at 763, 597 N.W.2d 130. However, a plain error will not warrant relief unless the defendant demonstrates that the error affected the outcome of the lower court proceedings. See id.
Although Brown opined that KM's injuries were caused by definite pediatric physical abuse, she conceded that she could not say what actually happened to KM. She also testified that there were some people who felt that abusive head trauma was misdiagnosed. Moreover, defense counsel called three witnesses who testified that they did not agree with Brown's diagnosis: Julie Mack, M.D., who was a pediatric radiologist; Douglas Smith, M.D., who was a retired pathologist; and Joseph Sheller, M.D., who was a pediatric neurologist. The experts informed the jury that they did not believe that a medical professional could diagnose abuse. Mack testified that the medical records might give rise to a suspicion of abuse but opined that a medical professional cannot diagnose abuse. Smith also testified that the diagnoses of shaken-baby syndrome or abusive head trauma were founded on flawed studies and that there was great controversy over whether a medical professional could make such diagnoses. Sheller similarly testified that the presence of the symptoms seen in KM would cause a reasonable pediatrician to be concerned about the potential for abuse, but that a suspicion does not mean abuse actually occurred. Sheller stated that the symptoms at issue were not an absolute sign of abuse. Given this testimony, the jury was well aware of the limits on Brown's opinion. Any prejudice occasioned by her characterization of the acts was minimal.
Although the prosecutor mentioned in her closing argument that Brown had characterized the symptoms as having been caused by abuse, she did not argue that the jury should rely on Brown's opinion when deciding whether defendant had the requisite intent to establish first-degree child abuse. Instead, she argued that KD's account of events, the severity of the injuries, and defendant's subsequent actions tended to prove defendant's guilt.
There was evidence that KM became symptomatic while in defendant's care, and KD testified that she saw defendant shake KM at around that same time. The timing and eyewitness account permitted an inference that KM manifested her symptoms at that time because they were inflicted at that moment. A detective also reported that KD had reported that she had heard defendant yell "shut up" to KM. KD stated that defendant punished her when she cried at a time when he wanted to play video games. The evidence tended to suggest that defendant could become angry and frustrated by crying children. Brown also testified that KM's injuries were consistent with having been violently shaken. There was also testimony that defendant warned KD not to tell anyone and threatened to come after a neighbor if she or her husband said anything wrong about his statements to investigators. Defendant's statements suggest that he was conscious of his guilt. See People v. Sholl , 453 Mich. 730, 740, 556 N.W.2d 851 (1996).
The totality of the evidence strongly supported that defendant became angry with KM, violently shook her out of frustration, and caused the injuries at issue. Given the strength of the evidence, to the extent that the trial court plainly erred by allowing Brown to use the labels "abusive head trauma" or "child abuse," we find it unlikely that the error affected the outcome of the trial. See Carines , 460 Mich. at 763, 597 N.W.2d 130. Therefore, the error does not warrant relief. Id .
C. INEFFECTIVE ASSISTANCE
Defendant also argues that defense counsel's failure to object to Brown's testimony amounted to ineffective assistance. Because the trial court did not hold an evidentiary hearing on defendant's claim that he did not receive the effective assistance of counsel, there are no factual findings to which this Court must defer, and this Court's review is for mistakes that are apparent on the record alone. Unger , 278 Mich. App. at 253, 749 N.W.2d 272. This Court reviews de novo whether defense counsel's acts or omissions fell below an objective standard of reasonableness under prevailing professional norms and whether, without the error, the result of the proceedings would have been different. Yost , 278 Mich. App. at 387, 749 N.W.2d 753. Counsel has wide discretion in matters of trial strategy, and a defendant must overcome a strong presumption that defense counsel represented him competently. Unger , 278 Mich. App. at 242, 749 N.W.2d 272.
In his closing argument, defense counsel portrayed Brown as biased and untrustworthy. He argued to the jury that Brown's testimony was flawed and that she ignored important medical details and discounted evidence that led to a contrary diagnosis because she wanted to "sustain her beliefs." He also stated that Brown's testimony was nothing more than "her opinion," which could not be trusted because she deliberately left out information.
Given defense counsel's argument, he might reasonably have refrained from objecting to Brown's diagnosis of abusive head trauma and her references to abuse because her claim that she could diagnose child abuse furthered his argument that she was partial and not worthy of credibility. Because there was a plausible and legitimate strategic reason for defense counsel's decision not to object, it cannot be said that the failure to object fell below an objective standard of reasonableness under prevailing professional norms. See id. Additionally, as already explained, it is unlikely that that Brown's use of the label "abusive head trauma" affected the outcome of the trial. Accordingly, even if defense counsel should have objected, his failure to do so does not amount to ineffective assistance that warrants a new trial. See id.
Defendant has not established plain error or ineffective assistance that warrants a new trial.
III. EVIDENCE OF TIBIA FRACTURE
On appeal, defendant argues that defense counsel should have objected to the evidence regarding a possible tibia fracture that KM may have had. He states that the testimony constituted improper other-acts evidence barred by MRE 404(b) and maintains that defense counsel's failure to object to the admission of the evidence amounted to ineffective assistance of counsel. Although defendant states that the testimony was inadmissible, he has not offered any substantive analysis of the evidence at issue. He also implies that the prosecutor's use of the evidence in closing was improper, but again he has not offered any meaningful analysis. To the extent that defendant might be arguing that the trial court plainly erred by allowing the evidence or that the prosecutor engaged in misconduct by arguing the evidence, defendant has abandoned those claims on appeal. See People v. Martin , 271 Mich. App. 280, 315, 721 N.W.2d 815 (2006). For that reason, we limit our analysis to determining whether defendant has established that defense counsel's handling of this testimony and evidence amounted to ineffective assistance.
At trial, Brown testified that she examined KM's x-rays from her admission to Bronson Hospital and had some concern. She ordered a new bone survey on December 17, 2013. She testified that the new bone survey revealed that KM had a spiral tibia fracture. Although she acknowledged that the report from Bronson stated that KM's bone survey was normal, Brown stated that she recalled from memory that a physician from Bronson diagnosed KM with two fractures, but she could not forensically confirm one fracture. Brown did not otherwise offer any opinion as to when or how the fracture occurred. The prosecution rested after Brown's testimony.
The defense experts thereafter disagreed about whether the x-rays showed a fracture. Mack testified that the x-rays did not reveal a fracture and that even if she were to hypothesize that the films showed a fracture, she would have concluded that the fracture was "weeks old" by the time of the x-rays. Smith did not offer an opinion on the x-rays other than to observe that the interpretations were inconsistent and depended on evidence of a periosteal reaction that was normally found in children who are growing because the periosteum was an active tissue that helps shape the bone during growth. Sheller, by contrast, agreed that the images showed a fracture, but he disregarded it in his opinion because it occurred before the date of the injuries at issue and was for that reason not relevant to his diagnosis.
The evidence that KM might have suffered a fracture at some point before the events at issue was inadmissible under MRE 402, which prohibits the admission of irrelevant evidence. In the absence of evidence connecting the fracture to defendant, it did not have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. Indeed, without evidence from which a jury could reasonably find that KM suffered the injury while under defendant's care and that the nature of the injury was consistent with having been inflicted by human agency, the evidence was not even relevant to prove conduct in conformity with character, which would ordinarily be improper under MRE 404(b). See People v. VanderVliet , 444 Mich. 52, 68 & n. 20, 508 N.W.2d 114 (1993) (recognizing that, under MRE 104(a), the trial court must make a preliminary determination that a jury could reasonably find that the defendant committed the other act by a preponderance of the evidence before allowing the admission of the other-acts evidence for a proper purpose). Even to the extent that the evidence might be admissible because Brown relied on it as a component of her differential diagnosis of abusive head trauma, the evidence was likely inadmissible under MRE 403 because it invited speculation by the jury, and the danger of unfair prejudice outweighed whatever marginal relevance the evidence might have had for purposes of the diagnosis. Nevertheless, even though this evidence was likely inadmissible, it does not follow that defense counsel provided ineffective assistance by failing to object to its admission.
As already discussed, this Court must affirmatively entertain the range of possible reasons that defense counsel might not have objected. See Unger , 278 Mich. App. at 242, 749 N.W.2d 272. Defendant must overcome the strong presumption that trial counsel's strategy was reasonable. Id.
In this case, the evidence of a tibia fracture was weak, and defense counsel elicited expert testimony that the evidence did not show a fracture or that the fracture was irrelevant to the diagnosis of the symptoms KM exhibited on the day at issue. The one defense expert who acknowledged the fracture stated that that type of fracture could have an innocent origin. Defense counsel also used the inconsistent and weak evidence of a fracture to challenge the credibility of the prosecution's experts. He suggested that the images that showed there was no fracture were deliberately excluded because it did not fit the prosecution's theory of the case.
On this record, it appears that defense counsel had a legitimate strategic reason for not objecting to testimony about the fracture: he had strong evidence to contradict the evidence, and it allowed him to challenge the credibility of the prosecution's experts. Defendant has not overcome the presumption that counsel employed sound trial strategy. See id.
IV. OFFENSE VARIABLES 3 AND 7
A. STANDARD OF REVIEW
Defendant next argues the evidence did not show that KM's injuries were life-threatening or permanent, or that he treated her with sadism, torture, excessive brutality, or conduct designed to substantially increase her fear and anxiety. Accordingly, he maintains, the trial court erred when it assigned 25 points under Offense Variable (OV) 3 and assigned 50 points under OV 7.
This Court reviews for clear error a trial court's findings in support of particular score under the sentencing guidelines but reviews de novo whether the trial court properly interpreted and applied the sentencing guidelines to the findings. People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013).
B. ANALYSIS
"When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a [presentence investigation report (PSIR) ], plea admissions, and testimony presented at a preliminary examination."
People v. McChester , 310 Mich. App. 354, 358, 873 N.W.2d 646 (2015). It may also consider a victim impact statement in a PSIR or other statement or letter submitted to the court for consideration on sentencing. See, e.g., People v. Earl , 297 Mich. App. 104, 109-110, 822 N.W.2d 271 (2012). Further, the trial court may rely on inferences that arise from the record evidence when making the findings underlying its scoring of offense variables. Id. at 109, 822 N.W.2d 271.
A trial court must assess 25 points under OV 3 if it finds that "[l]ife threatening or permanent incapacitating injury occurred to a victim." MCL 777.33(1)(c). The trial court found that a score of 25 points was appropriate for OV 3. The trial court mentioned the possibility that the leg fracture might be permanently incapacitating but then indicated that there was not enough testimony to know whether the leg fracture or other injuries would amount to incapacitating injuries. Nevertheless, it found that there were permanently incapacitating injuries to the brain and that the injury to the brain was potentially life-threatening.
To the extent that the trial court found that defendant's actions caused a permanent incapacitating injury to KM, we find it clearly erred. See Hardy , 494 Mich. at 438, 835 N.W.2d 340. There was no expert testimony about the long-term effects of the injury to KM's brain caused by her subdural hematomas. The prosecution's own expert, Brown, testified that she did not think they would "ever know if she's having neurological problems" as a result of the injuries she sustained on the day at issue because it "would be very difficult to figure out" whether the effects were from her "prenatal stroke" or from her head injury. She also opined that there would be no long-term effects from the tibia fracture or from her retinal hemorrhage. Nevertheless, there was evidence that KM's injuries were life-threatening.
The record shows that KM had significant subdural bleeding, repeated seizures, and retinal hemorrhage and that these injuries were severe enough that the treating physicians at the hospital where she first reported had her airlifted to a larger hospital. Accordingly, the trial court did not clearly err when it found that KM's injuries were life-threatening and assigned 25 points under OV 3. See MCL 777.33(1)(c).
The trial court also found that defendant used excessive brutality in the commission of the offense. Specifically, it noted the leg fractures and the extent of KM's brain injuries. For that reason, it assigned 50 points under OV 7.
The trial court had to assess 50 points under OV 7 if it found that that a "victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense." MCL 777.37(1)(a). Because the Legislature provided that the brutality must be-in relevant part-excessive, the trial court could only assign 50 points if it found that the abuse involved in this case exceeded the brutality that normally encompasses first-degree child abuse. See Hardy , 494 Mich. at 442-443, 835 N.W.2d 340 (noting that a trial court may normally consider conduct inherent in the crime, but holding that the Legislature's use of the phrase "designed to substantially increase fear" required a showing that the actor engaged in conduct to increase the victim's fear beyond that normally involved in the crime); People v. Steanhouse (On Remand) , 322 Mich. App. 233, 240, 911 N.W.2d 253 (2017) (stating that excessive brutality requires savagery beyond that usual for the crime). The trial court clearly erred to the extent that it relied on the evidence of a leg fracture in scoring this variable. Even if the trial court found that KM actually suffered a leg fracture, as already discussed, there was no record evidence tending to connect defendant to the fracture. And the jury specifically found that the injury that defendant caused was "abusive head trauma."
However, the trial court did not clearly err to the extent that it found that KM was subjected to excessive brutality in the commission of the first-degree child abuse. To be guilty of the charge, defendant had to cause serious physical harm to KM, see MCL 750.136b(2), which means "any physical injury to a child that seriously impairs the child's health or physical well-being," MCL 750.136b(1)(f). Although serious physical harm necessarily includes subdural hemorrhages, a person can commit first-degree child abuse without causing such an injury. And in this case, there was evidence-albeit disputed-that defendant had to have violently shaken or thrown KM to cause the subdural hematomas and other injuries. The severity of the injuries supported a finding that KM was treated with brutality in excess of that which necessarily accompanies the commission of first-degree child abuse. See MCL 777.37(1)(a).
The trial court did not err when it scored OV 3 and OV 7.
V. CLAIMS SUBMITTED UNDER STANDARD 4
Finally, defendant submitted a brief on his own behalf under Administrative Order No. 2004-6, Standard 4, 471 Mich. c, cii (2004), in which he raised numerous claims of errors. Defendant did not raise any of the claims before the trial court. Therefore, they are all unpreserved. See People v. Bass , 317 Mich. App. 241, 272, 893 N.W.2d 140 (2016). We review unpreserved claims of error for plain error that affected defendant's substantial rights. Carines , 460 Mich. at 763, 597 N.W.2d 130. To establish a plain error that warrants relief, a defendant must show that the error was plain or obvious and affected the outcome of the lower court proceedings. Id. To the extent that defendant also argues that his trial and appellate counsel provided ineffective assistance, the trial court did not hold an evidentiary hearing. Therefore, this Court's review is limited to mistakes apparent on the record alone. Unger , 278 Mich. App. at 253, 749 N.W.2d 272.
Defendant argues that the trial court erred by relying on inadmissible evidence to score the sentencing variables. A sentencing hearing is not a criminal trial, and many of the constitutional requirements for criminal trials do not apply to sentencing. For example, the rules of evidence do not apply to sentencing. See People v. Uphaus (On Remand) , 278 Mich. App. 174, 183-184, 748 N.W.2d 899 (2008) ; MRE 1101(b)(3). As a result, the trial court could properly rely on any and all record evidence in sentencing defendant, including the contents of his presentence investigation report. See McChester , 310 Mich. App. at 358, 873 N.W.2d 646.
Defendant also maintains that the trial court erred by making judicial fact-findings, and he claims that he is entitled to a remand for a hearing as described in People v. Lockridge , 498 Mich. 358, 398-399, 870 N.W.2d 502 (2015). The trial court sentenced defendant under the now advisory sentencing guidelines. Id . at 399, 870 N.W.2d 502. For that reason, it could make findings of fact not found by the jury without violating his rights under the Sixth Amendment. See People v. Biddles , 316 Mich. App. 148, 158-161, 896 N.W.2d 461 (2016). Further, defendant necessarily does not qualify for a remand hearing because those procedures apply only to sentences imposed on or before July 29, 2015. See Lockridge , 498 Mich. at 397, 870 N.W.2d 502.
Defendant next argues that the trial court erred when it scored OV 10 and OV 13. He claims that there was no evidence to support either score. With regard to OV 10, he also states that victim vulnerability is necessarily subsumed within the offense of child abuse and, for that reason, should not be scored.
The trial court had to assess 10 points under OV 10 if it found that defendant "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 fact that the offense of first-degree child abuse applies to children, see MCL 750.136b(1)(a), does not mean that the trial court may not consider the victim's youth for purposes of scoring OV 10; it should unless the Legislature provided otherwise. See Hardy , 494 Mich. at 441-442, 835 N.W.2d 340. The Legislature did not provide that MCL 777.40(1)(b) does not apply to crimes against children. Accordingly, the trial court could properly consider KM's youthfulness for purposes of scoring OV 10. There was record evidence permitting an inference that defendant violently shook or threw KM when she was just nine weeks of age. That evidence supported a score of 10 points under MCL 777.40.
As for OV 13, the trial court had to assign 25 points under that variable if it found that defendant's offense was part of a "pattern of felonious criminal activity involving 3 or more crimes against a person." MCL 777.43(1)(c). The trial court must count all crimes that occurred within a five-year period, which includes the sentencing offense; further, the court must count all offenses even if the offense did not result in a conviction. MCL 777.43(2)(a). As noted in defendant's PSIR, he was on bond for felonious assault when he committed the present offense, which, when counted with the sentencing offense, constituted two offenses against a person. The trial court did not make any specific findings with regard to a third felony offense, so it is unclear how it arrived at the score of 25 points for this OV. On this record, the trial court clearly erred to the extent that it found that defendant had committed three felony offenses against a person within the past five years. See Hardy , 494 Mich. at 438, 835 N.W.2d 340.
The trial court calculated defendant's total OV score to be 110, which placed him in cell VI/C of the resentencing grid with a minimum sentence range of 135 to 225 months. See MCL 777.62. After subtracting 25 points, the new score would place him in cell V/C and the new range would be 126 to 210 months. MCL 777.62. The trial court sentenced defendant to serve a minimum sentence of 180 months in prison, which was within the range provided under cell V/C. Because the error was not preserved for appellate review, defendant cannot show that he is entitled to be resentenced unless he does so through a claim of ineffective assistance of counsel during sentencing. See People v. Francisco , 474 Mich. 82, 89 & n. 8, 711 N.W.2d 44 (2006). On appeal, defendant asserts that his trial counsel was ineffective to the extent that he failed to raise any of the errors he now asserts on appeal. Had defense counsel raised this issue at sentencing, the trial court would have had to recalculate the total OV score and sentence within the appropriate range. Therefore, defendant has established that defense counsel's failure to raise this claim at sentencing fell below an objective standard of reasonableness and prejudiced his sentencing. See Yost , 278 Mich. App. at 387, 749 N.W.2d 753. Accordingly, on this record, we agree that defendant is entitled to resentencing with zero points assessed under OV 13. See Francisco , 474 Mich. at 92, 711 N.W.2d 44.
Defendant also asserts that his sentence was not proportionate and amounted to cruel and unusual punishment. Because defendant's sentence was within the range provided under the advisory sentencing guidelines, his sentence was "presumptively proportionate, and a proportionate sentence is not cruel or unusual." People v. Bowling , 299 Mich. App. 552, 558, 830 N.W.2d 800 (2013). To overcome the presumption, defendant had to show that there was something unusual about the circumstances of his case that made the sentence disproportionate. Id . He has not identified any unusual circumstances beyond arguing that his sentence was invalid as a result of flaws in his trial and sentencing. In any event, defendant can raise this issue before the trial court on remand for resentencing.
Defendant also suggests that the trial court erred when it allowed KD to testify by video in violation of his right to confront the witnesses against him. Defense counsel, however, told the trial court that he had agreed with the prosecutor to allow certain witnesses-lay and expert-to testify via electronic communications. Moreover, defense counsel agreed that one of the witnesses was the mother of KM and KD, Chitwood, who had relocated out of state and was having transportation difficulties. So, he had to have understood that the child witness would also be testifying by video. By agreeing that the witnesses could testify by "any means that is available to allow them to testify," defense counsel waived any claim of error with regard to that procedure. See People v. Carter , 462 Mich. 206, 215, 612 N.W.2d 144 (2000). See also People v. Buie , 491 Mich. 294, 315, 817 N.W.2d 33 (2012) ("[I]f the decision constitutes reasonable trial strategy, which is presumed, the right of confrontation may be waived by defense counsel as long as the defendant does not object on the record.").
Defendant also asserts that the trial court erred when it allowed Brown to testify because she was biased, her opinion was not premised on sound science, and she was improperly allowed to offer an opinion on defendant's guilt. As already discussed, although there is disagreement within the medical community about the diagnosis of abusive head trauma, Brown could offer an opinion as to whether KM's injuries were inflicted by human agency. Further, while Brown's use of the term "abusive" to describe the head trauma may have been improper, that error did not warrant relief. Finally, whether Brown held a personal or professional bias was a proper subject for cross-examination; it was not grounds to preclude her from testifying. See People v. Layher , 464 Mich. 756, 764, 631 N.W.2d 281 (2001) (noting that "evidence of bias is 'almost always relevant' ") (citation omitted).
VI. CONCLUSION
We affirm but remand for resentencing consistent with this opinion. We do not retain jurisdiction.
Murray, C.J., and Markey and Tukel, JJ., concurred.
MRE 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Because we have concluded that defendant's remaining claims were without merit, defense and appellate counsel cannot be faulted for failing to raise those claims. See People v. Riley , 468 Mich. 135, 142, 659 N.W.2d 611 (2003). | [
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Cameron, J.
In this interlocutory appeal from a child protective hearing, respondent-father appeals a dispositional order that prohibits him from residing in the family home with his wife and four children. Respondent came under the jurisdiction of the court for assaulting an unrelated toddler for whom his wife was babysitting. After respondent completed court-ordered services, petitioner, the Department of Health and Human Services (DHHS), had recommended to the trial court over the course of a year that respondent be allowed to return to the home. The assistant prosecuting attorney (APA) representing DHHS disagreed and urged the trial court to continue only supervised visitation. The trial court repeatedly denied DHHS' requests for reunification, concluding that respondent's failure to accept responsibility for assaulting the toddler precluded him from returning to the family home and having unsupervised visitation with his children. On appeal, respondent argues that the trial court violated his Fifth Amendment right against self-incrimination when it conditioned reunification on respondent's admission to abusing an unrelated toddler. We agree that the trial court committed error and, therefore, vacate and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Respondent and his wife have four children. On occasion, respondent's wife would babysit an unrelated toddler. In November 2016, the toddler suffered a seizure, and thereafter often screamed and cried while he was in respondent's home. On February 9, 2017, respondent's wife was babysitting the toddler. Late in the afternoon, respondent's wife left to pick up food for dinner, leaving the toddler with respondent. When respondent's wife returned, the toddler was unresponsive. Respondent's wife called 911, and the emergency responders believed the toddler suffered a seizure. The toddler was transported to the hospital where the physicians discovered a large, life-threatening skull fracture. The physicians determined that the fracture was nonaccidental and occurred close to the time the toddler was admitted to the hospital. The toddler survived the fracture, but his physician expects significant long-term physical and cognitive deficits.
The day after the toddler was taken to the hospital, DHHS filed a child protective petition against both respondent and his wife. The trial court authorized the petition but allowed the four children to stay with their parents in the home. However, after a custody review hearing, the trial court removed the children from the family home and authorized supervised parenting time. The parents then requested an additional custody review hearing. The trial court held the additional custody review hearing and released the children to the parents.
DHHS filed a second, final amended petition on April 7, 2017. DHHS did not seek termination of petitioner's parental rights, but instead requested that the children be temporarily removed from the home.
In June 2017, the trial court held a multiday adjudicative bench trial. At the trial, respondent was informed of his right against self-incrimination, but he chose to waive that right and testified. Respondent maintained his innocence throughout the examination, claiming he did not know how the toddler sustained the skull fracture. At the close of the trial, the trial court found that respondent fractured the toddler's skull, concluded that the court had jurisdiction over the children, and ordered respondent to leave the family home and have no contact with his children other than supervised visits. As to respondent's wife, the trial court found that she was not responsible for the toddler's injuries and was thus a nonrespondent.
Respondent then began a court-ordered service plan designed to address his issues and to allow him to move back into the family home and have unsupervised visitation with his children. In late June 2017, respondent began weekly counseling sessions with a therapist. Shortly thereafter, he had a psychological evaluation. The evaluator noted that respondent may have passive-aggressive traits and other related traits such as "a pattern of passive resistance, opposition, stubbornness, failure to engage in direct communication, blaming others, feigning compliance, and a negative disposition." The evaluator stated that there was no information to assess whether respondent had fractured the toddler's skull, but noted that there were no reports that he had ever abused his own children. The evaluator concluded, "This clinician cannot reflect on any compelling reasons why [respondent] should not be able to return home."
In July 2017, a dispositional review hearing was held, and a DHHS foster care worker updated the trial court on respondent's progress. According to her, the only barrier to respondent's return to the family home was the completion of court-ordered services. By this time, respondent had completed a psychological evaluation, a counselor had been assigned, and respondent was scheduled to begin trauma-based therapy and a parenting class, and respondent was made aware that additional services could be added depending on the results of his psychological evaluation. The parties all agreed, including the APA, that respondent "appear[ed] to be off to a compliant start." However, before setting the date for the next dispositional hearing, the trial court expressed doubt that the outstanding psychological report, or any other evidence for that matter, could support reunification:
I don't know a good way forward, quite honestly, because the findings that I was required to make by the evidence that was presented was that, [respondent] brutally beat another child.... So, it's going to take a lot for me to be convinced that he ought to have any unsupervised time with his children, or any other children, quite honestly, because of the nature of the beating, and what occurred to this other boy.... And so-and I don't know what treat-I don't know what treatment there is.
In September 2017, DHHS submitted a written report to the trial court to be considered before the next dispositional review hearing. In the report, DHHS indicated that respondent and his wife had been cooperative and that their four children were doing well, although some of the children were having adjustment issues relating to respondent's removal from the family home. The supervisor of the parental visits reported no concerns and indicated that respondent was "fully engaged and interacts well with the children." DHHS recommended that the trial court maintain jurisdiction and that respondent be permitted to return to reside in the family home without supervised visitation.
In October 2017, the trial court held another dispositional review hearing. At that hearing, the DHHS foster care worker reiterated that there were no concerns about respondent returning to his family while continuing his private counseling. After testimony concluded, the APA stated he was "[not] comfortable endorsing the suggestion of foster care, that-that dad go home at this time" because he was concerned that the severity of the toddler's injuries, coupled with the psychological report, raised "a lot of red flags" and there was no written evidence to suggest "that those red flags [were] being addressed in therapy." Respondent's attorney responded that his client had complied with all court ordered services and that he was "not sure what else we need to do to get [respondent] back in the home." The trial court rejected DHHS' reunification recommendation and expressed dissatisfaction "with how this has been overseen by the [DHHS] caseworker." The trial court ordered respondent's therapist to appear at the next dispositional review hearing to explain her recommendation that respondent be allowed to return back to the home. Further, the trial court expressed disbelief that the therapist and DHHS were recommending reunification when respondent had not even admitted to his therapist that he assaulted the toddler:
And, you know, ten therapy sessions later, don't [sic] change the fact-especially in a situation where this-the-the father is not, he's not taking any responsibility for any of this. Matter of fact, it's everybody else's fault. It's not his fault. So how do you change your behavior? How do you have insight without any acknowledgment that you did anything wrong ?
... The ten therapy sessions have done no good. There's no more insight. [Emphasis added.]
The trial court then questioned whether the therapist even considered how respondent's claim of innocence might interfere with respondent's therapy: "There's no indication the therapist had analyzed anything in terms of his responses to the types of things there [sic] working on. Whether he's taking accountability, responsibility, and he knows what things and tools he needs to do to change his behavior." The trial court concluded the hearing, stating: "The fact[ ] in this case is that [respondent] fractured the skull of a young, special needs child. And he's staying out of the house because I'm not having him do that again."
Before a December dispositional review hearing, DHHS provided the trial court with an updated dispositional review report, stating that there were no safety concerns during respondent's supervised visits with his children and that he had "exhibited positive communication, appropriate discipline techniques, and positive parenting techniques." DHHS reiterated its recommendation that respondent be allowed to return to the family home. Respondent's court-ordered therapist, Cynthia Swartz, also submitted a letter to the trial court affirming respondent's progress and explaining that respondent's primary diagnosis was Adjustment Disorder. She stated that respondent had been cooperative and concluded her letter by stating, "In summary, I would echo [the psychological evaluator's] recommendation by saying that I can find no compelling reason why [respondent] should not be able to return home; and in fact, suggest that his absence has become a hardship for his family."
At the December 2017 dispositional review hearing, Swartz and the DHHS foster care worker defended their recommendation to allow respondent's return to the family home. The APA challenged both Swartz and the DHHS worker regarding their recommendations. The DHHS worker acknowledged to the court that the toddler's injuries were serious and that the trial court had concluded that respondent was found legally responsible for those injuries. She further acknowledged that respondent had not admitted to injuring the toddler. The APA then questioned the DHHS worker as to how she could recommend respondent's return to the family home under those circumstances. The DHHS worker explained that respondent was working toward addressing any anger, parenting, or other underlying issues, and neither DHHS nor Swartz had identified any safety concerns that should prevent respondent from returning home and continuing DHHS services.
During the APA's brief cross-examination, Swartz also was pressed about whether respondent had made any admissions during his therapy sessions and how she could conclude that respondent was benefiting from counseling if "we haven't identified that he did anything wrong." Like the DHHS worker, Swartz acknowledged that respondent had not admitted responsibility for the toddler's injuries. The trial court then interrupted questioning and the following exchange occurred:
The Court : Generally when I benefit from therapy it's because I recognize that there's something that I've done wrong or something that I'm not doing appropriately or something that I need to improve upon and then I focus on those things and I act accordingly and change my behavior. Is that the purpose of therapy?
[Swartz ]: Sure. I would say how to handle things in life that are not going the way you maybe expected that they would go.
The Court : Right, like a kid crying all day.
[Swartz ]: Sure.
The Court : All right. The outcome for him under this court's ruling on medical information, trial that I held, indicates that he handled that in a brief moment in time by giving this kid a skull fracture. How that happened I don't know. I just know that he did it, that's what I conclude, all right? So, given that reality ..., without acknowledging your responsibility for that behavior, how are you going to avoid engaging in that behavior in the future if you don't acknowledge that you did something wrong?
[Swartz ]: Do you want me to give you my hypothesis on this? ... [W]e have not talked about [the toddler]. So, what I have observed however is deep empathy and understanding love, engagement with his own children and, you know, a desire to be a good parent for them. So, I feel like that, along with the history of his parenting with his children is an indication that he would continue in that way.
The Court : I find it to be rather shocking, quite honestly, that [the toddler] hasn't been talked about.
[Swartz ]: We've talked about it in the terms of his-he claims that that was not the case and, you know, if you like excuses but you were wrong in that-
The Court : Right.
[Swartz ]: -so, yeah, and there is empathy for the injury for [the toddler] but no ... admission that he did it. I've been doing it long enough that I feel like our relationship is good enough that if there was an admission to that, he would have said that to me but ... I'm not a mind reader and I can't say whatever but-so I think from his perspective ... the frustration is having been accused of something that he didn't do and how do you deal with that ... and show that he is a good parent and be trusted with his children.
At the close of the hearing, the children's lawyer-guardian ad litem stated that she had changed her position and that respondent should not return to the home. The APA, despite the DHHS recommendation, also argued that respondent should not be allowed to return home. In response, respondent's counsel argued that the trial court should allow respondent to return home and raised the following concern:
[I]t's problematic to be asking a parent to incriminate himself in order to allow him to get his kids back in his care because then we're just inviting I guess criminal charges. So ... I think that's a legal issue and certainly [respondent] at least would not be advised by me to make such an admission, at least at this point in time.
The trial court then summarized its ruling as follows:
I didn't sit through a trial for no reason. I didn't make these findings for no reason. I haven't heard anything that would change the court's conclusion.... [W]hether or not your client has legal implications from addressing what I consider him to be in denial about-that's of no import to me. It doesn't matter to me whether you, you know, parents come to court many times and say your Honor I'm going to assert my [F]ifth [A]mendment rights against self-incrimination because I don't want to testify because, ah, I'm under threat of criminal prosecution. Well, that's a choice. In that instance you've chosen your liberty interest over your children's. That's a choice that parents make.... So, again, I hate to be the, you know, the immovable object but I concluded that based on his injuries and based upon the window of time that this child was at in [respondent's] care, that that injury occurred while the child was in his care alone. I came to that conclusion, that's a finding. The therapist doesn't trust my finding apparently based upon the work she's had with him. [Respondent] doesn't believe-he denies that that happened, I found that it did. And to go on like as if nothing happened, I am absolutely astounded that the state would take that position.... Why file this petition in the first instance? I am astounded that the State of Michigan has taken that position. Well, you know, he seems like a good dad to me, we just let him back in the house and, you know, he's had a psychological evaluation, he's talked to a therapist for a while and yeah, you might have found that he crushed this kid, broke this kid's skull but that's, you know, he's not-that's neither here nor there, we're just going to proceed according[ly].
... [N]othing has changed. He and his therapist are not even talking about [the toddler]. It's not even coming up in discussion. So we're living in this other world where he didn't do anything wrong and he's just trying to be a better dad and husband.
* * *
... So my reality is much different than everybody else's reality except for [the prosecutor] and now [the LGAL]. Everyone's reality is different than mine but these children are my court wards.... [S]omehow the [c]ourt has gotten it wrong and ... he's been able to convince everybody that he's a good guy and the kids miss him, we're just going to forget about [the toddler] and what he did to him. That's not how it works, folk[s].
So, I have to make decisions based upon my reality, the reality of this case. The reality of this case is that [respondent] had a frustration, anger, whatever it is that was working, he caused a skull fracture to the young man who had to be rushed to the hospital. ... So, the Court made that finding.
[N]othing I heard today pushes the ball forward. I'm affirming the prior orders.
* * *
... Unless something changes, I can't tell you that I'm going to change. [Emphasis added.]
The trial court entered its order following the dispositional review hearing, continuing its directive that respondent not live in the home and only have supervised contact with the children.
On appeal, we must answer a constitutional question of first impression, which is whether a parent's constitutional right against compelled self-incrimination bars a court in child protective proceedings from requiring that parent, as a condition of reunification, to admit to having abused an unrelated child. We conclude that it does, and therefore, vacation and remand is required.
II. STANDARD OF REVIEW
Dispositional orders entered after a court assumes jurisdiction over a child "are afforded considerable deference on appellate review[.]" In re Sanders , 495 Mich. 394, 406, 852 N.W.2d 524 (2014). A trial court's dispositional order is reviewed for clear error. Id . This Court reviews constitutional questions de novo. In re AMAC , 269 Mich. App. 533, 536, 711 N.W.2d 426 (2006) ; People v. Conat , 238 Mich. App. 134, 144, 605 N.W.2d 49 (1999). Similarly, "[w]hether a party has been afforded due process is a question of law, subject to review de novo." In re Contempt of Henry , 282 Mich. App. 656, 668, 765 N.W.2d 44 (2009).
III. ANALYSIS
Respondent argues that, by requiring him to confess to an act of criminal child abuse as a condition of reunification with his children, the trial court violated his Fifth Amendment right against compelled self-incrimination. We agree.
The rights recognized by the Fifth Amendment of the United States Constitution include the guarantee that "[n]o person ... shall be compelled in any criminal case to be a witness against himself...." U.S. Const., Am. V. This provision applies to the states through operation of the Fourteenth Amendment, People v. Cheatham , 453 Mich. 1, 9, 551 N.W.2d 355 (1996) (opinion by BOYLE , J.), citing Malloy v. Hogan , 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and appears verbatim in the Michigan Constitution, Const. 1963, art. 1, § 17.
The constitutional protection is worded as one applicable to criminal cases, and thus it applies in any situation in which a criminal prosecution might follow, regardless of how likely or unlikely that outcome may seem. See United States v. Miranti , 253 F.2d 135, 139 (CA 2, 1958) ("We find no justification for limiting the historic protections of the Fifth Amendment by creating an exception to the general rule which would nullify the privilege whenever it appears that the government would not undertake to prosecute."). Accordingly, "[t]he privilege can be claimed in any proceeding , be it criminal or civil, administrative or judicial, investigatory or adjudicatory." People v. Ferency , 133 Mich. App. 526, 533, 351 N.W.2d 225 (1984), quoting In re Gault , 387 U.S. 1, 47, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (quotation marks and citation omitted). Any testimony "having even a possible tendency to incriminate is protected against compelled disclosure." People v. Lawton , 196 Mich. App. 341, 346, 492 N.W.2d 810 (1992). The privilege may be invoked when criminal proceedings have not been instituted or even planned. People v. Guy , 121 Mich. App. 592, 609-610, 329 N.W.2d 435 (1982). Here, although respondent has not been charged for assaulting the toddler, we can reasonably conclude that an inculpatory statement by respondent could be used in the future by the Ingham County prosecutor, and therefore, respondent is afforded the protections of the Fifth Amendment throughout the child protective proceedings.
We acknowledge that the trial court did not demand a confession from respondent, but it instead refused to allow respondent an opportunity to return to the family home if he did not admit responsibility for the toddler's injuries to his therapist as part of his services. Any such admission to his therapist would not be privileged against disclosure in this child protective proceeding. See MCL 722.631 (abrogating privileges in communications other than those between attorney and client, or priest and penitent, in child protective proceedings).
The privilege against self-incrimination permits a defendant to refuse to answer official questions in any other proceeding, no matter how formal or informal, if the answer may incriminate him or her in future criminal proceedings. Phillips v. Deihm , 213 Mich. App. 389, 399-400, 541 N.W.2d 566 (1995). Our courts have seldom addressed the Fifth Amendment right against self-incrimination in the context of child protective proceedings. In In re Stricklin , 148 Mich. App. 659, 662-663, 384 N.W.2d 833 (1986), the parents argued that the trial court violated their rights against compelled self-incrimination when it refused to adjourn the child protective proceedings pending the outcome of the criminal proceedings against them. In that case, this Court recognized two interrelated requirements for a Fifth Amendment violation: compulsion, i.e., evidence that "a person is unable 'to remain silent unless he chooses to speak in the unfettered exercise of his own will,' " that is grounded on a penalty exacted for a refusal to testify. Id . at 663-664, 384 N.W.2d 833, quoting Malloy , 378 US at 8. The question in In re Stricklin was "whether a penalty was exacted for appellants' refusal to testify [at child protective proceedings], sufficient to amount to the kind of compulsion contemplated by the Fifth Amendment." Id . at 664, 384 N.W.2d 833. According to the appellants, "compulsion was present in the case at bar because the specter of losing their parental rights was held over their heads if they chose not to testify." Id . This Court disagreed, noting that for "a Fifth Amendment violation, the testimony offered at the criminal proceeding would have had to have been incriminating." Id . However, any testimony proffered at a proceeding in the child protective case would have been "nonincriminating," id. at 665, and therefore, "[t]he choice not to testify was no more than appellants' tactical decision as to the best course to follow through the probate and criminal proceedings," id . at 666, 384 N.W.2d 833.
Here, unlike in In re Stricklin , respondent waived his Fifth Amendment right against self-incrimination at the adjudicative bench trial. He provided "nonincriminating" testimony, claiming he did not injure the toddler and believed that any injury resulted from a seizure. At the close of trial, the trial court found by a preponderance of the evidence that respondent caused the injuries to the toddler. At a later dispositional review hearing, the trial court gave respondent a Hobbesian choice to either (1) retract his claim of innocence, admit to the child abuse at therapy as a condition of completing services, and expose himself to criminal liability for child abuse, or (2) maintain his innocence, which would likely result in the termination of his parental rights to his four children. Even though respondent initially waived his Fifth Amendment right to remain silent, there was a sufficient showing of compulsion at the dispositional review hearing. "The compulsion of nonincriminating testimony is not the sort of compulsion contemplated by the Fifth Amendment." Id . at 665, 384 N.W.2d 833 (emphasis added). The trial court, however, conditioned reunification on an admission of guilt to the child abuse. We see no reason to conclude that there is a lack of compulsion simply because respondent initially waived his Fifth Amendment right, testified at the trial, and was then later compelled to retract his claim of innocence and incriminate himself. Compulsion occurs "when a person is unable 'to remain silent unless he chooses to speak in the unfettered exercise of his own will'." Id . at 664, 384 N.W.2d 833, quoting Malloy , 378 US at 8. As the trial court explained, he had a choice to choose between his liberty interests or his children. Respondent chose the former, but any right to remain silent was no longer unfettered, and there was sufficient compulsion "to be a witness against himself." U.S. Const., Am. V.
Turning to the second Stricklin requirement, there must be a penalty exacted on respondent for refusing to admit to the crime sufficient to compel self-incrimination. In this case, that penalty was obvious. Because respondent would not incriminate himself and admit to the child abuse, he was ordered to remain outside the family home, was granted only supervised visiting time, and was informed by the government that he most likely faces the future termination of his parental rights to his four children. Therefore, unlike in In re Stricklin , respondent was given an extreme and detrimental choice-admit to the child abuse at therapy, which could be used in future criminal proceedings-or continue to be separated from his children and eventually lose his parental rights. This was a severe penalty threatened and, therefore, a violation of respondent's Fifth Amendment right against compelled self-incrimination.
The circumstances underlying the instant case square with the plurality decision in McKune v. Lile , 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). In McKune , the United States Supreme Court decided whether participation in Kansas's Sex Abuse Treatment Program (SATP) violated an inmate's right against compelled self-incrimination. Id . at 29-30, 122 S.Ct. 2017.
As part of the program, participating inmates are required to complete and sign an "Admission of Responsibility" form, in which they discuss and accept responsibility for the crime for which they have been sentenced. Participating inmates also are required to complete a sexual history form, which details all prior sexual activities, regardless of whether such activities constitute uncharged criminal offenses. A polygraph examination is used to verify the accuracy and completeness of the offender's sexual history. [ Id . at 30, 122 S.Ct. 2017.]
The Court acknowledged that any information provided as part of the SATP was not privileged and would "leave[ ] open the possibility that new evidence might be used against sex offenders in future criminal proceedings." Id . Choosing not to participate in the program automatically resulted in the reduction of "privilege status," which included a reduction in "visitation rights, earnings, work opportunities, ability to send money to family, canteen expenditures, [and] access to a personal television" and would also result in a "transfer[ ] to a maximum-security unit." Id . at 30-31, 122 S.Ct. 2017.
The defendant refused to participate in the program and filed an action, claiming that the requirements of the SATP violated his Fifth Amendment right against compelled self-incrimination. Id . at 31, 122 S.Ct. 2017. The issue before the United States Supreme Court was "whether the State's program, and the consequences for nonparticipation in it, combine to create a compulsion that encumbers the constitutional right." Id . at 35, 122 S.Ct. 2017. With a showing of compulsion, Kansas could no longer "continue the program in its present form...." Id . The Court in McKune , however, determined that "[t]he consequences in question ... are not ones that compel a prisoner to speak about his past crimes despite a desire to remain silent." Id . at 36, 122 S.Ct. 2017. The consequences in this case-a loss of one's constitutional right to provide care for one's children, see In re Sanders , 495 Mich 394, 422; 852 NW2d 524 (2014) -is far greater than the consequences that the defendant faced in McKune .
Our Supreme Court and the United States Supreme Court have held that a constitutional violation arises when a person is subject to a severe consequence unless he or she waives the Fifth Amendment right against compelled self-incrimination. A concurrence in State Bar Grievance Administrator v. Baun , 395 Mich. 28, 232 N.W.2d 621 (1975), noted that "[t]he United States Supreme Court has limited the collateral consequences or penalties which may be imposed on the [one] claiming the privilege" against self-incrimination. Id. at 41 n. 9, 232 N.W.2d 621 ( LEVIN , J., concurring), citing Lefkowitz v. Turley , 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), and Slochower v. Bd. of Higher Ed of New York City , 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). In Lefkowitz , the state "sought to interrogate [the] appellees about their transactions with the State and to require them to furnish possibly incriminating testimony by demanding that they waive their [Fifth Amendment] immunity and by disqualifying them as public contractors when they refused." Lefkowitz , 414 U.S. at 82, 94 S.Ct. 316. The United States Supreme Court disapproved of that tactic, holding that "[a] waiver secured under threat of substantial economic sanction cannot be termed voluntary." Id. at 82-83, 94 S.Ct. 316. In Slochower , the Court disapproved, on due process grounds, of a provision of the Charter of the City of New York that arbitrarily conditioned continued municipal employment on employees' waiving their right against self-incrimination whenever asked a question relating to official conduct. Id. at 552, 556, 559, 76 S.Ct. 637. As part of its reasoning, the Court noted that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing," and thus that the right against self-incrimination "serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." Id. at 557-558, 76 S.Ct. 637. In Spevack v. Klein , 385 U.S. 511, 516, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), the Court held that "[t]he threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege."
The preservation of one's parental rights presents an imperative at least as great as continued municipal employment, eligibility for public contracting, and maintenance of one's professional license, and if the latter may not be used to condition the waiver of one's right against self-incrimination, neither should one's parental rights. By requiring respondent to confess to the criminal abuse of the toddler in order to regain care and custody of his children, the trial court was requiring an inculpatory admission against respondent's penal interests. This could also be self-defeating because such an admission may lead to criminal charges that end with respondent being taken away from his children for incarceration. This practice offends due process when a respondent is required, on pain of being deprived of the care and custody of his children, to confirm the trial court's determination that he had committed severe child abuse. Even more, requiring respondent to admit to the child abuse after he had already testified at trial and denied any wrongdoing would subject him to possible perjury charges. The record clearly shows that the trial court violated respondent's Fifth Amendment right against self-incrimination when it conditioned unsupervised visitation and eventual reunification on respondent's admission to the child abuse.
With that said, this Court has the difficult task of providing guidance to the trial court in light of this constitutional violation. "[A]t each review hearing, the court is required to consider, among other things, '[c]ompliance with the case service plan with respect to services provided or offered to the child and the child's parent, ... whether the parent ... has complied with and benefited from those services,' and '[t]he extent to which the parent complied with each provision of the case service plan, prior court orders, and an agreement between the parent and the agency.' " In re Mason , 486 Mich. 142, 156, 782 N.W.2d 747 (2010), quoting MCL 712A.19(6)(a) and (c) (ellipses in Mason ). The trial court must also take into account the likely harm to the children if they continue to be separated from respondent, MCL 712A.19(6)(d), as well as the likely harm to the children if they are returned to their parent's care, MCL 712A.19(6)(e). We remand this case to the trial court for a balancing of imperatives, and we instruct the trial court to decide anew the questions of visitation and whether to allow respondent to return to his family home, taking into consideration all the facts and circumstances while refraining from considering respondent's persistent claim of innocence in connection with the toddler. In doing so, the trial court must ensure that it is complying fully with the requirements of MCL 712A.19(6). Vacated and remanded. We do not retain jurisdiction.
Beckering, P.J., and Riordan, J., concurred with Cameron, J.
See In re Blakeman Minors , unpublished order of the Court of Appeals, entered February 7, 2018 (Docket No. 341826).
Since the filing of this interlocutory appeal, the APA and trial court have relied on respondent's failure to admit guilt as evidence that respondent could not have made progress toward reunification as DHHS has reported. Indeed, at a dispositional review hearing in February 2018, the APA asked the DHHS caseworker, "Why are we giving [respondent] [anger management] services if he hasn't recognized that he has an anger problem?" Further, because respondent had not made a "breakthrough" in acknowledging his abuse of the toddler, the APA has opined that the case would likely result in the "permanent wardship" of the children. In that same hearing, the trial court's justification for continuing only supervised visitation was that "additional counseling is required to address the acceptance of responsibility for the behavior that led to the injury to the minor child ... in order for [respondent] to fully benefit from the services that are being provided to him."
At the most recent dispositional review hearing in August 2018, the DHHS worker informed the trial court that respondent completed all services, and therefore, unsupervised parenting time was recommended. At the conclusion of the hearing, the APA again argued against unsupervised parenting time, stating that "our only options are a full custody order in mom, a release of parental rights by dad[,] or termination of parental rights by dad." The trial court scheduled another dispositional review hearing date, stating: "I disagree with the assessment of the case.... I'm not satisfied based on what's been reported to the [c]ourt. I [don't] have any degree of confidence in [respondent's] ability to provide care without supervision." No further services have been recommended for respondent.
We acknowledge that Court of Appeals decisions before November 1, 1990, are not binding. MCR 7.215(J)(1). However, In re Stricklin has not been overruled or modified, and we see no reason to depart from it now.
Importantly, "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the amendment does not preclude the inference where the privilege is claimed by a party to a civil cause." Phillips , 213 Mich. App. 389, 400, 541 N.W.2d 566 (1995), citing Baxter v. Palmigiano , 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).
A Hobbesian choice, derived from the theories of political philosopher Thomas Hobbes, is commonly known as a choice between two equally unacceptable alternatives. This is not to be confused with a Hobson's choice-a "take it or leave it" situation-which originated from Thomas Hobson, a seventeenth century liveryman who offered every customer the choice of taking the horse nearest the door or none at all. See Merriam-Webster's Collegiate Dictionary (11th ed).
Voluntary testimony given in one proceeding does not constitute a waiver of the Fifth Amendment privilege against self-incrimination in a subsequent proceeding. See People v. Hunley , 63 Mich. App. 97, 101, 234 N.W.2d 169 (1975) (stating that a "[d]efendant's decision to testify at the preliminary examination does not prevent the defendant from asserting his Fifth Amendment right not to testify at trial") (quotation marks and citation omitted).
While not raised on appeal, we believe it is important for the trial court to address whether the prosecutor has standing to proceed in this case. There are three avenues through which a county prosecutor acquires standing in a child protective proceeding: (1) the prosecutor appears when requested by the court, (2) the prosecutor appears when requested by the family independence agency-now DHHS, see Executive Order No. 2004-38-to act as a "legal consultant," or (3) the prosecutor has filed an original petition for termination of parental rights. In re Jagers , 224 Mich. App. 359, 363-364, 568 N.W.2d 837 (1997), citing MCL 712A.17(4) and (5) and MCL 712A.19b(1) ; see also In re Hill , 206 Mich. App. 689, 691-692, 522 N.W.2d 914 (1994).
Here, the original and amended petitions were filed by a DHHS worker-not the prosecutor-and there is no indication that the trial court requested the prosecutor's appearance. Thus, it appears the prosecutor's only basis for standing is if the DHHS had requested the prosecutor's representation as a "legal consultant." On appeal, the prosecutor has unequivocally denied representing DHHS "as a client." Instead, the prosecutor asserted that her office appears at child protective proceedings only "as a legal consultant pursuant to MCR 3.914...."
MCR 3.914(C)(1) states: "On request of the Michigan Family Independence Agency or of an agent under contract with the agency, the prosecuting attorney shall serve as a legal consultant to the agency or agent at all stages of a child protective proceeding." With that said, "the agency may retain legal representation of its choice when the prosecuting attorney does not appear on behalf of the agency or an agent under contract with the agency." MCR 3.914(C)(2) (emphasis added). MCR 3.914 does not define a "legal consultant." However, Subsection (C)(2) indicates that a prosecutor appears "on behalf of the agency." This potential issue has surfaced because the prosecutor and DHHS strongly disagree about whether reunification should occur. Considering the prosecutor's express declaration that her office is not representing DHHS, the trial court should determine on remand whether the prosecutor has standing to be heard during the remainder of the proceedings. | [
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Per Curiam.
Following an audit, the Department of Treasury determined that Total Armored Car Services, Inc. (TACS) had underpaid its taxes in three tax years. TACS filed a petition in the Michigan Tax Tribunal (MTT), challenging the department's disallowance of certain deductions and credits and later adding a claim that it should be treated as a lone tax unit rather than as a collective taxpayer. The MTT summarily dismissed the petition. We discern no error in the MTT's judgment and affirm.
I. BACKGROUND
In November 2012, the department conducted an audit of TACS's business tax returns for 2008 through 2011 and determined that TACS had underpaid by $144,924 for tax years 2009, 2010, and 2011. Part of this underpayment arose from the misclassification of items as materials and supplies for deduction under MCL 208.1113(6)(c), and part was due to miscalculation of the employee compensation credit provided in MCL 208.1403(2). TACS challenged the auditor's conclusions to no avail. It then filed a petition with the MTT. In addition to the objections raised directly to the audit, TACS noted before the MTT hearing that it had filed its taxes as part of a unitary business group (UBG) with seven sister corporations but that it actually counted as a single tax entity pursuant to LaBelle Mgt., Inc. v. Dep't of Treasury , 315 Mich. App. 23, 888 N.W.2d 260 (2016). Accordingly, TACS generally asserted that its tax liability was no longer accurately calculated.
The MTT ultimately granted summary disposition in the department's favor and ordered TACS to pay its tax liability with interest. TACS now appeals.
II. STANDARD OF REVIEW
We review de novo the MTT's decision on a motion for summary disposition. Moshier v. Whitewater Twp. , 277 Mich. App. 403, 407, 745 N.W.2d 523 (2007). We also review de novo the MTT's interpretation of statutory provisions. Id . However, generally, our review is "limited to determining whether the tribunal erred in applying the law or adopted a wrong principle...." Id . The MTT's "factual findings are conclusive if supported by competent, material, and substantial evidence on the whole record." Klooster v. City of Charlevoix , 488 Mich. 289, 295, 795 N.W.2d 578 (2011) (quotation marks and citation omitted).
III. MATERIALS AND SUPPLIES DEDUCTION
In tax year 2010, TACS deducted from its gross receipts $12,712,186 in materials and supplies, and it deducted $24,567,291 for tax year 2011. According to the audit report, these deductions included the cost of "repairs and maintenance, gas and oil, parts, rental equipment, lease contract, outside courier services, contract labor and purchased transportation." The department determined that costs "related to operating leases, contract labor, purchased transportation, and outside courier services" were improperly included in this category and adjusted the deductions for 2010 and 2011 accordingly.
TACS contends that the disallowed items are "materials and supplies" deductible from gross receipts under MCL 208.1113(6). The Michigan Business Tax Act (BTA), MCL 208.1101 et seq., imposes a business income tax, MCL 208.1201, and a modified-gross-receipts tax, MCL 208.1203, against taxpayers with business activity in Michigan. A business's modified-gross-receipts tax base may be reduced by certain credits and deductions. One deduction is for "purchases from other firms," MCL 208.1113(6), which includes:
(a) Inventory acquired during the tax year, including freight, shipping, delivery, or engineering charges included in the original contract price for that inventory.
(b) Assets, including the costs of fabrication and installation, acquired during the tax year 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.
(c) To the extent not included in inventory or depreciable property, materials and supplies, including repair parts and fuel.
The auditor determined that "Materials and Supplies means tangible personal property," not services such as those reported by TACS. This is consistent with the plain language of MCL 208.1113(6).
Our goal when interpreting statutes is to ascertain the Legislature's intent. Cook v. Dep't of Treasury , 229 Mich. App. 653, 658-659, 583 N.W.2d 696 (1998). The best indicator of that intent is the plain language of the statute. Ferguson v. Lincoln Park , 264 Mich. App. 93, 95; 694 N.W.2d 61 (2004). If the language is clear and unambiguous, we must apply the statute as written. Id . at 95-96. In reading and applying the plain language of a statute, we must give effect "to every phrase, clause, and word in the statute. The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended." Sun Valley Foods Co v. Ward , 460 Mich. 230, 237, 596 N.W.2d 119 (1999) (citation omitted). And when defining words in a statute, "we must consider both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme." Herman v. Berrien Co , 481 Mich. 352, 366, 750 N.W.2d 570 (2008) (quotations marks and citation omitted).
When read as a whole, MCL 208.1113(6) defines the purchases-from-other-firms deduction as inventory acquired in the tax year; assets acquired during the tax year that are eligible for depreciation for federal tax purposes; or any other materials and supplies, such as repair parts or fuel, not included in either inventory or depreciable property. While Subdivisions (a) and (b) include services related to the acquisition of inventory or assets (costs for installation, shipping and engineering); Subdivision (c) includes only tangible items of property not included in inventory or depreciable property. The BTA does not define "materials and supplies." When the Legislature does not provide a definition for the words used in a statute, we may look to dictionary definitions. Griffith v. State Farm Mut. Auto. Ins. Co. , 472 Mich. 521, 526, 697 N.W.2d 895 (2005). The terms "materials and supplies," when used in their noun form as in the statute, are defined as physical items. "Material" means "relating to, derived from, or consisting of matter" and "being of a physical or worldly nature[.]" Merriam-Webster's Collegiate Dictionary (11th ed.), p. 765. "Supplies," in its noun form, means "PROVISIONS" or "STORES." Id . at p. 1256.
Moreover, the qualifying clause immediately following "materials and supplies"-"including repair parts and fuel"-indicates an intent to limit materials and supplies to tangible property. This phrase, when read in context, provides examples of the type of tangible property that may be included within the meaning of "materials and supplies." While the term "including" suggests a nonexhaustive list of items within the category of "materials or supplies," the examples are both tangible and physical. "Under the statutory construction doctrine known as ejusdem generis , where a general term follows a series of specific terms, the general term is interpreted to include only things of the same kind, class, character, or nature as those specifically enumerated." Neal v. Wilkes , 470 Mich. 661, 669, 685 N.W.2d 648 (2004) (quotation marks and citation omitted). Accordingly, the type of property included in the definition of "materials and supplies" is limited to tangible items.
Given the plain language of MCL 208.1113(6), we discern no error in the MTT's dismissal of TACS's challenge to the department's audit.
IV. COMPENSATION CREDIT
The department also determined that TACS overstated the compensation earned by employees of E.L. Hollingsworth (another member of the UBG) in 2009 and 2010. In 2009, TACS reported a compensation credit of $12,575,339, and in 2010, TACS reported a $10,897,553 compensation credit. These figures were based solely on the residencies of the employees, not "on actual work (miles driven) performed within the state of Michigan." The auditor reasoned that TACS was only entitled to 100% of the compensation credit if 100% of a particular employee's miles were driven in Michigan. By implication, TACS was entitled to a reduced credit when an employee earned a portion of his or her compensation while driving within Michigan but also earned compensation while driving out of state.
The BTA provides a tax credit to reduce a taxpayer's liability for compensation in this state. Specifically, "[f]or the 2009 tax year and each tax year after 2009, ...
a taxpayer may claim a credit against the tax imposed by this act equal to 0.370% of the taxpayer's compensation in this state." MCL 208.1403(2). The phrase "compensation in this state" is not defined by statute.
Contrary to the MTT's ruling, the phrase "compensation in this state" is not ambiguous. MCL 208.1107(2) defines "compensation" as "all wages, salaries, fees, bonuses, commissions, other payments made in the tax year on behalf of or for the benefit of employees, officers, or directors of the taxpayers, and any earnings that are net earnings from self-employment...." "Wages," "salaries," and "commissions," by their plain meanings, are payments for work or services performed. See, e.g., Black's Law Dictionary (10th ed.) (defining "wages" as "[p]ayment for labor or services" and "salary" as "compensation for services"). By defining "compensation" as wages, salaries, commissions, and other such payments, the Legislature recognized that "compensation" is essentially remuneration received in return for services rendered or work performed.
But what did the Legislature intend in using the phrase "compensation in this state "? Giving effect to every word of the statute and with the statutory definition of "compensation" in mind, it is clear that the Legislature intended for the credit to apply only to work or services performed in the state of Michigan. When the definition of "compensation" is inserted into the phrase "compensation in this state," it provides that the credit is available for "[remuneration for services or work performed] in this state." Following TACS's proposal, on the other hand, would require us to add terms and conditions into the statute. The statute makes no reference to the residency of the subject employees, nor do the definitions of the specific words used. Ultimately, although the MTT's reasoning was flawed, it reached the correct result. TACS is therefore not entitled to relief. See Taylor v. Laban , 241 Mich. App. 449, 458, 616 N.W.2d 229 (2000).
TACS further argues, for the first time on appeal, that the services rendered by an employee should "be sourced based upon single items of income," meaning that "[i]f transportation services [were] performed pursuant to an annual or long term contract, the compensation was generated at the time of the creation of the contract and therefore sourced to the state in which the contract was entered." Under this theory, further discovery would be necessary to ascertain where the subject employees entered into their contracts.
We review unpreserved challenges for plain error. To establish an entitlement to relief based on plain error, the injured party "must show (1) that an error occurred, (2) that the error was plain, and (3) that the plain error affected [its] substantial rights." Henderson v. Dep't of Treasury , 307 Mich. App. 1, 9, 858 N.W.2d 733 (2014) (quotations marks and citation omitted). To merit relief, the injured party must show prejudice, i.e., that the error affected the outcome of the MTT proceedings. Id .
No error occurred in this regard. The "single items of income" concept simply is not the law of Michigan. Rather, TACS culled it from model regulations drafted by the Multistate Tax Commission. Moreover, TACS has made no calculations to show how this reformation of the law would impact its tax liability. Accordingly, it cannot show that it suffered any prejudice.
V. UBG STATUS
TACS finally challenges the MTT's failure to apply LaBelle to deconstruct its UBG and then to order TACS and the department to restart the tax filing process for the years in question.
LaBelle was issued on March 31, 2016, three months before TACS filed its petition, but the opinion's effect was stayed until disposition of the department's application for leave to appeal in the Supreme Court. LaBelle Mgt., Inc v. Dep't of Treasury , unpublished order of the Court of Appeals, entered May 5, 2016 (Docket No. 324062). The Supreme Court denied leave on January 24, 2017. LaBelle Mgt., Inc. v. Dep't of Treasury , 500 Mich. 931, 889 N.W.2d 250 (2017). The department sought summary disposition in this case approximately three months after the Supreme Court's LaBelle decision.
TACS contends that the MTT "reversibly erred in denying what, in practical effect, amounted to [its] motion for leave to amend its Petition" to apply LaBelle . TACS does not deny that it never directly requested to file an amended petition. It did, however, raise its claims under LaBelle in its prehearing statement. The department sought to strike TACS's argument as it had not been raised in the petition. The MTT denied the motion to strike, ordered supplemental briefing on the issue, and actually considered TACS's claim before entering its final judgment. In "practical effect," the MTT allowed TACS "to amend its Petition" as it fully considered the claim.
The MTT also did not err by denying TACS relief under LaBelle . In LaBelle , 315 Mich. App. at 30, 888 N.W.2d 260, this Court considered how to define the phrase "owns or controls ... indirectly" as used in MCL 208.1117(6), the BTA provision defining a UBG. Specifically, MCL 208.1117(6) defines a UBG as
a group of United States persons, other than a foreign operating entity, 1 of which owns or controls, directly or indirectly, more than 50% of the ownership interest with voting rights or ownership interests that confer comparable rights to voting rights of the other United States persons, and that has business activities or operations which result in a flow of value between or among persons included in the [UBG] or has business activities or operations that are integrated with, are dependent upon, or contribute to each other. For purposes of this subsection, flow of value is determined by reviewing the totality of facts and circumstances of business activities and operations.
In LaBelle , 315 Mich. App. at 37, 888 N.W.2d 260, this Court held that indirect ownership or control means ownership "through an intermediary, not ownership by operation of legal fiction...." (Emphasis omitted.) It followed that because neither the plaintiff nor the related entities owned through an intermediary or otherwise more than 50% of any other entity, the department had improperly characterized the plaintiff as part of a UBG. Id . at 37-38, 888 N.W.2d 260.
The procedural posture of LaBelle is distinguishable from the case now before us. In that case, the plaintiff corporation had filed an individual business tax return, and during an audit, the department determined that it should have filed a combined return as part of a UBG with two related entities. Id . at 26-27, 888 N.W.2d 260. The Court of Claims affirmed the tax deficiency, but this Court reversed because insufficient indirect ownership existed to characterize the plaintiff as part of a UBG. Id . at 28, 37-38, 888 N.W.2d 260. Here, TACS sought reconsideration of the MTT's ruling, arguing that the MTT should have ordered it to file amended individual tax returns for the years in question and ordered the department to accept those filings. As the MTT sagely concluded, however, TACS never requested such relief and it was not the MTT's duty to direct TACS on how to prove its case. And TACS's failure to file amended returns, or even to present amended tax returns to the MTT, meant it could not establish prejudice.
The MTT further opined that other pragmatic reasons existed for not applying LaBelle . For example, TACS's seven sister corporations were not parties to the lawsuit, and the MTT was hesitant to allow TACS to speak as a representative of all. The other entities may be harmed by the separation, creating a conflict of interest. There was no record indication that any of the other UBG members had taken steps to exhaust their administrative remedies. Moreover, no member of the UBG had attempted to file an individual tax return. Their individual tax liabilities, like TACS's individual tax liability, were hypothetical only. TACS has challenged none of these reasons.
Even if TACS had properly developed its argument, it would not be entitled to relief as its claim is not ripe for adjudication. As TACS has never attempted to file an individual tax return, the department has never determined whether TACS could be an individual taxpayer or whether it must file as part of a UBG. TACS has yet to be aggrieved by the department in this regard. And only aggrieved parties have standing to pursue claims. Manuel v. Gill , 481 Mich. 637, 643, 753 N.W.2d 48 (2008).
We affirm.
Ronayne Krause, P.J., and Gleicher and Letica, JJ., concurred.
In its appellate brief, TACS asserts, contrary to the audit report, that it claimed a deduction of $12,712,186 in 2009 and $24,567,291 in 2010.
TACS relies on the verb form of "supply" to interpret the statute as including services within the definition of "materials and supplies." TACS thereby takes the word out of its grammatical context.
The compensation credit figures cited by TACS in its appellate brief do not match the figures provided in the audit report for the tax years in question. | [
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On order of the Court, the motion to hold the defendant's application for leave to appeal in abeyance for Shah v State Farm Mut Auto Ins Co (Docket No. 157951) is considered, and it is GRANTED. We ORDER that the application for leave to appeal the September 20, 2018 judgment of the Court of Appeals be held in ABEYANCE pending the decision in Shah . | [
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On order of the Court, the motion for reconsideration of this Court's November 21, 2018 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G). | [
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On order of the Court, the application for leave to appeal the September 18, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the August 16, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 2, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the February 27, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 1, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the January 26, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the May 24, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 27, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the May 24, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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] |
On order of the Court, the application for leave to appeal the April 19, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the January 25, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 28, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 20, 2018 judgment of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Ames (Docket No. 156077) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. | [
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On order of the Court, the application for leave to appeal the February 20, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the June 4, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the April 5, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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Per Curiam.
In this action for recovery of personal protection insurance (PIP) benefits payable under the no-fault act, MCL 500.3101 et seq ., plaintiff, Henry Ford Health System, appeals as of right an order granting summary disposition in favor of defendant, Everest National Insurance Company. Because we agree that the trial court erred by enforcing an antiassignment clause contained in defendant's insurance policy, we reverse and remand for further proceedings consistent with this opinion.
I. BACKGROUND
On July 30, 2016, Jennifer Quinn was involved in a motor vehicle accident. At the time of the accident, Quinn was insured under a no-fault insurance policy issued by defendant. Quinn received treatment from plaintiff, incurring medical expenses in excess of $200,000, which defendant refused to pay. On or about July 31, 2017, Quinn executed an assignment of rights, providing, in pertinent part, as follows:
This is an assignment of the right to enforce payment of charges incurred only for Services arising out of the July 30, 2016 accident, for which charges are payable under any policy of insurance, contract and/or statute. Such assignment shall include, in Assignee's sole discretion, the right to pursue appeal of a payment denial under any procedure outlined in any insurance policy, contract or statute and/or the right to file a lawsuit to enforce the payment of benefits due or past due for these Services incurred and resulting charges.
Plaintiff initiated this action the same day, seeking payment for services provided to Quinn.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that the subject insurance policy unambiguously precluded Quinn from assigning her rights without defendant's consent. Defendant also asserted that because Quinn only assigned "the portion of her claim relating to [plaintiff]'s bills," rather than her entire cause of action, the partial assignment was invalid. Plaintiff opposed the motion on numerous grounds. Of significance to this appeal, plaintiff asserted that the purported antiassignment clause was ambiguous, unenforceable in the context of a postloss assignment of the right to payment for past or presently due benefits, and void pursuant to provisions of the Uniform Commercial Code (UCC), MCL 440.1101 et seq ., requiring that security interests in a healthcare-insurance receivable remain freely assignable.
The trial court ruled that plaintiff's complaint against defendant was barred under the terms of the insurance policy. The court reasoned that Quinn's failure to obtain defendant's written consent before assigning her rights triggered a separate clause of the policy that precluded suit against defendant in the absence of full compliance with the terms of the policy. The trial court also rejected plaintiff's contention that the antiassignment clause was invalid under the UCC because "[t]he assignee by operation of the statute is only a secured creditor who may assert rights to the health-insurance receivable against the assignor or lower priority creditors, but not against the account debtor (in this case the insurer)." Accordingly, the trial court granted defendant's motion for summary disposition and dismissed plaintiff's complaint with prejudice.
II. STANDARDS OF REVIEW
We review de novo a trial court's ruling on a summary disposition motion. Robins v. Garg (On Remand) , 276 Mich. App. 351, 361, 741 N.W.2d 49 (2007). "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." Dancey v. Travelers Prop. Cas. Co. of America , 288 Mich. App. 1, 7, 792 N.W.2d 372 (2010) (quotation marks and citation omitted). Issues involving the proper interpretation of statutes and contracts are also reviewed de novo. Titan Ins. Co. v. Hyten , 491 Mich. 547, 553, 817 N.W.2d 562 (2012).
III. ANALYSIS
Plaintiff maintains on appeal that, acting as assignee of Quinn's claim, it was entitled to recover past and presently due benefits for the services it rendered to Quinn for her accident-related injuries. According to plaintiff, to the extent that the pertinent clause in defendant's insurance contract is construed as an antiassignment clause, it was inoperative to bar assignment of an accrued cause of action under Michigan law. We agree.
"Insurance policies are contracts and, in the absence of an applicable statute, are subject to the same contract construction principles that apply to any other species of contract." Id . at 554, 817 N.W.2d 562 (quotation marks and citation omitted). Under traditional principles of contract construction, "unless a contract provision violates law or one of the traditional defenses to the enforceability of a contract applies, a court must construe and apply unambiguous contract provisions as written." Rory v. Continental Ins. Co. , 473 Mich. 457, 461, 703 N.W.2d 23 (2005). A contract is ambiguous "if it is equally susceptible to more than a single meaning." Barton-Spencer v. Farm Bureau LifeIns. Co. of Mich. , 500 Mich. 32, 40, 892 N.W.2d 794 (2017). Because the contract at issue involves mandatory PIP benefits required by the no-fault act, the contract and statutes must be "read and construed together as though the statutes were part of the contract ...." Titan Ins. Co. , 491 Mich. at 554, 817 N.W.2d 562 (quotation marks and citation omitted).
The contractual provision at issue in this case states, in pertinent part, "Interest in this Policy may not be assigned without our [that is, defendant's] written consent." Plaintiff contends that this provision should be read as an antitransfer clause, prohibiting the insured from assigning the policy to someone else without consent, rather than a limitation on the insured's ability to assign an accrued right to recover under the policy. The policy does not define the term "interest." Thus, in determining the meaning of the word, it is appropriate to consult a dictionary. Vushaj v. Farm Bureau Gen. Ins. Co. of Mich. , 284 Mich. App. 513, 515, 773 N.W.2d 758 (2009). Relevant to interpreting this provision, Black's Law Dictionary defines "interest" in both a "collective" and a "distributive" sense. "Collectively, the word includes any aggregation of rights, privileges, powers, and immunities; distributively, it refers to any one right, privilege, power, or immunity."Black's Law Dictionary (10th ed.). Plaintiff's interpretation is too narrow in that it focuses solely on the first half of the definition, while ignoring the latter. Nor does the dual nature of the term leave it equally susceptible to more than one meaning. Instead, "interest" can only be reasonably understood as referring to both collective rights and "distributive" or individual rights. By using a broad term like "interest" in this provision, the policy should be reasonably construed as prohibiting assignment of any interest-that is, interest in the policy itself or interest in specific benefits arising under the policy-without written consent from defendant. Because we construe this provision as unambiguously prohibiting assignment of any interest without defendant's consent, we must enforce the provision as written unless it violates law or a traditional defense to enforceability applies. Rory , 473 Mich. at 461, 703 N.W.2d 23.
Another panel of this Court recently considered the enforceability of an unambiguous antiassignment clause in a no-fault insurance policy in Jawad A. Shah, MD, PC v. State Farm Mut. Auto. Ins. Co. , 324 Mich.App. 182, 920 N.W.2d 148 (2018). In that case, the Court determined that resolution of this issue turned on application of precedent established in Roger Williams Ins. Co. v. Carrington , 43 Mich. 252, 5 N.W. 303 (1880), in which the Court declined to enforce an antiassignment clause when the assignment was made after a loss of insured property had occurred. Shah , 324 Mich. App. at 198-199, 920 N.W.2d 148. The Shah Court explained:
Our Supreme Court in Roger Williams essentially held that an accrued cause of action may be freely assigned after the loss and that an antiassignment clause is not enforceable to restrict such an assignment because such a clause violates public policy in that situation. Roger Williams , 43 Mich. at 254 [5 N.W. 303]. In this case, [the insured] had an accrued claim against his insurer for payment of healthcare services that had already been provided by [the healthcare providers] before [the insured] executed the assignment. Under Roger Williams , the contractual prohibition against the [insured] assigning that claim to [the healthcare providers] was unenforceable because it was against public policy. Id .
Therefore, we conclude that the antiassignment clause in the instant case is unenforceable to prohibit the assignment that occurred here-an assignment after the loss occurred of an accrued claim to payment-because such a prohibition of assignment violates Michigan public policy that is part of our common law as set forth by our Supreme Court. Roger Williams , 43 Mich. at 254 [5 N.W. 303] ; Rory , 473 Mich. at 469-471 [703 N.W.2d 23]. [ Shah , 324 Mich. App. at 200, 920 N.W.2d 148.]
The relevant circumstances presented in this case are identical to those at issue in Shah . That is, like the insured party in Shah , Quinn was injured in an automobile accident and received treatment that was alleged to fall within the scope of allowable expenses for which she could seek PIP benefits under the no-fault act. See id . at 186, 920 N.W.2d 148. After the services were rendered, Quinn assigned her right to payment for those services to her healthcare provider, despite an unambiguous antiassignment clause contained in the insurance policy. See id . at 187-188, 920 N.W.2d 148. Given the clear parallels between these cases, we are bound by the resolution of this very issue in Shah . MCR 7.215(J)(1). Accordingly, we must conclude that the antiassignment clause in defendant's policy is unenforceable because it is contrary to public policy. See Shah , 324 Mich. App. at 200, 920 N.W.2d 148.
Defendant presents two additional arguments for affirming the trial court's ruling that were not addressed in Shah . First, defendant contends that Quinn could not assign her right to payment of PIP benefits because she had not fully performed her obligations under the policy. According to defendant, Quinn's "duties under the policy are ongoing" and her performance of "these ongoing obligations ... is essential to [defendant]'s ability to review and consider claims." But apart from these vague references, defendant fails to identify what "ongoing" duties or obligations Quinn has concerning the claims she assigned to plaintiff. Therefore, we consider this argument abandoned because a party cannot simply "announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position." Yee v. Shiawassee Co. Bd. of Comm'rs , 251 Mich. App. 379, 406, 651 N.W.2d 756 (2002) (quotation marks and citation omitted).
Next, defendant argues that the assignment was unenforceable because it did not assign Quinn's entire cause of action for PIP benefits arising from the subject accident. Relying primarily on Schwartz v. Tuchman , 232 Mich. 345, 205 N.W. 140 (1925), defendant contends that a partial assignment of a cause of action is unenforceable against the debtor. In Schwartz , the plaintiff was assigned the right to receive one-third of the commission payable from a real estate transaction. Id . at 347-348, 205 N.W. 140. When the party responsible for payment of the commission failed to do so, the plaintiff sought to enforce the assignment in equity. Id . at 348, 205 N.W. 140. The trial court dismissed the action, concluding that the plaintiff had an adequate remedy at law against the real estate broker who had assigned the partial commission to the plaintiff. Id. at 348-349, 205 N.W. 140. On appeal, the Supreme Court observed that although a partial assignment may be enforceable between the parties to the assignment, the assignee had no legal remedy against a debtor who was not a party to the assignment. Id . at 349, 205 N.W. 140. The Court explained:
The reason for the legal doctrine is obvious. The law permits the transfer of an entire cause of action from one person to another, because in such case the only inconvenience is the substitution of one creditor for another. But if assigned in fragments, the debtor has to deal with a plurality of creditors. If his liability can be legally divided at all without his consent, it can be divided and subdivided indefinitely. He would have the risk of ascertaining the relative shares and rights of the substituted creditors. He would have, instead of a single contract, a number of contracts to perform. A partial assignment would impose upon him burdens which his contract does not compel him to bear. [ Id . at 349-350, 205 N.W. 140 (quotation marks and citation omitted).]
However, the Supreme Court reasoned that these concerns did not arise in a court of equity, in which "the interests of all parties can be determined in a single suit" and "[t]he debtor can bring the entire fund into a court and run no risk as to its proper distribution." Id . at 350, 205 N.W. 140 (quotation marks and citation omitted). Thus, the Court concluded that "partial assignments should be sustained in a court of chancery in all cases where it can be done without detriment to the debtor or stakeholder, whenver [sic] equitable and just results may be accomplished by it." Id . (quotation marks and citation omitted).
Defendant's argument is unpersuasive because it ignores subsequent caselaw stating that " MCR 2.205 has replaced the common-law rule against splitting a cause of action."
United Servs. Auto. Ass'n v. Nothelfer , 195 Mich. App. 87, 89, 489 N.W.2d 150 (1992). Furthermore, defendant's position rests on the notion that Quinn's claim or cause of action is one for allegedly improper nonpayment of all no-fault benefits. We disagree.
This case is readily distinguishable from the circumstances presented in Schwartz , in which the defendant was obligated to make a single commission payment to a third party and the plaintiff sought to enforce an assignment of a fraction of that payment. Schwartz , 232 Mich. at 347-348, 205 N.W. 140. As the Court explained in Schwartz , the partial assignment imposed the burden of multiple creditors and performances on the defendant-a burden that he did not bargain for when he entered into contract. Id . at 349-350, 205 N.W. 140. In contrast, under the no-fault act, PIP benefits are payable as loss accrues, MCL 500.3142(1), and become overdue if not paid within 30 days of receipt of reasonable proof of the fact and of the amount of loss sustained, MCL 500.3142(2). In other words, the act contemplates and requires a multitude of performances (i.e., payments) by the insurer, such that the rationale for the limitation set forth in Schwartz has no application in the context of PIP benefits required by the no-fault act. In addition, the procedural distinctions between actions in law and equity as described in Schwartz have long been abolished in this state. See Const. 1963, art. 6, § 5 ; Fenestra Inc. v. Gulf American Land Corp. , 377 Mich. 565, 593, 141 N.W.2d 36 (1966). To the extent that a proper disposition of the benefits sought by the healthcare provider requires the presence of an additional party or parties, modern joinder rules provide a method for maintaining a joint cause of action. See United Servs. Auto. Ass'n , 195 Mich. App. at 89, 489 N.W.2d 150. As further support for its contention that the assignment at issue in this case amounted to an unenforceable partial assignment of a cause of action, defendant cites various cases that discuss when an assignee is considered the real party in interest for purposes of bringing a cause of action in his or her own name. Specifically, in Kearns v. Mich. Iron & Coke Co. , 340 Mich. 577, 66 N.W.2d 230 (1954), the Court reiterated that Michigan jurisprudence has been "committed to the proposition that where an assignment is such that satisfaction of the judgment obtained by the assignee will discharge the defendant from his obligation to the assignor, for the purpose of the suit the assignee is the real party in interest and may maintain an action in his own name." Id . at 582, 66 N.W.2d 230, quoting Sharrar v. Wayne Savings Ass'n , 254 Mich. 456, 459, 236 N.W. 833 (1931). According to defendant, because Quinn only assigned her right to recover a limited portion of the allowable expenses potentially available under the no-fault act, the assignment would not relieve defendant of its obligation to Quinn for other benefits. Once again, defendant's argument rests on the mistaken presumption that Quinn's claim can only be viewed as one for all the PIP benefits that she may be entitled to recover as a result of her motor vehicle accident, which is inconsistent with the MCL 500.3142 requirement of prompt payment of claims as they accrue. Furthermore, MCL 500.3112 contemplates that an insurer may discharge its obligation to the insured with respect to particular benefits that have been incurred by directing payment of those benefits to the party providing services to the injured party. Covenant Med. Ctr., Inc. v. State Farm Mut. Auto. Ins. Co. , 500 Mich. 191, 209-210, 895 N.W.2d 490 (2017). See also MCL 500.3112 (stating that in the absence of written notice by another claiming entitlement to payment, "[p]ayment by an insurer in good faith of personal protection insurance benefits, to or for the benefit of a person who it believes is entitled to the benefits, discharges the insurer's liability to the extent of the payments ....").
This outcome-the ability of a healthcare provider who has provided services to a party injured in a motor vehicle accident to pursue recovery from the provider as the assignee of the injured party's claim-is further supported by the manner in which the no-fault act addresses assignments. MCL 500.3143 provides that "[a]n agreement for assignment of a right to benefits payable in the future is void." This provision is unambiguous and prohibits only assignments of benefits payable in the future, as opposed to a right to payment of past or presently due benefits. Prof. Rehab. Assoc. v. State Farm Mut. Auto. Ins. Co. , 228 Mich. App. 167, 172, 577 N.W.2d 909 (1998). See also Shah , 324 Mich. App. at 216, 920 N.W.2d 148 ( SHAPIRO , J., concurring in part and dissenting in part) ("By not including past-due benefits in this statutory prohibition, the Legislature, under the doctrine of expressio unius est exclusio alterius , made clear its intent to adhere to the fundamental principle that assignments of past-due benefits are effective and proper."). If this Court were to hold that the assignment at issue in this case was an unenforceable partial assignment, it would effectively render the insured's right to assign a claim for past or presently due benefits meaningless.
IV. CONCLUSION
In sum, consistently with this Court's recent ruling in Shah , we conclude that the antiassignment clause in defendant's insurance policy is unenforceable because it is against public policy to the extent that it attempts to restrict the insured's ability to assign an accrued claim. We further conclude that Quinn's assignment to plaintiff was not unenforceable as a "partial assignment." We reverse the trial court's order granting defendant's motion for summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
O'Brien, P.J., and Tukel and Letica, JJ., concurred.
We recognize that our Supreme Court recently ordered oral argument on the insurance company's application for leave to appeal in that Court, directing it to brief "whether the anti-assignment clause in the defendant's insurance policy precludes the defendant's insured from assigning his right to recover no-fault personal protection insurance benefits to the plaintiff healthcare providers." Jawad A. Shah, MD, PC v. State Farm Mut. Auto. Ins. Co. , 503 Mich. 882, 918 N.W.2d 528 (2018).
Given our resolution of this issue, we will not address plaintiff's alternative argument concerning the enforceability of the antiassignment clause under MCL 440.9408. | [
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By order of December 4, 2018, the prosecuting attorney was directed to answer the application for leave to appeal the April 12, 2018 judgment of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals to address whether Offense Variable 12 (OV 12), MCL 777.42 was properly scored. In making this determination, the Court of Appeals shall consider whether the defendant committed three or more felonious criminal acts within 24 hours of the sentencing offense and whether the predicate offenses for the defendant's conviction of conducting a criminal enterprise constitute "the sentencing offense" or can be considered as contemporaneous felonious criminal acts for the purpose of scoring OV 12. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court. | [
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On order of the Chief Justice, the motion of appellee Unemployment Insurance Agency to extend the time for filing its answer is GRANTED. The answer will be accepted as timely filed if submitted on or before March 19, 2019. | [
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On order of the Chief Justice, the motion of defendant-appellee to retroactively extend the time for filing his answer to the application for leave to appeal is GRANTED. The answer submitted on January 25, 2019, is accepted as timely filed. On further order of the Chief Justice, the motion of plaintiff-appellant to strike the answer for being untimely is DENIED as moot. | [
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Murphy, P.J.
In a bench trial, defendant was convicted of being a felon in possession of a firearm (felon-in-possession), MCL 750.224f, being a felon in possession of ammunition, MCL 750.224f, possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and carrying a concealed weapon (CCW), MCL 750.227. He was sentenced to one to five years' imprisonment for each of the convictions, except for the felony-firearm conviction, for which he was sentenced to two years' imprisonment. We affirm.
Shortly after midnight on July 8, 2016, police officers on routine patrol in a marked cruiser observed a parked car with its engine running and headlights on, and the officers pulled alongside the driver's side of the vehicle. The officers shined their flashlights at the car, observing that a woman was behind the wheel and that defendant was sitting in the front passenger seat. There was police testimony that defendant looked shocked and leaned back in his seat, appearing to pull something out from his waist area with his right hand, followed by defendant's leaning forward as if he were attempting to place something on the floor under his seat. The officers found the movements suspicious, leading the police to believe that defendant may be armed. When one of the officers exited the police cruiser, defendant immediately jumped out of the passenger seat and car, holding a stack of money. Upon defendant's being detained, an officer went to the passenger side of the car, shined his flashlight inside the vehicle at the floorboard, and observed the back of a gun handle partly under the seat, giving rise to an inference, considering defendant's movements, that he had put the firearm in that spot in a frantic attempt to conceal it under the seat. The gun was seized, and defendant was arrested. Defendant testified that he had no knowledge that the gun was in the car, that he had never possessed the weapon on his person, that he did not see the gun in the vehicle, and that he did not own the firearm.
At the bench trial, defense counsel attempted to argue that evidence of the gun should be suppressed, considering that the officers lacked probable cause to stop and search the vehicle; however, the trial court refused to consider the argument because counsel had failed to challenge the search and seizure in a pretrial motion. On appeal, defendant argues that defense counsel was ineffective for not filing a pretrial motion to suppress the firearm and that there was insufficient evidence to support the convictions. We disagree.
With respect to the claim of ineffective assistance of counsel, defendant argues that the car was lawfully parked in front of his home, that he and the driver were quietly saying goodnight, that they had an expectation of privacy, that there was no indication by the officers that the neighborhood was rampant with criminal activity, and that "the police did not provide a single reason for coming up on defendant's car so clandestinely and shining their flashlights into it[.]" Defendant contends that the plain-view doctrine could not be invoked because the doctrine requires that an officer be in a place where he or she had a right to be, and the police in the instant case had no right to pull up within a couple feet of the car and then shine their flashlights inside. Defendant maintains that the officers needed to have some articulable suspicion of criminal activity being afoot to proceed as they did, and there was none. Defendant appears to accept that a police officer may generally, but not always, use a flashlight, but only if the officer was rightfully and lawfully positioned when doing so.
Defendant makes clear that his argument is not that his movements, i.e., leaning back, appearing to pull something from his waist area, and then leaning forward as if to put something under the seat, did not give rise to probable cause or reasonable suspicion to temporarily detain him, nor does he appear to contend that it was improper to shine the flashlight on the passenger-side floorboard where the gun was found. Rather, the entire premise of defendant's argument is that it was unconstitutional for the police to be in the position from which they initially saw defendant's movements; therefore, counsel was ineffective for not filing a pretrial motion to suppress the gun.
Defendant's argument is couched, at least in part, in terms of the plain-view doctrine, and in People v. Champion , 452 Mich. 92, 101, 549 N.W.2d 849 (1996), the Supreme Court observed:
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. A fundamental characteristic of the doctrine is that it is exclusively a seizure rationale. No searching, no matter how minimal, may be done under the auspices of the plain view doctrine. [Citations omitted.]
As can be gleaned from this passage, the plain-view doctrine is not technically applicable to the specific argument being made by defendant. Defendant's argument is more akin to cases involving whether the police can gather incriminating information from a particular vantage point to then justify a search or search warrant based on the information, or whether police conduct at that vantage point in gathering the information is itself a search implicating Fourth Amendment protections. We are addressing an argument that falls under what has been coined the "open view doctrine." In State v. Clark , 124 Idaho 308, 311-313, 859 P.2d 344 (1993), the Idaho Court of Appeals gave the following helpful explanation:
Both parties here urge application of a "plain view" analysis. ... However, we conclude that the plain view doctrine is not the proper framework for analysis of [the officer's] ... observation through the [mobile home's] corner window, for the plain view doctrine addresses the validity of warrantless seizures, not searches.
... [The] United States Supreme Court [has] clarified that the plain view doctrine is a constitutionally recognized justification only for warrantless seizures, not warrantless searches[.]
* * *
... [T]he plain view doctrine refers only to the circumstances where an officer has a prior justification for an intrusion into a constitutionally protected area or activity and in the course of that intrusion spots and seizes incriminating evidence. ... Accordingly, it is warrantless seizures of readily visible items, not warrantless searches, that are limited by the criteria delineated under the plain view doctrine.
The validity of a law enforcement officer's mere observation of objects or activities requires a different analysis. If the officer intruded into an area where a privacy interest exists in order to gain the view, the intrusion must be justified by one of the recognized exceptions to the warrant requirement. However, a policeman's mere observation from a vantage point that does not infringe upon a privacy interest, of something open to public view, normally implicates no Fourth Amendment constraints because observation of items readily visible to the public is not a "search." ... What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.
This Court and others have used the term "open view doctrine" to refer to this rule that no Fourth Amendment "search" occurs where a law enforcement officer observes incriminating evidence or unlawful activity from a non-intrusive vantage point. State v. Ramirez , 121 Idaho 319, 322[, 824 P.2d 894 (Idaho App., 1992) ] (officer's view into a car in a public parking lot) .... The "open view" terminology distinguishes the analysis applicable to warrantless observations from the legally distinct "plain view" doctrine applicable to seizures.
The open view analysis must be applied to determine whether [the officer's] view through the corner window was an unreasonable search prohibited by the Fourth Amendment. ... If his vantage point was not within a constitutionally protected area, his observation using only his normal vision to see that which was open to public gaze, was permissible under the open view doctrine. [Citations and quotation marks omitted.]
The Idaho court relied in part on Texas v. Brown , 460 U.S. 730, 739, 103 S.Ct. 1535, 75 L.Ed. 2d 502 (1983), wherein the United States Supreme Court indicated that the plain-view doctrine provides a basis to seize an item when the officer's access to the object had some previous justification under the Fourth Amendment. The Court cautioned that it is important to distinguish "plain view" justifying a seizure of an object from an officer's observation of an item left in plain or open sight, the latter of which does not involve a Fourth Amendment search. Id. at 738 n. 4, 103 S.Ct. 1535. The information gleaned as a result of observation of an object in plain or open sight can form the basis of probable cause or reasonable suspicion to proceed further. Id. The concept of open view was noted recently by our Supreme Court in People v. Frederick , 500 Mich. 228, 237 n. 4, 895 N.W.2d 541 (2017) :
For example, looking into the windows of a home from a sidewalk or other public area is not a search. But it is information-gathering, such that, if the police trespass on the home's curtilage and peer through the windows from that vantage point, they have conducted a search. The trespass converts conduct that would not otherwise constitute a search into a search.[ ]
Accordingly, the more precise question here is whether the police conducted a search that implicated Fourth Amendment protections by simply pulling up to the vehicle in which defendant was a passenger and observing movements taking place inside the car aided with flashlights. Stated otherwise, the issue is whether defendant's movements inside the car were in "open view." In turn, as we will explain, the analysis requires a determination whether defendant had a reasonable expectation of privacy or whether the officers' conduct constituted a trespass for purposes of information gathering.
In Frederick , 500 Mich. 228, 895 N.W.2d 541, the Michigan Supreme Court examined whether police conduct amounted to permissible "knock and talks" or warrantless searches in violation of the Fourth Amendment when police made early morning unscheduled visits to the two defendants' homes, obtained consents to search, and discovered marijuana-related products in each home. The Court held:
Because these knock and talks were outside the scope of the implied license [to go up to a house and knock on a door], the officers trespassed on Fourth-Amendment-protected property. And because the officers trespassed while seeking information, they performed illegal searches. Finally, because of these illegal searches, the defendants' consent-even if voluntary-is nonetheless invalid unless it was sufficiently attenuated from the illegality. [ Id. at 244, 895 N.W.2d 541.]
As part of the analysis, the Frederick Court acknowledged the decision in Florida v. Jardines , 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed. 2d 495 (2013), in which the police went to the front door of a house with a trained police dog who explored the area and alerted officers of the smell of drugs, which information was then used to obtain a search warrant. Frederick , 500 Mich. at 234-236, 895 N.W.2d 541. Our Supreme Court noted that the Jardines Court held that introducing a trained police dog to explore around the outside of a home in hopes of discovering incriminating information went beyond any customary invitation typically applicable to a limited licensee (knock promptly, wait briefly for response, and then leave unless invited to linger longer), thereby trespassing on property protected by the Fourth Amendment. Frederick , 500 Mich. at 236, 895 N.W.2d 541. The Frederick Court observed that the rule emanating from Jardines is that a trespass plus an attempt to gather information constitutes a search and thus implicates Fourth Amendment protections. Id. Our Supreme Court also noted that the expectation-of-privacy analysis for purposes of the Fourth Amendment set forth in Katz v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967), along with the property-rights or trespass analysis pertaining to the Fourth Amendment, are both part of Fourth Amendment jurisprudence subject to consideration. Frederick , 500 Mich. at 235 n. 2, 895 N.W.2d 541.
We hold that there was no reasonable expectation of privacy by defendant relative to his movements in the car parked on a public street and that there was no trespass by the police when they pulled up to the vehicle and looked inside. Therefore, the Fourth Amendment was not implicated and there was no search at the point in time when the police pulled alongside the parked car and observed defendant's movements therein. There plainly was no trespass, and defendant, while arguing that the officers' conduct was intrusive, makes no claim of a trespass. Defendant does maintain that he and his female companion had a reasonable expectation of privacy. We disagree. In Brown , 460 U.S. at 740, 103 S.Ct. 1535, the United States Supreme Court ruled:
... [T]he fact that [the officer] changed his position and bent down at an angle so he could see what was inside Brown's car ... is irrelevant to Fourth Amendment analysis. The general public could peer into the interior of Brown's automobile from any number of angles; there is no reason [the officer] should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled [the officer] to observe the interior of Brown's car and of his open glove compartment was not a search within the meaning of the Fourth Amendment. [Citations, quotation marks, and brackets omitted. ]
Accordingly, we conclude that defendant did not have a reasonable or legitimate expectation of privacy in the vehicle that was parked on a public street. To the extent that defendant's argument encompasses employment of the flashlights by the officers, it is unavailing. See Brown , 460 U.S. at 740, 103 S.Ct. 1535 ("Numerous ... courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection."); People v. Custer (On Remand) , 248 Mich. App. 552, 562, 640 N.W.2d 576 (2001) (holding that if a police officer's observation would not have constituted a search had it taken place in the daylight, then the fact that the officer used a flashlight to see through the nighttime darkness does not transform any observation into a search).
In sum, because filing a pretrial motion to suppress the gun would have been futile, defense counsel was not ineffective, as counsel is not required to file meritless or futile motions. People v. Fonville , 291 Mich. App. 363, 384, 804 N.W.2d 878 (2011).
Defendant next argues that there was insufficient evidence to prove beyond a reasonable doubt that he had ever possessed the gun. Again, we disagree. Viewing the direct and circumstantial evidence in a light most favorable to the prosecution, People v. Reese , 491 Mich. 127, 139, 815 N.W.2d 85 (2012) ; People v. Hardiman , 466 Mich. 417, 428, 646 N.W.2d 158 (2002), adhering to the principle that we must not interfere with the trier of fact's role in assessing the weight of the evidence and the credibility of the witnesses, People v. Wolfe , 440 Mich. 508, 514-515, 489 N.W.2d 748 (1992), mod. 441 Mich. 1201 (1992), appreciating that circumstantial evidence and reasonable inferences arising from such evidence can constitute satisfactory proof of an element of a crime, People v. Carines , 460 Mich. 750, 757, 597 N.W.2d 130 (1999), including firearm possession, People v. Johnson , 293 Mich. App. 79, 83, 808 N.W.2d 815 (2011), and resolving all conflicts in the evidence in favor of the prosecution, People v. Kanaan , 278 Mich. App. 594, 619, 751 N.W.2d 57 (2008), we hold that there was sufficient evidence for the trial court to find beyond a reasonable doubt that defendant possessed the gun.
Despite the lack of any direct evidence that defendant physically possessed the gun, we hold that there existed sufficient circumstantial evidence from which it could be reasonably inferred that defendant had actually possessed the gun before and at the time the police pulled up next to the vehicle in which defendant was a passenger. See People v. Minch , 493 Mich. 87, 91, 825 N.W.2d 560 (2012) (explaining that possession of a firearm can be either actual or constructive). The police testimony describing defendant's suspicious movements and his startled appearance when the officers stopped, his conduct in immediately jumping out of the vehicle, and the discovery of the weapon partway under the passenger seat, which location would be consistent with the nature of defendant's movements that suggested he had placed something under his seat, gave rise to a reasonable inference that defendant had physically handled and possessed the firearm. The evidence was sufficient to support the verdicts.
Affirmed.
Ronayne Krause, J., concurred with Murphy, P.J.
See also Florida v. Riley , 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed. 2d 835 (1989) (examining whether officer's observation of partially covered greenhouse in a backyard from the vantage point of a helicopter was a search under the Fourth Amendment).
See also State v. Harris , 98 Ohio App. 3d 543, 547, 649 N.E.2d 7 (1994) (holding that a person generally has no reasonable expectation of privacy in a public area, as there is always a risk that others will see things in open view, and while a defendant "may have a subjective expectation of privacy in his car while parked in a business lot, it is not one which this court, or more importantly, society is prepared to recognize as reasonable") (quotation marks and citation omitted); State v. Ramirez , 121 Idaho 319, 322, 824 P.2d 894 (1991) (holding that a car located in the parking lot of a bar is readily subject to observation by members of the public, and there exists no cognizable right to privacy in that portion of the vehicle's interior that may be viewed from outside the car by either an inquisitive passersby or a diligent police officer).
Although defendant's argument does not reach the issues, we conclude that defendant's suspicious movements inside the car justified, minimally, a brief Terry detention for purposes of investigating the possibility of criminal activity being afoot. People v. Custer , 465 Mich. 319, 326-327, 630 N.W.2d 870 (2001), citing Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). And the officer's observation of the back of the gun handle was from a lawful position regardless of the use of the flashlight, Custer , 248 Mich. App. at 562, 640 N.W.2d 576, thereby implicating, at this juncture, the plain-view doctrine, Champion , 452 Mich. at 101, 549 N.W.2d 849, allowing for the seizure of the gun.
"Possession" is an element of felon-in-possession, MCL 750.224f ; People v. Bass , 317 Mich. App. 241, 268-269, 893 N.W.2d 140 (2016), and felony-firearm, MCL 750.227b ; People v. Peals , 476 Mich. 636, 640, 720 N.W.2d 196 (2006) ; Johnson , 293 Mich. App. at 82-83, 808 N.W.2d 815, and the "carrying" element of CCW has been equated to possession, People v. Butler , 413 Mich. 377, 390 n. 11, 319 N.W.2d 540 (1982).
It appears from the trial court's written opinion and comments from the bench that the court found that defendant had actually possessed the gun, absent any reliance on constructive possession. | [
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On order of the Chief Justice, the separate motions of the Michigan Restaurant and Lodging Association and the Small Business for a Better Michigan Coalition to file briefs amicus curiae is GRANTED. The amicus briefs submitted by those groups on March 13, 2019, are accepted for filing. | [
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] |
On order of the Chief Justice, the separate motions of the Michigan Restaurant and Lodging Association and the Small Business for a Better Michigan Coalition to file briefs amicus curiae is GRANTED. The amicus briefs submitted by those groups on March 13, 2019, are accepted for filing. | [
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On order of the Chief Justice, the motion of appellee Unemployment Insurance Agency to extend the time for filing its answer is GRANTED. The answer will be accepted as timely filed if submitted on or before April 4, 2019. | [
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On order of the Chief Justice, the motion of defendant-appellant to file a reply in excess of the page limitation is GRANTED.
The 20-page reply submitted on March 14, 2019, is accepted for filing. | [
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On order of the Chief Justice, the motion of the Michigan Association of County Drain Commissioners, the Michigan Association of Counties, and the Michigan Townships Association to file a brief amicus curiae is GRANTED. The amicus brief submitted on March 14, 2019, is accepted for filing. | [
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] |
On order of the Chief Justice, the motion of Lavaron Morris to file a brief amicus curiae is GRANTED. The amicus brief submitted on March 14, 2019, is accepted for filing. | [
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On order of the Court, the application for leave to appeal the January 15, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the February 21, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. The motion to stay enforcement of the Court of Appeals order is DENIED.
Viviano, J., did not participate due to a familial relationship with the presiding circuit court judge in this case. | [
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] |
On order of the Chief Justice, the motion of defendant-appellant to file a reply in excess of the page limitation is GRANTED. The 18-page reply submitted on March 8, 2019, is accepted for filing. | [
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On order of the Court, the application for leave to appeal the July 25, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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Per Curiam.
In Docket No. 340921, defendant, Attorney General (AG) Bill Schuette, acting in his official capacity, appeals as of right the Court of Claims' denial of summary disposition, arguing that the Court of Claims erred by concluding that plaintiff, Progress Michigan, could amend its complaint to comply with the requirements of the Court of Claims Act, MCL 600.6401 et seq . In Docket No. 340956, defendant applied for leave to appeal, arguing that plaintiff failed to comply with the statute of limitations under the Freedom of Information Act (FOIA), MCL 15.231 et seq . This Court granted leave to appeal and consolidated the two appeals. Progress Mich. v. Attorney General , unpublished order of the Court of Appeals, entered December 20, 2017 (Docket No. 340956). For the reasons stated in this opinion, we reverse and remand for entry of summary disposition in favor of defendant.
After reviewing public records it had received through other FOIA requests, plaintiff alleges that it learned that defendant and his staff were performing official functions using personal e-mail accounts. Consequently, on September 27, 2016, plaintiff made a request pursuant to the FOIA. The request covered all e-mails sent or received by a group of 21 AG department staff members using personal e-mail accounts in the performance of any official function from the date of November 1, 2010, onward. On October 19, 2016, defendant denied plaintiff's request. Defendant stated that he did not possess any records meeting plaintiff's description, except for a single e-mail, which was not subject to disclosure because it was attorney work product. On November 26, 2016, plaintiff filed a departmental appeal of the denial with defendant, which defendant denied by letter dated December 12, 2016.
On April 11, 2017, plaintiff filed its original complaint in this action in the Court of Claims. Plaintiff's complaint contained two counts: (1) violation of the FOIA and (2) failure to preserve state records under the Management and Budget Act, MCL 18.1101 et seq. On May 16, 2017, defendant moved for summary disposition, arguing, in relevant part, that plaintiff's complaint was subject to dismissal for failure to comply with the Court of Claims Act's requirement that a claimant must sign and verify its claim, see MCL 600.6431(1), because the complaint was unsigned by plaintiff and unverified.
On May 26, 2017, plaintiff filed an amended complaint, which contained allegations identical to those in the original complaint. This time, however, the amended complaint was signed and verified. On June 13, 2017, defendant moved for summary disposition on the amended complaint. First, defendant argued that procedurally improper claims cannot be cured by virtue of an amendment of a complaint because the timing requirements of the Court of Claims Act apply to "claims," not "complaints." Thus, defendant argued that complaints can be amended but that claims cannot, because the two terms are not equivalent. Second, defendant argued that even if plaintiff could amend its complaint to comply with the requirements of the Court of Claims Act, it nevertheless was time-barred by the FOIA's statute of limitations, which provides for a 180-day limitations period, MCL 15.240(1)(b). This was so, defendant argued, because the amended complaint was filed more than 180 days after the denial of plaintiff's FOIA request and, thus, could only be deemed valid if it related back to the filing date of the original complaint. Defendant argued, however, that because the amended complaint did not add a claim or defense, a requirement to constitute an amended complaint under the Michigan Court Rules, it was not a proper amended complaint and its filing therefore could not relate back to the date of the filing of the original complaint. Therefore, defendant argued that plaintiff's claim was time-barred by the FOIA's statute of limitations.
The Court of Claims denied defendant's motion for summary disposition with respect to plaintiff's FOIA claim. The Court of Claims rejected defendant's distinction between a "claim" and a "complaint," holding that plaintiff had complied with the signature and verification requirements of the Court of Claims Act when it filed its amended complaint within the one-year statutory period in MCL 600.6431(1). The Court of Claims also held that the amended complaint related back to the filing of the original complaint, so plaintiff had complied with the FOIA's statute of limitations. Regarding plaintiff's count pertaining to an alleged violation of the Management and Budget Act, the Court of Claims granted summary disposition in favor of defendant because it found that the act does not provide a private right of action. Plaintiff has not appealed the Court of Claims' dismissal of the Management and Budget Act count. Thus, the only count pertinent to these appeals is plaintiff's FOIA count.
I. PLAINTIFF'S CHALLENGE TO THIS COURT'S JURISDICTION
On appeal, plaintiff contests this Court's jurisdiction over defendant's appeals. In Docket No. 340921, defendant appealed as of right under MCR 7.203(A)(1) the denial of summary disposition. And in Docket No. 340956, defendant applied for leave to appeal, which this Court granted under MCR 7.203(B)(1).
"Whether this Court has jurisdiction to hear an appeal is always within the scope of this Court's review." Chen v. Wayne State Univ. , 284 Mich.App. 172, 191, 771 N.W.2d 820 (2009). "The jurisdiction of the Court of Appeals is governed by statute and court rule." Id . Because "[t]his Court reviews de novo the proper interpretation of statutes and court rules as questions of law," this Court reviews de novo the question whether it has jurisdiction. Id .
MCR 7.203(A)(1) provides that this Court "has jurisdiction of an appeal of right filed by an aggrieved party from ... [a] final judgment or final order of the circuit court, or court of claims, as defined in MCR 7.202(6)...." In turn, MCR 7.202(6)(a)(v ) defines a "final judgment" or "final order" as "an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee under MCR 2.116(C)(7)...."
Plaintiff argues that the Court of Claims' denial of summary disposition did not deny defendant governmental immunity because there is no governmental immunity for disclosure of public records and, even if governmental immunity did apply to disclosure of public records, the FOIA had acted as a waiver of such immunity.
However, plaintiff's challenge to this Court's jurisdiction fails.
The Michigan Supreme Court stated in Fairley v. Dep't of Corrections , 497 Mich. 290, 297, 871 N.W.2d 129 (2015), that "while MCL 600.6431 does not 'confer governmental immunity,' it establishes conditions precedent for avoiding the governmental immunity conferred by the" governmental tort liability act, MCL 691.1401 et seq . Thus, contrary to plaintiff's position, defendant's assertion that plaintiff failed to comply with MCL 600.6431(1) does constitute a claim that defendant was entitled to governmental immunity. As a result, the Court of Claims' denial of summary disposition constituted a denial of governmental immunity to a governmental party, and the order thus constituted a final order under MCR 7.202(6)(a)(v ). Therefore, that aspect of the order is appealable of right under MCR 7.203(A)(1), thereby providing this Court with jurisdiction over the claim of appeal in Docket No. 340921. See also Watts v. Nevils , 477 Mich. 856, 720 N.W.2d 755 (2006) ; Walsh v. Taylor , 263 Mich.App. 618, 625, 689 N.W.2d 506 (2004). Further, whether there is actually a governmental immunity defense to an alleged failure to disclose public records and whether the FOIA waives any such defense goes to the merits of the appeal, i.e., to whether defendant is actually entitled to governmental immunity in this case, not to the jurisdictional issue of whether the order appealed from denied him governmental immunity.
Additionally, in Docket No. 340956, plaintiff ignores the fact that this Court granted leave to appeal, undisputedly giving this Court jurisdiction over the appeal. See MCR 7.203(B)(1) (providing that this Court "may grant leave to appeal from ... a judgment or order of the circuit court and court of claims that is not a final judgment appealable of right").
II. AMENDED COMPLAINT
A. STANDARDS OF REVIEW
This Court reviews issues of statutory interpretation de novo.
PNC Nat'l Bank Ass'n v. Dep't of Treasury , 285 Mich.App. 504, 505, 778 N.W.2d 282 (2009). We also review a trial court's decision on a motion for summary disposition de novo. Spiek v. Dep't of Transp. , 456 Mich. 331, 337, 572 N.W.2d 201 (1998). A motion brought under MCR 2.116(C)(7) can be granted if the plaintiff's claim is barred because of an "immunity granted by law" or because a claim is barred by the applicable "statute of limitations." MCR 2.116(C)(7) ; see also Genesee Co. DrainComm'r v. Genesee Co. , 309 Mich.App. 317, 323, 869 N.W.2d 635 (2015). "When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts them." Dextrom v. Wexford Co. , 287 Mich.App. 406, 428, 789 N.W.2d 211 (2010). "If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court." Id. at 429, 789 N.W.2d 211.
B. DISCUSSION
Defendant argues that plaintiff's FOIA complaint is untimely and invalid. There are two statutes at issue here, with different timing requirements, and this appeal involves the interplay between them. In order to frame the legal issues presented, we note in summary fashion the timing of the relevant events:
October 19, 2016: Defendant denies plaintiff's FOIA request.
December 12, 2016: Defendant denies a departmental appeal of plaintiff's FOIA request.
April 11, 2017: Plaintiff files its original complaint in the Court of Claims.
May 26, 2017: Plaintiff files its amended complaint in the Court of Claims.
There are two statutes that control the circumstances under which a party aggrieved by the denial of a FOIA request may challenge an agency's decision. Section 10(1) of the FOIA, MCL 15.240(1), provides, in relevant part:
If a public body makes a final determination to deny all or a portion of a request, the requesting person may do 1 of the following at his or her option:
* * *
(b) Commence a civil action in the circuit court, or if the decision of a state public body is at issue, the court of claims, to compel the public body's disclosure of the public records within 180 days after a public body's final determination to deny a request.
Because the Department of Attorney General is a public body, in order to challenge its denial of the FOIA request through the filing of suit, plaintiff was required by Subdivision (b) to bring this action in the Court of Claims. Court of Claims actions, in turn, have their own procedural requirements, as provided for by the Court of Claims Act:
No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths. [ MCL 600.6431(1).]
It is a clearly established principle that "when the Legislature specifically qualifies the ability to bring a claim against the state or its subdivisions on a plaintiff's meeting certain requirements," those requirements are strictly construed as written. McCahan v. Brennan , 492 Mich. 730, 746, 822 N.W.2d 747 (2012). While the Court of Claims Act generally provides that suits must be brought within one year of a claim's accrual, MCL 600.6431(1), in cases involving claims for personal injury or property damage, a claimant "shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action," MCL 600.6431(3). In McCahan , our Supreme Court construed that language, holding that "the statutory provision must be understood as a cohesive whole. Subsection (1) sets forth the general rule, for which subsection (2) sets forth additional requirements and which subsection (3) modifies for particular classes of cases that would otherwise fall under the provisions of subsection (1)." McCahan , 492 Mich. at 742, 822 N.W.2d 747. "Accordingly, subsection (3) incorporates the consequence for noncompliance with its provisions expressly stated in subsection (1) and does not otherwise displace the specific requirements of subsection (1) other than the timing requirement for personal injury or property damage cases." Id. (emphasis omitted). "Therefore, the failure to file a compliant claim or notice of intent to file a claim against the state within the relevant time periods designated in either subsection (1) or (3) will trigger the statute's prohibition that '[n]o claim may be maintained against the state....' " Id . Although the separate requirements of MCL 15.240(1) were not at issue in McCahan , we view McCahan 's rationale as controlling. When the state consents to suit, the Legislature may "place conditions or limitations" on the state's waiver of immunity. Id. at 736, 822 N.W.2d 747. Clearly the Legislature, through the enactment of § 10 of the FOIA, consented to suit by aggrieved parties. But equally clearly, in cases in which the adverse decision was made by a state public body, the Legislature has determined that suit can only be brought in the Court of Claims. Further, in the Court of Claims Act, the Legislature has set forth procedures that govern in all cases brought in the Court of Claims. Those procedures include the statute-of-limitations provisions of MCL 600.6431 and also include the requirement in MCL 600.6431(1) that a complaint "shall be signed and verified by the claimant before an officer authorized to administer oaths." In the context presented here, in which both a statute providing a cause of action against the state and the Court of Claims Act apply, and in which each statute has distinct prerequisites to bringing suit, "the statutory provision[s] must be understood as a cohesive whole." McCahan , 492 Mich. at 742, 822 N.W.2d 747. Thus, in such circumstances, a plaintiff must comply with the prerequisites set forth in both statutes. Even "post-Court of Claims Act legislation waiving suit immunity ... is limited by the terms and conditions of jurisdiction established in the Court of Claims Act." Greenfield Constr. Co., Inc. v. Dep't of State Highways , 402 Mich. 172, 196, 261 N.W.2d 718 (1978) (opinion by RYAN , J.). Preconditions to maintaining an action against the state do "not abrogate a substantive right, but rather provide[ ] the framework within which a claimant may assert that right." Rusha v. Dep't of Corrections , 307 Mich.App. 300, 310, 859 N.W.2d 735 (2014).
Applying that rule to the facts here, plaintiff's complaint fails. Plaintiff filed its initial complaint on April 11, 2017, less than 180 days after defendant's denial of its FOIA request on October 19, 2016. The complaint thus was timely under each of the statutes. However, the complaint failed to comply with the Court of Claims Act because it was neither signed nor verified. The complaint thus triggered the Court of Claims Act's "bar-to-claim language" of MCL 600.6431(1) that "[n]o claim may be maintained against the state" if the claim failed to comply with the Court of Claims Act's strictures. McCahan , 492 Mich. at 743, 822 N.W.2d 747.
The Court of Claims Act's requirement that a claim may not be maintained unless it is signed and verified is analogous to the requirements for initiating a medical malpractice claim. In Scarsella v. Pollak , 461 Mich. 547, 549, 607 N.W.2d 711 (2000), our Supreme Court held that the plaintiff's failure to adhere to the statutory requirements for filing a medical malpractice claim meant that the filing was void, thereby making any attempt to amend the initial complaint futile. At issue in Scarsella was the requirement found in MCL 600.2912d(1), which provides that "the plaintiff in a medical malpractice action 'shall file with the complaint an affidavit of merit ....' " Id. at 548, 607 N.W.2d 711, quoting MCL 600.2912d(1) (quotation marks and citation omitted). Because the plaintiff in Scarsella did not file the required affidavit of merit with his initial complaint, the complaint "was insufficient to commence plaintiff's malpractice action" and therefore did not toll the limitations period. Scarsella , 461 Mich. at 550, 607 N.W.2d 711 (quotation marks and citation omitted). Like the plaintiff in Scarsella , plaintiff here argues that it should have been allowed to amend the complaint such that the complaint then would comply with the statutory requirements. See id. However, we reject this argument because, as the Supreme Court noted, "it effectively repeals" the statutory requirement. Id. (quotation marks and citation omitted). Under plaintiff's view, plaintiffs could routinely file their complaints without having the claims verified and then "amend" the complaint at a later date after the period of limitations had passed. In the words of the Scarsella Court, this would "completely subvert[ ]" the requirements of MCL 600.6431(1). Id. (quotation marks and citation omitted).
Plaintiff sought to correct the deficiencies in its complaint by attempting to amend the pleading pursuant to MCR 2.118 on May 26, 2017. The amended complaint was filed within one year of the accrual of plaintiff's claims and therefore was timely under the Court of Claims Act; however, the amended complaint was filed more than 180 days after the denial of plaintiff's FOIA request and therefore was untimely under the FOIA.
The only way in which either of the complaints that plaintiff filed could be deemed valid is if the amended complaint, the only one that complied with the signature and verification requirements of the Court of Claims Act, was deemed to relate back to the filing of the original complaint, which was itself defective but timely. However, the Court of Claims Act is clear that "[n]o claim may be maintained" unless certain conditions are satisfied, MCL 600.6431(1), and the original complaint here undisputedly did not satisfy those requirements. "All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning." MCL 8.3a. Because the word "maintained" as used in the Court of Claims Act is used in a technical, legal manner to convey a particular legal result, we are required to construe it according to that "peculiar and appropriate meaning." To "maintain" is defined in pertinent part, as "[t]o continue (something)" or "[t]o assert (a position or opinion)[.]" Black's Law Dictionary (10th ed.). Accordingly, because the claim was not being verified in plaintiff's initial complaint, the claim could not be asserted and thus lacked legal validity from its inception. In other words, because the claim in the initial complaint could not be "maintained," it was a nullity. See Scarsella , 461 Mich. at 550, 607 N.W.2d 711 (stating that because the complaint did not comply with statutory prerequisites to filing, it "was insufficient to commence [plaintiff's malpractice] action") (quotation marks and citation omitted).
Because plaintiff's complaint was invalid from its inception, there was nothing pending that could be amended. Therefore, any attempt by plaintiff to amend under MCR 2.118 was ineffectual. Moreover, although MCR 2.118 creates a general right to amend a complaint, the statutory provisions of the FOIA and the Court of Claims Act, as substantive law, control over any conflicting court rule. See Stenzel v. Best Buy Co., Inc. , 320 Mich.App. 262, 279, 906 N.W.2d 801 (2017). The Court of Claims therefore erred by holding that the court rules permitted plaintiff to amend its complaint and for that amended complaint to relate back to the date of the original complaint. In addition, because the complaint was fatally deficient from its inception, it could not and did not toll the limitations period. See Scarsella , 461 Mich. at 550, 607 N.W.2d 711.
Reversed and remanded for entry of summary disposition in favor of defendant. We do not retain jurisdiction.
METER, P.J., and GADOLA and TUKEL, JJ., concurred.
Plaintiff's counsel conceded at oral argument that the FOIA 180-day limitations period began to run from the October 19, 2016 date of defendant's initial denial of its request, not from the later date of defendant's denial of plaintiff's departmental appeal. This undoubtedly is correct as the FOIA explains that such an appeal happens after a "final determination" is made. See MCL 15.240(1)(a). Thus, the public body's decision in the departmental appeal, although later in time, is not a "final determination" under the statute.
We are cognizant that the statutory language of MCL 600.6431(1) and MCL 600.2912d(1) differ. MCL 600.6431(1) provides that a claim cannot be "maintained" unless other requirements are met, whereas MCL 600.2912d(1) provides that an affidavit of merit "shall [be] file[d] with the complaint." However, both establish mandatory prerequisites to filing suit and thus present the same issue.
Although it could not amend its defective complaint to comply with the statutory requirements because the initial complaint was neither signed nor verified as required by the Court of Claims Act, plaintiff was free at any time within the 180-day period provided by the FOIA to file a fresh, signed and verified complaint, which would have had the effect of commencing a civil action (given that the original filing was a nullity and did not initiate a proceeding). See Scarsella , 461 Mich. at 549-550, 607 N.W.2d 711. The fact that plaintiff failed to do so in a timely manner forecloses the present suit. | [
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] |
Per Curiam.
Defendants Dayne Walling, Howard Croft, Michael Glasgow, Daugherty Johnson III, and the city of Flint (defendants) appeal as of right the trial court's sua sponte order dismissing plaintiffs' claims against them for lack of subject-matter jurisdiction. We affirm.
Plaintiffs, residents of and a company located in the city of Flint, filed this lawsuit in June 2016 (purportedly as a class action) against the city, various officers and employees of the city, former emergency managers of the city, the Governor, the state of Michigan, the Michigan Department of Environmental Quality (MDEQ), and various employees of the MDEQ. The lawsuit concerns the contaminated water supply in Flint, Michigan. Plaintiffs allege that defendants conspired to keep from plaintiffs the seriousness of the pollution and contamination and that defendants allowed delivery of the water supply to continue, which put plaintiffs' health at risk and caused them damages. The specific causes of action were breach of contract, unjust enrichment, and declaratory relief.
Darnell Earley, Gerald Ambrose, and defendants moved for summary disposition in lieu of answering the complaint. Relevant to the instant matter, before a decision was rendered on that motion, the court, on its own motion, dismissed plaintiffs' claims against defendants "in accordance with the August 25, 2016 Opinion and Order issued in Collins v. City of Flint, et al ., Court of Court of Claims Docket No. 16-115-MZ and Vale v. City of Flint , Court of Claims Docket No. 16-116-MK." In those cases, the plaintiffs commenced intended class action lawsuits in the Genesee Circuit Court regarding the water crisis in Flint against the Governor, the state of Michigan, the city of Flint, the city's former emergency managers, and several city employees. The plaintiffs asserted that the defendants (1) breached a contract with residents to provide potable water, (2) breached an implied warranty of fitness for a particular purpose, (3) violated the Michigan Consumer Protection Act, and (4) unjustly enriched the city. In Collins and Vale , the City transferred the claims against the city, the former emergency manager, and the city employees from the Genesee Circuit Court to the Court of Claims. The plaintiffs in Collins challenged the validity of the notice of transfer, contending that the city was not an "arm of the state" as set forth in MCL 600.6419(1)(a). The plaintiff in the Vale case sought summary disposition alleging that the Court of Claims lacked subject-matter jurisdiction. The Court of Claims ruled that the city was not an arm of the state and that the claims against the city and its employees were within the exclusive subject-matter jurisdiction of the circuit court.
In this case, defendants assert that municipalities act as arms of the state whenever they act in the name of public health and that municipalities operate waterworks in the name of public health. Defendants additionally assert that the state's emergency management of a municipality under the Local Financial Stability and Choice Act, MCL 141.1541 et seq., transforms the municipality into an arm of the state and that the Court of Claims has exclusive jurisdiction over claims brought against arms of the state. We disagree and conclude (1) that municipality is not an arm of the state when it operates a waterworks plant and (2) that a municipality and its employees operating under the state's emergency-manager laws are not arms of the state for purposes of jurisdiction in the Court of Claims.
''A challenge to the jurisdiction of the Court of Claims presents a statutory question that is reviewed de novo as a question of law.'' AFSCME Council 25 v. State Employees' Retirement Sys. , 294 Mich.App. 1, 6, 818 N.W.2d 337 (2011). ''Challenges to subject-matter jurisdiction cannot be waived, and a court must entertain such challenges regardless of when they are raised, or even raise such challenges sua sponte.'' O'Connell v. Dir. of Elections , 316 Mich.App. 91, 100, 891 N.W.2d 240 (2016).
" 'The Court of Claims is created by statute and the scope of its subject-matter jurisdiction is explicit.' " Id. at 101, 891 N.W.2d 240 (2016), quoting Dunbar v. Dep't of Mental Health , 197 Mich.App. 1, 5, 495 N.W.2d 152 (1992). The Court of Claims has exclusive jurisdiction to hear and determine "any claim or demand, statutory or constitutional, liquidated or unliquidated, ex contractu or ex delicto, or any demand for monetary, equitable, or declaratory relief or any demand for an extraordinary writ against the state or any of its departments or officers notwithstanding another law that confers jurisdiction of the case in the circuit court." MCL 600.6419(1)(a). Included in the definition of "the state or any of its departments or officers" are the state of Michigan and
any state governing, legislative, or judicial body, department, commission, board, institution, arm, or agency of the state, or an officer, employee, or volunteer of this state or any governing, legislative, or judicial body, department, commission, board, institution, arm, or agency of this state, acting, or who reasonably believes that he or she is acting, within the scope of his or her authority while engaged in or discharging a government function in the course of his or her duties. [ MCL 600.6419(7).]
The determination whether the Court of Claims possesses jurisdiction is governed by the actual nature of the claim, not how the parties characterize the nature of the claim or phrase the request for relief. AFSCME , 294 Mich.App. at 6, 818 N.W.2d 337.
At issue in this case is the phrase "arm of the state" in MCL 600.6419(7). More specifically, we must determine when an individual or entity is an arm of the state such that the individual or entity may be considered "the state or any of its departments or officers" and thus an action against that individual or entity would fall under the exclusive jurisdiction of the Court of Claims.
The difficulty in determining when a city or municipality acts as an arm of the state has a long history. In Tzatzken v. Detroit , 226 Mich 603, 604, 198 N.W. 214 (1924), our Supreme Court indicated that a municipality exercises dual powers, acting sometimes as an arm of the state, in which all members of the public are concerned, and acting at other times independently by exercising powers of a proprietary character. This Court explained the dual roles undertaken by a city or municipality:
It developed historically that cities operated under one of two personalities. The municipality when acting as an arm of the state possessed a "public" character, but when acting for the concerns of the citizenry of the city it was functioning within its "private" personality. This public versus private analysis was utilized in evaluating questions of municipal tort immunity. If wearing the public hat, the municipal corporation was said to be performing governmentally and was immune from tort liability as was the state. On the other hand, if the activity was for the benefit of the peculiar locality, then the municipal corporation was deemed equivalent to a private corporation. [ Beauchamp v. Saginaw Twp. , 74 Mich.App. 44, 48, 253 N.W.2d 355 (1977).]
The conclusions about what municipal activities constitute "public" (i.e., arm of the state) action or ''private" (i.e., municipal) action have changed throughout the years. In Curry v. Highland Park , 242 Mich. 614, 620-621, 219 N.W. 745 (1928), our Supreme Court recognized and accepted out-of-state authority holding that a city is discharging a governmental function when it engages in the collection and disposal of garbage and in the collection of ashes, refuse, and street sweepings. The Curry Court noted, "In each instance the act of the municipality is in the interest of the public health and the municipality acts as the arm of the State." Id . The Curry Court also cited Michigan cases ''sustain[ing] ordinances regulating the collection and disposal of garbage upon the ground that they were a valid exercise of the police power" and concluded that the collection and disposal of garbage is a state government function. Id . at 621-622, 219 N.W. 745. In Detroit v. Corey , 9 Mich. 165, 184 (1861), our Supreme Court held that [t]he sewers of the city, like its works for supplying the city with water, are the private property of the city-they belong to the city. The corporation and its corporators, the citizens, are alone interested in them-the outside public or people of the state at large have no interest in them, as they have in the streets of the city, which are public highways. In Beauchamp , 74 Mich.App. at 51, 253 N.W.2d 355, however, this Court stated, "[w]e cannot distinguish sewers [from the collection and disposal of garbage], and find that the construction of sewers as a public health measure is a governmental function."
In Attorney General ex rel. Lennane v. Detroit , 225 Mich. 631, 196 N.W. 391 (1923), the city of Detroit adopted an ordinance regulating the wages paid to third-party employees working on municipal construction contracts. The Supreme Court stated:
That the municipality performs dual functions, some local in character, the others as agent of the State, will be presently considered; and, while this court from the beginning has vigilantly sustained the right of local self-government, it has with equal vigilance sustained the right of the state in the exercise of its sovereign power. Attempts of the State to meddle with the purely local affairs of a municipality have been promptly checked by this court, and attempts of municipalities to arrogate to themselves power possessed by the State alone in its sovereign capacity must meet a like check at the hands of this court. Neither may trench upon the power possessed by the other alone. [ Id . at 636, 196 N.W. 391.]
The Court held that in enacting the ordinances at issue, "the city has undertaken to exercise the police power not only over matters of municipal concern but also over matters of State concern; it has undertaken not only to fix a public policy for its activities which are purely local but also for its activities as an arm of the State." Id . at 640-641, 196 N.W. 391. The Court thus found that wage rates were a matter of state concern.
Our Supreme Court, however, overruled Lennane in the recent case of Associated Builders & Contractors v. Lansing , 499 Mich. 177, 880 N.W.2d 765 (2016). In Associated Builders , the Court stated that Lennane 's conception of municipal power may or may not have been well-grounded in Michigan's 1908 Constitution and the legal landscape of the time, but it is certainly incongruent with the state of our law as reflected in our current Constitution. We therefore conclude that Lennane has no continuing viability in light of the adoption of our 1963 Constitution. [ Associated Builders , 499 Mich. at 183, 880 N.W.2d 765.] The Associated Builders Court explained that the revisions found in Michigan's 1963 Constitution reflected Michigan's successful experience with home rule and ''expresse[d] the people's will to give municipalities even greater latitude to conduct their business[.]'' Id . at 186, 880 N.W.2d 765. Michigan's revised Constitution thus expanded the scope of authority of Michigan's cities and villages. Id. at 187, 880 N.W.2d 765. The Court determined that the wage rates at issue "concern how a municipality acts as a market participant, spending its own money on its own projects" and how "[u]nder our Constitution, cities and villages may enact ordinances relating to 'municipal concerns, property and government,' including ordinances and charter provisions regulating the wages paid to third-party employees working on municipal construction contracts, 'subject to the constitution and law.' " Id . at 187, 192, 880 N.W.2d 765 (citation omitted). Thus, as the legal landscape has changed, so too, has the interpretation of what constitutes an action taken as an arm of the state. This is particularly so in the realm of utilities or services.
With respect to waterworks in particular, the Home Rule City Act, MCL 117.1 et seq. , authorizes a municipality to provide for the installation and connection of sewers and waterworks in its charter. MCL 117.4b. The operation and maintenance of waterworks is generally found to be a proprietary or private function of a municipality as opposed to a governmental function. Exceptions, as always, do exist, but they are easily identifiable. "Although a city may in the construction, operation and maintenance of a water works system be acting, under certain factual circumstances, in a governmental capacity, as a general proposition the weight of authority is to the effect that in engaging in such an enterprise the city acts in a proprietary or private capacity." Taber v. Benton Harbor , 280 Mich. 522, 525, 274 N.W. 324 (1937). The cases cited in Taber were out-of-state cases and only one, Miller Grocery Co. v. Des Moines , 195 Iowa 1310, 192 N.W. 306 (1923), set forth a factual situation in which maintenance of a waterworks was deemed a governmental function.
In Miller , the court held that a municipality, acting in a governmental capacity, had the right to maintain and operate waterworks for the purpose of fire protection and also had the right, in its proprietary capacity, to operate waterworks to distribute water to citizens and receive money for the same. Id . at 307. The majority of cases cited in Taber reiterated that a municipality supplying water to its citizens did so in a proprietary function. Taber , 280 Mich. at 525, 274 N.W. 324. See Woodward v. Livermore Falls Water Dist. , 116 Me. 86, 100 A. 317 (1917) (holding that a municipal corporation engaged in the business of supplying water to its inhabitants was engaged in an undertaking of a private nature because it entered into an enterprise that involved the ordinary incidents of a business wherein it sold what people desired to buy and that might become a source of profit); Canavan v. Mechanicville , 229 N.Y. 473, 476, 128 N.E. 882 (1920) ("While the business of maintaining a municipal water system and supplying water to private consumers at fixed compensation is public in its nature and impressed with a public interest, it is not an exercise of governmental or police power. A municipal corporation in aggregating and supplying water for the extinguishment of fires discharges a governmental function. In operating a water works system, distributing water for a price to its inhabitants, it acts in its private or proprietary capacity, in which it is governed by the same rules that apply to a private corporation so acting.").
What is gleaned from these cases is that if a municipality is supplying a utility-or specifically waterworks-to its citizens and the citizens are paying for the waterworks, the municipality is operating the waterworks as a business, and it is doing so as a businessman or corporation, not as a concern of the state government or as the arm of the state. It is, after all, serving only a limited number of people within its boundaries, not the state as a whole. If, on the other hand, the municipality is supplying water for the purpose of protecting its citizens from fire or natural disaster or anything else that has the potential to have statewide impact, and it is not profiting from the provision of that water, it could be deemed to be serving a government function and serving the public in general. Then the municipality could be deemed to be acting as an arm of the state in maintaining and operating waterworks.
Taking all of this into account, we conclude that the city of Flint was not acting as an arm of the state when operating its waterworks. Historically, a municipality's provision of drinking water to its citizens-which is precisely the issue here-was not considered a government function because the municipality was acting in its role as a proprietor, and not in a governmental capacity. And, with the enactment of the Home Rule City Act and the adoption of the 1963 Constitution, municipalities were provided with even more power and control over activities such as providing utilities or services to their populations. The city has provided no persuasive argument or binding authority to indicate that the city was acting as an arm of the state when operating its waterworks. The Court of Claims therefore did not have exclusive jurisdiction over plaintiffs' claims against defendants.
The city has also provided no persuasive argument or binding authority to indicate that the state of Michigan's emergency management of a municipality under the Local Financial Stability and Choice Act transforms the municipality into an "arm of the state." The Act. That Act states, at MCL 141.1543 :
The legislature finds and declares all of the following:
(a) That the health, safety, and welfare of the citizens of this state would be materially and adversely affected by the insolvency of local governments and that the fiscal accountability of local governments is vitally necessary to the interests of the citizens of this state to assure the provision of necessary governmental services essential to public health, safety, and welfare.
(b) That it is vitally necessary to protect the credit of this state and its political subdivisions and that it is necessary for the public good and it is a valid public purpose for this state to take action and to assist a local government in a financial emergency so as to remedy the financial emergency by requiring prudent fiscal management and efficient provision of services, permitting the restructuring of contractual obligations, and prescribing the powers and duties of state and local government officials and emergency managers.
(c) That the fiscal stability of local governments is necessary to the health, safety, and welfare of the citizens of this state and it is a valid public purpose for this state to assist a local government in a condition of financial emergency by providing for procedures of alternative dispute resolution between a local government and its creditors to resolve disputes, to determine criteria for establishing the existence of a financial emergency, and to set forth the conditions for a local government to exercise powers under federal bankruptcy law.
(d) That the authority and powers conferred by this act constitute a necessary program and serve a valid public purpose.
Under the act, the governor appoints an emergency manager after the governor has determined that a local government is in a state of financial emergency. MCL 141.1546(1)(b) ; MCL 141.1549(1). When appointed, an emergency manager shall act for and in the place and stead of the governing body and the office of chief administrative officer of the local government. The emergency manager shall have broad powers in receivership to rectify the financial emergency and to assure the fiscal accountability of the local government and the local government's capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare. [ MCL 141.1549(2).] The state of Michigan provides the financial compensation for the emergency manager, MCL 141.1549(3)(e) and (f), and all powers and duties of the emergency manager are conferred on that position by the Legislature, MCL 141.1549(4) and (5) ; MCL 141.1550 to MCL 141.1559. An emergency manager, as an appointee of the state government, is an employee of the state government. Mays v. Governor , 323 Mich.App. 1, 54, 916 N.W.2d 227 (2018). While this means that claims against an emergency manager acting in his or her official capacity clearly fall within the subject-matter jurisdiction of the Court of Claims, it does not necessarily follow that the municipality itself is transformed into an arm of the state while under the direction of an emergency manager.
The only Michigan authority that attempted to specifically define "arm" of the state was Manuel v. Gill , 481 Mich. 637, 753 N.W.2d 48 (2008). In that case, our Supreme Court noted that though it was not aware of any law creating an ''arm'' of the state, "the term is commonly defined as 'an administrative or operational branch of an organization' ...." Id . at 650, 753 N.W.2d 48. The Manuel Court had to determine whether the Tri-County Metro Narcotics Squad was a state agency that could only be sued in the Court of Claims, and the Court consulted MCL 600.6419(1)(a) and the various listed state entities over which the Court of Claims had exclusive jurisdiction. In doing so, the Manuel Court reviewed examples of those various entities-departments, commissions, boards, institutions, agencies-and employed a standard dictionary to define an "arm" of the state. The definition recited in Manuel is dicta; the Court attempted to define only the term "arm," and the definition provided gives only limited guidance on the matter at hand.
Because the term is not defined in the relevant statute, we are to ascribe to the term its plain and ordinary meaning. Inter Co-op. Council v. Dep't of Treasury , 257 Mich.App. 219, 223, 668 N.W.2d 181 (2003). It is appropriate to consult a dictionary for definitions. Anzaldua v. Neogen Corp. , 292 Mich.App. 626, 632, 808 N.W.2d 804 (2011). "Arm of the state" is defined in Black's Law Dictionary (10th ed.) as, "[a]n entity created by a state and operating as an alter ego or instrumentality of the state, such as a state university or a state department of transportation." "Instrumentality" is defined as "[a] means or agency through which a function of another entity is accomplished, such as a branch of a governing body." Id . It is unclear why the Manuel Court chose to look to a standard dictionary rather than the law dictionary when touching on the definition of an "arm" of the state. In any event, employing the definitions set forth in Black's Law Dictionary, it is clear that even while under emergency management, the city was not operating as an alter ego or instrumentality of the state.
As indicated in the Local Financial Stability and Choice Act, "it is a valid public purpose for this state to take action and to assist a local government in a financial emergency so as to remedy the financial emergency...." MCL 141.1543(b). The primary purpose of the act, then, is for the state of Michigan to temporarily assist local governments during a financial crisis. The emergency manager, in place of the chief administrative officer and governing body, acts for and on behalf of the local government only. MCL 141.1549(2) ; MCL 141.1552(2). At all times, then, the city remained a municipality, albeit with a state employee temporarily overseeing the financial management of the municipality's affairs. The city was at no time operating as "a means or agency through which a function of another entity [i.e., the state] is accomplished[.]" No function or purpose of the state was accomplished by the emergency manager's oversight of the city. The City was instead always operating as a means through which its own functions were accomplished. The state simply engaged a state employee to temporarily assist the city with performing its local functions and serving its local purposes on behalf of its citizens. Moreover, were we to find that whenever a state employee assists in, or even temporarily takes over the management of a private (for lack of a better word) entity, that entity then becomes an arm of the state, we would be opening the state of Michigan up to liabilities that were never intended and undermining the Governmental Tort Liability Act, MCL 691.1401 et seq. We thus do not find that the state's emergency management of a municipality under the Local Financial Stability and Choice Act transforms the municipality into an "arm of the state." Therefore, the Court of Claims does not have exclusive jurisdiction over plaintiffs' claims against defendants.
Affirmed.
Servitto, P.J., and Markey and O'Connell, JJ., concurred.
We refer to these particular defendants-appellants as "defendants" throughout this opinion for ease of reference even though the action was filed against additional parties.
The Court of Claims concluded that it did have jurisdiction over claims against emergency manager Darnell Earley because he was an officer of the state at all times during his oversight of the city's receivership. Nevertheless, because Earley had the right to a jury trial and because the circuit court had concurrent jurisdiction of the case, the Court of Claims concluded that the circuit court was the more appropriate venue to resolve the claims against Earley.
Overruled by Associated Builders & Contractors v. Lansing , 499 Mich. 177, 880 N.W.2d 765 (2016), as discussed later in this opinion.
Enacted in 1909, the Home Rule City Act provided for the incorporation of cities and set out specific powers and duties, among other things.
Black's Law Dictionary (10th ed.) (defining "instrumentality"). | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the December 26, 2018 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted. Trial court proceedings are stayed pending the completion of this appeal. On motion of a party or on its own motion, the Court of Appeals may modify, set aside, or place conditions on the stay if it appears that the appeal is not being vigorously prosecuted or if other appropriate grounds appear. | [
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On October 9, 2018, the Court heard oral argument on the application for leave to appeal the May 16, 2017 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, there being no majority in favor of granting leave to appeal or taking other action.
Viviano, J. (dissenting).
I respectfully dissent from the Court's order denying leave to appeal. I believe that the circuit court and the Court of Appeals erred in holding that plaintiff's declaratory judgment claim was not ripe. The Court of Appeals then proceeded to determine whether the parties had any present rights or obligations under their settlement agreement, even though such a determination was not necessary to the Court's ripeness analysis. Regardless, I believe the Court of Appeals further erred by concluding that the parties had no present rights or obligations under the settlement agreement. Accordingly, I would vacate Part (III)(A) of the Court of Appeals' opinion and remand to the trial court for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
In 2002, defendant Visteon Corporation entered into discussions with plaintiff Van Buren Charter Township about the possibility of locating its national headquarters in the Township. Specifically, defendant discussed building its headquarters in plaintiff's Local Development Finance Authority District (LDFA District). In 2003, plaintiff issued over $28 million in bonds to assist in the construction of defendant's headquarters, known as "Visteon Village." Plaintiff projected that property-tax revenue from the LDFA District would cover the costs of bond issuance.
By 2006, tax revenues from the LDFA District were lower than projected, so plaintiff issued new bonds in order to advance refund a portion of the original bonds. This allowed plaintiff more time to pay the principal on the original bonds. As a result, plaintiff was able to temporarily avoid a shortfall, i.e. not having sufficient funds to make the bond payments.
Then, in 2009, defendant filed for bankruptcy. Plaintiff filed an unsecured claim to recover unpaid amounts from earlier tax abatement agreements. In 2010, the parties entered into a settlement agreement, which provided that plaintiff would significantly lower Visteon Village's assessed taxable value. In exchange, defendant agreed to pay $2.2 million toward plaintiff's claimed amount and to not object to the remainder of plaintiff's unsecured claim. The settlement agreement also contained the following provision, the meaning of which is now in dispute:
Section 3. Bond Payments
Visteon acknowledges that the Township assisted Visteon in the construction of the Village through the issuance by the Township of certain bonds supported by the full faith and credit of the Township, the proceeds of which were used to help construct the Village. To the extent that the property tax payments made by Visteon to the Township, including payments made by Visteon to the Township pursuant to Section 2.2, are inadequate to permit the Township to meet its payment obligations with respect to that portion of the bonds that were used to help fund the Village, Visteon hereby agrees to negotiate with the Township in good faith to determine the amount of the shortfall with respect to those bonds and make a non-tax payment, payment in-lieu-of tax, (PILOT) to the Township to assist the Township in making timely payments on the bonds.
Visteon emerged from bankruptcy later that year.
In 2013, plaintiff retained Public Financial Management (PFM) to conduct a cash-flow analysis to determine plaintiff's ability to pay on the bonds. In its report, PFM predicted that a shortfall ranging from $23.7 million to $36.4 million would occur sometime between 2017 and 2018. Based on the report, plaintiff demanded that defendant enter into negotiations to determine defendant's payment obligations under the agreement with respect to the projected shortfall. Defendant met with plaintiff but argued that it had no obligation to negotiate until plaintiff experienced an actual shortfall and, even in the event of a shortfall, defendant argued that it may not owe plaintiff any amount under the contract.
Plaintiff filed suit, seeking both a declaratory judgment and damages for breach of contract. As to the declaratory judgment claim, plaintiff asked that the court "adjudicate the Parties' rights and obligations under the Settlement Agreement" and "enter a declaration that Visteon is responsible for payment of any shortfall ...." As to the breach of contract claim, plaintiff asserted that defendant breached the agreement by "(i) refusing to negotiate the amount of the Bond debt service shortfall in good faith and (ii) failing to provide - or commit to provide - the Township with funds to pay for any shortfall with the Bond debt service payments." Plaintiff also claimed anticipatory repudiation, pointing to certain statements made by defendant indicating that defendant did not believe it owed plaintiff anything under the agreement.
Defendant filed a motion for summary disposition under MCR 2.116(C)(4) and (C)(8), arguing that plaintiff's claims were not ripe. Defendant argued that plaintiff's claims rested upon a hypothetical future shortfall; thus, no actual controversy presently existed. The trial court agreed, granting summary disposition in defendant's favor. On the record, the trial court explained its reasoning as follows:
The Court agrees with the defendant that this case epitomizes why the ripeness doctrine exists, mainly to prevent courts from becoming prematurely embroiled in complex disputes involving hypothetical and contingent facts when, especially when the projected [shortfall] is estimated three years from now.
The Court of Appeals affirmed in a published opinion. In finding plaintiff's declaratory judgment claim unripe, the court explained:
According to the plain language of the contract, defendant is obligated to "negotiate with [plaintiff] in good faith to determine the amount of the shortfall," but only "[t]o the extent that the property tax payments made by [defendant]" are "inadequate to permit [plaintiff] to meet its payment obligations" and only "with respect to that portion of the bonds that were used to help fund the Village." Thereafter, defendant is obligated to "make a non-tax payment" in order to "assist" plaintiff in making "timely" payments on those bonds. In each case, the tense of the verb is present, not future. No reasonable person reading this provision could find it ambiguous or conclude that defendant is obligated to engage in negotiations before the shortfall. Indeed, the contract admits of but one interpretation, in which the occurrence of the shortfall is a condition precedent to defendant's obligation to perform, and defendant is not obligated to do anything until after plaintiff has experienced a shortfall. In fact, defendant is not obligated to perform until after two conditions have been met: (1) a shortfall has occurred, and (2) property taxes paid by defendant are inadequate for plaintiff to pay that portion of the bonds that was used to fund the Village. This second condition cannot be met until after the shortfall has occurred and the parties have determined the amount due.
Contrary to plaintiff's assertion on appeal, the requirement that defendant negotiate in good faith to "determine the amount of the shortfall" does not force the implication that defendant must be required to negotiate before the occurrence of a shortfall. Plaintiff forgets that the provision contains qualifying language, requiring defendant to negotiate in good faith to determine the amount of the shortfall only "with respect to those bonds" that were "supported by the full faith and credit of [plaintiff], the proceeds of which were used to help construct the Village." Defendant is therefore clearly obligated to engage in negotiations once a shortfall occurs, to determine which part of the shortfall can be attributed to bonds it is obligated to assist plaintiff to pay.[ ]
Similarly, regarding plaintiff's breach of contract claim, the Court of Appeals found the claim unripe because "defendant could not have breached its contract by failing to perform before the time of performance has even arrived." Further, the Court of Appeals explained that, "at least at this time, plaintiff's alleged damages are conjectural, speculative, and clearly 'dependent upon the chances of business or other contingencies.' "
Following plaintiff's appeal to our Court, we ordered oral argument on the application, directing the parties to address
whether the Court of Appeals: (1) properly determined that a declaratory judgment was not ripe under MCR 2.605 ; and (2) properly interpreted the contract to determine that "defendant is not obligated to perform [under the contract] until ... a shortfall has occurred, and ... property taxes paid by defendant are inadequate for plaintiff to pay that portion of the bonds that was used to fund the Village."[ ]
II. ANALYSIS
A. RIPENESS OF PLAINTIFF'S DECLARATORY JUDGMENT CLAIM
Declaratory judgment in Michigan is governed by MCR 2.605, which provides in relevant part, "In a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted." Regarding the purpose of the declaratory judgment rule, our Court has stated, "The declaratory judgment rule was intended and has been liberally construed to provide a broad, flexible remedy with a view to making the courts more accessible to the people." "One great purpose is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds ...." As noted by one scholar, "[p]robably one of the most useful functions of the declaratory judgment in preventing litigation lies in the fact that it enables parties to obtain in case of doubt and in advance of the necessity of acting upon their own interpretation of their obligations, with the resulting invitation of a lawsuit, an authoritative judicial interpretation of their mutual rights, powers, duties, etc., under written instruments."
That a declaratory judgment must address an "actual controversy" is central to the legitimacy of the device. In Washington-Detroit Theatre Co v. Moore , our Court considered the Legislature's second attempt to enact a declaratory judgment act that satisfied constitutional standards. We had found the prior declaratory judgment act unconstitutional, explaining that "it requires that the time of the court shall be taken, not in the determination of actual controversies where rights have been invaded and wrongs have been done, but in the giving of advice to all who may seek it." The new act, however, conditioned that a declaratory judgment was only available in " 'cases of actual controversies' " and was therefore constitutional.
In order to satisfy the "actual controversy" requirement, a plaintiff's claim must be justiciable. Thus, the "actual controversy" requirement contained in the court rule incorporates the concepts of standing, mootness, and ripeness. Like in an ordinary action, ripeness in the declaratory judgment context requires a present legal controversy, not one that is merely hypothetical or anticipated in the future. Unlike an ordinary action, however, in a declaratory action "a court is not precluded from reaching issues before actual injuries or losses have occurred." Indeed, "the basic purpose of a declaratory judgment act is to provide for declaratory judgments without awaiting a breach of existing rights."
In this case, plaintiff's request for a declaratory judgment involves a present legal controversy-it is a dispute over the parties' present rights and obligations under Section 3 of the 2010 settlement agreement. In particular, plaintiff argues that defendant has a present duty under the settlement agreement to negotiate with plaintiff to determine the amount of the projected shortfall and to make a payment to the township to assist it in making timely payments on the bonds; and defendant claims that it has no present duty under the agreement. Thus, even if plaintiff has not yet shown an injury, plaintiff has presented an "actual controversy" within the meaning of MCR 2.605.
It may be true, as defendant argues, that determining the exact amount of defendant's liability is not possible at this time. This is not relevant, however, to plaintiff's declaratory judgment claim. Plaintiff's declaratory judgment claim does not seek a specific amount of damages, but instead seeks a declaration of the parties' present obligations under the settlement agreement. To the extent that the Court of Appeals found plaintiff's declaratory judgment claim unripe because the Court could not determine the exact amount of defendant's liability at this time, the Court of Appeals erred in this regard as well.
For these reasons, plaintiff's claim as to the parties' rights and obligations under the agreement is ripe for adjudication.
B. THE COURT OF APPEALS' INTERPRETATION OF THE SETTLEMENT AGREEMENT
Had the Court of Appeals merely held that plaintiff's claim was not ripe, my analysis would end here. However, the Court of Appeals proceeded to partially determine the parties' rights and obligations under the settlement agreement, stating as follows:
[T]he contract admits of but one interpretation, in which the occurrence of the shortfall is a condition precedent to defendant's obligation to perform, and defendant is not obligated to do anything until after plaintiff has experienced a shortfall. In fact, defendant is not obligated to perform until after two conditions have been met: (1) a shortfall has occurred, and (2) property taxes paid by defendant are inadequate for plaintiff to pay that portion of the bonds that was used to fund the Village. This second condition cannot be met until after the shortfall has occurred and the parties have determined the amount due.[ ]
In so holding, the Court of Appeals essentially entered a partial declaratory judgment determining when defendant's obligations under the contract are triggered.
Having concluded that plaintiff's declaratory judgment claim is ripe for adjudication, I now believe it necessary to address the Court of Appeals' determination that defendant's contractual duties are not triggered until a shortfall has occurred.
In concluding that defendant has no obligation under the contract until after a shortfall has occurred, the Court of Appeals relied primarily on the verb tense used in the settlement agreement, explaining:
[T]he tense of the verb[s] is present, not future. No reasonable person reading this provision could find it ambiguous or conclude that defendant is obligated to engage in negotiations before the shortfall. Indeed, the contract admits of but one interpretation, in which the occurrence of the shortfall is a condition precedent to defendant's obligation to perform, and defendant is not obligated to do anything until after plaintiff has experienced a shortfall.[ ]
We have relied on verb tense in the past when interpreting legal texts. We have also recognized, however, that verb tense is not always determinative and must be considered in the context of the surrounding text. Accordingly, a close inspection of the verbs contained within the agreement is necessary to determine whether the Court of Appeals is correct that the verb tense is indicative of the timing of defendant's obligations. The agreement uses the following verbs: "To the extent that the property tax payments ... are inadequate to permit the Township to meet its payment obligations ..., Visteon hereby agrees to negotiate with the Township in good faith to determine the amount of the shortfall with respect to those bonds and make a non-tax payment ... to the Township to assist the Township in making timely payments on the bonds." (Emphasis added.) With two exceptions-"are" and "agrees"-each of the verbs identified above is in the infinitive form. Unlike finite verbs, infinitives primarily function as nouns, adjectives, or adverbs, and are widely considered to have no tense. Additionally, when an infinitive is paired with a present tense finite verb, such as "agrees to negotiate," the result can indicate either present or future action. Thus, while "agrees" is in present tense, because it is paired with the infinitive it may refer to either present or future obligations.
We are left, then, to determine whether the agreement's single remaining use of present tense in the noninfinitive form-"are inadequate"-is sufficient to conclude that defendant's obligations under the agreement come into effect at the time of the shortfall. The Court of Appeals' interpretation of the agreement assumed that the property tax payments will become "inadequate" at the time that the shortfall occurs. This is not the only possible reading, however. The agreement may, alternatively, consider the payments "inadequate" when a shortfall is projected to occur. Under this reading, the tax payments are presently inadequate because they will not allow plaintiff to continue making timely payments. Because both of these readings are grammatically acceptable, I do not think the use of present tense for "are inadequate" necessarily leads to the Court of Appeals' conclusion.
Accordingly, we must look to the remainder of the provision to determine the appropriate interpretation. As plaintiff points out, the agreement requires that defendant "make a non-tax payment ... to assist [plaintiff] in making timely payments." "Timely" is defined as "coming early or at the right time." Suffice it to say that, if defendant is not obligated to even begin negotiations until after a shortfall occurs, then plaintiff's payments to the bond holders will not be "coming early or at the right time." The Court of Appeals sweeps this concern aside, concluding that the agreement is "perhaps inartfully worded." However, I believe the meaning is clear: defendant is required to "make a non-tax payment ... to [plaintiff] to assist [plaintiff] in making timely payments"-i.e., to make whatever payment is owed, if any, before the shortfall occurs.
The agreement also requires that defendant "negotiate with the Township in good faith to determine the amount of the shortfall with respect to those bonds [that were used to help fund the Village]." Plaintiff argues that this clause requires defendant to negotiate with plaintiff before a projected shortfall to estimate the amount of the shortfall. Defendant, on the other hand, argues that this clause only requires defendant to negotiate with plaintiff at the time of the shortfall to determine the proportion of the shortfall that correlates with the bonds that were issued to assist with the construction of Visteon Village. The word "amount," however, refers not to a proportion, but to a "quantity." Thus, under the agreement, the parties must negotiate the "quantity" of the shortfall, not merely the percentage of the shortfall correlating to the relevant bonds. Because the agreement requires the parties to negotiate a quantity, I believe the agreement contemplates negotiations before a shortfall has occurred. Otherwise, as plaintiff argues, the parties would have nothing to negotiate-the amount would already be determined.
For the reasons stated above, I believe the parties' agreement clearly contemplates that defendant has an obligation prior to the occurrence of a shortfall: (1) to negotiate with plaintiff to determine the amount of the projected shortfall, and (2) to make whatever payment it may owe to plaintiff to assist it in making timely payments on the bonds. Determining the nature and extent of defendant's obligations in the first instance is a task properly left to the trial court.
III. CONCLUSION
I believe the Court of Appeals erred in its published opinion by finding plaintiff's declaratory judgment action unripe and in its determination that the parties had no present rights or obligations under the settlement agreement. Accordingly, I would vacate Part (III)(A) of the Court of Appeals' opinion and remand to the trial court for further proceedings.
Mccormack, C.J., joins the statement of Viviano, J.
Bernstein, J., would reverse the judgment of the Court of Appeals.
Cavanagh, J., did not participate in the disposition of this case because the Court considered it before she assumed office.
Plaintiff subsequently sold the unsecured claim for approximately $5.7 million.
Because plaintiff used the payments made by defendant pursuant to the settlement agreement, as well as the funds obtained by the sale of the unsecured claim, to pay a portion of the interest on the bonds, the shortfall is now projected to occur in 2019.
Van Buren Charter Twp. v. Visteon Corp. , 319 Mich. App. 538, 548-549, 904 N.W.2d 192 (2017).
Id . at 554, 904 N.W.2d 192.
Id . at 552, 904 N.W.2d 192, quoting Doe v. Henry Ford Health Sys. , 308 Mich. App. 592, 601, 865 N.W.2d 915 (2014).
Van Buren Charter Twp v. Visteon Corp , 501 Mich. 1069, 910 N.W.2d 664 (2018).
MCR 2.605(A)(1).
Shavers v. Attorney General , 402 Mich. 554, 588, 267 N.W.2d 72 (1978).
Merkel v. Long , 368 Mich. 1, 13, 117 N.W.2d 130 (1962), quoting Sigal v. Wise , 114 Conn. 297, 301-302 (1932).
Borchard, The Declaratory Judgment-A Needed Procedural Reform (Washington, DC: United States Government Printing Office, 1919), p. 45. See also 11 Williston on Contracts § 30:2 (4th ed.), p. 36 ("A frequently employed means of demonstrating in an authoritative manner the intent of the parties to a contract, either for the purpose of establishing rights or the nonexistence of liabilities, is the petition for declaratory judgment.").
Washington-Detroit Theatre Co. v. Moore , 249 Mich. 673, 229 N.W. 618 (1930). This act, 1929 PA 36, was codified into the Judicature Act and governed declaratory judgment actions in Michigan until it was repealed by the Revised Judicature Act, 1961 PA 236. In the same period, our Court adopted a rule governing declaratory judgment actions, GCR 1963, 521, now MCR 2.605. Thus, declaratory judgment actions in Michigan are no longer governed by statute, but instead are governed by court rule.
Anway v. Grand Rapids R Co. , 211 Mich. 592, 606, 179 N.W. 350 (1920).
Washington-Detroit Theatre Co. , 249 Mich. at 676, 229 N.W. 618, quoting 1929 PA 36. Anway and Washington-Detroit Theatre Co. have been widely cited by federal courts and our sister state courts in deciding the constitutionality of declaratory judgment acts within their jurisdictions.
See Shavers , 402 Mich. at 589, 267 N.W.2d 72 ("[A] plaintiff must allege and prove an actual justiciable controversy.").
See Associated Builders and Contractors v. Dep't of Consumer & Industry Servs. Dir. , 472 Mich. 117, 125, 693 N.W.2d 374 (2005) ("Moreover, the rule requires that there be 'a case of actual controversy' and that a party seeking a declaratory judgment be an 'interested party,' thereby incorporating traditional restrictions on justiciability such as standing, ripeness, and mootness."), overruled on other grounds by Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed. , 487 Mich. 349, 792 N.W.2d 686 (2010).
Borchard, Declaratory Judgments (1934), p. 40 ("When the complaint on these tests is considered premature, the dismissal may be explained by any one of a series of labels, e.g. , that there is as yet no 'controversy,' that the issue is hypothetical, that the result would be only an advisory opinion, etc."); 26 CJS, Declaratory Judgment, § 28, p. 66 ("[A] controversy is justiciable, such that a declaratory judgment action may be maintained, when present legal rights are affected, not when a controversy is merely anticipated.").
Shavers , 402 Mich. at 589, 267 N.W.2d 72. See also 26 CJS, Declaratory Judgment, § 28, p. 67 ("A party should not be forced to wait until the event giving rise to the claim occurs before a court may determine the party's rights and obligations in a declaratory judgment action.").
Id . See also 9A Michigan Pleading & Practice (2d ed.), § 69:8, p. 390-391 ("[A]n actual present controversy, justifying a declaratory judgment, is present where uncertainties and controversies arise between interested parties about what their respective rights will be when those rights accrue or become vested, and it is necessary to have those rights determined at the present time to avoid needless hazards or possible losses in the future. In these situations, courts are not precluded from reaching issues before actual injuries or losses have occurred.").
Even if the Court of Appeals was correct that defendant has no obligations under the settlement agreement until after a shortfall occurs, and that therefore plaintiff's claim only involved future rights and obligations, its conclusion that plaintiff's claim was unripe would still be on shaky ground. It is true that, generally, a declaratory judgment must address "the existing law on an existing state of facts." Borchard, Declaratory Judgments, p. 40. But this is not an inflexible rule-a declaratory judgment may address parties' rights under future, or even contingent, events or circumstances. Id . at 44 ("[C]ourts have been less inclined to refuse declarations where they were convinced that the future event was certain or practically certain to occur, and that a useful purpose could be served, whereas theretofore they were disposed to ask for more accrued facts as a condition of adjudication."). Indeed, as we have previously recognized, " 'to carry out the purposes intended to be served by [declaratory] judgments, it is sometimes necessary to determine rights which will arise or become complete only in the contingency of some future happening.' " Merkel , 368 Mich. at 13, 117 N.W.2d 130, quoting Sigal , 114 Conn. at 301-302. "Courts continually declare rights which have not become fixed under an existing state of facts, but are prospective only; they may not, however, be so remote and speculative as to be hypothetical and abstract." Merkel , 368 Mich. at 13, 117 N.W.2d 130, quoting Borchard, Declaratory Judgments (2d ed.), pp. 422-424. Thus, the Court of Appeals erred by assuming that, if plaintiff's claim involved future rights and obligations, it could not be ripe.
See Appellee's Answer Brief at 27 ("But even if the Township is right that a shortfall in some amount is "certain" to occur at some point in the future, when that might happen is simply unknown. More importantly, there is no way to know what the amount of any shortfall might be.").
It is true that plaintiff's complaint sought a declaration that defendant was obligated to pay the full amount of any shortfall. See Plaintiff's Complaint at 14-15 ("WHEREFORE, the Township seeks a declaratory judgment pursuant to MCR 2.605 to adjudicate the Parties' rights and obligations under the Settlement Agreement, and the Township respectfully requests the Court enter a declaration that Visteon is responsible for payment of any shortfall in the Bond debt service payments identified in this Complaint, as well as any other relief as justice and fairness require."). Even this, however, is not a request for the court to determine the exact amount of a shortfall. Instead, plaintiff is seeking an interpretation of the settlement agreement that would require defendant to pay the full amount of the shortfall, whatever that amount might be.
While the impossibility of determining plaintiff's actual damages at this time does not render plaintiff's declaratory judgment claim unripe, it does affect plaintiff's breach of contract claim, which requires plaintiff to make a showing as to damages. Accordingly, I would not disturb the Court of Appeals' holding as to plaintiff's breach of contract claim.
Van Buren , 319 Mich. App. at 548, 904 N.W.2d 192.
Id .
See, e.g., City of Coldwater v. Consumers Energy Co. , 500 Mich. 158, 176, 895 N.W.2d 154 (2017) (noting that the phrase "already receiving" within MCL 124.3(2) is a present participle and that "[t]he verb tense is meaningful here because it indicates a present-tense lens").
See Rock v. Crocker , 499 Mich. 247, 263, 884 N.W.2d 227 (2016) (recognizing that "the Legislature deviated from the general rules of grammar in MCL 600.2169(1)(a) by using the present tense when referring to an event that had already occurred").
"Making" is a gerund in this context, which functions as a noun. See The Chicago Manual of Style (16th ed.), p. 233.
Id . at 232 ("An infinitive verb, also called the verb's root or stem, is a verb that in its principal uninflected form may be preceded by to {to dance} {to dive}.").
See Vitto, Grammar by Diagram: Understanding English Grammar Through Traditional Sentence Diagramming (2d ed.), p. 219.
See Garner, Garner's Modern English Usage (4th ed.), p. 853 ("An infinitive is the tenseless form of a verb preceded by to , such as to dismiss or to modify ."). But see Stowell, The Tense of Infinitives , 13 Linguistic Inquiry 561 (1982) (discussing infinitive tenses). Moreover, the infinitives here clearly serve functions unrelated to the timing of defendant's obligations. "[T]o permit," "to determine," and "to assist" all function as adverbs, denoting the purpose of defendant's agreed-to actions. See Vitto, pp. 222-224. Similarly, "to meet," "to negotiate," and "[to] make" are each nouns, functioning as the direct objects of "permit" and "agrees." Id . at 221. Thus, each of the infinitives in the agreement is functioning not as a verb, whose tense could indicate the timing of defendant's obligations, but instead as either an adverb or a noun.
See Curme, College English Grammar (Richmond: Johnson Publishing Company, 1925), p. 301 ("Here the present tense indicates time contemporaneous or future with reference to that of the principal verb: I wish to go at once. I intend to write a line or two to her soon. Yesterday I intended to write a line to her, but forgot it.").
Merriam-Webster's Collegiate Dictionary (11th ed.).
Van Buren Charter Twp. , 319 Mich. App. at 547, 904 N.W.2d 192.
See Merriam-Webster's Collegiate Dictionary (defining "amount" as "the total number or quantity" and "the quantity at hand or under consideration"). | [
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On order of the Court, the application for leave to appeal the April 24, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the June 28, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the July 17, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the May 1, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 10, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 12, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the March 12, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the March 20, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to dismiss charges is DENIED. | [
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On order of the Court, the application for leave to appeal the March 13, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 17, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the June 1, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the June 12, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the June 11, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). The motions to appoint counsel and to remand are DENIED. | [
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On order of the Court, the application for leave to appeal the June 13, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the May 29, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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Per Curiam.
In this case brought under the public-building exception to governmental immunity, MCL 691.1406, defendants appeal as of right the order of the Court of Claims denying their motion for summary disposition pursuant to MCR 2.116(C)(7). We affirm.
On June 12, 2015, plaintiff was walking on the "front porch" of the Michigan Hall of Justice in Lansing when she tripped on "sunken and uneven brick pavers," causing her to fall and sustain personal injuries. On September 29, 2015, plaintiff filed, in triplicate, a "Notice of Injury and Defect pursuant to MCL 691.1406" with the clerk of the Court of Claims. Plaintiff later filed a complaint in the Court of Claims on July 12, 2016.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), claiming that they were immune from suit because plaintiff failed to comply with the notice requirements of MCL 691.1406 by not serving notice on "the responsible governmental agency," defendant Department of Technology, Management and Budget (DTMB). In response, plaintiff argued that she satisfied the notice requirements by filing her notice in triplicate with the Court of Claims, as required by MCL 691.1404. The trial court denied defendants' motion, holding that based on MCL 691.1404, MCL 691.1406, and this Court's decision in Goodhue v. Dep't of Transp. , 319 Mich.App. 526, 904 N.W.2d 203 (2017), filing the notice in triplicate with the clerk of the Court of Claims was all that was required to fulfill the notice requirements of MCL 691.1404 and MCL 691.1406.
Defendant argues that governmental immunity bars this action because the statute required plaintiff to serve notice on the DTMB individually and to also file the notice in triplicate with the Court of Claims. We disagree.
We review de novo a trial court's decision on a motion for summary disposition. Moraccini v. Sterling Hts. , 296 Mich.App. 387, 391, 822 N.W.2d 799 (2012). In deciding a motion for summary disposition under MCR 2.116(C)(7), a court must consider any affidavits, pleadings, depositions, admissions, and documentary evidence in the action or submitted by the parties. MCR 2.116(G)(5). The facts as alleged in the complaint "must be accepted as true unless contradicted" by the submitted evidence, and the court must evaluate all the evidence "in a light most favorable to the nonmoving party for purposes of MCR 2.116(C)(7)." Moraccini , 296 Mich.App. at 391, 822 N.W.2d 799. We also review de novo the application of a statutory exception to governmental immunity. Snead v. John Carlo, Inc. , 294 Mich.App. 343, 354, 813 N.W.2d 294 (2011).
When interpreting a statute, the "primary goal is to give effect to the intent of the Legislature." Rowland v. Washtenaw Co. Rd. Comm. , 477 Mich. 197, 202, 731 N.W.2d 41 (2007). "The words used in the statute are the most reliable indicator of the Legislature's intent and should be interpreted on the basis of their ordinary meaning and the context within which they are used in the statute." Dep't of Environmental Quality v. Worth Twp. , 491 Mich. 227, 237-238, 814 N.W.2d 646 (2012). When the words are unambiguous, the court gives them "their plain meaning." Rowland , 477 Mich. at 202, 731 N.W.2d 41. When the Legislature's intent is not clear from the plain language, "courts must interpret statutes in a way that gives effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory." Haynes v. Village of Beulah , 308 Mich.App. 465, 468, 865 N.W.2d 923 (2014) (quotation marks and citation omitted).
The governmental tort liability act (GTLA), MCL 691.1401 et seq ., provides immunity from tort liability to governmental agencies when they are engaged in the exercise or discharge of a governmental function. MCL 691.1407(1) ; Moraccini , 296 Mich.App. at 391, 822 N.W.2d 799. However, the GTLA also provides several exceptions to this broad grant of immunity. Wesche v. Mecosta Co. Rd. Comm. , 480 Mich. 75, 84, 746 N.W.2d 847 (2008). One of those exceptions is the public-building exception, MCL 691.1406, which states in relevant part:
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. ... As a condition to any recovery for injuries sustained by reason of any dangerous or defective public building, the injured person, within 120 days from the time the injury occurred, shall serve a notice on the responsible governmental agency of the occurrence of the injury and the defect . The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.
The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the responsible governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding. ... Notice to the state of Michigan shall be given as provided in [ MCL 691.1404 ]. [Emphasis added.]
MCL 691.1404(2), in turn, provides in pertinent part:
The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding. In case of the state,[ ] such notice shall be filed in triplicate with the clerk of the court of claims. Filing of such notice shall constitute compliance with [ MCL 600.6431 of the Court of Claims Act, MCL 600.6401 et seq. ] [ ]
Once the notice is filed with the clerk of the Court of Claims, the clerk transmits a copy to the Attorney General and to the governmental agency designated in the notice. MCL 600.6431(2).
This Court recently addressed the interaction between MCL 691.1404, the highway exception to governmental immunity, and MCL 600.6431 of the Court of Claims Act. Goodhue , 319 Mich.App. 526, 904 N.W.2d 203. In Goodhue , the issue was whether the plaintiff's claims under the GTLA's highway-defect and public-building exceptions were barred under MCL 691.1404 when the plaintiff filed notice in the Court of Claims more than 120 days after an accident; that is, the issue was which time limit applied to the plaintiff's claims-the 120-day time limit applicable to these GTLA exceptions or the higher six-month time limit of MCL 600.6431(3) for filing an injury claim in the Court of Claims. Id . at 529-530, 534-536, 904 N.W.2d 203. The Goodhue Court concluded that "the notice provisions of MCL 691.1404 control[led]"
and that because the plaintiff filed his notice with the clerk of the Court of Claims more than 120 days after the injury occurred, his filing was deficient and fatal to his claim. Id. at 534-537, 904 N.W.2d 203.
Defendants argue that the trial court, in denying defendants' motion for summary disposition, should not have relied on Goodhue . According to defendants, Goodhue is inapplicable because the issue in that case was the timeliness of the plaintiff's notice, rather than the manner of service. Defendants, while relying on the fact that filing and serving have different definitions and effects, further argue that the trial court's construction of MCL 691.1404(2) renders as surplusage its service requirement, and that the language of MCL 691.1404(2) makes plain that a plaintiff must both serve and file the required notice. We disagree and instead agree with the trial court that Goodhue , together with the plain language of MCL 691.1404(2) and MCL 691.1406, compels the conclusion that "[c]ompliance with the triplicate filing requirement is what is required of a plaintiff contemplating suit against the state under [the public-building] exception to governmental immunity, not the service requirements on individuals within [ MCL 691.1404(2) ]."
At issue is the correct interpretation of MCL 691.1406. We hold that the statute does not require a plaintiff to both separately serve the state and to file his or her notice in the Court of Claims. Instead, filing the notice in the Court of Claims fulfills the service requirement. Indeed, Goodhue compels this result. Goodhue interpreted the exact same language concerning how notice may be served, although contained in MCL 691.1404 instead of MCL 691.1406, and came to the same conclusion. Goodhue , 319 Mich.App. at 534-535, 904 N.W.2d 203 ; see also Empire Iron Mining Partnership v. Orhanen , 455 Mich. 410, 426 n 16, 565 N.W.2d 844 (1997) (stating that identical language in the same act should be interpreted in an identical manner).
For the public-building exception, the first paragraph of MCL 691.1406 establishes the requirement of serving notice "within 120 days from the time the injury occurred ... on the responsible governmental agency" and further describes what needs to be included in the notice. See Goodhue , 319 Mich.App. at 534-535, 904 N.W.2d 203 (interpreting the nearly identical language found in MCL 691.1404(1) ). The second paragraph of MCL 691.1406 specifies how that service is to be effectuated, which is consistent with Goodhue 's reading of MCL 691.1404(2). See Goodhue , 319 Mich.App. at 535, 904 N.W.2d 203. While the paragraph generally states that "notice may be served upon any individual" who can accept civil process, it further explains that when notice is to be given to the state, notice "shall be given as provided in [ MCL 691.1404 ]." MCL 691.1406. Thus, when the notice is to be provided to the state, the provisions in MCL 691.1404 pertaining to how notice is to be provided control.
The Goodhue Court has already interpreted MCL 691.1404. Subsection (1) is not relevant to the instant case because it does not address how notice is to be provided. But Subsection (2)
details how that notice is to be effectuated. Specifically, the first sentence of Subsection (2) provides that the notice may be served upon an appropriate individual. However, the very next sentence clarifies that when the "state" is a defendant, "such notice shall be filed in triplicate with the clerk of the court of claims." [ Goodhue , 319 Mich.App. at 535, 904 N.W.2d 203.]
The Court held that because the plaintiff had filed its notice with the Court of Claims, it therefore satisfied the statutory requirement. Id.
Accordingly, we hold that MCL 691.1404(2) does not require a plaintiff to serve notice in addition to filing notice in the Court of Claims. Instead, when the state is a party, Subsection (2) provides that service, in the case of the state, is effectuated by filing the notice in triplicate in the Court of Claims. If the Legislature had intended for the notice to be served as described in the first sentence of MCL 691.1404(2) or the first sentence of the second paragraph of MCL 691.1406, then the Legislature would have used a word comparable to "also" in those provisions stating that the notice is to be filed with the clerk of the Court of Claims. As a result, when a plaintiff invokes the public-building exception to governmental immunity and the defendant is the "state" under the GTLA, filing notice in triplicate with the clerk of the Court of Claims is all that is necessary to effectuate service of the notice. Because plaintiff filed notice with the clerk of the Court of Claims, she satisfied the requirements of service under MCL 691.1406 and MCL 691.1404(2). And because plaintiff filed the notice on September 29, 2015, which defendants acknowledge was within 120 days of her June 12, 2015 accident, the notice was timely. The fact that she filed a subsequent notice after the 120-day deadline is not pertinent.
Affirmed.
METER, P.J., and GADOLA and TUKEL, JJ., concurred.
The GTLA defines "state" as including the state of Michigan and, in pertinent part, "its agencies" and "departments." MCL 691.1401(g).
As explained later in this opinion, although MCL 600.6431(3) provides that if the action is for property damage or personal injuries, a claimant must file written notice "within 6 months following the happening of the event giving rise to the cause of action," if the pertinent governmental immunity statute has a timing requirement, it is that requirement that controls. See Goodhue , 319 Mich.App. at 535-536, 904 N.W.2d 203.
The Goodhue Court stated that when a claim against the state is related to the public-building exception, then MCL 691.1406 dictates that notice is governed by MCL 691.1404. Goodhue , 319 Mich.App. at 534, 904 N.W.2d 203. This is true, but it is important to clarify that only the provisions of MCL 691.1404 that pertain to how notice is provided governs. In Goodhue , the Court, after stating that "the notice provisions of MCL 691.1404 control," quoted MCL 691.1404(1) and (2), Goodhue , 319 Mich.App. at 534-535, 904 N.W.2d 203, but Subsection (1), which provides that notice is a condition to recovering for any injuries and provides the 120-day deadline in which to provide notice, technically is not relevant to public-building-exception cases because the first paragraph of MCL 691.1406 describes these requirements for public-building cases.
The Goodhue Court quoted MCL 691.1404(1) because the Court was simultaneously addressing a claim under the highway exception, MCL 691.1404, and a claim under the public-building exception, MCL 691.1406. See Goodhue , 319 Mich.App. at 534, 904 N.W.2d 203. Moreover, we note that any incorrect inferences one could take from Goodhue would have no practical effect because both MCL 691.1404 for the highway exception and MCL 691.1406 for the public-building exception have nearly identical requirements, including that notice be served on the governmental agency within 120 days of the injury. MCL 691.1404(1) ; MCL 691.1406. Further, both statutes provide the same general description of how notice is to be provided:
The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the responsible governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding. [MCL 691.1404(2) ; MCL 691.1406.]
As an example, if the Legislature had intended to require that a plaintiff serve the notice as described in the first sentence of MCL 691.1404(2)and file that same notice with the Court of Claims, the second sentence of MCL 691.1404(2) might have read as follows: "In the case of the state, such notice shall also be filed in triplicate with the clerk of the court of claims." Instead, the statute as written directs how service is to be provided in two different situations-one for when the state is a party and another for when the state is not a party. | [
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On order of the Court, the application for leave to appeal the September 11, 2018 judgment of the Court of Appeals is considered and, it appearing to this Court that the cases of Wigfall v. City of Detroit (Docket No. 156793) and West v. City of Detroit (Docket No. 157097) are pending on appeal before this Court and that the decisions in those cases may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decisions in those cases. | [
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On order of the Court, the application for leave to appeal the August 9, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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By order of December 21, 2018, the parties were directed to provide supplemental briefing. On order of the Court, the briefs having been received, the application for leave to appeal the August 2, 2018 judgment of the Court of Appeals is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 21, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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By order of February 4, 2019, the application for leave to appeal the May 17, 2018 judgment of the Court of Appeals was held in abeyance pending the decision in Henderson v. Civil Serv. Comm. (Docket No. 156270). On order of the Court, the case having been decided on March 15, 2019, --- Mich. ----, 922 N.W.2d 125 (2019), the application is again considered, and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and we REMAND this case to the Court of Appeals for reconsideration in light of S. Dakota v. Wayfair, Inc., --- U.S. ----, 138 S. Ct. 2080, 2099, 201 L.Ed.2d 403 (2018), which overruled Quill Corp. v. North Dakota ex rel. Heitkamp , 504 U.S. 298, 112 S. Ct. 1904, 119 L.Ed.2d 91 (1992).
We do not retain jurisdiction. | [
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On order of the Court, the motion for reconsideration of this Court's February 4, 2019 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G). | [
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On order of the Court, the application for leave to appeal the July 19, 2018 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the November 7, 2017 order of the Lenawee Circuit Court and REMAND this case to that court for reconsideration of defendant's motion for relief from judgment and amended motion for relief from judgment solely under MCR subchapter 6.500. The trial court erred in citing MCR 2.612(C)(2) as a reason for denying defendant's motion because "[u]nless otherwise specified by these rules, a judgment of conviction and sentence entered by the circuit court not subject to appellate review under subchapters 7.200 or 7.300 may be reviewed only in accordance with the provisions of" subchapter 6.500. MCR 6.501. The motion to appoint counsel is DENIED. | [
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On order of the Court, the application for leave to appeal the November 15, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motions to amend grounds for appeal due to newly discovered evidence and for reinstatement of pretrial release on tether pending appeal are DENIED. | [
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On order of the Court, the motion to expand the record is GRANTED in part, to the extent that the referenced documents are considered as offers of proof. The application for leave to appeal the October 9, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 14, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motion for reconsideration of this Court's July 3, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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Murphy, P.J.
In the midst of a financial emergency, respondent, Wayne County (the County), entered into a consent agreement with Michigan's treasurer (the State Treasurer) under the Local Financial Stability and Choice Act (Act 436), MCL 141.1541 et seq. , as enacted by 2012 PA 436. Pursuant to the consent agreement, the County was temporarily given a reprieve from being subject to mandatory collective bargaining under the public employment relations act (PERA), MCL 423.201 et seq. , for a period that will ultimately span approximately three years, ending October 1, 2018. The County's position is that the Michigan Employment Relations Commission (MERC) did not and does not have subject-matter jurisdiction to adjudicate unfair labor practice (ULP) charges against the County during the three-year period. Petitioner, AFSCME Local 3317 (the Union), filed various ULP
charges with MERC against the County, all of which, while filed at different times and pertaining to different conduct occurring before and during the three-year period, were pending after the County's obligation to engage in collective bargaining ceased. MERC ruled that the administrative law judge (ALJ) hearing the ULP charges has subject-matter jurisdiction to enter recommended orders on the charges. MERC further concluded that if a particular ULP charge concerned a failure to collectively bargain during the time frame when the County had no obligation to bargain, the proper remedy would be dismissal for failure to state a claim, which is a matter for the ALJ to decide in the first instance, with MERC becoming involved only upon the filing of an exception. The County appeals MERC's decision regarding subject-matter jurisdiction. We hold that nothing in the language of Act 436 reveals a legislative intent to divest MERC of its subject-matter jurisdiction to hear and resolve ULP charges during the period in which a local government is not subject to the requirement that it participate in collective bargaining. Accordingly, we affirm.
Because an understanding of the statutes implicated in this case is necessary to understand the history and background of the litigation between the parties, we begin our discussion by examining the relevant statutory schemes.
I. PUBLIC EMPLOYMENT RELATIONS ACT (PERA)
"The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service." Const. 1963, art. 4, § 48. Our Legislature enacted PERA, and "[t]he supremacy of the provisions of PERA is predicated on the Constitution ... and the apparent legislative intent that ... PERA be the governing law for public employee labor relations." Rockwell v. Crestwood Sch. Dist. Bd. of Ed. , 393 Mich. 616, 630, 227 N.W.2d 736 (1975) ; see also Bank v. Mich. Ed. Ass'n-NEA , 315 Mich. App. 496, 500, 892 N.W.2d 1 (2016) ("PERA governs public-sector labor relations...."). PERA drastically altered labor relations in Michigan with respect to public employees, reflecting legislative goals to protect public employees against ULPs and to provide remedial access to a state-level administrative agency with specialized expertise in ULPs. Macomb Co. v. AFSCME Council 25 Locals 411 & 893 , 494 Mich. 65, 78, 833 N.W.2d 225 (2013).
Section 10 of PERA, MCL 423.210, sets forth a list of prohibitions and conditions related to public employment, and "[v]iolations of the provisions of section 10 shall be deemed to be unfair labor practices remediable by [MERC]," MCL 423.216. See St. Clair Intermediate Sch. Dist. v. Intermediate Ed. Ass'n/Mich. Ed. Ass'n , 458 Mich. 540, 550, 581 NW2d 707 (1998) (noting that violations of MCL 423.210 constitute ULPs under MCL 423.216 ). MCL 423.216 vests "MERC with exclusive jurisdiction over unfair labor practices." St. Clair Intermediate , 458 Mich. at 550, 581 N.W.2d 707 (emphasis added); see also Detroit Bd. of Ed. v. Parks , 417 Mich. 268, 283, 335 N.W.2d 641 (1983) ; Lamphere Schs. v. Lamphere Federation of Teachers , 400 Mich. 104, 118, 252 N.W.2d 818 (1977) ; Rockwell , 393 Mich. at 630, 227 N.W.2d 736 ; Bank , 315 Mich. App. at 500, 892 N.W.2d 1.
The litigation between the parties in MERC implicated § 15(1) of PERA, MCL 423.215(1), which provides as follows:
A public employer shall bargain collectively with the representatives of its employees as described in section 11 and may make and enter into collective bargaining agreements with those representatives. Except as otherwise provided in this section, for the purposes of this section, to bargain collectively is to perform the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or to negotiate an agreement, or any question arising under the agreement, and to execute a written contract, ordinance, or resolution incorporating any agreement reached if requested by either party, but this obligation does not compel either party to agree to a proposal or make a concession.
For purposes of § 15(1) of PERA, "[a]fter the parties have met in good faith and bargained over the mandatory subjects placed upon the bargaining table, they have satisfied their statutory duty." Detroit Police Officers Ass'n v. Detroit , 391 Mich. 44, 55, 214 N.W.2d 803 (1974).
Accordingly, absent contemplation of Act 436, the County has a mandatory obligation to bargain collectively with unions representing county employees, doing so in good faith with respect to the terms and conditions of employment, and any ULP charge falls within the exclusive jurisdiction of MERC.
II. LOCAL FINANCIAL STABILITY AND CHOICE ACT (ACT 436)
Act 436 was designed to address financial emergencies involving local governmental units and to provide fiscal stability and accountability for those entities. MCL 141.1543. Under Act 436, the State Treasurer, acting as the "state financial authority" for "municipal governments," which by statutory definition include counties, may conduct, under certain enumerated circumstances, preliminary reviews in order to help determine whether a county is experiencing probable financial stress. MCL 141.1544(1) ; MCL 141.1542(n) and (u)(i). The preliminary-review process entails written notification to a county before the review is commenced, an interim and final report by the State Treasurer, and then a determination by a "local emergency financial assistance loan board" whether "probable financial stress exists for the" county. MCL 141.1544(3).
If probable financial stress is found, Michigan's governor (the Governor) is required to appoint a "review team" for the county. MCL 141.1544(4). The review team then examines the county's financial condition and prepares a written report, which must include statutorily specified information and state whether a "financial emergency" exists in the county. MCL 141.1545(1) to (4). After receiving the report and taking certain designated procedural steps, the Governor must determine whether a financial emergency exists in the county. MCL 141.1546(1) and (2).
If the Governor determines that a financial emergency exists, a county may appeal that decision in the Court of Claims, but only when 2/3 of the members of the county's governing body adopt a resolution to appeal. MCL 141.1546(3). A county has various options to consider when faced with a determination that a financial emergency exists in the county, including, as relevant here, the option of entering into a "consent agreement." MCL 141.1547(1)(a). MCL 141.1548 provides details with respect to consent agreements, and Subsection (11), MCL 141.1548(11), states:
Unless the state treasurer determines otherwise, beginning 30 days after the date a local government enters into a consent agreement under this act, that local government is not subject to section 15(1) of 1947 PA 336, MCL 423.215 [that is, mandatory collective bargaining], for the remaining term of the consent agreement.
A reciprocal provision in PERA is MCL 423.215(9), which provides that "[a] unit of local government that enters into a consent agreement under the local financial stability and choice act ... is not subject to subsection (1) [mandatory collective bargaining] for the term of the consent agreement, as provided in the local financial stability and choice act ...."
III. CONSENT AGREEMENT
In light of severe financial distress, the County initiated and participated in proceedings under Act 436. And on August 21, 2015, upon the determination that a financial emergency existed in the County, the County entered into a consent agreement with the State Treasurer. Paragraph 2 of the consent agreement provided, in pertinent part:
(b) Consistent with [ MCL 141.1548(11) ] of Act 436, beginning 30 days after the effective date of this agreement the County is not subject to section 15(1) of [PERA], MCL 423.215, for the remaining term of this agreement.
(c) Beginning 30 days after the effective date of this agreement, if a collective bargaining agreement has expired, the County Executive may exercise the powers prescribed for emergency managers under [ MCL 141.1552(1)(ee) ] of Act 436 to impose by order matters relating to wages, hours, and other terms and conditions of employment, whether economic or noneconomic, for County employees previously covered by the expired collective bargaining agreement.
Taking into consideration the 30-day window in the consent agreement, the County's PERA obligation to engage in collective bargaining with the Union was suspended starting September 20, 2015. A collective-bargaining agreement that had existed between the parties expired in September 2014, and despite negotiations, a new collective-bargaining agreement could not be reached by September 20, 2015, although the County did enter into collective-bargaining agreements by that date with all other county-affiliated unions. The County Executive, exercising the powers of an emergency manager, proceeded to impose employment terms and conditions on Union members on September 21, 2015.
On October 18, 2016, the State Treasurer provided the County with written notification that the County had satisfied the terms of the consent agreement and that it was therefore released from the agreement. However, for purposes of clarification and by letter dated November 10, 2016, the State Treasurer informed the County that as required by the consent agreement, the County had to adopt a two-year budget beginning the first fiscal year after the release.
The State Treasurer recognized that the release on October 18, 2016, occurred 18 days after the start of the County's current fiscal year, but the State Treasurer indicated that the two-year budget contemplated by the Treasury Department at the time of the release was for fiscal years 2017 and 2018. As gleaned by reading Paragraphs 2(d), 10, and 11 of the consent agreement and § 21 of Act 436, MCL 141.1561, the protections of Act 436 remain in place for the two-year budgetary period, including suspension of the County's obligation to engage in collective bargaining under MCL 423.215(1). Thus-given the State Treasurer's notification of release, the State Treasurer's letter of clarification, provisions in the consent agreement, and Act 436-the County's duty to participate in collective bargaining will not be reinstated until October 1, 2018 (the beginning of fiscal year 2019). Accordingly, from September 20, 2015, until October 1, 2018, the County was and is not subject to MCL 423.215(1), i.e., PERA's mandatory collective-bargaining provision. We shall refer to this time frame as "the collective-bargaining suspension period." As discussed later in this opinion, there was a dispute between the parties whether the collective-bargaining suspension period actually ended upon the release in mid-October 2016, as urged by the Union, or whether it ran until at least October 1, 2018, as urged by the County. The ALJ found in the Union's favor, but MERC agreed with the County, and MERC's ruling has not been challenged. IV. LITIGATION BETWEEN THE PARTIES
The procedural history of MERC litigation between the parties is extensive and dizzying. For our purposes, we shall attempt to keep it simple, focusing only on the relevant procedural facets of the litigation. The County and the Union entered into a collective-bargaining agreement that was effective from October 1, 2011, through September 30, 2014. In July 2014, the Union filed a ULP charge with MERC against the County, alleging that in 2014 the County had engaged in bad-faith bargaining under PERA. The ULP charge covered negotiations and conduct by the County that occurred before the collective-bargaining suspension period. We shall refer to this ULP charge as ULP Charge 1. In May 2015, the Union sought to amend ULP Charge 1 to add new allegations of PERA violations relative to actions taken by the County in April 2015, which was also before the collective-bargaining suspension period. The ALJ allowed the Union to pursue the new ULP charge, but bifurcated it from ULP Charge 1, effectively creating ULP Charge 2 based on the County's conduct in April 2015.
As indicated earlier, on August 21, 2015, after a financial-emergency determination had been made, the County and the State Treasurer executed the consent agreement, which allowed for 30 more days of mandatory collective bargaining before the collective-bargaining suspension period commenced on September 20, 2015. In February 2016, the Union filed ULP Charge 3 with MERC against the County, alleging a failure to engage in good-faith bargaining in violation of PERA with respect to the County's negotiations and conduct from August 21, 2015, up to September 20, 2015 (the consent agreement's 30-day window).
Finally, in November 2016, the Union filed ULP Charge 4 with MERC against the County, alleging that despite the consent agreement expiring when the State Treasurer notified the County in October 2016 of a "release" from the agreement, the County nevertheless refused to engage in collective bargaining following the release. Other ULP accusations were also part of ULP Charge 4. As noted earlier, because a two-year budgetary period had to essentially be tacked on to the date of the release, the collective-bargaining suspension period did not terminate in October 2016 but will do so at the end of September 2018. Relevant here, in November 2016, aside from filing ULP Charge 4, the Union also filed a petition with MERC for mediation, as part of an effort to reopen collective-bargaining negotiations with the County and as a prerequisite to binding arbitration under 1969 PA 312, MCL 423.231 et seq. , commonly referred to as "Act 312." See Oakland Co. v. Oakland Co. Deputy Sheriff's Ass'n , 282 Mich. App. 266, 268, 765 N.W.2d 373 (2009), vacated in part on other grounds 483 Mich. 1133, 767 N.W.2d 654 (2009). This mediation petition, like ULP Charge 4, was premised on the Union's faulty position that the freeze on collective bargaining ended when the State Treasurer notified the County in October 2016 that it was released from the consent agreement.
To recap, ULP Charges 1 through 3 concerned alleged PERA violations that took place before the collective-bargaining suspension period commenced, while ULP
Charge 4 was in regard to conduct that occurred during the collective-bargaining suspension period, although the Union did not view it that way. The Union's mediation petition sought to force collective bargaining during the collective-bargaining suspension period. The dispute between the parties took two different tracks, one pertaining to all four ULP
charges filed by the Union and one concerning the Union's mediation petition.
With respect to the four ULP charges, the County filed a motion for summary disposition with the ALJ, arguing, in pertinent part, that the consent agreement and Act 436 deprived MERC of authority and jurisdiction to hear and resolve the ULP charges that were based on violations of PERA's mandatory, good-faith collective-bargaining provision, § 15(1), regardless of whether the alleged violations occurred before or during the collective-bargaining suspension period. The County's position was that MERC could not adjudicate § 15(1) ULP charges during the pendency of the collective-bargaining suspension period. The ALJ agreed with the Union that the consent agreement no longer protected the County following the release notification by the State Treasurer in mid-October 2016. Additionally, the ALJ concluded that MERC did not lose its jurisdiction to adjudicate ULP charges brought under § 15(1) of PERA when the conduct at issue occurred while the County was still subject to § 15(1). The ALJ recognized the County's burden of having to litigate § 15(1) ULP charges during the collective-bargaining suspension period, which is why the ALJ had held the proceedings in abeyance. The ALJ determined, however, that nothing in Act 436 could "be read to stand for the premise that past transgressions are immediately unassailable because of a consent agreement." Accordingly, the ALJ issued a recommended order denying the County's motion for summary disposition of the four ULP charges.
Within two months of the ALJ's decision, MERC, the full commission, issued a decision and order on a motion by the County to dismiss the Union's mediation petition. MERC dismissed the petition after finding that the collective-bargaining suspension period indeed extended to October 1, 2018, precluding MERC from ordering the County to participate in mediation for purposes of forming a new collective-bargaining agreement. The Union has not challenged that decision. In its decision and order, MERC mentioned that the parties had referred to the earlier contrary determination by the ALJ that the consent agreement no longer permitted the County to avoid its obligation to engage in collective bargaining as of mid-October 2016. However, while recognizing that the ALJ had ruled differently, MERC observed that the ALJ's decision "did not dismiss or sustain either of the four unfair labor practice charges in their entirety," and therefore any review by MERC had to "await the filing of exceptions to the ALJ's decision and recommended order ...." Apparently, no exceptions to the ALJ's recommended order were ever filed.
Within two weeks of MERC's decision, the ALJ issued a decision and recommended order with respect to ULP Charge 1, which, as noted, pertained to negotiations and conduct by the County in 2014-that is, before the collective-bargaining suspension period. In the decision, the ALJ acknowledged MERC's ruling that the collective-bargaining suspension period was not scheduled to end until October 1, 2018, and stated that he intended to follow that decision. The ALJ concluded, however, that nothing in MERC's decision precluded the ALJ from exercising jurisdiction over ULP Charge 1, or any of the ULP charges, except for a portion of ULP Charge 4 that claimed a failure to engage in collective bargaining. The ALJ proceeded to substantively address ULP Charge 1, finding that the Union had failed to establish a PERA violation by the County. The ALJ entered a recommended order to dismiss ULP Charge 1. Shortly before the ALJ issued its decision regarding ULP Charge 1 and its authority to exercise jurisdiction over the ULP charges, the County had filed a motion for reconsideration with respect to MERC's earlier ruling dismissing the Union's mediation petition. In a decision on the reconsideration motion, MERC stated that although the County had prevailed on the mediation issue, the County was asking MERC "to reconsider our decision and to instruct [the ALJ] to dismiss four unfair labor practice charge cases that were pending between the parties at that time." MERC acknowledged that the ALJ had, in the meantime, recommended dismissal of ULP Charge 1. MERC ruled:
The County has based its motion for reconsideration on its assertion that the ALJ ... has no jurisdiction over the unfair labor practice charges before him because the County is not currently subject to the duty to bargain. The County argues that Act 436, ... PERA, and the Consent Agreement not only authorize the suspension of the County's duty to bargain, but also exempt it from responsibility for any alleged unfair labor practices that may have occurred prior to or during the term of the Consent Agreement.
For the reasons that follow, we find no basis to conclude that either Act 436, ... PERA, or the Consent Agreement exempt the County from responsibility for unfair labor practices. Beside the references to § 15(1) of PERA in Act 436, there are no other references in Act 436 to any provision of PERA. With the exception of the references to Act 436 in § 15(7), (8), & (9) of PERA, there are no references in PERA to Act 436. Nothing in the language of Act 436 discusses unfair labor practices or the Commission's subject matter jurisdiction.
The suspension of a public employer's duty to bargain does not affect the Commission's jurisdiction over unfair labor practice charges against that public employer. As explained in further detail below, the effect of the suspension of a public employer's duty to bargain under Act 436 is to limit the kinds of actions or inaction by that employer that could constitute an unfair labor practice. If a public employer whose duty to bargain has been suspended is charged with an unfair labor practice prior to or during the term of the suspension, the Commission is responsible for determining whether the alleged unfair labor practice has been committed.
MERC proceeded to rule that a ULP charge can be based on conduct other than a failure to bargain collectively or a failure to do so in good faith, citing MCL 423.210(1)(a) to (d). See note 1 of this opinion. Therefore, the suspension of the County's duty to bargain would have no bearing on such claims. MERC then observed "that the issue of whether an ALJ can adjudicate an unfair labor practice charge against the County is not determined by whether the County is subject to § 15(1) of PERA." MERC next stated that an ALJ has the authority to assess whether a ULP charge states a claim upon which relief can be granted under PERA and that, if not, the ALJ should recommend dismissal of the charge. But if a ULP charge does state a claim, the ALJ has the authority to determine whether material facts are in dispute and to hold an evidentiary hearing if there is a material factual dispute. MERC noted that if a ULP charge is brought alleging that a public employer refused to bargain during a period in which the duty to bargain was suspended, the charge would not state a claim upon which relief could be granted. This statement reflected that MERC would still have subject-matter jurisdiction over such a charge.
MERC found that the County's motion for reconsideration did not indicate that the Union's ULP charges were limited to claims that the County "breached its duty to bargain between September 20, 2015, and October 1, 2018." MERC then explained:
If the charges before [the ALJ] allege that the County violated its duty to bargain before the County's duty to bargain was suspended, those matters would be within the subject matter jurisdiction of this Commission and would be properly before [the ALJ]. Moreover, if the charges before [the ALJ] allege that the County violated provisions of PERA other than § 10(1)(e) or § 15(1) [the collective bargaining requirement], those matters would be within the subject matter jurisdiction of this Commission and would be properly before [the ALJ].
This passage seems to suggest a view that a ULP charge of a failure to engage in collective bargaining during a period of suspension is not within MERC's subject-matter jurisdiction; however, that construction would contradict MERC's earlier observation that such a charge would simply reflect a failure to state a claim upon which relief can be granted. And later in its ruling, MERC stated that "[i]f the County simply failed to bargain during the period in which the County has no duty to bargain, that failure to bargain is not an unfair labor practice. However, it currently remains within the jurisdiction of [the ALJ] to determine whether an alleged unfair labor practice has been committed by the County."
MERC next determined that the County's motion for reconsideration failed to identify the dates on which the County was alleged to have engaged in ULPs and that the County had "not asserted anything to indicate that any of the unfair labor practice charges fail[ed] to state a claim ...." But MERC then explained that even had the County asserted that the Union's ULP charges did not state a claim upon which relief could be granted, MERC "could not consider the matter unless and until exceptions were filed to [the] ALJ's decision and recommended order addressing the matter." MERC stated that "[e]ven if we thought it was appropriate under the circumstances of this case to review the ALJ's rulings, which we do not, we could not legally act in a manner contrary to the requirements of § 16 of PERA and Commission Rule 161(7)." Section 16(b) of PERA, MCL 423.216(b), provides, in relevant part:
If the evidence is presented before a commissioner of the commission, or before examiners thereof, the commissioner, or examiners shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the commission, and if an exception is not filed within 20 days after service thereof upon the parties, or within such further period as the commission may authorize, the recommended order shall become the order of the commission and become effective as prescribed in the order.
And Mich. Admin. Code, R 423.161(7) provides:
Rulings by an administrative law judge on any motion, except a motion resulting in a ruling dismissing or sustaining the unfair labor practice charge in its entirety, shall not be appealed directly to the commission, but shall be considered by the commission only if raised in exceptions or cross exceptions to the proposed decision and recommended order filed under R 423.176.
MERC concluded that the ULP charges were properly before the ALJ for determination of whether the charges stated a claim upon which relief could be granted and, if so, to decide whether the Union had established the charges at an evidentiary hearing.
The County filed a claim of appeal in this Court on August 1, 2017, and on November 17, 2017, the Union filed a motion to dismiss the appeal, arguing that this Court lacked jurisdiction to decide the appeal because as it did not fall within the parameters of MCL 423.216(e). The motion was denied by a panel of this Court. Wayne Co. v. AFSCME Local 3317 , unpublished order of the Court of Appeals, entered December 21, 2017 (Docket No. 339493).
V. ANALYSIS
A. STANDARDS OF REVIEW
In AFSCME Council 25 , 494 Mich. at 77, 833 N.W.2d 225, the Michigan Supreme Court recited the standards of review applicable to a decision by MERC, stating:
In a case on appeal from the MERC, the MERC's factual findings are conclusive if supported by competent, material, and substantial evidence on the whole record. Legal questions, which include questions of statutory interpretation and questions of contract interpretation, are reviewed de novo. As a result, an administrative agency's legal rulings are set aside if they are in violation of the constitution or a statute, or affected by a substantial and material error of law. [Quotations marks and citations omitted.]
This Court reviews de novo issues concerning subject-matter jurisdiction. Winkler v. Marist Fathers of Detroit, Inc. , 500 Mich. 327, 333, 901 N.W.2d 566 (2017).
B. PRINCIPLES OF STATUTORY CONSTRUCTION
The primary task in construing a statute is to discern and give effect to the Legislature's intent, and in doing so, we start with an examination of the language of the statute, which constitutes the most reliable evidence of legislative intent. City of Coldwater v. Consumers Energy Co. , 500 Mich. 158, 167, 895 N.W.2d 154 (2017). When the language of a statutory provision is unambiguous, we must conclude that the Legislature intended the meaning that was clearly expressed, requiring enforcement of the statute as written, without any additional judicial construction. Id. Only when an ambiguity in a statute exists may a court go beyond the statute's words to ascertain legislative intent. Id. We must give effect to every word, phrase, and clause in a statute, avoiding a construction that would render any part of the statute nugatory or surplusage. Id. at 167-168, 895 N.W.2d 154.
An agency charged with executing a statute is entitled to respectful consideration of its construction of that statute and should not be overruled absent cogent reasons; however, an agency's interpretation cannot bind the courts or conflict with the Legislature's intent as expressed in the statutory language. In re Rovas Complaint Against SBC Mich. , 482 Mich. 90, 103, 754 N.W.2d 259 (2008).
C. DISCUSSION AND RESOLUTION
We hold that MERC has subject-matter jurisdiction to adjudicate ULP charges and that nothing in the language of Act 436 alters that jurisdiction. The jurisdiction extends to ULP charges filed before, during, and after a collective-bargaining suspension period, regardless of whether the ULP charges concern conduct occurring within or outside a collective-bargaining suspension period. MERC retains subject-matter jurisdiction to adjudicate ULP charges during a collective-bargaining suspension period. The County's position to the contrary reflects a fundamental misunderstanding of subject-matter jurisdiction. As a starting point, an excellent discussion of subject-matter jurisdiction in general is found in Altman v. Nelson , 197 Mich. App. 467, 472-473, 495 N.W.2d 826 (1992), wherein this Court explained:
Jurisdiction of the subject matter is the right of the court to exercise judicial power over a class of cases, not the particular case before it; to exercise the abstract power to try a case of the kind or character of the one pending. The question of jurisdiction does not depend on the truth or falsity of the charge, but upon its nature: it is determinable on the commencement, not at the conclusion, of the inquiry. Jurisdiction always depends on the allegations and never upon the facts. When a party appears before a judicial tribunal and alleges that it has been denied a certain right, and the law has given the tribunal the power to enforce that right if the adversary has been notified, the tribunal must proceed to determine the truth or falsity of the allegations. The truth of the allegations does not constitute jurisdiction.
There is a wide difference between a want of jurisdiction, in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of the trial court is not void, although it may be subject to direct attack on appeal. ... When there is a want of jurisdiction over the parties or the subject matter, no matter what formalities may have been taken by the trial court, the action is void because of its want of jurisdiction....
Where jurisdiction of the subject matter and the parties exist, errors or irregularities in the proceedings, however grave, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, do not render the judgment void; until the judgment is set aside, it is valid and binding for all purposes and cannot be collaterally attacked. Once jurisdiction of the subject matter and the parties is established, any error in the determination of questions of law or fact upon which the court's jurisdiction in the particular case depends is error in the exercise of jurisdiction. Jurisdiction to make a determination is not dependent upon the correctness of the determination made. [Citations omitted.]
ULP cases or charges constitute the "class of cases" over which MERC has the authority to exercise powers of adjudication. MCL 423.210 ; MCL 423.216.
With respect to administrative agencies, subject-matter jurisdiction poses the question whether an agency has the authority to hear and resolve a particular cause or matter. Detroit Pub. Sch. v. Conn , 308 Mich. App. 234, 242, 863 N.W.2d 373 (2014). Administrative agencies are creatures of the Legislature, and their authority is governed by statute; there are no common-law agency powers. Id. The Legislature may confer on an administrative agency the power to conduct hearings, find facts, and exercise discretion, but the power and authority conferred on the agency must be by clear and unmistakable language. Id. at 242-243, 863 N.W.2d 373. And as a general proposition, the divestiture of subject-matter jurisdiction must also be stated clearly and unambiguously. See Campbell v. St. John Hosp. , 434 Mich. 608, 614, 455 N.W.2d 695 (1990) ; Leo v. Atlas Indus., Inc. , 370 Mich. 400, 402, 121 N.W.2d 926 (1963) ("The divestiture of jurisdiction ... is a serious matter and cannot be done except under clear mandate of law."); Crane v. Reeder , 28 Mich. 527, 532-533 (1874) ("[I]t is very natural and reasonable to suppose that the Legislature, in so far as they should think it needful to authorize interruptions and the shiftings of jurisdiction, would express themselves with clearness and leave nothing for the play of doubt and uncertainty.").
The Legislature conferred on MERC the power and authority to adjudicate ULP charges, MCL 423.216, and it did not withdraw that power in Act 436 within the setting of financial emergencies. Instead, under Act 436, the Legislature simply curtailed a union's ability to force collective bargaining during a collective-bargaining suspension period. Any effort by a union to seek redress in MERC because of a failure to bargain during that period will not be sustainable, but it is left to MERC, in the exercise of its subject-matter jurisdiction , to render that ruling. Under the plain and unambiguous language of Act 436, and specifically MCL 141.1548(11), which is mirrored in ¶ 2(b) of the consent agreement, the County is not subject to the requirement or mandate to engage and participate in collective bargaining during the collective-bargaining suspension period. But the Legislature did not express in Act 436 that local governments are not subject to ULP charges during a collective-bargaining suspension period or that MERC cannot exercise its subject-matter jurisdiction over ULP charges during that time frame. Had the Legislature intended to afford such greater protection to a financially distressed local government, it could easily have done so in plain, unambiguous, and understandable language.
Especially confounding is the County's position that MERC lacks subject-matter jurisdiction with respect to ULP charges that relate to conduct occurring before a county facing a financial emergency is even relieved of its duty to collectively bargain with a union and with respect to ULP charges that have nothing to do with the obligation to bargain, e.g., discriminating against an employee in regard to conditions of employment, MCL 423.210(1)(c). In either scenario, a duty or obligation would exist-i.e., to collectively bargain or to not discriminate, either of which would support a ULP charge upon a violation, MCL 423.210(1)(c) and (e) -yet under the County's stance, no adjudication could be sought in MERC proceedings. There is simply no language in Act 436 or PERA that supports this view.
The County contends that the express language of Act 436 exempts the County from any ULP charge based on the duty to bargain for the entirety of the collective-bargaining suspension period. The County relies on the "not subject to" language in MCL 141.1548(11), arguing that the textual focus is on the "local government" and not on the date when a dispute may have arisen. This argument is unavailing. When MCL 141.1548(11) of Act 436 is examined in conjunction with MCL 423.215(1) of PERA, the meaning is clear: during the relevant period, a "local government is not subject to" the requirement to "bargain collectively with the representatives of its employees." The County effectively seeks an interpretation that during the relevant period a "local government is not subject to" any MERC litigation regarding the requirement to "bargain collectively with the representatives of its employees." The emphasized language in the preceding sentence, or even words to that effect, are not found in Act 436 or PERA. "[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 County Gen. Hosp. , 466 Mich. 57, 63, 642 N.W.2d 663 (2002).
The County favorably cites Martin v. Murray , 309 Mich. App. 37, 49, 867 N.W.2d 444 (2015), in which this Court explained that Act 436 "exists to provide specific tools for resolving financial emergencies within local governments that are not available under more general legislation." Relying on Martin , the County argues that "[i]t is clear that [Act] 436 was intended to remove ... bargaining obstacles and allow necessary and durable financial changes, not hold them in some long term limbo." Act 436 did remove bargaining obstacles for the financially strapped County, allowing the County Executive to unilaterally impose employment terms and conditions in regard to Union employees for the duration of the collective-bargaining suspension period. Further, Act 436 and the consent agreement plainly drove other unions representing county employees hurriedly to the bargaining table after the consent agreement was inked in order to avoid the extreme power that the County Executive would be able to wield after the agreement's 30-day window expired. The fact that the Union complained to MERC about conduct that primarily took place before the collective-bargaining suspension period, while possibly giving rise to some uncertainty or a state of limbo, is ultimately irrelevant to whether Act 436 deprives MERC of subject-matter jurisdiction. Act 436 simply does not encompass collective bargaining that transpires before the commencement of a collective-bargaining suspension period, and it does not speak to the issue of subject-matter jurisdiction relative to any point in time, before, during, or after a collective-bargaining suspension period.
The County additionally maintains "that if there is no duty to bargain[,] there is and can no longer be a breach of a non-existent duty and therefore no ULP hearings would be authorized or necessary." The problem with the County's argument is that it does not translate to a lack of subject-matter jurisdiction. During a collective-bargaining suspension period, there clearly is no duty to bargain and, therefore, there can be no breach of the duty to engage in collective bargaining within that time span. But that does not mean that ULP hearings are not authorized or that MERC has no subject-matter jurisdiction and cannot adjudicate a ULP dispute during the collective-bargaining suspension period. It is necessary for an arbiter to find that there was no duty, even if it is clear that no duty exists for purposes of a particular ULP charge, and that arbiter is MERC. MCL 423.216 ; St. Clair Intermediate , 458 Mich. at 550, 581 N.W.2d 707 (MERC has "exclusive jurisdiction over unfair labor practices"). As aptly recognized by MERC, if a ULP charge claims a failure to participate in good-faith collective bargaining during a collective-bargaining suspension period, the charge is subject to dismissal for failure to state a claim, not for lack of subject-matter jurisdiction. The County's argument is akin to a defendant property owner arguing that a circuit court lacks subject-matter jurisdiction in a premises-liability action seeking over $25,000 in damages because the suing plaintiff did not allege facts or submit evidence showing that a legal "duty" was owed by the property owner to the plaintiff. The absence of a duty would not deprive the circuit court of subject-matter jurisdiction; it would merely provide a basis for summary dismissal of the premises-liability action under MCR 2.116(C)(8) or (10).
To an extent, the County's argument entails an exercise in procedural gymnastics: should an ALJ recommend summary dismissal for failure to state a claim or summary dismissal for lack of subject-matter jurisdiction? However, there is, of course, an indisputable difference between MCR 2.116(C)(4) and (8). And while Act 436 can plainly serve as a basis under MCR 2.116(c)(8) to dismiss a ULP charge for failure to state a claim, Act 436 cannot serve as a basis under MCR 2.116(c)(4) to dismiss for lack of subject-matter jurisdiction because there is nothing in the plain language of Act 436 that lends itself to such a construction. Moreover, once again, there was a duty to engage in collective bargaining before the collective-bargaining suspension period commenced. The County desires a period free of PERA litigation, but Act 436 does not provide that relief.
We next examine Baumgartner v. Perry Pub. Sch. , 309 Mich. App. 507, 872 N.W.2d 837 (2015), upon which the County places great weight. The Baumgartner panel held that the State Tenure Commission (STC) did not have jurisdiction to hear the claims of the petitioners, who were teachers that had been laid off by the respondent school districts, and that therefore the STC lacked the authority to instruct ALJs to hear the petitioners' suits. As explained by the Court, before legislative amendments were passed in 2011, teacher layoffs were a mandatory subject of collective bargaining and almost all collective-bargaining agreements employed seniority as the method for determining the prioritization of layoffs. Id. at 511, 872 N.W.2d 837. The Court explained the effect of the amendments in 2011, stating:
In 2011, this all changed when, for the first time in Michigan history, the Legislature exercised its constitutional role and decided that the Legislature and local school boards, not the unions or administrative agencies, would decide which teachers should be retained and which should be laid off in the event of a reduction in force. The key to this historic change was to remove the subject of teacher layoffs from the realm of collective bargaining. Doing so had the twofold effect of (1) removing the unions as decision-makers on layoff-related issues and (2) by definition, making it unnecessary for MERC to review layoff-related cases because they no longer implicated public-sector labor laws.
To implement this dramatic shift in the law of teacher layoffs, the Legislature also mandated that Michigan's several hundred school boards make layoff decisions on the basis of merit, through the development of a mandated, comprehensive evaluation system for public school teachers. To make it perfectly clear that these decisions would be made by the local school boards, and not be sidetracked by administrative agencies, the Legislature took the additional and somewhat unusual precaution of explicitly saying how and by whom the layoff decisions could be reviewed.
As stated, MERC obviously would no longer have any reason to address this subject, and thus assert jurisdiction. And because the [STC] had, before the 2011 Amendments, asserted jurisdiction over a few teacher-layoff suits-wrongfully, in our view, and on the basis of a now nonbinding 1975 decision of our Court-the Legislature again took the unusual, but prudent, precaution of amending the teacher tenure act (TTA) to remove the slim statutory basis that the STC claimed gave it jurisdiction over layoff-related actions. Finally, to make it absolutely clear that no administrative agency may review a school board's layoff decisions, the Legislature provided that a teacher's "sole and exclusive remedy" is to appeal the decision to the courts . [ Id. at 512-513, 872 N.W.2d 837 (citations omitted; emphasis added).]
This Court observed that MCL 380.1248 explicitly identifies the sole remedy for laid-off teachers, providing that a " 'teacher's sole and exclusive remedy shall be an order of reinstatement commencing 30 days after a decision by a court of competent jurisdiction .' " Id. at 532, 872 N.W.2d 837, quoting MCL 380.1248(3).
There is no language in Act 436 that even remotely approaches the plain and unambiguous language of MCL 380.1248(3) that divests MERC of jurisdiction with respect to adjudicating teacher layoffs. The County's assertion that Baumgartner supports the proposition that the elimination of the duty to bargain in financial emergencies in Act 436 equates with eliminating MERC's subject-matter jurisdiction is devoid of merit. And the County's claims that MERC eviscerated Act 436 in this case and that MERC's decision regarding subject-matter jurisdiction was "[a]bsolutely lawless,"
do not stand scrutiny. Indeed, Baumgartner supports MERC's ruling in this case, considering that it reveals that the Legislature, if it intends to divest an adjudicative body or agency of its jurisdiction, even for a limited period, is more than familiar with the wording or language needed to accomplish that intended goal. And the Legislature did not employ such language in Act 436.
Finally, we conclude that any limitations that might be imposed by Act 436 on available remedies for ULP violations with respect to providing relief during a collective-bargaining suspension period have no relevancy to MERC's subject-matter jurisdiction to adjudicate ULP charges. MCL 423.216(b) provides, in pertinent part:
If upon the preponderance of the testimony taken the commission is of the opinion that any person named in the complaint has engaged in or is engaging in the unfair labor practice, then it shall state its findings of fact and shall issue and cause to be served on the person an order requiring him to cease and desist from the unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this act.
If MERC finds that a ULP charge is true in regard to a claim that a public employer refused to engage in collective bargaining or failed to do so in good faith, MERC "has the discretionary power to issue an order to bargain in good faith ...." Detroit Police Officers , 391 Mich. at 56-57, 214 N.W.2d 803. Act 436 would plainly prohibit MERC from ordering a local government to participate in collective bargaining during a collective-bargaining suspension period, which is why MERC dismissed the Union's mediation petition. Without commenting on the nature or propriety of possible available remedies for a ULP violation occurring before the commencement of a collective-bargaining suspension period, we conclude that MERC has subject-matter jurisdiction to adjudicate ULP charges, even assuming no remedy existed. As indicated at the outset of our discussion, subject-matter jurisdiction concerns the authority of a court or adjudicative body to exercise power "over a class of cases" or "to exercise the abstract power to try a case of the kind or character of the one pending." Altman , 197 Mich. App. at 472, 495 N.W.2d 826. The Union presented four ULP charges, and MERC has the exclusive power, authority, and jurisdiction to adjudicate such charges, regardless of whether a particular remedy might not be available.
In sum, we hold that nothing in the language of Act 436, let alone clear and unambiguous language, reveals a legislative intent to divest MERC of its subject-matter jurisdiction to adjudicate ULP charges during a collective-bargaining suspension period.
Affirmed. Because the Union fully prevailed on appeal, we award taxable costs to it under MCR 7.219.
Gleicher and Letica, JJ., concurred with Murphy, P.J.
MCL 423.210(1) provides:
A public employer or an officer or agent of a public employer shall not do any of the following:
(a) Interfere with, restrain, or coerce public employees in the exercise of their rights guaranteed in [MCL 423.209 ].
(b) Initiate, create, dominate, contribute to, or interfere with the formation or administration of any labor organization. ... A public employer may permit employees to confer with a labor organization during working hours without loss of time or pay.
(c) Discriminate in regard to hire, terms, or other conditions of employment to encourage or discourage membership in a labor organization.
(d) Discriminate against a public employee because he or she has given testimony or instituted proceedings under this act.
(e) Refuse to bargain collectively with the representatives of its public employees.... [Emphasis added.]
We shall limit our discussion of Act 436 to its application to financially distressed counties.
As reflected in the agreement, the legislative authority of the County is vested in a county commission, and the County elected county executive (the County Executive) is the chief administrative officer of the County. See MCL 141.1542(b)(iv).
For purposes of the remainder of this opinion, when we refer to "a collective-bargaining suspension period," we mean, generally speaking, a period in which a local government has no legal obligation to engage in collective bargaining because of a financial emergency under Act 436.
MCL 423.216(e) provides, in part:
Any party aggrieved by a final order of the commission granting or denying in whole or in part the relief sought may within 20 days of such order as a matter of right obtain a review of the order in the court of appeals by filing in the court a petition praying that the order of the commission be modified or set aside, with copy of the petition filed on the commission, and thereupon the aggrieved party shall file in the court the record in the proceeding, certified by the commission. | [
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On order of the Court, the application for leave to appeal the January 10, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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By order of July 27, 2018, the application for leave to appeal the February 22, 2018 judgment of the Court of Appeals was held in abeyance pending the decisions in People v. Davis (Docket No. 156406 ) and People v. Price (Docket No. 156180).
On order of the Court, we VACATE that part of our July 27, 2018 order that held this application in abeyance for People v. Price (Docket No. 156180). People v. Davis (Docket No. 156406 ) having been decided on March 22, 2019, 503 Mich. 984, 923 N.W.2d 891 (2019), the application is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE Part II.B. of the February 22, 2018 judgment of the Court of Appeals related to mutually exclusive convictions and REINSTATE the defendant's conviction of larceny in a building.
In this case, the jury was instructed that to convict the defendant of larceny from a person, it must find that the defendant took the property from the victim's person or immediate presence. See MCL 750.357 ; People v. Smith-Anthony , 494 Mich. 669, 837 N.W.2d 415 (2013). However, with respect to the larceny in a building conviction, the jury was not instructed that it must find that the property was not taken from the victim's person or immediate presence. Since, with respect to the larceny in a building conviction, the jury never found that the property was not taken from the victim's person or immediate presence, a guilty verdict for that offense was not mutually exclusive to the defendant's guilty verdict for larceny from a person, where the jury affirmatively found that the property was taken from the victim's person or immediate presence. As we explained in Davis , regardless of whether this state's jurisprudence recognizes the principle of mutually exclusive verdicts, that issue is not presented in these circumstances. Accordingly, the Court of Appeals erred by relying on the principle of mutually exclusive verdicts to vacate the defendant's larceny in a building conviction. | [
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On order of the Court, the application for leave to appeal the December 27, 2018 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the January 17, 2018 amended judgment of sentence, and we REMAND this case to the Cass Circuit Court to reinstate the December 15, 2017 judgment of sentence. People v. Comer , 500 Mich. 278, 901 N.W.2d 553 (2017). We further VACATE that part of the December 15, 2017 judgment of sentence imposing a $ 500 fine. MCL 769.1k(1)(b)(i ). MCL 750.520b does not authorize a fine. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.
We do not retain jurisdiction. | [
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On order of the Court, the application for leave to appeal the September 25, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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] |
On March 6, 2019, the Court heard oral argument on the application for leave to appeal the February 27, 2014 order of the Court of Appeals. On order of the Court, the application is again considered, and it is GRANTED. The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. , taken as a whole, amount to "punishment" for purposes of the Ex Post Facto Clauses of the Michigan and United States Constitutions, U.S. Const., art. I, § 10; Const. 1963, art. 1, § 10 ; see People v. Earl , 495 Mich. 33, 845 N.W.2d 721 (2014), see also Does #1-5 v. Snyder , 834 F.3d 696, 703-706 (C.A. 6, 2016), cert. den. sub. nom. Snyder v. John Does #1-5 , --- U.S. ----, 138 S.Ct. 55, 199 L.Ed.2d 18 (2017) ; (2) if SORA, as a whole, constitutes punishment, whether it became punitive only upon the enactment of a certain provision or group of provisions added after the initial version of SORA was enacted; (3) if SORA only became punitive after a particular enactment, whether a resulting ex post facto violation would be remedied by applying the version of SORA in effect before it transformed into a punishment or whether a different remedy applies, see Weaver v. Graham , 450 U.S. 24, 36 n. 22, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ("the proper relief ... is to remand to permit the state court to apply, if possible, the law in place when his crime occurred."); (4) if one or more discrete provisions of SORA, or groups of provisions, are found to be ex post facto punishments, whether the remaining provisions can be given effect retroactively without applying the ex post facto provisions, see MCL 8.5 ; (5) what consequences would arise if the remaining provisions could not be given retroactive effect; and (6) whether the answers to these questions require the reversal of the defendant's conviction pursuant to MCL 28.729 for failure to register under SORA.
The Attorney General, the Criminal Defense Attorneys of Michigan, the Prosecuting Attorneys Association of Michigan, and the American Civil Liberties Union of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. | [
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On order of the Court, the motion for immediate consideration is DENIED. The application for leave to appeal the January 22, 2019 judgment of the Court of Appeals and the application for leave to appeal as cross-appellant are considered, and they are DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the May 17, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 15, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 21, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the March 12, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the November 15, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The Court notes that, although the defendant's motion has been styled as a motion for relief from judgment under subchapter 6.500 by the Lapeer Circuit Court, it should not be regarded as a motion for relief from judgment for purposes of MCR 6.502(G)(1) in any future case. The defendant actually filed a motion under MCR 2.612, which was properly denied by the trial court, but due to a lack of merit, and not under the rules of MCR 6.501, et seq . | [
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] |
On order of the Court, the application for leave to appeal the December 11, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to remand is DENIED. | [
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On order of the Court, the application for leave to appeal the December 12, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 3, 2018 judgment of the Court of Appeals is considered and, it appearing to this Court that the cases of People v. Dixon-Bey (Docket No. 156746) and People v. Beck (Docket No. 152934) are pending on appeal before this Court and that the decisions in those cases may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decisions in those cases. | [
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Murphy, J.
Appellant, Christopher P. Legghio, the attorney who represented plaintiff, the Estate of Ronald Louis Kalisek Sr., pursuant to a retainer agreement for purposes of pursuing this wrongful-death action, sought approval by the trial court of a $10,000 distribution to Legghio from a $110,000 settlement, as allegedly necessary to cover his costs associated with prosecuting the litigation. The trial court, generally applying the law concerning taxable costs awardable to a prevailing party, awarded Legghio only $469. We hold that the trial court's ruling reflected a misunderstanding of the law, confusing taxable costs recoverable by a prevailing party in a lawsuit with the litigation costs recoverable by an attorney from his or her client under contract law. Accordingly, we reverse and remand for further proceedings.
In May 2014, defendant, who was over 90 years of age at the time and legally blind, was operating a vehicle when he struck Ronald Kalisek as he was mowing his front yard. Mr. Kalisek died two days later as a result of the injuries he sustained in the accident. Susan Kalisek, Mr. Kalisek's widow, was named personal representative of her husband's estate. Pursuant to a contract for legal services (hereafter the fee agreement), she retained Legghio's law firm in June 2014 to commence a wrongful-death action on behalf of the estate against defendant. The fee agreement provided, in relevant part:
The Client agrees to ... pay to Attorneys for services rendered a sum equal to 25% of any amount received, recovered or obtained on behalf of the [C]lient after reimbursement of amounts advanced by the Attorneys to pay expenses of case preparation and litigation.
The Client agrees to pay costs for case preparation and litigation, such as court filing fees, court reporters, private investigators, medical reports and expert witnesses. When the Attorneys advance payment of such costs, an itemized statement shall be provided [to] the Client at the time of settlement.
Following extensive litigation, the parties reached a settlement in the wrongful-death action in the amount of $110,000, which was formally approved by the trial court. The estate then moved for authority to distribute the settlement proceeds, seeking, in pertinent part, the distribution of $25,000 in attorney fees and $10,000 in litigation costs to Legghio pursuant to the terms of the fee agreement. Legghio did not attach a bill of costs or any other type of documentation to support the request for $10,000 in litigation costs. At the hearing on the motion, the trial court noted that it had been concerned about the amount of costs being requested, so it had, prior to the hearing, requested and obtained a breakdown of the costs from Legghio's office. The trial court opined that some of the costs were unreasonable and even offensive. The court stated that it was prepared to immediately order the distribution of $3,235 in costs to Legghio or, if that was not acceptable to Legghio, to set the matter for an evidentiary hearing, with $10,000 of the settlement to be placed in escrow. Legghio chose the latter option, the funds were escrowed by order, and an evidentiary hearing was scheduled.
Before the evidentiary hearing, Legghio filed a memorandum in support of his request for costs associated with the wrongful-death litigation, attaching a mountain of invoices, statements, and other supporting documentation. At the evidentiary hearing, Legghio presented testimony from his law firm's bookkeeper, a licensed professional investigator who served process for Legghio relative to the litigation, and another process server employed in the case. Through these witnesses or otherwise, the exhibits that Legghio had attached to his memorandum were admitted into evidence. At the conclusion of the proofs, the trial court first noted that Legghio had not submitted a formal bill of costs that met the requirements of MCR 2.625(G), which court rule generally pertains to the taxation of costs. We note that MCR 2.625(A)(1) provides that "[c]osts will be allowed to the prevailing party in an action, unless prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in writing and filed in the action." This court rule, therefore, has no application to the issue presented to the trial court because Legghio was not seeking taxable costs awardable to a prevailing party but rather litigation costs that his client was obligated to pay under the fee agreement for purposes of reimbursement.
The trial court next made the following observation, "And I'll say on the outset, this court does not claim that Mr. Legghio's bills are not authentic-I'm not making that claim at all; I do not believe that the bills are anything but what Mr. Legghio says that they are." The trial court proceeded to address the particular costs as itemized by Legghio. The trial court rejected a large number of requested costs on the basis that there was no statutory provision in the Revised Judicature Act (RJA), MCL 600.101 et seq. , or court rule allowing for or authorizing the cost, or on the basis that Legghio failed to identify and cite a supporting court rule or RJA provision. The trial court rejected other requested costs on the ground that, while there might be an RJA provision generally authorizing the type of fee or cost, there was a lack of compliance with components of the statutory provision, or the requested cost fell outside the parameters of the provision. At times, the trial court broadly stated that Legghio failed to explain or support a particular cost, and it is difficult for us to discern whether the court meant that Legghio simply did not cite a statutory provision or court rule relative to the authorization of the cost, or whether the court meant that Legghio failed to provide evidentiary support showing that the cost was actually incurred or failed to explain the factual basis for the cost. During its ruling from the bench, the trial court repeatedly indicated that it was applying the law regarding taxable costs, citing opinions addressing taxable costs recoverable by a prevailing party. Ultimately, the trial court awarded Legghio only $469, which consisted of various filing fees. Orders were subsequently entered reflecting the trial court's ruling and directing the distribution of the $10,000 in escrowed funds, with $9,531 going to Mrs. Kalisek and $469 to Legghio, who now appeals.
In Reed v. Breton , 279 Mich.App. 239, 241-242, 756 N.W.2d 89 (2008), this Court explained:
A circuit court's decision concerning the distribution of settlement proceeds in a wrongful-death matter is reviewed for clear error. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Interpretation of a court rule, like a matter of statutory interpretation, is a question of law that this Court reviews de novo. The rules governing the construction of statutes apply with equal force to the interpretation of court rules. [Citations, quotation marks, and brackets omitted.]
Under the wrongful-death act, MCL 600.2922, a trial court is required to conduct a hearing and approve the distribution of proceeds from any settlement. Id. at 242, 756 N.W.2d 89 ; see also MCL 700.3924. " MCR 8.121 addresses allowable attorney fees in personal-injury and wrongful-death actions."
Reed , 279 Mich.App. at 242, 756 N.W.2d 89. And MCR 8.121, which also touches on litigation costs, provides, in pertinent part, as follows:
(A) Allowable Contingent Fee Agreements. In any claim or action for personal injury or wrongful death based upon the alleged conduct of another ..., in which an attorney enters into an agreement, expressed or implied, whereby the attorney's compensation is dependent or contingent in whole or in part upon successful prosecution or settlement or upon the amount of recovery, the receipt, retention, or sharing by such attorney, pursuant to agreement or otherwise, of compensation which is equal to or less than the fee stated in subrule (B) is deemed to be fair and reasonable. The receipt, retention, or sharing of compensation which is in excess of such a fee shall be deemed to be the charging of a "clearly excessive fee" in violation of MRPC 1.5(a)....
(B) Maximum Fee. The maximum allowable fee for the claims and actions referred to in subrule (A) is one-third of the amount recovered.
(C) Computation.
(1) The amount referred to in subrule (B) shall be computed on the net sum recovered after deducting from the amount recovered all disbursements properly chargeable to the enforcement of the claim or prosecution of the action. In computing the fee, the costs as taxed and any interest included in or upon the amount of a judgment shall be deemed part of the amount recovered. [Emphasis added.]
The emphasized language in MCR 8.121(C)(1) reflects that, as part of the computation of the appropriate attorney fee, any litigation costs must be deducted from the net recovery. Under the formula set forth in MCR 8.121, and assuming that Legghio was entitled to $10,000 in costs, the $10,000 would be deducted from the $110,000 settlement, leaving $100,000, which would be subject to the valid 25 % attorney-fee provision in the fee agreement, or $25,000. The trial court did approve a $25,000 distribution to Legghio for his services in representing the estate.
As indicated in MRPC 1.8, litigation costs must ultimately be borne by the client unless the client is indigent. Specifically, MRPC 1.8 provides, in relevant part:
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which shall ultimately be the responsibility of the client ; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. [Emphasis added.]
A fee or retainer agreement is a contract and is subject to the law of contracts. Island Lake Arbors Condo. Ass'n v. Meisner & Assoc., P.C. , 301 Mich.App. 384, 392-393, 837 N.W.2d 439 (2013) ("We interpret the parties' retainer agreement according to its plain and ordinary meaning."). Therefore, the recovery of costs advanced by an attorney to a client under a fee agreement is governed by contract law. And a trial court's authorization of the distribution of proceeds from a successful wrongful-death suit in regard to costs incurred by the plaintiff's counsel must likewise be guided by contract law. Again, MCR 2.625 pertains to taxable costs awardable to a prevailing party, as paid by the losing party, and not to the circumstances presented in this case. Accordingly, the trial court erred by relying on MCR 2.625 and the provisions in the RJA in reviewing the costs claimed by Legghio and by demanding that Legghio cite supporting court rules and RJA provisions. The authority for Legghio's request for litigation costs is the contract, i.e., the fee agreement, because the estate promised to reimburse Legghio for costs advanced during the litigation. Of course, standard contract defenses can serve as a basis to reject requested costs. For example, if there was a lack of evidentiary support to show that a particular cost being sought by Legghio was actually incurred, the court could legitimately decline to approve the distribution of settlement proceeds to cover the claimed cost, given that the cost would not be "properly chargeable to the enforcement of the claim or prosecution of the action." MCR 8.121(C)(1).
We conclude that the proper course of action is to remand the case to the trial court for review of the costs requested by Legghio under the law of contracts and not the law that governs taxable costs awardable to a prevailing party.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. We decline to award taxable costs under MCR 7.219.
O'Connell, P.J., and K. F. Kelly, J., concurred with Murphy, J.
Legghio indicated that actual litigation costs exceeded $15,000, but he "agree[d] to reduce his costs to $10,000."
As another example-but in the context of an attorney fee-a court would be justified in refusing to authorize the distribution of a contingency fee to an attorney that amounted to 50 % of a judgment, given that such a fee would be a violation of law and public policy, as reflected in MCR 8.121(B) and MRPC 1.5. See Rory v. Continental Ins. Co. , 473 Mich. 457, 470, 703 N.W.2d 23 (2005) (holding that a contractual provision is not enforceable if it violates law or public policy). | [
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Shapiro, J.
Petitioner appeals the decision of the Michigan Tax Tribunal (Tribunal) that he was not entitled to a principal residence exemption (PRE) under MCL 211.7cc for the 2013, 2014, and 2015 tax years. Because the Tribunal made an error of law, we reverse.
I. FACTS AND TAX TRIBUNAL PROCEEDINGS
Petitioner is the owner of property located in Boyne City, Michigan (the property). Petitioner applied for a PRE on the property. On December 12, 2015, respondent issued a notice denying petitioner's PRE claim for the 2013, 2014, and 2015 tax years for two reasons. First, it stated that "[t]he property claimed is not the owner's principal residence," and second, that the "[o]wners employment [sic] out of state. Property possibly rented during part of year." Petitioner appealed in the Michigan Tax Tribunal, contesting respondent's factual assertions and contending that he should be granted a PRE on the property. In support of his appeal, petitioner submitted an affidavit stating that the property had been his principal residence for the relevant tax years. He presented proofs that during each year, he had been registered to vote at that address and that this was the address listed on his driver's license and tax returns. Petitioner also averred that he had not claimed "a substantially similar exemption on property in another state."
After a hearing, the Tribunal accepted petitioner's factual claims. It found that petitioner was the owner of the property, that the property was residential, and that petitioner had occupied the property for the majority of the 2013, 2014, and 2015 tax years. Nevertheless, the Tribunal denied the PRE because petitioner had rented out the residence for more than 14 days during each year. It relied on the Michigan Department of Treasury's Guidelines for the Michigan Principal Residence Exemption Program (PRE guidelines). The relevant PRE guideline states: "[I]f an owner rents his property for more than 14 days a year, the property is not entitled to a principal residence exemption." The Tribunal noted:
[T]he ... guidelines do not have the force of law. However, agency interpretations are granted respectful consideration, and if persuasive, should not be overruled without cogent reasons. The Tribunal, finding no cogent reason to disregard the Department's guidelines, is persuaded that Petitioner's leasing of the subject property negates entitlement to a principal residence exemption. [Quotation marks and citation omitted.]
On the basis of this guideline, the Tribunal concluded that petitioner was not entitled to a PRE under MCL 211.7cc for the 2013, 2014 and 2015 tax years. Petitioner appeals that determination.
II. LEGAL ANALYSIS
"Michigan's principal residence exemption, also known as the 'homestead exemption,' is governed by §§ 7cc and 7dd of the General Property Tax Act, MCL 211.7cc and MCL 211.7dd."
EldenBrady v. City of Albion , 294 Mich.App. 251, 256, 816 N.W.2d 449 (2011). MCL 211.7cc(1) provides, in pertinent part, that "[a] principal residence is exempt from the tax levied by a local school district for school operating purposes ... if an owner of that principal residence claims an exemption as provided in this section."
Further, MCL 211.7cc(2) provides, in pertinent part:
[A]n owner of property may claim 1 exemption under this section by filing an affidavit.... The affidavit shall state that the property is owned and occupied as a principal residence by that owner of the property on the date that the affidavit is signed and shall state that the owner has not claimed a substantially similar exemption, deduction, or credit on property in another state.
On appeal, petitioner points out that the Tribunal concluded that he satisfies each of these requirements. He further argues that the General Property Tax Act (GPTA), MCL 211.1a et seq., itself does not contain any language that would disqualify him and that the PRE guideline is contrary to the clear and unambiguous language of the GPTA. We agree with petitioner.
In support of its adherence to the PRE guidelines, the Tribunal cited the second and third sentences of MCL 211.7dd(c). The Tribunal's opinion reads, in pertinent part:
[W]hen the second and third sentences of MCL 211.7dd(c) are read in conjunction with one another, it is clear that the Legislature intended a principal residence to include only that portion of the property that is owned and occupied by the owner (as a principal residence), unless the portion that is unoccupied, and rented or leased to another, is less than 50% of the total square footage of living space.
The Tribunal wrongly applied the cited provisions within MCL 211.7dd(c). The second sentence of MCL 211.7dd(c) deals with multiple-dwelling units and provides, "Except as otherwise provided in this subdivision, principal residence includes only that portion of a dwelling or unit in a multiple-unit dwelling that is subject to ad valorem taxes and that is owned and occupied by an owner of the dwelling or unit." Petitioner's property is not a multiple-dwelling unit; therefore, this sentence does not apply. The third sentence of MCL 211.7dd(c) provides, "Principal residence also includes all of an owner's unoccupied property classified as residential that is adjoining or contiguous to the dwelling subject to ad valorem taxes and that is owned and occupied by the owner." This sentence is also inapplicable to the present case because there is no adjoining or contiguous property at issue.
The other statutory provision cited by the Tribunal is MCL 211.27a(11), which defines "commercial purpose" as "used in connection with any business or other undertaking intended for profit, but does not include the rental of residential real property for a period of less than 15 days in a calendar year." However, that definition, by its own terms, is limited to MCL 211.27a. In addition, the use of the term in MCL 211.27a is limited to whether residential property transfers within a family trigger a reassessment of the property's equalized value. And MCL 211.27a does not provide that a property used for commercial purposes necessarily loses its status as a residential property.
We also note that MCL 211.7cc(3) sets forth multiple scenarios disqualifying a property from receiving a PRE exemption, none of which applies to the petitioner in this case.
Given that petitioner meets all the statutory qualifications for the PRE and does not fall within any disqualification, the question is whether the PRE guideline on which the Tribunal relied properly states the law. We hold that it does not.
Michigan PRE guidelines do not have the force of a legal requirement. MCL 205.3(f) provides that the Department of Treasury "may periodically issue bulletins that index and explain current department interpretations of current state tax laws." The statute also makes a separate provision for rules issued by the Department. MCL 205.3(b). Under MCL 24.207(h), a rule does not include "[a] form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory." Therefore, while a rule has the force of law, guidelines do not. Kmart Mich. Prop. Servs., LLC v. Dep't of Treasury , 283 Mich.App. 647, 654, 770 N.W.2d 915 (2009).
The specific guideline on which the Tribunal relied is Chapter 4 (Qualified Principal Residence Property), ¶ 20. The guideline is stated in a question-and-answer format and reads as follows:
20. An owner owns property in a resort/lake area. The owner occupies the home the majority of the year but rents it out during the summer and takes an apartment in town. Is the owner entitled to a 100% principal residence exemption, a reduced exemption, or no exemption?
Michigan law does not make any provision for granting a partial exemption based on the percentage of the year that the owner occupied the home as a principal residence. Federal law allows an owner to rent their principal residence for less than 15 days during a calendar year without declaring it as a rental property on their tax return. An owner that would be required to declare rental income on their home is not entitled to a principal residence exemption on that property. Therefore, if an owner rents his property for more than 14 days a year, the property is not entitled to a principal residence exemption.
This PRE guideline is contrary to the GPTA. As discussed earlier, the controlling statutes do not disqualify a property from primary residence status simply because the residence has been rented for 15 days or more. In addition, comparison of the PRE to federal tax law is unavailing. The relevant federal income tax provisions, including 26 USC 280A, do not support the PRE guidelines. Under federal income tax law, a taxpayer may not deduct expenses related to his or her primary residence. However, when the residence is rented out, the owner must report his or her rental income and may deduct the expenses related to rental. The federal statute provides for an exception to this rule when the residence is rented for fewer than 15 days during the taxable year. This does not mean, however, that renting out one's residence for 15 days or more causes the house to lose its status as a residence. Rather, federal tax law treats the property as having a dual purpose. The taxpayer is not permitted to deduct all expenses related to the property as would be available if the property were used exclusively as a rental. Instead, the expenses for the maintenance of the home are prorated so that the percentage of the expenses that may be deducted is based on the percentage of days rented in the course of the year. 26 USC 280A(e). In addition, 26 USC 280A(d)(1) provides that a taxpayer may not claim that a dwelling unit is used solely as a rental property if the taxpayer-owner uses it for personal purposes for more than 14 days or 10% of the number of days it is rented out. In other words, if a homeowner stays in the residence for more than 15 days, the residence is considered to be intended for both personal and rental use. This interpretation contrasts with Michigan's PRE guidelines, which disqualify an owner for PRE when he or she rents the residence for 14 days or more.
Other federal guidance is also available. 26 USC 121 provides for the exclusion of gain from the sale of a "principal residence." The regulations adopted pursuant to this statute, 26 CFR 1.121-1 (2017), provide a definition of "principal residence" that would clearly encompass petitioner's property. Subsection (b) of the regulations provides:
(b) Residence -(1) In general. Whether property is used by the taxpayer as the taxpayer's residence depends upon all the facts and circumstances . A property used by the taxpayer as the taxpayer's residence may include a houseboat, a house trailer, or the house or apartment that the taxpayer is entitled to occupy as a tenant-stockholder in a cooperative housing corporation (as those terms are defined in section 216(b)(1) and (2)). Property used by the taxpayer as the taxpayer's residence does not include personal property that is not a fixture under local law.
(2) Principal residence . In the case of a taxpayer using more than one property as a residence, whether property is used by the taxpayer as the taxpayer's principal residence depends upon all the facts and circumstances. If a taxpayer alternates between 2 properties, using each as a residence for successive periods of time, the property that the taxpayer uses a majority of the time during the year ordinarily will be considered the taxpayer's principal residence. In addition to the taxpayer's use of the property, relevant factors in determining a taxpayer's principal residence, include, but are not limited to-
(i) The taxpayer's place of employment;
(ii) The principal place of abode of the taxpayer's family members;
(iii) The address listed on the taxpayer's federal and state tax returns, driver's license, automobile registration, and voter registration card;
(iv) The taxpayer's mailing address for bills and correspondence;
(v) The location of the taxpayer's banks; and
(vi) The location of religious organizations and recreational clubs with which the taxpayer is affiliated.[ ](Emphasis added).
For all these reasons, we conclude that the PRE guideline provision relied on by the Tribunal is erroneous and inconsistent with the GPTA. Renting one's home for more than 14 days does not disqualify a homeowner from the PRE. Accordingly, accepting the Tribunal's factual findings, we conclude that petitioner has satisfied the legal requirements to qualify for the PRE. We therefore reverse the Tribunal's decision and remand for entry of a judgment granting petitioner's request for a PRE for the 2013, 2014, and 2015 tax years. We do not retain jurisdiction.
HOEKSTRA, P.J., and STEPHENS, J., concurred with SHAPIRO, J.
In the absence of fraud, this Court reviews the Michigan Tax Tribunal's decision for "misapplication of the law or adoption of a wrong principle." EldenBrady v. City of Albion , 294 Mich.App. 251, 254, 816 N.W.2d 449 (2011) (quotation marks and citation omitted). "[F]actual findings are conclusive if supported by competent, material, and substantial evidence on the whole record." Benedict v. Dep't of Treasury , 236 Mich.App. 559, 563, 601 N.W.2d 151 (1999) (quotation marks and citation omitted). This Court reviews matters of statutory interpretation de novo. EldenBrady , 294 Mich.App. at 254, 816 N.W.2d 449.
Respondent does not contend that petitioner has requested a similar exemption as to his Ohio-or any other-property.
Michigan Department of Treasury, Guidelines for the Michigan Principal Residence Exemption Program (revised September 2014), p. 6, ch. 4, ¶ 20.
" 'This Court's primary task in construing a statute is to discern and give effect to the intent of the Legislature.' " EldenBrady , 294 Mich.App. at 254, 816 N.W.2d 449, quoting Shinholster v. Annapolis Hosp. , 471 Mich. 540, 548-549, 685 N.W.2d 275 (2004). This Court must give effect to every word, clause, and sentence in a statute. Robinson v. Detroit , 462 Mich. 439, 459, 613 N.W.2d 307 (2000). "Where the language of the statute is clear and unambiguous, the Court must follow it." Id .
MCL 211.27a(11) states that the definitions it provides define the term "[a]s used in this section."
MCL 211.7cc(3) states, in pertinent part:
[A] person is not entitled to an exemption under this section in any calendar year in which any of the following conditions occur:
(a) That person has claimed a substantially similar exemption, deduction, credit, regardless of amount, on property in another state....
(b) Subject to subdivision (a), that person or his or her spouse owns property in a state other than this state for which that person or his or her spouse claims an exemption, deduction, or credit substantially similar to the exemption provided under this section, unless that person and his or her spouse file separate income tax returns.
(c) That person has filed a nonresident Michigan income tax return, except active duty military personnel stationed in this state with his or her principal residence in this state.
(d) That person has filed an income tax return in a state other than this state as a resident, except active duty military personnel stationed in this state with his or her principal residence in this state.
(e) That person has previously rescinded an exemption under this section for the same property for which an exemption is now claimed and there has not been a transfer of ownership of that property after the previous exemption was rescinded, if either of the following conditions is satisfied:
(i) That person has claimed an exemption under this section for any other property for that tax year.
(ii) That person has rescinded an exemption under this section on other property, which exemption remains in effect for that tax year, and there has not been a transfer of ownership of that property.
MCL 205.3(b) provides:
After reasonable notice and public hearing, the department may promulgate rules consistent with this act in accordance with the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, necessary to the enforcement of the provisions of tax and other revenue measures that are administered by the department.
Guidelines for the Michigan Principal Residence Exemption Program , p. 6.
The purpose of 26 USC 280A is to "prevent a taxpayer from deducting expenses associated with the normal maintenance of his own dwelling unit." Holmes v. United States , 85 F.3d 956, 961 (C.A.2, 1996).
26 USC 280A(g) reads:
Notwithstanding any other provision of this section or section 183, if a dwelling unit is used during the taxable year by the taxpayer as a residence and such dwelling unit is actually rented for less than 15 days during the taxable years, then-
(1) no deduction otherwise allowable under this chapter because of the rental use of such dwelling shall be allowed, and
(2) the income derived from such use for the taxable year shall not be included in the gross income of such taxpayer under section 61.
"The term 'dwelling unit' includes a house, apartment, condominium, mobile home, boat, or similar property, and all structures or other property appurtenant to such dwelling unit." 26 USC 280A(f)(1)(A).
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Per Curiam.
Plaintiff, Jason Ross Kalin, appeals by delayed leave granted the trial court's order denying his motion for summary disposition. The trial court also granted a motion filed by defendant, Paige Katherine Fleming, for an extension of time to file an action to revoke Kalin's paternity. We reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Kalin and Fleming had an on-again, off-again relationship. Fleming gave birth to a child on March 11, 2012. The next day, both Kalin and Fleming signed an affidavit of parentage. The child's birth certificate also lists Kalin as the father. Fleming did not challenge Kalin's signature of the affidavit, and she later admitted that she intentionally did not tell Kalin that there was a possibility that he was not the child's father.
Kalin and Fleming separated in April 2015. In May 2015, Fleming would not let Kalin see the child because their relationship ended. In a text-message conversation, Fleming told Kalin that he was not the child's father. In June 2015, Kalin moved for custody, parenting time, and child support.
On July 11, 2015, Fleming filed a motion for an extension of time to set aside Kalin's affidavit of parentage on the basis of misrepresentation and misconduct. Fleming filed an amended motion for an extension of time, adding mistake of fact as a basis for seeking an extension. Fleming asserted that Kalin's mistaken belief that he was the child's biological father was the mistake of fact warranting an extension.
In addition to opposing Fleming's amended extension motion, Kalin moved for summary disposition under MCR 2.116(C)(7) (statute of limitations) and (8) (failure to state a claim). Kalin argued that Fleming did not allege facts to excuse the three-year deadline for revoking an acknowledgment of parentage. Fleming opposed summary disposition. The trial court denied Kalin's motion for summary disposition and granted Fleming's motion for an extension of time to seek to revoke the acknowledgment of parentage. The trial court rejected Fleming's misrepresentation and misconduct arguments. However, the trial court agreed that Kalin signed the acknowledgment of parentage under the mistaken belief that he was the child's father, constituting a mistake of fact warranting an extension of time for Fleming to seek to revoke paternity.
II. STANDARD OF REVIEW
We review a trial court's factual findings regarding a revocation of paternity action for clear error. Rogers v. Wcisel , 312 Mich. App. 79, 86, 877 N.W.2d 169 (2015). "The trial court has committed clear error when this Court is definitely and firmly convinced that it made a mistake." Id . (quotation marks and citation omitted). This Court reviews de novo questions of statutory interpretation. Bay Co. Prosecutor v. Nugent , 276 Mich. App. 183, 187, 740 N.W.2d 678 (2007).
The standards for statutory interpretation are well established:
The goal of statutory interpretation is to give effect to the Legislature's intent. If a statute's language is clear, this Court assumes that the Legislature intended its plain meaning and enforces it accordingly. In doing so, every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory. While generally words and phrases used in a statute should be assigned their primary and generally understood meaning, words and phrases which have a technical or special meaning in the law should be construed according to that technical or special meaning[.] Statutory language should be construed reasonably, keeping in mind the purpose of the act, and to avoid absurd results. [ Rogers , 312 Mich. App. at 86-87, 877 N.W.2d 169 (quotation marks and citations omitted; alteration in original).]
III. ANALYSIS
The Revocation of Paternity Act, MCL 722.1431 et seq ., defines an "acknowledged father" as "a man who has affirmatively held himself out to be the child's father by executing an acknowledgment of parentage under the acknowledgment of parentage act, ... MCL 722.1001 to 722.1013." MCL 722.1433(a). A signed acknowledgment of parentage "establishes paternity...." MCL 722.1004.
The child's "mother, the acknowledged father, an alleged father, or a prosecuting attorney may file an action for revocation of an acknowledgment of parentage." MCL 722.1437(1). An affidavit accompanying the motion must assert one of five statutory bases for revocation:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been found before the acknowledgment was signed.
(c) Fraud.
(d) Misrepresentation or misconduct.
(e) Duress in signing the acknowledgment. [ MCL 722.1437(4).]
A revocation action "shall be filed within 3 years after the child's birth or within 1 year after the date that the acknowledgment of parentage was signed, whichever is later." MCL 722.1437(1). The term "shall" is mandatory. Walters v. Nadell , 481 Mich. 377, 383, 751 N.W.2d 431 (2008). Accordingly, MCL 722.1437 provides no basis under which a parent may file an action for the revocation of paternity later than three years after the child's birth or later than one year after the signing of the acknowledgment of parentage.
However, MCL 722.1443 provides an exception under which a party may request an extension of time to seek revocation of an acknowledgment of parentage:
(12) A court may extend the time for filing an action or motion under this act. A request for extension shall be supported by an affidavit signed by the person requesting the extension stating facts that the person satisfied all the requirements for filing an action or motion under this act but did not file the action or motion within the time allowed under this act because of 1 of the following:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been found earlier.
(c) Fraud.
(d) Misrepresentation or misconduct.
(e) Duress.
In this case, Fleming filed an extension motion in July 2015, which was more than three years after the child's birth in March 2012. Therefore, it was necessary for Fleming to request an extension of the statutory three-year deadline. To merit an extension, Fleming was required to show that one of the five exceptions listed in MCL 722.1443(12) prevented her from moving for revocation of the acknowledgment of parentage within the three-year period.
Fleming argued that a mistake of fact provided the basis for extending the time for filing. A "mistake of fact" is " 'a misunderstanding, misapprehension, error, fault, or ignorance of a material fact, a belief that a certain fact exists when in truth and in fact it does not exist.' " Rogers , 312 Mich. App. at 95, 877 N.W.2d 169, quoting Montgomery Ward & Co. v. Williams , 330 Mich. 275, 279, 47 N.W.2d 607 (1951). "[E]vidence that a party acted in part on an erroneous belief is sufficient under MCL 722.1437(2) to establish a mistake of fact." Rogers , 312 Mich. App. at 96, 877 N.W.2d 169.
Fleming asserted Kalin's mistaken belief that he was the child's biological father as the mistake of fact. While Kalin's mistaken belief that he was the child's father may constitute a mistake of fact, MCL 722.1443(12) requires that the person requesting the extension show that she did not timely file the action because of one of the five listed exceptions. Fleming did not allege that she was previously unaware of the child's paternity, nor did she allege that a mistaken belief contributed to her delay. Thus, Fleming's affidavit did not describe a mistake of fact that prevented her from seeking revocation of the acknowledgment of parentage within the three-year deadline. Accordingly, the trial court erred by determining that MCL 722.1443(12) allowed an extension in this case because Fleming's affidavit did not establish an exception to the general rule that a parent must file an action to revoke parentage within three years of the child's birth.
Fleming relies on cases discussing a mistake of fact supporting revocation of paternity. Her reliance is unavailing because none of these cases arose from an extension motion to bring an untimely revocation action. See Rogers , 312 Mich. App. 79, 877 N.W.2d 169 ; Helton v. Beaman , 304 Mich. App. 97, 850 N.W.2d 515 (2014) ;
Bay Co. Prosecutor , 276 Mich. App. 183, 740 N.W.2d 678. Whether Fleming's affidavit described a mistake of fact that excused the filing deadline is a separate question from whether Kalin's mistake of fact could support a timely revocation action. Because Fleming's affidavit did not establish a mistake of fact that prevented her from meeting the filing deadline, the trial court erred by granting Fleming's extension motion.
We reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction.
O'Connell, P.J., and Murphy and K. F. Kelly, JJ., concurred.
Kalin v. Fleming , unpublished order of the Court of Appeals, entered May 19, 2017 (Docket No. 336724).
Because Kalin and Fleming signed the affidavit of parentage the day after the child was born, the three-year deadline is the later deadline. See MCL 722.1437(1).
Fleming does not argue on appeal that misrepresentation and misconduct warranted an extension. Therefore, she has abandoned these arguments on appeal. See Villadsen v. Mason Co. Rd. Comm. , 268 Mich. App. 287, 303, 706 N.W.2d 897 (2005). Moreover, the events she described to support these arguments all predated the expiration of the statutory three-year filing deadline, and she did not show how they prevented her from filing a timely revocation action. | [
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Per Curiam.
Defendant, James Daniel Seadorf, appeals by delayed leave his convictions for child sexually abusive activity, MCL 750.145c(2), and using a computer to commit a crime, MCL 752.797(3)(d). Defendant's convictions were entered pursuant to a plea agreement. The trial court sentenced defendant to 3 to 20 years' imprisonment for the child sexually abusive activity conviction and to one to seven years' imprisonment for the using a computer to commit a crime conviction. We affirm.
This case arises from the viewing of child sexually abusive material between the dates of August 1, 2015, and October 27, 2015. During this period, defendant, a 34-year-old male, used a computer to download child pornography for personal possession and use at home. Defendant was charged with four criminal counts: Count 1, commercial child sexually abusive activity, MCL 750.145c(2) ; Count 2, using a computer to commit a crime, MCL 752.797(3)(f), punishable by imprisonment of up to 20 years; Count 3, possession of child sexually abusive material, MCL 750.145c(4) ; and Count 4, using a computer to commit a crime, MCL 752.797(3)(d), punishable by imprisonment of up to 7 years.
Pursuant to a plea agreement, defendant pleaded guilty to Counts 1 and 4 in exchange for the dismissal of Counts 2 and 3. Defendant admitted to downloading the child sexually abusive material. Upon searching defendant's phone, police officers located several photo albums containing child sexually abusive material. A further investigation into defendant's home computer revealed several images and videos of child sexually abusive material saved on defendant's computer hard drive. The trial court accepted defendant's guilty plea.
Defendant appeared before the trial court for sentencing and received concurrent terms of incarceration as noted above. The sentencing guidelines were determined to be 45 to 75 months for the most serious felony. But by agreement, the sentencing guidelines were modified to 30 to 50 months. Before sentencing, a discussion in chambers took place indicating that an appropriate sentence for defendant would be 36 months. Defendant asked the trial court to impose this as a minimum sentence, and the trial court responded that it was "sentencing within the guidelines, consistent with the plea agreement."
Defendant moved to withdraw his guilty plea in the Kent Circuit Court. Defendant argued that his guilty plea to a 20-year felony should be vacated because he was not involved in the production, distribution, or promotion of child sexually abusive activity. Instead, defendant stated that he only downloaded the child sexually abusive material; thus, he was guilty of the four-year maximum felony under MCL 750.145c(4) and not the 20-year felony under MCL 750.145c(2). The trial court denied the motion.
A trial court's decision on a motion to withdraw a guilty plea made after sentencing will not be disturbed on appeal unless there is a clear abuse of discretion.
People v. Effinger , 212 Mich.App. 67, 69, 536 N.W.2d 809 (1995). "An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes." People v. Fonville , 291 Mich.App. 363, 376, 804 N.W.2d 878 (2011). Questions of statutory interpretation are reviewed de novo. People v. Flick , 487 Mich. 1, 8-9, 790 N.W.2d 295 (2010).
Defendant first argues that the trial court abused its discretion by denying defendant's motion to withdraw his guilty plea because his plea was not accurate. We disagree.
A "defendant may file a motion to withdraw the plea within 6 months after sentence." MCR 6.310(C). Most importantly, "[a] defendant seeking to withdraw his or her plea after sentencing must demonstrate a defect in the plea-taking process." People v. Brown , 492 Mich. 684, 693, 822 N.W.2d 208 (2012). If the trial court finds such an error, "the court must give the advice or make the inquiries necessary to rectify the error and then give the defendant the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea." MCR 6.310(C). Once it has been accepted by the trial court, there is no absolute right to withdraw a guilty plea. Effinger , 212 Mich.App. at 69, 536 N.W.2d 809.
When a "defendant pleads guilty, the court, by questioning the defendant, must establish support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading." MCR 6.302(D)(1). "The court may not accept a plea of guilty ... unless it is convinced that the plea is understanding, voluntary, and accurate." MCR 6.302(A).
MCL 750.145c(2) provides:
A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes , copies , reproduces, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make , copy , reproduce, or finance any child sexually abusive activity or child sexually abusive material for personal, distributional, or other purposes is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. [Emphasis added.]
Defendant claims he was only guilty of violating MCL 750.145c(4), which states:
A person who knowingly possesses or knowingly seeks and accesses any child sexually abusive material is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child.
Defendant believes that his guilty plea was not accurate or appropriate because he only downloaded image files for personal use; therefore, he should not be found guilty of the 20-year felony for child sexually abusive activity because there was no sufficient factual basis to support his guilty plea.
In 2012, however, the Legislature adopted 2012 PA 583, which effective March 1, 2013, amended the language of MCL 750.145c to include a definition of "make" as:
to bring into existence by copying , shaping, changing, or combining material, and specifically includes, but is not limited to, intentionally creating a reproduction, copy, or print of child sexually abusive material, in whole or part. Make does not include the creation of an identical reproduction or copy of child sexually abusive material within the same digital storage device or the same piece of digital storage media. [ MCL 750.145c(1)(j) (emphasis added); see 2012 PA 583.]
Additionally, the statutory language of MCL 750.145c(2) was modified to include the words "copies, reproduces" and "for personal, distributional, or other purposes." See 2012 PA 583.
Defendant's argument that the term "makes," as used in MCL 750.145c(2) (the child sexually abusive activity statute), does not include downloading an image is incorrect. While simply viewing an image on the Internet does not amount to "making" content because the individual has not actually copied the image yet, copying an image that is either stored on a computer hard drive or burned to a CD-ROM or other digital media storage device is considered "making" content. Defendant admits to downloading child sexually abusive material, and several images and videos were found on defendant's phone and computer. Because defendant saved new images and videos into folders, he created new copies of the content; thus, defendant "made" content. Although the term download has multiple meanings, "[i]t is often used to refer to actively saving a copy of a file to a computer's hard drive...." Flick , 487 Mich. at 30 n. 7, 790 N.W.2d 295 ( CAVANAGH , J., concurring in part and dissenting in part). Per MCL 750.145c(2), "copying"
child sexually abusive material falls into the 20-year felony offense.
Defendant's second argument on appeal is that his sentence was unreasonable and violated the Sixth Amendment and People v. Lockridge , 498 Mich. 358, 365, 870 N.W.2d 502 (2015). Defendant has waived appellate review of this issue.
In this case, defendant pleaded guilty. "[A] defendant waives appellate review of a sentence that exceeds the guidelines by understandingly and voluntarily entering into a plea agreement to accept that specific sentence." People v. Wiley , 472 Mich. 153, 154, 693 N.W.2d 800 (2005). In People v. Cobbs , 443 Mich. 276, 285, 505 N.W.2d 208 (1993), the Court held that "a defendant who pleads guilty or nolo contendere with knowledge of the sentence, and who later seeks appellate sentence relief under People v. Milbourn , 435 Mich. 630, 461 N.W.2d 1 (1990), must expect to be denied relief on the ground that the plea demonstrates the defendant's agreement that the sentence is proportionate to the offense and offender." Although defendant's guilty plea sentence did not exceed the guidelines, the same logic can be applied for pleas that result in downward departures from the sentencing guidelines.
Consequently, the trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea because there is a sufficient factual basis to show that defendant downloaded child sexually abusive material. Additionally, defendant waived appellate review of the reasonableness of his sentence; therefore, defendant is not entitled to resentencing.
We affirm.
Swartzle, P.J., and Sawyer and Markey, JJ., concurred. | [
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Per Curiam.
In this inverse-condemnation action, the trial court granted summary disposition under MCR 2.116(C)(8) to defendant, the Liquor Control Commission (the LCC) and denied plaintiff, Michael Long's motion to amend his complaint. Plaintiff now appeals as of right. Because plaintiff failed to state a claim for inverse condemnation and amendment of his complaint would be futile, we affirm.
Plaintiff owns and operates a liquor store, known as Par-T-Pac, in Boyne City, Michigan. Since 1990, he has held a specially designated distributor (SDD) license, which allows him to sell alcohol for off-premises consumption under the Michigan Liquor Control Code, MCL 436.1101 et seq. See MCL 436.1111(12) ; MCL 436.1533(4). In August 2013, the LCC issued an SDD license under the "resort" provision in MCL 436.1531(5) to Family Fare, LLC, which operates a supermarket in Boyne City. Under the MCL 436.1531(5) resort provision, Family Fare was able to obtain its SDD license without abiding by the quota and distance restrictions that would have otherwise applied to a new applicant for an SDD license. See MCL 436.1533(4) ; 2004 Annual Admin. Code R. 436.1133. In other words, Family Fare was able to obtain an SDD license even though it is located less than 2,640 feet from plaintiff's store and even though Boyne City already had its quota of SDD liquor licenses based on the city's population. See MCL 436.1531(5) ; MCL 436.1533(4) ; 2004 Annual Admin. Code Supp., R. 436.1133.
On August 12, 2016, proceeding in propria persona , plaintiff filed a complaint in circuit court against the LCC. Plaintiff's complaint indicates that since Family Fare received its SDD license, Par-T-Pac has seen a significant reduction in sales and, as a result, the value of his own license has been significantly reduced. Plaintiff alleged that the loss of sales and the reduced value of the SDD license "essentially" amounted to an "Unfair Taking" of the liquor license and resulted in a "form of Eminent Domain" that "steals all of [plaintiff's] equity and value, and transfers it unfairly to Family Fare."
In response to plaintiff's complaint, the LCC moved for summary disposition. Pertinent to this appeal, the LCC maintained that plaintiff failed to plead the elements of a de facto taking because there was no allegation that the LCC abused its legitimate powers in affirmative actions directly aimed at plaintiff's property and because the granting of a license to a private corporation to conduct a private business could not be regarded as the taking of private property by the government for public use. Before the trial court decided the LCC's motion for summary disposition, plaintiff obtained an attorney, and his attorney moved for leave to file an amended complaint. Plaintiff's proposed amended complaint contained one count of inverse condemnation, which was based on the theory that plaintiff had a property interest in his SDD license and that the LCC effectively took this property and transferred it to a private entity, namely Family Fare, for economic development. Following a hearing on the parties' motions, the trial court granted summary disposition to the LCC under MCR 2.116(C)(8), and it denied plaintiff's motion to amend his complaint, stating that the amendment would be futile. Plaintiff now appeals as of right.
On appeal, plaintiff argues that the trial court erred by granting summary disposition and by denying his motion to amend his complaint. Plaintiff contends that he has a property interest in his SDD license and, in particular, a right to the protections afforded by the quota and distance requirements governing SDD licenses, which restricted competition and assured that plaintiff's license had a particular value. According to plaintiff, by exempting Family Fare from these requirements to promote tourism under the MCL 436.1531(5) resort provision, the LCC effectively transferred the value of plaintiff's property interests to Family Fare for the benefit of the public. In contrast, the LCC maintains that, while plaintiff may have a property interest in his SDD license, that interest does not provide him with a property right to be free from competition or to enjoy set profits. Additionally, the LCC contends that, to the extent plaintiff has a property interest in his SDD license, his claims fail because any action taken by the LCC in issuing the license to Family Fare was not aimed directly at plaintiff's property.
As explained in this opinion, we agree with the LCC that plaintiff lacked a property right in being free from increased competition and that the LCC's actions in issuing an SDD license to Family Fare were not aimed directly at plaintiff's liquor license. In these circumstances, the trial court did not err by granting summary disposition to the LCC under MCR 2.116(C)(8), and the trial court did not abuse its discretion by denying plaintiff's motion to amend his complaint because any amendment would be futile.
I. STANDARDS OF REVIEW
We review de novo a trial court's decision to grant summary disposition. Ligon v. Detroit , 276 Mich.App. 120, 124, 739 N.W.2d 900 (2007). Constitutional issues, including claims relating to the taking of private property, are also reviewed de novo. Id. In this case, the trial court specified that it granted summary disposition under MCR 2.116(C)(8). A motion under this subrule "tests the legal sufficiency of the complaint based on the pleadings alone." Gallagher v. Persha , 315 Mich.App. 647, 653, 891 N.W.2d 505 (2016). In reviewing a motion under MCR 2.116(C)(8), "[a]ll factual allegations supporting the claim and any reasonable inferences that can be drawn from the facts are accepted as true." Lakin v. Rund , 318 Mich.App. 127, 131, 896 N.W.2d 76 (2016). The motion is properly granted "when the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Gallagher , 315 Mich.App. at 653, 891 N.W.2d 505 (quotation marks and citation omitted).
A trial court's decision on a motion to amend a complaint is reviewed for an abuse of discretion. Trowell v. Providence Hosp. & Med. Ctrs., Inc. , 316 Mich.App. 680, 690, 893 N.W.2d 112 (2016). Under MCR 2.116(I)(5), if summary disposition is granted pursuant to MCR 2.116(C)(8), "the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified." "Leave to amend the pleadings should be freely granted to the nonprevailing party upon a grant of summary disposition unless the amendment would be futile or otherwise unjustified." Lewandowski v. Nuclear Mgt. Co., LLC , 272 Mich.App. 120, 126-127, 724 N.W.2d 718 (2006).
II. ANALYSIS
"The Fifth Amendment of the United States Constitution and Article 10 of the Michigan Constitution both prohibit the taking of private property for public use without just compensation." Dorman v. Clinton Twp. , 269 Mich.App. 638, 645, 714 N.W.2d 350 (2006). "[T]o ensure the protections of this guarantee, the State of Michigan recognizes a cause of action, often referred to as an inverse or reverse condemnation suit, for a de facto taking when the state fails to utilize the appropriate legal mechanisms to condemn property for public use." Peterman v. State Dep't of Natural Resources , 446 Mich. 177, 187-188, 521 N.W.2d 499 (1994). "A de facto taking can occur without a physical taking of the property; a diminution in the value of the property or a partial destruction can constitute a taking." Cummins v. Robinson Twp. , 283 Mich.App. 677, 708, 770 N.W.2d 421 (2009) (quotation marks and citation omitted). "[T]he plaintiff must prove that the government's actions were a substantial cause of the decline of the value of the plaintiff's property and must establish that the government abused its legitimate powers in affirmative actions directly aimed at the plaintiff's property." Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club , 283 Mich.App. 264, 295, 769 N.W.2d 234 (2009).
Notably, as a preliminary matter, "[o]ne who asserts an uncompensated taking claim must first establish that a vested property right is affected." In re Certified Question , 447 Mich. 765, 787-788, 527 N.W.2d 468 (1994). See also Adams Outdoor Advertising v. East Lansing (After Remand) , 463 Mich. 17, 24, 614 N.W.2d 634 (2000). "Property interests ... are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Mich. Soft Drink Ass'n v. Dep't of Treasury , 206 Mich.App. 392, 403, 522 N.W.2d 643 (1994) (quotation marks and citations omitted). "A vested property right is an interest that is more than a mere expectation." Murphy-DuBay v. Dep't of Licensing & Regulatory Affairs , 311 Mich.App. 539, 557, 876 N.W.2d 598 (2015). A vested property right requires a legitimate claim of entitlement based on something more than "an anticipated continuance of the present general laws ...." In re Certified Question , 447 Mich. at 788, 527 N.W.2d 468 (quotation marks and citations omitted). See also Murphy-DuBay , 311 Mich.App. at 557, 876 N.W.2d 598.
In this case, analysis of whether plaintiff has a vested property right requires a determination of precisely what interests plaintiff claims have been taken by the LCC's actions. Plaintiff generally asserts that he has a property interest in his "liquor license," a proposition which the LCC does not dispute. See Bundo v. Walled Lake , 395 Mich. 679, 693-695, 238 N.W.2d 154 (1976) (holding that the licensee had a property interest in his liquor license and, in particular, a property interest "in obtaining a renewal of his liquor license"). However, plaintiff has not alleged a taking of his SDD license. To the contrary, it is undisputed that plaintiff still has his SDD license and that he still has the use of the license. He remains free to sell alcohol in Boyne City.
Considering plaintiff's allegations and arguments, in actuality, the property that plaintiff contends has been taken is not his liquor license, it is the right to be free from increased competition and to retain a set market share in the liquor industry in Boyne City given the quota and distance requirements that governed SDD licenses before Family Fare obtained its SDD license in 2013. This is reflected in plaintiff's arguments in his appellate brief, wherein he maintains that, before Family Fare received its SDD license, he "enjoyed the benefits of the State's regulation of the industry." Specifically, he asserts that his "business was protected from competition by quota and distance requirements," which prevented other private citizens or corporations from simply joining the market, and that these requirements ensured that plaintiff's "license had a particular value." Similarly, at the hearing in the trial court, plaintiff's attorney asserted that plaintiff had "a right" to a "limited amount of competition" based on quota and distance requirements that served to protect the profitability of the licensee. He contended that, by obtaining a license, the licensee received "part of the market share" with limits on "the level of competition" and that, in this case, the "status quo" consisted of only two SDD licenses in the market. In other words, plaintiff asserted that he had a property right, protected by the provisions of the Michigan Liquor Control Code, to a share of the liquor market premised on there being only two SDD licenses in Boyne City. According to plaintiff, by allowing the introduction of a third competitor into the market, the LCC has taken plaintiff's property by decreasing his share of the market, devaluing the resale value of plaintiff's license, and reducing his alcohol sales.
Fairly read, what plaintiff actually alleges is a loss of an oligopoly resulting from the increase of competition because of the issuance of a liquor license to Family Fare. Recognizing the property that plaintiff claims has been taken, the question becomes whether plaintiff possesses a property right to be free from increased competition in the sale of alcohol in Boyne City. See Adams Outdoor Advertising , 463 Mich. at 24, 614 N.W.2d 634 (considering, as a preliminary question, whether the claimant possessed the interest he alleged was being taken). In our judgment, the answer to this question is no.
An individual who possesses an SDD license under the Michigan Liquor Control Code has the right to sell alcohol for off-premises consumption in accordance with the law. See MCL 436.1111(12) ; MCL 436.1533(4). But an SDD license does not provide a property right to be free from competition in the sale of liquor, to have a set share in the market, or to enjoy a particular level of alcohol sales or profitability. These rights are simply not afforded by the Michigan Liquor Control Code. To the contrary, by its express terms, MCL 436.1531(5) makes plain that, aside from SDD licenses issued in accordance with the quota restrictions in MCL 436.1533(4), up to 15 additional SDD "resort" licenses may be issued in communities with a population of under 50,000 people, and these licenses may be issued for locations within 2,640 feet of an existing license. MCL 436.1531(5). The possibility of these 15 additional licenses wholly undercuts plaintiff's assertion that he had a vested property right to a market share based on the existence of only two SDD licenses in Boyne City. Indeed, even under the quota restrictions, the number of SDD licenses in Boyne City could increase based on population growth, see MCL 436.1533(4), and the Michigan Liquor Control Code provides no assurance that a new SDD licensee would not affect plaintiff's business. The quota requirements could also be waived if there was no existing SDD licensee within two miles of the applicant's proposed location, MCL 436.1533(4), and, again, there is no guarantee that the entry of a competitor into the market would not affect plaintiff's business. Given that the law specifically allows for the issuance of additional SDD licenses, plaintiff cannot legitimately claim that he was entitled to retain a specific market share, to exclude competition from the market, or to enjoy a set level of sales or profits. In these circumstances, he has not shown a property interest in being free from competition under the Michigan Liquor Control Code, and his takings claim premised on the LCC's issuance of an SDD "resort" license to Family Fare must fail.
In support of this conclusion, we note that-contrary to plaintiff's claim that he has a property right to a restricted liquor market-numerous other courts considering whether governmental action resulting in increased competition constitutes a "taking" have recognized that there is no constitutionally protected property right to be free from competition, to have a monopoly or oligopoly over an industry, or to obtain economic benefit from a license, even in industries in which governmental regulation had traditionally limited the amount of competition. See, e.g., Illinois Transp. Trade Ass'n v. Chicago , 839 F.3d 594, 596 (C.A. 7, 2016) (" 'Property' does not include a right to be free from competition."); Joe Sanfelippo Cabs, Inc. v. Milwaukee , 839 F.3d 613, 615 (C.A. 7, 2016) ("[A] taxi permit confers only a right to operate a taxicab .... It does not create a right to be an oligopolist, and thus confers no right to exclude others from operating taxis."); Minneapolis Taxi Owners Coalition, Inc. v. Minneapolis , 572 F.3d 502, 508-509 (C.A. 8, 2009) ("The taxicab licenses themselves do not carry an inherent property interest guaranteeing the economic benefits of using the taxicab license," and "any property interest that the taxicab-license holders' may possess does not extend to the market value of the taxicab licenses derived through the closed nature of the City's taxicab market."); Rogers Truck Line, Inc. v. United States , 14 Cl. Ct. 108, 115 (1987) ("[P]laintiff does not have a constitutionally protected freedom from competition."); Jaffe v. United States , 220 Ct.Cl. 666, 669, 618 F.2d 122 (1979) (order) ("[T]here is no constitutional right to be free of competition or to enjoy a monopoly. ... Nor are alleged anticipated profits protected by the just compensation clause.") (citations omitted); Jackson Sawmill Co., Inc. v. United States , 580 F.2d 302, 307 (C.A. 8, 1978) ("[A]ppellants possessed no constitutionally protected interest in a monopoly over traffic travelling between St. Louis and East St. Louis."); Miadeco Corp. v. Miami-Dade Co. , 249 F.Supp.3d 1296 (S.D. Fla., 2017) ("Plaintiffs' property rights derived from their [taxi] medallions do not confer on them a fully restricted market or a monopoly on all for-hire transportation."). See also Mich. Soft Drink Ass'n , 206 Mich.App. at 405, 522 N.W.2d 643 ("[T]here is no property right to potential or future profits.") (quotation marks and citation omitted). These cases persuasively reason that collateral interests of ownership are not property protected by the constitution. See Minneapolis Taxi Owners Coalition, Inc. , 572 F.3d at 509. The same is true of the SDD license issued to plaintiff. The only right afforded to plaintiff by the SDD license is the right to sell alcohol. He may have incidentally enjoyed the economic benefits of a restricted market because of the quota and distance requirements, but given the LCC's authority to issue additional SDD licenses in keeping with MCL 436.1531(5) and MCL 436.1533(4), plaintiff had no legitimate claim of entitlement to a market limited to two SDD licenses, and any incidental benefits of governmental regulation of the liquor industry did not constitute property rights. Accordingly, plaintiff cannot maintain a claim for inverse condemnation based on the allegation that the LCC took part of his market share by allowing for increased competition. Setting aside plaintiff's erroneous assertion that he has a property right to be free from increased competition or to enjoy a set share in the Boyne City market, at most, plaintiff has some general property interest in his SDD license. See Bundo , 395 Mich. at 693-695, 238 N.W.2d 154. But plaintiff cannot prevail on his takings claim on the basis of this interest because he has not alleged affirmative action by the LCC aimed directly at this property. See Marilyn Froling Revocable Living Trust , 283 Mich.App. at 295, 769 N.W.2d 234. That is, the LCC's action was not aimed directly at plaintiff's SDD license. The LCC did not revoke plaintiff's license, refuse renewal of his license, or restrict his use of the license to sell alcohol. Instead, the governmental action consisted of simply issuing a license to Family Fare as permitted by MCL 436.1531(5). If plaintiff was harmed by the issuance of the license, any harm was incidental to the governmental action that benefited Family Fare and the alleged harm resulted because Family Fare proved to be an able competitor in the sale of alcohol for off-premises consumption. These incidental or consequential effects governmental action do not amount to governmental action aimed directly at plaintiff's property. See Marilyn Froling Revocable Living Trust , 283 Mich.App. at 295, 769 N.W.2d 234 ; Spiek v. Dep't of Transp. , 456 Mich. 331, 345, 572 N.W.2d 201 (1998) ; Rogers Truck Line, Inc. , 14 Cl. Ct. at 114. Indeed, as previously recognized by this Court, when the government grants a license to a third party, this "granting of a license to a private citizen or a private corporation for the purpose of allowing that person or corporation to conduct a private business cannot be regarded as a taking of private property by the government for public use." Attorney General v. Ankersen , 148 Mich.App. 524, 561, 385 N.W.2d 658 (1986). See also Marilyn Froling Revocable Living Trust , 283 Mich.App. at 295, 769 N.W.2d 234. Accordingly, plaintiff cannot show that issuing an SDD license to Family Fare constituted governmental action aimed directly at plaintiff's SDD license.
In sum, plaintiff does not have a property right to be free from increased competition, and he cannot state a claim for inverse condemnation by asserting that the LCC took part of his market share by allowing increased competition. Additionally, to the extent plaintiff has a property interest in his SDD license, he cannot plead a viable claim of inverse condemnation because the issuing of a license to Family Fare did not constitute governmental action aimed directly at plaintiff's liquor license. Consequently, the trial court properly granted the LCC's motion for summary disposition under MCR 2.116(C)(8). The trial court did not abuse its discretion by denying plaintiff's motion to amend his complaint because any amendment would have been futile. Lewandowski , 272 Mich.App. at 126-127, 724 N.W.2d 718.
Affirmed.
HOEKSTRA, P.J., and STEPHENS and SHAPIRO, JJ., concurred.
An SDD license allows a person to distribute "spirits and mixed spirit drink," MCL 436.1111(12), and "spirits" is defined, in part, as "a beverage that contains alcohol." For ease of reference in this opinion, we use the term "alcohol."
Generally, MCL 436.1533(4) limits the number of SDD liquor licenses to 1 for each 3,000 persons, or fraction of 3,000, in the population of a city, incorporated village, or township. In terms of the geographical spacing between SDD licenses, Rule 436.1133 has prohibited the LCC from granting a license or allowing the transfer of a license's location "if there [was] an existing [SDD] license located within 2,640 feet of the proposed site." The LCC has voted to repeal Rule 436.1133, but the rule was in effect when Family Fare obtained its SDD license in 2013.
The licenses may be issued to established merchants whose business is to attract and accommodate tourists and visitors in a resort area.
Although decisions of other state courts and lower federal courts are not binding on this Court, we may consider them as persuasive authority. Travelers Prop. Cas. Co. of America v. Peaker Servs., Inc. , 306 Mich.App. 178, 188, 855 N.W.2d 523 (2014).
While Ankersen is not binding because it was decided before 1990, it may be considered for its persuasive value. See MCR 7.215(J)(1) ; In re Stillwell Trust , 299 Mich.App. 289, 299 n. 1, 829 N.W.2d 353 (2013). | [
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Saad, P.J.
In this action to recover personal injury protection insurance (PIP) benefits, defendant appeals the trial court's denial of its motion for summary disposition. In this case of first impression, we are asked to provide the proper interpretation of MCL 500.3173a(2), which imposes consequences for supplying false information "in support of a claim to the Michigan automobile insurance placement facility." Because plaintiff knowingly made false and material statements that were used to support a claim which was submitted to the Michigan automobile insurance placement facility (MAIPF), a fraudulent insurance act was committed, and plaintiff is precluded from recovering on his claim. Accordingly, we reverse the denial of defendant's motion for summary disposition.
I. BASIC FACTS
On September 12, 2014, plaintiff was struck by a hit-and-run driver. Because plaintiff was uninsured at the time of the accident, and because the driver of the other vehicle could not be identified, plaintiff made a claim for PIP benefits through the Michigan Assigned Claims Plan (MACP), which is maintained by the MAIPF. The MAIPF assigned defendant to handle plaintiff's claims in accordance with the provisions of the Michigan no-fault act, MCL 500.3101 et seq .
While defendant paid over $150,000 in PIP benefits to plaintiff, it refused to pay other PIP benefits, including any for attendant or replacement-care services. Among the documentation submitted to defendant in support of a claim for PIP benefits were replacement-services calendars for the months of August, September, and October 2015. The calendars purportedly were signed by Andrew Candler, plaintiff's brother, and showed that Andrew provided care to plaintiff during these three months. However, during discovery, it was learned that Andrew last provided services to plaintiff in July 2015. After this time, plaintiff moved from Rochester to Detroit to live with his girlfriend, who took over providing replacement services for plaintiff. Plaintiff's counsel at the trial court conceded that plaintiff had signed his brother's name to these calendars.
Plaintiff filed the instant suit to recover the owed PIP benefits. Defendant moved for summary disposition and argued that MCL 500.3173a(2) precluded plaintiff from recovering any PIP benefits because of the false statements that were provided. After accepting supplemental briefs from the parties, the trial court denied defendant's motion.
II. STANDARDS OF REVIEW
Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), but because the resolution of the motion required consideration of evidence outside the pleadings, we will treat the motion as having been decided under MCR 2.116(C)(10). See Travis v. Dreis & Krump Mfg. Co. , 453 Mich. 149, 183-184, 551 N.W.2d 132 (1996). We review a trial court's decision on a motion for summary disposition under MCR 2.116(C)(10) de novo. See Maiden v. Rozwood , 461 Mich. 109, 118, 597 N.W.2d 817 (1999). A motion under this court rule "tests the factual sufficiency of the complaint." Id. at 120, 597 N.W.2d 817. "In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, and admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion." Id. (citation omitted). The motion is properly granted "if there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law." Hazle v. Ford Motor Co. , 464 Mich. 456, 461, 628 N.W.2d 515 (2001).
Resolution of this issue also involves questions of statutory interpretation, which are questions of law that we review de novo. Szpak v. Inyang , 290 Mich. App. 711, 713, 803 N.W.2d 904 (2010).
III. ANALYSIS
Defendant argues that the trial court erred when it denied defendant's motion for summary disposition because MCL 500.3173a(2) dictates a different result. We agree.
The goal in interpreting statutes is to give effect to the intent of the Legislature. Titan Ins. Co. v. Farmers Ins. Exch. , 241 Mich. App. 258, 261, 615 N.W.2d 774 (2000). "In determining the intent of the Legislature, this Court must first look to the language of the statute." Bush v. Shabahang , 484 Mich. 156, 166-167, 772 N.W.2d 272 (2009). "If the language is clear and unambiguous, we assume the Legislature intended its plain meaning, and the statute is enforced as written."
Wesche v. Mecosta Co. Rd. Comm. , 267 Mich. App. 274, 279, 705 N.W.2d 136 (2005).
MCL 500.3173a provides as follows:
(1) The Michigan automobile insurance placement facility shall make an initial determination of a claimant's eligibility for benefits under the assigned claims plan and shall deny an obviously ineligible claim. The claimant shall be notified promptly in writing of the denial and the reasons for the denial.
(2) A person who presents or causes to be presented an oral or written statement, including computer-generated information, as part of or in support of a claim to the Michigan automobile insurance placement facility for payment or another benefit knowing that the statement contains false information concerning a fact or thing material to the claim commits a fraudulent insurance act under [ MCL 500.4503 ] that is subject to the penalties imposed under [ MCL 500.4511 ]. A claim that contains or is supported by a fraudulent insurance act as described in this subsection is ineligible for payment or benefits under the assigned claims plan . [Emphasis added.]
Defendant asserts that the emphasized portion of the statutory language means that, because of the forged signatures on the August, September, and October 2015 calendars and the corresponding false claims that Andrew performed services during those months, plaintiff is ineligible to receive any PIP benefits. Plaintiff argues that the first sentence of Subsection (2) shows that this later-mentioned prohibition only applies when the false statement was made to the MAIPF . Consequently, plaintiff asserts that because the false statements were presented to defendant and not the MAIPF, then this statute does not act as a bar to the recovery of PIP benefits.
We disagree with plaintiff's view. The first sentence of Subsection (2) states, "A person who presents or causes to be presented an oral or written statement ... as part of or in support of a claim to the [MAIPF ] for payment or another benefit knowing that the statement contains false information concerning a fact or thing material to the claim commits a fraudulent insurance act ...." MCL 500.3173a(2). Accordingly, in order to qualify as part of a fraudulent insurance act under this subsection, the false statement merely must have been presented "as part of or in support of a claim to the [MAIPF] for payment or another benefit." Contrary to plaintiff's suggestion, the prepositional phrase "to the [MAIPF]" modifies the antecedent noun "claim," not "statement." Therefore, a person commits a fraudulent insurance act under this statute when (1) the person presents or causes to be presented an oral or written statement, (2) the statement is part of or in support of a claim for no-fault benefits, and (3) the claim for benefits was submitted to the MAIPF. Further, (4) the person must have known that the statement contained false information, and (5) the statement concerned a fact or thing material to the claim. Importantly, MCL 500.3173a(2) does not require that any particular recipient have received the false statement in order for the act to qualify as a fraudulent insurance act, as long as the statement was used "as part of or in support of a claim to the [MAIPF]." With this understanding, we hold that there is no genuine issue regarding the fact that a fraudulent insurance act, as defined by MCL 500.3173a(2), was committed when the August, September, and October 2015 calendars were submitted in support of a claim to the MAIPF for replacement services that were never provided. There is no dispute that plaintiff submitted a claim to the MAIPF to recover no-fault benefits after being injured in a motor vehicle accident. There also is no question that a false statement was presented to defendant in support of plaintiff's claim. While the MAIPF ultimately assigned the claim to defendant, the claim itself was nonetheless being processed through the MAIPF. Indeed, the MACP's Plan of Operations provides that servicing insurers, such as defendant, "act on behalf of the MAIPF." MACP Plan of Operations, § 6.A.1. Therefore, plaintiff's claim for no-fault benefits is a claim to the MAIPF-not to defendant. Accordingly, the fact that plaintiff was dealing with defendant at the time the false statements were presented is not determinative.
Further, plaintiff knew that the statement contained false information, which concerned a fact or thing material to the claim. Here, the evidence shows that plaintiff knew that the calendars he submitted for the months of August, September, and October 2015 were not correct. Plaintiff's counsel conceded at the trial court that plaintiff had signed or forged Andrew's name to the calendars. Further, during this three-month period, plaintiff knew that he moved to Detroit to be with his girlfriend, who then supplied the replacement services that Andrew previously supplied. No reasonable jury could conclude that plaintiff, despite the presence of any head injury, was not aware that he was submitting false information that was material to his claim for no-fault benefits. See Quinto v. Cross & Peters Co. , 451 Mich. 358, 367, 547 N.W.2d 314 (1996) (stating that to create a genuine issue of material fact and defeat a motion for summary disposition under MCR 2.116(C)(10), there must be sufficient evidence to permit a reasonable jury to find in the nonmoving party's favor).
Additionally, the last sentence of MCL 500.3173a(2) provides that "[a] claim that contains or is supported by a fraudulent insurance act as described in this subsection is ineligible for payment or benefits under the assigned claims plan." Because there is no genuine issue of material fact that plaintiff's claim for benefits was supported by a fraudulent insurance act, the claim is thereby ineligible for payment under the MACP. As a result, the trial court erred when it ruled that defendant was not entitled to summary disposition.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
We granted leave to appeal in Candler v. Farm Bureau Mut. Ins. Co. of Mich , unpublished order of the Court of Appeals, entered September 22, 2016 (Docket No. 332998). Intervening plaintiff, Pain Center USA, PLLC, is not a party to this appeal.
Under MCL 500.3171(2), the MAIPF has the responsibility to "adopt and maintain an assigned claims plan." See also W A Foote Mem Hosp. v. Mich. Assigned Claims Plan , 321 Mich. App. 159, 170 n. 5; 909 NW.2d 38 (2017) ; Bronson Health Care Group, Inc. v. Titan Ins. Co. , 314 Mich. App. 577, 580 n. 2, 887 N.W.2d 205 (2016).
There was another calendar from February 2015, which ostensibly showed that Andrew provided more hours of service than he actually performed. But because defendant's position is] [ that any false statement provided to it negates all of plaintiff's claims for PIP benefits, we will focus on the more blatant situation involving the forged signatures for the August, September, and October 2015 calendars.
Defendant also argues that because the statute uses the term "claim" and does not refer to any "application," it shows that plaintiff's view is not supported because only applications are submitted to the MAIPF. Defendant avers that if the Legislature had intended to cover situations in which a claimant made false statements to the MAIPF in an application, then it would have used the term "application." Defendant refers us to MCL 500.4503, in which the Legislature used both the term "application" and the term "claims"; however, the word "application" in MCL 500.4503 is used in the context of an "application for the issuance of an insurance policy." MCL 500.4503(a) and(b). An application for an insurance policy is not the same as a claim for benefits. See Merriam-Webster's Collegiate Dictionary (11th ed) (defining "claim" as "a demand for something due or believed to be due").
Accordingly, while there is a reason to use the terms "claim" and "application" in MCL 500.4503, there is no reason to use both terms in MCL 500.3173a because the request/application to the MAIPF is nevertheless a claim for owed benefits. The MACP Plan of Operations, § 5.1.A states that "[a] claim for personal protection insurance benefits under the Plan must be made on an application prescribed by the MAIPF." MACP, Plan of Operations, available at [https://perma.cc/5EPNC7DW]. Hence, although the initial document to the MAIPF is called an application, it nevertheless is a claim for benefits, and the Legislature's failure to use the term "application" in MCL 500.3173a is neither surprising nor determinative.
The dissent insists that we are reading more into the statute than what it says when we state that a claim must have been submitted to the MAIPF. But as we have discussed, the phrase "a claim to the MAIPF" makes it clear that the claim at issue must have been submitted to the MAIPF. The dissent seems to ignore the fact that plaintiff's "claim" for replacement-care services benefits is part of-and not separate from-the claim that he submitted to the MAIPF, as evidenced by the dissent's statement that a request for particular benefits is a "new" claim that is separate from the "prior" claim that was made to the MAIPF. The fact that the statute could have been drafted differently to achieve the same result is not a compelling reason to ignore the meaning of the, arguably, unartfully drafted language. Further, the fact that the Legislature ultimately did not pass the proposed modification to the statute in 2015 HB 4224 as passed by the Senate on June 9, 2016, could simply mean that it thought that any revision was not necessary because the existing language provided the same safeguards against the type of fraud that the proposed revision attempted to address. Of course, we are cognizant that any attempt to glean legislative intent from legislative history, let alone a proposed amendment that never was enacted, is a difficult proposition at best. See, e.g., In re Complaint of Mich. Cable Telecom. Ass'n , 241 Mich. App. 344, 371-372, 615 N.W.2d 255 (2000) ; Scalia, A Matter of Interpretation (Princeton: Princeton University Press, 1997), pp. 31-32.
We note that this Court's opinion in Bahri v. IDS Prop. Cas. Ins. Co. , 308 Mich. App. 420, 864 N.W.2d 609 (2014), is not relevant to our case. While the Court in Bahri held that a claimant's fraudulent acts can bar the recovery of all PIP benefits, id. at 426, 864 N.W.2d 609, the ruling was predicated on] [the interpretation and application of an insurance policy contract that contained a fraud exclusion, id. at 423-424, 864 N.W.2d 609. Here, Bahri does not govern because there is no policy to apply, let alone a fraud exclusion in a policy.
We decline to address the position that defendant advocated at the trial court that, in addition to plaintiff being ineligible to receive future PIP benefits, plaintiff must also reimburse defendant for any benefits it previously paid. On appeal, defendant does not present this argument. Indeed, in its brief on appeal, defendant asserts that it "is entitled to deny any further payment of PIP benefits to plaintiff." | [
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On order of the Court, the application for leave to appeal the August 31, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Markman, C.J. (dissenting ).
I respectfully dissent from this Court's order denying leave to appeal. Instead, I would grant leave to consider more fully the circumstances that are properly considered in determining whether an initially noncustodial interrogation has been transformed in midstream into a "custodial interrogation" for the purposes of Miranda v Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). More specifically, I would grant to consider the relevance in the instant case of the following particular factors cited by the Court of Appeals: (a) the allegedly "hostile, accusatory tone employed when [one officer] entered the interrogation room and engaged in an unveiling of all the incriminating evidence"; (b) the statement by one officer that the DNA and other evidence against defendant was "compelling," that he had "the prosecutor's office watching right now," and that "if you don't want to tell us [what happened], we've got enough right here to go ahead and charge [you] with first-degree murder"; and (c) the officers' failure to apprise defendant that "she was free to leave at any time." The costs of Miranda are substantial where it is properly invoked-in this instance resulting in the suppression of a confession to a cold-case murder-and I am not yet persuaded that the lower court's Miranda analysis was in all respects properly undertaken. | [
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On order of the Court, the application for leave to appeal the May 16, 2017 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on whether to grant the application or take other action. MCR 7.305(H)(1).
The appellant shall file a supplemental brief within 42 days of the date of this order addressing whether the Court of Appeals: (1) properly determined that a declaratory judgment was not ripe under MCR 2.605 ; and (2) properly interpreted the contract to determine that "defendant is not obligated to perform [under the contract] until ... a shortfall has occurred, and ... property taxes paid by defendant are inadequate for plaintiff to pay that portion of the bonds that was used to fund the Village." Van Buren Charter Twp. v. Visteon Corp. , 319 Mich. App. 538, 548, 904 N.W.2d 192 (2017). In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellee shall file a supplemental brief within 21 days of being served with the appellant's brief. The appellee shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if any, must be filed by the appellant within 14 days of being served with the appellee's brief. The parties should not submit mere restatements of their application papers. | [
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On order of the Chief Justice, the motion to waive fees is considered and it is DENIED because MCL 600.2963 requires that a prisoner pursuing a civil action be liable for filing fees.
Within 21 days of the date of this order, appellant shall pay to the Clerk of the Court the initial partial filing fee of $12.00; submit a copy of this order; and refile the copy of the pleadings returned with this order. Failure to comply with this order shall result in the appeal not being filed in this Court.
If appellant timely files the partial fee and refiles the pleadings, monthly payments shall be made to the Department of Corrections in the amount of 50 percent of the deposits made to appellant's account until the payments equal the balance due of $363.00. This amount shall then be remitted to this Court.
Pursuant to MCL 600.2963(8) appellant shall not file a new civil action or appeal in this Court until the entry fee in this case is paid in full.
The Clerk of the Court shall furnish two copies of this order to appellant and return a copy of appellant's pleadings with this order. | [
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On order of the Chief Justice, the motion of the Michigan Defense Trial Counsel to file a brief amicus curiae is GRANTED. The amicus brief submitted on May 8, 2018, is accepted for filing. On further order of the Chief Justice, the motion of the Insurance Alliance of Michigan to file a brief amicus curiae on or before June 5, 2018, is GRANTED. | [
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] |
On order of the Court, the application for leave to appeal the December 5, 2017 judgment of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Dixon-Bey (Docket No. 156746) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case.
Wilder, J., did not participate because he was on the Court of Appeals panel at an earlier stage of the proceedings. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the April 20, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. The motion for stay is DENIED. | [
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